Cavar v Nova Security Group Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451
APPLICANT:	Celija Cavar
RESPONDENT:	Nova Security Group Pty Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	11 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker; self-represented security guard alleged she was employed by the respondent; evidence that she was employed by a sub-contractor; Held – award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Celija Cavar claims compensation from Nova Security Group Pty Ltd as a result of an injury said to have been suffered on 25 October 2020. Ms Cavar represents herself in these proceedings.
In her Application to Resolve a Dispute (ARD) Ms Cavar claimed weekly compensation, indicating that both liability and a work capacity decision was in dispute. She claimed lump sum compensation, saying that both liability and the extent of permanent impairment were in dispute, and compensation for pain and suffering.
The claim for weekly compensation is made from 22 June 2021. Ms Cavar was paid weekly compensation until that date.
Essentially, Nova disputes the claim on the basis that it did not employ Ms Cavar. It says that she was employed by its sub-contractor, the Heckenburg Group (Heckenburg).

PROCEDURE BEFORE THE COMMISSION

At a telephone conference on 10 August 2021, I directed that Ms Cavar prepare a detailed statement by 21 September 2021 and said:
“The statement in order 1 should describe her employment history and contract, the nature of her employment, the circumstances of the injury, any other medical conditions, her medical treatment and events since the injury by 21 September 2021. The statement should comply with rule 34(1) of the Personal Injury Commission Rules 2021 and Practice Direction PIC 3.”
I made orders for issuing directions for production, so that the records from Ms Cavar’s general practitioner were available, and (with the approval of the Division Head) listed the matter for a further telephone conference.
Ms Cavar told me at the telephone conference that she had tried to obtain legal advice and did not wish to make further attempts.
I 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.
On 31 August 2021, Ms Cavar wrote to the Commission and asked that the telephone conference be adjourned and the matter dealt with in person because she was concerned that her devices were affected by “scam/cyber crime” and she was unwilling to deal with the matter by telephone. On 2 September 2021, Ms Cavar sought that a hearing in person be allocated after 13 October 2021 because she believed that the restrictions necessitated by the pandemic would be lifted on that day. That application was declined.
When Ms Cavar commenced these proceedings, the Commission was not undertaking in person hearings. Except in extraordinary circumstances approved by the President, the Workers Compensation Commission did not hold in person hearings after 20 March 2020 and the Personal Injury Commission has not yet held in person hearings since its inception on 1 March 2021.
After further communications, both parties agreed to making written submissions and orders were made on 13 September containing a timetable for submissions.
Ms Cavar filed a large number of documents, itemised below. To ensure that she has the best opportunity of presenting her case, all of the documents filed up to the last date for submissions have been admitted in the proceedings.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Nova’s Application to Admit Late Documents attaching a Reply dated 3 August 2021;

(c) Ms Cavar’s submissions dated 2 August 2021 which attached some further evidence;

(d) Applications to Admit Late Documents dated 25 August 2021, 1 September 2021, 7 September 2021, 14 September 2021, 17 September 2021, 20 September 2021 (3 applications), 24 September 2021 and 18 October 2021, and

(e) Nova’s Application to Admit Late Documents dated 9 September 2021.

Ms Cavar’s evidence

Ms Cavar attached a number of documents to the ARD but did not include a statement.
By a letter dated 11 January 2021, Ms Cavar made a claim on iCare for damages, relying on s 151E of the Workers Compensation Act 1987 (the 1987 Act). She claimed damages for future loss of earnings for three years, relying on s 151G. The claim was comprised of $78,728.52 for her permanent part-time position with Secom Australia and $22,971 from Nova and $101,699.52 for the future. She claimed $45,000 under s 67 and said that she was willing to make a complying agreement for $146,500.
Ms Cavar’s statement is attached to her Application to Admit Late Documents dated 25 August 2021. She said that she began employment with Nova Security Group Pty Ltd on 1 March 2019 and that she was employed by the “boss” whose name was Noah. She said that all of her communications with him were by text message. Her first shift was at Qudos Bank Arena on 1 March 2019 and her last was on 25 October 2020 at ANZ Stadium, Olympic Park.
Ms Cavar said that she was paid $25 cash per hour “on” hand each Thursday at an office in Liverpool and her payment depended on the number of shifts performed. In the absence of Noah, she was paid by Amy. Ms Cavar said that a list of the shifts she performed was attached to her statement.
In the same period, Ms Cavar said she also worked for Imperial Security Group and Secom Australia. For Secom, she performed permanent part time work for 14 hours per week in taxi security between 11 September 2019 and 16 January 2020. She also worked for CVEM and Wilson Security for short periods.
Ms Cavar said that she had not heard of Heckenburg before these proceedings and she alleged that a Subcontractor’s statement prepared for Nova by Heckenburg was “FAKE DOCUMENT/FORGERY/CRIMINAL OFFENCE.” Ms Cavar also said that her security licence had been “falcificated/duplicated and abused” by Mr Hasan of Heckenburg.
Describing the circumstances of the injury, Ms Cavar said that the injury occurred on 25 October 2020 at about “18:30PM” and was caused by the “negligence” of another worker who intentionally pushed her onto a metal fence “knowing that I was passing behind her.” Ms Cavar said that she was “stalked” between the woman and the fence and instinctively grabbed the corner of the fence, striking her right breast and twisting her neck to avoid falling on the concrete. Ms Cavar reported the incident to her supervisor and medical staff provided first aid. She saw her general practitioner Dr “Yolanda B” on the following day. I understand Ms Cavar to be referring to Dr Balatbat.
Ms Cavar said that she developed depression and anxiety and, since March 2021, irregular heart beat. She said she also suffers breathing difficulties, pressure on her chest, pain in her upper right arm, left shoulder and neck.
Ms Cavar said that the report of Dr Mellick and the second report of Dr Teychenné are false and that attempts to arrange a psychiatric assessment were unreasonable and unnecessary.
Ms Cavar said that she suffered another injury on 3 October 2020 when she fell in a shopping centre. She said that she stopped seeing Dr Balatbat and began to see Dr Lewis at the same medical centre. She said that she described her symptoms to him and that he prepared medical certificates.
Responding to some documents which appear in the Reply, Ms Cavar said that she ceased work with Secure Corp because of the injury on 3 October 2020.
Ms Cavar attached a number of documents to her statement, including a letter to iCare raising issues about Dr Mellick’s report and correspondence with solicitors who provided her with some general advice. The documents included a complaint to the Security Licensing and Enforcement Directorate (SLED) stating that Heckenburg and its director Mr Hasan had requested a copy of her security licence and duplicated it. She sought that her licence be cancelled and reissued.
Ms Cavar provided a list of text messages for work with Nova between 2 September 2019 and 25 October 2020 received on her former mobile phone which is now inactive. She said that there were 252 messages but only 25 were set out and the messages were said to be retyped. Some messages contained a request to “sign on under Nova” and some of those were signed Noah. By way of example the first message reads:
“QUDOS BANK ARENA
Friday 1/3/19-17:30
Saturday 2/3/19-17:30
ADDRESS:
Olympic Blvd, Sydney, Olympic Park
Entrance
Staff entrance is located between the 2 venue public entries
Sign on
Sign on is located in the security room
****Be there 30 min prior to****shift allow time for****briefing, uniform issues exc
Uniform: Black Suit, Black suit pants (no jeans or c
White business shirt, Black tie, Black socks, Black leather shoes (dress shoes)
Have a small torch on you for this shift
Closest train station Olympic Park
Parking-Pl-validate your ticket with staff services at the end of your shift
Please ensure you have your Security Licence and RSA with you
****Very Important
****Sign on Under Nova
Please confirm ASAP
Cheers
Noah
, Details:
Sender: (no name) +61406605554
Received: 27-02-2019 02:47:11
ADDRESS OF OFFICE IN LIVERPOOL WAS: 3-4 Biggle St Liverpool and on Macquarie St.”

The list also included:

“SUSPECT MOB NO+61450604000-REQUEST FOR PHOTO OF MY SECURITY LICENCE AND RSA PLEASE
ON 21/06/2019 RECEIVED AT 05:32:15, SENDER NO NAME
MAYBE IS RELATED TO HECKENBURG SECURITY”

A remittance advice from iCare showed that Ms Cavar was paid $247.20 in compensation for the period 11 to 14 July 2021, based on a weekly rate of $412.
Other documents attached to the statement show that Ms Cavar applied to work as a personal care worker for Australian Unity Home Care Services and was offered employment for 15 hours per week at the rate of $25.45 per hour. It is unclear if Ms Cavar commenced this work or not.
Ms Cavar’s submissions dated 2 August 2020 contained transcript of a text message dated 19 October asking Ms Cavar and others to be available for the NRL Grand final on 25 October and a message dated 20 October 2020 with the instructions for work on the following Sunday (25 October). The transcript reads:
“ANZ STADIUM-GRAND FINALE
SUNDAY 2.45PM
ADDRESS
Edwin Flack Avenue,Sydney Olimpic Park
Meeting Point
Ticket Box H FOR SIGN ON SAY YOU WORK FOR NOVA
****Be there 30 min prior to**** shift allow time for ****briefing,uniform issue exc
Uniform
Black dress pants
Black leather shoes
Black polo/business skirt(collared)
Dress shoes
Plain black jacket nologos(optional)
If wearing a black Cap/Hat Jacket exc .. No logos
Closest train station
Olympic Park
Please ensure you have your Security Licence and RSA with you
****Very important
****Sign on Under NOVA
Please confirm ASAP
Cheers”
Ms Cavar’s second[1], third[2], fourth[3] and seventh[4] Applications to Admit Late Documents did not attach any evidence.
[1] 1 September 2021.
[2] 7 September 2021.
[3] 14 September 2021.
[4] 24 September 2021.
The fifth Application is dated 17 September 2021 and attached submissions which are set out below. It also attached some correspondence with Centrelink about a claim under the Compensation for Detriment caused by Defective Administration System (CDDA Scheme or Robodebt). As those documents are not relevant to the claim against Nova, I have not considered them further.
Ms Cavar filed three Applications to Admit Late Documents on 20 September 2021 attaching correspondence with her general practitioner, requesting “cancellation of medical records” sent to the Commission under direction. She said that the cancellation was required because the insurer was named as Employers Mutual NSW Limited and not iCare and because the records were only sought in respect of Campsie Medical and Dental Centre when she had also visited centres at Bondi Junction and Maroubra. Ms Cavar also attached correspondence with iCare about their request that she attend a psychiatric examination.
Ms Cavar’s eighth and final Application to Admit Late Documents is dated 18 October 2021 and attaches her final submissions, discussed below. It also contains some correspondence from a firm of solicitors who indicated that, having reviewed the file, they were unable to assist her. Ms Cavar attached a series of accounts and receipts, some of which appear irrelevant to her alleged injuries, such as eye drops.

Nova’s factual evidence

The Reply attached a first factual investigation report dated 18 February 2021 in which the said that the investigator had received no tangible assistance from either Ms Cavar or Nova, though was able to determine that Ms Cavar was employed by Heckenburg.
A Subcontractor’s Statement completed for Nova by Heckenburg confirmed that Heckenburg held a policy of workers compensation insurance as at 27 November 2018. Mr Wall also provided Nova’s contract with Heckenburg dated 27 November 2018. The contract provided, among other things, that staff provided by subcontractors needed to be issued with Nova’s standard operating procedures and that the details of the staff must be provided to Nova. Guards provided by the subcontractor were required to be licensed and to carry their licence with them. Guards were required to wear a Nova uniform if the venue required it and if not, “tidy dress will be worn as specified.” Nova stressed the importance of guards signing on when they commenced work at a site.
A Guard Interview Induction Acknowledgement dated 20 June 2019 appears to say that Ms Cavar was employed by Heckenburg and contracted to work Nova Security Group sites. The relevant clause allowed for one of two paragraphs to be circled, either (a) if she was in the direct employ of Nova and (b) relating to employment by another company. Paragraph b) was completed in handwriting, though neither paragraph was circled. The document confirmed that Ms Cavar had undergone Nova’s induction.
An email from Iftekar Hasan of Heckenburg to the investigator omitted much information but confirmed that Ms Cavar was employed from 20 June 2019 as a casual security officer when there were events at “ANZ/Bankwest.”
An email from Evan Wall of Nova to the investigator dated 21 December 2020 said that Ms Cavar was not an employee of Nova but was “subcontracted to us from Heckenburg…” He said that Ms Cavar was assumed by a claims officer to be “one of the main points of contact” for Nova. The claim was apparently accepted without Nova being contacted or notified. Mr Wall was able to confirm that Ms Cavar was on site on the day of the alleged injury, provided by Heckenburg. Nova was unaware of the injury and no reports were made to its knowledge.
Not surprisingly, a further report was required and was dated 27 July 2021. A statement was obtained from Mr Wall dated 20 July 2021. Mr Wall said that Ms Cavar had contacted Nova when applying for jobs. He said that Nova had a sub-contractor arrangement with Heckenburg and that Nova requires its sub-contractors to provide tax invoices detailing the names of each staff member provided.
Mr Wall said that Nova was not aware of the claim until it started receiving cheques for Ms Cavar and that nobody was able to explain how that occurred without Nova being notified of the claim.
Nova’s solicitors issued a notice for production to Ms Cavar with which she complied, producing bank records.

The Reply included a number of documents about Ms Cavar’s other employment. It included a letter to Ms Cavar from Ms S Sissi, the State Operations Manager of Secure Corp dated 16 October 2020. Ms Sissi referred to a telephone conversation on 12 October in which she sought to arrange a meeting with Ms Cavar about her ongoing employment, noting that her employment was subject to probation, that issues had been raised about her ability to work 12 hour shifts and some interaction with supervisors which was said to be inappropriate. She said that Ms Cavar had not been truthful in an employment application in which she said that she had no medical restrictions. The letter said that Ms Cavar refused to attend that meeting and her employment was not confirmed after the probation period.
The Reply also attached a Deed of Confidentiality between Ms Cavar and Asset Group Solutions Pty Ltd dated 19 August 2020 which apparently relates to other employment. The document is otherwise unexplained.
An Application to Admit Late Documents dated 9 September 2021 included some examples of the tax invoices that Nova required from Heckenburg setting out the names of employees who had worked. Invoice no 71 from Heckenburg to Nova for the period 5 to 11 October 2020 showed that Ms Cavar had worked 4.25 hours at Bankwest Stadium at the rate of $30 per hour. Invoice no 72 for the period 12 to 18 October 2020 showed that Ms Cavar had worked 5.25 hours at Bankwest Stadium at the rate of $30 per hour. Invoice 73 for the period 19 to 25 October 2020 showed that Ms Cavar had worked 6 hours at Bankwest Stadium at the rate of $30 per hour.
Mr Hart also provided copies of two text messages he received from Ms Cavar in 2019. The first dated 25 October 2019 read:
“Hi there, I do not know your
name, you do in Nova Security.I
want to ask you for favour.From
next week can you send me any
shifts for Sunday to Friday.I am
available on those days 24/7. If
its possible I want to work
directly for Nova.The reason for
that is that your subcontractor
not offering to me shifts,one or
two shift per week, 10 hours
approximately per week.I feel
they placing me at last minute
on the shift which they cannot
cover with their favour staff.So
from next week I am available
24/7 for Sunday to Friday.On
Friday and Saturday I AM NOT
AVAILABLE ON EVENING.
Thank you Celija Cavar/Security
officer/guard”

The second dated 28 October 2019 read:

“Hi there, please send me shifts
for this week.Thank you.Celija”

A company search showed that Heckenburg was under external administration as at 20 July 2021.

Medical evidence

Dr Y Balatbat of Maroubra Medical and Dental Centre provided a Centrelink Medical Certificate dated 25 January 2020 in which she said that Ms Cavar had suffered depression and anxiety since 16 January 2020. Dr Balatbat said that Ms Cavar had been a patient of the practice since 13 August 2013 and her patient since 16 April 2018.
Dr S Lewis provided a Certificate of Capacity dated 13 November 2020. His address is the same as Dr Balatbat’s. He said that Ms Cavar had had a fall at work, suffering right breast and chest wall pain, neck pain and pain in both upper arms and shoulders. He said that the injury had occurred at work when she had been knocked over by another member of staff and landed on a metal fence. She “reached up to try and save herself and pulled arms neck and shoulder whilst falling – twisting motion.” Dr Lewis said that Ms Cavar had no current work capacity.
Documents were produced under direction by Idameneo 123 Pty Limited in respect of Ms Cavar’s treatment by Dr Lewis at Bondi Junction Medical Centre from December 2020 and at Campsie Medical Centre from 8 July 2021.
Dr P Teychenné saw Ms Cavar at the request of Dr Lewis and reported on 13 January 2021. He said that Ms Cavar had suffered an injury on 3 October 2020 when she slipped and fell on water. Her had extended back and she fell onto her buttocks. She was unable to lift her right leg onto her bike to ride home. Dr Teychenné recorded that Ms Cavar had a second injury on 25 October 2020 when she was pushed onto a metal fence, falling onto her right breast. She twisted her head to the right as she fell and rebounded from the fence.
Dr Teychenné recorded that Ms Cavar had stiffness of her neck and shoulders on the following day and that her neck felt heavy. Ms Cavar told Dr Teychenné that two days later she began to experience a headache, a burning sensation to her thoracic spine and into her upper arms and dizziness. One week later she said that she began to experience a tremor in her hands, lost vision and began losing her breath. Four weeks later, Ms Cavar had physiotherapy and she told Dr Teychenné that she began to experience pain in her lumbar spine.

Dr Teychenné set out his detailed findings on examination and on nerve conduction studies. He considered that the clinical picture was potentially consistent with an incomplete cervical cord lesion but that Ms Cavar required further examination.
Dr Teychenné provided a further report dated 18 April 2021. The report was not addressed to anyone but he quoted a claim number and acknowledged the Expert Witness Code of Conduct. The content of the report is essentially the same as his earlier report and there is no suggestion that he had seen Ms Cavar again. He said that MRI scans of her brain, cervicomedullary region and full spinal column were necessary.
Dr Teychenné did not distinguish between the two events in the causation of Ms Cavar’s condition. He did not record that either injury was work related. He did not comment on her fitness for work and he did not assess permanent impairment.
Dr R Mellick reported to iCare on 1 April 2021. Dr Mellick obtained the history that Ms Cavar was injured at work on 25 October 2020. She said that she was pushed into a metal fence, contacting the fence with her right shoulder and right breast and twisting her neck. Dr Mellick recorded that Ms Cavar had an earlier injury on 3 October 2020 which resulted in back pain and caused her to be away from work until 25 October 2020.
Dr Mellick did not find any abnormalities on examination apart from straight leg raising which was markedly reduced. He noted that Ms Cavar was able to sit on the examination couch with her hips flexed and knees extended. Dr Mellick said:
“The distribution of the pain as reported by Ms Cavar is unusual and is not associated with any objective diagnostic signs on neurological examination. In particular, there are no signs pointing to the presence of intracranial, spinal cord, nerve root or peripheral nerve injury.
The physical examination includes considerable inconsistencies.
Therefore, on considering the injury which occurred on 25 October and correlating that with the current symptoms and physical signs, it does not allow an understandable organically based diagnosis to be presented. There are features which raise the probability of significant psychological problems.”
Dr Mellick noted that Dr Teychenné did not actually make a diagnosis of incomplete cervical cord lesion and said that there was no information recorded by him which establishes that diagnosis.

Correspondence

ICare issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 11 June 2021 denying the claim for permanent impairment compensation because Dr Teychenné did not make an assessment of whole person impairment in accordance with the SIRA Guidelines and because Dr Mellick considered that Ms Cavar did not suffer permanent impairment.
The notice is confusing because the decision is said to be made by iCare but the notice refers to decisions made by EML, without explaining that EML manages claims on iCare’s behalf. It is clear from her documents that Ms Cavar was confused by the references to EML.
A further notice was issued on 22 June 2021 disputing liability for weekly compensation because Ms Cavar did not have total or partial incapacity for work as a result of an injury. Liability for medical and related expenses was also disputed but Ms Cavar does not make a claim for s 60 expenses in these proceedings.
The insurer noted the medical certificates from Dr Lewis dated 11 January 2021 and Dr Balatbat dated 29 January 2020 which it said suggested that Ms Cavar suffered a pre-existing psychological condition. It requested that Ms Cavar attend an appointment with a psychiatrist.
The insurer noted that Ms Cavar had not provided information to support her claim for permanent impairment compensation. It said that a decision had been made to terminate weekly compensation on 15 July 2021.
On 9 July 2021, Ms Cavar wrote to iCare stating that Dr Teychenné’s report dated 18 April 2021 was “fake” and that he had committed criminal offences against her. She also made a complaint about Dr Mellick. On 24 June 2021, she made a similar complaint to the State Insurance Regulatory Authority (SIRA).
A further s 78 notice was issued on 29 July 2021, denying the claim on the basis that Ms Cavar was not a worker nor a deemed worker of Nova. It denied that she suffered injury and that employment was a substantial contributing factor to any injury or the main contributing factor to any disease injury. The insurer denied that Ms Cavar was entitled to weekly compensation. The notice summarised the factual evidence and said that Ms Cavar was a worker lent on hire to Nova with the meaning of cl 1 of Sch 1 to the 1998 Act. Copies of two factual investigation reports dated 28 February 2021 and 27 July 2021 were attached.

SUBMISSIONS

Ms Cavar made three sets of submissions – submissions dated 2 August 2021, an outline dated 12 September 2021 and more detailed submissions dated 15 October 2021. The submissions are repetitive and what appears below is a summary. I have not summarised those parts of the submissions that make allegations about alleged criminal conduct by officers of Nova’s insurer.
In her submissions dated 2 August 2021, Ms Cavar said that her claim had been accepted on 17 November 2020 with weekly payments made from 20 October 2020. She said that Nova’s insurer had breached s 37 by not continuing to pay her weekly compensation and that the allegation that she had worked for Heckenburg was false. She said that she received a text message for each shift worked for Nova and that her main contact was Noah.

In her outline dated 12 September, Ms Cavar said that the claim that Heckenburg was her employer was false. She said that the subcontractor’s statement dated 28 November 2018 when she did not work for Nova or any other security company was evidence that the case made against her was false. She said that all of the work she performed was for Nova not Heckenburg.
In her final submissions, Ms Cavar denied that s 67 had been repealed. She repeated her submission that the respondent’s case was false and the documents on which it is based are false. Ms Cavar said that she was paid cash by Nova every Thursday, that she had never worked for Heckenburg and had never been offered any shifts by them. She suggested that Mr Hasan had fabricated documents, in particular the subcontractor’s statement dated 28 November 2018 when she was overseas and she attempted to link that document to her sister’s death at about the same time.
Ms Cavar accused many people involved with her case of organised crime. Those allegations are not supported and it is neither necessary nor appropriate to summarise them. Ms Cavar submitted that Dr Teychenné’s report dated 18 April 2021 was fabricated because it was made in her absence and did not contain her claim number.
Ms Cavar said that at the time of the injury she was wearing the black uniform required of Nova employees and that the person who pushed her was wearing an orange uniform.
Ms Cavar signed her submissions as “injured worker/Security Officer/Juror/Foreign Lawyer”.

Nova’s submissions

Ms Goodman and Ms Necovski of counsel prepared submissions for Nova dated 9 October 2021.
In the submissions, Nova sought leave under s 48(4) to be represented by a lawyer because it will permit the matter to be dealt with more efficiently.
Nova said that I would be satisfied on the evidence that Heckenburg provided Nova with security services. It said that although Ms Cavar was required to wear Nova’s uniform if the venue required it, the evidence showed that she was employed by and paid by Heckenburg. There is no evidence, Nova submitted, to support the contention that she was employed by Nova. There is no record of payment in Ms Cavar’s bank statements but the fact that she was in receipt of Jobseeker benefits provided, Nova submitted a motive for receiving payment in cash.
For those reasons, Nova submitted, Ms Cavar was not a worker employed by it. It followed that the injury did not arise out of or on the course of her employment, nor was employment a substantial contributing factor to the injury.
In case I found against Nova on that basis, it submitted that Dr Teychenné did not form a view as to the relative contribution of the injury on 3 October and that on 25 October. On that basis, Nova said that I would not accept that Ms Cavar suffered the injuries claimed.
Nova also said that it had tried to arrange an examination by a psychiatrist and that Ms Cavar did not attend. It said that Ms Cavar’s right to recover any benefits to which she is entitled is suspended until those examinations took place.
Nova noted that Ms Cavar had not provided an assessment of permanent impairment for the purpose of s 66 nor had she particularised a claim for medical expenses. It noted that pain and suffering compensation had been abolished by the 2012 amendments to the legislation. Because there was no assessment that she suffered more than 15% whole person impairment, Nova said that Ms Cavar was not entitled to work injury damages.

FINDINGS AND REASONS

Nova made an application in its submissions under s 48(4) of the Personal Injury Commission Act 2020 for leave to be represented by a lawyer. Ms Cavar did not respond to that request. Section 48(3) and (4) provide:

“(3) In proceedings in respect of a claim within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, the Commission must refuse to permit an insurer to be represented by an Australian legal practitioner if the claimant is not represented by an Australian legal practitioner unless leave is granted by the Commission under subsection (4).
(4) The Commission may, on the application of an insurer, grant leave for an insurer to be represented by an Australian legal practitioner only if satisfied that—

(a) the representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, or
(b) it would be unfair not to allow the insurer to be represented because the insurer is unable to represent the insurer effectively, or
(c) it would be unfair not to allow the insurer to be represented, taking into account fairness between the insurer and other parties in the proceedings.”

There are two reasons why leave should be granted. The matter is complex and representation has and will allow the claim to be dealt with more efficiently, because Nova has prepared submissions which deal with the legal issues. The second is that Ms Cavar has made allegations about a number of staff of the insurer. In those circumstances, it is appropriate that the insurer be represented by lawyers rather than by an employee of the insurer.
Unfortunately two things have made this claim more complex than the facts alone. The first is that Nova’s insurer paid weekly compensation to Ms Cavar for an extended period without seeking any information from Nova. If it had investigated the claim before doing so, it is unlikely that any compensation would have been paid. The first two s 78 notices fail to adequately grapple with the facts, though the third notice dated 29 July 2021 does.
The second complicating factor was the failure of Mr Hasan of Heckenburg to provide the information requested by Nova’s investigator, which may be partly explained by the company being under external administration.

Was Ms Cavar a worker employed by Nova

For Ms Cavar to recover compensation, she must prove that she was a worker employed by Nova. As the applicant in the proceedings, she has the responsibility of proving that. Because she is self represented, all of the documents on which she sought to rely are admitted in the proceedings. Despite that, Ms Cavar has not proved that she was a worker employed by Nova.
The documents provided in the Reply show that Heckenburg held a security licence and employed workers. It entered into a contract with Nova for the supply of security guards on 27 November 2018. Though it does not say so in as any words, the contract is for the provision of security personnel by Heckenburg to Nova. The conditions of contract provide that the details of staff supplied to Nova must be provided. Heckenburg ticked a box to show it agreed that it was responsible for the staff it employed.

On the day the contract was signed, Heckenburg completed a Subcontractors Statement for the purpose of s 175B of the 1987 Act (and payroll tax and in legislation).
Ms Cavar submitted that this statement was evidence of wrongdoing on the part of Heckenburg because she was not employed by Heckenburg in November 2018. There is no representation in the document with respect to Ms Cavar and it does not support her argument that Heckenburg engaged in criminal conduct. The document was prepared in relation to all workers employed by Heckenburg as at that date. It provided proof to those companies with which it contracted that it had held workers compensation insurance, had paid all payroll tax and had paid all appropriate remuneration to its employees.
The document is relevant to confirm that Heckenburg was a subcontractor to Nova and that it fulfilled its responsibilities to workers employed by it.
On 20 June 2019, Ms Cavar underwent Nova’s induction as required in Nova’s contract with Heckenburg. She confirmed that she was employed by Heckenburg. That is confirmed by her name appearing on Heckenburg’s tax invoices to Nova including for the day on which she said she was injured. At the time she signed that document, I am satisfied that Ms Cavar was employed by Heckenburg and that she knew she was employed by Heckenburg.
Other evidence supports her knowledge of her employment by Heckenburg. Mr Wall provided text messages from Ms Cavar in October 2019 seeking work directly from Nova because she was not receiving as many shifts as she would like. She said that she wanted to work directly for Nova. That shows that she knew that she was not employed by Nova.

In addition, the text messages which Ms Cavar transcribed requesting that she report for work stressed that it was necessary that she say when she signed on that she was working for Nova. While it would have been preferable to have screen shots of text messages, I have accepted that the transcriptions reflected what the text messages said. If Ms Cavar was employed by Nova, there would be no need for the text messages to remind her to say that she needed to say that she worked for Nova. That instruction makes sense if she was employed by Heckenburg.
Schedule 1 cl 1 of the 1998 Act provides:
“1 Workers lent or on hire
If the services of a worker are temporarily lent or let on hire to another person (the labour buyer) by the person with whom the worker has entered into a contract of service or a training contract (the labour hirer), the labour hirer is, for the purposes of this Act, taken to continue to be the employer of the worker while the worker is working for the labour buyer.”
Ms Cavar was employed by Heckenburg which provided her services to Nova. The clause confirms that in those circumstances, Heckenburg continued to be her employer while working for Nova. Whether she was paid in cash or not is immaterial to that finding.

I am not satisfied that Ms Cavar was a worker employed by Nova. The evidence shows that she was a worker employed by Heckenburg and it is puzzling that she did not make a claim against Heckenburg. The fact that it is under external administration is not relevant if it had workers compensation insurance.
Ms Cavar did not argue that she was a deemed worker and there is no evidence to suggest she was.
Ms Cavar is not entitled to compensation from Nova. It is therefore not necessary that I consider the specific claims she has made but I do so to assist Ms Cavar to understand why that compensation would not be payable even if I was satisfied that Nova was her employer.

Weekly compensation

Ms Cavar claimed weekly compensation, stating that both liability and a work capacity decision were in dispute. Because of the decision I have made on the question of liability, no weekly compensation is payable. For completeness, I note that the insurer did not make a work capacity decision as defined in s 43 of the 1987 Act so there was no dispute with respect to a work capacity decision.
Ms Cavar has been certified unfit by Dr Lewis. However, there are references to other employers in the evidence and to an application to Australian Unity Home Care Services, suggesting some capacity for work at about the time of the injury.
Ms Cavar also suffered an injury on 3 October 2020 and said she had ongoing effects from that. Dr Teychenné recommended investigations and did not distinguish between the effects of each injury.
Ms Cavar was concerned that Dr Teychenné’s second report dated April 2021 was a fabrication. There is no evidence that was the case. The content of the report is the same as his report dated 13 January 2021.
Even if I was satisfied that Ms Cavar was a worker employed by Nova, there is insufficient evidence to determine the effects of each injury to support an award of weekly compensation or to quantify the extent of any incapacity.

Section 66

Ms Cavar sought lump sum compensation under s 66, attaching a draft complying agreement. She did not provide any assessment of whole person impairment.
Section 66 provides for the payment of lump sum compensation for permanent impairment, assessed by reference to the percentage of permanent impairment suffered. No compensation is payable unless a worker suffers more than 10% permanent impairment. A complying agreement can be used to record an agreement made between a worker and an insurer about the extent of compensation suffered. There is no role for a complying agreement before the extent of permanent impairment has been determined.
A claim for lump sum compensation must be made and must include the relevant particulars about a claim to allow the insurer to make a proper assessment of a worker’s entitlement. The information which must be provided is set out in s 281(1) of the 1998 Act and the Workers Compensation Guidelines made by SIRA. Those Guidelines provide that the claim must be accompanied by a report from a permanent impairment assessor listed on the SIRA website as being qualified to provide an assessment of the relevant body system.
Dr Teychenné, who has seen Ms Cavar for the purpose of treatment, and Dr Mellick who examined Ms Cavar at the request of Nova’s insurer, are both relevantly qualified. However neither made an assessment of permanent impairment.
Dr Teychenné said that further investigation of Ms Cavar’s condition was required. On that basis, he was not in a position to assess whether any impairment suffered was permanent. Dr Mellick did not consider that Ms Cavar suffered permanent impairment.

Ms Cavar is not entitled to compensation under s 66.

Section 67

Ms Cavar sought compensation under s 67 of the 1987 Act. She did not make any submissions as to the amount of compensation she sought. She included a copy of s 67 in her submissions and her only submission was that the section had not been repealed.
Section 67 was repealed with effect from 19 June 2012 and does not appear in the current version of the legislation. The Commission does not have the power to award compensation under s 67 to Ms Cavar. She is not an exempt worker as defined by cl 25 and 26 of Pt 19H of Sch 6 to the 1987 Act, because she is not a coal miner, police officer, paramedic or firefighter.
In any event, compensation for pain and suffering was only ever payable to workers who have been paid compensation for permanent impairment under s 66. Because Ms Cavar has not provided evidence to show that she is entitled to compensation under s 66, she would not have been entitled to compensation under s 67.

Work injury damages

Ms Cavar also sought to claim work injury damages. Even if my decision on liability was in her favour, no claim can be made unless permanent impairment compensation had been paid in respect of at least 15% whole person impairment and the procedural requirements in the 1998 Act are complied with. Ms Cavar is not entitled to claim work injury damages.

For those reasons, I make an award in favour of Nova.

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Citations

Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451

Most Recent Citation

Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31

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Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31

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[2021] NSWPIC 451

11 November 2021