30 May 2025. He was carrying, with another worker, 60kg of rubber mats across a roof 10m from the ground. He fell and the mat roll hit his leg. He landed on the mesh placed to break his fall. He injured his left knee. 2. The applicant's treating orthopaedic surgeon, Dr Daniel Rahme, performed a patellofemoral ligament reconstruction and patella stabilization on 26 June 2025. The applicant has paid for this surgery. He seeks reimbursement of the cost of that surgery of $9,016.10,[1] plus any incidental expenses, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), as well as weekly payments of compensation from 18 June 2025 to date and continuing. The applicant submits his pre-injury average weekly earnings (PIAWE) were $1,386.41. 3. The respondent disputes that the applicant is either an employee, or a deemed employee pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent contends that the applicant was an independent contractor performing work on site for the respondent.

1. The arrangement between the applicant and the respondent at the time of the applicant's fall on 30 May 2025 is in dispute.
2. The applicant's alleged incapacity for work is in dispute.
3. The applicant's PIAWE is in dispute.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. Mr Barter of counsel, instructed by Ms Macaldi of Law Partners, solicitors, appeared for the applicant. Mr Hanrahan of counsel, instructed by Mr Orr of Turks Legal, solicitors, appeared for the respondent.
2. I am satisfied that the parties to the dispute understood 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

1. There was no oral evidence.
2. There was no application to adduce oral evidence or cross-examine the applicant,

Mr English, or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission). 3. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attachments, and

(b) Reply to ARD (Reply) and attachments.

1. After completing year 10 at East Hills Boys High School the applicant entered into an apprenticeship and performed work as a roofer with two successive organisations until 2025.
2. The applicant's evidence is that he commenced work with the respondent as a roofer on

14 April 2024. It is not necessary to outline the applicant's duties with the respondent, which were the ordinary duties of a roofer.

1. Following his injury on 30 May 2025 the applicant was removed from the building site, taken to Heal Specialist Urgent Care for review, underwent an X-ray and was certified as unfit for work by Dr Megan Hamilton. He was referred for an MRI which he underwent on

2 June 2025. A full set thickness tear to his medial patellar retinaculum and medial aspect of the joint capsule, as well as additional sprains to his ACL, PCL and MC, were diagnosed. 2. On 4 June 2025 the applicant consulted Dr Robyn White at East Hills Medical Centre. He explained to the doctor that he had slipped at work and had attended the Maitland Emergency Department. Dr White referred him to orthopaedic surgeon Dr Daniel Raeme for review and management. 3. On 19 June 2025 he consulted Dr Sajid Siddiqui at East Hills Medical Centre. He explained to that doctor that he was awaiting a consultation with Dr Raeme. 4. On 26 June 2025 the applicant consulted Dr Raeme who recommended that he not engage in physiotherapy because his kneecap was unstable. He also recommended the surgery which eventually took place. 5. He attended Dr Eugene Gehr Independent Medical Examiner (IME) for the purpose of a whole person impairment (WPI) assessment. This appointment had been arranged by his solicitor. Dr Gehr confirmed that the applicant should proceed with the surgery and engage in physiotherapy thereafter. He provided a WPI assessment of 12%. 6. Dr Gehr provided a report on 31 July 2025.[2] He reviewed the medical reports of the applicant's treating doctor's including that of Dr Daniel Raeme dated 4 June 2025. He diagnosed a left knee patella dislocation, disruption of the medial patellofemoral ligaments, with a recommendation for reconstruction. He found that the fall at work was a substantial contributing factor to his left knee injury and that his current incapacity for work was a direct result of that injury. He could not comment on the applicant's likely ability to resume his pre-accident occupation until the proposed surgery was completed, and he had undergone post-operative physiotherapy. 7. Dr Raeme provided a report dated 16 September 2025.[3] He provided the following:

"....Mr Pascoe's employment with Roof Crew Pty Ltd was the main contributing factor to the injury listed above (medial patellofemoral ligament rupture). The Injury would not have occurred other than for the factors associated with Mr Pascoe's employment, including carrying a heavy load on a surface with gradient.

The patella remains highly unstable at the time of this report at approximately 4 months post injury despite appropriate non-operative treatment. This was expected due to the retracted ends of the medial patella stabilising ligaments and tissues evident on the MRI scan. The degree of clinical instability on examination also was an indicator for surgical intervention. Ideally the surgery would have been performed sooner to allow for a better outcome. Unfortunately delays with the insurer providing approval for the surgery have led Mr Pascoe to undergo self-funded private surgery in order to minimise any further reduction in likelihood of an optimal outcome. The planned surgery is reasonably necessary and is the only option to help restore the medial patella stabilising tissues to allow for the best possible outcome. Prolonged rehabilitation is expected with usually 6 to 12 months required for maximal improvement.

Despite appropriate prolonged rehabilitation Mr Pascoe may not return to his pre-injury employment.

I do not think it is unlikely that Mr Pascoe will ever again engage in gainful employment on a sustainable basis in any occupation for which he is reasonably qualified by education, training or experience. I do however as previously indicated believe that Mr Pascoe will likely have a degree of restricted capacity pertaining to any occupation for which he is reasonably qualified by education, training or experience."

1. As to the relationship between the applicant and the respondent, the applicant states the following:
   • Mr Troy English informed him that he wanted him to work full-time. He often worked 40 to 45 hours per week;
   • he only worked for the respondent, Roof Crew Pty Ltd. He did not work for any other employer;
   • to gain work with the company he was required to obtain his own ABN to ensure he was able to be paid. This was a stipulation for his employment. It was not optional;
   • he only obtained an ABN to work for his employer and did not look for separate or independent work;
   • he did not advertise for any work. He did not have any intention to do so;
   • Mr Troy English was his boss, the proprietor of the respondent. Mr English provided him with his instructions and all necessary information regarding the performance of his work. This was done via text messages or in person on site. This included what work was to be done and where it was supposed to be done, and
   • Mr English supplied him with four work shirts, two hoodies and one singlet.[4] The applicant was required to wear these items when working. They were all branded with the Roof Crew Pty Ltd logo. All crew were required to wear the branded uniform.[5]

1. Mr English did not provide any evidence.
2. The contentions of the respondent were set out in the notices served on the applicant and referred to below. In those notices the insurer conveyed to the applicant the instructions provided by Mr English. No separate supporting material was provided to the Commission.
3. The respondent's contentions are best stated in the Notices served on the applicant. There is no purpose to be served by the Commission restating the issues.
4. The insurer notified the applicant in a s 78 Notice issued on 25 June 2025 that it had determined that he was a sole trader. It also notified him that it did not agree that: the applicant was a worker as defined by s 4 the 1998 Act:
   • the applicant was a deemed worker as defined by cl 2 of Schedule one of the 1998 Act, and
   • that the applicant was entitled to weekly payments and medical related treatment for his claimed injury because he did not have a total or partial incapacity for work resulting from an injury as required by s 33 of the 1987 Act and also and because the medical or related treatment for which he seeks reimbursement was not reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
5. In a review of that decision, effective 14 July 2025, the applicant was advised:

"On 25 June 2025, QBE disputed liability for your claim under sections 4 and clause 2 schedule 1 of the Workplace lnjury Management and Workers Compensation Act 1998 (the 1998 Act) and sections 33, 59, and 60 of the Workers Compensation Act 1987 (the 1987 Act). QBE states that you were paid through an ABN and disagrees that you are a worker or deemed worker of the insured.

You requested a review of the dispute on 30 June 2025 based on the following submissions provided in your review form and by telephone:

- You started working for the insured on 4 April 2025.

- your previous apprenticeship was undertaking in roof plumbing, which is different to the work you perform for the insured. You are not a specialist in the work you provide to the insured, who is responsible for teaching you the required skills and supervising your work. - The insured directed you where to work, what time to start, and what time to finish.

- The insured organizes all the materials, but you have your own tools since you completed your first apprenticeship.

- You send the insured your invoices at the end of the week, and having an ABN does not mean you are not a worker.

- While you had an ABN, you do not run a company. You had to register an ABN because some employers require this, and you registered yourself as a sole trader as the most applicable option.

ln conducting our review, we have had consideration to all evidence available to QBE, and this review outcome is to be read together with the dispute notice dated 25 June 2025.

On review we note: - Medical evidence from you GP says that you slipped on a roof at work on 3O May 2025 and injured your left knee. A radiological report dated 30 June 2025 indicated a complete full-thickness tear.

- The insured has advised QBE that you were not an apprentice or an employee. The insured advised that you were paid by tax invoice with no leave entitlements and that you paid your own tax. The insured advised that you use your own skill and judgement, your own tools, own transportation, with no permanent supervision. The insured advised that they provided a shirt in good faith because you did not have your own, and the insured was unsure if you advertised elsewhere or performed work for anyone else.

- The insured advised that you worked 3 - 5 days per week at around $45O per day.

- The ABN Lookup Tool indicates that you have been registered as a sole trader under ABN 45 923 556 163 since 2 March 2025, in the month before you commenced working for the insured. lnvoices between 17 April 2025 - 2 June 2025 were issued to the insured based on the number of days worked at a rate varying between approximately $333 - $433. They do not include any itemised amount of superannuation nor is tax deducted'.

- The insured has provided text messages sent to a group of people, including yourself, from 23 April - 30 April' The messages provide the address of work sites and changes for weather' One message says, "all staff please ensure all PPE including hard hats, safety boots, harnesses and 1 photo lD are with you all times". The insured has also provided text messages directly to you in May noting the location of worksite and asking for an invoice to be corrected.

We note that section 4 of the Workplace lnjury Management and Workers Compensation Act 1998 (the 1998 Act) defines a 'worker' as 'a person who has entered into or works under a contract of service or a training contract with an employer'.

Schedule 1 of clause 2(l)(a) of the 1998 Act further provides that a person is also taken to be an employed worker (a 'deemed worker') when they are contracted to perform work exceeding $lO in value, not incidental to a trade or business regularly carried on by the person, and if the person did not sublet the contract or employ other workers.

There is an indicia that has been used in this context to examine the totality of such relationships. lt remains the case that control continues to be one of the factors to be considered in examining the relationship. The following factors would generally indicate that the relationship is likely to be one of an employer/employee relationship:

- Controlling the matter of how the work is performed.

- Has the exclusive services of the person engaged.

- Dictates the place of work, hours of work, and the like.

- Paying the person doing the work on a time basis rather than a task basis.

- Deducting PAYG income tax from money payable to the person to do that work.

We consider that the evidence is insufficient to establish that you were a worker or deemed worker of the insured. Your payslips indicate that you did undertake work for the insured, but this was paid through your own ABN. We acknowledge your submissions that you were not running a business, and the insured was responsible for your work and arrangements, however, we do not have sufficient evidence to corroborate the working relationship, and the insured indicates that you undertook your work independently which is not displaced by the text message.

For those reasons, we maintain the dispute under sections 4 and clause 2 schedule 1 of the 1998 Act.

It follows that you are not entitled to weekly benefits and medical or related treatment, and we maintain the dispute under sections 33, 59 and 60 of the 1987 Act."

1. Effective 21 August 2025, after receiving a request for a review from the applicant's solicitor, the insurer provided the following reasons for maintaining its decision:

"Your solicitors requested a review of the dispute on 7 August 2O25 in reliance on the lndependent Medical Examination (lME) report from Dr Eugene Gehr (orthopaedic surgeon) dated 31 July 2025.

On 13 August 2025, your solicitors provided a copy of your signed statement dated 8 August 2025 and referred to their request for review dated 7 August 2025. You responded:

On review we have considered your review application and all documents available to QBE. This review outcome is to be read together with the dispute notice dated 25 June 2025 and the previous review outcome dated 14 July 2025.

- ln the previous review outcome, icare concluded that there was insufficient evidence that you were a worker or deemed worker of the insured, and the insured indicated that you undertook your work independently through your own ABN.

- Since the previous review, your solicitors have provided the IME report from Dr Gehr to whom you informed that you were working as an employee of the insured and a co-worker took you to an urgent care centre in East Maitland after the accident. Dr Gehr diagnoses you with left knee dislocation and disruption of ligaments caused by your employment. While we acknowledge Dr Gehr's expert opinion about your injury, he is not qualified to make an assessment of whether you are a worker/deemed work under the provision of the 1998 Act.

- Since the previous review, you have further provided a signed statement that the insured informed you that he that he wanted you to work for him on a full-time basis and you worked between 40 - 50 hours per week. You state that you were solely working for the insured which was your only source of income. You state that the reason that you obtained an ABN was because the insured required you to obtain one. You state that you were paid through invoices and paid your own superannuation and tax.

- you further say that your employer provided you with all instructions for what work you were required to complete and where you were required to complete it. You further statement that you were required to wear a uniform with the insured's logo (and you have provided a photograph of this, and social media screenshots showing other workers in the same uniform). You state that you used your own tools to complete your work activities, but also used tools owned by the company when necessary, and the company provided all materials.

- Based on the updated photographs you have provided, we are unable to verify the branding or the persons in the photographs, and we do not consider that the updated evidence is sufficient to establish that you were a worker/deemed worker of the insured.

- We otherwise maintain that, noting the information received by the insured and the balance of the available evidence, there is insufficient evidence to corroborate the working relationship between you and the insured, and we maintain the dispute under sections 4 and clause 2 schedule 1 of the 1998 Act.

- lt follows that you are not entitled to weekly benefits and medical or related treatment, and we maintain the dispute under sections 33, 59 and 60 of the 1987 Act.

For those reasons, we maintain the dispute dated 25 June 2025 in its entirety."

(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

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.

(3) A person excluded from the definition of worker in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.

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)."

1. Mr English did not provide any evidence. There is no written contract between the applicant and Mr English. There is therefore no document which can provide any assistance to the Commission when determining the terms of the arrangement between Mr English and the applicant.
2. The Commission must therefore have regard to the terms of any contract entered into orally. The only direct evidence regarding the terms of the oral contract entered into between the parties is that provided by the applicant in his statement. That evidence supports a finding of a contract of employment between Mr English and the applicant. I accept that evidence.
3. There is a great deal of avoidance of straight talking, in discussion of the work performed by persons holding an ABN. It is often submitted by respondents in this jurisdiction that an ABN is a prima facie indicator of a contractor arrangement, that there is a presumption that the person holding an ABN is a sole trader, and an inference that that presumption is to be rebutted by the holder of the ABN.
4. Any such discussion ignores the industrial reality that, in the conduct of work performed in NSW, and Australia more generally, workers in certain industries are frequently obliged to obtain an ABN to find any paid work.
5. In some circumstances holding an ABN may of course mean that the holder who is performing work is conducting a business on their own account i.e. is a sole trader, looking for work as a contractor. It may equally mean nothing at all.
6. In many industries, particularly the hospitality gig economy and the construction industry, the holding of an ABN by a worker is a well-known industry wide requirement for obtaining any paid work at all.
7. Businesses which require a person performing work to hold an ABN and present themselves as if they were sole traders do so for very compelling commercial reasons. They wish to avoid the application of award conditions to those persons performing work on their sites. They also wish to avoid the accrual by the worker of statutory entitlements such as long service leave. They do not wish to pay workers compensation insurance. They do not wish to pay any payroll tax which might accrue.
8. In many cases the arrangement is a sham entered into solely for the purpose of avoiding the obligations listed above.
9. For the reasons set out below I am persuaded that any such contractor arrangement with the applicant contended for by the respondent is such a sham.
10. There is no evidence which would establish that the applicant was conducting a business as a roofer. He was a single worker performing work for one organisation. He did not advertise. He did as Mr English directed. He worked where he was told to work, in the manner in which he was directed to work and, although he provided some tools of his own, he also used tools provided by the respondent. Mr English provided work, health and safety directions including a requirement to work with PPE.
11. The applicant wore the uniform provided by Mr English as did all of the workers at the site. The suggestion by the insurer that they could not read the branding on the uniform is almost offensive. It could have examined the uniform provided by its client. Any suggestion that a uniform had to be provided to the applicant because he did not have a shirt to wear is hardly a credible contention.
12. The respondent has suggested in its notices that it did not have sufficient evidence to accept the applicant's claim across a wide range of issues. It did have that material. There was no reason to reject the material provided by the applicant who provided detailed submissions through his solicitor setting out the arrangements which with no difficulty satisfy the control test and support a finding that the applicant was an employee of the respondent and not engaged in a contractor/client arrangement.
13. Those evidentiary matters to which I have referred, including direction and control, support the existence of an oral contract of employer/employee and I so find.

1. The medical evidence before me is overwhelmingly in support of the reasonable necessity for the surgery provided by Dr Raeme. No alternative medical case was submitted. I am satisfied it was reasonably necessary and arose directly from the injury sustained at the respondent's premises on 30 May 2025.

1. I am satisfied that the applicant worked as an employee for three to five days per week at $450 gross per day.
2. I am satisfied that his work varied, as all construction work is likely to do, given weather and other issues.
3. I find that the applicant's is entitled to an award of compensation of $450 gross per day for four days per week from 30 May 2025 to date as indexed.

1. For the reasons set out above I will make the findings and orders as set out on page 1 of the Certificate of Determination.

[1] Application to lodge additional documents 27 October 2025 page 1.

[4] Attachment 1 to the applicant's statement ARD page 8.

[5] Attachment 2 to 7 to the applicant's statement ARD page 8.