McKay v Workers Compensation Nominal Insurer (iCare) - [2024] NSWPIC 273

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McKay v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 273
APPLICANT:	Mark McKay
FIRST RESPONDENT: SECOND RESPONDENT:	Barry Nolan t/as B Wood Carpentry Workers Compensation Nominal Insurer (iCare)
MEMBER:	Paul Sweeney
DATE OF DECISION:	23 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; Claim for weekly compensation denied on the basis that the applicant was not a “worker” or a deemed worker within schedule 1 clause 2 of the Act; contract between applicant and first respondent entirely oral; Construction Forestry Maritime Mining and Energy Union & Anor v Personnel Contracting Pty Limited and UPVC Window Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare) considered and applied; Held – on consideration of the contractual language and the mode of execution of the contract finding that it was a contract for services; finding that at the date of the injury the applicant was not “regularly carrying on a trade business” and was deemed to be a worker in accordance with clause 2; Malivanek v Ring Group Pty Limited considered and applied; finding that the first respondent was not insured against his liability under the Act; award for applicant against the first respondent noting that the second respondent is deemed to be the insurer of the first respondent by section 142A.
DETERMINATIONS MADE:	The Commission determines: 1. Amend the Application to Resolve a Dispute herein to add the Workers Compensation Nominal Insurer as a second respondent. 2. The applicant performed carpentry work for the first respondent from 15 September 2020 pursuant to a contract for services. 3. At the time of injury to his right hand on 1 December 2020 the applicant was deemed to be a worker employed by the first respondent pursuant to Schedule 1 cl 2 of the Workers Compensation Act 1987 (the 1987 Act). 4. The injury arose out of and in the course of that employment. 5. As a result of the injury the applicant had no residual earning capacity until 26 February 2021 and was partially incapacitated between 1 March and 31 March 2021. 6. At all material times the applicant’s preinjury average weekly earnings were $1,841.18 and during the period between 1 March and 31 March 2021 the applicant was able to earn the sum of $850 in some suitable employment. 7. At the time the injury the first respondent did not have a policy in respect of its liability to the applicant pursuant to the 1987 Act and the second respondent is deemed to be his insurer for the purpose of the claim pursuant to s 142A of the 1987 Act. 8. Order first respondent to pay the applicant weekly compensation as follows: (i) $1,749.21 from 1 December 2020 to 28 February 2021 pursuant to s 36, and (ii) $622.94 from 1 March 2021 to 31 March 2021 pursuant to s 37. 9. Order first respondent to pay the applicant’s hospital and medical expenses pursuant to s 60 of the 1987 Act. 10.…

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: [2024] NSWPIC 273
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the case of McKay v Workers Compensation Nominal Insurer (iCare), the applicant sought weekly compensation from the Workers Compensation Nominal Insurer, iCare, after an injury sustained during employment. The dispute centred on whether the applicant qualified as a "worker" under the Workers Compensation Act 1987. The court had to determine if the applicant was a worker or a deemed worker as per Schedule 1 Clause 2 of the Act. The primary issue was whether the applicant was performing work under a contract of service or a contract for services, which would affect their eligibility for compensation.

The court examined the nature of the contract between the applicant and the first respondent, which was entirely oral. The court considered the case of Construction Forestry Maritime Mining and Energy Union & Anor v Personnel Contracting Pty Limited, which highlighted the importance of distinguishing between contracts of service and contracts for services. The court found that the contract in question was a contract for services rather than a contract of service. Additionally, the court assessed whether the applicant was regularly carrying on a trade, business, or profession at the time of the injury. The court concluded that the applicant was not regularly carrying on a trade, business, or profession, and thus, they were not a worker under the Act at the relevant time.

The court also considered Malivanek v Ring Group Pty Limited to assess the applicant's eligibility as a deemed worker. The court found that the first respondent was not insured against their liability under the Workers Compensation Act. Consequently, the applicant was awarded compensation against the first respondent. The second respondent, iCare, was deemed to be the insurer of the first respondent under Section 142A of the Act. The court ordered the first respondent to compensate the applicant and directed the second respondent to cover the liability under the Act.

The court ordered the first respondent to pay the applicant compensation for the injury sustained. Furthermore, the second respondent was directed to provide insurance coverage for the first respondent's liability under the Act. The court's decision hinged on the interpretation of the contractual relationship and the application of relevant legal principles to determine the applicant's status as a worker or deemed worker under the Workers Compensation Act.

Orders