Kula Systems Pty Ltd v Workers Compensation Nominal Insurer

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2018] NSWWCCPD 10
APPELLANT:	Kula Systems Pty Ltd
RESPONDENT:	Workers Compensation Nominal Insurer
INSURER:	Uninsured
FILE NUMBER:	A1-6271/16
ARBITRATOR:	Mr T Wardell
DATE OF ARBITRATOR’S DECISION:	10 November 2017
DATE OF APPEAL DECISION:	16 March 2018
SUBJECT MATTER OF DECISION:	Compulsory insurance for employers; exempt employers; s 155AA of the Workers Compensation Act 1987; meaning of the words “wages that will be payable”; meaning of the words “reasonable grounds”; application of George v Rockett [1990] 170 CLR 140; onus of proof
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Novakovic Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s Certificate of Determination dated 10 November 2017 is confirmed. 2.     The matter is remitted to the Arbitrator to determine the remaining issues.

INTRODUCTION

1. This appeal concerns the construction of s 155AA of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns whether the appellant was an “exempt employer” within the meaning of s 155AA and therefore exempt from holding a workers compensation policy of insurance at the time the worker suffered an injury in the course of his employment with the appellant.

BACKGROUND

1. On 13 January 2011, Aleksandar Ognjenovic, the injured worker, commenced working for Kula Systems Pty Ltd, the appellant employer, as a gyprocker. He commenced work at a project in Carrington St, Sydney.

2. On 17 January 2011, the worker was working on a ladder removing ceiling tiles when he fell to the floor. He was told that the knife he was using to remove the ceiling tiles hit a live wire and that he was electrocuted and thrown off the ladder. He experienced severe pain immediately in his right shoulder and pain in his neck and lower back.

3. On 21 January 2011, the worker submitted an Uninsured Liabilities Claim Form, which he later signed on 27 January 2011. He later brought a claim for work injury damages against the appellant and the Workers Compensation Nominal Insurer (Nominal Insurer), because the appellant did not have a policy of insurance at the time of the injury.

4. In February 2011, the appellant, through its only director Mr Steven Cubric, finalised a workers compensation insurance policy for the period 7 February 2011 to 7 February 2012. Mr Cubric had previously completed a workers compensation insurance proposal on 10 January 2011.

5. On 27 March 2015, a Medical Assessment Certificate was issued certifying the worker to have been assessed with an 18% whole person impairment in respect of his cervical spine, lumbar spine and right upper extremity resulting from injury on 17 January 2011.

6. On 31 August 2016, the claim for work injury damages was resolved by a Deed of Release (the Deed), for $225,000. The appellant and Mr Cubric, in his capacity as director, and the Nominal Insurer were signatories to the Deed. The Nominal Insurer paid the worker $225,000…