MMM Mechanical Services Pty Ltd v King - [2005] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:MMM Mechanical Services Pty Ltd v King [2005] NSWWCCPD 69
APPELLANT:  MMM Mechanical Services Pty Ltd
RESPONDENT:  Cecil King
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:  WCC6223-04
DATE OF ARBITRATOR’S DECISION:          7 December 2004
DATE OF APPEAL DECISION:  15 July 2005
SUBJECT MATTER OF DECISION: Whether the Respondent was a ‘deemed worker’ pursuant to Schedule 1, clause 2 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Nevill & Edwards, Solicitors
Respondent: Edwards Michael Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.

The Appellant, MMM Mechanical Services Pty Ltd, is to pay the Respondent, Mr King’s costs of this appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

On 23 December 2004, MMM Mechanical Services Pty Ltd (‘MMM’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 7 December 2004.

The Respondent to the Appeal is Cecil King.

Mr King was born on 1 February 1939 and is aged 66. In April 2000, Mr King and his wife, Lisa King, purchased a truck that was registered in Mrs King’s name. At about that time, Mrs King also registered a business name “Triple K Transport”. Mr King commenced working as a general carrier using the name Triple K Transport on handwritten invoices. He was the sole driver of the truck.

On 1 May 2001, Mr King was at MMM’s premises at Silverwater, pursuant to a contract with MMM, where one of MMM’s employees was using a forklift to load Mr King’s truck. In the process of doing so, the forklift ran over Mr King’s left foot, causing injury to the foot requiring surgery. As a result, Mr King claims to have ongoing problems with the foot including pain and restrictions on walking.

Mr King notified MMM of the injury on 1 May 2001 and, on 8 January 2004, lodged a claim for medical expenses and compensation for non-economic loss. On 19 April 2004, Mr King’s ‘Application to Resolve a Dispute’ was registered by the Commission. MMM filed its ‘Reply’ on 10 May 2004, denying liability. On 16 June 2004, the Arbitrator conducted a teleconference with the parties and, on 31 August 2004, the dispute not having been resolved through conciliation, the Arbitrator conducted an arbitration hearing. On 7 December 2004, the Arbitrator made a determination as set out below.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 7 December 2004, records the Arbitrator’s orders as follows:

“1. Cecil King is a deemed worker pursuant to Schedule 1 cl 2 of the Workplace Injury Management and Workers Compensation Act 1998.
2. The medical issues in dispute between the parties are referred to an Approved Medical Specialist, for assessment.”

The Arbitrator provided a ‘Statement of Reasons for Decision’ which is discussed further below.

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.

Continue reading MMM Mechanical Services Pty Ltd v King

Details

AGLC: MMM Mechanical Services Pty Ltd v King [2005] NSWWCCPD 69
Case: [2005] NSWWCCPD 69
Decision Date: 15 July 2005

CaseChat Overview and Summary

In the case of MMM Mechanical Services Pty Ltd v King, MMM Mechanical Services Pty Ltd, the appellant, appealed a decision of the Workers Compensation Commission, constituted by an arbitrator. The respondent, Cecil King, had lodged a claim for workers’ compensation after sustaining an injury while performing work for MMM. The central issue in the appeal was whether Mr King was a ‘deemed worker’ under Schedule 1, clause 2 of the Workplace Injury Management and Workers Compensation Act 1998. This issue hinges on whether Mr King was performing work as an independent contractor without holding himself out as available to perform work for others generally.

The appeal was heard on the papers, with both parties submitting written arguments. MMM argued that Mr King was not a ‘deemed worker’ because he was conducting his own business, evidenced by his sale of scrap metal and work for other companies. Mr King, on the other hand, contended that he had made himself exclusively available to MMM and did not seek work from others. The Arbitrator had determined that Mr King was a ‘deemed worker’ because, despite some exceptions, he was working exclusively for MMM and was not carrying on a general business.

The Acting Deputy President, Robin Handley, reviewed the evidence and the Arbitrator's reasoning. The President found no legal, factual, or discretionary error in the Arbitrator's decision. The evidence supported the finding that Mr King was working exclusively for MMM and did not hold himself out as available for general work. The minor exceptions, such as work for Tricke Air Installations and the sale of scrap metal, were not sufficient to undermine the overall finding. Consequently, the President confirmed the Arbitrator's decision that Mr King was a ‘deemed worker’ and dismissed the appeal. MMM was ordered to pay Mr King’s costs of the appeal. The matter was referred back to the Registrar for referral to an Approved Medical Specialist for the assessment of the medical issues in dispute.

Orders