Tilecorp Pty Ltd v Sheppard

[2008] NSWWCCPD 97

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tilecorp Pty Ltd v Sheppard [2008] NSWWCCPD 97
APPELLANT:		Tilecorp Pty Ltd
RESPONDENT:		Cecil Sheppard
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC735-08
DATE OF ARBITRATOR’S DECISION:		6 May 2008
DATE OF APPEAL DECISION:		4 September 2008
SUBJECT MATTER OF DECISION:		Dependency; totally or mainly dependent for support.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Curwoods Lawyers
Respondent:	Stacks
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 6 May 2008 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

INTRODUCTION

1. This appeal raises two issues. First, whether, in order for a worker to recover additional weekly compensation in a claim under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’), an alleged dependent must be “totally or mainly” dependent for support on the worker (section 37(4) of the 1987 Act), or, only “wholly or in part” dependent for support (section 4 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). Second, whichever test is applied, whether the worker’s children were in fact dependent on him for support from 1 December 2006 to date and continuing.

BACKGROUND

1. Cecil Sheppard is currently 44 years old.  He married Tracy Wornes in 1986 and he has four children as a result of that marriage.  One of those children is an adult and is not relevant for the purpose of the current claim.  The three children relevant to the claim are:

·     Shandel, born on 3 July 1989;

·     Dale, born on 21 April 1992, and

·     Brendan, born on 14 January 1995.

1. On dates not revealed in the evidence, Mr Sheppard and Ms Wornes separated and then divorced.  Ms Wornes lives with the children at Jimboomba, Queensland and Mr Sheppard lives in Murwillumbah, New South Wales, about one hour and forty minutes drive away.  From the time he separated until the present, Mr Sheppard has paid and continues to pay maintenance for the children.  The amount paid is the subject of further discussion later in this decision.

1. On 19 May 2005, Mr Sheppard injured his right knee in the course of his employment with Tilecorp and has been either totally or partially unfit for work as a result of his injury from that time to date.  His claim for compensation was accepted and voluntary weekly compensation payments made at various rates under either section 36, 37, 38 and/or 40 of the 1987 Act. 

1. In June 2006 Mr Sheppard commenced suitable employment as a console operator with a service station working 22 hours per week earning $433.88 per week.  It is not disputed that, notwithstanding this work, Mr Sheppard remains entitled to weekly compensation at the maximum rate for a worker with three dependent children, assuming that the children are found to be dependent under the legislation. 

1. A dispute arose as to the correct quantum of weekly compensation payable to Mr Sheppard.…