Upvc Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2022] NSWPIC 146
APPLICANT:	UPVC Window Solutions Pty Ltd
RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Catherine McDonald
DATE OF DECISION:	6 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Uninsured employer; section 145 of the Workers Compensation Act 1987 (1987 Act) recovery; worker; use of the multi-factorial test; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; deemed worker; section 9B of the 1987 Act stroke injury; De Silva v Secretary, Department of Finance, Services and Innovation, Renew God’s Program v Kim, Secretary, Department of Communities and Justice v Galea; Held– second respondent was a worker who suffered a stroke injury, applicant liable to reimburse Nominal Insurer for compensation paid.
DETERMINATIONS MADE	1. The second respondent was a worker employed by the applicant on 30 November 2020. 2. The second respondent suffered an injury on 30 November 2020 in the course of his employment being an injury to the base of his skull, which resulted in a stroke injury within the meaning of s 9B of the Workers Compensation Act 1987 (the 1987 Act), and an injury to his right thumb. 3. The second respondent’s employment with the applicant gave rise to a significantly greater risk of suffering the injury than had he not been employed in employment of that nature. 4. As a result of the injury, the second respondent had no current work capacity at least until 26 May 2021 and required medical treatment at least until that date. 5. As at 30 November 2020, the applicant did not maintain a policy of insurance for the full amount of its liability under the 1987 Act to the second respondent. 6. Pursuant to s 142A of the 1987 Act, the first respondent is deemed to be the applicant’s insurer as at 30 November 2020. 7. The first respondent paid weekly compensation and medical expenses to, for and on behalf of second respondent up to 26 May 2021 totalling $21,852.59 particularised in the list of payments attached to the notice issued under s 145 of the 1987 Act on 9 June 2021. 8. Pursuant to s 145 of the 1987 Act, I determine that the applicant is liable to reimburse the first respondent payments totalling $21,852.59.
ORDERS MADE:	9. Pursuant to s 145 of the 1987 Act, I order that the applicant reimburse the first respondent payments totalling $21,852.59 within 28 days of this determination.

STATEMENT OF REASONS

BACKGROUND

UPVC Window Solutions Pty Ltd (UPVC) manufactures UPVC double-glazed windows and flyscreens in its factory, which it delivers to clients and installs. On about 30 November 2020, Ross Markey was performing work as UPVC’s premises when he was struck at the base of his skull and on his right thumb by a long length of plastic which was being passed from a mezzanine level to the factory floor. Mr Markey claimed compensation on the basis that he was a worker employed by UPVC.
UPVC concedes that it did not hold a policy of workers compensation insurance as at 30 November 2020. The Workers Compensation Nominal Insurer (the Nominal Insurer) commenced provisional payments to Mr Markey and subsequently accepted the claim.
On 9 June 2021, the Nominal Insurer issued a notice to UPVC under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) seeking to recover $21,852.59 in respect of the compensation paid to Mr Markey up to 21 May 2021.
UPVC commenced proceedings under s 145(3) of the 1987 Act seeking a determination of its liability.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

As in many applications under s 145, the matter was listed for more than one telephone conference to permit Mr Markey to be joined to the proceedings.
The claim was listed for conciliation conference and arbitration hearing on 21 February 2022 when Mr Neilson, solicitor, appeared for UPVC, Mr Baker of counsel appeared for the Nominal Insurer and Mr McMahon of counsel appeared for Mr Markey.
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 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.
Applications to cross-examine Mr Markey and Mr Clark of UPVC were foreshadowed at the last telephone conference but were not pressed at the hearing.
It was agreed that, if Mr Markey was a worker, pre-injury average weekly earnings were $952.42.

ISSUES

The issues for determination are:
(a)    was Mr Markey a worker in the employ of UPVC;
(b)    was he a deemed worker;
(c)    what was the nature of the injury suffered;
(d) if the injury was a stroke injury, is the recovery of compensation precluded by s 9B of the 1987 Act, and
(e)    did Mr Markey have any capacity for work during the period of the notice?

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Miscellaneous Application and attached documents (the Application);
(b)    Replies filed by the Nominal Insurer and Mr Markey;
(c)    UPVC’s Application to Admit Late Documents dated 11 February 2022;
(d)    Nominal Insurer’s Applications to Admit Late Documents dated 9 November 2021 and 31 January 2022, and
(e)    Mr Markey’s Application to Admit Late Documents dated 28 September 2021 and 10 February 2022.

UPVC

UPVC relied on a statement of its director Robert Clark dated 6 July 2021. He said that he worked daily in the company’s factory in Somersby. In early August 2020, Mr Clark’s wife met Ross Markey socially. Mr Markey told her that he was a qualified carpenter and handyman, looking for contracting work. Mr Markey rang Mr Clark on 3 August 2020 and met him on Mr Clark’s return to the factory later that day, though Mr Clark was surprised that he was there. Mr Clark said that Mr Markey told him he was a qualified carpenter who was doing some jobs around the area and looking for contract work. Mr Clark said he may need some help. He told Mr Markey that he did not have any current employees and that Mr Markey needed a sickness and accident policy. He said that he might have some jobs fitting window frames on site and some work around the factory. Mr Markey should invoice him for any work done and that he would be paid on a completed job basis. Mr Markey provided his ABN and his public liability policy. Mr Clark said that he contracted with Mr Markey on the basis that he was a local contractor and that UPVC had a need for his services for a short period.
Mr Clark said that Mr Markey provided services in the period 10 August until 30 November 2020 and that he was engaged as a contractor. He said it became clear that Mr Markey was not very good at invoicing and there were issues with him accurately recording jobs completed. The invoices were provided irregularly. Because UPVC needed certainty with respect to its outgoings he spoke to Mr Markey and offered him a timesheet for business for an old business which he used occasionally. He suggested that Mr Markey use it to record the jobs completed so that he can prepare his invoices. Mr Clark said that Mr Markey submitted invoices reflecting an hourly rate because that was how he organised his invoicing though the intention was always for the invoices to be for completed jobs. Mr Clark paid the invoices that he was given noting that all of them showed the ABN which Mr Markey had shown him during their first conversation. Mr Markey told him that he was not registered for GST. UPVC did not deduct income tax from the payments made and Mr Markey never took issue with that. Mr Clark attached copies of the invoices submitted to his statement.
Mr Clark said that Mr Markey provided some of his own tools and equipment though did lend him some tools to assist him. Mr Markey was responsible to drive his own vehicle at his own expense to and from the factory and to jobs and UPVC did not provide him with a vehicle or reimburse him for travel. Occasionally Mr Clark let him use a vehicle owned by another of his businesses if things needed to be transported which did not fit in Mr Markey’s vehicle. Mr Markey used some of UPVC's machinery when in the factory because it was specialised equipment.
With respect to ours hours and supervision, Mr Markey was able to choose his own hours and workload and he had a choice whether to do the work offered by Mr Clark. Mr Markey said that he wanted to run in the morning and did not want to start early. Mr Clark agreed because he did not set hours for him and the only thing that mattered was the completion of the job. Mr Markey told him that he had ski trips organised and wanted time off and Mr Clark told him that he could do what he wanted. He did not supervise Mr Markey’s day-to-day work on site but checked his overall work in the factory as he would do with any contractor who submitted an invoice for payment. Mr Markey sometimes asked questions about specialised machinery or particular requirements but basically worked in a self-directed way, at times that he chose. Mr Clark said he did not consider it his business to direct Mr Markey with respect to breaks.
Mr Clark said that Mr Markey was not required to wear a UPVC uniform though Mr Markey occasionally took old shirts from the rag pile and wore them, saying that they were in a better state than some of his clothes. He wore shirts from other businesses owned by Mr Clark.
Mr Clark said that Mr Markey did not require approval to take on any other work and UPVC never represented that Mr Markey was an employee. Mr Markey was often untidy in his appearance but Mr Clark did not consider that he had disciplinary control over him and did not ask him to fix up his appearance.
During the period he provided services to UPVC, Mr Clark said, Mr Markey continued to market himself as a local handyman.
Mr Clark provided a statement to an investigator retained by the Nominal Insurer and signed it on 7 February 2021. He said that some aspects of that statement were, on reflection, inaccurate and did not convey what he said, particularly where “employment” was used. He did not otherwise withdraw any of the content of the statement.
Mr Clark described the injury:
“…I was on the mezzanine floor and he was waiting to catch the end of the plastic strip. The plastic strip which can be used for door trim comes in 6-meter [sic] lengths and one end can be touching the floor before the other end comes out of the packaging it comes in.
I am not sure, but I think there was probably not as much weight on top of the piece of profile I was pulling out and normally it would have floated in the air a little bit more.
Ross put his hand up to catch it and the next thing I knew he shouted that it hit him on the shoulder. He said that it had bent his right thumb back and hit him on the shoulder.
…
The way we were getting the plastic strip down from the mezzanine floor was the way we normally did it for one or two strips. If it had been five or six I would have probably got the forklift and lifted the whole package down and then taken it out but it was just the one strip.”
Mr Clark said that the only injury of which Mr Markey complained was to his thumb, particularly in the two days when he worked following the injury.
On 23 April 2021 the Nominal Insurer wrote to Mr Clark and informed him that liability for injuries to Mr Markey’s head, neck and thumb was accepted on the basis of medical and factual evidence which supported the contention that he was employed and sustained injury on 30 November 2020. It set out the reasons why the Nominal Insurer considered that Mr Markey was a worker and said there was no evidence that he was also engaging in work for others. The information relied on to support the contention that he was a worker was that he was:
·        “Supervised by yourself
·        Did not have his own work vehicle and used company vehicles to undertake work
·        He was required to attend the factory at your direction
·        He was not able to subcontract any of the work you gave him
·        He was paid on a hourly rate basis
·        The rectification of faulty work was performed on UPVC Window Solutions time and he was responsible to you for the quality of work
·        He worked 40 hour per week at set times. start and finish time and wages were not the subject of negotiation
·        He was provided with a polar fleece which had the company logo on it
·        Plant and equipment were all provided by UPVC Window Solutions except for PPE and some small tools
·        He was trained in the use of machinery within the factory.”
On 9 June 2021 the Nominal Insurer issued a notice under s 145 of the 1987 Act seeking reimbursement of payments made being $21,852.59. The list of payments in the Application is illegible but the parties told me that the notice applied to payments made to 26 May 2021.

Mr Markey

Mr Markey provided a statement to the Nominal Insurer’s investigator on 21 December 2020. He described some pre-existing conditions, including pain in his hands which resulted from doing remedial massage and a neck injury suffered in a mosh pit years before. He set out his work history, including a period in the Victoria Police Force. He performed remedial massage on a full and part time basis for over 20 years. He completed a Certificate III in carpentry in 2019 and obtained a licence. He worked for James Carmody from February to May 2020. He was unemployed due to the pandemic but did two “one-off” jobs – one of carpentry and gardening and one dismantling a solar panel system.
Mr Markey said he was interviewed by Mr Clark the week before he started work as a carpenter and joiner. He said he was employed on a full-time permanent basis working from 8.30am to 5.00pm unless he needed to commence at 7.30am on installation days. He did ask about starting at 7.00am on a regular basis but that was declined. He said that Mr Clark controlled where he worked, starting each day at the factory and either working there or on site doing installations. The only break was a 30 minute lunch break at 1.30pm.
He said he has copies of payslips which show that he worked five days per week, full-time with some overtime. He said that he was supposed to be paid weekly but was not paid for the first four weeks because Mr Clark wanted the timesheets supplied electronically in a particular format and would not accept his handwritten timesheets. He was paid in his fifth week after obtaining the correct timesheet format from another worker named Adrian Romano. That document contained the UPVC logo and letterhead. His rate of pay was initially $25 per hour which was reduced by Mr Clark to $20 per hour in the first week. He remained on that rate until the resignation of Mr Romano and when Mr Romano resigned Mr Clark increased his rate back to $25 per hour. He understood that he was paid below the award wage but he was desperate to be employed. No contribution was made to his superannuation. He was not paid public holidays, annual leave or sick leave and no tax was deducted. Mr Markey said that he was preapproved three rostered days off (RDOs) and one public holiday, to allow him to attend to ski weekends that were already booked. He asked for a further day off at the end of the ski season which was declined.
Mr Markey denied that he undertook other work whilst working at UPVC. He did “house sit” for a friend and assisted friends with home projects but was not paid, with two exceptions. He did rectification work on a skylight he had installed in April 2020 and helped a friend unload a shipping container.
Mr Markey said that his duties included building windows doors and screens out of plastic and aluminium. He also installed the doors and screens he wore a T-shirt with the company logo, drive the company work van and forklift and had a key to the premises.
On 30 November 2020, Mr Markey heard Mr Clark “cursing and swearing” about having to get a single door profile from a crate on the mezzanine level. Mr Clark called him over to where he was on the mezzanine platform about three metres off the ground. Mr Markey stood about five metres away and Mr Clark pulled a heavy plastic door profile out of a long crate. He was having difficulty dislodging it and shook and jerked it to loosen it. Mr Markey reached to grab the end but it was too high above his outstretched right hand. It whipped downwards, he tried to block it with his right hand and turned his head away. The plastic burst through his right hand and thumb and hit him on the side of the neck, just below the right ear. He said it was like being hit with a baseball bat. He was struck to the ground. He said that the door profile was 5.8 m long, as thick as an upper arm and heavy because of its long length.
Mr Markey left the premises when he was unable to find ice to put on his hand and on his neck. He went to the house where he was house sitting and lay down to rest. Despite feeling unwell, he kept an appointment for dinner with a friend. His friend recommended that he go to hospital. On the following day, Mr Markey went to work and made a splint for his right hand. He could not use it well and noticed that he had lost fine motor skills with his left hand. Attended a “PTSD specific” yoga class but cancelled an appointment to run with a friend the following morning. He went to work on 2 December 2020. On the morning of 3 December he collapsed and was taken by ambulance to Gosford Hospital.
Mr Markey returned at the end of his statement to issues relevant to the indicia of employment. In addition to the matters set out above he said he was subject to a code of conduct but never given it a copy of it. He was not able to sub-contract any of the work and he was required to rectify both mistakes in UPVC’s time. He said he was provided with work shirts that had the business logo on them and a polar fleece top with the same logo on it he provided his own trousers or shorts, boots, gloves, earplugs, mask and respirator. He used plant equipment and tools provided by UPVC as well as some of his own small hand tools. Over time he was shown how to use the various machinery in the factory, including specialist tools. Mr Markey held public liability insurance which he had had since 2010. He had an ABN which he has used in a previous remedial massage therapy business and for the carpentry and construction work he undertook before working at UPVC. He did not collect GST because his earnings were under the threshold.
The Nominal Insurer’s factual investigation report contains other documents provided by Mr Markey including photographs taken in Gosford Hospital, showing healing scars on his neck and thumb. It also contains a search of his ABN showing that it has been active from 1 July 2000 and that the most recent business name associated with it was Massage Therapy Avoca Beach.
Mr Markey made a supplementary statement with the assistance of his solicitors on 28 September 2021. He confirmed his evidence that he did the jobs he was asked to do by Mr Clark and worked under his direction. He said he was unable to leave work early or start late without Mr Clark’s permission and he provided an example of a text message reminding Mr Clark that he would be late to arrive on the day of a medical appointment.
Mr Markey provided a photograph of eight of the nine shirts provided by Mr Clark, the ninth being cut off at Gosford Hospital. The shirts had all belonged to other staff members and were not rags.
He said that his ex-wife had set up a LinkedIn page and denied that he had placed advertisements.
In response to Mr Clark’s statement, Mr Markey denied that Mr Clark told him that he had no employees, that he needed a sickness and accident policy and that he should invoice for completed jobs. He submitted invoices at an hourly rate because Mr Clark proposed it. He drove his own vehicle to a worksite for a two day job when he was asked to drive there directly. He was required to ask for time off and attached text messages with Mr Clark on 13 September 2020 in which Mr Markey asked for the whole day off on the following Friday and Mr Clark responded “that’s fine, I thought you were off all day anyway.” A message on Sunday 20 September requested Friday 2 October off and Mr Clark responded that it was no problem. He said he telephoned Mr Clark to ask if he could have the day off on 6 October 2020 and Mr Clark said no. Mr Clark told him that he could have an extra week off after the Christmas shut down.

Mr Markey attached an email from Mr Clark dated 5 September 2020 providing a timesheet template, which had the names of other businesses Mr Clark operated on it. He attached copies of his timesheets, noting that the hours had been worked in the business of UPVC. The invoices show a start time and a finish time and the time taken for breaks. The hours are generally from 8.30am until 5.00pm. Sometimes the finish time is later and the hourly rate is claimed for all hours worked. They show work on each weekday.
Mr Markey provided considerable information about his previous business and the events in late 2020 to the factual investigator instructed by the Nominal Insurer. Most of those were sent by email in late 2020. In an email dated 28 December 2020 Mr Markey said that on Thursday 27 August he was unable to take a day off work to assist a friend and Mr Clark also declined permission to finish at lunchtime. His friend was having a delivery of 10 metre lengths of roofing iron and needed him to guide where they were to be placed on a roof structure. Because he could not be there, the iron was placed on the ground, resulting in additional work. He attached the contemporaneous text message to his friend saying “Boss won’t let me go today. Two flat out days of building windows and doors for a Monday installation…”

Adrian Romano

Mr Markey relied on a statement from Adrian Romano dated 17 November 2021. He attached and adopted a record of a conversation with the Nominal Insurer’s investigator. Mr Romano also worked in UPVC’s factory. Mr Romano said that he saw Mr Markey try to hand Mr Clark a handwritten timesheet which Mr Clark rejected, insisting on an electronic version. Mr Romano provided his template for electronic timesheets.
Mr Romano said that Mr Markey did not have work experience in carpentry, particularly plastic carpentry which is a significant portion of UPVC’s work. Mr Romano had never been asked by Mr Clark to quote on a per job basis and he doubted from his observation that Mr Markey would have been able to do so. He generally worked 8.30am to 5.00pm and observed Mr Markey to work the same hours. He discussed with Mr Markey their mutual preference to start earlier but Mr Clark would not allow it.
Mr Romano told the investigator that UPVC provided shirts with a logo. He drove a company van to installations. Mr Clark drove his own car but did not always stay until the job was finished.
The plastic strips used to fabricate UPVC’s products were about 6 metres long and were stored on a pallet at the front of the mezzanine floor, wrapped in plastic. Mr Romano said he performed the task multiple times, that sliding the strips out could be difficult and it had to be done slowly and not rushed.
Mr Romano said that Mr Clark brought in a contractor called Alister on a casual basis on one or two days a month. Mr Romano understood that he was paid at a higher rate.

Zoe Cooke

Ms Cooke signed a statutory declaration on 22 December 2020. Mr Markey was house sitting at her brother’s house when he was unable to get out of bed on 3 December and Ms Cooke, who lived nearby, went to let the paramedics in. She observed that Mr Markey was lying in bed and was weak and disoriented. She noticed a minor laceration on the right side of his neck and his right hand was bandaged in a splint, bound with red tape.

Craig Hume

Mr Hume provided an undated statement to the Nominal Insurer’s investigator. He is a friend of Mr Markey and a medical sonographer. He had dinner with Mr Markey on 30 November 2020. He observed that Mr Markey had an ice pack in a tea towel on his right hand and Mr Markey described the event late that afternoon. Mr Hume saw a contusion on the right side of his neck near the sternocleidomastoid muscle, in the area of the internal jugular vein and carotid artery. He told Mr Markey that he needed to go to hospital but noted that Mr Markey is “stoic to the point of foolishness”.
Mr Markey ordered pizza so that he could eat with one hand. Mr Hume asked to see his thumb and saw that it was swollen. He was concerned that Mr Markey may have a ligament, joint or tendon injury or a fracture. He told Mr Markey that, if he must work, he should tape it to his index finger to splint it and avoid using it.

Medical evidence

Central Coast Local Health District

The discharge summary from Gosford Hospital is dated 19 December 2020. Mr Markey was admitted on 3 December 2020 with a three day history of constant vertiginous symptoms and ataxia as well as a hand injury. The description of the injury was that Mr Markey had fallen onto his hands and knees after a “wire” fell onto his neck from a four metre height. He suffered a mild neck graze and a thumb strain. No fracture of his hand was observed on
X-ray and investigations were undertaken. An MRI scan showed a “left cerebellar stroke in the PICA territory”.
Notes from the Central Coast Local Health District appear in Mr Markey’s Application to Admit Late Documents dated 31 January 2022. They include a note from Dr Turner dated 14 December 2020 while Mr Markey was still in hospital in which the injury was described as a laceration to his neck and thumb. Discharge referral notes addressed to Mr Markey’s general practitioner, Dr Poate, dated 10 and 18 December 2020 recorded that he had presented to hospital with a three day history of constant vertiginous symptoms and ataxia as well as a hand injury suffered when shielding himself from the plastic. The notes include the results of a right hand X-ray on 3 December 2020. The injury is described later in the document as a thumb strain,
The hospital copy of the ambulance notes dated 3 December 2020 records the brief history of the incident and that Mr Markey was seen lying on a bed. The history included an injury to the right hand. Mr Markey had gone for a run the previous night “with nothing to note”. When he woke that morning he felt instantly dizzy and said that his legs gave way. He was able to climb back onto the bed.
Mr Markey saw Dr O’Brien, neurologist, whilst at Gosford Hospital. He said in the progress notes:
“Mr Ross [sic] presented with 1 day history of constant vertiginous symptoms and ataxia following a workplace injury involving a wire falling on his neck from a 4 meter height. On examination in ED he had horizontal unilateral nystagmus, was dix-hallpike positive and improved slightly with an Epley's maneuver, all of which suggested peripheral vertigo. CT-ArchCow revealed no abnormalities, and all bloods were normal. He was admitted under the Neurology team (Griffiths) for further assessment. An MRI brain unfortunately revealed a left cerebellar stroke in the PICA territory. A full workup, including an echo, holter, lipids, HbA1c, and thrombophilli screen all returned negative. The cause for his stroke is therefore likely related to his workplace injury. He was commenced on DAPT and atorvastatin, and is to remain aspirin lifelong, clopidgrel for 4 weeks. He was also mobilized with the physiotherapists and made a remarkable improvement in his vertigo and mobility, being able to mobilize independently without issue. He is to be discharged into inpatient rehabilitation and is to follow up with Dr Griffiths within 6 weeks for review.”

Kincumber Medical Centre

Mr Markey had seen doctors at Kincumber Medical Centre for some years before the injury, including for complex mental health issues and in 2020 for pain in his hands. He saw Dr Poate on 24 November 2020 for a skin check. Dr Poate noted that he was “working but boss difficult – lifting causes pain in hands”. He saw Dr Poate for the first time after the injury on 21 December 2020 after his discharge from hospital. He said that he had been hit on the right side of the base of the skull and neck below his right ear by a long length of hard plastic used to make a door and knocked to the ground. On the next day he could not use his hand properly but continued to work on the Tuesday and Wednesday. On the Thursday he collapsed and was taken to hospital by ambulance. Dr Poate described Mr Markey’s symptoms which included left hand coordination. He noted that Mr Markey had injured his right hand “trying to protect himself”.
Dr Poate provided a certificate stating that Mr Markey had no current work capacity from 21 December 2020 to 18 January 2021 as a result of trauma to head/neck with subsequent stroke.
Mr Markey’s general practitioner, Dr Poate, referred him to Dr O’Brien, neurologist. On 23 March 2021 Dr O’Brien summarised Mr Markey’s injury as a significant neck trauma and that three days later he had a left cerebellar ischaemic stroke “likely vertebral dissection.”
Dr Poate prepared a report dated 29 October 2021. He summarised the history of the injury and noted that Mr Markey had been seen by Dr O’Brien. He said that Dr O’Brien is better qualified to answer questions about the cause of the stroke but Dr Poate’s understanding was that it was thought to be due to the head trauma. He noted that Mr Markey had been followed up by a rehabilitation specialist. In October 2021 Mr Markey said that he had done a few small carpentry jobs but expressed concern about his balance and stamina. He said that Mr Markey continued to have some pain in his right wrist and hand. He had some osteoarthritis on an X-ray in October in August 2017 and consulted Dr Poate about bilateral wrist pain on 1 March 2017. Dr Poate said that it was difficult to measure how much psychological and social factors had impacted Mr Markey’s illness and recovery.
After the arbitration hearing, I was provided with a complete set of certificates of capacity for the period of the Nominal Insurer’s claim. The last certificate is dated 23 June 2021 and covers the period to 21 July 2021. In each of those certificates, Dr Poate certified that Mr Markey had no current work capacity. The diagnosis was “trauma to head and neck with subsequent stroke.” The injury to Mr Markey’s right thumb was noted on a certificate dated 1 November 2021.

Mr Tuddenham – Avoca Beach Physiotherapy

Mr Markey consulted Avoca Beach Physiotherapy in respect of a knee injury in 2017. He returned on 29 December 2020 seeking an assessment of his neck and help with his balance. He noted the injury to his right hand in the patient details form.
Mr Tuddenham noted that the MCP joint of Mr Markey’s right thumb was swollen at the consultation on 5 March 2021. He noted that it “hasn’t really been as much of an issue as isn’t using hand tools.” Mr Tuddenham noted that the joint was “quite swollen = lacks F/E ROM” which I understand to mean that the thumb lacked flexion and extension and a full range of movement. He undertook mobilisation and recommended exercises and queried whether a brace should be used during work time.

Hunter Brain Injury Service

In January 2021 Mr Markey referred himself to the Hunter Brain Injury Service.
In a note dated 22 January 2021, Ms Morris, an occupational therapist, described her initial contact with him. She said:
“Client’s history of the injury (head/neck strike) at work requires further, Ross is unsure if he suffered a loss of consciousness and did not present to hospital until three (3) days later when he collapsed whilst running – the current WorkCover claim has been denied. Ross continues to report memory lapses and is currently accessing public transport (on the bus at the time of the phone call). HBIS case manager has requested hospital discharge summaries from the client.”
During his treatment, a physiotherapist, Ms Thorburn, diagnosed functional neurological disorder.
On 9 June 2021 Dr Strutt, neuropsychologist, undertook a “brief neuropsychological assessment.” The history of the incident is somewhat more dramatic than that in the other reports and statements:
“A colleague was moving a large (approximately 6-metre long) piece of plastic tubing when it was dropped) striking Mr Markey on the back of the head. Mr Markey reported losing consciousness very briefly (likely less than 30 seconds) and recalls waking on the ground in significant pain, so much so, that he was initially unable to speak initially. He has good recall of the events leading to and following the injury, but repotted experiencing significant fatigue that evening that resulted in him going to sleep as soon as he got home that night. He reported this significant fatigue continued throughout the following day. No formal PTA testing was conducted.”

Dr Hopcroft

Mr Markey’s solicitors arranged for him to see Dr Hopcroft who reported on 2 November 2021. Dr Hopcroft set out Mr Markey’s background and a history of the injury. He recorded that Mr Markey was on the ground waiting for the 5.8 m piece of plastic to be handed down by Mr Clark. The plastic dropped heavily onto his right hand striking and bruising the older aspect of his right thumb. The plastic bent and straightened with great force causing a shearing injury as it struck him on the right side of his neck and knocked him to the ground. Mr Markey reported great time in his thumb and his neck at the time of the injury.
Dr Hopcroft reviewed the investigations undertaken at Gosford hospital. He said that Mr Markey remained off work until September 2021 when he started to undertake various of jobs for friends as a carpenter. He continued to suffer vertigo. Dr Hopcroft said that Mr Markey had recovered completely from the injury to his right thumb. He had significant restriction in movement of his cervical spine however those all movements triggered vertigo. His diagnosis was an injury to Mr Markey’s right neck and jaw and a lesser sprain injury of his right thumb. He suffered an infarct of the posterior internal carotid artery affecting his right cerebellum. Dr Hopcroft also considered that Mr Markey had aggravated cervical spondylitic changes. He considered that he has been totally incapacitated from returning to the workforce and was likely to be unfit for a protracted period of time from now.

Dr Williams

Dr Williams, neurologist, prepared a report at the request of Mr Markey’s solicitors on 8 February 2022. He described Mr Markey’s past history, which included multiple concussions whilst a police cadet. He set out a detailed history of the incident:
“Mr Markey reported that on the day of the accident (Monday, 30 November 2020) he was struck on the right hand and on the right posterior skull and upper cervical region by a plastic ‘frame’. The ‘frame’ was estimated to be approximately 6m long, and approximately 5cm x 10cm in cross-section. The ‘frame’ was more flexible than it would have been when installed, as it did not contain the steel rod which is placed within the core to ‘stiffen’ it just prior to installation. Mr Markey was standing on the ground to the left of his supervisor, who had climbed a ladder and was attempting to remove the ‘frame’ from its container several meters above Mr Markey’s head. Encountering difficulties in removing the ‘frame’, the supervisor was described as forcefully manipulating it in such a way as to cause it to oscillate. When the ‘frame’ unexpectedly freed itself from its container, the tip ‘whipsawed’ or ‘whiplashed’ towards Mr Markey, who raised his right hand, and turned his head forcefully to the left in an attempt to avoid it. Despite this manoevre, the tip of the ‘frame’ struck Mr Markey on the right posterior skull and upper cervical region, knocking him to the ground to his left side. His right hand was also injured attempting to protect himself from the ‘frame’. He was dazed, shaken, and in pain, but did not apparently lose consciousness.” [sic].
Dr Williams described Mr Markey’s efforts to continue at work and his collapse on 3 December 2020.
Dr Williams said:
“…Due to the identification of nystagmus, left-sided cerebellar signs and a broad-based, ataxic gait, Mr Markey was investigated, and an MRI scan of the brain revealed features of a left cerebellar infarct, which corresponded to the identified neurological signs. His stroke was recognized as occurring in the context of the injury to his skull and neck, along with the mechanical injury to his right thumb. He underwent comprehensive investigation for causes of the stroke, but the only abnormalities detected were an aneurysmal atrial septum and patent foramen ovale (PFO). (My interpretation of these findings is found below in Section 5.)”
Dr Williams diagnosed:
“a.     Head injury with concussion
b.     (Highly likely) Vertebral artery dissection secondary to a.
c.     Left cerebellar ischemic stroke in the territory of the posterior inferior cerebellar artery (PICA - a branch of the vertebral artery) secondary to b.
d.     (Likely) injury to right utricle secondary to a.
e.     (Minor) history suggestive of functional neurological disorder secondary to c.
f.      (Minor) injury to cutaneous branches of nerves innervating the skin of the lower humerus and elbow following the fall due to a.”
Dr Williams said that Mr Markey had none of the usual risk factors for stroke. He said that the injury described involved considerable force which impacted on Mr Markey’s hand, skull and neck and was more than sufficient to knock him to the ground and into his left elbow as he struck the ground. He said:
“Forceful deformation of a cerebral artery (by extension, rotation, compression or a combination of these factors) is a recognized cause of arterial dissection, which is in turn a recognized cause of stroke. Mr Markey describes rapidly turning his head to the left in an attempt to avoid being struck by the ‘frame’. Such a movement can cause extension, rotation or compression (or a combination of these factors) – that specifically affects the left vertebral artery because of its particular relationship to the cervical vertebrae. (The left posterior inferior cerebellar artery (PICA) is a branch of the left vertebral artery.)
The time between the reported injury to the skull and neck, and the onset of stroke symptoms is well within that recognized between arterial dissection and stroke onset.”
Dr Williams said that if Mr Markey had not suffered a stroke with coordination and balance problems, it is almost certain he would not have manifested functional neurological disorder. That disorder was therefore a result of the injury.

Dr Walker

Dr Walker, neurologist, examined Mr Markey on 17 March 2021 and prepared a report dated 26 March 2021 for the Nominal Insurer. He recorded that Mr Markey was struck by a piece of heavy plastic which fell from four of five metres. Mr Markey shielded himself with his arm but was struck on the right side of his neck and skull base. He went to Gosford Hospital three days later and an MRI scan showed him to have an acute left stroke in the area of the posterior inferior cerebellar artery. It was thought that the stroke was due to a vertebral artery dissection, despite an MR angiogram and CT angiogram being normal.
Dr Walker set out Mr Markey’s progress and noted that he had improved but continued to suffer disequilibrium. He had pain in the proximal interphalangeal joint of his right thumb which was swollen and painful with a reduced grip. Dr Walker queried whether he could do his pre-injury work because of it.
In summarising his opinion, Dr Walker said that even though no arterial dissection was demonstrated radiologically, the injury caused the stroke by vertebral artery trauma. He noted symptoms without objective signs but considered functional overlay was not surprising given Mr Markey’s socioeconomic and domestic circumstances. Dr Walker said that it was unlikely that a similar condition could have occurred around the same time by chance. When asked if Mr Markey’s current presentation was due to the injury, Dr Walker said that he continued to
“suffer from symptoms without objective evidence. There seems to be a functional embellishment. He does have a genuine thumb injury which would preclude his exact work that he was performing irrespective of the effects of the stroke. His current situation is related to the injury at work and has not as yet resolved there is a good chance that it will.”

Dr Walker prepared a report dated 6 May 2021 in response to questions. He said that there was no direct evidence of vertebral artery trauma but a small area of contusion or even dissection may be difficult to see on CT and MRI angiography. He said there was no other obvious explanation for the stroke. The mechanism for the stroke was localised trauma causing a blood clot which travelled from the vertebral artery in the neck to the posterior inferior cerebella artery. Dr Walker said that there was no focal neurological deficit because Mr Markey had recovered, which was not uncommon with a minor posterior fossa stroke. He said that there was no other logical mechanism beside the direct injury to Mr Markey’s neck to cause the stroke.
In a report dated 16 May 2021, Dr Walker considered whether treatment and investigation proposed by the Hunter Brain Injury Service was reasonably necessary. He said that there was no doubt that Mr Markey had a minor posterior fossa stroke and that the issue was the validity of his symptoms. He did not consider that the proposed assessments would assist in getting him back to work and that a driving assessment and instruction was not necessary because Mr Markey was driving. Dr Walker considered that there was little chance of Mr Markey returning to work in the short or medium term. He noted some inconsistencies and suggested that Mr Markey could benefit most from the assistance of a social worker.
Dr Walker provided a file review report dated 4 November 2021 in which he said that documents provided to him did not cause him to change his opinion. When asked to comment on documents from Hunter Brain Injury Service, Dr Walker said that Mr Markey did not have a functional neurological disorder but did agree that Mr Markey sometimes seemed to elaborate his problem.
On 11 January 2022 he confirmed his opinion as to the mechanism for his stroke being that localised trauma caused a blood clot which then travelled from the vertebral artery in the neck to the posterior inferior cerebellar artery.

SUBMISSIONS

Mr Neilson prepared written submissions to which he spoke and which have been placed on the Commission’s file. The submissions were recorded and I will summarise them.

UPVC

After summarising the facts surrounding the injury, Mr Neilson said that the initial certificate of capacity made no reference to an alleged hand injury and that the hospital records did not reveal any concern about his thumb. The Nominal Insurer accepted liability for an injury to Mr Markey’s head/neck and thumb but there was no compensable injury to his thumb. Mr Neilson submitted that the s 145 notice was invalid because it sought to recover payments which should not have been made. He said that the s 145 notice therefore should be set aside.
If I did not determine the matter on that basis, Mr Neilson submitted that I was required to decide if the payment made by the Nominal Insurer was a payment of compensation which would otherwise have been payable by UPVC, referring to Ballantyne v WorkCover Authority of NSW[1]. He said that the onus of proof fell on the Nominal Insurer and Mr Markey.
[1] [2007] NSWCA 239 at [78].
Mr Neilson said that since the recent decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[2] (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[3] (Jamsek), the multifactorial test which has traditionally been applied to determine if a claimant was a worker must be seen as having been rejected. He said that the focus must be on the terms of the contract and that questions about subsequent performance were only relevant for assessing variations to the original agreement.
[2] [2022] HCA 1.
[3] [2022] HCA 2.
Referring to Gordon J’s judgment in Personnel Contracting, Mr Neilson said that it was necessary to determine what the parties agreed at the commencement of the contract. In this case UPVC entered into a contract with the business of Mr Markey. Mr Markey advertised his services and invoiced under his ABN. His arrival unannounced was consistent with an entrepreneur looking to secure work for his business, as does having his own public liability and professional indemnity insurance. He said that he presented himself with an ABN.
The objective evidence, Mr Neilson submitted, was that Mr Markey came to the formation of the contract operating his own business and that his attempts to rely on post contract contact to suggest employment, relying on the multifactorial test, were misplaced. Mr Markey may have desired an employment relationship but that was not what was entered into. The invoices Mr Markey issued reflect on hours worked that is how he prepared all his invoices. Mr Neilson said there was no evidence of payslips showing additional overtime. Mr Neilson also submitted that the evidence of Mr Clark was that he was clear about the terms on which the contract was offered.
He also submitted that Mr Markey was not a decent worker as defined in Sch 1 cl 2 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) because he regularly carried on a trade or business in his own name.
With respect to injury Mr Neilson submitted that it was first necessary to establish what injury compensation was paid for. He said that there was no thumb or hand injury recorded either in the certificates of capacity or the notes of the general practitioner. In addition Mr Markey had a long history of hand and wrist pain before his time at UPVC. He said that the report of Dr Hopcroft was internally contradictory and raises concerns noted by Dr Walker that Mr Markey is prone to “engage in functional embellishment and suffer from symptoms without objective evidence.” Mr Neilson said that there were inconsistencies in the way the injury was reported to the Hunter Brain Injury Service.
Mr Neilson sent that Dr Hopcroft’s report noted that the right thumb bruising had completely resolved so that there was no compensable thumb injury and repeated his submissions that the whole of the s 145 notice is liable to be set aside on that basis alone.
Mr Neilson said that there was no evidence of a compensable neck injury which resulted in ongoing incapacity. Dr Walker concluded that the work injury caused the stroke by vertebral artery trauma. He submitted that Dr Walker may not have been informed of other relevant matters such as the gap between the alleged incident and the admission to hospital and that Mr Markey worked as normal for those days. He also relied on the statement to the Hunter Brain Injury Service that he collapsed while running – a fact which had not been otherwise disclosed. Mr Neilson said that I could not be satisfied that there was sufficient linkage between the incident and the stroke but even if I was, it was necessary to consider s 9B of the 1987 Act.
With respect to s 9B, Mr Nielson said that there was no medical or lay evidence as to whether the employment “on the day on question” resulted in a significantly greater risk of suffering a stroke. He referred to the decisions in Renew God’s Program v Kim[4] (Kim) and Secretary, Department of Communities and Justice v Galea[5] (Galea). Mr Neilson described the injury as a freak accident and said that the risk of a freak accident in the workplace is equal – there is nothing unique to UPVC’s workplace to suggest that the nature of the employment carried a significantly greater risk.
[4] [2019] NSWWCCPD 45.
[5] [2021] NSWWCCPD 1.
Mr Neilson said that there was another construction of s 9B which was open and which suggests that Kim and Galea were wrongly decided. He said that the decision in Kim rejected the proposition that the reference to the “nature of the employment” was a reference to a classification and held that the words should be given the same meaning as in s 9A. Mr Neilson said that construction failed to take account of the use of nature which means the “inherent character” or a “a kind of class usually distinguished by fundamental or essential characteristics.” He said that required consideration of the class of employment as opposed to the employment engaged in by the worker. In this case the class is that of a carpenter and there is no evidence, nor could there be, that a carpenter is it significantly greater risk of stroke than any other occupation.
Mr Neilson repeated the submission that there was no incapacity associated with the thumb and the whole notice was therefore defective. He said that Dr Walker considered that Mr Markey had some capacity for some of the relevant period because by 6 May 2021 he had recovered objectively. Mr Neilson said that Mr Markey had not fulfilled his return to work obligations under s 48 of the 1998 Act. He said that a failure by the Nominal Insurer to manage his failure to return to work means that the notice should be set aside because compensation should not have been paid.

Mr Markey

Mr McMahon made oral submissions on behalf of Mr Markey. He said that this situation was distinctly different to those in Personnel Contracting and Jamsek. In each of those cases, the arrangement between the parties had been comprehensively committed to a written contract. He took me to [42]-[44] of the decision in Personnel Contracting set out below.
Here there was no written contract so that it was necessary to look at the indicia of employment and to look at what happened at the start. The evidence showed that it was agreed that Mr Markey would start at 7.30am on a Monday and an hourly rate of pay was agreed. Mr Markey was to work as a qualified carpenter at the direction of Mr Clark. Mr Markey was to put in invoices to identify the week’s work. The hours were dictated by Mr Clark. Though Mr Markey had time off for particular things, he was required to discuss that time with Mr Clark.
The ABN that Mr Markey held was obtained for his massage business. He said that the advertisements for his business were placed by his ex-wife. He held public liability insurance only.
Mr McMahon said that the work Mr Markey did was undertaken in the name of UPVC at the factory or delivered in a UPVC vehicle and was within the business of UPVC. Mr Clark trained him in how to use some of the equipment.
Mr Clark provided t-shirts and Mr Markey provided a photograph of them. Mr McMahon said I would reject the contention that they were from the rag pile. The t-shirts in the photograph are all the same and bear the UPVC logo. Mr Markey used some of his own hand tools but the large equipment was all owned by UPVC and used in its business. Mr McMahon said I would infer from the evidence of Mr Markey and Mr Romano that there was a work vehicle which was owned and maintained by UPVC.
Mr McMahon said that the allegation that Mr Markey was to be paid per job was not borne out by the form of the invoices and there is no example in Mr Clark’s evidence, which was telling. Mr Romano corroborated Mr Markey’s evidence that he was paid an hourly rate. Mr McMahon said it was difficult to see how Mr Markey could be paid an hourly rate when the men were working in the factory together as a team. Mr Markey worked regular hours and was not allowed to choose his own – his evidence was consistent with Mr Romano’s and Mr Clark’s evidence stands alone.
Mr Markey did not have the ability to delegate tasks and the modest hourly rate he was paid means that could not occur. Mr McMahon said that the rate of pay was that of an employee.
Mr McMahon referred me to the review of the law by Dicker DCJ in Moffett v Robin[6] (Moffett) at [478] and following with respect to whether a person was a worker and at [474]-[475] as to whether he was a deemed worker.
[6] [2021] NSWDC 211.
Mr McMahon said that the undertaking of two odd jobs during the period he worked for UPVC did not constitute a business. The work Mr Markey did was not work of the same nature as that undertaken with UPVC and his bank statements confirmed that he did not derive income from a business. Mr McMahon said that if Mr Markey was not a worker, he was a deemed worker.
With respect to the question of injury, Mr McMahon said that the event was not in contest. Mr Markey said that he made a makeshift splint for his right thumb before starting work on the day after the injury. The Discharge Summary from Gosford Hospital is consistent with Mr Markey’s statement.
Mr McMahon said that it was not contested that Mr Markey suffered trauma to the side of his head and neck. The evidence confirmed that he was incapacitated for work and that the treatment undergone was reasonably necessary.
Mr McMahon said that the stroke which Mr Markey suffered was a consequential condition rather than an injury. Section 9B therefore did not apply because it applied to a situation where the stroke was the injury. Both Dr Walker and Dr Williams were in agreement about the nature and consequences of the incident and there was no contradictory evidence from UPVC.
Mr McMahon said that the summary of the law in UPVC’s written submissions was helpful. Even if the stroke was the relevant injury, the system of work at UPVC’s factory involved storage and use of long pieces of plastic which may strike a worker and cause injury if they whipped around while being brought from the mezzanine level. The nature of the employment did expose Mr Markey to a significantly greater risk of injury and the test in s 9B was made out.
Mr McMahon also highlighted references in the Gosford Hospital notes to the injury to Mr Markey’s right hand and thumb.

The Nominal Insurer

Mr Baker said that the important factor in the recent High Court cases was the existence of a written contract. Where the evidence showed that the negotiations between the parties were verbal, the multifactorial test continued to apply.
Mr Baker said that it was important to note that where the evidence of Mr Markey conflicted with Mr Clark, the evidence of Mr Romano supported Mr Markey. Mr Romano supported the contention that Mr Clark set the hours and that he and Mr Markey were forbidden to start earlier. Mr Romano said he was paid a flat rate which was consistent with Mr Markey’s evidence that Mr Clark determined the rate of pay – initially $25 per hour, reduced to $20 then later increased again to $25, the rationale being that he had gone through a period of training. Mr Baker said that it was important to counterbalance the evidence about Mr Markey and Mr Romano with the evidence about the real sub-contractor, Alister, who was brought in when there was work to be done on various contracts.
Mr Baker referred to the statement by Roche DP in Maliavanek v Ring Group Pty Ltd[7] (Maliavanek):
“As Bromberg J explained in On Call Interpreters, while the majority in Hollis 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 to with approval by Crispin P and Gray J in Yaraka Holdings Pty Ltd v Gilgevic[2006] ACTCA 6; (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)’
Regrettably, no argument along these lines was presented in the present matter, either before the Arbitrator or on appeal, and it is unnecessary to express a view on whether, if it had been, it would have led to a different outcome. Suffice to say that, in cases of this kind in the future, the parties would be well advised to give careful attention the questions posed byBromberg J in On Call Interpreters, which are based on the majority decision in Hollis. 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.” (emphasis in original).
[7] [2014] NSWWCCPD 4 at [183]- [184].
Mr Baker said that Mr Markey was not an entrepreneur. As to whether he was a deemed worker, Mr Baker took me to the same decision at [214] where Roche DP said:
“In Humberstone v Northern Timber Mills[1949] HCA 49; 79 CLR 389 (Humberstone), Dixon J (as his Honour then was) said, starting at 401:
‘I think that the purpose of the exception or exclusion expressed by the words in question was to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a firm or business name as carrying on such a trade or business and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. The provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word ‘trade’ is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so.’ (emphasis added)” (emphasis in original.)
Mr Baker said that Mr Markey did not hold himself out as conducting a trade or business.

With respect to the injury to Mr Markey’s thumb, Mr Baker submitted that there were references to it throughout his statement. There were photographs of the injury and complaints to Dr Poate. It is true that the first certificate of capacity only referred to the stroke but that was at the time “the main game.” There were also references to the thumb injury in physiotherapy reports.

Reply

In reply, Mr Neilson said that the test in Personnel Contracting and Jamsek did not distinguish between a written and an oral contract and that if contract was not written, it was necessary to consider only the events surrounding its formation. He said that when Mr Clark and Mr Markey met, Mr Markey said that he was a local contractor who provided carpentry and handyman services and Mr Markey did not dispute that evidence, nor did he engage in his evidence with the key issues about the formation of the contract.
Mr Neilson quoted from Gordon J’s judgment in Personnel Contracting[8]:
“In construction of an employment contract it is not necessary to ask whether the purported employee conducts their own business. That is, the inquiry is not to be reduced to a binary choice between employment or own business. The question must always focus on the nature of the relationship created by the contract between the parties.
…
The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer. That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd, both employees and contractors can work ‘for the benefit of’ their employers and principals respectively, and so that, ‘by itself’, cannot be a sufficient indication that a person is an employee (emphasis added). That does not detract from the fact that where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes – to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged.”
[8] At [180] and [183].
Mr Neilson said that the key issues about the formation of the contract in Mr Clark’s evidence were not contradicted. He said that an email to the factual investigator on 28 December 2020 was not a contemporaneous document and did not support the conclusion that Mr Clark determined the hours of work. He said it was irrelevant that Mr Markey had used the ABN in another business. He said I should not accept Mr Markey’s evidence that he was no longer doing work in his previous business when he undertook repair work and it was beside the point that he only did it once.
Mr Neilson said that there was no reference to the thumb injury in the certificates of capacity but noted that the full set of certificates have not been provided to me. He said that Mr Markey had been paid because of the stroke injury not because of a bang to his thumb. He said that I would not rely on the oblique reference in Dr Walker’s report in May 2021.
In response to the submission that the stroke was a consequential condition, Mr Neilson said the words associated with in the section do away with the concept of consequential condition in these circumstances.

FINDINGS AND REASONS

Section 145

It is common ground that UPVC did not have workers compensation insurance. Section 145 relevantly provides:
“145   Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)–(26))
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b)an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     …
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a)make such determination in relation to the application, and
(b)make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) …
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a)the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”
My task in these proceedings is to determine UPVC’s liability to reimburse the Nominal Insurer in respect of the payments made and which are the subject of the notice.

Validity of the notice

Section 145 provides that a person who has been served with a notice may apply for a determination of their liability. As Basten JA said in Ballantyne v WorkCover Authority of NSW[9] that the language, structure and context of s 145 gave rise to a series of propositions including:
“(6) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of ‘compensation in accordance with this Act’, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.”
[9] [2007] NSWCA 239 at [78].
Section 145 allows for the determination of liability in respect of the payments sought to be recovered in the notice. For the purpose of this application, I am concerned only with the compensation payable up to 26 May 2021 being the subject of the notice issued on 9 June 2021.
UPVC’s argument about the validity of the notice turns on the nature of the injury Mr Markey suffered. There is no argument that there was a defect in the form of the notice or the way it was served. UPVC submitted that the notice was invalid because it referred to an injury to Mr Markey’s thumb in respect of which there was no compensable injury because there was no reference to it in the medical certificates. It submitted that the notice should be set aside on that basis alone. UPVC did not refer to any authority in support of its argument.
The Commission’s task under s 145 is to determine liability in respect of the payments which have been made. That requires me to determine first if Mr Markey was a worker or a deemed worker, then if he suffered an injury and after that what compensation was payable in respect of that injury.

Was Mr Markey a worker?

The definition of worker appears in s 4 of the 1998 Act:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing) …”
Traditionally, the Commission has considered the multi-factorial test set out in decisions such as Hollis v Vabu Pty Ltd[10] (Hollis) and exemplified in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3[11]) (On Call). Maliavanek is an example of that application.
[10] (2001) 207 CLR 21.
[11] [2011] FCA 366; 279 ALR 341.
Mr Neilson argued that the multi-factorial test no longer applies since the decisions in Personnel Contracting and Jamsek, so that it is necessary to consider those decisions and their context. The decisions both concerned relationships which were governed by a written contract. In the Federal Court in Personnel Contracting, a multifactorial test had been adopted despite the existence of a written contract. The Full Federal Court also approached the question by a multifactorial analysis but held that, on the basis of another decision which involved essentially the same dispute, that the union member was a contractor. Lee J said that the notion that the union member was an independent contractor was “somewhat less than intuitively sound.”
The High Court held that the union member was an employee of Personnel Contracting, a labour hire company, with which he had entered into a written contract. He was described in that contract as a self-employed contractor. Despite that description, an examination of the contract showed that the union member was an employee of Personnel Contracting which placed him with a builder.
The plurality (Keifel CJ, Keane J and Edelman J) said that a multifactorial approach is apt to generate uncertainty which is exacerbated where it is contended that the test is to be applied in respect of the parties' conduct over the whole course of their dealings with each other.[12] Their Honours went on:[13]
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.
In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.”
[12] At [33].
[13] At [34].
In the passage to which Mr McMahon referred[14], the plurality said:
“A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.
While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.
Not only is there no reason why, subject to statutory provisions or awards, established legal rights and obligations in a contract that is entirely in writing should not exclusively determine the relationship between the parties but there is every reason why they should. The ‘only kinds of rights with which courts of justice are concerned are legal rights’. The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.”
[14] At [42]-[44].
The plurality said[15]:
“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.
...
The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”
[15] At [59]-[61].
The plurality noted that the contract referred to the union member as a contractor but that “the rights and duties agreed between [them] leave no room for ambiguity as to the character of that relationship.”[16]
[16] At [79].
Mr Neilson referred to Gordon J’s decision. Her Honour said:[17]
“The resolution of the central question requires consideration of the totality of the relationship between Construct and Mr McCourt, which must be determined by reference to the legal rights and obligations that constitute that relationship. Where the parties have entered a wholly written employment contract, as in this case, the totality of the relationship which must be considered is the totality of the legal rights and obligations provided for in the contract, construed according to the established principles of contractual interpretation. In such a case, the central question neither permits nor requires consideration of subsequent conduct and is not assisted by seeing the question as involving a binary choice between employment and own business. The totality of the relationship between Construct and Mr McCourt was that of employer and employee.”
[17] At [162].
Her Honour said:
“In deciding whether a relationship between two parties is one of employment, it is the ‘totality of the relationship’ which must be considered. That approach must be understood in light of the view, recently re-affirmed by six judges of this Court in WorkPac Pty Ltd v Rossato, that ‘[a] court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship’ (emphasis added). In modern times, those legal rights and obligations derive from a contract of employment. …
It follows that, in the case of a wholly written employment contract, the ‘totality of the relationship’ which must be considered is the totality of the legal rights and obligations provided for in the contract. To ascertain those legal rights and obligations the contract in issue must be construed according to the established principles of contractual interpretation.”[18]
[18] [172]-[173].
It was in the context of a wholly written that Gordon J said that the “task is to construe and characterise the contract made between the parties at the time it was entered into” and made the statement set out at [111] above.
Jamsek concerned two employed truck drivers who, after several years of employment, agreed to purchase their own trucks and entered into contracts with the company. Each set up a partnership with his wife and executed a written agreement. The Full Court of the Federal Court held that the drivers were employees for the purpose of the Fair Work Act 2009 (Cth) by considering “the substance and reality of the relationship.” The plurality said[19]:
“In these circumstances, and for the reasons given in CFMMEU v Personnel Contracting, the character of the relationship between the parties in this case was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship. The circumstance that entry into the contract between the company and the partnerships may have been brought about by the exercise of superior bargaining power by the company did not alter the meaning and effect of the contract.”
[19] At [8].
In this case there was no written contract. As passage set out at [128] above makes clear, the characterisation of the totality of the relationship by reference to the indicia of employment is relevant where the contract is oral, as the contract between UVPC and Mr Markey was.

Application of the principles

I do not accept Mr Neilson’s submission that Mr Markey did not respond to the elements of Mr Clark’s statement which dealt with the making of the contract. In his statement dated 28 September 2021, he responded to and disagreed with Mr Clark’s evidence about the conversation which took place.
I also do not accept Mr Neilson’s submission that any conduct after the first conversation was irrelevant. The statements about the primacy of the contract in the recent High Court cases were made in the context of a relationship which was founded in a written contract. Here the contract was entirely oral. Mr Markey and Mr Clark provided evidence as to what occurred at the first meeting and their statements differ dramatically as to what was said. It is not possible to form a clear picture of the conversation which took place without accepting the evidence of one in preference to the other.
However, much of what Mr Markey said about the way things were done in UPVC’s factory is supported by the evidence of Mr Romano and some by contemporaneous text messages and photographs. Where there is a dispute between Mr Markey and Mr Clark, I prefer the evidence of Mr Markey, particularly where there is independent support.
The plurality in Personnel Contracting specifically accepted that there may be cases in which it is appropriate “in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities.” This is one of those cases.

The indicia to be considered in determining if a person is a worker or contractor are not of equal weight. The most important question is that identified in Personnel Contracting and in On Call as cited in Maliavanek – whether the person is an entrepreneur working in their own business or serving in the business of an employer. The facts of this case support the finding that Mr Markey was working in the business of UPVC.
Though expressed in the context of vicarious liability, the summary of the authorities set out by Dicker DCJ in Moffett is helpful in balancing the indicia. His Honour said[20]:
[20] At [488].
The principles which emerge from these authorities appear to be as follows:
1.The labels “employer” and “employee” and “principal” and “independent contractor” are merely that. The classification does not of itself determine the legal conclusion that there is or is not vicarious liability. Otherwise this would allow linguistics to determine legal rights.
2.It is important to have regard to all the circumstances of the case to determine whether a plaintiff is an employee or an independent contractor. This is also relevant to whether the defendant is liable for vicarious liability.
3.The fact that the plaintiff used their own equipment is relevant (Humberstone) but not decisive (Hollis), particularly if the alleged employer’s equipment is expensive and substantial.
4.The fact that the plaintiff carried the expenses of running and maintaining some equipment is relevant (Humberstone) but not decisive (Hollis).
5.Of relevance is whether the plaintiff is running his or her own business or enterprise. Also relevant is whether the plaintiff has independence in the conduct of their operations.
6.The fact a person has very considerable autonomy in the performance of their contractual obligations does not necessarily negate an employment relationship.
7.Whether the plaintiff was providing skilled labour is relevant.
8.Whether the plaintiff has control of the manner of performing their work or the times at which it was to be performed are relevant.
9.Whether the alleged employee is presented to the public wearing uniforms bearing the company’s logo is relevant.
10.Whether a relatively small capital outlay is required of the alleged employee is relevant.
11.A conclusion that a person is an “employee” or “independent contractor” for a particular purpose (such as payroll tax, superannuation or employment law) cannot determine whether the relationship is such to engage the rules of vicarious liability.
12.Control by the alleged employer is important, including the practical exercise of control over the work of the alleged employee.
13....”
Mr Markey held an ABN for work he had done before he met Mr Clark but that does not, of itself, mean that he was engaged in a business and that he did not enter into a contract for services. He had had that ABN since he had conducted a massage therapy business. Mr Romano said that he was asked by Mr Clark to obtain an ABN. Similarly Mr Markey had advertised and had invoiced before August 2020. That does not necessarily mean that he was a contractor when he was working in the factory of UPVC. A person might be self-employed until commencing employment with an employer.
Mr Markey met Mr Clark during the pandemic and he had done only two jobs during the period from March to August 2020. He did do some other work in the period when he worked at UPVC – one of those jobs was a repair occasioned by previous work and the other was helping a friend unload a shipping container. Neither of those activities are necessarily consistent with an ongoing business, particularly the second.
Mr Markey did not set his own hourly rate. He asked to be paid $26.70 per hour but accepted $25 offered by Mr Clark. Mr Clark said in his statement to the investigator that Mr Markey was not as experienced as he had been told so he reduced the rate to $20 per hour because he was slow. Mr Markey told the investigator that he was not consulted about the reduction. Mr Clark increased it to $25 when Mr Markey’s work performance improved. Mr Clark did not say anything about the hourly rate in his second statement. Mr Clark’s unilateral decision about reducing then increasing Mr Markey’s rate of pay is a factor pointing toward employment.
I accept that from the time he commenced working with UPVC, Mr Markey worked five days a week. He was engaged on a full-time basis. Mr Romano said that he and Mr Markey both worked a minimum of 40 hours in the business. That is confirmed by Mr Markey’s invoices.
I accept that Mr Markey’s hours were set by Mr Clark. Both Mr Markey and Mr Romano said that they wanted to start earlier but Mr Clark did not agree. I accept that Mr Markey sought permission for time off. Mr Clark agreed on some occasions and declined on at least one other. He told Mr Markey that he should plan time off in January.
While Mr Markey did provide “invoices”, the documents are really in the nature of timesheets. They are itemised by reference to hours and not to particular jobs. There is no dispute that once Mr Clark was happy with the form of the invoices, they were paid. It is fundamental that if Mr Markey was to be paid by the job, then the invoices would refer to the job and would be unlikely to be accepted if they did not. The presence of the ABN on the invoices does not assist because Mr Clark asked that it be included.
The work that Mr Markey did was to fulfil the orders that UPVC had. There is no evidence that he had any role in obtaining those orders. Apart from a few hand tools, he used the machinery in the factory and was instructed in its use by Mr Clark.
Mr Clark told Mr Markey when he should arrive at a site for installation. I accept the evidence of Mr Markey and Mr Romano that they usually went to the site in a work vehicle. It is difficult to see how the windows and doors to be installed would be transported from the factory to the site without one.
I do not accept Mr Clark’s evidence that the UPVC t-shirts were found by Mr Markey in the rag pile. While the provision of clothing is an indicium which is of lesser importance, the photograph attached to Mr Markey’s second statement does not support Mr Clark’s claim. Mr Markey’s evidence that a number of t-shirts worn by others no longer working with UPVC were given to him is plausible. It is consistent with that of Mr Romano. The inference arising is that those t-shirts were worn during the installation of UPVC’s products.
Mr Clark did not pay for leave, did not make superannuation contributions or deduct tax. None of those factors are determinative and the failure to pay them was a decision made by Mr Clark.
Taking all of those matters into account, it is clear that Mr Clark controlled the way in which the work was done and the conditions under which the work was done. There is no suggestion that Mr Markey was free to delegate the work and the evidence about the way in which the work was done shows that delegation would not have been acceptable to UPVC. I agree with Mr McMahon and Mr Baker that the position of Mr Markey and Mr Romano should be contrasted to that of Alister, the “real” contractor who was brought in from time to time.
I am satisfied that Mr Markey was a worker employed by UPVC. From August 2020 until 30 November 2020 he was working in the business of UPVC and not in his own business.

Deemed worker

Clause 2 of Sch 1 of the 1998 Act defines a “deemed worker” as follows:
“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.”
If I am incorrect in the finding that Mr Markey was a worker, the evidence supports the conclusion that he was a deemed worker. He clearly did not employ anyone to assist him. While he did have a business in the period before he commenced working with UPVC, I am satisfied that he did not regularly carry on a trade or business during the period. The fact that he completed two quite different small jobs during the period is not inconsistent with that conclusion.

Injury

The next step in the process of determining UPVC’s liability to reimburse the Nominal Insurer is to determine whether there was an injury and whether it is compensable. There is no dispute about the incident on 30 November 2020 and that Mr Markey was struck by a long and heavy piece of plastic.
Injury is defined in s 4 of the 1987 Act. It is “personal injury arising out of or in the course of employment.” Roche DP considered the meaning of “personal injury” in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[21]. He said:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change
[21] [2014] NSWWCCPD 47
Mr Markey injured his thumb on 30 November 2020. He also suffered a blow to the side of his head or neck.
Mr Neilson stressed that there was no reference to an injury to Mr Markey’s thumb in the medical certificates but did not refer me to any legislative provision or guideline which provides that a condition or injury must be mentioned in a certificate before compensation can be paid. Section 44B of the 1987 Act which provides for the provision of medical certificates requires certificates with respect to capacity, not certificates of injury. The Commission is often required to determine the nature of the injury suffered as part of the determination of an employer’s liability.
Mr Clark did not say anything about the injury in the statement prepared for the purpose of this application. He described the incident in the statement dated 7 February 2021 prepared by the investigator and said that Mr Markey said he had hurt this thumb and Mr Clark saw him strap his thumb. Mr Clark said that on the following days Mr Markey did not complain about anything other than his thumb.
There clearly was an injurious event which resulted in a sudden pathological change in Mr Markey’s thumb and it was inappropriate for UPVC to submit there was no injury on the basis of its own evidence. The extent of any incapacity is a separate question.
UPVC raised a number of issues with respect to the thumb injury in support of its contention that the s 145 notice was invalid and liable to be set aside but they are not relevant to the question of injury. The fact that Dr Hopcroft said it had resolved in his report dated 2 November 2021 is irrelevant because the compensation which is sought to be recovered was paid in the period before 26 May 2021.
It is clear that Mr Markey suffered an injury to the side of his neck when struck by the plastic. Photographs taken in hospital show a healing wound.
Mr Markey was in the course of his employment when those injuries were suffered and there was no submission that employment was not a substantial contributing factor to the injury. UPVC’s submissions turned on the application of s 9B of the 1987 Act.
Before turning to the application of s 9B of the 1987 Act, I note that UVPC sought to rely on statements in the documents produced by Hunter Brain Injury Service to challenge Mr Markey’s history – in particular the references to him collapsing while running and that he went home to bed straight after the injury. UPVC sought that I draw an inference that there were other events of which the doctors were not aware
The history with respect to the morning of 3 December 2020 is supported by Ms Cooke – Mr Markey was unable to get out of bed and Ms Cooke went to open the house for the paramedics. There is no evidence that he collapsed while running. The statement was recorded in one clinical note prepared some time after the injury.
In Davis v Council of the City of Wagga Wagga[22] Mason P, with whom the other members of the Court agreed, said that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.” In Nominal Defendant v Clancy[23], Santow JA said:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[22] [2004] NSWCA 34 at [35].
[23] [2007] NSWCA 349.
The statement is equally apt for other treatment providers. I decline to draw the inference that UPVC invited me to draw based on one comment in notes prepared for the purpose of treatment by a physiotherapist at Hunter Brain Injury Service.
The history from the statements and other records is that Mr Markey went to the house at which he was staying and rested before going to dinner with Mr Hume, whose statement supports the fact of the thumb injury and the neck injury. The statement in Dr Strutt’s report that Mr Markey went home and went to bed is therefore supported by the evidence and does not support any adverse finding about Mr Markey’s credit.

Consequential condition and s 9B

Mr Markey suffered a blow to the side of his head on 30 November 2020. He suffered a stroke on 3 December 2020. The tenor of the medical evidence from Gosford Hospital, Dr O’Brien, Dr Walker and Dr Williams is that when he was hit by the long piece of plastic, he suffered an injury to his vertebral artery which resulted in a stroke.
In Kooragang Cement Ltd v Bates[24] (Kooragang) Kirby P said that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”[25]. His Honour said:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[24] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[25] At [461G].
Kirby P said[26]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
[26] At [463]-[464].
In Bouchmouni v Bakhos Matta t/as Western Red Services[27] (Bouchmouni), Roche DP said:
“It may be seen that if an ‘injury’ sets in train a series of events then, if the chain is unbroken and provides the relevant causative explanation for the incapacity or impairment, compensation is payable (though, in the case of a claim for compensation for permanent impairment, the payment is dependent upon an assessment by an Approved Medical Specialist (AMS)). That does not mean that the condition that provides the relevant causative explanation for the incapacity or impairment is an ‘injury’.
The fact that the worker in Kooragang died from a heart attack did not mean that the heart attack was an ‘injury’. It meant that, on the facts of that case, there was an unbroken chain of causation between the back injury and the death. In other words, the heart attack (and death) resulted from the back injury.”
[27] [2013] NSWWCCPD 4.
If it was not for s 9B, the medical evidence supports the conclusion that the stroke suffered by Mr Markey was a consequential condition, suffered as a result of the blow to the side of his neck, which resulted in a vertebral artery dissection. However the words of s 9B(1) are broad – in particular the use of “results in or is associated with.” The section appears intended to preclude compensation for a consequential stroke unless the provisions of s 9B are met. It is therefore necessary to consider s 9B in respect of the consequential confdition.
Section 9B of the 1987 Act relevantly provides:
“9B   No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1)     No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2)     In this section—
…
stroke injury means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with—
(a)any stroke, or
(b)any cerebral infarction, or
(c)any cerebral ischaemia, or
(d)any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e)any subarachnoid haemorrhage, or
(f)any haemorrhage from such a blood vessel, or
(g)any harm or damage to such a blood vessel or to any associated plaque, or
(h)any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i)any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j)any consequential physical harm or damage, including neurological harm or damage, or
(k)any consequential mental harm or damage.”

Authorities

The Presidential decisions with respect to s 9B concern heart attacks, as does the decision in De Silva v Secretary, Department of Finance, Services and Innovation[28] given by Snell DP when a Senior Arbitrator. I considered the application of the principles to a stroke injury in Herbert v American Express Australia Limited[29] consistently with De Silva.
[28] [2015] NSWWCC 279.
[29] [2018] NSWWCC 107.

The worker in De Silva was required to travel throughout the state in the course of his employment. He suffered a heart attack and died in his hotel room whilst away from home. The decision considered the meaning of “the nature of the employment concerned”. The Senior Arbitrator said that the ordinary grammatical meaning of the words was a reference to the particular employment in which the injury was suffered rather than to the class or classification of the employment. After setting out dicta with respect to similar words in other workers compensation contexts and statements by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[30] the Senior Arbitrator said:
“In my view the ordinary and grammatical sense of the phrase ‘nature of the employment concerned’, where it appears in section 9B of the 1987 act, is a reference to the employment concerned with the heart attack or stroke injury which is that issue. That is, it is a reference to the particular employment in which the injury was suffered, rather than to ‘the nature of the class or classification of employment’ as that description is used in Bourne and Connair.”
[30] [2009] HCA 41; 239 CLR 27 at [4] and [49].
He considered the meaning of “the employment concerned” in s 9A of the 1987 Act and said[31]:
“The nature of the tests in section 9A and section 9B is not the same. Section 9A involves a ‘causative element’: Badawi at [80]. Section 9B involves an evaluation of risk, it does not involve a true test of causation. Be that as it may, sections 9A and 9B are both provisions in the same legislation which impose a statutory precondition for the payment of compensation. The statement in Badawi that the ‘employment concerned’ refers to ‘what the worker in fact does’ in the ‘employment that caused or contributed to the injury’ is consistent with the view I have formed. The passage of Harrison quoted above is consistent with the phrase ‘employment concerned’ having the same meaning in both section 9A and section 9B.”
[31] At [70].
The Senior Arbitrator quoted from the Treasurer’s Second Reading Speech on 19 June 2012[32]:
“‘The proposed amendment to section 9B of the Workers Compensation Act will have the effect that worker heart attacks and strokes will not be covered by the scheme unless the nature of the employment concerned gives rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature. It is considered this is a fairer and more reasonable test for employers to meet than the current test of “substantial contributing factor”.’
The concept of a fairer and more reasonable test for employers to meet is consistent with the view I have formed regarding the ordinary and grammatical sense of the phrase. An employer would not be involved in meeting a test if the phrase referred to a class or classification of employment, rather than to the particular employment in which a worker suffered injury.”
[32] At [72]-[73].
In the application to the facts of that case, the Senior Arbitrator said that the nature of the deceased worker’s duties required him to travel and to stay alone in hotels. With respect to the words “gave rise to a significantly greater risk of the worker suffering the injury, he said[33]:
“Section 9B(1) does not require a significant risk. It requires a comparison of (1) the risk to which the nature of the employment concerned gives rise and (2) the risk had the worker not been employed in employment of that nature. It is necessary that the first of these be ‘significantly greater’ than the second, if compensation is to be payable.
The ordinary and grammatical sense of the words ‘significantly greater’ is that the first of the measures, in the preceding paragraph, be greater than the second in a way which is significant. The first of the dictionary definitions referred to at [100] above (‘important; of consequence’) is consistent with the ordinary meaning of the word ‘significant’. It is consistent with the context in which the words are used, the test in section 9B replacing (for ‘disease’ injuries) the previously applicable test in section 9A.”
[33] At [105]-[106].
In the circumstances of that case, the risk of the worker suffering cardiac arrest as a result of ventricular fibrillation would have been much less if he had been at home and his partner able to seek medical attention on his behalf.
The worker in Kim also suffered a heart attack injury in the course of his employment, having first suffered chest pain after his work day as a furniture removalist and cleaner. His work was the main contributing factor to the aggravation of coronary artery disease. The parties agreed that De Silva was correctly decided and the decision turned on the comparison of the level of risk in the particular employment of the worker with the risk if he had not been employed in work of that nature. The employer’s argument turned on the failure of the worker’s medical case to address the requirements of s 9B. Snell DP said that it was desirable that the parties’ medical evidence address the requirements of the section but noted that the Arbitrator had correctly referred to the statement by Roche DP State Transit Authority v El-Achi:[34]
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
[34] [2015] NSWWCCPD 71 at [72].
The Arbitrator’s decision to award compensation was confirmed. The Arbitrator had said:
“Notwithstanding A/Prof Haber’s failure or omission to provide an opinion which specifically uses the terminology required of section 9B there is from my reading of his opinion little doubt that his opinion is predicated on the risk of a heart attack being made significantly greater by the heavy work that was undertaken by the applicant on 26 July 2018.”[35]
[35] Quoted in Kim at [63].
The worker in Galea suffered a psychological injury in the course of her employment and a later heart attack injury arising out of her employment. Snell DP said[36]:
“Both parties accept that s 9B has application in the circumstances. Neither party argues that De Silva and Kim are wrongly decided. The following may be taken from those decisions:
(a) the worker carries the onus of establishing that the test in s 9B is satisfied;
(b) where the words ‘an injury’ first appear in s 9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to satisfaction of the test in s 9B;
(c) where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to ‘what the worker in fact does in the employment that caused or contributed to the injury’;
(d) s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation. The test involves an evaluative judgment, and
(e) the test requires satisfaction on all of the evidence. It does not necessarily ‘require that there be medical evidence to some particular effect’. In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section.”
[36] At [111].

Application

UPVC’s bald argument that there is no medical evidence addressing s 9B must fail for the reasons set out in Kim. I am required, considering the whole of the evidence, to determine if the elements of the section are satisfied. There is no dispute as to the mechanism of the injurious event. Mr Clark agrees that it occurred as Mr Markey said.
While Dr Walker and Dr Williams did not consider the specific words of the section, their reports explain the chain of causation between Mr Markey being struck by the length of plastic and the stroke.
UPVC did not rely on any medical evidence and there is no medical evidence which raises any alternative cause of the stroke. I accept that the blow to the base of Mr Markey’s skull caused the vertebral artery dissection which led to the stroke.
UPVC sought to argue that Kim and Galea were wrongly decided because the decisions failed to give proper attention to the words the “nature of the employment concerned.” The argument appears to be made without reference to De Silva and the acceptance of the interpretation of the words in the Presidential decisions of Kim and Galea. The employment concerned is Mr Markey’s particular employment at UPVC, not the general classification of carpenter.
UPVC’s third argument is that there is no lay evidence to support the contention that the nature of Mr Markey’s employment resulted in a greater risk of suffering a stroke because the injury was a freak accident.
I do not agree that the injury should be characterised as a freak accident. Many compensable work injuries might be described in that way.
The injury suffered by Mr Markey is different to many which might fall within s 9B. Section 9B only needs to be considered in this case because of the characterisation of a stroke injury as one which “results in or is associated with” a stroke. The Second Reading Speech quoted in De Silva noted that the test was a more reasonable one for employers. One consequence of the test is that a worker who suffers a heart attack or stroke as a result of a non-work related condition or lifestyle factors while in the course of his or her employment will not be entitled to compensation merely because they were at work.
As set out in Galea, the reference to “an injury” in s 9B is the injury suffered by the worker in respect of which compensation is otherwise payable. In Mr Markey’s case, that injury is the injurious event of the blow to the base of his skull which, on the medical evidence, caused a vertebral artery dissection and led to him suffering a stroke. It is on the evidence an injury in the course of his employment to which employment is a substantial contributing factor.
Mr Markey suffered that injury while he was working in the factory and assisting Mr Clark who was passing the length of plastic down from the mezzanine level. It was a task which is inherently within the scope of his employment with UPVC.
The evidence of Mr Clark, Mr Markey and Mr Romano is consistent – that lengths of plastic used in the fabrication of UPVC’s products were stored on the mezzanine level of the factory. Those lengths of plastic are about six metres long. Mr Clark said that the way he was doing the job when Mr Markey was injured was the way he normally did it if only one or two strips were required. If more strips were required, a forklift was used to bring the whole package down. On this occasion he expected that the strip he was passing to Mr Markey would have floated in the air a little more. Mr Romano said that it was a task which had to be done carefully.
Rather than being a freak accident, the injury suffered by Mr Markey is of a kind which might be expected to occur if a long piece of plastic was being passed from a mezzanine level to the factory floor. It might be expected that the person catching the plastic on the factory floor would be struck by it. It is a significant risk arising from the way the factory was set out and the kind of materials used by UPVC to produce its products. It is not difficult to see how merely manipulating lengths of the kind of plastic used to make windows and doors might expose a worker to the risk of being struck.
I am satisfied that Mr Markey’s injury was suffered because the nature of his specific employment at UPVC gave rise to a significantly greater risk of a blow to the side of the head than if he had not been so employed.

Compensation

Once it has been determined that an injury has been suffered, s 9 of the 1987 Act provides that compensation is payable in accordance with the Act. Compensation includes a weekly payment during a period of total or partial incapacity for work (3M) and compensation for medical, hospital or related treatment (s60).
Mr Markey was certified as having no current work capacity at least until 21 July 2021, a date after the period covered by the s 145 notice. There is no evidence to the contrary. He underwent treatment for which he incurred expense.
Because Mr Markey suffered a stroke, it is not surprising that was the condition mentioned in the medical certificates to the exclusion of his thumb. There is evidence that it caused incapacity and required treatment. An X-ray was undertaken in Gosford Hospital. As late as March 2021, Mr Tuddenham noted that the right thumb was swollen and he provided treatment, suggesting that a brace may be required if Mr Markey was to use hand tools. At about the same time, Dr Walker noted that Mr Markey continued to suffer pain in his thumb. By November 2021, Dr Hopcroft considered it had healed.
I am satisfied that the compensation paid to, for and on behalf of Mr Markey by the Nominal Insurer and sought to be recovered in the notice dated 9 June 2021 was compensation for which UPVC was liable.

FINDINGS

I therefore find that Mr Markey was a worker employed by UPVC on 30 November 2020.
He suffered an injury on 30 November 2020 in the course of his employment being an injury to the base of his skull, which resulted in a stroke injury, and an injury to his right thumb.
Mr Markey’s employment with UPVC gave rise to a significantly greater risk of suffering the injury than had he not been employed in employment of that nature.
As a result of the injury, Mr Markey had no current work capacity at least until 26 May 2021 and required medical treatment at least until that date.
As at 30 November 2020, UPVC did not maintain a policy of insurance for the full amount of its liability under the 1987 Act to Mr Markey.
Pursuant to s 142A of the 1987 Act, the Nominal Insurer is deemed to be UPVC’s insurer as at 30 November 2020.
The Nominal Insurer paid weekly compensation and medical expenses to, for and on behalf of Mr Markey up to 26 May 2021 totalling $21,852.59 particularised in the list of payments attached to the notice issued under s 145 of the 1987 Act on 9 June 2021.
Pursuant to s 145 of the 1987 Act, I determine that UPVC is liable to reimburse the Nominal Insurer payments totalling $21,852.59.

Order

Pursuant to s 145 of the 1987 Act, I order that UPVC reimburse the Nominal Insurer payments totalling $21,852.59 within 28 days of this determination.

[2022] NSWPIC 146

6 April 2022