Pasqua v Morelli Constructions Pty Ltd

[2009] NSWWCCPD 153

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153
APPELLANT:		Rocco Pasqua
RESPONDENT:		Morelli Constructions Pty Ltd
INSURER:		GIO General Limited
FILE NUMBER:		A1-3756/09
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		7 August 2009
DATE OF APPEAL DECISION:		02 December 2009
SUBJECT MATTER OF DECISION:		Deemed worker; Schedule 1 clause 2 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	AM Legal
Respondent:	TurksLegal
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 7 August 2009 is revoked and it is determined that, as at 1 September 2008, the applicant was a deemed worker under Schedule 1 clause 2 of the Workplace Injury Management and Workers Compensation Act 1998. The matter is remitted to a different Arbitrator for re-determination of all outstanding issues.
The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

1. The appellant, Mr Pasqua, started work as an apprentice carpenter with the respondent, Morelli Constructions Pty Ltd (‘Morelli’) in about 1999.  He injured his back in the course of his employment with Morelli on or about 9 September 2005.  His claim for compensation was accepted and he returned to work on light duties after an absence of about four to five months.  He suffered a further exacerbation of his back condition and was again off work for a couple of months.  Ultimately, he returned to his full duties as a carpenter.

1. Mr Pasqua stopped work for Morelli in mid 2007 and started working independently as a carpenter.  As his work was “a little slow”, he contacted Morelli in June 2008 and asked if they could offer him any work.  He then worked for Morelli on a contract basis from 10 June until 1 September 2008 when he again injured his back.  His claim for compensation was disputed on the ground that he was not a worker or a deemed worker under the provisions of the legislation.

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 15 May 2009, and as amended at the arbitration hearing, Mr Pasqua alleged that he injured his back and legs, and sustained psychological sequelae as a result of injuries on or about 9 September 2005 and on about 1 September 2008 (T3.52-57).  He claimed weekly compensation in the sum of $1,760.00 from 2 September 2008 to date and continuing together with hospital and medical expenses. 

1. The insurer’s section 74 notice disputed that Mr Pasqua was a worker or a deemed worker at the time of his injury on 1 September 2008.  The Reply filed on behalf of the respondent on 5 June 2009 sought to dispute an additional 20 issues, including injury.  At the arbitration counsel for Morelli amended the Reply to delete paragraphs 6 to 10 and 17 to 21 inclusive (T10.20).  The Arbitrator deferred ruling on whether he would give Morelli…