Sebille v Workers Compensation Nominal Insurer (iCare) - [2024] NSWPIC 576

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sebille v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 576
APPLICANT:	Trevor Van Sebille
FIRST RESPONDENT:	Steven John Guinea
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Adam Halstead
DATE OF DECISION:	16 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly compensation payments pursuant to section 37 of the 1987 Act; whether the applicant was a worker pursuant to section 4 of the 1998 Act or a deemed worker pursuant to section 5 of the 1998 Act and clause 2 of Schedule 1 to the 1998 Act; Held – applicant not a worker or deemed worker; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was not a worker according to s 4 of the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant was not a deemed worker according to s 5 and cl 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998. 3. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Trevor Van Sebille, was working at a building site at Tyalgum on
11 August 2022 when he fell to the ground from a trestle and was injured. He was taken to hospital and received medical treatment then rehabilitation for the injuries.
It is claimed the applicant was employed, or otherwise is deemed to have been employed by the respondent, Steven John Guinea and sustained head and facial injuries in the course of employment.
On or about 30 September 2022 the applicant made a claim for weekly payments of compensation to iCare, the Workers Compensation Nominal Insurer, (the second respondent), given the respondent did not have workers compensation insurance. Both respondents deny liability for the applicant's claim on the basis that he was not a worker or a deemed worker.
An Application to Resolve a Dispute (ARD) related to the claim was filed by the applicant in the Personal Injury Commission (Commission) on 28 June 2024.
The applicant seeks weekly payments of compensation for the period from 5 December 2022 to date and continuing.

ISSUES FOR DETERMINATION

The following issues remain in dispute and require determination by the Commission:
(a) whether the applicant was a “worker” according to s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) whether the applicant was a “deemed worker” according to s 5 and cl 2 of Schedule 1 to the 1998 Act, and if so,
(c) the extent and quantification of any entitlement to weekly payments of compensation for the period from 5 December 2022 to date and continuing, pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), including the calculation of pre-injury average weekly earnings (PIAWE).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was…

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 576
Decision Date: 16 October 2024

CaseChat Overview and Summary

Sebille v Workers Compensation Nominal Insurer (iCare) involved the applicant, Sebille, seeking weekly compensation payments under section 37 of the Workers Compensation Act 1987 (1987 Act). The respondent, iCare, argued that Sebille was not eligible for such payments as she did not qualify as a worker under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) or as a deemed worker under section 5 of the 1998 Act and clause 2 of Schedule 1. The dispute was heard and determined by the relevant court.

The central legal issue before the court was whether Sebille met the criteria to be classified as a worker under section 4 of the 1998 Act or as a deemed worker under section 5 of the 1998 Act. This classification was pivotal as it would determine her eligibility for weekly compensation payments. The court had to interpret the relevant sections of the 1998 Act and the provisions in Schedule 1 to ascertain Sebille's status accurately.

In its reasoning, the court closely examined the definitions and eligibility criteria set out in the 1998 Act and Schedule 1. It found that Sebille did not satisfy the conditions to be considered a worker or a deemed worker. Consequently, the court held that she was not entitled to weekly compensation payments. The decision was grounded in a detailed analysis of the statutory language and its application to Sebille's circumstances.

The final order of the court was that Sebille's claim for weekly compensation payments was dismissed, and the respondent, iCare, was awarded its costs. This ruling underscored the necessity for claimants to meet precise statutory criteria to be eligible for workers' compensation benefits.

Orders