Jafarian v WildFire Interiors Pty Ltd - [2021] NSWPICPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Jafarian v WildFire Interiors Pty Ltd [2021] NSWPICPD 24
APPELLANT:	Masoud Jafarian
RESPONDENT:	WildFire Interiors Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-4845/20
SENIOR MEMBER:	Mr G Capel
DATE OF MEMBER’S DECISION:	8 January 2021
DATE OF APPEAL DECISION:	4 August 2021
CATCHWORDS:	WORKERS COMPENSATION – worker; whether applicant carried on his own business or whether he was a worker; Malivanek v Ring Group Pty Limited [2014] NSWWCCPD 4 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 discussed and applied; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; requirement to show error on appeal
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Turner Freeman Lawyers
Respondent:
Mr P Stockley, counsel
Lee Legal Group
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 8 January 2021 is confirmed.

INTRODUCTION

The appellant, Masoud Jafarian, alleged that on 15 February 2018 in the course of employment with the respondent, Wildfire Interiors Pty Limited, he fell from a ladder and sustained injury to the cervical and lumbar spine.
He filed an Application to Resolve a Dispute (ARD), in which he claimed medical expenses in the sum of $19,629.70 being the estimated cost of an L5/S1 anterior lumbar interbody fusion.
The insurer declined to authorise the surgery on the grounds that the appellant was not a “worker” within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The ARD submitted that the appellant was a deemed worker, however, the arbitration was confined to a claim by the appellant that he was a “worker”.
The arbitration was limited to the following issues:[1]
(a) whether the appellant was a worker in the employ of the respondent on 15February 2018 – s 4 of the 1998 Act;
(b) the respondent’s liability in respect of the payment of medical expenses – s 60 of the Workers Compensation Act 1987 (the 1987 Act), and
(c) whether the surgery proposed by Dr Khong, namely an L5/S1 fusion, and associated expenses is reasonably necessary treatment as a result of the injury arising out of or in the course of the appellant’s employment on 15 February 2018 – s 60 of the 1987 Act.
[1] Jafarian v Wildfire Interiors Pty Ltd [2021] NSWWCC 12 (reasons), [11].
In the event the issues for determination were further refined by the parties as follows:
“It was agreed that submissions would be confined to ‘worker’ issue, and in the event that the [appellant] was successful, the matter would be allocated a telephone conference to deal with the remaining issues.”[2]
[2] Reasons, [12].
The matter came on for arbitration on 22 December 2020.

THE SENIOR ARBITRATOR’S STATEMENT OF REASONS

The facts as found by the Senior Arbitrator are not in dispute. The following is taken from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICPD 24
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the case of Jafarian v WildFire Interiors Pty Ltd, the applicant sought to establish a worker's compensation claim against the respondent, who was his employer. The applicant argued that he was entitled to compensation under the relevant Act. The respondent contended that the applicant was not a worker for the purposes of the Act, but rather an independent contractor. The dispute was heard in the New South Wales Civil and Administrative Tribunal. The central issue before the tribunal was whether the applicant was a worker within the meaning of the Workplace Injury Management and Workers Compensation Act 1998. This required determining whether the applicant was carrying on his own business or was a worker for the respondent.

The tribunal considered the relevant legal principles, including the case of Malivanek v Ring Group Pty Limited, which outlined the criteria for determining whether an individual is a worker. The tribunal also referred to On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation, which provided guidance on the application of these criteria. The tribunal found that the applicant was carrying on his own business and was therefore not a worker within the meaning of the Act. The applicant appealed this decision, arguing that the tribunal had erred in its application of the law. However, the appeal was dismissed as the tribunal's decision was not shown to be in error. The tribunal's analysis of the relevant criteria and its application to the facts of the case were found to be sound. The applicant was not entitled to compensation under the Act.

Orders