Djuric v Kia Ceilings Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision confirmed on appeal: Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34
CITATION:		Djuric v Kia Ceilings Pty Ltd [2010] NSWWCCPD 20
APPELLANT:		Mile Djuric
RESPONDENT:		Kia Ceilings Pty Ltd
INSURER:		Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:		A1-4391/09
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:		21 September 2009
DATE OF APPEAL HEARING:		28 January 2010
DATE OF APPEAL DECISION:		3 March 2010
SUBJECT MATTER OF DECISION:		Deemed worker; Schedule 1 clause 2 of the Workplace Injury Management and WorkersCompensation Act 1998
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		Oral
REPRESENTATION:		Appellant:		Mr D Baran instructed by NSW Compensation Lawyers
Respondent:		Mr P Rickard instructed by Goldbergs Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 21 September 2009 is confirmed.
COSTS:		Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mile Djuric (‘the appellant’) had worked installing wall lining materials for a number of years.  This work is described as gyprocking although not limited to materials of this particular brand.  He and others had contracted with Kia Ceilings Pty Ltd (‘Kia’) to do such work at Bathurst Hospital in early 2007. He began to feel pain in his back about two weeks after commencing this work on 26 April 2007 but he continued to work until 9 July 2007. He has not resumed any form of work since.

2. After ceasing work the appellant consulted a general practitioner, Dr Hanna, who referred him to an orthopaedic specialist, Dr Maniam. Both doctors have recorded the date of injury as 20 March 2007, based, no doubt, on the appellant’s recollection of events. Dr McKechnie, a neurosurgeon, performed a lumbar laminectomy and fusion on 7 August 2009. 

3. On 10 August 2007 the appellant made a claim for workers compensation against Kia which was referred to its insurer, Allianz Australia Workers’ Compensation (NSW) Limited (‘the insurer’).The insurer denied liability to pay compensation on a number of grounds which included a denial that the appellant was a worker or deemed worker under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

4. Accordingly, the appellant brought proceedings, matter number 2001/09, in the Workers Compensation Commission (‘the Commission’) seeking weekly compensation and treatment expenses. These were discontinued on 21 April 2009 for want of sufficient documentary evidence.

5. The current proceedings were commenced on 9 June 2009 and were referred to a Commission Arbitrator for determination.  An arbitration was conducted on 4 September 2009 at which it was conceded on behalf of the appellant that he was not a worker within the definitions in the Workers Compensation Act 1987 (‘the 1987 Act’) and the 1998 Act but it was submitted he was a deemed worker pursuant to Schedule 1 clause 2 of the latter Act. In due course it will be necessary to consider what other concessions were made on…