Mele v BWC Concrete Pty Ltd (Deregistered)

[2022] NSWPIC 528

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Mele v BWC Concrete Pty Ltd (Deregistered) & Ors [2022] NSWPIC 528

APPLICANT:

Angela Mele

FIRST RESPONDENT:

BWC Concrete Pty Ltd (De-registered)

SECOND RESPONDENT:

Nicholas Mele

THIRD RESPONDENT:

Julian Mele

FOURTH rESPONDENT:

Andrew Mele

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

23 September 2022

CATCHWORDS:

WORKERS COMPENSATION - Lump sum death benefit; apportionment. 

determinations made:

1.     The applicant, Angela Mele, was dependent for support upon the deceased, Fulvio Mele as at the date of his death in 2017.

2.     There was no other person who was dependent upon the deceased at the date of death.

3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $775,600.

4. The lump sum of $775,600 is to be paid directly to the applicant pursuant to s 85A of the Workers Compensation Act 1987.

5.     The claim is amended to include a claim for interest on the lump sum benefit. Award for the respondent in respect of the claim for interest.

STATEMENT OF REASONS

BACKGROUND

1. Mr Fulvio Mele (the deceased) died in August 2017. BWC Concrete Pty Ltd (de-registered) (the employer/first respondent) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).

2. The only substantive issue for determination is the question of dependency and any apportionment of the death benefit.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death, and

   (b)    apportionment of the lump sum death benefit.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

1. The claim was listed in the Commission for a contested liability hearing on
   20 September 2022.

2. The parties were able to agree in relation to the primary liability issue together with any claim pursuant to interest.

3. The parties also agreed on a proposed apportionment of the lump sum benefit.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and taken into account in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Reply by the first respondent, second respondent, third respondent and fourth respondent to the Application to Resolve a Dispute, and

   (c)    late documents dated 14 September 2022, 15 September 2022 and
   16 September 2022.

Dependency

1. A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

3. Angele Mele (the applicant) was the wife of the deceased. She has filed a statement dated
   2 October 2021 in support of the application in this matter. The statement clearly outlines the circumstances of her dependency as that date of death which included maintaining a family home together and sharing expenses.

4. Three children lived in the family home, namely the second, third and fourth respondents. The children have all reached majority and appeared to have a close and loving relationship with their father.

5. All children, namely the second, third and fourth respondents, have filed statements indicating that they do not wish to be considered as partially or fully dependent upon the deceased at the time of death.

6. There is no evidence before me of any other person who was partially or fully dependent upon the deceased and wishes to make a relevant claim.

7. I therefore direct that the lump sum benefit is to be paid directly to the applicant.

8. The respondent is to pay for reasonable funeral expenses up to the statutory maximum allowed.