Gurung v Workers Compensation Nominal Insurer (iCare) & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gurung v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 63
APPLICANT:	Man Prasad Gurung
FIRST RESPONDENT:	Q & R Bricklaying Services Pty Ltd
SECOND RESPONDENT:	Labour Master Pty Ltd
THIRD RESPONDENT:	Urban Homes NSW Pty Ltd
FOURTH RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SENIOR MEMBER:	Cameron Burge
DATE OF DECISION:	14 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments; no issue the applicant was a worker for one of the first three respondents, however, the dispute is as to which of them was the employer; applicant gave evidence he was employed by the first respondent, however, the first respondent’s evidence that the second respondent was in fact the employer and the first respondent a mere conduit is compelling; supported as it is by contemporaneous bank statements demonstrating payment by the second respondent to the first respondent; failure by a party to call evidence; the absence of a statement by witnesses employed by the second respondent as to the circumstances at the work site where the applicant was working at the time of his injury, in circumstances where the question of who was in an employment relationship with the applicant and allegations were also made about those witnesses is a significant omission in the case; Held – the applicant was in an employment relationship with the second respondent; alternatively, pursuant to section 20, the second respondent was the principal contractor of the first respondent and therefore liable to pay compensation to the applicant; awards for the first, third and fourth respondents; the applicant was and remains totally incapacitated for the period claimed; second respondent to pay the applicant weekly compensation and section 60 medical and treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his right fibula, cervical, thoracic and lumbar spines, bilateral elbows and a psychological disorder in the course of his employment with the second respondent on 24 April 2021. 2. Leave is granted to amend the Application to Resolve a Dispute to make a claim for a general order for s 60 expenses. 3. At the date of injury, the applicant's pre-injury average weekly earnings were $778.24 per week. 4. Awards for the first, third and fourth respondents. 5. As a result of his injuries, the applicant has been totally incapacitated for employment from 24 September 2022 to date and continuing. 6. The second respondent is to pay the applicant weekly compensation at the rate of $622.59 per week from 24 September 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 7. The second respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

There is no issue that Man Prasad Gurung (the applicant) is an employee of either Q & R Bricklaying (the first respondent), Labour Master Pty Ltd (the second respondent) or Urban Homes NSW Pty Ltd (the third respondent). Unfortunately, there is no agreement as to which of the respondents the applicant was employed by.
There is also no issue that on 24 April 2021, the applicant suffered serious injuries in the course of his employment when a floor on which he was working at a residential building site collapsed, sending him to the ground. The applicant lost consciousness in the fall and suffered a fractured right fibula together with injuries to his cervical, thoracic and lumbar spines, bilateral elbows and an associated psychological condition.
The applicant seeks weekly compensation from 24 September 2022 to date and claims total incapacity. He claims his pre-injury average weekly earnings (PIAWE) were $778.24 per week. Although that figure is not formally accepted by each of the respondents, at the preliminary conference in this matter on 20 October 2023, Directions were issued that absent agreement as to PIAWE, the parties were to lodge and serve competing wages schedules within seven days of the hearing. No wages schedules were lodged by any of the respondents.
The applicant was injured at a residential building site in Marsden Park. At the time of the injury he was working as a labourer. The first respondent is a business owned by Reza Qasimi. Mr Qasimi alleges he was not the employer of the applicant, and instead was himself working as a brick layer for the second respondent and acted as a conduit between it and the applicant in introducing those parties to facilitate the applicant's employment at the worksite.
For its part, the second respondent denied that the applicant was its worker as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The second respondent was a subcontractor of the third respondent, which is a construction company. The third respondent denies liability on the basis the applicant was not its worker. pursuant to s 4 of the 1998 Act.
The matter is further complicated by the applicant not having been paid between the date he commenced employment at the worksite on 21 April 2021 and the date of injury on 24 April 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    for whom the applicant was engaged as a worker at the time of his injury;
(b)    whether liability attaches to either the second or third respondent as principal liable to pay compensation to the applicant as a worker employed by contractors, and
(c)    the applicant's incapacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have 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.
The parties attended a hearing on 19 December 2023. At the hearing, the following appearances were entered:
·        applicant – Mr Hallion of counsel instructed by Mr Pokharel;
·        first respondent – Mr Dehsabzi, solicitor;
·        second respondent – Mr Stiles of counsel instructed by Mr Murray;
·        third respondent – Mr Stiles of counsel instructed by Mr Murray, and
·        fourth respondent – Mr Robison of counsel instructed by Ms Turnbull.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply of the first respondent;
(c)    Reply of the second respondent served under Application to Admit Late Documents (AALD) dated 13 December 2023;
(d)    Reply of the third respondent;
(e)    Reply of the fourth respondent;
(f)    applicant's AALD dated 6 December 2023, and
(g)    fourth respondent’s AALD dated 8 December 2023.

Oral evidence

There was no oral evidence called at the hearing. Mr Dehsabzi on behalf of the first respondent made application to lead oral evidence from Mr Qasimi, the owner of the first respondent. After hearing submissions from each of the parties, I declined that application and no oral evidence was called at the hearing.

FINDINGS AND REASONS

Who employed the applicant

The applicant gave evidence that he was employed by the first respondent. The evidence contained in the applicant's statement concerning his employment is as follows:
“5. Since coming to Australia, I have worked in casual jobs, doing cleaning and sometimes construction work. I would get calls and get offered work through friends of mine.
6.That [24 April 2021] was my first day of working at that site.
7.I was working there that day for Reza Qasimi from Q & R Bricklaying Services Pty Ltd.
8.I called Reza on 20 April 2021, and I asked him if he has some jobs. I told him I have not worked much, and he said for me to come, and he would give me some work and would see how I go, and if he liked me, he might offer me a job.
9.The first time I worked for him was 21 April 2021. I live in Arncliffe, and I would travel by train to Auburn Station and Reza would collect me from there in his car.
10.I worked for Reza on Wednesday and Thursday, 21 and 22 April 2021 at one site. On Friday, 23 April 2021, he drove me to another site for work and then he drove me to the Marsden Park construction site on Saturday, 24 April 2021.
11.Reza did not send me any text messages about the work. He would drop me off at Auburn Station at the end of each day and tell me to be there the next day ready to be picked up again.
12. I was the only person he picked up and drove to the worksites at Marsden Park.
13.Reza said he would pay me $280.00 per day. The work time was not fixed, sometimes we would finish at 3:00 pm, sometimes later at 4:30 pm. I worked for him for three days then had the accident on the fourth day.
14. He did not pay me any money until after I had the accident. But then he only paid me $260.00 for each day of work that I did. He transferred the amount of $1,040.00 into my bank account….
15.Reza only paid me after I called him and told him I needed money, about a week after the accident.
16.Reza did not speak to me about payment of tax. He just asked me if I have the full-time work rights, and I told him that I am allowed to work full-time in Australia according to my Visa.
17.I did not have to provide my own tools, Reza told me everything was provided on the worksite. I had to wear work boots that I owned myself. I was not given a hard hat.
18. I did not have to sign any paperwork at any of the worksites I went to with Reza.
19. The work I had to do was labouring work, to make the mixture for the brick layers, and cleaning and any ad hoc jobs as required and instructed by Reza at the site.
20.Reza would stay on the site all day when I worked there. Reza was the only person who would tell me what work I had to do….
22.Reza did not come to see me in the hospital. I kept calling him, but he did not answer the phone. When he finally answered my phone call, about a week after the accident, I told him I needed money. In that call he told me not to call him anymore. And he also said if I wanted to say anything, I could say that to his lawyer, not to him. He asked me to send him a text with my bank account details, and I did that by using a friend's phone. Then Reza deposited the amount of $1,040.00 into my bank account.
23. After I had the accident, a person called me and told me his name was Frank and he said he had Reza with him, and he wanted to come and see me. I gave him my home address.
24. That person called Frank came to my home on his own and he wanted me to sign a piece of paper. But I did not know what that paper meant so I would not sign it. Then he came to my home again, I cannot remember when, with another person who I did not know, and they were trying to force me to sign this piece of paper again. I became upset and told him I did not know them and did not know what the piece of paper meant so I was not going to sign it. They left and I have not heard from that person called Frank since then.”
It is apparent from the balance of the evidence in the matter that the “Frank” who the applicant is referring to is Mr Frank Nkurunziza, operations manager of the second respondent. That much is made clear from the signed answers to questions put to the second respondent and signed by a director of the second respondent, Dinah Umuriza on 28 June 2022, found at page 43 of the fourth respondent's Reply.
For his part, Mr Qasimi provided the following evidence:
“11. I commenced working with Frank about two weeks prior to the incident which occurred on 24 April 2021 at 11 Gecko Street, Marsden Park, NSW 2765.
12.I worked with Frank as a bricklayer and he would also arrange other labours [sic] including carpenters and concrete men.
13. I never signed any document pertaining to employment agreement with Frank.
14. Claudio Giovnale is a brick layer and friend of Frank who was working with me at 11 Gecko Street, Marsden Park.
15.I confirm that Frank and Claudio are friends for the last 10 years.
16.Claudio Giovnale appointed by Frank as a supervisor who in the past assisted Frank as his work supervisor in relation to other projects.
17. I confirmed that I met Claudio for the first time on 10 April 2021 at Lot 42 Tammarin Rock Avenue, Austral, NSW 2179.
18.I confirmed that I never met Claudio before the abovementioned event when Claudio brought me to this project by Frank.
19. I state that Frank has been organising these jobs individually with every brick layer.
20. I confirmed that I have never been a subcontractor with jobs referred by Frank to me.
21. I confirmed that Frank told me that he had asked Claudio to help me to read the plans. I could not read English.…
24.I confirmed that on Friday, 23 April 2021, I received a call from Frank in which he said words to the effect, ‘Hi Reza, you should go to 11 Gecko Street, Marsden Park to continue the same job.’
25. I said that I am ready to go but are the sand and material ready?
26. Frank said he will contact Claudio.
27. After a while, I received a call from Claudio. He confirmed that Frank called him and organised for us to start the job on 24 April 2021.
28.I confirmed that the incident happened on 24 April 2021…
29. I state that after the incident on 26 April 2021, I received a call from Frank that I should go to the office of Samy Lavish to sign some documents required for WorkCover after the incident.
30.The contain [sic] of the documents was never known to me and no one explained it to me as to the objective of the documents signed by me.
31.During the abovementioned meeting in Samy Lavish’s office, my friend Nazir Khavari, was also present with me.
32. Unfortunately, Nazir Khavari also did not know English to understand the contents of the document.
33. I confirmed that Frank deposited money into my account on 25 April 2021 apparently to show that I was the subcontractor of Claudio, which is not true and I am offended as a result of such behaviour of dishonesty.
34. I confirmed that at the time of this transaction, I was not aware of such a transaction.
35. Frank came to my house with accompanying [sic] by Claudio and told me that I deposited money to your account. You should withdraw the money to pay to Claudio.
36. Frank did not explain to me as the reason of his conduct.
37. I confirm that we all went to the ATM machine, I withdrew the money and handed over to Frank who paid the money to Claudio.
38. The other person working with Claudio at the time of the accident was 'Yam'. Frank told me they needed a labourer and I could find one. I know Yam from other worksites so I called him to come there to work at the site. I did not talk to Yam about payment of any kind. Yam received about $1040 for his work. This money was deposited into my account by Frank.
39.I confirm there had been no any [sic] arrangement that I was an employer or subcontractor of Yam”
In a further statement dated 21 June 2021, Mr Qasimi provided further background as to his relationship with Frank. In that document, Mr Qasimi confirms he signed some documents in the office of Mr Lavish after the applicant’s injury, but did not know what the documents were. Mr Qasimi continued:
“29.I have been informed by my solicitor that the documents were relating to safety issues which have been signed on 26/4/21, two days after the incident were backdated for false and deceptive purpose, in relation to which my solicitor already put Samuel Lavish on notice of engaging in act of Illegality.
30.On 25 April 2021, Frank deposited money into my account. I did not know he did this at this time.
31. He deposited $9,400.00 into my account.”
In that statement, Mr Qasimi also confirms the money transferred by him to the applicant was placed into Mr Qasimi's account by Frank. Mr Qasimi also denied any arrangement that he was an employer of the applicant.
The documents which Mr Qasimi refers to as having been backdated are attached to the first respondent's Reply from page 22 onwards. They consist of a workplace general induction checklist which purports to be dated 12 March 2021.
Astonishingly, no statement has been placed into evidence by the second respondent from Frank Nkurunziza, or indeed from Claudio Giovnale. The only substantive evidence provided by the second respondent is a signed questionnaire by Dinah Umuriza, who was never present at the work site at any relevant time. That questionnaire asserts the applicant was either employed or contracted by the first respondent. It simply asserts there was no arrangement or relationship between the applicant and second respondent.
Dinah Umuriza is identified in the questionnaire as a director of the second respondent. There is no evidence they were either on the site on the day in question or were a party to any arrangements between the first and second respondents or, were there any arrangements, between the second respondent and the applicant.
The absence of a statement from Mr Nkurunziza and Mr Giovnale is, given the nature of the allegations made against them by Mr Qasimi surrounding the payment of monies for forwarding to the applicant and the alleged backdating of induction documents at Mr Nkurunziza's behest, astonishing and bizarre. It is difficult to imagine a more important or startling omission given the nature of the dispute in these proceedings.
No explanation is given for the absence of evidence by either potential witness. Although counsel appropriately noted that when serious allegations are made against a party or person, the test in Briginshaw v Briginshaw (1938) 50 CLR 336 applies in order for a trier of fact to be satisfied of the allegation being made out, in this instance no evidence is put forward by the person or persons accused of the serious accusation to rebut it. Moreover, no explanation is provided as to why the relevant people have not provided a statement to refute the allegations made against them.
This is particularly the case given Mr Qasimi has produced the bank records of Q & R Bricklaying Services Pty Ltd which record, consistent with his statement, the deposit by the second respondent into the first respondent's account of the sum of $9,240.
On balance, I accept Mr Qasimi’s evidence. Although it raises a number of contentious issues as regards the conduct of Mr Nkurunziza in particular, it is corroborated by the bank records showing payment to the first respondent by the second respondent and those monies immediately being transferred, to the extent appropriate, to the applicant. In my view, the evidence discloses Mr Qasimi was a mere conduit between the applicant and the second respondent.
At the hearing, Mr Stiles on behalf of the second respondent conceded that even if the first respondent was found to have been the applicant's employer, the second respondent would be liable to pay compensation as principal, pursuant to s 20 of the 1987 Act. Whilst that concession is appropriate, in my view, the second respondent can best be characterised as the applicant's employer rather than as head contractor.

Although the applicant indicated in his statement he was working for the first respondent, that is not determinative of the issue. In light of the evidence of Mr Qasimi, which I accept, I find the applicant's employer was in fact the second respondent. Mr Qasimi gave evidence, again unchallenged by the second respondent, that there were more than 20 bricklayers on the site, any one of whom could tell a labourer in the position of the applicant what to do. He also stated there was no discussion between he and the applicant as to payment of any kind. Although the payment by Mr Qasimi to the applicant at first blush is indicative of a potential employment relationship between them, the circumstances of the manner in which those monies were provided to Mr Qasimi is unchallenged, and the bank records corroborate his version of events.
Although Mr Stiles submitted the applicant's evidence was unequivocal and there was no suggestion he was employed by the second respondent, the evidence of Mr Qasimi explains the bank transaction. Moreover, Mr Qasimi’s evidence does challenge the applicant’s evidence as to the relationship with the first respondent. His evidence also goes to issues of the circumstances on the site and who provided direction to the persons working there. I accept Mr Robison's submission that Mr Qasimi was in fact obtaining workers for the second respondent. As noted, there is no statement to dispute that evidence from the second respondent.
Additionally, Mr Qasimi’s statement to the investigator found at page 178 of the Application notes it was the second respondent who provided the tools and materials on site, and that Frank would have conversations to instruct him to direct the workers about their tasks and duties. Again, there is no statement from Frank to dispute that evidence.
I accept Mr Robison’s submission that the fact Mr Qasimi collected and dropped off the applicant from the railway station each morning is not indicative of or proof of an employment relationship (or indeed a commercial relationship of any kind). It is equally as indicative of the first respondent being a mere conduit for the second respondent, as I have found.
Accordingly, for the above reasons I find the applicant was a worker of the second respondent. I have specifically made no findings in relation to the issue of deemed worker, as the matter proceeded on the basis the applicant was a worker of one of the first, second or third respondents. Given the position taken by the parties in this matter, the fact-finding exercise concerned the identity of the employer of the applicant, not whether any relationship should be characterised as that of worker or subcontractor. Accordingly, there is no requirement to undertake a detailed fact-finding exercise to determine the nature of the relationship between the applicant and the second respondent.
Alternatively, should I be mistaken in this view and the applicant was in fact employed by the first respondent, in any event, the second respondent concedes it is in those circumstances the head contractor and therefore liable to pay compensation pursuant to s 20 of the 1987 Act.
For these reasons, there will be awards in favour of the first, third and fourth respondents and an award in favour of the applicant against the second respondent.

Capacity for employment

Although some of the respondents placed capacity in dispute, no competing wages schedules were lodged, and the medical evidence in my view clearly demonstrates the applicant was and remains totally incapacitated for employment.
No party at the hearing substantively submitted on the question of incapacity, which given the overwhelming medical evidence in the case is thoroughly appropriate. The uncontested evidence of Dr Morris, psychiatrist, independent medical examiner (IME) for the applicant and that of Dr Singh treating psychologist together with Ms Farooq, treating psychologist, clearly demonstrate the applicant is totally incapacitated for employment and has been since the date of the accident. That evidence goes only to the psychological injury, and does not factor in any impairment which arises from the applicant's physical injuries.
Dr Morris is clear in his uncontested view that the applicant has been unable to work since the incident on 24 April 2021 to date because of the severity of his psychological symptoms of post-traumatic stress disorder and major depressive disorder. He describes the applicant's condition as chronic and severe and unlikely to improve even with further treatment.
I therefore accept the applicant was and remains totally incapacitated for employment.
As noted, there is no contrary submission to the proposition the applicant's PIAWE was $778.24 per week. This being so, the relevant figure pursuant to s 37, which encompasses the period claimed, is $622.59 per week.
Accordingly, the second respondent will be ordered to pay the applicant weekly compensation at the rate of $662.59 per week from 24 September 2022 to date and continuing.
In accordance with my findings on the question of liability, the second respondent will also be ordered to pay the applicant's reasonably necessary medical and treatment expenses.

[2024] NSWPIC 63

14 February 2024