Ezzell v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Ezzell v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 326

APPLICANT:

Robert Ezzell

FIRST RESPONDENT:

Justin Troy Bucello t/as Homes2nv

SECOND RESPONDENT:

Workers Compensation Nominal Insurer (iCare)

MEMBER:

Kerry Haddock

DATE OF DECISION:

2 September 2021

CATCHWORDS:

WORKERS COMPENSATION - Claim for weekly benefits and medical expenses against uninsured respondent, relying on sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987(1987 Act); Workers Compensation Nominal Insurer joined as second respondent; dispute as to worker/deemed worker not maintained; credit issues with respect to both applicant and first respondent, due to inconsistent statements; lack of contemporaneous evidence of injury; treating general practitioner recorded no history of work-related injury until 16 months after applicant ceased work with the first respondent; inconsistent medical histories; Brines v Westgate Logistics Pty Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Paric v John Holland (Constructions) Pty Ltd and Nguyen v Cosmopolitan Homes applied; Held - no sense of actual persuasion that the applicant sustained injury arising out of or in the course of his employment with the first respondent, due to his inconsistent statements and lack of contemporaneous evidence of injury; award for the first and second respondents.

DETERMINATIONS MADE:

1.     That there is an award for the first respondent.

2.     That there is an award for the second respondent.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Robert Ezzell (Mr Ezzell) was employed by the first respondent, Justin Troy Bucello t/as Homes2nv (Mr Bucello), to perform duties that are the subject of some dispute between them. However, they may broadly be described as labouring duties.

1. Mr Bucello concedes that at all relevant times, he had not obtained a policy of insurance for workers’ compensation. The applicant was therefore entitled to make a claim against the second respondent, Workers Compensation Nominal Insurer (iCare), pursuant to section 140 of the Workers Compensation Act 1987 (the 1987 Act). ICare was named as a respondent to the proceedings, pursuant to section 142B of the 1987 Act.

1. There is no evidence before me of Mr Ezzell’s claim against either respondent. However, iCare issued him with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 July 2020. This notice referred to him having notified iCare on 27 May 2020 that he had sustained a lower back injury on 31 October 2018, whilst employed by Mr Bucello.

2. ICare disputed that the applicant was a worker or a deemed worker; that he had sustained injury arising out of or in the course of his employment with the first respondent; that employment was a substantial contributing factor to the injury; and that he was entitled to weekly benefits or payment of medical expenses, because he did not have a total or partial incapacity for work resulting from an injury, and medical or related treatment was not reasonably necessary as a result of an injury. ICare also asserted that the applicant had failed…