Carbone v Workers Compensation Nominal Insurer & Ors - [2024] NSWPIC 42

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carbone v Workers Compensation Nominal Insurer & Ors [2024] NSWPIC 42
APPLICANT:	Giovanni Carbone
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Denis Gabrielli t/as Mr Colour Painting and Decorating
THIRD RESPONDENT:	Jetcharm Constructions Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	2 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant fell 3 - 4 metres off a ladder whilst painting; whether applicant a worker; whether credit impugned by false account of injury to hospital; whether injury to back established; Held – contract oral; multifactorial indicia relevant; contemporaneous evidence demonstrated uninsured employer misled the Commission; injury to back established on facts; UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) and Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Service considered and applied; Fox v Percy applied; award applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant was employed by the first respondent at the time of his injury. 2. The first respondent was uninsured at the time. 3. The third respondent was a principal liable to pay compensation pursuant to s 20 of the Workers Compensation Act 1987. 4. The applicant injured his back in the subject injury of 29 April 2020. The Commission orders: 5. I remit this matter to the President for referral to a Medical Assessor for a whole person assessment on the following bases: (a) Date of injury: 29 April 2020. (b) Matters for assessment: (i) left upper extremity (wrist). (ii) lumbar spine. (iii) TEMSKI/scarring. (c) Evidence: (i) Application to Resolve a Dispute and attached documents. (ii) Application to Admit Late Documents dated 12 October 2023. (iii) First respondent Reply and attached documents. (iv) Second respondent Reply and attached documents. (v) Third respondent Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Giovanni Carbone, the applicant, seeks an order for lump sum compensation for injury to his lumbar spine, left upper extremity and TEMSKI/scarring alleged to have occurred on 29 April 2023. He alleges that he was employed by Denis Gabrielli t/as Mr Colour Painting and Decorating, the second respondent, who at the time did not hold a workers compensation policy. Workers Compensation Nominal Insurer (iCare) accordingly has been joined as the first respondent and Jetcharm Constructions Pty Ltd, the third respondent, is alleged to have been the head contractor at the site where Mr Carbone suffered his alleged injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Carbone was a worker;
(b) if not, whether the third respondent is liable pursuant to s 20 of the Workers Compensation Act 1987 (1987 Act), and
(c) whilst the injury to the applicant’s wrist and scarring is admitted, the claim for the back is denied.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in the Personal Injury Commission (Commission) on 18 October 2023, and by video link on 7 November 2023. The applicant was represented by Mr Bill Nicholson of counsel instructed by Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 42
Decision Date: 2 February 2024

CaseChat Overview and Summary

Carbone v Workers Compensation Nominal Insurer & Ors involved the applicant who suffered an injury after falling from a ladder while painting. The dispute centred on whether the applicant qualified as a worker under the Workers Compensation Act 1987, and whether the credibility of the account provided to the hospital was compromised. Additionally, the court had to determine whether the injury to the applicant's back was substantiated.

The primary legal issues revolved around establishing the nature of the applicant's employment and whether it met the criteria of a worker under the Act. Another significant issue was whether the applicant's credibility was undermined by the account given to the hospital. Furthermore, the court needed to ascertain whether the injury to the applicant's back was indeed established.

The court examined the evidence to ascertain whether the applicant was a worker by considering the multifactorial indicia of employment. It found that there was an oral contract and sufficient evidence to indicate that the applicant was indeed a worker. The court also considered the contemporaneous evidence and concluded that the uninsured employer had misled the Commission, which did not impugn the applicant's credibility. The court found that the injury to the applicant's back was established based on the facts presented. The decisions in UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) and Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Service were applied, and the principles in Fox v Percy were considered. The court ultimately awarded the applicant compensation.

The court ordered that the applicant be awarded compensation for the injuries sustained.

Orders