Ezzell v Workers Compensation Nominal Insurer (iCare)

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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…

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Details
Case
[2021] NSWPIC 326
Decision Date

CaseChat Overview and Summary

In the matter of Ezzell v Workers Compensation Nominal Insurer (iCare), the applicant, Ezzell, sought to claim weekly benefits and medical expenses against the Workers Compensation Nominal Insurer (iCare), following an alleged injury sustained during his employment with the first respondent. The application was made under sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). The dispute primarily centred around whether Ezzell had sustained a work-related injury, and if so, whether the first respondent and iCare were liable for compensation. The first respondent was joined in the proceedings as a second respondent.

The primary legal issue the court had to address was whether there was a sense of actual persuasion that Ezzell had sustained an injury in the course of his employment. This involved examining the credibility of Ezzell's statements, the consistency of his medical histories, and the availability of contemporaneous evidence of injury. The court also considered the impact of inconsistent statements made by both Ezzell and the first respondent. It referenced several precedents, including 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, to guide its analysis.

After considering the evidence, the court found that there was insufficient evidence to persuade it that Ezzell sustained an injury in the course of his employment. The applicant's statements were inconsistent, and there was a lack of contemporaneous evidence supporting a work-related injury. Notably, Ezzell's treating general practitioner did not record any history of a work-related injury until 16 months after Ezzell ceased working with the first respondent. Additionally, there were inconsistencies in Ezzell's medical histories. Consequently, the court held that there was no sense of actual persuasion that Ezzell had sustained an injury arising out of or in the course of his employment. The court awarded costs to both the first and second respondents.

ORDERS:
1. That there is an award for the first respondent.
2. That there is an award for the second respondent.

Orders

Orders of the court

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.