Rex v BBG

[2022] NSWPIC 480

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Rex v BBG [2022] NSWPIC 480

APPLICANT:

Peter F Rex

RESPONDENT:

BBG

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

31 August 2022

CATCHWORDS:

WORKERS COMPENSATION - Lump sum death benefit; no other persons identified as dependant except the respondent.

determinations made:

1.     The name of the applicant is amended to Peter F Rex.

2.     I find that the respondent was dependent for support upon the deceased, BCJ, at the date of his death.

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

4. 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 $838,750.

5. The lump sum of $838,750 is to be paid directly to the respondent pursuant to s 85A of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. Mr BCJ (the deceased) died on 29 September 2021.

2. The name of the applicant employer was amended at the listing of this matter to be Peter F Rex.  Peter F Rex was represented when the amendment was sought and consented to the amendment.

3. Peter F Rex 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).

4. 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 telephone conference on 19 August 2022. The parties were able to agree to a proposed resolution of the matter at that time.

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, and

   (b)    Reply to the Application to Resolve a Dispute.

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. BBG (the respondent) was the wife of the deceased. She has filed a statement dated 9 August 2022 to support the application in this matter. The statement clearly outlines the circumstances of her dependency as that date of death which included the maintaining a home together and sharing expenses.

4. Two children were born from the marriage namely BDB and BEF. Both adult children have provided statements to the effect that they do not want to be classed as either totally or partially dependent upon the deceased.

5. 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.

6. The lump sum benefit should therefore be paid directly to the respondent.