Al Hadidi v Form1 Building & Construction Pty Ltd - [2022] NSWPIC 334

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Hadidi v Form1 Building & Construction Pty Ltd [2022] NSWPIC 334
APPLICANT:	Ahmed Mater Kareem Khluwi Al Hadidi
RESPONDENT:	Form1 Building & Construction Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and incurred section 60 of the Workers Compensation Act 1987 expenses; whether applicant a worker or deemed worker; lumbar injury and secondary psychological condition in dispute; extent of ongoing incapacity; significant factual disputes in the evidence; calculation of pre-injury average weekly earnings (PIAWE); Held – applicant was a deemed worker; lumbar injury and secondary psychological condition accepted; applicant had at all times no current work capacity; respondent’s PIAWE accepted; awards for weekly compensation and medical expenses.
ORDERS MADE	1. The respondent to pay weekly compensation from 10 September 2019 onwards pursuant to ss 36(1)(a) and 37(1)(a) of the Workers Compensation Act 1987 based on a PIAWE figure of $625, as periodically indexed. 2. The Commission declines to make any order for ongoing weekly compensation in accordance with s 38 of the Workers Compensation Act 1987. 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.
DETERMINATIONS MADE:	1. The applicant was a ‘deemed worker’ pursuant to cl 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant sustained an injury to his lumbar spine pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 on 9 September 2019. 3. The applicant sustained a secondary psychological condition as a result of the injury to his lumbar spine. 4. During the period from 10 September 2019 onwards, the applicant had no current capacity for work as a result of the injury on 9 September 2019. 5. The applicant’s pre-injury average weekly earnings (PIAWE) figure was $625.

STATEMENT OF REASONS

BACKGROUND

Mr Ahmed Mater Kareem Khluwi Al Hadidi (the applicant) claims to have sustained an injury to his lumbar spine in the course of employment with Form1 Building & Construction Pty Ltd (the respondent) on 9 September 2019. The applicant also claims to have sustained a psychological condition as a result of the injury to his lumbar spine.
The applicant made a claim for compensation which was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 6 May 2020.
The applicant sought review of that decision and the liability dispute was maintained in a further notice issued on 30 July 2021 and in email correspondence to the applicant’s solicitor on 24 November 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 17 December 2021.
The applicant seeks weekly compensation on an ongoing basis from 10 September 2019 and compensation pursuant to s…

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 334
Decision Date: 28 June 2022

CaseChat Overview and Summary

The case before the court involved Al Hadidi, who sought weekly compensation and incurred section 60 of the Workers Compensation Act 1987 expenses from Form1 Building & Construction Pty Ltd. The primary dispute centred on whether Al Hadidi was a worker or a deemed worker under the Workers Compensation Act 1987, the nature and extent of his lumbar injury and associated psychological condition, and the calculation of his pre-injury average weekly earnings (PIAWE). The case was heard and determined in the Workers Compensation Commission of New South Wales.

The legal issues that the court needed to address included the classification of the applicant as a worker or a deemed worker, the acceptance and extent of the lumbar injury and the secondary psychological condition, and the calculation of PIAWE. Additionally, the court had to determine the extent of ongoing incapacity of the applicant and the amount of weekly compensation and medical expenses due to him. The court was tasked with resolving significant factual disputes present in the evidence provided by both parties.

The court found that Al Hadidi was a deemed worker under the Workers Compensation Act 1987. The lumbar injury and the secondary psychological condition were accepted as genuine. The applicant was found to have no current work capacity at all times. The court accepted the respondent's PIAWE calculation. Consequently, the court awarded Al Hadidi weekly compensation and medical expenses. The detailed findings and calculations were provided in the judgment, outlining the basis for the court’s decision.

Orders