Grant v Lyndhurst IGA Pty Ltd - [2025] NSWPIC 329

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grant v Lyndhurst IGA Pty Ltd [2025] NSWPIC 329
APPLICANT:	Barbara Grant
RESPONDENT:	Lyndhurst IGA Pty Ltd
MEMBER:	Anthony Scarcella
DATE OF DECISION:	9 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 38; accepted physical and psychological injuries as the result of an assault in the workplace by a store customer; entitlement to weekly benefits under section 38 disputed for a closed period; clause 9 of Schedule 3; current work capacity and no current work capacity; section 32A; suitable employment; whether unpaid training and study approved by the respondent as a pathway for the applicant to return to work constituted work that would support a finding of current work capacity; Mid North Coast Local Health District v De Boer and Wollongong Nursing Home Pty Ltd v Dewar considered; Held – the applicant had no current work capacity for the closed period claimed within the meaning of clause 9 of Schedule 3; the respondent to pay the applicant weekly compensation in respect of the injuries for the closed period claimed under section 38(2).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no current work capacity from 27 February 2025 to 25 March 2025 within the meaning of cl 9 of Schedule 3 in the Workers Compensation Act 1987. The Commission orders that: 2. The respondent is to pay the applicant weekly compensation in respect of the injuries sustained on 11 August 2021 as follows: (a) $1,432 per week from 27 February 2025 to 25 March 2025 under s 38(2) of the Workers Compensation Act 1987; (b) the respondent is to make the appropriate indexation adjustments to the weekly compensation payments ordered above under s 82A of the Workers Compensation Act 1987 in accordance with the formula and review dates stipulated therein; (c) the respondent is to be given credit for any payments made, and (d) liberty to apply within 14 days in relation to the calculation of weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Barbara Grant, is a 54-year-old woman who was employed by the respondent, Lyndhurst IGA Pty Limited (Lyndhurst), as a manager of its Bomaderry store.
On 11 August 2021, Ms Grant alleges that she applied the COVID-19 protocol and requested a customer to wear a mask whilst in the store. The customer physically assaulted her resulting in physical and psychological injuries. The physical injuries consisted of a broken pelvis and an injury to her elbow requiring hospitalisation. She remains psychologically unwell by reason of the assault and has been diagnosed with chronic post-traumatic stress disorder. The physical and psychological injuries are not in dispute.
Ms Grant lodged a claim for benefits under the Workers Compensation Act 1987 (1987 Act) and received benefits.
On 18 November 2024, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a notice which was stated to be under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) advising…

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: [2025] NSWPIC 329
Decision Date: 9 July 2025

CaseChat Overview and Summary

In the case of Grant v Lyndhurst IGA Pty Ltd, the applicant, who had suffered physical and psychological injuries due to an assault in the workplace by a store customer, sought weekly benefits under section 38 of the Workers Compensation Act 1987. The respondent disputed the entitlement to these benefits for a specified closed period. The central legal issue was whether the applicant had no current work capacity for that closed period within the meaning of clause 9 of Schedule 3, and if suitable employment was available that would support a finding of current work capacity. This issue was examined in light of the applicant's participation in unpaid training and study that had been approved by the respondent as a potential pathway back to work.

The court considered whether the applicant’s involvement in unpaid training and study, approved by the respondent, constituted work that would support a finding of current work capacity. The reasoning drew on previous cases, such as Mid North Coast Local Health District v De Boer and Wollongong Nursing Home Pty Ltd v Dewar, which provided guidance on the interpretation of current work capacity. The court found that the applicant's participation in unpaid training and study did not equate to work that would support a finding of current work capacity. Consequently, the applicant was deemed to have no current work capacity for the closed period claimed.

The court ultimately concluded that the applicant was entitled to weekly compensation for the closed period claimed under section 38(2) of the Act. It was ordered that the respondent pay the applicant the relevant weekly benefits for the specified period. This decision underscores the importance of clearly defining current work capacity in workers compensation claims and the criteria that must be met to qualify for compensation during a closed period.

Orders