Worker or Contractor and why it matters!

If WorkCover determines that you are a worker, and has paid you compensation for an injury sustained during the course of your work, is WorkCover then bound by that determination in subsequent proceedings for damages for that injury?

The answer to that is no, according to the recent decision of Stankovic v SS Family Pty Ltd & Anor.

By way of background, Mr Stankovic sustained an injury to his right shoulder while working as a tiler for Trendbuild in late March/early April 2013.

Mr Stankovic applied for WorkCover benefits on 9 July 2013. In his application, Mr Stankovic identified himself as a contractor but otherwise prepared the claim form on the basis that Trendbuild was his employer.

WorkCover approved his application on 22 July 2013 and began paying him benefits.

Mr Stankovic continued receiving WorkCover benefits until 7 May 2015, when his injuries were assessed for permanent impairment.

He received a document entitled “Notice of Assessment” and attached to this Notice was a lump sum offer in the sum of $7,377.45. He was given the option to either accept the offer or pursue a claim for damages.

Mr Stankovic chose to pursue a claim for damages against Trendbuild via its insurer, WorkCover.

Shortly after receiving the claim form, WorkCover’s lawyers wrote to Mr Stankovic and advised that WorkCover refused to indemnify Trendbuild on the basis that Mr Stankovic was not a “worker” at the time of the accident.

Among other things, WorkCover’s lawyers cited their reason for the decision being that Mr Stankovic performed work under a contract of service with a trust of which he was a trustee.

Mr Stankovic’s lawyers subsequently commenced proceedings in Court seeking damages from Trendbuild.

Trendbuild brought an application against WorkCover seeking indemnity under the policy, on the basis that WorkCover was bound by its previous determination that Mr Stankovic was a worker.

The Court dismissed this application and found in favour of WorkCover.

This decision highlights the importance of ascertaining whether a person is a worker or a contractor, even if the person has an accepted WorkCover statutory claim. If it is not clear-cut, consideration may be given to pursuing a separate claim through the Personal Injuries Proceedings Act 2002 against the employer.

Authors

Mark O’Connor is a Director at Bennett & Philp Lawyers
Trent Johnson is a Director at Bennett & Philp Lawyers
Shireen Hazlett is a Associate at Bennett & Philp Lawyers

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