Elmobayed v Woolworths Group Limited

Case [2025] NSWPICPD 65


DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Elmobayed v Woolworths Group Limited [2025] NSWPICPD 65

APPELLANT:

Rayanne Elmobayed

RESPONDENT:

Woolworths Group Limited

INSURER:

Woolworths Limited

FILE NUMBER:

A1-W25690/24

PRESIDENTIAL MEMBER:

Acting Deputy President Paul Sweeney

DATE OF APPEAL DECISION:

8 September 2025

ORDERS MADE ON APPEAL:

1.    The Certificate of Determination dated 17 December 2024 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – s 60 of the Workers Compensation Act 1987 – whether need for surgery results from injury – scope of estoppel created by consent award for respondent in prior proceedings – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 and Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 considered – factual finding that need for surgery resulted from injury caught by the estoppel

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Withstand Lawyers

Respondent:

Mr P Stockley, counsel

Turks Legal

DECISION UNDER APPEAL:

Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706

MEMBER:

Mr J Wynyard

DATE OF MEMBER’S DECISION:

17 December 2024

INTRODUCTION

  1. The issue on this appeal is whether an estoppel created by consent orders made on 25 March 2024 precluded the appellant recovering the cost of surgery undertaken by Dr Banzic and Dr Stewart on 30 July 2024.

  2. Rayanne Elmobayed (the appellant) was formerly employed by Woolworths Group Limited (the respondent) as a picker and filler. On 9 June 2022, while lifting crates at the respondent’s premises at Eastlake, she experienced pain in her neck, left shoulder and chest.[1]

    [1] Application to Resolve a Dispute (ARD), p 3.

  3. As her symptoms persisted, the appellant sought treatment from doctors at the Excelsior Family Medical Centre at Guildford. On 22 June 2022, she was advised by Dr Rehman, a general practitioner, that a scan of her cervical spine was suggestive of a lesion in her left first rib area. A CT scan confirmed the presence of a tumour at the left rib. Accordingly, on 29 June 2022, the appellant consulted with a cardiothoracic surgeon, Dr Kal Perera, who undertook surgery to resection her first left rib at Westmead Private Hospital on 17 July 2022.[2] Dr Perera did not remove the entirety of the lesion in the appellant’s first left rib as he considered that more extensive intervention “could result in permanent neurological dysfunction”.[3]

    [2] ARD, p 5.

    [3] ARD, p 78.

  4. As the appellant continued to suffer symptoms in her chest, neck, and left arm following surgery, she was referred to several specialists for further investigation. She saw Dr Sammons, a neurosurgeon, Dr Taylor, a pain specialist, and on 31 May 2023, Dr Hugh Winters, an interventional and vascular neurologist.

  5. On 26 March 2024, the appellant saw Dr David Stewart, a plastic and reconstructive surgeon on referral from Dr Igor Banzic, a vascular surgeon. He diagnosed thoracic outlet syndrome secondary to first rib fibrous dysplasia and recommended that she undergo further surgery involving an excision of her first rib and a thoracic outlet…

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Elmobayed v Woolworths Group Limited [2025] NSWPICPD 65
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[2025] NSWPICPD 65
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CaseChat Overview and Summary

Elmobayed v Woolworths Group Limited is a case in which the applicant, Mr Elmobayed, brought a workers' compensation claim against Woolworths Group Limited, the respondent. The primary dispute centres on whether the need for surgery arose from an injury sustained by Mr Elmobayed during his employment, and thus, whether he is entitled to compensation under s 60 of the Workers Compensation Act 1987. The case was heard in the New South Wales Court of Appeal, which was required to determine the scope of the estoppel created by a prior consent award.

The legal issues before the Court of Appeal involved the interpretation and application of estoppel in workers' compensation cases. Specifically, the Court needed to ascertain whether the factual finding that the need for surgery resulted from an injury was within the scope of the estoppel created by the prior consent award. The Court referred to previous cases such as Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Bouchmouni v Bakhos Matta t/as Western Red Services, which provided guidance on the application of estoppel in similar contexts.

The Court of Appeal, in its judgment, held that the factual finding regarding the causation of the need for surgery was caught by the estoppel established by the prior consent award. The Court examined the evidence presented and concluded that the finding was neither glaringly improbable nor contrary to compelling inferences. The Court of Appeal recognised its duty to weigh the conflicting evidence and draw its own inferences and conclusions, ultimately determining that the factual finding was indeed within the scope of the estoppel. Consequently, the appeal was dismissed.

The Court of Appeal found that the factual finding concerning the causation of the need for surgery was within the scope of the estoppel created by the prior consent award. As such, the appeal was dismissed, and the original decision stood. The Court emphasised the importance of weighing conflicting evidence and drawing independent conclusions, ensuring that the factual findings were neither improbable nor contrary to compelling inferences. The final orders confirmed the dismissal of the appeal and upheld the original decision.

Orders

Orders of the court

was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good.” (citations omitted; emphasis added)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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