Workers Compensation Nominal Insurer v O'Donohue

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1
APPELLANT:	Workers Compensation Nominal Insurer
FIRST RESPONDENT:	Anthony Paul O’Donohue
SECOND RESPONDENT:	MEI Live Ltd
FILE NUMBER:	A1-10727/12
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	16 October 2013
DATE OF APPEAL DECISION:	16 January 2014
SUBJECT MATTER OF DECISION:	Whether employment connected with New South Wales; s 9AA of the Workers Compensation Act 1987; current weekly wage rate; calculation of weekly compensation for partial incapacity prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; s 42 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
First Respondent: Second Respondent:	Beilby Poulden Costello No appearance
ORDERS MADE ON APPEAL:	1.       Paragraphs 1, 3, 4, 5, 6 of the Arbitrator’s determination of 16 October 2013 are confirmed. 2.       Paragraph 2 of the Arbitrator’s determination of 16 October 2013 is revoked and the quantification of the worker’s entitlement to weekly compensation is remitted to another Arbitrator for re-determination and for all necessary and appropriate orders to be made. 3.       Costs of the second arbitration are to follow the event of that arbitration. 4.       The appellant is to pay the first respondent’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. Anthony O’Donohue is a professional actor/performer who lives in Sydney. He ruptured his Achilles tendon on 20 July 2010 while performing the role of Ben Tennyson in Ben 10 Live – The Power of the Omnitrix in Bahrain under a contract with MEI Live Ltd (MEI), a company registered in Hong Kong. (Ben 10 is an American media franchise produced by Cartoon Network Studios. The original series was about a boy (Ben Tennyson) who acquires a watch-like alien device, called the Omnitrix, which allows him to turn into alien creatures.)

2. The main issue in this appeal is whether Mr O’Donohue is entitled to compensation for his injury under the New South Wales Workers Compensation Act 1987 (the 1987 Act) on the ground that his employment with MEI was “connected with” New South Wales under s 9AA of that Act.

3. In summary, s 9AA(3) provides a series of cascading tests to determine the State with which the employment is connected. First, employment is connected with the State in which the worker usually works. Second, if no State is identified by the first test, one looks to the State in which the worker is usually based for the purposes of that employment. Third, if no State is identified by the second test, one looks to the State in which the employer’s principal place of business in Australia is located.

4. Mr O’Donohue claimed compensation from MEI and, as that company was not insured in New South Wales, from the Workers Compensation Nominal Insurer (the Nominal Insurer). He argued that he satisfied all three tests in s 9AA(3). His main arguments were that:

   (a)     he usually…