Baines v Hany

[2018] NSWWCCPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Baines v Hany [2018] NSWWCCPD 14
APPELLANT:	Russell George Baines
FIRST RESPONDENT:	Tawfek (“Taffy”) Hany
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
INSURER OF THE FIRST RESPONDENT:	Uninsured
FILE NUMBER:	A1-3796/17
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	16 November 2017 and 29 November 2017 (Amended)
DATE OF APPEAL DECISION:	12 April 2018
SUBJECT MATTER OF DECISION:	Failure to take into account material evidence in determination of ‘injury’; whether error in consideration of indicia of employment; matters raised during conciliation not a basis for complaint – s 355 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Braye Cragg Solicitors
First Respondent: Second Respondent:	Michael J Corbett Solicitors HWL Ebsworth

ORDERS MADE ON APPEAL:

1.    The finding that Mr Baines was not injured as alleged is revoked.

2. The finding that Mr Baines was not a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed.

3.    The Certificate of Determination dated 29 November 2017 that there be an award for the respondents is confirmed.

INTRODUCTION

1. Russell George Baines brought a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) against Tawfek (“Taffy”) Hany as the first respondent in respect of an alleged injury to his pelvis and lumbar spine on 13 May 2012.

2. He alleged the injury occurred when he was installing a heavy iron gate while standing in the bucket of a backhoe approximately “six feet” above the ground. He said the injury occurred when Mr Hany, who was operating the backhoe, took his foot off the brake, causing the backhoe to move. As a result, the bucket hit the brick wall of the building, which in turn displaced a length of timber from the roof of the building. Mr Baines said that the piece of timber fell, hitting his back and causing injury. The building was part of the Taree Reception Centre.  

3. Mr Hany denied the injury occurred and further denied that Mr Baines was employed by him. He alleged Mr Baines was a self-employed handyman who performed handyman jobs for various people in the area. He further denied liability on the basis that Mr Baines had failed to give notice of injury and make a claim for compensation within the times required by s 254 and 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).  

4. Mr Hany did not hold a workers compensation policy of insurance. The Workers Compensation Nominal Insurer (the Nominal Insurer) was therefore a second respondent to the proceedings. The Nominal Insurer declined liability, disputing Mr Baines was a “worker” within the meaning of s 4 of the 1998 Act and disputing Mr Baines had been injured as alleged.

5. The matter proceeded to arbitration on 19 October 2017. Mr Hany maintained the issues…