Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another

Husnain Pty Ltd, a company engaged in the operation of a restaurant, sought a determination regarding the date of injury for the purpose of fixing a date of injury under section 15(1)(a) of the Workers Compensation Act 1987. The defendant, icare, was the workers compensation insurer. The dispute arose as the applicant claimed that the insurer had determined the date of injury outside the scope of the submissions made by the parties. The dispute was heard in the Workers Compensation Commission of New South Wales.

The central legal issues for the court to decide involved whether the insurer had correctly determined the date of injury, and if the determination was made outside the submissions, whether this constituted a significant error. The applicant argued that the insurer's determination was incorrect and had been made outside the scope of the submissions. The applicant contended that the insurer's decision had incorrectly applied the relevant legal principles and facts to the case. The court needed to consider whether the insurer had correctly applied the principles established in previous cases, including GIO Workers Compensation (NSW) Ltd v GIO General Ltd, P&O Berkeley Challenge Pty Ltd v Alfonzo, Stone v Stannard Brothers Launch Services Pty Ltd, Inghams Enterprises Pty Ltd v Thoroughgood, and Seltsam Pty Ltd v Ghaleb.

The court found that the insurer had not correctly determined the date of injury and had made the determination outside the submissions. The court held that the insurer had erred in applying the principles of Seltsam Pty Ltd v Ghaleb and had made a factual error regarding the availability of suitable employment, as established in Wollongong Nursing Home Pty Ltd v Dewar. The court concluded that the insurer's error was significant and required a redetermination of the date of injury. The court also considered the issue of whether weekly payments during a period of notice constituted payments of compensation under section 80 of the Workplace Injury Management and Workers Compensation Act 1998. The court found that the weekly payments during the notice period did not constitute payments of compensation.

The court ordered that the insurer redetermine the date of injury in accordance with the legal principles established in the cited cases and the facts of the case. The court also ordered that the weekly payments made during the notice period were not to be considered as payments of compensation under section 80 of the Workplace Injury Management and Workers Compensation Act 1998.