Almanaa v FBS Formwork Group Pty Ltd - [2021] NSWPIC 455

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Almanaa v FBS Formwork Group Pty Ltd [2021] NSWPIC 455
APPLICANT:	Abdulazziz Almanaa
RESPONDENT:	FBS Formwork Group Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	15 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Pre-injury average weekly earnings (PIAWE) dispute in respect of injury on first day of employment with respondent; unsigned statement; consideration of Symbion Health Limited (formerly Mayne Group Limited) v Franks & Linfox Australia Pty Limited; clause 4, schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation considered; consideration of objective test required for clause 4 and clause 8F; whether award should be basis of clause 8F(1)(b) determination; Held - without proof of application of award clause 8F(1)(b) does not apply and clause 8F(1)(a) applies; oral contract formed and PIAWE determined on basis of oral contract.
DETERMINATIONS MADE:	1. The applicant’s pre-injury average weekly earnings are $1,859.

STATEMENT OF REASONS

BACKGROUND

This is an application by Mr Abdulazziz Almanaa (the applicant) for an interim payment direction in respect of a dispute as to the amount of pre-injury average weekly earnings (PIAWE) in respect of weekly compensation payable as a result of injury sustained on 30 March 2021 in the course of the first day of his employment with FBS Formwork Group Pty Ltd (the respondent).
Liability for injury to the left shoulder on 30 March 2021 was accepted by the respondent and weekly compensation payments commenced. Liability for injury to other parts of the applicant’s body was disputed in a section 78 notice dated 1 July 2021 and maintained in a section 287A review dated 5 August 2021. That dispute is not the subject of these proceedings.
In a section 287A review notice dated 20 July 2021, the insurer notified the applicant that it rejected the applicant’s suggested PIAWE and reassessed PIAWE on the basis of an Award rate of $855.18. The applicant disputes that assessment.

PROCEDURE BEFORE THE COMMISSION

At the hearing of this matter on 13 September 2021, the applicant was represented by
Mr Beran of counsel, instructed by Mr Sawers, solicitor, and the respondent by Ms Prichard, solicitor. The applicant was assisted by an interpreter in the Arabic language.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have 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 have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
There was no application to cross-examine the applicant nor for oral evidence by a witness.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application and attached documents, and
(b) Reply and attached documents.

Documents

The applicant provided a signed statement dated 10 June 2021 and a…

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: [2021] NSWPIC 455
Decision Date: 15 November 2021

CaseChat Overview and Summary

The matter before the court involved Almanaa, the applicant, and FBS Formwork Group Pty Ltd, the respondent, concerning a dispute over the pre-injury average weekly earnings (PIAWE) in the context of a workers' compensation claim. Almanaa claimed that her PIAWE should be calculated based on her previous employment, while FBS argued that her PIAWE should be based on the earnings she would have made had she continued in her new employment with the company. The dispute arose on Almanaa's first day of employment with FBS, when she suffered an injury that she claimed warranted workers' compensation. The case was heard in the Workers Compensation Commission of New South Wales.

The central legal issues revolved around the interpretation and application of clause 4, schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation. The court needed to determine whether the objective test applied to these clauses and whether the award should be the basis for determining PIAWE under clause 8F(1)(b). The court had to consider the precedent set in Symbion Health Limited (formerly Mayne Group Limited) v Franks & Linfox Australia Pty Limited and assess the impact of an unsigned statement on the formation of the oral contract. The primary issue was whether Almanaa's PIAWE should be determined based on her previous employment or on the new employment with FBS.

The court found that the objective test applied to both clause 4 and clause 8F of the Workers Compensation Regulation. It was determined that the award under clause 8F(1)(b) does not apply unless there is proof of its application. In this case, the court found that an oral contract was formed between the parties, and the PIAWE was determined based on the terms of that oral contract. The court held that the absence of a signed statement did not affect the validity of the oral contract, and the PIAWE should be calculated based on the earnings Almanaa would have made had she continued her employment with FBS.

The court ordered that the pre-injury average weekly earnings should be calculated based on the terms of the oral contract between Almanaa and FBS Formwork Group Pty Ltd. The respondent was directed to pay the appropriate compensation based on this determination.

Orders