Issue 8: August 2012

Coverbid Pty Ltd t/as Eclipse Couriers v Geary [2012] NSWWCCPD 36

Contractor taken to be worker; Sch 1 cl 2 to the 1998 Act; sufficiency of reasons

O’Grady AP

6 July 2012

Facts:

Mr Geary was engaged as a courier driver by Coverbid Pty Ltd trading as Eclipse Couriers (the appellant) on 8 October 2009. Mr Geary performed that work until he injured his right shoulder on 14 January 2010. Mr Geary underwent two surgical procedures to that shoulder.

Mr Geary made a claim for workers compensation benefits against the appellant. The evidence established that Mr Geary and his wife were in partnership and conducted a transportation business. The claim was declined on the basis that, at the time of injury, Mr Geary was not a worker, as defined in the 1998 Act.

An Application to Resolve a Dispute filed on behalf of Mr Geary sought orders for weekly payments, medical expenses and a lump sum in respect of alleged whole person impairment. The claim in respect of ongoing weekly payments was discontinued by consent.

The Arbitrator found that Mr Geary was a “deemed worker” and remitted the permanent impairment dispute to the Registrar for referral to an AMS for assessment of whole person impairment.

The issues in dispute on appeal were whether the Arbitrator erred in the following respects:

(a) failing to properly consider or address all the relevant evidence;

(b) failing to give any or any sufficient reasons for her decision, and

(c) finding that Mr Geary was to be taken to be a worker employed by the appellant upon application of cl 2 of Sch 1 to the 1998 Act to the facts.

Held: Arbitrator’s decision confirmed.

1. The appellant complained that there was a failure by the Arbitrator to “consider the financial documents which indicated [Mr Geary’s] partnership loss in 2010” when considering whether Mr Geary was “a worker or deemed worker of [the appellant]” [36]. The Arbitrator expressly noted that evidence in her Reasons and acknowledged that that evidence was relied upon, with other evidentiary material, in support of the argument that Mr Geary was neither “an employee or a ‘deemed worker’” [37].

2. The Arbitrator concluded that Mr Geary had a “special or particular” relationship with the appellant in the sense intended by Dixon J in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389. In reaching this conclusion, the Arbitrator had regard to all the evidence including the evidence concerning the loss suffered by the partnership in 2010. That conclusion was open to the Arbitrator [40].

3. An Arbitrator has a duty to provide sufficient reasons for his or her decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (per McHugh JA at 279)) [41].

4. The only argument raised which related to an apparent failure to give sufficient reasons for finding that Mr Geary was a “deemed worker” was that that finding was made by the Arbitrator “without considering the totality of the evidence, in particular, the date [Mr Geary] re-joined the appellant; the terms of the document entitled Terms of Engagement, and the financial records [demonstrating a loss in 2010]” [43]. The Arbitrator considered the document entitled Terms of Engagement and determined that “little, if any weight, can be attached to this document” [45]. That evidence was evaluated following an expression of sufficient reasons for either acceptance or rejection. The Arbitrator’s reasons for concluding as she did were plainly stated [46].

5. In reaching her conclusion that Mr Geary “was a deemed worker within cl 2”, the Arbitrator was guided by the summary of those facts which are to be proven to establish entitlement to rely on the terms of cl 2 made by Bainton AJA in Scerri v Cahill (1995) 14 NSWCCR 389 at 399 being:

1. that he was party to a contract with the respondent to perform work;

2. that work exceeds $10 in value;

3. that the work is not work incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and

4. that the applicant has neither sublet the contract nor employed workers in the performance of it.

6. The Arbitrator correctly found that there was no dispute concerning the matters enumerated in [1], [2] and [4] of his Honour’s summary. The appellant failed to establish error concerning the Arbitrator’s findings as to matters noted at [3] above [49].

7. Appeal dismissed.

Workers Compensation Nominal Insurer v Tillman [2012] NSWWCCPD 38

Section 74 of the 1998 Act; failure to give notice of dispute; s 289A(4) of the 1998 Act; leave to have unnotified matter determined by the Commission; s 9AA of the 1987 Act; connection with the State of New South Wales; incapacity; entitlement to weekly compensation

O’Grady AP

26 July 2012

Facts:

Mr Tillman alleged injury in the State of Victoria on 15 November 2007 whilst employed by Ando 2 Pty Ltd t/as Seca Glass (Ando). At relevant times, Ando did not hold a policy of workers compensation insurance. Mr Tillman made a claim for compensation benefits against the Workers Compensation Nominal Insurer (the appellant).

Mr Tillman sought weekly payments and a lump sum in respect of alleged whole person impairment.

The appellant, in a s 74 notice, denied that Mr Tillman was a worker or a “deemed worker” and argued that there was no connection between the alleged employment and the State of New South Wales (s 9AA of the 1987 Act).

At arbitration the appellant sought leave under s 289A(4) of the 1998 Act to raise a dispute concerning Mr Tillman’s alleged incapacity. In a Certificate of Determination dated 5 April 2012, the Arbitrator ordered that “the application for leave to dispute the quantum of weekly compensation is dismissed”. The appellant conceded that Mr Tillman was a “deemed” worker of Ando and accepted that the whole person impairment suffered as a result of the injury was six per cent. Argument, at arbitration, was directed to the question as to whether Mr Tillman was entitled to compensation benefits having regard to the facts and the operation of s 9AA of the 1987 Act. The Arbitrator ultimately made orders in favour of Mr Tillman.

The issues in dispute on appeal were whether the Arbitrator erred in the following respects:

(a) failing to permit the appellant to dispute Mr Tillman’s allegation of incapacity;

(b) finding that Mr Tillman was a worker employed by Ando on 15 November 2007;

(c) finding that the State of New South Wales was the State in which Mr Tillman usually worked in his employment with the appellant, and

(d) failing to determine Mr Tillman’s capacity for work.

Held: Arbitrator’s decision revoked and matter remitted.

1. The appellant at the hearing conceded “deemed” employment. Upon proof that the employment was connected with the State of New South Wales within the meaning of s 9AA of the 1987 Act compensation would be payable. It was therefore unnecessary for the Arbitrator to analyse the facts to determine whether there existed at relevant times a contract of service as distinct from a contract for services (see Martin v R J Hibbens Pty Limited [2010] NSWWCCPD 83 (Martin) at [64] and [65]) [65].

2. The question of “worker” had been addressed in submissions and it was appropriate to address that question notwithstanding the consequences of the concession made. The Arbitrator referred to relevant authority (Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 and Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8), the “control test” as discussed in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 and correctly identified the various criteria that should be examined when determining the question of “worker” [66]–[68]. His conclusion was open to him on the evidence.

3. The absence of evidence that Mr Tillman worked in New South Wales was not fatal to his claim under the New South Wales legislation given the terms of s 9AA(6). The Arbitrator correctly had regard to Mr Tillman’s work history, the mutual intention that Mr Tillman would work indefinitely in New South Wales and that the Melbourne job was temporary. The evidence permitted the Arbitrator’s conclusion that New South Wales was the State in which the worker “usually works” [72].

4. The employment contract was not divisible into two discrete contracts as was the case in Martin [73]. No error in so concluding was demonstrated.

5. It was not disputed that the s 74 notice made no reference to the question of incapacity. The Arbitrator ruled that the appellant was not to be granted leave to argue the unnotified dispute as to incapacity which was variously described by counsel and the Arbitrator (see [84]). However, the Arbitrator did not allow the appellant to “dispute quantum of compensation” which prevented the appellant from adducing evidence or presenting argument concerning the nature of the incapacity, its duration and the quantum of any entitlement [86]. The Arbitrator was correct in refusing leave to raise a previously unnotified dispute [90]; however, there was a misconception as to the characterisation or identification of the unnotified “dispute”.

6. A distinction must be drawn between the fact of incapacity and a worker’s entitlement in respect of such incapacity. Upon an acceptance that the appellant was prevented from disputing incapacity before the Arbitrator, the onus remained on Mr Tillman to establish the extent of any incapacity, that is whether total or partial, the duration of such incapacity, as well as the quantum of any weekly entitlement. The failure to dispute incapacity merely prevented the appellant from adducing any evidence to suggest that incapacity had not resulted from the injury [87].

7. The award with respect to weekly compensation was made without there being a finding concerning the extent (total or partial) of incapacity. It appeared that the Arbitrator treated the appellant’s failure to dispute incapacity as having the consequence that an award in respect of the claim could be entered as though by default. The Arbitrator erred in this regard [89].

8. The matter was remitted to the Arbitrator to enable a proper adjudication of Mr Tillman’s entitlement to weekly compensation and all other outstanding matters [90]–[92], including orders concerning reimbursement.

9. It was noted that the Arbitrator made an order that the claim for whole person impairment was to be remitted to the Registrar for referral to an AMS for assessment despite there being agreement as to the degree of whole person impairment suffered. This assessment was not required as there was no dispute concerning that entitlement [91].

Zutic v Cenere Pty Ltd [2012] NSWWCCPD 37

Challenge to factual findings; unreliable witness; proof of injury

O’Grady AP

12 July 2012

Facts:

Mr Zutic, whilst employed by Cenere Pty Ltd (the respondent), fell from the roof of a laundry on 3 May 2010 as he was painting the eaves of the house to which the laundry was attached. As a result of that fall Mr Zutic suffered injury to his right elbow being a fracture to the radial head which required surgical treatment. Mr Zutic reported pain and disability in his right shoulder as well as the elbow.

Mr Zutic claimed compensation for the injury to his right elbow, injury to his low back and neck. The insurer disputed that he was a worker or “deemed worker” and that he had injured his low back and neck.

Mr Zutic had a history of injuries received prior to the fall which included injury to his low back and neck for which he had received workers compensation entitlements.

Whilst the Arbitrator found in favour of Mr Zutic, he was not satisfied that Mr Zutic injured his low back and neck. It is against those findings of fact concerning the extent of injuries received that Mr Zutic appealed. He submitted that:

(a) the Arbitrator did not give “sufficient weight to the fact that [Mr Zutic] fell from a height of about 2.4 [sic] metres onto a concrete floor”;

(b) the Arbitrator erred in concluding that there was “insufficient evidence” to conclude that there was any further injury to Mr Zutic’s neck and back;

(c) the evidence of the AMS, Dr O’Neill, Dr Guirgis and Dr Ryan, was sufficient to determine that Mr Zutic’s condition had deteriorated and that the Arbitrator had failed to consider that evidence, and

(d) Mr Zutic’s “level of incapacity may need to be reconsidered”.

Held: Arbitrator’s decision confirmed.

1. Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir). This decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong [27]. Such error may be established by showing that, as stated by Barwick CJ (at 506):

Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial Judge is so preponderant in the opinion of the appellate court that the trial Judge’s decision is wrong.

2. There were two reports from Dr Guirgis, who had been qualified by Mr Zutic’s solicitors, that noted two different histories given by Mr Zutic in May 2011 and July 2011. Only in the July consultation was a history of low back and neck injury given. These circumstances led the Arbitrator to comment that “it is necessary to look carefully at [Dr Guirgis’s] evidence and the contemporaneous evidence before concluding what injuries [Mr Zutic] actually suffered at that time” [28].

3. The Arbitrator’s careful examination of the general practitioner’s records failed to reveal any reference to back injury until July 2011, by which time Mr Zutic had seen Dr Guirgis on the second occasion and a modified history had been given [33]. The Arbitrator’s examination of all relevant evidence revealed that there was no contemporaneous evidence that would support a finding that a low back and neck injury was received in the fall [34].

4. Furthermore, the absence of evidence from his treating orthopaedic surgeon was of particular significance given that other evidence established that Mr Zutic had been treated by that doctor in respect of his earlier orthopaedic injuries including the injury in respect of which he has received weekly compensation benefits for many years [35]. The Arbitrator clearly stated the deficiencies in the evidence.

5. It was clear that the Arbitrator’s rejection of the evidence of Dr Guirgis and Dr Ryan which supported Mr Zutic’s claim for neck and back injury followed an exhaustive examination by him of the totality of the evidence [36]–[37].

6. The Arbitrator did not err in the manner as discussed in Whiteley Muir in determining the question of injury [39].