November 24, 2015

Professionals on “fee splitting” arrangements that specify them to be independent contractors rather than employees, are nevertheless likely to be a worker for injury compensation and perhaps other purposes.

Aus-Care Sports Medicine – who operates 21 clinics up and down the coast of Queensland as well as Darwin – was confronted by this issue after a physiotherapist engaged at its Kelvin Grove premises sustained a lower back injury in October 2014.

Louise Horrocks carried her own professional indemnity insurance and worked under her own ABN at there and for another clinic at Wellers Hill.

The clinic’s role was to schedule and invoice patients, collect fees, pay GST and provide a uniform and an equipped treatment room.

Aus-care deducted no tax or superannuation contributions from her share of the patient fee namely, 45% to the clinician for consultations and 50% for medico-legal report payments.

She was autonomous in terms of the treatment provided. “In effect all Horrocks had to do was turn up on the day, treat patients and leave.”

WorkCover rejected Horrocks claim on the basis that she was not a “worker” but that decision was set aside by the Workers Compensation Regulator.

Aus-care appealed to the Queensland Industrial Relations Commission who – given that WCRA s 11 defines “worker” by reference to the persons employment status under the Taxation Administration Act – paid particular attention to the online ATO “Worker/contractor decision tool”.

Its CEO and managing director John Bell-Allen gave evidence that it engages physiotherapists, podiatrists, sports doctors, masseurs plus reception staff.

In a 36 page judgement, industrial Commissioner Thompson ruled that in all the circumstances – and in line with the outcome of the ATO decision tool – Horrocks must be considered a worker.

Notwithstanding the provisions of the agreement that she was an independent contractor, she was entitled to worker’s compensation benefits for her at-work injury.

Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 182 Industrial Commissioner Thompson 27/10/2015

Categories: Personal Injury , Litigation & Law Practice

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