CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Yousif v Cameron Sandy Painting & Decorating & Anor [2024] NSWPIC 448	
		
APPLICANT:	Sami Matti Yousif	
		
first RESPONDENT:	Cameron Sandy Painting & Decorating	
		
second respondent:	Workers Compensation Nominal Insurer (icare)	
		
Member:	Sophie Jones	
		
DATE OF DECISION:	19 August 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for compensation for permanent impairment; whether the applicant was a worker withing the meaning of section 4 of the 1998 Act or a deemed worker within the meaning of clause 2 of Schedule 1 in the 1998 Act; Held – the applicant was not a worker or deemed worker; award for the respondents.
	
determinations made:	The Commission determines:
1.	The applicant was not a worker pursuant to s 4 of the Workplace Injury Management and Workers Compensation Act 1998.
2.	The applicant was not a deemed worker pursuant to cl 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
3.	Award in favour of the respondents. 

STATEMENT OF REASONS
BACKGROUND
1.	On 2 June 2021, Mr Sami Matti Yousif (the applicant) was undertaking painting work at a house in Avalon when he fell from a pergola to the ground, a distance estimated to be between 2.5 metres to 3.5 metres.
2.	The applicant alleges he was employed at the relevant time by Cameron Sandy Painting & Decorating (the first respondent) and sustained injury to his cervical spine, thoracic spine and lumbar spine in the course of that employment.
3.	The first respondent did not hold a workers compensation insurance policy as at the date of the alleged injury and the applicant made a claim on the Workers Compensation Nominal Insurer (the second respondent) for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injuries sustained as a result of the incident on 2 June 2021. 
4.	The second respondent issued notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 November 2022 and 14 August 2023, denying liability for the applicant's claim on the basis that he was neither a worker (as defined in s 4 of the 1998 Act) nor a deemed worker (as defined in cl 2 of Schedule 1 of the 1998 Act).
5.	By an Application to Resolve a Dispute (Application) filed in the Personal Injury Commission (the Commission) on 28 May 2024 the applicant claims compensation for permanent impairment pursuant to s 66 of the 1987 Act. 
ISSUES FOR DETERMINATION
6.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant was a “worker” pursuant to s 4 of the 1998 Act;
(b)	whether the applicant was a “deemed worker” pursuant to cl 2 of Schedule 1 of the 1998 Act, and, if so;
(c)	whether the applicant sustained injury pursuant to s 4 of the 1987 Act, and
(d)	the degree of permanent impairment resulting from the injuries sustained.
PROCEDURE BEFORE THE COMMISSION
7.	The parties appeared for conciliation conference and arbitration hearing on 25 July 2024. The applicant was represented by Mr Necovski of counsel, instructed by Mr Andriano and was assisted by an Arabic language interpreter. The first respondent was represented by Mr Macken. The second respondent was represented by Mr Stiles of counsel, instructed by Ms Costello. Ms Barnsley from icare attended via videoconference.
8.	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 have 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.  
9.	The applicant was granted leave to amend the Application to include “lumbar spine” in the injury description. 
EVIDENCE
Oral evidence
10.	No party applied to adduce oral evidence or cross-examine any witness.
Documentary evidence
11.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application and attached documents;
(b)	Reply filed by the first respondent and attached documents;
(c)	Reply filed by the second respondent and attached documents;
(d)	Additional documents filed by the first respondent on 22 July 2024, and
(e)	Additional documents tendered at the arbitration hearing by the applicant.
12.	All additional documents were admitted by consent.
Applicant’s statements
13.	The applicant’s evidence is set out in a statement dated 8 August 2022 provided as part of icare’s factual investigation and statements dated 27 May 2024, 22 July 2024 and 24 July 2024.
14.	In the applicant’s statement dated 8 August 2022, he states that he attended a college in Granville for about three years, part-time, and became a qualified painter.
15.	The applicant states that he knows a person called “Mokolos” who was working with the first respondent. The applicant asked Mokolos if there was any work with the first respondent.
16.	Mokolos advised that “his boss” had work and gave the applicant Mr Cameron Sandy’s phone number. The applicant states he called Mr Sandy and said to him he needed to find a job. Mr Sandy said the applicant could come to their job the following day and the applicant would be paid $40 an hour into his bank account. The applicant asserts Mr Sandy did not ask if he had an ABN, whether he had his own insurances or ask him for a tax file number.
17.	The applicant was not familiar with the area where the job was located, which he described as on the North Shore near the beach, so Mokolos drove him to the work site.
18.	The applicant states that Mr Sandy was on site on the first day when he arrived and he started work at about 7am. Mr Sandy did not ask him to complete any paperwork and told the applicant to paint the front of the house. Mr Sandy showed the applicant where the paint was and gave him brushes and tools. Mr Sandy left and came back at the end of the day and told the applicant that work time was over, to put everything inside and he would see the applicant the next day. The applicant finished at 3.30pm.
19.	On the second day of work, 2 June 2021, Mokolos again drove the applicant to the same work site and the applicant started work at about 7.30am, painting inside and outside the house. Mr Sandy checked the applicant’s work and asked the applicant to climb a ladder to paint part of the pergola. The applicant states that he lost his balance and fell from the pergola.
20.	The applicant states Mr Sandy controlled where the applicant worked because he told him where he had to go, what he had to do, when to start and when to finish.
21.	The applicant states that he does not know if he was subject to any code of conduct and he did not wear a uniform displaying the first respondent’s logo.
22.	The applicant did not know if the proposed payment was under an award. He was paid an hourly rate and expected to be paid $40 an hour into his bank account.
23.	The applicant had to fix a work mistake he made. Mr Sandy told him he needed to paint the front of the house a darker grey and the applicant had to repaint it two or three times. Mr Sandy then checked and said it was very good.
24.	The applicant expected that if he did a good job, that the work relationship with the first respondent would be on a continuing basis.
25.	The applicant states Mr Sandy controlled how he worked because he told him what painting he had to do and how it was to be done. Mr Sandy supervised him, as he checked his work during the day. The applicant was responsible to Mr Sandy for the quality of his work.
26.	The applicant states he worked regular hours on the two days that he worked for the first respondent as he started at 7.30am and finished at 3.30pm. He wore his own clothes and was not provided with any protective clothing.
27.	The applicant did not have staff report to him and took no tools to the site. Mr Sandy provided all the tools and equipment the applicant needed.
28.	At paragraph 45 he states, “I was doing work as a painter as part of my normal business, when I was injured, because my normal business was as a painter.”
29.	The applicant states that he did not pay any part of his $40 per hour to anyone else.
30.	He did not require a painting licence, although he has one, and did not provide a warranty or guarantee of his work.
31.	At paragraph 49, the applicant states he does not have any type of insurance. “I always work with a boss and I depend on the boss to have their own insurance.”
32.	The applicant states he has not advertised his services as a painter anywhere.
33.	At paragraph 52, the applicant states, “My business activity was the same as my employers, because we are both painters.”
34.	The applicant advises he is not registered for GST and did not provide any invoices to Mr Sandy. He obtained an ABN in 2016 but has never used it. The applicant’s accountant contacted Mr Sandy after he was injured and gave him his bank account details for him to be paid the money he was due.
35.	The applicant states that he could refuse work offered by Mr Sandy, but he didn’t want to and he hoped to keep working with the first respondent.
36.	The applicant states he has not worked for himself since lodging the claim. He has worked part-time only, doing paperwork for his son’s plumbing business because he “cannot do any type of painting jobs”.
37.	The applicant’s statement dated 27 May 2024 is almost identical to the statement dated 8 August 2022 with the following additions: there was never a discussion between the applicant and Mr Sandy about sick leave or annual leave entitlements; Mr Sandy would tell him what time he would be working which was generally 7am to 3pm; Mr Sandy did not ask about the applicant’s experience; and the applicant was going to work for Mr Sandy under his instructions as opposed to invoicing for individual jobs. The applicant worked under Mr Sandy’s direction and he checked the quality of the applicant’s work and gave him tasks. The applicant states, “I always understood that I was working as part of Cameron’s business, and not as my own business.”
38.	The applicant states he did not have any other jobs at the time or work for anyone else and that he has not advertised his services as a painter anywhere since 2017 and has not worked as a painter since the incident. The applicant denies that Mr Sandy ever asked him if he owned his own painting company and denies ever saying to Mr Sandy that he owned his own painting company. The applicant denies that Mr Sandy ever asked him about insurances.
39.	The applicant says his accountant sent a tax invoice to Mr Sandy some time after the accident because Mr Sandy had not paid the applicant for the work he did on 1 June 2021 or 2 June 2021.
40.	In the applicant’s statement dated 22 July 2024, he states that his accountant prepared a tax invoice that was provided to the first respondent about three months after the accident. The applicant states he was not paid.
41.	In the applicant’s statement dated 24 July 2024, he states that he made an error at paragraph 43 of his statement dated 27 May 2024 (the contents of which is quoted in paragraph 45 of the applicant’s statement dated 8 August 2022, above). The applicant states:
“Even though I received a painting licence in 2016 painting was not a normal part of my business. I never actually worked as a painter before working for Cameron on the 1st June 2021. My usual occupation was administrative work for my son’s plumbing business.” 
Mr Sandy’s statements
42.	Three statements of Mr Sandy were in evidence, dated 22 August 2022, 27 May 2024 and 22 July 2024.
43.	In his first statement, Mr Sandy states that he owns and operates the business of Cameron Sandy Painting & Decorating. A subcontractor to his company, Mokhles “Mark” Arabou asked if he had any work available as he knew someone who was looking for work. Mr Sandy did not have anything available until June 2021 at a site at Avalon.
44.	On about 31 May 2021, Mark was speaking to the applicant on his phone and passed his phone to Mr Sandy. The applicant told Mr Sandy that he had his own painting company, he was an experienced painter, he had an ABN, he charged GST and he had insurances. The applicant told Mr Sandy his rate was $40 per hour and confirmed that he charged GST. Mr Sandy expected to pay the applicant $40 per hour plus GST.
45.	The applicant started work on 1 June 2021 and Mr Sandy asked him about his insurances. The applicant was “quite short” with Mr Sandy and said, “Cameron I told you I have everything I need.”
46.	Mark was not required to pay the applicant. Mr Sandy expected he would pay the agreed amount of $40 per hour into the applicant’s bank account after receiving a tax invoice.
47.	Mr Sandy states that by the second day, 2 June 2021, it was evident the applicant was not an experienced painter and Mr Sandy did not plan for him to return to work after that day. Mr Sandy had been on site for about two hours on the first day and had observed the applicant.
48.	Mr Sandy pointed out a fascia board that needed painting, and the applicant climbed onto the pergola to paint it. Mr Sandy states that the applicant went to move a plank that was on the pergola, lost his balance and fell through the pergola onto the ground. Mr Sandy states that he and Mark had yelled at the applicant to stop.
49.	Mr Sandy states he is a sole trader without employees and did not have workers compensation insurance as he had made enquiries and confirmed that he did not need a workers compensation insurance policy if he did not have any employees. Mr Sandy states he checked again after the accident, using the Workers Status Tool on the State Insurance Regulatory Authority website, which indicated he did not need to have workers compensation insurance. Mr Sandy states that despite this, he was concerned, so he decided to take out a workers compensation insurance policy on and from 3 June 2021.
50.	Workcover investigated the incident and ordered Mr Sandy, Mark and the applicant to complete a Working at Heights course. Mr Sandy and Mark completed the course on 22 June 2021.
51.	Mr Sandy states the applicant asked him to pay cash to cover his hospital bills. Mr Sandy was later contacted on 1 December 2021 by the applicant’s accountant who emailed him the medical bills, a tax invoice for the applicant’s two days’ work and bank account details.
52.	Mr Sandy states he did not control where the applicant worked, or when, as he could turn up at the site whenever he liked as a contractor on an hourly rate. The applicant was not subject to disciplinary action or a code of conduct and was not required to wear a uniform displaying the first respondent’s logo. The agreed hourly rate was not under an award or any other industrial instrument. 
53.	Mr Sandy states he was not responsible to fix or rectify any work mistakes of the applicant’s and the applicant would have to fix his own mistakes. Mr Sandy states the work relationship was on a trial basis with a start date but no finish date.
54.	Mr Sandy states he did not control how the applicant worked or what he worked on as he was not on site most of the time. He did not supervise the applicant, the applicant did not work regular hours and did not wear protective clothing provided by Mr Sandy. The applicant should have supplied his own tools or equipment but “as he came to the job with Mark I wasn’t aware of their arrangement regarding tools and equipment.”
55.	Mr Sandy states he was the principal contractor at the site and to complete the work he engaged subcontractors. Mr Sandy assumed the applicant worked simultaneously for others as a contractor. Mr Sandy states that as far as he knew, the applicant was doing this work as part of his normal business, trade or occupation as he had assured Mr Sandy that he was a well-qualified painter and had all the necessary insurances.
56.	In his second statement dated 27 May 2024, Mr Sandy states that he operates his painting business as a sole trader, does not employ anyone or pay anyone wages. Mr Sandy states the wages payable in the financial year ending 31 June 2021, and any other financial year, would not exceed $7,500.
57.	In his third statement dated 22 July 2024, Mr Sandy reiterates statements made in his initial statement and advises that there was no basis for the applicant to consider the job would be ongoing as that had not been discussed. Mr Sandy also states that he did not regularly check the applicant’s work as he was only on the site for short periods of time.
Medical evidence
Clinical notes
58.	Clinical notes were in evidence from Plus 1 Medical Centre Fairfield, Fairfield Chase Medical & Dental Centre, general practitioner Dr Shamel Setrak and neurologist Dr Neil Griffith.
Hospital notes
59.	A discharge summary from Royal North Shore Hospital dated 3 June 2021 was in evidence.
60.	That document confirms the applicant was brought in by ambulance and admitted to hospital on 2 June 2021 following a fall from 3 metres landing on his feet then buttocks with head-strike but no loss of consciousness. The report records a T12 compression fracture.
Qualified evidence
Dr Medhat Guirguis
61.	The applicant relies on the report of orthopaedic surgeon Dr Medhat Guirgis dated 16 May 2023.
62.	Dr Guirgis took a history that on 2 June 2021, the applicant fell from a pergola 3.5 metres to the ground, seriously injuring his back and head. Dr Guirgis noted “nil reported” previous or subsequent conditions and found the accident on 2 June 2021 resulted in a compression wedge fracture of the body of the T12 and post-traumatic derangement of both the cervical area and lumbar area of the spine which also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. Dr Guirgis found employment to be a substantial contributing factor to the injuries and assessed the applicant’s whole person impairment to be 24%.
A/Prof Brett Courtenay
63.	The second respondent relies on reports of orthopaedic surgeon A/Prof Brett Courtenay dated 21 July 2023 and 24 April 2024.
64.	A/Prof Courtenay recorded that the applicant denied having any other injuries or significant medical problems. A/Prof Courtenay’s opinion was that the applicant had a significant injury when he fell from the pergola on 2 June 2021. A/Prof Courtenay diagnosed a compression fracture at T12 and a flare of pre-existing spondylosis of the cervical and lumbar spines. A/Prof Courtenay assessed the whole person impairment suffered by the applicant on 2 June 2021 to be 22%, which included a deduction for pre-existing impairment.
65.	In his supplementary report dated 24 April 2024, A/Prof Courtenay considered the applicant’s clinical notes. In response to the question, “Having regard to the clinical notes enclosed, specifically the moderate degenerative changes identified in the Claimant's cervical spine and as well as the intermittent complaints relating to the Claimant's lumbar spine, please provide your opinion as to whether you consider the alleged conditions of the Claimant's cervical and lumbar spine is related to the incident on 2 June 2021”, A/Prof Courtenay states:
“The changes to the cervical spine were actually more than moderate at C5/6 level and for that reason and also the changes in the lumbar spine, I believe it warrants both deductions that I have outlined. I believe the increasing symptoms he is complaining of were as a result of the incident on 2 June 2021.”
66.	A/Prof Courtenay confirms that a review of the clinical notes “does not in any way alter my opinion in my original assessment of whole person impairment.”
Tax records and Sydney Plumbing Patrol documents
67.	Documents produced by Sydney Plumbing Patrol Pty Ltd and income tax returns for the applicant were in evidence. 
68.	A letter dated 14 December 2021 signed by Sayed Amine of Amine Taxation Services states:
“We act in the capacity of Accountants for the above named client [Sami Yousif]. We state that Sami is a painter and on the 02/06/2021 he fell at work. …
On the 01/12/2021 he came to our office to send his invoice and all medical expenses to Cameron his boss.”
69.	The documents include payslips from Sydney Plumbing Patrol Pty Ltd addressed to the applicant for the following periods:
i.	20 June 2020 – 26 June 2020
ii.	19 June 2021 – 25 June 2021
iii.	18 June 2022 – 24 June 2022
iv.	17 June 2023 – 23 June 2023
70.	The payslips record the wages paid to the applicant, the hours worked (20 to 25 hours), tax withheld and superannuation contributions.
71.	The applicant’s tax return for the financial year ending 30 June 2021 records the applicant’s main salary and wage occupation as “Plumber’s assistant” with the payer’s name recorded as “Sydney Plumbing Patrol Pty Ltd”. The applicant was paid $26,400 gross. In addition, the applicant earnt $6,157 from a small business in his name described as “Metal Waste and Scrap Wholesaling”. Of those earnings, $6,000 was from a government payment and $157 was income earnt.
72.	The applicant’s tax return for the financial year ending 30 June 2020 similarly records the applicant’s main salary or wage occupation as “Plumber’s assistant” with the payer’s name recorded as “Sydney Plumbing Patrol P/L”. The applicant was paid $28,490 gross. In addition, the applicant earnt $3,661 from selling copper, and metal and scrap wholesaling.
73.	The applicant’s tax returns for the financial years ending 30 June 2022 and 30 June 2023 are similar, with the applicant paid $20,504 gross by Sydney Plumbing Patrol Pty Ltd as a plumber’s assistant in 2022 and $27,084 in 2023. The applicant earnt no additional income in 2022 or 2023.
Tax invoice
74.	A handwritten tax invoice was in evidence. The invoice is dated 2 June 2021 and states it is from “Sami Yousif” with an ABN listed. It is not addressed to any person or company but it includes an ABN of the recipient. The invoice is in the amount of $640 and states “Painting for 2 days ($40 x 8 x 2)”.
ABN details
75.	An extract from the Australian Government, Australian Business Register was in evidence. That extract is dated 26 July 2022 and shows an ABN with an entity name of Sami Matti Yousif, active from 5 April 2016. The entity type is listed as “Individual/Sole Trader” and the extract records, “Not currently registered for GST.”
Forensic online data report
76.	A forensic open source online data collection and analysis report from Brett Webber, Consilience Analytics & Discovery, dated 19 December 2023 was in evidence.
77.	That report notes the ABN linked to the claimant was cancelled on 12 October 2022. The report also notes a Facebook page titled “Sami Painter & Decorator” that may be linked to the applicant’s historic ABN. The page was created on 8 June 2017 but there have been no posts since the page was created.
Uninsured Liabilities Worker Claim form 
78.	An Uninsured Liabilities Worker Claim form signed by the applicant dated 10 August 2022 was in evidence. The form states the date of injury as 2 June 2021 and that from 3 June 2021 the applicant had no capacity for work.
79.	The form gives Mr Sandy’s name as the employer contact. In answer to the question, “Did you work only for this employer?”, the applicant has indicated “Yes”. In answer to the question, “Were you carrying on a trade or business on your own account or in a partnership with others?” the applicant has indicated “No”.
80.	In answer to the question, “Are you working now?”, the applicant has answered “No”.
SUBMISSIONS
Applicant’s submissions
81.	In summary, the applicant’s submissions were that:
(a)	The applicant suffered injury when he fell between 2.5 metres to 3.5 metres from a pergola when he was told to go up by the uninsured employer.
(b)	The applicant’s case is analogous to Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 (Malivanek) which sets out the criteria to be applied.
(c)	In relation to cl 2 of Schedule 1 of the 1998 Act, there is no doubt the applicant was a party to a contract with the respondent to perform work that exceeded $10 in value and the applicant did not subcontract anyone else to perform the work.
(d)	The real question is whether the work being performed on 2 June 2021 was incidental to a trade or business regularly carried on by the applicant in his own name or business name, and on the evidence, the answer to that question is no.
(e)	The applicant obtained his ABN in 2016 for a course but does not recall ever using it. He obtained a painting qualification but has not advertised his services since 2017 and his tax return immediately preceding the accident shows he was working as a plumbing assistant. The applicant was not carrying on any type of painting business and this is conclusive evidence on the question of whether he was carrying out work that was incidental to a trade or business regularly carried out by him. The applicant is therefore a deemed worker.
(f)	This is not a case such as Turner v Stewardson [1962] NSWR 137 in that the applicant did not hold himself out to be a subcontractor and regularly accept work. This was his first job as a painter since he got his qualification and was his second day on the job.
(g)	The applicant’s evidence is that he was never asked for an ABN or if he had his own insurance or for his tax file number. The applicant considered he was an employee.
(h)	With reference to s 4 of the 1998 Act, the applicant and Mr Sandy had a conversation and the hourly rate was stated as $40 per hour and for him to come to the job tomorrow. Mr Sandy did not obtain a copy of the applicant’s insurances and, if it was a subcontracting relationship, he did not ensure that both parties acknowledged and understood the relationship. It was entirely open to the applicant to conclude, based on that short conversation, that he was in an employee/employer type relationship.
(i)	In relation to the control test set out in Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; (1986) 160 CLR 16 (Stevens), the applicant was not registered for GST, he had not used his ABN since he got it at TAFE, they agreed to an hourly rate of $40, it was not a contract for completion of a specific job it was an hourly rate structure similar to that encountered in an employee/employer relationship, the applicant never promised the uninsured employer a specific outcome for payment, he was driven to the job site, he was directed as to his duties and told what to do, his work was checked by Mr Sandy, the paint and tools were supplied by the uninsured employer, at the time of the accident the applicant was only working for Mr Sandy and he was told what time to start and finish. Mr Sandy could see the applicant was not an experienced painter and this is consistent with the applicant’s evidence that despite having qualifications he wasn’t ever working as a painter.
(j)	On the evidence, there was an employee/employer type relationship or in the alternative, the applicant was a deemed worker.
(k)	In relation to injury, the applicant fell 2.5 metres to 3.5 metres. Dr Guirgis sets out his opinion that there was a compression fracture suffered at T12 and post-traumatic mechanical derangement of the cervical area and lumbar area or aggravation of underlying asymptomatic age-related degenerative disease. A/Prof Courtenay found compression fracture of T12, spondylosis in the cervical spine and narrowing at the lumbar spine. Whether it was a frank injury or an aggravation, the evidence is there was an injury.
First respondent’s submissions
82.	In summary, the first respondent’s submissions were that:
(a)	There are a number of inconsistencies between the applicant’s version of events and Mr Sandy’s version.
(b)	Mr Sandy states that he has never employed anyone and it is inconceivable that he would not have engaged the applicant on a contract basis.
(c)	The applicant did in fact have an ABN and was registered as a painter. The applicant did provide an invoice with the ABN on it and a letter from the applicant’s accountant states that the applicant is a painter.
(d)	There is no direct evidence about the type of work he did for his son’s plumbing business and the applicant’s tax return includes the applicant’s name as a business name.
(e)	The applicant held himself out to Mr Sandy as a painter with an ABN, registered for GST with insurance. Mr Sandy raised these questions with him and the applicant was annoyed when he raised them a second time. This is consistent with the evidence that Mr Sandy engaged him on this basis.
(f)	The applicant may not have been continuously engaged as a painter but his accountant referred to him as a painter, he held himself out as being in business as a painter, he has a painter’s certificate and an ABN. Mr Sandy engaged him on the basis that he was a contractor in his own business.
(g)	In relation to injury, the applicant gave a history to both of the qualified doctors that he had no prior problems, which is incorrect with reference to the clinical records.
(h)	The clinical notes include several references to low back pain in 2013 and 2016. The clinical notes from 4 June 2021 regarding the fall state the applicant had a fall on his feet, buttocks, low back and head. There is no reference to low back complaints and the first reference to neck pain is on 15 March 2022. The evidence does not support a finding of any pathology resulting from this incident except perhaps with respect to the thoracic spine.
(i)	The clinical notes also record the applicant was in a car accident in July 2014 and had pain in his neck and lower back. Radiological investigations in March 2013 of his neck, thoracic spine and lumber spine are no different to the subsequent investigations, other than the thoracic spine.
(j)	As the qualified doctors were given an incorrect history, there is not a fair climate in which to consider their reports.
(k)	The first respondent is an exempt employer. The objective test is set out in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2018] NSWWCCPD 10. Mr Sandy has never employed anybody, he only engages contractors, he checked to see whether he was required to obtain workers compensation insurance and he was not, and he has not paid wages in the relevant year in excess of $7,500.
(l)	As an exempt employer, the first respondent has no further involvement in the matter.
Second respondent’s submissions
83.	In summary, the second respondent’s submissions were that:
(a)	In relation to the worker or deemed worker issue, the 2021 tax return does not really assist as it only shows the applicant’s earnings from Sydney Plumbing Patrol Pty Ltd and does not show any other earnings.
(b)	In relation to the exempt employer question, there are no tax returns or any financial information from the first respondent or any evidence from Mr Mark Arabou regarding their engagement.
(c)	If it is found that the applicant and Mr Arabou are engaged as workers, the wages bill would clearly exceed $7,500. 
Applicant’s submissions in reply
84.	In summary, the applicant’s submissions in reply were that:
(a)	The letter from the applicant’s accountant was from 14 December 2021. The accountant cannot be suggesting the applicant was working as a painter from the date of the accident up until December as he was quite severely injured.
(b)	In relation to pre-existing complaints, there is no medical evidence to prove that there were pre-existing injuries or diagnoses, there were simply reports of pain. The injuries have been pleaded as aggravation as well as frank injuries.
(c)	In relation to the tax return, the applicant earnt $157 from his metal business and received a government industry payment of $6,000 which is understood to have been a COVID grant. The applicant also received a salary from the plumbing company.
FINDINGS AND REASONS 
85.	As summarised above, submissions were made as to whether the first respondent was an exempt employer, for the purposes of s 155AA of the 1987 Act. In my view, this is not an issue on the Application that I am required to determine at this instance. I therefore make no decision in relation to whether the first respondent was an exempt employer. The issues that I am required to determine are set out at paragraph 6, above.
Was the applicant a worker?
86.	Section 4 of the 1998 Act sets out the definition of “worker” as follows (exceptions omitted):
“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).”
87.	It is therefore necessary to examine whether the applicant entered into or worked under a contract of service with the first respondent.
88.	In Stevens, the High Court considered factors to determine whether a relationship is one of employer and employee (rather than principal and independent contractor). Those factors include the right of the employer to exercise control, direction and supervision over the worker, the mode of remuneration, provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax, the ability of the worker to delegate work, the right of the employer to have a particular person do the work, the right to suspend or dismiss the worker, the right to the worker’s exclusive services, and the right to dictate the place of work and hours.
89.	In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting), Keifel CJ, Keane and Edelman JJ stated at [34], with reference to Stevens 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’” rather than running down items on a checklist.
90.	In Malivanek, Roche DP referred to the indicia set out in Stevens as well as the observation of McColl JA in Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 at [16]:
“The second observation concerns the distinction between an employee and an independent contractor. That distinction has been said to be ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own’: Marshall v Whittaker’s Building Supply Co [1963] HCA 49; (1963) 109 CLR 210 at 217 per Windeyer J. Although this statement was criticised by Wilson and Dawson JJ in Stevens (at 34) as ‘posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer’, it was referred to with approval by the majority in Hollis (at 38 – 39 [39] – [40] [Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis)]).”
91.	It is the applicant’s onus to establish that he was a worker on the balance of probabilities. In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10, Roche DP stated at [103] to [106]:
“Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
92.	The applicant submits that there was an employer/employee relationship between the applicant and the first respondent. The applicant submits that a contract was formed on the basis of a short conversation where it was agreed that the applicant would be paid an hourly rate of $40. The first respondent did not obtain a copy of the applicant’s insurances and did not ensure that both parties acknowledged and understood it was a subcontractor relationship, if that is what it was.
93.	With respect to the control test in Stevens and the relevant indicia, the applicant submits he was not registered for GST, he had not used his ABN since he got it at TAFE, he agreed to an hourly rate of $40 not a contract for completion of a specific job and never promised a specific outcome for payment. The applicant was driven to the job site, was directed as to his duties and told what to do, his work was checked by Mr Sandy, the paint and tools were supplied by the first respondent and he was told what time to start and finish. At the time of the accident the applicant was only working for the first respondent. On the evidence, the applicant was serving the employer, in the employer’s business.
94.	The first respondent submits that Mr Sandy has never employed anyone and it is inconceivable that he would have engaged the applicant on anything other than a contract basis. The applicant held himself out to Mr Sandy as a painter with an ABN, registered for GST with insurance. Mr Sandy raised these questions with him and the applicant was annoyed when he raised the questions a second time. This is consistent with the evidence that Mr Sandy engaged him as a contractor in his own business and the applicant did in fact have an ABN and provided an invoice with the ABN on it.
95.	I have considered the statement evidence from both the applicant and Mr Sandy, elements of which is conflicting. 
96.	Both the applicant and Mr Sandy agree that a phone conversation took place between the applicant and Mr Sandy. The applicant’s account is that he called Mr Sandy, whereas Mr Sandy’s evidence is that “Mark” was on the phone to the applicant and handed Mr Sandy his (Mark’s) phone. I do not consider this difference in recollection to be significant as it is not contested that there was a phone conversation between the applicant and Mr Sandy on or about 31 May 2021.
97.	There is disagreement between the parties regarding parts of what was discussed or not discussed in that phone conversation, however the following is agreed to have been discussed: that Mr Sandy had painting work available from 1 June 2021, that the applicant would attend the work site in Avalon on 1 June 2021 and the first respondent would pay the applicant $40 per hour.
98.	I am satisfied that an oral contract was formed between the applicant and the first respondent on or about 31 May 2021.
99.	In considering the nature of the contractual relationship between the parties and the factors outlined in Stevens, the parties are in agreement that the applicant was to be paid on an hourly basis and that the applicant was not required to wear a uniform. In relation to control, the applicant states that Mr Sandy instructed him as to which areas of the house to paint, supervised him and checked his work. In contrast, Mr Sandy states he did not supervise the applicant as he was not on site most of the time and did not control how the applicant worked or what he worked on. Mr Sandy states the applicant was responsible for rectifying his own mistakes. The applicant’s evidence is in agreement in this regard, in that he was required to repaint the front of the house several times.
100.	In relation to equipment, it is agreed that the applicant did not supply his own brushes and tools. The applicant states that Mr Sandy provided all the tools and equipment. Mr Sandy states that the applicant should have supplied them, but “as he came to the job with Mark I wasn’t aware of their arrangement regarding tools and equipment.” On this evidence, it is possibly the case that the applicant used Mark’s equipment. In any event, he did not supply his own.
101.	In relation to hours of work, the applicant’s evidence is that these were set by Mr Sandy and he was to work 8 hours a day, generally from 7am to 3pm. In contrast, Mr Sandy states that the applicant did not work regular hours and he did not control when the applicant turned up or when he worked. It is noted that the applicant was driven to the work site on both days by Mark.
102.	There is no evidence that the first respondent would withhold PAYG tax or make superannuation contributions and the applicant states Mr Sandy did not ask for his tax file number. The applicant also states that annual leave or sick leave entitlements were not discussed. 
103.	In relation to discipline and dismissal, the applicant states he does not know if he was subject to a code of conduct and in his view, he hoped to keep working for the first respondent. Mr Sandy’s view was that the work arrangement was a trial, with a start date but no end date. The applicant states that he could refuse work.
104.	Mr Sandy states that he enquired if the applicant had an ABN, charged GST and had insurances. The applicant states that these questions were not asked. It is noted, however, that the invoice that was sent some months later to the first respondent did include the applicant’s ABN.
105.	Considering the facts as they can be ascertained from the different versions of events, I consider that there was some level of control and direction exerted by the first respondent over the applicant, in that he was told what areas of the house to paint and his work was inspected. In relation to supervision, the applicant’s evidence is that on the first day, Mr Sandy returned at the end of the day to check his work. This would appear to accord with Mr Sandy’s evidence that he was on site for about two hours on the first day but was not on site most of the time. On the evidence, it does not appear that there was any constant supervision of the applicant. In addition, both the applicant and Mr Sandy agree that the applicant was responsible for fixing his own mistakes. 
106.	Whilst the fact there was some level of control and direction exerted by Mr Sandy points to a relationship of employer/employee between the first respondent and the applicant, I consider that other indicia of an employer/employee relationship are not present on the evidence. 
107.	The applicant did not wear a uniform or other protective clothing supplied by the first respondent and although paid an hourly rate, rather than for the job, the applicant issued an invoice bearing an ABN. There is no evidence that the respondent would withhold PAYG tax or make superannuation contributions, that there was any discussion about holiday or sick leave entitlements or the requirement of the applicant to abide by a code of conduct, which, were they present, would point to an employer/employee relationship. 
108.	There was clearly a difference of opinion as to whether the relationship was to be ongoing or a trial, with the applicant considering that although he could refuse work (an ability which does not indicate an employer/employee relationship), he hoped to keep working with the first respondent.
109.	In relation to exclusive services, the applicant states that he only worked for the first respondent during this period, whereas Mr Sandy states he assumed the applicant was working simultaneously for others. Therefore, although the applicant was only engaged with the first respondent at the time of the accident, it is not the case that the respondent had the exclusive right to his services.
110.	There is contradictory evidence as to the hours of work and provision of tools. The applicant did not provide his own tools and equipment. He states that Mr Sandy provided the tools and equipment, whereas Mr Sandy does not say he provided them but rather that the applicant should have provided his own, but he was unaware if there was an arrangement between Mark and the applicant regarding tools and equipment. In relation to work hours, due to the contradictory statements it is not possible to determine whether Mr Sandy told the applicant when to arrive at the work site or whether he was free to arrive at any time. 
111.	Considering not only the factors in Stevens, but also the totality of the relationship between the applicant and the first respondent, whilst I am satisfied that there was an oral contract between the applicant and the first respondent, I am not persuaded with a probability in excess of 50% that the applicant was a worker for the purposes of s 4 of the 1998 Act.
Was the applicant a deemed worker?
112.	Section 5 of the 1998 Act provides that Schedule 1 of the Act has effect with respect to deemed workers. The applicant bears the onus of establishing on the balance of probabilities that he was a deemed worker.
113.	Clause 2(1) of Schedule 1 provides:
“Other contractors
(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.”
114.	In order to satisfy cl 2(1)(a), the Court of Appeal set out in Scerri v Cahill (1995) 14 NSWCCR 389 at 399 that an applicant needs to establish the following:
1.	that he or she was a party to a contract with the respondent to perform work;
2.	that work exceeds $10 in value;
3.	that work is not work incidental to a trade or business regularly carried on by the applicant in their own name or under a business or firm name; and
4.	that the applicant has neither sublet the contract nor employed workers in the performance of it.
115.	I have found an oral contract was formed on or about 31 May 2021 between the applicant and the first respondent. Both parties agree the applicant was to be paid $40 per hour for his work. I therefore find points 1 and 2 above are satisfied. 
116.	The applicant has provided statement evidence that he did not employ any other worker or pay part of his earnings to another person. I therefore find point 4, above, satisfied on the evidence.
117.	The point that is in issue is whether the work was not incidental to a trade or business regularly carried out by the applicant in his own name or under a business or firm name. The applicant must establish on the balance of probabilities that the work undertaken was not part of his usual trade or business activities.
118.	The applicant submits that although he obtained an ABN in 2016, he does not recall ever using it. Similarly, although he obtained a painting qualification, he had never worked as a painter until 1 June 2021 and has not advertised his services since 2017. The applicant submits he was not carrying on any type of painting business and his tax return shows he was working as a plumbing assistant. The applicant further submits that Mr Sandy could see that the applicant was not an experienced painter and this is consistent with the applicant’s evidence that despite having qualifications he did not ever work as a painter.
119.	The first respondent submits that the applicant had an ABN, was registered as a painter and the letter from the applicant’s accountant states that the applicant is a painter. Even if he had not been continuously engaged as a painter, the applicant held himself out to Mr Sandy as being in business as a painter with an ABN, registered for GST and with insurance. 
120.	The second respondent submits that the 2021 tax return does not really assist in determining the deemed worker issue as it only shows the applicant’s earnings from Sydney Plumbing Patrol Pty Ltd and does not show any other earnings.
121.	In Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153, Roche DP considered the requirements of cl 2 of Sch 1 and found at [53] – [58]:
“I am comfortably satisfied that, at the time of his accident, Mr Pasqua was not regularly carrying on a trade or business. It follows that the work he was performing at the time of his injury was not incidental to a trade or business regularly carried on.
…
“As noted above, it is necessary to consider whether the contractor is in business for himself or herself and whether a trade or business is carried on systematically and regularly.” 
122.	The following authorities and principles are noted in Malivanek at [216] – [221]:
“In Turner v Stewardson [1962] NSWR 137 (at 139) the Court of Appeal considered the situation where a carpenter, who contracted his work when employment was difficult to obtain, was regularly carrying on a trade or business:
“Looked at broadly the Legislature meant to provide that persons who are in business for themselves and who systematically and regularly accept work to be done under contract and who hold themselves out as open to be employed under contract are expected to undertake the risk of injury and not to rely for compensation upon the principal whose contract work they are performing at the moment of injury. The original notion that the contractor is deprived of the benefits of the Act because he is not a worker has disappeared and today many small contractors are covered by the Act. This is in keeping with modern practice as to payment for labour at piece work or contract rates.” (emphasis added)
The question of whether there must be a “holding out” before an applicant is prevented from relying on Sch 1 was considered by the High Court in Higgins v Jackson [1976] HCA 37; 135 CLR 174 (Higgins) at 176 where Barwick CJ (Stephen, Mason and Murphy JJ concurring) said:
“The subsection requires the business to be carried on with regularity. Thus a contractor who regularly contracts can scarcely be said not to hold himself out as carrying on the business in the course of which he makes the contracts. But in my opinion, there is no separate element required by the subsection of holding out. It is sufficient, as I have said, that the contractor regularly carries on business in his own or a firm name.”
In Cam v Cousins Interstate Transport Pty Ltd [1964] NSWR 1288 the applicant was the owner and driver of a large truck registered in his name. He was injured in the course of a journey from Melbourne to Sydney when he was carrying steel for the respondent at a fixed rate per ton. For six months prior to the accident he had ceased to regularly carry on the business of a carrier, but operated his truck solely for the business of the respondent. He had no business address or telephone book entry relating to an occupation or business as a general carrier, nor did he advertise or hold himself out to the public as being in the trade or business of a carrier.
On appeal it was held that the trial judge was not in error in holding that the applicant was a deemed worker under the provisions of s 6(3A) of the Workers Compensation Act 1926, which was in similar terms to Sch 1. This decision must now be read in the light of the High Court decision in Higgins, which establishes that there is no separate element required by the provision of holding out, but it remains relevant as it illustrates some of the matters to be considered in determining whether the applicant is conducting a business.
In Wathen v AUT Holdings Pty Ltd [1977] 51 WCR 1 (Wathen) the applicant had been conducting a general carrying business prior to contracting with AUT to carry pipes exclusively for that company. AUT argued that the work performed under the contract was work “incidental to a ... business regularly carried on by [the worker] in his own name or under a business or firm name”.
After referring to Humberstone, Mahoney JA noted, at 5:
“In the present case, the worker had no trade or business other than what he was doing for the defendant. The case was therefore not ‘work incidental’ in the subsection. In my opinion, the learned Judge properly held that s 6(3A) applied to deem the worker to be a worker within the Act.”
123.	The applicant submits that although he was a qualified painter and had an ABN, he had never worked as a painter until 1 June 2021, had not advertised his services since 2017 and was not carrying on any type of painting business at the time of the accident. However, there are a number of assertions contained in the applicant’s statements that are somewhat contradictory to those submissions.
124.	Firstly, in the statement the applicant provided on 8 August 2022, the contents of which is also contained in his statement dated 27 May 2024, the applicant states, “I was doing work as a painter as part of my normal business, when I was injured, because my normal business was as a painter”.
125.	The applicant later corrected this in his statement dated 24 July 2024 where he asserts that he made an error in his earlier statement and “Even though I received a painting licence in 2016 painting was not a normal part of my business. I never actually worked as a painter before working for Cameron on the 1st June 2021. My usual occupation was administrative work for my son’s plumbing business.” However, there is no explanation as to why the applicant was so mistaken in 2022 as to the nature of his own business.
126.	In his statement dated 8 August 2022 the applicant also states, “My business activity was the same as my employer’s, because we are both painters.” And in relation to insurance, the applicant states, “I always work with a boss and I depend on the boss to have their own insurance.” These assertions were not later retracted or amended.
127.	The fact that the applicant has referred to “my business activity” infers that the applicant was conducting a business at the time of the accident and he has specified the type of activity as being a painter.
128.	Referring to the fact that he “always work[s] with a boss” also infers that this activity was systematic and regular and casts doubt on the applicant’s later assertion that he had never worked as a painter before 1 June 2021. There is no explanation as to why he would say he “always” works a certain way if he had never undertaken this work before.
129.	The applicant further advises in his statement dated 8 August 2022 that he has not worked for himself since the accident and has worked part-time only, doing paperwork for his son’s plumbing business because he “cannot do any type of painting jobs”. In my view, stating that he has not worked for himself since the accident leads to the inference that the applicant was working for himself at the time of the accident.
130.	In relation to other evidence concerning the applicant’s regular trade or business, it is noted that at the time of the accident the applicant had an active ABN with an entity name of Sami Matti Yousif. The entity type was “Individual/Sole Trader” and the applicant was not registered for GST. The tax invoice dated 2 June 2021 issued by the applicant’s accountant for the painting work included the applicant’s ABN.
131.	The applicant also had a Facebook page created in 2017 titled “Sami Painter & Decorator” although this was inactive.
132.	In addition, the letter from the applicant’s accountant dated 14 December 2021 advises, “We state that Sami is a painter.” There is no explanation as to why the applicant’s accountant described him as being a painter if this was not his regular occupation and he had never worked as a painter before 1 June 2021.
133.	The first respondent submitted that the applicant held himself out to Mr Sandy as having his own painting company, being an experienced painter and having an ABN, charging GST and having insurances.
134.	The applicant submits that the fact that by his second day, it was evident to Mr Sandy that the applicant “was not an experienced painter” supports the argument that he did not ever work as a painter. The applicant denies that he ever told Mr Sandy he owned his own painting company or that Mr Sandy ever asked him about insurances. 
135.	Noting that “holding out” is not a requirement, following Higgins, and the contested versions of events regarding that conversation, I draw no conclusion as to which version of that conversation is to be preferred. The fact that Mr Sandy was not happy with the quality of the applicant’s work is a subjective opinion and I do not take this as evidence that the applicant had never worked as a painter.
136.	Considering the financial evidence, the tax returns demonstrate that in the financial year ending 30 June 2021, the applicant was an employee of Sydney Plumbing Patrol Pty Ltd and earnt a gross income of $26,400 as a plumber’s assistant. In addition, he earnt $6,157 from a small business in his name described as “Metal Waste and Scrap Wholesaling”, $6,000 of which was in the form of a government payment and $157 was income earnt.
137.	Regrettably, no bank statements were in evidence which could have assisted in clarifying whether the applicant had any income or deposits into his account that were not declared on his tax returns. 
138.	The financial evidence is therefore in accordance with the applicant’s submissions, that he was not carrying out a regular trade or business as a painter at the time of the accident.
139.	There are, however, inconsistencies between the tax information and the information contained in the Uninsured Liabilities Worker Claim form signed by the applicant on 10 August 2022, which leads me to draw a negative credit inference in relation to the applicant.
140.	In the Uninsured Liabilities Worker Claim form, the applicant declares that as at the date of the accident, he only worked for the first respondent and as at the date the form was signed, he was not working. However, this is not supported by the documentary evidence which includes payslips addressed to the applicant from Sydney Plumbing Patrol Pty Ltd for the periods 19 June 2021 – 25 June 2021 (shortly after the accident) and 18 June 2022 – 24 June 2022 (shortly before the Uninsured Liabilities Worker Claim form was completed). These payslips demonstrate that the applicant was employed and being paid during both those periods. In addition, the applicant’s tax returns for the financial years ending 30 June 2021, 30 June 2022 and 30 June 2023 also record the applicant received wages from Sydney Plumbing Patrol Pty Ltd.
141.	These discrepancies in the applicant’s evidence, whilst not specifically going to the issue of whether the applicant was undertaking work incidental to his regular trade or business, nevertheless cause me to draw a negative inference in relation to the applicant’s credit.
142.	I consider that the inconsistencies and contradictions in the applicant’s statements and other evidence, as outlined above, do not lead me to conclude that the applicant’s usual trade was not as a painter. As a result, I do not have an actual persuasion with a probability of 50% that the work undertaken by the applicant on 2 June 2021 was not incidental to his usual trade or business. 
143.	I am not satisfied that the applicant has discharged his onus and established that he was a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act.
144.	As I have found the applicant was not a worker or deemed worker, I do not need to consider “injury” pursuant to s 4 of the 1987 Act and the applicant is not entitled to compensation for permanent impairment pursuant to s 66(1) of the 1987 Act.
SUMMARY
145.	The applicant was not a worker pursuant to s 4 of the 1998 Act or a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act.
146.	Award in favour of the respondents.