El Badaoui v Halliday Engineering Pty Ltd - [2021] NSWPIC 219

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	El Badaoui v Halliday Engineering Pty Ltd [2021] NSWPIC 219
APPLICANT:	Marwan Khaled El Badaoui
RESPONDENT:	Halliday Engineering Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act; applicant had accepted physical injury to cervical spine and lumbar spine; whether pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; Held – pursuant to section 4(a) of the 1987 Act the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment; matter remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine, lumbar spine and left and right upper extremities (shoulders).
DETERMINATIONS MADE:	1. Pursuant to section 4(a) of the Workers Compensation Act 1987 the applicant sustained injury to his left and right upper extremities (shoulders) in the course of his employment with the respondent on 29 April 2019. 2. The matter is remitted to the President for referral to a Medical Assessor (MA) for assessment as follows: Date of injury: 29 April 2019 Body parts: Cervical Spine, Lumbar Spine, Right and Left Upper Extremities (Shoulders) Method: Whole Person Impairment 3. The materials to be referred to the MA are to include: (a) Application to Resolve a Dispute and attached documents, and (b) Reply to Application to Resolve a Dispute and attached documents. 4. The matter be placed on the Medical Assessment Pending List.

STATEMENT OF REASONS

BACKGROUND

Mr Marwan Khaled El Badaoui (the applicant) claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from injury to his cervical spine, lumbar spine and right and left upper extremities sustained in the course of his employment with Halliday Engineering Pty Ltd (the respondent) on 29 April 2019.

The applicant made a claim for compensation by letter dated 7 July 2020.

By notice dated 21 August 2020, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed the applicant’s entitlement to compensation for permanent impairment on the basis that it did not accept that the applicant sustained injury to either upper extremity in the course of employment. Whilst the respondent accepted liability for injury to the applicant’s cervical spine and lumbar spine, it disputed entitlement to compensation for permanent impairment on the basis that the impairment assessment for the cervical and lumbar spines combined was not greater than 10% Whole Person Impairment (WPI).

By notice dated 29 September 2020, issued pursuant to s 78 of the 1998 Act, the respondent maintained its position.

The applicant filed an Application to Resolve a Dispute (ARD) on 9 April 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute…

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 219
Decision Date: 30 June 2021

CaseChat Overview and Summary

The applicant, Mr. El Badaoui, sought lump sum compensation for permanent impairment under section 66 of the relevant Act, following injuries sustained during his employment with Halliday Engineering Pty Ltd. The dispute centred on whether Mr. El Badaoui's injuries to his cervical spine and lumbar spine, as well as his left and right upper extremities (shoulders), were sustained in the course of his employment, as required under section 4(a) of the Act. This determination was pivotal in establishing his eligibility for compensation.

The court was tasked with deciding whether the injuries in question met the criteria for employment-related injuries, which would entitle Mr. El Badaoui to compensation for permanent impairment. The central legal issue was whether the injuries to his shoulders were indeed sustained in the course of his employment, as the applicant had already accepted physical injury to his cervical spine and lumbar spine.

The court found that Mr. El Badaoui had sustained injury to his left and right upper extremities (shoulders) in the course of his employment, as per section 4(a) of the Act. This conclusion was based on the evidence presented, which showed that the injuries were work-related. The court emphasised that the applicant's injuries to the cervical spine and lumbar spine were accepted as employment-related, and the injuries to the shoulders followed a similar pattern of causation. Consequently, the matter was remitted to the President for referral to a Medical Assessor to evaluate the permanent impairment concerning Mr. El Badaoui's cervical spine, lumbar spine, and left and right upper extremities (shoulders).

The final orders of the court directed that the case be returned to the President to arrange for a Medical Assessor to assess the extent of permanent impairment attributable to the injuries, thereby facilitating the determination of appropriate compensation.

Orders