Al Khaldy v ES Formwork Pty Ltd - [2024] NSWPIC 557

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Khaldy v ES Formwork Pty Ltd [2024] NSWPIC 557
APPLICANT:	Mohammad Al Khaldy
RESPONDENT:	ES Formwork Pty Ltd
MEMBER:	Anthony Scarcella
DATE OF DECISION:	2 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); section 4(a); injury to the cervical spine, bilateral shoulders, thoracic spine, lumbar spine and right knee disputed; entitlement to weekly benefits disputed; section 60 expenses disputed; PIAWE disputed; contemporaneous evidence; histories in medical records; clause 9 of Schedule 3 to the 1987 Act current work capacity and no current work capacity; section 32A suitable employment; clause 2 of Schedule 3 to the 1987 Act calculation of PIAWE; Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Onassis and Calogeropoulos v Vergottis, Davis v Council of the City of Wagga Wagga, King v Collins, Mason v Demasi, Department of Aging, Disability and Home Care v Findlay and Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – the applicant suffered injuries to the cervical spine and the lumbar spine arising out of or in the course of his employment with the respondent on 15 December 2022 within the meaning of sections 4(a) and 9A; the applicant suffered a consequential psychological condition as a result of the injuries he sustained in the course of his employment with the respondent on 15 December 2022; the applicant has had no current work capacity from 15 December 2022 within the meaning of clause 9 of Schedule 3 to the 1987 Act; the respondent is to pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent on 15 December 2022; the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 15 December 2022 under section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injuries to the cervical spine and the lumbar spine arising out of or in the course of his employment with the respondent on 15 December 2022 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant suffered a consequential psychological condition as a result of the injuries he sustained in the course of his employment with the respondent on 15 December 2022. 3. The applicant has had no current work capacity from 15 December 2022 within the meaning of cl 9 of Schedule 3 in the Workers Compensation Act 1987. The Commission orders that 4. The respondent is to pay the applicant weekly compensation in respect of the injuries sustained on 15 December 2022 as follows: (a) $1,377.50 per week from 16 December 2022 to 16 March 2023 under s 36(1) of the Workers Compensation Act 1987; (b) $1,160 per week from 17 March 2023 under s 37(1) of the Workers Compensation Act 1987 until such payment is suspended, varied or terminated under the provisions…

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: [2024] NSWPIC 557
Decision Date: 2 October 2024

CaseChat Overview and Summary

In the case of Al Khaldy v ES Formwork Pty Ltd, the applicant, Mr Al Khaldy, brought an action against the respondent, ES Formwork Pty Ltd, seeking workers' compensation for injuries sustained in the course of his employment. The injuries in question involved multiple regions of Mr Al Khaldy's body, including the cervical spine, bilateral shoulders, thoracic spine, lumbar spine, and right knee. The primary disputes in the case were the entitlement to weekly compensation benefits, the payment of medical and related expenses, and the calculation of permanent impairment assessment wage earnings (PIAWE). The matter was heard and determined by the Industrial Court of Queensland.

The court was tasked with determining whether the injuries Mr Al Khaldy sustained were indeed caused by or in the course of his employment, as well as the extent of those injuries. Furthermore, it needed to ascertain if Mr Al Khaldy had no current work capacity, which would affect his eligibility for certain benefits, and whether the respondent was liable for his medical expenses. The court also had to evaluate the appropriate amount of PIAWE to be awarded under the provisions of the Workers Compensation Act 1987.

The court found that Mr Al Khaldy had indeed suffered injuries to the cervical spine and lumbar spine as a result of his employment with the respondent on 15 December 2022, which qualified under sections 4(a) and 9A of the Act. The court accepted that the applicant also experienced a consequential psychological condition arising from these injuries. Given the severity and nature of the injuries, the court determined that Mr Al Khaldy had no current work capacity from the date of the incident. Consequently, the respondent was ordered to pay weekly compensation benefits to Mr Al Khaldy and to cover his reasonably necessary medical and related expenses. The court's decision was influenced by several precedents, including Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, and others, which provided guidance on similar issues of causation, capacity, and entitlement to compensation.

In summary, the court ruled in favour of Mr Al Khaldy, mandating that ES Formwork Pty Ltd provide weekly compensation and cover medical expenses for injuries sustained by Mr Al Khaldy on 15 December 2022. The court's determination hinged on the recognition of the injuries as arising out of and in the course of employment and the lack of current work capacity for the applicant.

Orders