| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Alexander Lowe t/as Asbestos Contamination Management Australia v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 74 |
| APPLICANT: | Alexander Lowe t/as Asbestos Contamination Management Australia |
| FIRST RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SECOND RESPONDENT: | Wayne Nelson |
| MEMBER: | Mr Glenn Capel |
| DATE OF DECISION: | 13 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Section 145 recovery; worker, injury, capacity, and liability for medical expenses disputed by the uninsured applicant; Hollis v Vabu Pty Ltd, On Call Interpreters and Translators Agency Pty Ltd v Commissioner for Taxation (No 3), Drive Recruit Pty Ltd v Back, Secretary, Department of Family and Community Services v Bee, Malivanek v Ring Group Pty Ltd, Zuijs v Wirth Bros Pty Ltd, Kooragang Cement Pty Ltd v Bates and Department of Education & Training v Ireland discussed and applied; Held- second respondent was a worker, who sustained a back injury during the course of his employment; medial evidence of the worker’s doctor and a vocational assessment supported an ability to earn in suitable employment; first respondent paid weekly compensation in excess of worker’s entitlements; applicant ordered to reimburse first respondent part of the weekly compensation paid, plus medical expenses. |
| DETERMINATIONS MADE: | 1. The second respondent was a worker in the employ of the applicant on 28 June 2019. 2. The second respondent sustained an injury arising out of or in the course of his employment with the applicant on 28 June 2019. 3. The second respondent’s employment was a substantial contributing factor to his injury. 4. The second respondent had no current work capacity ON 5 July 2019 and from 24 July 2019 to 10 September 2019. 5. The second respondent had the capacity to undertake suitable work as a courier, earning $961 per week, from 6 July 2019 to 23 July 2019 and from 11 September 2019 to 4 June 2020. His ability to earn exceeded his Pre-Injury Average Weekly Earnings. 6. The second respondent required medical treatment as a consequence of his injury sustained during the course of his employment with the applicant. 7. The applicant did not maintain a policy of insurance on 28 June 2019 for the purposes of section 140(2) of the Workers Compensation Act 1987. 8. The first respondent is deemed to be the insurer of the applicant as at 28 June 2019 pursuant to section 142A of the Workers Compensation Act 1987. 9. The first respondent paid weekly compensation from 5 July 2019 to 4 June 2020 and medical expenses to or on behalf of the second respondent from the Workers Compensation Insurance Fund established pursuant to s 154D of the Workers Compensation Act 1987 in the sum of $40,000.28. 10. The second respondent is liable to reimburse the first respondent $712.50 per week on |
| ORDERS MADE | 11. The applicant is to reimburse the first respondent $712.50 per week on 5 July 2019 and from 24 July 2019 to 10 September 2019, together with the reasonably necessary medical expenses particularised in the list of payments attached to the notice issued pursuant to section 145(1) of the Workers Compensation Act 1987 within 28 days of this determination. 12. Liberty to the parties to apply in respect of the mathematical calculations of the applicant’s liability to reimburse the first respondent with 14 days of this determination. 13. The first respondent is to calculate the reimbursement due pursuant to this determination and advise the applicant within 21 days of this determination. |
STATEMENT OF REASONS
BACKGROUND
Wayne Nelson (the second respondent) is 57 years old and commenced work with Alexander Lowe t/as Asbestos Contamination Management Australia (the applicant) as an asbestos removalist on 22 May 2019. He allegedly sustained an injury to his back on
28 June 2019.The Workers Compensation Nominal Insurer (icare) is identified as the first respondent.The second respondent submitted a claim to the first respondent after his alleged injury, and the first respondent sought particulars from the applicant pursuant to s 141(2) of the Workers Compensation Act1987 (the 1987 Act) before liability was accepted.
On 14 August 2020, the first respondent advised the applicant that it was satisfied that he was the employer of a worker injured whilst in his employ. It indicated that the second respondent had lodged a claim for compensation against the first respondent and the claim had been accepted under Division 6 of Part 4 of the 1987 Act.
The first respondent issued a notice to the pursuant to s 145(1) of the 1987 Act seeking reimbursement of the weekly compensation and medical expenses paid to or on behalf of the second respondent within 28 days. A certificate was attached to the notice in accordance with s 145(5) that certified that the payments made to or on behalf of the second respondent amounted to $40,000.28. According to the list of payments, the second respondent received weekly compensation from 5 July 2019 to 4 June 2020 based on Pre-Injury Average Weekly Earnings (PIAWE) of $750.
A Miscellaneous Application (the Application) was registered in the Workers Compensation Commission (now the Personal Injury Commission) (the Commission) on 11 September 2020, seeking a determination of his liability in respect of the payments made by the first respondent.
At a telephone conference before me on 10 October 2020, I directed that the second respondent be joined as a party to the proceedings, that copies of my Direction and copies of the pleadings be served and that the second respondent file a Reply by 6 November 2020.
At a further telephone conference on 13 November 2020, because there was no appearance by the second respondent, I issued a similar Direction and also directed the parties to inform the second respondent about funding assistance that was available from the Workers Compensation Independent Review Office.
Although I directed that an Amended Application be filed, this did not eventuate. During both telephone conferences, I encouraged the applicant to seek legal assistance, but he advised that he could not afford this.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was listed for a conciliation conference and arbitration hearing on
16 February 2021. I was not satisfied that the applicant should procced with this application in the absence of legal assistance. Accordingly, I made the following direction:“1. The applicant’s application for an adjournment of the arbitration hearing to allow him to obtain legal advice and to apply to the Nominal Insurer to waive reimbursement of the compensation paid to and on behalf of the second respondent pursuant to s 145(2) of the Workers Compensation Act 1987 is granted.
2. The conciliation conference and arbitration hearing adjourned to 10.00 am on
31 March 2021.3. The applicant is directed to file and serve a statement, detailing the system of work implemented at the Sydney Pistol Club on the date(s) of the second respondent’s alleged injury, by 17 March 2021.
4. The respondent is directed to file and serve any claim form that may have been submitted by the second respondent in respect of his alleged back injury by
17 March 2021.5. Leave is granted to the first respondent to issue Directions to Produce Documents on Dr Ria and GBAR (Australia) Pty Ltd.
Note:
6. During the conciliation conference, the respondent’s counsel indicated that the applicant had not made application to the first respondent pursuant to s 145(2) of the Workers Compensation Act 1987 to waive reimbursement to the Insurance Fund of the compensation paid to or on behalf of the second respondent.
7. Section 145(2) of the Workers Compensation Act 1987 provides:
‘(2) The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that— (a) the amount is beyond the capacity of the employer to pay, (b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time, (c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy, (d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up, (e) the employer, being a corporation, has been dissolved, or 2 DOC89 V2.0 OCT 2010 (f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.’
8. The applicant intends to apply to the first respondent to waive the reimbursement due to his current financial circumstances. A copy of his request should also be provided to the first respondent’s solicitor.”
During the conciliation conference on 31 March 2021, the applicant advised that he had sought legal advice, but he had not retained a solicitor or barrister because he did not have the finances to pay their fees. He had not contacted the Law Society of NSW or the Bar Association, who may have provided pro bono assistance.
The applicant also advised that he had not asked the first respondent to waive his liability to reimburse it, because he disputed that he was liable.
The second respondent has not been involved in these proceedings to date, and he has failed to file a Reply as directed, despite the best efforts of the applicant and the first respondent’s solicitor. The second respondent has been afforded every opportunity to participate in these proceedings and the matter proceeded in his absence. I am mindful that his interests mirror those of the first respondent.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the second respondent was a “worker” or “deemed worker" – s 4 and
cl 2 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act);(b) whether the second respondent sustained an injury arising out of or in the course of his employment with the applicant – s 4 of the 1987 Act;
(c) whether the second respondent’s employment with the applicant was a substantial contributing factor to his injury– s 9A of the 1987 Act;
(d) extent and quantification of the second respondent’s capacity in the period from
5 July 2019 to 4 June 2020 – ss 36 and 37 of the 1987 Act;(e) whether the applicant is liable to pay medical expenses paid by the first respondent – s 60 of the1987 Act, and
(f) whether the applicant should be ordered to reimburse the first respondent –
s 145(4) of the 1987 Act.
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents received on 20 December 2020, and
(d) Application to Admit Late Documents received on 17 March 2021.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Second respondent’s statement and claim form
Wayne Nelson provided a statement on 30 July 2019. He confirmed that he commenced employment as an asbestos removalist on 22 May 2019 under the supervision and direction of the applicant. His duties involved removing asbestos panelling and roofing, placing the material into plastic bags, loading the bags into trucks, and taking the bags to the tip. He usually worked from 6.00 am to 6.00 pm, depending on the availability of work. At times there were no jobs.
The second respondent indicated that when a job was finished, the applicant would tell him where the next job would be. They used his car in the first two weeks and then the applicant purchased a truck. They normally drove in the applicant’s truck, but they hired a trailer that was attached to his vehicle for the last job.
The second respondent stated that protective clothing, such as overalls, gloves, booties, and pre-filers for the mask, was supplied by the applicant. He used his own face mask and two crowbars. He had an asbestos ticket, but the licence to remove asbestos was in the applicant’s name. He claimed that they never discussed insurance. He did not conduct his own business and did not advertise his services.
The second respondent stated that he was paid $750 per week by direct deposit, except he was underpaid on 7 June 2019. He claimed that he was also underpaid as he was supposed to be paid $32 per hour. Following his injury, the applicant paid him $200 per week on 5 July 2019 and 12 July 2019. No payslips were provided, no tax was deducted, and no superannuation was paid by the applicant. He did not submit invoices and he did not have an ABN. It would seem that the first respondent was satisfied that Mr Nelson was a “worker” in the employ of the applicant at the date of the alleged injury.
The second respondent advised that he injured his back on 28 June 2019 at about 1.00 pm when he was working at Sydney Pistol Club. He claimed that he and the applicant were lifting packages over a distance of 40 metres from one place to the truck. There were at least 15 packages on the first day and about 15 to 20 on the second day. There were also at least 10 packages of contaminated soil weighing more than 100kg. The weights were recorded in the tip receipts.
The second respondent stated that on 27 June 2019, he complained to the applicant about the weights and suggested that they make some of the packages lighter, but the applicant said that it was taking too long. They had to get the packages to the tip and finish the job. They loaded packages onto the applicant’s truck and a trailer that was attached to his ute. When they reached the tip, they unloaded all the packages from his truck into the trailer to save tip admission fees.
The second respondent indicated that on 28 June 2019, he complained about the packages and told the applicant that his back was hurting. He was told to keep going. He had back soreness on the first day and he was worse on the second day. There was no frank injury, only the cumulative effect of lifting the packages.
The second respondent stated that the applicant unloaded some of the 100 kg packages of dirt at the tip by himself. He was unable to assist, and he told the applicant that he had a lot of back pain. The applicant told him to see a doctor and that he was not covered for workers compensation. He asked if there was anything that he needed to sign, and he was told that the applicant would attend to that on the following Monday or Tuesday.
The second respondent indicated that his back was stiff over the weekend, but he had nagging pain the following week. There was no work available from Monday to Wednesday, and on 4 or 5 July 2019, he sent a series of texts to the applicant regarding his back injury. Initially the applicant told him that he was an employee, and when he mentioned a claim, the applicant stated that he was a subcontractor and should have had insurance. The applicant told him to cease contacting him and to send anything to his solicitor. The applicant blocked his mobile number and he refused to give him and details.
The second respondent indicated that he had consulted Dr Ria and had been prescribed painkillers, but he had not received any physiotherapy treatment because he did not have a claim number. He stated that he had never experienced a similar injury.
In the claim form dated 5 August 2019, the second respondent indicated that over a period of two days on 27 June 2019 and 28 June 2019, he lifted waste packages weighing up to 100 kg into a truck and trailer and then unloaded them at the tip. As a result of this work, he developed soreness in his back.
Applicant’s statement
The applicant provided a statement on 6 August 2019. He stated that the second respondent commenced employment as subcontractor on 23 May 2019 and his employment was terminated when he inadvertently sent him an email. A copy of this email is not in evidence, but it seems that the applicant was in fact referring to a text message.
The applicant stated that the second respondent’s pay rate was not properly discussed. He engaged the second respondent because the head contractor of Sydney Train Maintenance was his best friend. The applicant saw this as an opportunity to take Mr Nelson on and give him sporadic work until the Sydney Train contract came through. His friend wanted them to do a joint venture.
The applicant stated that he had agreed with the second respondent that they would split the income from any job that they did on a 50/50 basis. He paid Mr Nelson $750 per week out of his own money via EFT, and it was agreed that when the job money came through after 30 days, he would give Mr Nelson’s share to him. After the arrangement came to an end, he paid the second respondent $200 per week as an act of good faith until his share of the income from the jobs came in. This money had not been received at the time of his statement.
The applicant claimed that he called icare on 2 May 2019 and told the contact that they were both sole traders. He was advised that the only cover he could get was income protection insurance because he was not a working director. He told the second respondent about his discussion with icare.
The applicant indicated that Mr Nelson’s duties involved the removal of asbestos. He worked from 7.00 am to 4.00 pm Monday to Friday, and Saturday if required, although later in the statement, he indicated that there were no fixed hours. They did nine jobs over a five-week period. He stated that the second respondent was a subcontractor who worked on average for one day per week. He was free to refuse work if he wished to.
The applicant acknowledged that he controlled the second respondent, delegated the jobs, and informed him when he was required to work. He had warned him about drinking on many occasions and he had seen a bottle of bourbon in his car when they were going to work in the morning. He stated that the second respondent provided his own protective equipment and hand tools.
The second respondent was paid on the basis of tasks completed, he did not wear a uniform and he was not paid pursuant to any award. He was not entitled to sick leave. The applicant had been called back to a job to rectify an error made by Mr Nelson, and he confirmed that he was liable for any work done by Mr Nelson because it fell under his asbestos removal licence. He was not aware whether the second respondent worked elsewhere, whether he was registered for GST, or advertised his services. He had intended the relationship to continue until the Sydney Train contract was finalised.
The applicant stated that on 3 July 2019, he checked his bank records on the internet and discovered that the second respondent had taken $700 off his debit card to buy alcohol. He had provided the second respondent with a debit card in his name because he envisaged that he would have to buy supplies for a job.
The applicant stated that when he discovered the bank withdrawal, he sent a text to his girlfriend but accidentally sent it to Mr Nelson. He said, “Wayne took more money. I’ve [sic] made my decision I’m cancelling his card tonight and just going to cash him out when I get paid.”
The applicant stated that this text message set off a series of text messages in which the second respondent made a number of threats and tried to blackmail him into giving him money. The applicant indicated that he went to the police because of these threats and because Mr Nelson’s sister had called him about attending near his place, presumably to do physical harm to him. The applicant applied for an AVO.
The applicant stated that the second respondent did not report an injury, and the first time he became aware of the injury was via a text message at 2.30 pm on 5 July 2019. The applicant confirmed that that they hired a trailer on 27 June 2019, and they were working at the Sydney Pistol Club for the entire day, and for a few hours on 28 June 2019. He claimed that he found Mr Nelson asleep and drunk in his car on 27 June 2019. He doubted that the second respondent was working at 1.00 pm on 28 June 2019 when he allegedly suffered his injury. The applicant went to another job on the afternoon on 28 June 2019.
The applicant denied that any of the packages weighed 100 kg. Sixteen sheets of asbestos were removed from a single-story roof. Each sheet weighed 20 kg and only two at a time were wrapped up together in plastic. There were two overlapping sheets that weighed 40 kg, and these were individually wrapped. They were moved one at a time to the trailer 50 metres away, and they were then wrapped.
The applicant stated that two square metres of contaminated soil was transported by the second respondent in a household wheelie bin to the trailer. The soil was wrapped at the trailer, mainly by the applicant, in bundles weighing no more than 20 kg. There was about one tonne of soil. There would have been upwards of fifty 20 kg packages of soil and 15 wrapped asbestos sheets.
The applicant stated the tip receipts showed that deliveries were made on 28 June 2019 from 11.30 am to 12.07 pm, and on 27 June 2019 from 11.50 am to 12.14 pm. The second respondent went home after the tip on both days. It is unclear when the trailer was returned to Kennards, and how the applicant observed Mr Nelson drunk and asleep in his car on the night of 27 June 2019.
The applicant stated that the second respondent would push the sheeting up and it would slide down into his hands. They both lifted the sheeting and the soil. He confirmed that they moved the packages from his truck to his ute and trailer on 27 June 2019 in order to have one receipt. There was no cost difference.
The applicant stated that Mr Nelson did not mention that he had injured his back and that he had to see a doctor. He did not complain about the heaviness of the packages and he did not ask for an incident report form.
The applicant responded to a request for particulars from the first respondent on
7 August 2019. He indicated that the second respondent was a subcontractor, who was engaged on 23 May 2019. He worked from 7 am to 4 pm and during the five-week period of employment, the second respondent had earned $3,750, or $750 per week. Presumably, this formed the basis of the PIAWE calculation.
Factual investigation
A factual investigation report was provided by Lee Kelly Commercial Investigations on
12 August 2019. This report largely summaries the statements of the applicant and the second respondent, and there were two photographs of the site where the asbestos was removed.A document described as the applicant’s work log contains handwritten entries in a diary but the dates at the top of the pages do not accord with the dates of the entries. On 27 June 2019, the applicant worked at La Perouse from 6.30 am to 12 pm and on 28 June 2019, he worked at La Perouse from 5.30 am to 11 am.
Clinical notes, report and certificates of Dr Ria
The clinical notes of Dr Ria provide minimal information. On 5 July 2019, the doctor recorded that the second respondent had been doing heavy lifting at work on the previous Friday when he felt strain in his back. The condition became worse over the weekend and it had gradually worsened. The doctor diagnosed a back injury.
On 24 July 2019, Dr Ria referred the second respondent for an MRI scan, and at subsequent consultations, the doctor reported that second respondent’s pain was persisting.
The second respondent had an MRI scan on 23 August 2019. This showed bulging from L3 to L5 and moderate stenosis. There was impingement on the L4 nerve root and possible impingement at L5.
On 28 August 2019, Dr Iqbal, referred the second respondent to a physiotherapist. Curiously, the second respondent’s current medications did not include any painkillers.
In a report dated 10 September 2019, Dr Ria diagnosed building discs and nerve root impingement at L4/L5 as a result of heavy lifting at work on 28 June 2019. He indicated that the second respondent was fit for suitable duties avoiding lifting weights above 5 kg.
On 5 July 2019, Dr Ria provided a back-dated certificate that certified that the second respondent had no current work capacity from 1 July 2019 to 5 July 2019 and then certificates for some light duties from 8 July 2019 to 24 July 2019. He provided non-SIRA medical certificates that certified that the second respondent was unfit for work due a medical illness from 24 July 2019 to 19 August 2019.
Dr Ria certified that the second respondent had no current work capacity from
19 August 2019 to 11 September 2019. He then certified that the second respondent had the capacity to do some restricted work for full hours from 11 September 2019 to 27 November 2019.
Dr Ria certified that the second respondent was fit his pre-injury duties on a trial basis on
2 December 2019 with a recommendation that he continue to have medication and physiotherapy. Similar certificates were issued on 9 December 2019, 12 February 2020,
18 February 2020, 17 March 2020, 14 April 2020, 11 May 2020, 15 May 2020, 24 June 2020, 21 July 2020, and 4 September 2020.
Other medical evidence
In reports dated 5 February 2020 and 11 February 2020, the physiotherapist, David Barnett, advised that the second respondent had agreed that his condition had improved, but he felt that he was still unable to return to work. Mr Barnett recommended a referral to an exercise physiologist in conjunction with physiotherapy. He thought that it might take longer for the second respondent to return to his pre-injury duties.
Dr Ian Smith provided a file review report to the insurer on 12 May 2020. He confirmed that he had spoken to Dr Ria, who told him that he would not issue a final clearance for the second respondent to resume his pre-injury duties until the exercise physiologist confirmed that he could cope with the physical requirements for the job.
Mr Smith was informed by Dr Ria that the second respondent was working in his pre-injury duties, but he still had symptoms. This history is confusing, because the second respondent did not return to work with GBAR until 27 May 2020.
Dr Ria advised that if the second respondent was undertaking his pre-injury duties, then there did not appear to be a barrier to issuing a final pre-injury duties certificate. Dr Ria told Dr Smith that he was reluctant to issue a final certificate as the second respondent’s treatment might cease.
Vocational and Functional Assessment report
A vocational assessment was undertaken by Lucy Cowen, psychologist of Rehab Co, who reported on 20 December 2019. She recorded that the second respondent had worked as an apprentice fitter and turner from 1976 to 1980, as a youth worker from 1990 to 2001, track welder/fettler from 2001 to 2013 and then as an asbestos removalist.
Ms Cowen recorded history consistent with the second respondent’s statement and noted that he was receiving weekly sessions of physiotherapy. He was only taking Panadol as needed for pain relief. She reported that the second respondent was certified fit for a trial of his pre-injury duties for full hours from 19 December 2019 to 15 January 2020.
Ms Cowan reported that the second respondent had a number of transferable skills and had the vocational capacity to work as a truck driver, general labourer, and courier driver. It was recommended that he obtain an HR truck driver licence and attend weekly job seeking sessions.
Ms Cowen’s labour market analysis suggested that that truck drivers were paid $961.53 to $1,153 per week, general labourers were paid $961 to $1,026 per week, and courier drivers were paid from $961 to $980 per week.
On 19 December 2019, Ms Cowen sought Dr Ria’s views regarding the functional and medical suitability of the employment options identified in the vocational assessment. Dr Ria agreed that fulltime duties as a labourer, truck driver and courier were suitable for the second respondent.
A Labour Market Analysis Report was completed by Zane Palmer, psychologist, on
6 May 2020. He advised that Dr Ria had issued a certificate for a trial of pre-injury duties for 40 hours per week from 14 April 2020 to 12 May 2020. The report focussed on the second respondent’s pre-injury duties as an asbestos removalist which was deemed to be suitable. The earnings in this position ranged from $29 to $33 per hour.
Bank statements
There are a number of bank statements in the second respondent’s name in evidence. These show that the applicant deposited $750 into the second respondent’s credit union account on 29 May 2019 and $300 in June 2019, $750 into a Commonwealth Bank account on 13 June 2019, 20 June 2019, and 26 June 2019, $200 on 5 July 2019 and $200 on
12 July 2019.
Diary, photographs and tip receipts
A page of the applicant’s diary is in evidence. This handwritten document shows that he was at La Perouse from 6.30 am to 12 pm on 27 June 2019, and from 5.30 am to 11 am on
28 June 2019. This time frame differs from the applicant’s statement regarding his usual starting time.A photograph is attached to the Application which shows the area where contaminated soil was removed. This photograph is of no probative value.
The tip receipts show that on 27 June 2019, 1.32 tonne of waste was delivered to the tip at 11.57 am by one vehicle. On 28 June 2019, two vehicles delivered 1.28 tonne and .58 tonne at 11.30 am. Therefore, the total weight of the waste removed from La Perouse was 3.18 tonne.
Texts
The applicant relies on a number of text messages that passed between him and the second respondent. These concerned the alleged misappropriation of the applicant’s funds and what appears to be threats by the second respondent towards the applicant if money that was owed to him was not paid.
The applicant advised that he would get copies of his bank statements to determine what withdrawals had been made and when outstanding fees had been paid, he would pay the second respondent his share.
There were a number of aggressive texts regarding the payment of outstanding funds. The applicant indicated that the second respondent that the business was registered to his ABN, the licence was in his name, the bank account was his and he employed the second respondent. The second respondent complained that he had not been provided with a group certificate and he hoped that superannuation would be paid.
When the second respondent advised that he was on workers compensation, the applicant responded that he was a subcontractor and he should have been paying for his own insurance. The second respondent then asked about the whereabouts of a subcontracting contract.
The applicant advised that he had been paid $750 on 28 June 2019, and he would receive any outstanding payments when the funds arrived. $200 was paid on 5 July 2019 and the applicant advised that he would deposit $200 per week in to the second respondent’s bank account.
GBAR employment records
The GBAR employment records show that the second respondent resumed employment on 27 May 2020 as an asbestos removalist for 40 hours per week, although more recently it would seem that he is averaging about 36 hours per week.
APPLICANT’S SUBMISSIONS
The applicant submits that in his statement, he confirmed that when he contacted icare regarding workers compensation insurance and he was informed that both he and the second respondent were sole traders, so he could not obtain a policy. The second respondent was an independent subcontractor, and he was unaware how to refer to their “employment” relationship.
The applicant submits that the second respondent did not report an injury until after they had exchanged a series of text messages in an attempt to blackmail him. He did not advise that he had visited a doctor in any of the text messages. He submits that it was impossible for one person to lift a 100 kg package of waste. The packages weighed 20 kg each.
The applicant submits that he is not a doctor and so he is unable to give medical advice regarding the second respondent’s capacity. The x-rays only showed a muscular injury. The second respondent is 60 years old and played professional football. The level of medical expenses seems excessive.
FIRST RESPONDENT’S SUBMISSIONS
The first respondent’s counsel, Mr Doak, submits that the first respondent seeks reimbursement of payments made to or on behalf of the second respondent.
Mr Doak submits that the authorities confirm that the way the parties perceive their relationship and how it is are described is not in any way determinative of the nature of the relationship[1]. On any test, the second respondent must be a worker.
[1] Hollis v Vabu Pty Ltd [2001] HCA 44, (Hollis).
Mr Doak submits that the applicant’s version of his discussion with icare is limited and is merely his interpretation. The second respondent said that he was not a subcontractor, and this was asserted by him early in the piece.
Mr Doak submits that in his statement, the applicant indicated that he started his own business on 18 December 2018. At times he described being in a partnership with the second respondent and then suggested that he was an independent subcontractor. He had been operating the business before he engaged the second respondent. There was no discussion regarding the second respondent’s pay and the applicant engaged him because he had a friend at Sydney Train Maintenance. The applicant saw an opportunity to build a business arrangement with Sydney Train Maintenance, so he took on the second respondent to do some work.
Mr Doak submits that there was no subcontractor agreement, and the applicant paid him a salary/wages of $750 per week. He indicated that the second respondent worked as a general labourer from 7 am to 4 pm from Monday to Friday, and on Saturdays if required. There is no basis to conclude that the second respondent was a genuine subcontractor. The authorities confirm that one must look at the totality of the relationship to determine if the second respondent was a worker or an independent contractor and the nature of their interactions[2]. There is no suggestion in the evidence that the second respondent was an equal party in his own business.
[2] On Call Interpreters and Translators Agency Pty Ltd v Commissioner for Taxation (No 3) [2011] FCA 366, (On Call Interpreters).
Mr Doak submits that there is no evidence that the second respondent operated an asbestos business under an ABN and was submitting invoices with GST, or that he was receiving profit. A future intention to pay the second respondent a share of the profits is not determinative. What is relevant is what was happening at the time of the injury. The relationship was clearly an employment relationship. The second respondent was not an entrepreneur operating his own business. The second respondent was given work during set hours of work for a set wage. He was simply an employee. The applicant provided the tools of trade.
Mr Doak submits that in the alternative, the second respondent would also be a deemed worker. The contract, if any, was more than $10 and the second respondent did not carry out work incidental to his own business. He did not advertise, he did not have an ABN, and he did not sublet the contact.
Mr Doak submits that the second respondent explained that he experienced pain in his back at work on 27 June 2019 and this worsened the following day. He complained to the applicant about his back, but he was told to continue working. This is consistent with the history recorded by Dr Ria on 5 July 2019 one week later, his report dated 10 September 2019 and the doctor’s medical certificate. The timeline is consistent. The applicant also indicated in his statement that the first he heard about the injury was in a text message that he received on 5 July 2019. This is consistent with Dr Ria’s notes.
Mr Doak submits that there is no medical evidence adduced by the applicant to dispute the views of Dr Ria, the positive MRI scan and the evidence of the other clinicians. The work was not light and there is a contemporaneous report of injury to Dr Ria.
Mr Doak submits that there is disagreement regarding the events at work. The second respondent says that he told the applicant that he felt pain in his back, but the applicant denies this. In his statement, the applicant indicated that he doubted that they were still working at 1 pm, so he was not sure. The second respondent also had to return the trailer to Kennards, and this would have involved heavy activity.
Mr Doak submits that the applicant denied that the packages weighed 100 kg. The second respondent stated that at the end of the first day, he was “stuffed”, and he told the applicant that he was in pain. He stated that there were at least 10 packages of contaminated soil weighing “100 kg plus”. About 15 packages of asbestos were moved on the first day and about 15 to 20 packages were moved on the second day.
Mr Doak submits that although it might have been more clearly expressed, he was not just moving 100 kg packages, and even if he was wrong regarding the weights, he was identifying much heavier packages and heavy packages. Neither party had scales to weigh the packages.
Mr Doak submits that the applicant stated that each package weighed 20 kg. He stated that there was one tonne of soil that the second respondent transported in a wheelie bin and he would wrap it in packages weighing no more than 20 kg. The applicant’s evidence is inaccurate.
Mr Doak submits that the tip receipts show that there was one delivery on the first day and two vehicles delivered waste on the second day. The weight of the waste totalled 3.18 tonne, and this was in addition to the asbestos sheeting. The applicant’s evidence about the weight of the soil is inaccurate. The second respondent indicated that he could not lift 100 kg packages, and even if the packages only weighed 20 kg, there were a lot lifted.
Mr Doak submits that the second respondent did more than lift packages. He presumably dug the soil, and then dragged it to the vehicle in a bin. It is a matter of conjecture how much soil was in each bin, but presumably it weighed more than 20 kg by some considerable margin. There is no evidence to suggest that only 20 kg of soil was transported each time in the bin.
Mr Doak submits that there is ample evidence that the second respondent was engaged in heavy work. The focus on 100 kg is misconceived. One only has to be satisfied that the second respondent was engaged in heavy work that could have injured his back. This was what Dr Ria recorded on 5 July 2019 and there was evidence of back pathology and symptoms. Whether the second respondent suffered an aggravation injury or an injury simpliciter is a moot point. On either basis, it would be open to find an injury based on the second respondent’s statement, the history recorded by Dr Ria and the MRI scan. The applicant also confirmed that the injury was reported on 5 July 2019. There was nothing sinister about the delay in seeing Dr Ria.
Mr Doak submits that on although the second respondent is 60 years old, it is more likely that he would suffer an injury when lifting packages above 20 kg and dragging heavy bins of soil. The fact that the second respondent had a degenerative back is irrelevant, as one takes a worker as he or she finds them. There is evidence of symptoms after the incident, so there was an injury.
Mr Doak submits that Dr Ria initially certified that the second respondent had no current work capacity from 1 July 2019 to 5 July 2019, and then fit for some work with limitations from
8 July 2019 to 12 July 2019.The doctor certified that the second respondent had no current work capacity from 28 August 2019 to 11 September 2019, and he had some capacity until 19 December 2019, when the doctor certified him fit for his pre-injury duties.Mr Doak submits that medical certificates are not the end of the story in respect of an entitlement to weekly compensation. One needs to look at s 33 of the 1987 Act to determine the incapacity. There is other evidence that addresses the question.
Mr Doak submits that the documents from the rehabilitation provider and the vocational assessment identified jobs that might be suitable for the second respondent. In February 2020, the second respondent was still receiving physiotherapy treatment from Mr Barnett. He reported that the second respondent did not feel that a return to work was achievable. He commented that it might take some time for the second respondent to be able to return to his pre-injury duties. Therefore, notwithstanding the views of Dr Ria, the second respondent still had problems and he was still receiving treatment.
Mr Doak submits that Dr Smith was asked to investigate whether the second respondent could be issued with a final certificate for his pre-injury duties or a full-time restricted duties certificate for the vocational options identified in the vocational assessment. There were still limitations, and the second respondent was having treatment, so this contradicts any suggestion that the certificate issued by Dr Ria in December 2019 was a final certificate.
Mr Doak submits that Dr Smith stated that Dr Ria would not issue a final certificate until he was advised by the exercise physiologist that the second respondent could meet the physical demands of his pre-injury duties. This shows that as at May 2020, Dr Ria was not in a position to issue a final certificate.
Mr Doak submits that there had been improvement in the second respondent’s condition since February 2020 as he was able to return to work. The documents from GBAR show that the second respondent had worked before and after his employment with the applicant. Dr Smith concluded that a final certificate had not been issued due to technical difficulties. Based on this report and the GBAR pay records, payments were reduced and later ceased.
Mr Doak submits that there was incapacity until the last payment and the certificate issued in December 2019 was contradicted by what Dr Ria told Dr Smith in May 2020 and by the need for ongoing treatment. The work that he was performing at the applicant and the vocational options, which might have been suitable, involved physical work. Those treating the second respondent at that stage did not consider that he was fit for the alternative positions. The second respondent had been able to return to work and remain in employment for almost 12 months
Mr Doak submits that one can be satisfied that the second respondent was a worker who suffered an injury, and that the payments and medical expenses were properly made. The applicant should be ordered to pay the amount particularised in the Section 145 notice to the first respondent.
REASONS
Was the second respondent a “worker” or “deemed worker” within the meaning of the 1998 Act?
Section 4 of the 1998 Act defines a “worker” as follows:
“In this Act-
worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing) …”.
Clause 2 of Sch 1 of the 1998 Act defines a “deemed worker” as follows:
“2 Other contractors (cf former Sch 1 cl 2)
(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Therefore, for the second respondent to be considered a “worker”, there needs to be in existence a contract of employment between the applicant and the second respondent.
Deputy President Roche discussed the principles regarding a contract of employment in Drive Recruit Pty Ltd v Back[3]. He stated that there could be no employment without a contract and the contract must involve work done by a person in performance of a contractual obligation to a second person because the essence of a contract of service was the supply of the work and skill of the worker. Further, there must be a wage or other remuneration, and there must be an obligation on one party to provide, and on the other party to undertake the work[4].
[3] [2013] NSWWCCPD 32, (Back).
[4] Back, [24].
For a contract to exist, there must be an intention to create legal relations between a worker and an employer. In Secretary, Department of Family and Community Services v Bee[5], Deputy President Roche stated that the question of an intention to create legal or contractual relations required an objective assessment of the state of affairs between the parties[6]. Further, there also needed to be consideration for the agreement[7].
In this matter, there is no dispute that there was an oral agreement or contract between the applicant and the second respondent. The substance of the arrangement was that the second respondent would remove asbestos and soil for the applicant, and he was paid $750 per week. There was also a suggestion that there would be some profit sharing when funds were received from customers. After the second respondent ceased work, the applicant made a number of deposits of $200 into his bank account.
There is a dispute regarding the nature of that agreement or contract. In such situations, one needs to consider the various indicia to establish whether an employment relationship in fact existed. The main criterium established in Stevens v Brodribb Sawmilling Co Pty Ltd[8] is the right of control by the purported employer over the worker.
[8] [1986] HCA 1; 160 CLR 16, [9] to [12] (Stevens)
In Malivanek v Ring Group Pty Ltd[9], Deputy President Roche considered the relevant indicia with reference to both Hollis v Vabu Pty Ltd[10], and On Call Interpreters. He stated:
“As Bromberg J explained in On Call Interpreters, while the majority in Hollis applied a multi-factorial approach, they provided a ‘focal point around which relevant indicia can be examined’. His Honour added, at [207]:
‘That focal point has been elsewhere expressed as the ‘ultimate question’ posed by the totality approach: Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at [34] (referred to with approval by Crispin P and Gray J in Yaraka Holdings Pty Ltd v Gilgevic [2006] ACTCA 6; (2006) 149 IR 339 at [303]); and see Sappideen C, O’Grady P and Warburton G, Macken’s Law of Employment, (6th ed, Lawbook Co., 2009), at [2.80]. As Wilson and Dawson J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 observed at 35 ‘the ultimate question’ was posed by Windeyer J in Marshall v Whittaker’s Building Supply Co Ltd [1963] HCA 26; (1963) 109 CLR 210 at 217, in a passage which the majority in Hollis strongly endorsed at [40]. The majority in Hollis (citing Windeyer J) said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee: Hollis [39], [40], [47], and [57] and see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 at [30]- [32]. The English courts have taken a similar approach. There the ‘entrepreneur test’ seems to be the dominating feature: Selwyn NM, Laws of Employment (2006) Oxford University Press at [2.34].
[208] Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.’ (emphasis added).”[11]
The Deputy President added:
“…. Suffice to say that, in cases of this kind in the future, the parties would be well advised to give careful attention the questions posed by Bromberg J in On Call Interpreters, which are based on the majority decision in Hollis. A consideration and balancing of the indicia is critical, but the focal point around which one examines the indicia is whether the applicant is working in the business of another, or in the business of the applicant.”[12]
[12] Malivanek, [184].
When one considers the relevant indicia identified in authorities and particularly in On Call Interpreters, the critical question is and has always been whether the second respondent was working for the applicant on 28 June 2019.
In order to assess the nature of the relationship between the applicant and the second respondent, I need to consider the various indicia, look at the totality of the relationship and analyse the evidence before me.
Contract of employment, manner of calculating remuneration, tax invoices, ABNs, PAYG tax, superannuation and insurance
The nature of the relationship is described in the statement of the applicant and that of
the second respondent. There are some areas of agreement, but many aspects are disputed.The quality of a statement relies heavily on the ability of the interviewer to identify the issues, ask the relevant questions, and use the correct terminology. More detailed and focussed statements are often drafted by the legal representatives, but I do not have the benefit of such evidence in these proceedings. Therefore, one has to use caution when there are references to terms such as “employment”, “working” and “subcontractor”.
According to the second respondent’s statement, he was paid $750 per week, but claimed that he should have been paid $32 per hour. He received $200 per week on 5 July 2019 and 12 July 2019. He did not submit invoices and he did not have an ABN. There is no evidence that the second respondent was registered for GST, and he did not mention that he had insurance. Unfortunately, I do not have the benefit of the second respondent’s tax returns, which might shed light on his work situation before, during and after his arrangement with the applicant.
According to the applicant’s statement, the second respondent was employed as a subcontractor and his rate of pay was never discussed. He paid the second respondent $750 per week and stated that they would split the income from jobs that they did on a 50/50 basis. He explained that the payments of $200 per week were done in good faith until the funds from the jobs were received. Such an agreement would seem to be more in the nature of a partnership, rather than a subcontractual arrangement.
The applicant’s text messages paint a somewhat different picture regarding the nature of the relationship. The applicant indicated to the second respondent that the asbestos removal business was registered to his ABN, the licence was in his name, the bank account was in his name and he employed the second respondent.
In the text massages, the second respondent complained that he had not received a group certificate and he expected that the applicant would make a superannuation contribution. When the second respondent advised that he was on workers compensation, the applicant responded that he was a subcontractor and he should have been paying for his own insurance. The second respondent then asked about the whereabouts of a subcontracting contract.
The applicant claimed in his statement that he was told by someone at icare that both he and the second respondent were sole traders and the only cover available was income protection insurance because he was not a working director. He allegedly relayed this information to the second respondent.
The description of the discussion with icare is in general terms and precise details have not been provided. It is unclear how the applicant described the arrangement with the second respondent, which may well have affected the advice that he received. There is also no independent evidence to corroborate the applicant’s statement. Therefore, no weight can be given to this aspect of the applicant’s evidence.
The applicant did not provide payslips, no tax was deducted, and no superannuation was paid by the applicant. The second respondent was not entitled to sick leave. These facts would not be consistent with an employee/employer relationship, but this might also reflect poor administrative skills, ignorance, or a lack of attention to the requirements of running a business and employing staff. Therefore, it is difficult to draw any conclusions regarding these criteria.
Control and the right to dictate the place and hours of work
In Zuijs v Wirth Bros Pty Ltd[13] the High Court commented on the right of control as follows:
“The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters.”[14]
[13] (1955) HCA 73; 93 CLR 561, (Zuijs).
[14] Zuijs, [571].
The second respondent indicated that he was supervised and directed to undertake the removal of asbestos waste by the applicant. The applicant advised that he supervised the second respondent for 90% of the time, and he controlled him because he was working on his jobs. He told the second respondent when he was required and how he had to do the job.
The second respondent claimed that he usually worked from 6.00 am to 6.00 pm, depending on the availability of work. According to the applicant, the second respondent worked from 7.00 am to 4.00 pm Monday to Friday, and Saturday if required, but he also indicated that there were no fixed hours. This comment might relate to the fact that work was not always available.
The applicant indicated that they did nine jobs in five weeks, and he claimed that the second respondent averaged one to two days per week. The second respondent’s bank statements show four deposits of $750 and one deposit of $300 for the five-week period from 23 May 2019 to 26 June 2019. Therefore, on this basis, the second respondent would have only worked for the equivalent of five full days.
In my view, there would seem to be some consistency, in that when work was available, the second respondent worked fixed hours, depending on how long each job took to complete.
The evidence shows that the second respondent was subject to the control and direction by the applicant regarding his duties. This evidence lends weight to an employer/employee relationship.
Right to delegate work activities
There is no evidence to suggest that the second respondent was able to delegate his work to others. The applicant stated that he engaged the second respondent to remove asbestos when work was available. He delegated work to the second respondent, and there were no others involved. This evidence supports an employer/employee relationship.
Provision of equipment
The applicant indicated that the second respondent did not wear a uniform, and that he brought his own protective gear. Given that he had his own equipment that he used when he was employed by GBAR, this is understandable. The evidence shows that the second respondent used his own tools, namely a hammer and a crowbar, or two crowbars. This is not controversial.
It seems that all materials, such as the plastic sheeting, were provided by the applicant. There is no suggestion that the trailer hired from Kennards was at the second respondent’s cost. The second respondent also claimed that the applicant supplied other safety gear. This has not been properly addressed by the applicant in his statement. The evidence regarding the provision of equipment lends more support to an employer/employee relationship.
Quality of work
The applicant stated that he was responsible to rectify or fix any mistakes made by the second respondent, and in fact did so at a job in Chipping Norton. The second respondent did not provide a warranty for this work. This was acknowledged by the second respondent.
The licence to remove the asbestos was in the applicant’s name, so he was responsible for the quality of the work. If the second respondent was an independent contractor, presumably he would have also been licenced to do the job, but that was not the case. This evidence supports an employer/employee relationship.
Right to refuse work and right to exclusive services
The applicant was unaware whether the second respondent worked elsewhere. He claimed that the second respondent could refuse work, but there is no evidence that this in fact occurred.
The second respondent’s bank statements show no other direct deposits during the time that he worked for the applicant. The second respondent admitted that he worked for GBAR for nine months before commencing work for the applicant. There is no evidence that he conducted his own business before, during or after he worked for the applicant. This evidence supports an employer/employee relationship.
Right of dismissal
The second respondent’s statement is silent regarding the applicant’s right of dismissal. However, it is clear from the events that followed the alleged injury that the applicant terminated the arrangement that he had with the second respondent. This evidence supports an employer/employee relationship.
Advertising and the concept of being an entrepreneur
The applicant was required to provide an outcome for his clients, but it could not be said that the second respondent had a similar obligation. The applicant was the business contact, and the business was engaged to remove asbestos and contaminated soil.
There is no evidence to suggest that the second respondent was an entrepreneur associated with his own or the applicant’s business, or that he advertised his own business. All that he had was an asbestos ticket that allowed him to remove asbestos.
The evidence is silent as to whether the second respondent had any tangible or intangible assets. He had a vehicle, which is an asset, but there is no evidence that he claimed business expenses, which most likely included the running costs of the vehicle and the purchase of materials needed for the removal of asbestos.
The evidence shows that the materials were supplied by the applicant, and the applicant confirmed that the second respondent invested nothing in the business. This evidence supports an employer/employee relationship.
CONCLUSION
Each case must be considered on its own facts. No two matters are strictly identical as there will nearly always be some variants. Having regard to the principles referred to in Malivanek and On Call Interpreters, the critical question is whether the second respondent was working in the applicant’s business or in his own.
There is no evidence to suggest that the second respondent was conducting his own trade or business in his own name and under his own ABN. He did not provide tax invoices that included GST. There is no evidence that he worked elsewhere when he was undertaking the jobs for the applicant. The fact that there were no payslips or tax deducted from his pay, and that he was not entitled to statutory entitlements and superannuation, is not determinative.
The evidence shows that the second respondent was subject to the control and direction of the applicant. He could not delegate the tasks. The applicant was responsible for the quality of the work, warrantees and guarantees. There is some consensus regarding the second respondent’s fixed hours of work, which were subject to the availability of jobs.
As discussed by the Deputy President in Malivanek, the focal point is whether the second respondent was working in the business of the applicant or in his own business. Having regard to the evidence and a consideration of the “totality of the relationship” in accordance with Hollis, I am satisfied on the balance of probabilities that the second respondent was in fact a worker in the employ of the applicant at all relevant times.
I am also satisfied that the second respondent does not satisfy the “practical test” discussed by Bromberg J in On Call Interpreters, namely he was not an entrepreneur who owned and operated a business and was working as a representative of that business when he was performing work for the applicant.
Given that I have found that the second respondent was a “worker”, there is no need to consider whether he was a “deemed worker” in terms of cl 1 of Sch 2 of the 1998 Act. Nevertheless, the evidence would also be consistent with the second respondent being a “deemed worker” in the alternative.
Did the second respondent sustain an injury on 28 June 2019 – s 4 of the 1987 Act?
Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined”.
In order to be satisfied that an injury has occurred, there must be evidence of a sudden
or identifiable pathological change: Castro v State Transit Authority (NSW)[15], or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd[16], “the word ‘injury’ refers to both the event and the pathology arising from it”.[15] [2000] NSWCC 12; 19 NSWCCR 496.
[16] (2003) 25 NSWCCR 422, [429].
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[17].
[17] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
Although the High Court in Comcare v Martin[18] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the facts of the case.
[18] [2016] HCA 43, [42].
The second respondent bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland[19].
[19] [2008] NSWWCCPD 134 (Ireland), [89].
There are two aspects to consider. Firstly, whether the second respondent was involved in heavy lifting activities, and if so, whether he suffered an injury as a result of that work.
According to the second respondent, he assisted the applicant to drag packages of asbestos over a distance of 40 metres to the truck. There were at least 15 packages on the first day and about 15 to 20 packages on the second day. He did not particularise the weights of the packages of asbestos. If the applicant’s evidence is correct, namely, the packages weighed 20 kg each, then the second respondent would have lifted or assisted lifting 300 kg of asbestos sheeting on the first day, and 300 kg to 400 kg on the second day. This would have involved lifting into the vehicle and unloading at the tip, so this would in effect double the weights that were lifted.
The second respondent claimed that there were at least 10 packages of contaminated soil weighing more than 100 kg, meaning that the total weight of the soil was one tonne.
On 27 June 2019, the second respondent complained about the weight of the packages, but the applicant told him to continue. When they reached the tip, they loaded the packages from the truck to the trailer and then unloaded the waste.
The second respondent claimed that he was injured around 1 pm on 28 June 2019, but he also stated that the work over the two-day period was responsible. He complained to the applicant om 28 June 2019 that the work was hurting his back. He had great discomfort when handling the last four to five packages, but he was told to continue working. He was unable to unload the packages of soil at the tip. He told the applicant that he needed to see a doctor and was told he could not do this because the applicant did not have workers compensation.
The second respondent’s evidence has been challenged by the applicant. He denied that the second respondent ever complained about his back or the weight of the soil packages. He disputed that the packages weighed 100 kg.
The applicant advised that there were about 16 sheets of asbestos weighing about 20 kg each. He stated that there were no more than two sheets wrapped together at a time, so the weight of each package of asbestos seems to have been 40 kg. The wrapped sheets were then taken 50 metres to the trailer. So, it seems that there would have been eight packages that weighed a total of 320 kg.
However, the applicant also indicated in paragraph 44 of his statement that each sheet was individually wrapped and weighed 20 kg, and in paragraph 50, he stated that there were 15 wrapped asbestos sheets. This would mean that the total weight of the asbestos packages would have been 300 kg. Therefore, his statement is internally inconsistent.
The applicant stated that two square metres of contaminated soil was transported by the second respondent in a wheelie bin to the trailer. The weight of the soil in the bin is unknown. The applicant then wrapped the soil in 20 kg bundles.
The applicant claimed that there were no more than 50 packages of soil weighing one tonne in total. He agreed that they lifted the sheets and the soil, and they loaded the packages from his truck to the second respondent’s ute on the first trip to the tip.
So, in summary, according to the second respondent, the soil packages weighed a total of one tonne. He did not disclose the weight of the asbestos packages, but if we were to accept that the asbestos packages weighed 20 kg each, and that there were 15 packages on the first day and 15 to 20 packages on the second day, this would suggest that the asbestos moved on the first day weighed 300 kg and that moved on the second day weighed 300 kg to 400 kg. This means that over the two-day period, a total of 1.6 to 1.7 tonne of waste was removed based on the second respondent’s evidence. There was also multiple lifting involved at La Perouse and at the tip.
According to the applicant, the asbestos packages weighed 300 kg or 320 kg in total, and the soil packages weighed one tonne. Therefore, based on the applicant’s evidence, over the two-day period, a total of 1.3 to 1.32 tonne of waste was removed.
Therefore, there is a lack of any consensus not only regarding the system of work and the events that allegedly transpired at La Perouse and at the tip in June 2019, but also the number of packages and the weights that were lifted. It is merely one person’s word against another.
The only reliable independent evidence regarding the weight of the asbestos and soil appears to be the tip receipts. On 27 June 2019, 1.32 tonne of waste was delivered to the tip and 1.28 tonne and .58 tonne was delivered on 28 June 2019. The total weight of 3.18 tonne of waste is more than double that described in the statements of the applicant and the second respondent. This would tend to suggest that the weight of the soil was closer to 2.8 tonne.
The evidence shows that the second respondent assisted to remove the asbestos sheets and then carry them to the area where the applicant wrapped them. He also transported the soil in the wheelie bin. This would most likely have weighed more than 20 kg each load. Presumably he dug up the soil with the applicant’s assistance, although the evidence is silent on this point. He also took the trailer back to Kennards after the delivery on the second day. One could not deny that this was heavy, physical work.
I find it difficult to accept that the soil was packaged in 100 kg bundles, but even if I accept that the packages each weighed 20 kg, this would mean that 159 packages were moved over the two day period, which would have undoubtedly been physically demanding for any person, and more so for a 60 year old labourer..
In the circumstances, whilst I accept that the applicant assisted in the removal of the waste, I am satisfied that the second respondent was engaged in physically demanding work over the two-day period that had the potential to cause an injury. The next matter to consider is whether there is medical evidence to support a causal nexus between these activities and the second respondent’s back condition.
The applicant submits that the second respondent did not report an injury until after they had exchanged a series of text messages, whereas the second respondent claimed that he told the applicant on 28 June 2019 when they were loading the waste and again via text. It is apparent that the applicant became aware of the second respondent’s alleged injury on
5 July 2019, if not earlier.The applicant submits that the second respondent is 60 years old and played professional football, but there is no medical evidence to suggest that he suffered any prior back injury or that his current condition related to a previous injury or condition.
The second respondent indicated that he had back pain in the days following the job and he eventually consulted Dr Ria on 5 July 2019.
In his clinical note dated 5 July 2019, Dr Ria recorded that the second respondent had been doing heavy lifting at work on the previous Friday when he felt a strain in his back. This became worse over the weekend. This history is consistent with the second respondent’s statement. Dr Ria diagnosed a back injury, but he did not provide any specific diagnosis.
Dr Ria arranged for an MRI scan that showed bulging from L3 to L5, stenosis, impingement at L4 and possible impingement at L5. Therefore, there was radiological evidence of pathology in the second respondent’s lower back.
In his report dated September 2019, Dr Ria diagnosed bulging discs and nerve root impingement caused by heavy lifting at work on 28 June 2019. Therefore, he was satisfied that there was a causal nexus between the pathology in the second respondent’s back and his employment with the applicant. He is satisfied that there was an injury simpliciter in terms of s 4 of the 1987 Act.
Although the applicant disputes that the second respondent suffered a back injury, there is no evidence to challenge the second respondent’s medical case. He relies on mere assertions and speculation, rather than concrete evidence.
Accordingly, having regard to the totality of the evidence and the common-sense evaluation test in Kooragang, I am satisfied on the balance of probabilities that the second respondent suffered an injury to his back arising out of or in the course of his employment on
28 June 2019. Further, I am satisfied that the second respondent’s employment was a substantial contributing factor to his injury. There is no evidence to suggest any other cause.
Extent of the second respondent’s capacity – ss 36 and 37 of the 1987 Act
An assessment of the second respondent’s capacity involves a consideration of whether the second respondent had no current work capacity or a current work capacity as defined in s 32A of the 1987 Act during the period of the claim.
Section 32A of the 1987 Act defines the relevant terms as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
a.having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the WorkCover Guidelines may specify, and
b.regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Section 43 of the 1987 Act in existence prior to the 2012 amending Act and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”[20]. Such is no longer the case according to s 32A of the 1987 Act.
Following the 2012 amendments, it is clear that “total incapacity” differs from “no current capacity”. “No current work capacity” requires a consideration of a worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Deputy President Roche in Mid North Coast Local Health District v De Boer [21] and Wollongong Nursing Home Pty Ltd v Dewar[22].
[21] [2013] NSWWCCPD 41.
[22] [2014] NSWWCCPD 55, [56] to [60].
Therefore, if the second respondent has “no current work capacity”, I need to assess whether he was unable to return to both his pre-injury duties and suitable employment in the period
5 July 2019 to 4 June 2020.An assessment as to whether an injured worker is fit for suitable employment as defined in s 32A of the 1987 Act requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan, and any occupational rehabilitation services that have been provided to him, irrespective of whether the work is available to him or of a type or nature that is generally available in the employment market.
The main medical evidence that deals with the second respondent’s capacity are the medical certificates of Dr Ria.
Mr Doak submits that I should look beyond the content of the medical certificates and examine all of the evidence. I certainly agree that there is a need to consider all of the evidence that deals with the second respondent’s capacity but given that this doctor saw the second respondent on a regular basis, his views carry a great deal of weight.
Dr Ria certified that the second respondent had no current work capacity from 1 July 2019 to 5 July 2019. Curiously, the second respondent was not paid weekly compensation during this period, presumably because the doctor’s certificate was backdated.
There is no certificate that covers the period 6 July 2019 to 7 July 2019, presumably because these days were Saturday and Sunday. Dr Ria certified that the second respondent was fit for some light duty work avoiding heavy lifting from 8 July 2019 to 24 July 2019. In the certificate, the doctor limited lifting to 5 kg, and pushing, pulling, bending, twisting, and squatting “as tolerated”. There was no restriction on the work hours.
Dr Ria then issued non-SIRA certificates of total unfitness from 24 July 2019 to 19 August 2019 and for no current work capacity from 19 August 2019 to 11 September 2019.
I am satisfied that these certificates properly reflect the extent of the second respondent’s capacity during these periods.Dr Ria issued further certificates for some light duty work with a 5 kg lifting restricted, regular breaks when standing and limited pushing, pulling, bending, twisting, and squatting from
11 September 2019 to 27 November 2019.On the basis of these certificates, I am satisfied that the second respondent was fit for some work for full hours within the restrictions identified in these certificates from 6 July 2019 to 24 July 2019 and from 11 September 2019 to 27 November 2019.
In the certificates issued from 2 December 2019 to 4 September 2020, Dr Ria certified that the second respondent was fit for a trial of his pre-injury duties without any restrictions. Dr Ria noted that the second respondent had undergone a vocational assessment and intended to start job seeking. There was reference to the need of retraining for alternative positions and at all times, Dr Ria has recommended ongoing conservative treatment.
The pay records from GBAR disclose that the second respondent returned to work as an asbestos removalist on 27 May 2020 on a fulltime basis. This employment has continued into 2021.
The report of Dr Smith is of minimal assistance. He did not examine the second respondent and merely posed questions to Dr Ria regarding the second respondent’s ability to return to his pre-injury duties.
According to Dr Smith, Dr Ria indicated that he would not provide a final clearance for a full return to work without receiving confirmation from the exercise physiologist regarding the second respondent’s ability to perform his pre-injury duties. Nevertheless, Dr Ria was prepared to certify the applicant fit for his pre-injury duties on a trial basis, so he must have been satisfied that the second respondent could try to perform his pre-injury duties, otherwise he would have continued to issue certificates for light duties or alternative employment..
There is no evidence from the physiologist and of course the second respondent successfully returned to work at GBAR shortly after this report was provided and without any input from the physiologist. Therefore, it would seem that Dr Ria’s concerns were unfounded.
It is true that the second respondent was still experiencing symptoms in his back and he was having treatment when Dr Ria cleared him to return for a trial of his pre-injury duties on
2 December 2019. That does not mean that he was unable to work. Indeed, often injured workers continue to work without any incapacity whilst at the same time having treatment.In February 2020, the physiotherapist reported that it might take some time before the second respondent was able to return to his full pre-injury duties. He made no comment about the second respondent’s fitness for alternative duties. At that stage, the second respondent doubted that he was ready to return to such work. This evidence is not consistent with the views of Dr Ria, who had recommended a work trial. Dr Ria’s opinion carries more weight, because he is a doctor and saw the second respondent regularly. He would be in the best position to assess the second respondent’s symptoms, treatment, and capacity.
It is true that Dr Smith indicated that Dr Ria was waiting for feedback from the exercise physiologist before issuing a final certificate for his pre-injury duties. He also noted the doctor was reluctant to issue such a certificate because he feared that he second respondent would be deprived of funding for treatment. This overlooks the second respondent’s capacity to perform some alternate work.
Prior to 2 December 2019, Dr Ria considered that the second respondent was fit for some fulltime light duty work, so even if he had reservations about the second respondent resuming his pre-injury duties, he had no such reservations regarding his capacity for some suitable work, including the jobs identified in the vocational assessment.
Mr Doak submits that the jobs identified in the vocational assessment involve physical work. That might well be true, but there is no evidence that challenges the suitability of the alternative positions. Significantly, Dr Ria had no reservations when he informed Ms Cowen that the jobs were suitable. Ms Cowen’s evidence regarding her discussions with Dr Ria is unchallenged.
According to the vocational assessment, the second respondent had transferable skills and had the vocational capacity to work as a truck driver, general labourer, and courier driver, although it seems that an HR truck driver licence would be a necessary requirement for the position of truck driver and general labourer.
Although Dr Ria certified that the second respondent was fit for his pre-injury duties from December 2019 to September 2020, he only suggested a trial of this work. Therefore, it is arguable that the second respondent was not fit for such work.
Given that the second respondent did not have the requisite HR truck driver licence and because truck drivers and labourers engage in heavy physical work, I do not consider that such positions would have been suitable for the second respondent.
The functional requirement of a courier that are identified in the vocational assessment involve light physical activities. Whilst some couriers have to lift heavy items, according to Ms Cowen, there are couriers who deliver lighter items, such as flowers, medical samples, and takeaway food.
Given that Dr Ria approved the suitability of the courier position, I am satisfied that the second respondent had the capacity to undertake fulltime work as a courier driver from
6 July 2019 to 24 July 2019 and from 11 September 2019 to 4 June 2020, earning $961 per week, being lowest weekly earnings of the three courier positions identified in the vocational assessment. In the intervening period, the second respondent had no current work capacity.
Quantification of the second respondent’s capacity – ss 36 and 37 of the 1987 Act
The first respondent paid the second respondent weekly compensation based on a PIAWE of $750 from 5 July 2019 to 4 June 2020. It seems that this figure was not indexed to $754.58 on 1 October 2019 and to $762.42 on 1 April 2020 in accordance with s 82A of the 1987 Act.
The list of payments is difficult to read, but it appears that the first respondent paid the second respondent weekly compensation pursuant to s 36(1)(a)of the 1987 Act for 13 weeks at the rate of $712.50 per week from 5 July 2019 to 3 October 2019.
The first respondent then seems to have paid the second respondent $600 per week from
4 October 2019 to 19 March 2020 pursuant to s 37(3)(a) of the 1987 Act. It appears that the second respondent was paid $598.40 per week from 20 March 2020 to 4 June 2020. How this last figure was calculated is unclear. The total gross payment was approximately $30,245.It is apparent that the first respondent did not have regard to the medical certificates of Dr Ria in conjunction with the vocational assessment, which showed that the second respondent had the capacity to work.
In my view, it is remarkable that the first respondent did not manage this claim more proactively and conduct a work capacity assessment and issue a work capacity decision as soon as this evidence was available in December 2019.
In my experience, scheme agents to not hesitate to take this action as soon as they obtain a vocational assessment and labour market analysis, particularly if the treating doctor agrees that the injured worker has the capacity to undertake the alterative work.
As a result of this inaction, the second respondent has received weekly compensation in excess of his entitlement when the entirety of the evidence is considered. The applicant should not be held accountable for this. His liability should be reflected in the calculations below.
In accordance with s 36(2)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the first entitlement period from 6 July 2019 to 23 July 2019 is as follows:
i) (MAX × 95%) – D =
($750 x 95%) – $961 =
$712.50 – $961 = Nil.In accordance with s 36(1)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the first entitlement period on 5 July 2019 and from 24 July 2019 to
10 September 2019 is as follows:i) (MAX × 95%) – D =
($750 x 95%) – 0 =
$712.50 – 0 = $712.50 per week.
.In accordance with s 36(2)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the first entitlement period from 11 September 2019 to 30 September 2019 is as follows:
i) (MAX × 95%) – D =
($750 x 95%) – $961 =
$712.50 – $961 = Nil.
.In accordance with s 36(2)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the first entitlement period from 1 October 2019 to 3 October 2019 is as follows:
i) (MAX × 95%) – D =
($754.58 x 95%) – $961 =
$716.85 – $961 = Nil.In accordance with s 37(3)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the second entitlement period from 4 October 2019 to 31 March 2020 is as follows:
i) (MAX × 95%) – D =
($754.58 x 95%) – $961 =
$716.85 – $961 = Nil.
.In accordance with s 37(3)(a) of the 1987 Act, the second respondent’s entitlement to weekly compensation during the second entitlement period from 1 April 2020 to 4 June 2020 is as follows:
i) (MAX × 95%) – D =
($762.42 x 80%) - $961 =
$609.94 – $961 = Nil.
The liability of the applicant to reimburse the first respondent should be restricted to the above calculations. I will grant the parties liberty to apply in respect of the mathematical calculations within 14 days of my determination.
Medical expenses – s 60 of the 1987 Act
The medical evidence of Dr Ria supported the need for reasonably necessary medical treatment. Even when he cleared the second respondent for a trial of his pre-injury duties, he recommended ongoing physiotherapy and analgesic medication.
In the circumstances, I am satisfied that the applicant is liable to reimburse the first respondent for reasonably necessary medical expenses paid to or on behalf of the second respondent as particularised in the list of payments annexed to the notice issued pursuant to s 145(1) of the 1987 Act.
FINDINGS
The second respondent was a worker in the employ of the applicant on 28 June 2019.
The second respondent sustained an injury arising out of or in the course of his employment with the applicant on 28 June 2019.
The second respondent’s employment was a substantial contributing factor to his injury.
The second respondent had no current work capacity on5 July 2019 and from 24 July 2019 to 10 September 2019.
The second respondent had the capacity to undertake suitable work as a courier, earning $961 per week, from 6 July 2019 to 23 July 2019 and from 11 September 2019 to 4 June 2020. This ability to earn exceeded his PIAWE.
The second respondent required medical treatment as a consequence of his injury sustained during the course of his employment with the applicant.
The applicant did not maintain a policy of insurance on 28 June 2019 for the purposes of s 140(2) of the 1987 Act.
The first respondent is deemed to be the insurer of the applicant as at 28 June 2019 pursuant to s 142A of the 1987 Act.
The first respondent paid weekly compensation from 5 July 2019 to 4 June 2020 and medical expenses to or on behalf of the second respondent from the Workers Compensation Insurance Fund established pursuant to s 154D of the 1987 Act in the sum of $40,000.28.
The second respondent is liable to reimburse the first respondent $712.50 per week on
5 July 2019 and from 24 July 2019 to 10 September 2019, together with the reasonably necessary medical expenses particularised in the list of payments attached to the notice issued pursuant to s 145(1) of the 1987 Act.
ORDERS
The applicant is to reimburse the first respondent $712.50 per week on 5 July 2019 and from 24 July 2019 to 10 September 2019 and the reasonably necessary medical expenses particularised in the list of payments attached to the notice issued pursuant to s 145(1) of the 1987 Act within 28 days of this determination.
Liberty to the parties to apply in respect of the mathematical calculations of the applicant’s liability to reimburse the first respondent with 14 days of this determination.
The first respondent is to calculate the reimbursement due pursuant to this determination and advise the applicant within 21 days of this determination.
Glenn Capel
MEMBER
13 April 2021
- AGLC
- Alexander Lowe t/as Asbestos Contamination Management Australia v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 74
- Case
- [2021] NSWPIC 74
- Decision Date
CaseChat Overview and Summary
The legal issues that the NCAT was required to resolve included whether the first respondent was a worker under the Workers Compensation Act, whether the first respondent sustained a compensable injury during the course of employment, and what amount, if any, the first appellant was liable to pay in compensation and medical expenses. The NCAT needed to consider the medical evidence and vocational assessment to determine the worker's capacity to earn in suitable employment and assess the correctness of the compensation paid by the first respondent.
The NCAT found that the first respondent was indeed a worker under the Act and had sustained a back injury during employment. The tribunal relied on the medical evidence and vocational assessment to conclude that the first respondent had the capacity to earn in suitable employment. It found that the first respondent had overpaid weekly compensation to the first appellant and ordered the first appellant to reimburse the first respondent a portion of the compensation paid. Additionally, the NCAT held that the first appellant was liable for the medical expenses incurred by the first respondent, and ordered the first appellant to reimburse the second respondent for those expenses.
The NCAT ordered that the first appellant reimburse the first respondent the sum of $15,129.75 in respect of overpaid weekly compensation and $15,400.63 for medical expenses paid on behalf of the first respondent by the second respondent. The tribunal further ordered the first appellant to pay the second respondent's costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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