Al Othmani v Massoud

[2010] NSWWCCPD 129

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Confirmed in Court of Appeal -  Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45 (22 March 2012)
CITATION:		Al Othmani v Massoud and anor [2010] NSWWCCPD 129
APPELLANT:		Adnan Al Othmani
FIRST RESPONDENT:		Raymond Tannous Massoud and Antoine Massoud
SECOND RESPONDENT INSURER		Uninsured Liability-Agent for New South Wales WorkCover Scheme Uninsured
FILE NUMBER:		A1 7269/09
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:		3 March 2010
DATE OF APPEAL DECISION:		10 December 2010
SUBJECT MATTER OF DECISION:		Deemed worker, intention to create legal relations; contract of employment, Schedule 1 clause 2 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Acting Deputy President Lorna McFee
HEARING:		6 and 24 September 2010
REPRESENTATION:		Appellant:	Mr Gornley SC instructed by Koutzoumis Lawyers

First Respondent

Second Respondent:

No appearance

Mr Dodd instructed by DLA Phillips Fox

ORDERS MADE ON APPEAL:

Paragraph (1) of the Arbitrator’s determination of 3 March 2010 is confirmed.

Paragraphs (2) and (3) of the Arbitrator’s determination of 3 March 2010 are revoked and the following orders made:

1. The matter is remitted to a different arbitrator for determination of all outstanding issues in accordance with the reason in this decision.

2. The second respondent is to pay the appellant’s costs of the first arbitration.

3. The second respondent is to pay the appellant’s costs of the appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

1. The appellant, Adnan Al Othmani, who is 36 years of age, suffered injury on 24 June 2006.  He fell through sheeting (also referred to as a pergola) on a roof of a house to the ground. As a result of the fall, Mr Al Othmani sustained a severe back injury which resulted in paraplegia.

1. On 10 September 2009, Mr Al Othmani lodged an Application to Resolve a Dispute (the Application) in the Commission, in which he alleged that his employers were the house owners, Raymond Tannous Massoud (Mr Massoud) and Antoine Massoud, who were joined as first respondent.  Proceedings were also commenced against Uninsured Liability – Agent for New South Wales WorkCover Scheme (WorkCover) as the second respondent because the first respondent was uninsured.

1. Mr Al Othmani notified the first respondent of the injury and made a claim for compensation on 24 March 2009.

1. WorkCover issued a s 74 notice disputing Mr Al Othmani’s entitlement to workers compensation on the basis that he was not a worker or a deemed worker.

1. The Commission listed the matter for conciliation and arbitration on 11 December 2009.  Mr Al Othmani and WorkCover were represented. Oral evidence from Mr Al Othmani and Mr Massoud was taken and lengthy written submissions provided.

1. The Arbitrator identified the issues in dispute to be:

(a) whether the applicant was a worker as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) employed by the first respondent;

(b) whether the applicant was a worker as…