Youssef v Workers Compensation Nominal Insurer (iCare) - [2022] NSWPIC 445

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Youssef v Workers Compensation Nominal Insurer (iCare) & others [2022] NSWPIC 445
APPLICANT:	Salah Said Youssef
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	Abdul Kader Tozlok Workers Compensation Nominal Insurer Adelson’s Building & Bathroom Renovation Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	8 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to left arm; claim for lump sum pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); consideration of statements from the applicant, the first respondent and others; medical reports and other treatment records; claim correspondence and factual material; consideration of whether the applicant was a worker as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); Stevens v Brodribb Sawmilling Co Pty Limited, Digby v Hyspec Construction & Roofing Pty Limited, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited, ZG Operations Australia Pty Limited v Jamsek, Drca v KAB Seating Systems Pty Ltd considered; consideration of whether the applicant was a deemed worker as defined in Clause 2 of schedule 1 to the 1998 Act; consideration of whether there was in existence a contract between the first respondent and the third respondent sufficient to make the third respondent liable for the applicant’s injury pursuant to section 20 of the 1987 Act; Held – the applicant was not a worker when he was injured; the applicant was a deemed worker when he was injured; the applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018 pursuant to section 4(a) of the 1987 Act; the third respondent was liable to pay compensation to the applicant pursuant to section 20 of the 1987 Act; matter remitted to the President for referral to a Medical Assessor in relation to the claim pursuant to section 66 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was not a worker (as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) when he was injured on 6 November 2018. 2. The applicant was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018. 3. The applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). 4. As at 6 November 2018, there was in existence a contract between the first respondent and the third respondent to satisfy s 20 of the 1987 Act. The first respondent was uninsured as at 6 November 2018. The third respondent is therefore liable to pay any compensation to the applicant under the 1987 Act which the third respondent would have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 445
Decision Date: 8 August 2022

CaseChat Overview and Summary

The case of Youssef v Workers Compensation Nominal Insurer (iCare) involved an application by the applicant for a determination of entitlement to workers’ compensation following an injury to his left arm. The applicant contended that he was a worker under the Workers Compensation Act 1987 and that his employer, the first respondent, was liable for the injury he sustained. The Workers Compensation Nominal Insurer, acting on behalf of the employer, contested the claim. The dispute was heard in the Industrial Relations Commission of New South Wales.

The primary legal issues before the court were whether the applicant was a worker as defined in the Workplace Injury Management and Workers Compensation Act 1998 at the time of his injury, whether he was a deemed worker under the same Act, and if the third respondent, who was alleged to be the contractor, was liable for the injury under the Workers Compensation Act 1987. The court had to interpret statutory definitions and consider relevant case law in determining these questions.

After examining the evidence, including statements from the applicant, the employer, and others, medical reports, treatment records, and correspondence, the court concluded that the applicant was not a worker at the time of his injury but was a deemed worker under the 1998 Act. The court also found that the third respondent was liable to pay compensation as there was a sufficient contractual relationship between the first respondent and the third respondent that made the latter liable for the applicant's injury. The court referred the matter back to the President for a Medical Assessor to determine the claim for a lump sum payment under the 1987 Act.

The final orders of the court were that the applicant was not a worker under the 1998 Act but was a deemed worker at the time of his injury, that the third respondent was liable for compensation, and that the matter should be remitted for assessment of the lump sum claim.

Orders