Mandic v Inkline Painting and Maintenance Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mandic v Inkline Painting and Maintenance Pty Ltd [2021] NSWPIC 230
APPLICANT:	Miroslav Mandic
RESPONDENT:	Inkline Painting and Maintenance Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	7 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation: applicant fractured wrist in a fall from his ladder where he had been engaged in painting work for the respondent; liability was denied on the basis that no statutory notice or claim had been made; that the applicant was not a worker or a deemed worker; that whilst the wrist injury was not denied, the related claims for injury and/or consequential condition to the lumbar spine and to the ear, nose, throat and related structures were; Held- statutory notice had been given, as the respondent's director visited the applicant in hospital, and paid him cash within six months to reimburse medical expenses incurred; the applicant was a worker; Malivanek v Ring Group applied; related claims were all rejected; the remaining claims did not reach the section 66 threshold; award for the respondent.
DETERMINATIONS MADE:	The Commission finds: 1. Statutory notice of injury and notice of claim were given. 2. The applicant was employed by the respondent under a contract of service. 3. The applicant was also a deemed worker pursuant to clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998. 4. The applicant was injured on 13 May 2015 when he fractured his left wrist and received consequential scarring. 5. The assessments by Dr Gehr for injury to the applicant’s left wrist and scarring do not reach the threshold of over 10% for payment of lump sum compensation pursuant to s 66(1) of the Workers Compensation Act 1987. 6. The applicant did not injure, or suffer a consequential condition to his lumbar spine as a result of the injury of 13 May 2015. 7. The applicant did not injure, or suffer a consequential condition to his ear, nose, throat and related structures as a result of the injury of 13 May 2015.
ORDERS MADE:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Miroslav Mandic, the applicant, brings an action for lump sum compensation against Inkline Painting and Maintenance Pty Ltd, the respondent, with regard to injuries claimed to the lumbar spine, the left upper extremity, scarring and ear, nose, throat and related structures.
At the commencement of the hearing, by consent, I amended the date of injury claimed under “Injury Details” and “Permanent Impairment” in the Application to Resolve a Dispute (ARD) to delete the date “8/05/2018” and substitute therefor “13 May 2015”.
Dispute notices were issued on 28 May 2020 and 18 September 2020.
The ARD and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) is the applicant disentitled to compensation by virtue of the provisions of s 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b) is the applicant a worker, and

(c) were the injuries to the lumbar spine and the ear, nose, throat and related structures were related to the accepted injury to the left upper extremity (wrist).

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of conciliation and arbitration hearing on 19 April 2021. Mr Gary Koutzoumis of Koutzoumis Lawyers instructed Mr Richard Petrie of counsel for the applicant. Mr Danny Khoshaba and Ms Shabnab Thompson from Messrs Bartier Perry Lawyers instructing Ms Kavita Balendra for the respondent. Ms Kelly Ruhl appeared from EML and Ms Zdenka Karakas attended as interpreter. 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents and annexures (ALD) dated 13 April 2021 from the respondent, and
(d)    ALD and annexures tendered during the hearing containing statement from Investigator Du Toit dated 14 April 2021.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

EVIDENCE

Mr Mandic was born in Croatia in 1955 and moved to Australia in 1988. He made two statements dated 23 January 2018 and 14 August 2020. In his statement of 14 August 2020 he related that he had been a painter since just after he came to Australia, noting that he obtained an ABN in 2000.
Mr Mandic said[1]:
“The painting work that I have done has all been for various painting contractors. The length of the painting jobs has varied from a few weeks up to 2 years. Some [painting] contractors engaged me as an employee, deducting tax payments, whilst others purportedly engaged me as a subcontractor.”
[1] ARD page 1 at [4].
Mr Mandic said that he had never advertised for work and had never employed anybody. He said that he had worked for the respondent a couple of times over the years and in early April 2015 rang “Jerry Wagg” (Jerry Veg) looking for work. Mr Veg met him at a building site which was an old church in Fleet Street, Parramatta the next morning at 6:30 am to start at 7 am.
The church was being renovated to be turned into a Museum. Mr Mandic said that Mr Veg advised that the job would last two to three months.
When he arrived on site, Mr Mandic spoke to the site manager and was introduced to another painter who worked for the respondent. He said[2]:
“Thereafter, I worked under the direction of such painter.”
[2] ARD page 1 at [8].
He understood the job was available for two or three months. He said[3]:
“In relation to my conditions of work, the following was the case:
(a)     I was told the hours that I had to work, which were 7.00 a.m. to 3.00 p.m.;
(b)     I was paid an hourly rate. No tax was deducted;
(c)     In performing the work, I worked under the direction of the painter employed by lnkline Paining and Maintenance. He told me where I had to work and what I had to do.
(d)     I did not supply any tools or materials. These were all supplied by lnkline Painting and Maintenance.”
[3] ARD page 1 at [10.]
Mr Jerry Veg was the Director of the respondent company. He made a statement on 11 September 2018.[4] He said that Mr Mandic was known to him, as he would “work for me” when Mr Mandic was not engaged by a large company “Bigway Interiors.” Mr Veg said that Mr Mandic had his own ABN number as a sole trader.
[4] Reply page 8.
The system employed for payment was that Mr Veg would be given a handwritten tax invoice with the ABN number on it which was addressed to Mr Veg’s company. Mr Veg said:
“[The invoice] also had a description of the works as directed and also confirms the date he was paid…”
Mr Veg said that Mr Mandic issued a total of six invoices during the time up to when he was injured. Mr Veg said that he had a contract with Mr Mandic “a bit earlier” and that Mr Mandic would “come and go.” He would call and ask for work and Mr Veg would try to “help him out for short periods.”
Four of the six invoices were lodged by the respondent.[5] They were written by hand on a templated form. The ABN was completed by Mr Mandic, and three out of the four described the work completed “as directed”. All four contained the words “no GST.”
[5] Reply from page 143.
Mr Veg said that he was not sure whether Mr Mandic was working for Big Ways Interiors at the same time as he was working for Mr Veg. He said that Mr Mandic was not required to wear a uniform, but was given safety vests. Mr Mandic completed an induction program under the auspices of the head contractor, Cross Grove Pty Ltd. Mr Mandic was an experienced painter although he was taught to paint some walls which he was not sure about. Mr Mandic’s hours of work were “open to him,” Mr Veg said, noting that the site was open from 6:30 AM to 5 PM, and that Mr Mandic could “go at any time.”
Mr Veg stated that Mr Mandic was “not generally supervised” although there was an on-site manager present. Mr Veg said that he was “in and out of there”, although at the start of the job he was there for the majority of the time. He said that once “the boys” knew what they had to do, Mr Veg was able to leave them to complete the work. Mr Veg said that he supplied only the paint to Mr Mandic. Mr Veg said:
“26. The builder did provide Personal Protective Equipment (PPEJ. I supplied gloves and everything else was supplied by the main builder (hard hats).
27. ... [Mr Mandic] had his own tools of trade. I did not supply any tools of trade for this job. He was on brushes all of the time and he had his own brushes.”
To return to Mr Mandic’s statement, Mr Mandic then described his accident in which he fell off a ladder whilst ascending it. He said[6]:
“As I was ascending the ladder carrying the can of paint in my right hand, the foot of the ladder slid which caused me to lose my balance and I fell, injuring my left arm and wrist and my lower back.”
[6] ARD page 2 at [11].
In his earlier statement of 23 January 2018 his description was:[7]
“As I was ascending the ladder carrying the can of paint in my right hand, the foot of the ladder slid which caused me to lose my balance and I fell, injuring my left arm and wrist.”
[7] ARD page 5 at [10].
Mr Mandic said the supervisor employed by the head contractor drove him to Westmead Hospital where Mr Mandic was told his distal left radius was fractured, and he underwent surgery with the insertion of plates and screws. Mr Mandic was eventually discharged with his arm in plaster on 15 May 2015.
Mr Veg in his statement said that he was notified of the accident by the supervisor “Tony” who had just taken Mr Mandic to Westmead Hospital. Mr Veg went straight to the hospital where Mr Mandic told him that he had slipped on the last run of the ladder as he was coming down. Mr Veg was suspicious of Mr Mandic’s explanation as there had been no paint spill.
Mr Veg stayed at the hospital a while, and visited Mr Mandic the next day. He gave Mr Mandic a cheque for his work, as he was aware that Mr Mandic was shortly going to Croatia.
Mr Veg said that when Mr Mandic returned from Croatia in September 2015 he contacted Mr Veg saying that it had cost him $700 to remove the cast. Mr Veg said at [35]:
“… I asked him where he went, to Switzerland? This was just a fracture. I said to him prior to this to tell me, I paid this and gave him $700 cash. This was at King’s Cross having coffee. I took out a wage from myself and gave this to him. This was when I thought he would not be coming back to contract for me.”
Mr Veg said that he then took legal advice and eventually contacted the investigator retained by the insurer. Mr Veg said that Mr Mandic never mentioned a back injury to him, including when Mr Mandic invited him to lunch in Croatia. Mr Veg thought that the claim was fraudulent, an accusation that he repeated in the “Record of Conversation” between himself and the investigator on 14 April 2021.[8]
[8] ALD dated 14 April 2021.
Again returning to Mr Mandic’s statement, shortly after discharge from Westmead Hospital, he had to go to Croatia because his father became ill. It was whilst he was there that his plaster and sutures were removed at Split Hospital.
He returned to Australia in August 2015 and continued seeing his usual GP, Dr Oreb at Newton. In his earlier statement of 23 January 2018 Mr Mandic said that Dr Oreb did not “really give me any treatment.” Mr Mandic said at [16] that he had previously suffered from depression and that after the subject injury he found that he was depressed again, and that Dr Oreb prescribed medication in that regard.
In his statement of 14 August 2020 he said[9]:
“After suffering my injuries, I had ongoing pain in my left arm, wrist and hand as well as ongoing lower back pain. I also started to suffer from depression after my accident. Some years before my accident I had suffered from depression, but it had settled. After I suffered my injuries such depression returned.”
[9] ARD page 2 at [17].
He said that on 24 May 2016 Dr Oreb prescribed Lexapro and antidepressant medication. Mr Mandic said that he started to put on weight after his injury. He said[10]:
“I think the cause of this was twofold. Firstly, because of my ongoing symptoms, my physical activity was restricted. I also found that when I was depressed I was overeating.”

[10] ARD page 2 at [19].

He said at the time of the injuries, he weighed about 80 kgs but at the time of the statement weight about 95 kgs and continued to gradually put on weight.
Mr Mandic said that as he continued to put on weight, he had increased difficulty in sleeping. He was told that he was snoring loudly by a lady with whom he shared the house. He said that he started waking up in the middle of the night, gasping for breath.
He was referred to the Woolcock Institute for testing on 3 August 2019. It was suggested that he should use a CPAP machine, but he could not afford it.
Dr Oreb’s notes were lodged. An entry dated 4 June 1998 noted that Mr Mandic was suffering from a “chronic lumbar spine injury” and “depression”.[11] On 22 November 2016 the note concerned a “long [history] of back pain. Painful lumbar spine.” On 16 January 2017 the entry referred to “stressed & weight,” showing that Mr Mandic weighed 92.5kg. On 24 July 2017 another entry referred, amongst other things, to “chronic back pain.”
[11] ARD page 80.
The first entry I was referred to regarding sleep difficulties was for “snoring ? OSA” on 11 August 2017. On 5 October 2017 a further entry noted “mood low” and “not sleeping.” On 6 November 2017 Dr Oreb noted “Mood low”, “fatigue” “insomnia” and “not sleeping.”
On 4 December 2017 the entry noted that Mr Mandic was awaiting surgery on an unrelated sensitive problem of a personal nature that had been the subject of comment since at least October 2016. Mr Mandic had expressed stress and depression associated with this unrelated condition. It was not suggested in Dr Oreb’s notes that the cause for any of these problems was the subject injury.
The first mention of the subject injury in Dr Oreb’s notes appeared in the notes lodged by the respondent, following the issue of Directions to Produce. Oddly, the entry noting the fractured left wrist and treatment at Westmead Hospital, whilst being dated “30.6.15” was situated between two other entries, the first bearing date “4.6.98,” and the second, “5.6.98.” The entries were in handwriting.
With regard to the injury itself, I note that Dr Oreb wrote a certificate dated 14 September 2019 recording that Mr Mandic suffered “a work place injury in 2015 i.e. fracture (l) wrist and left shoulder injury.” Dr Oreb said that “as a result” Mr Mandic had “ongoing pain which has resulted in Depression.”[12] He also said:
“As a result of his depression & chronic pain he has significant weight gain and this has resulted in
-     severe obstructive sleep [apnoea]
-     seen at Woolcock institution ….
-     Hypertension.”
[12] ARD page 40.
The notes from Westmead Hospital were also lodged. They showed that Mr Mandic was admitted on 13 May 2015 and discharged on 15 May 2015. The only complaint noted was of pain to the fractured left wrist.[13]
[13] ARD page 43.
Mr Mandic relied on the report of a psychologist, Dr Zoran Protulipac dated 10 November 2016.[14] This confirmed that Mr Mandic was unable to continue his employment as a painter. Dr Protulipac said:
“…he suffers from a range of physical ailments, organic illnesses and psychological conditions which were left untreated for a number of years. In particular, he suffers from injuries to his lower back, shoulders and hands. He has undergone repeated surgeries to his hands. He was diagnosed with hypertension, tinnitus, chronic migraines, GORD, IBS and chronic heart condition.”
[14] ARD page 104.
Dr Protulipac did not suggest that any of these conditions had been caused by the subject injury.
A report from Dr George P Hamor, Respiratory & Sleep Physician dated 6 December 2019 was also relied on by the applicant. Dr Hamor took a history of the subject injury which included an allegation that Mr Mandic had injured his lower back as a result of that incident. He reported that Mr Mandic had “suffered lower back pain as a result of the fall.” Dr Hamor noted that Mr Mandic had not worked since the accident and that because of his symptoms and poor motivation he had not participated in any meaningful activity. This in turn had resulted in a weight gain of about 10 Kg and the onset of daytime fatigue and somnolence. He noted that Mr Mandic’s history had been “very well documented by Dr Gehr.”
Dr Hamor reported that sleep study had been organised in August 2019 and that Mr Mandic had been found to suffer from severe of destructive sleep apnoea. Dr Hamor said:
“I am unable to comment on any disability but there is no question that there is a strong relation between the accident and the presence of severe of destructive sleep apnoea which is related to weight gain, which in turn is related to his inactivity.”
Mr Mandic relied on the medico-legal report of Dr Gehr dated 27 May 2019.[15] Dr Gehr acknowledged receipt of a number of documents. Amongst them was an acknowledgement that the clinical notes from Dr Oreb showed a long history of back pain, and the report that I have discussed from Dr Protulipac dated 10 November 2016. Dr Gehr reproduced a large amount of Dr Protulipac’s report in his acknowledgement.
[15] ARD page 19.
Notwithstanding his acknowledgement of Mr Mandic’s long history of back pain, Dr Gehr recorded that there had been “no previous problem” with the lumbar spine. Dr Gehr took a history that at the time of the accident, Mr Mandic experienced lumbar spine pain. Dr Gehr examined Mr Mandic, but did not have available any imaging studies of the lumbar spine.
Dr Gehr said:[16]
“This is a 64-year-old man, right-handed, fractured his left wrist, work-related accident, 9/5/2015 requiring internal fixation, left with residual pain and decreased range of motion of the left wrist; also suffered an injury to his lumbar spine, left with soft tissue injury pain and dysmetria.
Diagnoses
1. Left wrist fracture requiring internal fixation with residual pain and decreased
range of motion.
2. Lumbar spine soft tissue injury with dysmetria.
3. Long-standing Dupuytrens both hands, not related to his injury.”
[16] ARD page 25/26.
The respondent did not rely on any medical opinion.

SUBMISSIONS

Ms Balendra submitted that Mr Mandic was disentitled from bringing an action by virtue of the provisions of ss 254 and 261 of the 1998 Act. She submitted that no claim was made until 3 July 2018 and more importantly, no attempt had been made by Mr Mandic to explain why this delay had occurred. She submitted that although there were statutory exceptions provided in the legislation, none had been addressed in Mr Mandic’s statements.
Ms Balendra submitted that the notice constituted by Mr Veg’s attendance at hospital did not satisfy the provisions of s 261(3). This was particularly so where the respondent was not aware that it was being named as employer, rather than as a contractor.
Ms Balendra submitted that the indicia necessary to establish an employment relationship have not been proven. The nature of Mr Mandic’s business as described in his own statement indicated that he operated as a subcontractor, working for various contractors when he was not employed by his main source of income, Bigway Interiors.

She submitted that the method of payment was indicative of an agreement that there would be a contractor/sub-contractor relationship, as Mr Mandic was paid when he presented his invoice. Those invoices were in the evidence and demonstrated that he always quoted his ABN and that no tax was deducted.
Ms Balendra submitted the words “as directed” were of no significance in the context of the whole of the evidence. There was also no significance in the handwritten words “no GST” on the invoices because the Australian Government “ABN Lookup” showed that Mr Mandic was not registered for GST as at 11 September 2018.[17]
[17] Reply page 148.
Ms Balendra submitted that I would accept Mr Veg’s evidence that he did not provide any tools or uniforms, and that such material that was supplied to Mr Mandic was in fact supplied by the head contractor at the job.
Ms Balendra submitted that Mr Mandic was free to come and go as he pleased, as stated by Mr Veg. There was a supervisor on site that pointed him in the right direction but there was no level of supervision that would indicate that control was being exercised over Mr Mandic’s movements by Mr Veg’s business.
Ms Balendra said that there was no question that Mr Mandic had injured himself, as the hospital notes showed that he had fractured his wrist on the amended date of injury. However, she said there was no evidence that satisfied Mr Mandic’s onus of proof that the claims regarding the lumbar spine or the sleep apnoea had any relationship at all to the subject injury.
Mr Petrie responded that s 254 of the 1998 Act had been complied with, as Mr Veg had visited Mr Mandic in hospital. He further submitted that the meeting at which, over coffee, Mr Veg had given Mr Mandic $700 to pay for the cost of removing the plaster from his arm also constituted the making of a claim, constituted compliance with s 261 of the 1998 Act.
Mr Petrie submitted that the invoices demonstrated his client to be a worker, contrary to Ms Balendra’s submissions. The words “as directed” in the body of the document were a clear indication that the respondent had that measure of control over the applicant’s actions that would indicate he was an employee.
Mr Petrie also said that the words “no GST” at the bottom of each invoice was also indicative that Mr Mandic was not running a business.
Mr Petrie submitted that the admission by Mr Veg that the respondent provided the paint, was a clear indication of an employee/employer relationship as it was common place that painting contractors would also provide the paint.
Mr Petrie said that I would accept Mr Mandic’s assertion that he did not supply any tools or material as it was more in keeping with the nature of the arrangement.
Mr Petrie submitted that I would accept that there was that degree of supervision that indicated an employment arrangement, not only by the words on the invoice but by the fact that there was direction given, even on the respondent’s evidence.
Mr Petrie submitted that the clinical notes, although somewhat sparse, nonetheless indicated a gradual onset of Mr Mandic’s sleeping disorder as a result of the weight he gained through not being able to work.

DISCUSSION
Notice and claim

Section 254 of the 1998 Act provides relevantly:

“(1)    Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(1)    The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(2)    Each of the following constitutes special circumstances-
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) …
(e)…
(f) the injury has been treated in a first aid room at the place of work,….”

That Mr Veg was aware of the accident was agreed by him. He went to the hospital. That awareness was sufficient to put him on notice that a person engaged by him had injured himself. Mr Veg’s subjective view as to Mr Mandic’s contract was nothing to the point, as Mr Veg qualifies as “the person against whom the proceedings are taken” in s 254(3)(c).
Section 261 of the 1998 Act provides relevantly:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.

(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.

(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either-

(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”

The payment of the $700 over coffee in King’s Cross satisfies the provisions of subs (3). On Mr Veg’s own account, he paid the money as recompense for the medical treatment received by Mr Mandic in the hospital at Split. Mr Mandic clearly therefore made a claim regarding his hospital and medical expenses and, notwithstanding that this claim is for lump-sum benefits pursuant to s 66 of the 1987 Act, that transaction establishes that a claim was made in accordance with the Act. Mr Veg’s evidence was that this payment occurred after Mr Mandic returned from Croatia in September 2015, and I infer therefore that this payment was made within the first six months of the subject incident. There was accordingly no need for any explanation to be made, as was submitted by Ms Balendra.

The contract between the parties

To turn to the question of the nature of the relationship between the respondent and Mr Mandic, there is very little dispute between the parties as to what occurred, and both counsel sought to put different constructions on much the same evidence.

A great deal of authority exists as to the construction of evidence with regard to the question of whether a person is a worker or an independent contractor. This authority was considered by DP Roche in Malivanek v Ring Group Pty Ltd[18]. At [183] the learned DP said:
“As Bromberg J explained in On Call Interpreters,[19] while the majority in Hollis[20]applied a multi-factorial approach, they provided a ‘focal point around which relevant indicia can be examined’. His Honour added, at [207]:
‘That focal point has been elsewhere expressed as the ‘ultimate question’ posed by the totality approach: Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at [34] (referred was that to with approval by Crispin P and Gray J in Yaraka Holdings Pty Ltd v Gilgevic(2006) 149 IR 339 at [303]); and see Sappideen C, O’Grady P and Warburton G, Macken’s Law of Employment, (6th ed, Lawbook Co., 2009), at [2.80]. As Wilson and Dawson J in Stevens v Brodribb Sawmilling Co Pty Ltd[1986] HCA 1; (1986) 160 CLR 16 observed at 35 ‘the ultimate question’ was posed by Windeyer J in Marshall v Whittaker’s Building Supply Co Ltd[1963] HCA 26; (1963) 109 CLR 210 at 217, in a passage which the majority in Hollis strongly endorsed at [40]. The majority in Hollis (citing Windeyer J) said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee: Hollis [39], [40], [47], and [57] and see Sweeney v Boylan Nominees Pty Ltd[2006] HCA 19; (2006) 226 CLR 161 at [30]- [32]. The English courts have taken a similar approach. There the ‘entrepreneur test’ seems to be the dominating feature: Selwyn NM, Laws of Employment (2006) Oxford University Press at [2.34].
[208] Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee’.”
(emphasis added)
[18] [2014] NSW WCCPD 4 (Malivanek).
[19] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)[2011] FCA 366.
[20] Hollis v Vabu Pty Ltd[2001] HCA 44; 207 CLR 21.
The learned DP said at [184]:

“…. A consideration and balancing of the indicia is critical, but the focal point around which one examines the indicia is whether the applicant is working in the business of another, or in the business of the applicant.”

Adopting the dicta of Bromberg J in On Call Interpreters, the authorities now provide that the ultimate question, or the focal point, is rooted fundamentally in the question as to whether a person is providing services to another business as part of his own business or whether he was working in that other business. It is the ‘entrepreneur test’ as Bromberg J said that poses and answers the question whether a person is an employee or an independent contractor.”

I now turn to consider the indicia present in this case.

Control

As to the question of control I think it more probable that Mr Mandic’s account is correct. He said that his hours were 7 AM to 3 PM, and that he worked under the supervision of a painter that told him where to work and what he had to do. I found the evidence of Mr Veg to be underscored by some animus against Mr Mandic, whom Mr Veg accused of fraudulent behaviour, and by whom Mr Veg felt let down. Whether the supervision came from the head contractor, Cosgrove Pty Ltd, or the respondent, is of little moment. I accept that Mr Mandic’s work was between set hours, and under supervision by the respondent either directly or through the agency of the head contractor. Further, the indication on the invoices I have referred to that the work was “as directed” also indicated that Mr Mandic worked under the control of the respondent.

Payment method

The invoices supplied by Mr Mandic were relied on by both counsel to demonstrate the alternative interpretations that they were capable of. That Mr Mandic had his own ABN number was indeed capable of indicating an intention that the contract was not an employment contract. However he had no business name and was not registered for GST. These two factors were an indication that Mr Mandic was not running a business, as was the notation “no GST.”
It does not appear that there was any deduction made for income tax purposes. This again is capable of an interpretation for either contention. It is not unusual for workers in this type of activity to work on an invoice basis, which sometimes involves a payment of cash. Mr Veg’s repayment of Mr Mandic’s medical expenses incurred whilst in Croatia is an indication of such an attitude.
Mr Mandic’s labour was of an itinerant nature, and the absence of such entitlements as holiday pay, sick leave or annual leave which one finds in more structured employment does not necessarily lead to a conclusion that the arrangement was a contract for services.

Materials

There was also some conflict as to the supply of materials. Mr Mandic said that all tools and materials were supplied by the respondent, whereas Mr Veg said that he only supplied the paint. For the reasons given above, I prefer Mr Mandic’s evidence, as I am not persuaded that I can accept Mr Veg’s statement as being dispassionate and objective.

The focal point

The resolution of the worker issue depends on a subjective analysis of the applicant’s business practices prior to his injury. On Call Interpreters stressed the importance of what may be called an entrepreneurial aspect, in conducting the usual analysis as to the relevant indicia. Mr Mandic’s work history did not show that aspect. At the time of the subject injury Mr Mandic had worked as a painter wherever he could find work. He has been doing that work since his arrival in Australia in 1988. He cannot speak English well, and required the services of an interpreter in formal situations.
At the time of Mr Veg’s statement, Mr Mandic worked mainly for Bigway Interiors, but he had worked for Mr Veg before, and he probably worked in the same fashion for other people. Mr Mandic did not have a business name other than his own, he did not advertise, nor he did employ other workers. These matters lead to the conclusion that Mr Mandic was working in Mr Veg’s business, supplying labour to perform the painting jobs at the worksite.
Accordingly, I am satisfied that Mr Mandic was engaged in contract of employment with the respondent.

Deemed worker

I am also satisfied that Mr Mandic was a deemed worker in any event pursuant to clause 2 of Schedule 1 to the 1998 Act, which provides:
“2 Other contractors (cf former Sch 1 cl 2)
(1) Where a contract-
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Mr Mandic performed work exceeding $10 in value, he did not sublet or employ any other worker, and although he had an ABN number, he had no business name and he did not carry on a trade or business. His invoices were hand written and not in a form that suggested he was carrying on a business.

The lump sum claim

To turn now to the claims made, it is firstly apparent that Mr Mandic has a complex history of illness and chronic pain that stretches back well before the subject incident. In that regard I accept the opinion of Mr Mandic’s psychologist. Dr Protulipac, as it tends to confirm the contents of Dr Oreb’s notes.
Dr Protulipac stated that Mr Mandic had suffered from a range of physical ailments that were largely left untreated for a number of years. The clinical notes support that opinion, as they show depression, chronic back pain, and surgeries to Mr Mandic’s hands for conditions such as Dupuytren’s contracture. He also suffers from hypertension, tinnitus, gastro-oesophageal reflux disease (GORD), irritable bowel syndrome (IBS) and a chronic heart condition. I also accept that Mr Mandic suffers from psychological difficulties as described by Dr Protulipac.

Mr Mandic’s claim is for lump sum compensation with regard to the lumbar spine, the left upper extremity, TEMSKI/scarring and the ear, nose, throat and related structures. The claim for injury to the left upper extremity and scarring is not in dispute, but the other claims are resisted.

The lumbar spine

The claim regarding the lumbar spine I reject. Dr Gehr’s opinion made plain that Mr Mandic’s whole person impairment was caused by an injury to the lumbar spine at the time that he fell from the ladder, fracturing his wrist. He did not suggest either that Mr Mandic had aggravated his pre-existing condition, for which there was ample evidence in Dr Oreb’s notes, neither did Dr Gehr suggest that the condition was consequential.
The first suggestion of any such connection was that made by Dr Gehr in his report of 27 May 2019. As I related when considering Mr Mandic’s two statements, there was no mention of any back injury in the first statement of 23 January 2018. At that time over 2½ years had passed since the subject incident and no explanation was made as to why this omission had occurred. Further, the clinical notes from Westmead Hospital made no mention of any involvement of the lumbar spine at all. Accordingly the claim relating to the lumbar spine is rejected.

Ear, nose, throat and related structures

Similarly, whilst Mr Mandic went into some detail in his later statement about his weight gain and how it had increased his difficulty in sleeping, no mention of that condition was made in his first statement of 23 January 2018. Dr Hamor, who found there to be a causal link with the subject incident of 13 May 2015, did not indicate when he first treated the applicant for his sleep disorder, but I assume that it was some time in 2019, as his report was dated 6 December 2019. Dr Oreb mentioned the connection in his certificate of 14 September 2019 after Mr Mandic had undergone testing at the Woolcock Institute on 3 August 2019. Although Dr Oreb in his certificate suggested:
(a)    that Mr Mandic’s ongoing chronic pain was a direct result of the wrist fracture,
(b)    that the chronic pain had caused Mr Mandic to suffer Depression,
(c)    that the Depression and chronic pain had caused a significant weight gain to Mr Mandic.
- his conclusion that Mr Mandic’s severe obstructive sleep apnoea and hypertension was the result of, or consequential to, the 13 May 2015 incident I have strong reservations about.
In the first place, no explanation was given as to why these symptoms, if they had been caused by the subject incident, were not referred to in Mr Mandic’s first statement of 23 January 2018. The entry in Dr Oreb’s notes of 16 January 2017 indicated that Mr Mandic was 92.5 kg, and that he was stressed. Obstructive sleep apnoea was suspected by Dr Oreb in a note dated 11 August 2017, and this problem was the subject of regular entries thereafter. As I noted when discussing Dr Oreb’s evidence, there was no suggestion in his clinical notes that there was any link with the subject incident.
Secondly, Dr Oreb’s clinical notes show that at least since October 2016 Mr Mandic was, amongst other complaints, experiencing stress and depression associated with an unrelated and extremely personal problem, which was causing him fatigue and insomnia. Whilst there were many issues that Mr Mandic presented with, none of them were said to relate to his fractured wrist. Indeed, the first reference to the fracture of the wrist that I find to be reliable, for reasons shortly to be given, was on 27 October 2016, some 18 months following the accident.

Thirdly, I was not assisted by the report of the sleep expert, Dr Hamour. Dr Hamour took a history that Mr Mandic had injured his lower back in the course of his accident, an assertion I have rejected. Dr Hamour’s opinion as to causation was as attenuated as that of Dr Oreb. I reject his finding that there was a “strong relation” between Mr Mandic’s fractured wrist and his sleep apnoea. It may well be that Mr Mandic’s inactivity did cause a weight gain, and it may well be that Mr Mandic’s weight gain caused his obstructive sleep apnoea. However there is no link within the contemporaneous evidence that connects Mr Mandic’s inactivity with his fractured wrist.
Fourthly, I found Dr Oreb’s clinical notes to be somewhat puzzling. It is always necessary to approach the entries in clinical notes with some caution, as their content are noted by busy practitioners concerned to treat a patient, rather than to consider arcane matters like causation.[21] However, I have some reservations about the entry dated 30 June 2015, which is Dr Oreb’s first record of Mr Mandic’s fractured wrist. Dr Oreb’s clinical notes reveal that Mr Mandic did not attend his practice between 14 October 2010 and 24 May 2016, except that, on what appears to be the same page of notebook paper, the consecutive dates of 4 and 5 June 1998 were interrupted by the 30 June 2015 entry, as I have observed. Moreover, Dr Oreb’s next entry about the subject accident did not occur in his clinical notes until 27 October 2016. I infer that the 30 June 2015 entry, squeezed in as it was between the two consecutive 1998 entries, was something that Dr Oreb, for his own reasons, determined to note at that point. What those reasons were is difficult to discern.
[21] Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.

Summary

I am accordingly not persuaded that the accident of 13 May 2015 has caused any more than the accepted injury to the left wrist, and consequential scarring. The claims for lump-sum compensation regarding the lumbar spine, and the ear, nose, throat and related structures are accordingly dismissed.
The result of this determination is that the claim for the injury to the left wrist and scarring cannot be referred to a Medical Assessor. The only assessments of whole person impairment before me do not reach the threshold of at least 10% pursuant to s 66(1) of the 1987 Act. Dr Gehr found that the combined value of the two claims was 9%-7% for the left wrist and 2% for the scarring.
Accordingly there will be an award for the respondent.

[2021] NSWPIC 230

7 July 2021