El Ali v Hunter Operations Pty Ltd - [2024] NSWPIC 14

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	El Ali v Hunter Operations Pty Ltd [2024] NSWPIC 14
APPLICANT:	Khader El Ali
RESPONDENT:	Hunter Operations Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	10 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; whether psychological and physical injuries sustained by the applicant in a physical altercation were sustained in the course of or arose out of the applicant’s employment; whether the applicant was disentitled to compensation by reason of section 14(2); Held – the applicant sustained injury on 21 January 2019 in the course of his employment and arising out of his employment pursuant to section 4(a), namely a psychological injury and injury to his ear, nose and throat related structures; the applicant’s employment was a substantial contributing factor to the injury in accordance with section 9A; a defence pursuant to section 14(2) is not established; the matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury on 21 January 2019 in the course of his employment pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), namely a psychological injury and injury to his ear, nose and throat related structures. 2. The applicant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. 3. A defence pursuant to s 14(2) of the 1987 Act is not established. The Commission orders: 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 21 January 2019 Body parts: Psychological ear, nose and throat related structures Method: whole person impairment. 5. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents; (b) Reply to ARD and attached documents, and (c) Application to Admit Late Documents by respondent dated 10 November 2023.

STATEMENT OF REASONS

BACKGROUND

Khader El Ali (the applicant) was employed by Hunter Operations Pty Ltd (the respondent) as a courier driver.
The applicant alleges that, arising from and during the course of his employment with the respondent, he sustained both a primary psychological injury and personal injury to his ear, nose, throat and related structures from a physical altercation with the driver of another vehicle (the other driver) on a roadway on 21 January 2019.
On 22 November 2021, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the Workplace Injury Management and Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment (WPI) for psychiatric and psychological disorders and 19% WPI for ear, nose and throat related structures. The applicant’s claims were supported by reports of: Dr Robert Gertler, psychiatrist, dated 3 November 2021; Dr Nigel Curtis, oral and maxillofacial surgeon, dated 18 May 2021, and…

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.

Continue reading El Ali v Hunter Operations Pty Ltd

Details

AGLC: El Ali v Hunter Operations Pty Ltd [2024] NSWPIC 14
Case: [2024] NSWPIC 14
Decision Date: 10 January 2024

CaseChat Overview and Summary

In the case of El Ali v Hunter Operations Pty Ltd, the applicant, El Ali, sought a lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987. The dispute centred on whether the psychological and physical injuries sustained by El Ali during a physical altercation were incurred in the course of and arose out of his employment. The case was heard by the Court of Appeal, which needed to determine if El Ali's employment was a substantial contributing factor to the injury and if any defences under section 14(2) applied to disentitle him from compensation.

The legal issues for the court's determination included whether El Ali's injuries, which included a psychological injury and physical injuries to his ear, nose, and throat, were sustained in the course of and arose out of his employment as defined by section 4(a) of the Act. Additionally, the court had to consider whether section 14(2) of the Act applied to disentitle El Ali from compensation, which would require a finding that the injury was not sustained in the course of or did not arise out of the employment.

The court found that El Ali sustained his injuries on 21 January 2019, which were directly linked to his employment. It was established that his employment was a substantial contributing factor to the injuries sustained, aligning with section 9A of the Act. Consequently, the court concluded that the defence under section 14(2) did not apply, and El Ali was not disentitled from compensation. The matter was remitted to the President for referral to a Medical Assessor to evaluate El Ali's whole person impairment for the purposes of determining the appropriate compensation.

This comprehensive evaluation and decision underscore the importance of a thorough assessment of the circumstances surrounding the injuries and their connection to employment, ensuring that workers receive just compensation for injuries sustained in the workplace.

Orders