Richardson v Turfco Australia Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43
APPELLANT:	Michele Richardson
FIRST RESPONDENT:	Turfco Australia Pty Ltd
SECOND RESPONDENT:	John Rozs
FIRST RESPONDENT INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-7026/15
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	28 April 2016
DATE OF APPEAL DECISION:	6 September 2016
SUBJECT MATTER OF DECISION:	Death benefits, s 25 of the Workers Compensation Act 1987; dependency; meaning of “wholly or partly dependent for support”
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Firths – The Compensation Lawyers
First Respondent:	Hicksons Lawyers
Second Respondent:	Rishworth Dodd Solicitors
ORDERS MADE ON APPEAL:	1.       The Senior Arbitrator’s Certificate of Determination of 28 April 2016 is revoked. 2.       The matter is remitted to another Arbitrator to determine afresh.

INTRODUCTION

1. This matter concerns a claim in respect of a ‘lump sum death benefit’ pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). The appellant claims that the Arbitrator erred in not finding that she was dependent upon her deceased son for support at the date of his death, in circumstances where it is not disputed that the deceased died in the course of his employment.

BACKGROUND

1. On 1 December 2014, in the course of his employment, Blaine Ty Rozs, the deceased, was tragically run over by a tractor causing fatal injuries. The deceased was aged 19.

2. On 15 December 2015, Ms Richardson, the deceased’s mother, lodged in the Commission an Application in Respect of Death of Worker (the Application). She claimed that she was dependent upon the deceased at the date of his death and therefore claimed lump sum compensation pursuant s 25 of the 1987 Act.

3. On 23 December 2015, the respondent employer filed a reply advising that its insurer, Employers Mutual Ltd, had conceded liability to make the payment pursuant to s 25. However it contended that the claim for compensation had not “been fully ‘duly made’ until the Commission makes a determination” in respect to whom the lump sum payment ought to be made.

4. On 27 January 2016, the second respondent, Mr John Rozs, the deceased’s father, filed a miscellaneous application claiming an interest in these proceedings. He contended that Ms Richardson was not a “dependant of the deceased and that the lump sum should be paid to the Estate”.  In a Direction issued by the Commission on 28 January 2016, the Application was amended to name Mr Rozs as the second respondent.

5. The matter proceeded to conciliation and arbitration before Senior Arbitrator McDonald on 10 March 2016. The issue in dispute only concerned whether Ms Richardson was wholly or partially dependent upon the deceased for support at the date of his death, in accordance with s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and therefore entitled to the death benefit payable under s 25.

6. On 28 April 2016, the Senior Arbitrator…