Zell v Golden Ag Trust

[2023] NSWPIC 278

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Zell v Golden Ag Trust & Ors [2023] NSWPIC 278

APPLICANT:

BGR

FIRST RESPONDENT:

Golden AG Trust

SECOND RESPONDENT

BDZ

THIRD RESPONDENT

BFU

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

14 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefit; dependency; section 4; Held – orders made pursuant to section 29 regarding dependency and apportionment.

determinations made:

1.     I find that the applicant, second and third respondents were wholly or partially dependent upon the deceased, BHO, at the date of his death on 10 May 2022.

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 (the 1987 Act) as of the date of death was $862,350.

4.     The first respondent is to pay lump sum benefit based upon the following (agreed) apportionment:  

(a)    $431,175 to the applicant;

(b)    $215,587.50 to the second respondent, and

(c)    $215,587.50 to the third respondent.

5.   The first respondent is to pay interest on the lump sum benefit as follows:

(a)    $6,985.63 to the applicant;

(b)    $2,147.90 to the second respondent, and

(c)    $2,147.90 to the third respondent.

6.     Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of the applicant is to be paid directly to her.

7.     Pursuant to s 85(1) of the 1987 Act, the sums awarded in favour of the minor respondents (second and third respondents) are to be paid to the NSW Trustee & Guardian.

8.     The first respondent is to pay the NSW Trustee and Guardian its fees in accordance with
cl 177 of the Workers Compensation Regulation 2016.

STATEMENT OF REASONS

BACKGROUND

1. BHO (the deceased) died on 10 May 2022.

2. At the time of his death he was in a marriage with the applicant. BHO and BGR had two children namely BDZ born in 2016 and BFU born in 2022.

3. Golden AG Trust (the first respondent/employer) 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 issues for determination are the questions of dependency and apportionment.

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 (if required).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter proceeded to Arbitration on 23 May 2023. At that time the parties were able to agree on a proposes distribution of the lump sum benefit.

EVIDENCE

Documentary evidence

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

   (a)    Application to Resolve a Dispute (the Application) and attached documents, and

   (b)    Replies and attached documents.

Dependency

1. A dependant 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. There is no doubt that the applicant, the second and third respondents were dependent upon the deceased as at the time of his death. The applicant and the deceased were married at the time of his death and BHO provided for household expenses including house repayments, groceries, fuel and medical expenses. BGR had taken some time off work to look after her children, in particular BFU who had recently been born. BHO was therefore the primary source of income for the family.

3. The two children of the marriage resided with their parents as at the date of death. Willow has received some additional medical treatment such as speech pathology and occupational therapy. Such services having been paid by her parents in particular her father as the sole income provider for the family as at the date of death. Likewise, provision was made for BFU for the payment of childcare and swimming lessons. 

4. The apportionment proposed by the parties seems appropriate in the circumstances. Whilst  BDZ has experienced  challenges, this apportionment is offset by the younger age of BFU.

5. There is no evidence before me that identifies any potential person who could be or wishes to be classed as dependent upon the deceased as at the date of death.

6. There being no other dependant persons, Orders are made as agreed by the parties.