Malivanek v Ring Group Pty Ltd

[2014] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4
APPELLANT:	Christopher Malivanek
RESPONDENT:	Ring Group Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6401/12
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:	8 October 2013
DATE OF APPEAL HEARING:	20 January 2014
DATE OF APPEAL DECISION:	29 January 2014
SUBJECT MATTER OF DECISION:	Worker; deemed worker; cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998; whether applicant regularly carried on a trade or business; additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; non-compliance with Practice Direction No 6; general approach to whether an applicant is a worker; the “ultimate question” in worker cases; principles in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 and Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 discussed
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Ms L Goodman, instructed by Owen Hodge Lawyers
Respondent:	Mr L Morgan, instructed by Moray and Agnew
ORDERS MADE ON APPEAL:	1.       Paragraphs 2 and 3 of the Certificate of Determination of 8 October 2013 are revoked and the following orders made in their place: “2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment resulting from the injury to the applicant worker’s lumbar spine, upper left extremity and both lower extremities. 3. The applicant worker’s claims for weekly compensation, and for hospital and medical expenses, are remitted to a different Arbitrator for determination. 4. The respondent employer is to pay the applicant worker’s costs of the arbitration, which is certified as complex with an uplift of 30 per cent.” 2.       The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST. Costs of the second arbitration are to follow the outcome of that arbitration and are in addition to the costs of the first arbitration.

INTRODUCTION

1. The appellant worker, Christopher Malivanek, is a carpenter. In March 2007, Alan Ring, the managing director of the respondent, Ring Group Pty Ltd, engaged (to use a neutral term) Mr Malivanek to assist another person (Grant Tully) install a skylight at a house in Laurel Avenue, Willoughby (the Willoughby property). While performing that work on 22 March 2007, the first day of a one-day job, Mr Malivanek fell from the roof and suffered serious injuries. 

2. The only issue argued before the Arbitrator, and on appeal, is whether, at the time of the accident, Mr Malivanek was a worker or a deemed worker under the terms of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Arbitrator held that he was neither a worker nor a deemed worker and made an award for the respondent. Mr Malivanek has appealed both findings.

FACTUAL BACKGROUND

1. To understand this…