Khalek v Mouy Formwork Pty Ltd - [2022] NSWPIC 439

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khalek v Mouy Formwork Pty Ltd [2022] NSWPIC 439
APPLICANT:	Moufid Abdul Khalek
RESPONDENT:	Mouy Formwork Pty Limited
MEMBER:	Christopher Wood
DATE OF DECISION:	4 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Whether a contract or any agreement was formed by the parties at all and if so was it to be characterised as a contract of service or contract for services such that the applicant was a worker or deemed worker for the purposes of the Workers Compensation Act 1987 (1987 Act); whether applicant had discharged onus; body parts and consequential conditions for referral to medical assessor for assessment of whole person impairment; whether lumbar spine injury and alleged consequential gastrointestinal condition were related to applicant’s frank injury; in accurate history of prior gastrointestinal condition given to medico legal specialists; CFMEU & Anor v Personnel Contracting Pty Limited, 2G Operations & Anor v Jamsek & Ors, Mateus v Zodune Pty Limited, Gharibeh v Secretary, Ministry of Health, On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation, Jafarian v WildFire Interiors Pty Limited, Makita v Sprowles considered; Held — on balance the material before Commission established a contract was formed between the parties and in the absence of a comprehensive committal of contract terms to writing regard was to be had to substance of their relationship; the contract was one of service and as such the applicant was a worker for purposes of the 1987 Act; the applicant suffered a lumbar spine injury in accident but on balance the gastrointestinal condition (digestive system) could not be held to be consequential on pain medication taken by applicant; remitted back to President for referral to medical assessor for assessment of whole person impairment entitlement on all injuries and conditions claimed excluding gastrointestinal.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was employed by the respondent under a contract of service and at all material times he was a worker for the purposes of the Workers Compensation Act 1987. 2. The applicant suffered injuries to his left wrist including scarring, cervical spine, lumbar spine and consequential cardiovascular condition as a result of an accident on 5 April 2018 while employed by the respondent. 3. An award for the respondent on the applicant’s claim for inclusion of a consequential gastrointestinal condition in whole person impairment assessment by the Medical Assessor. 4. The Application to Resolve a Dispute is remitted back to the President for referral to a Medical Assessor to determine the applicant’s level of whole person impairment by reference to injuries to the left wrist, cervical spine and lumbar spine including TEMSKI scarring (left wrist) and a consequential cardiovascular condition. NOTATIONS 5. The documents to be referred to the Medical Assessor include: a) this Certificate of Determination; b) the Application to Resolve a Dispute and attachments, and c) the Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Moufid Abdul Khalek (Mr Khalek), says that on 5 April 2018 within a couple of…

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: [2022] NSWPIC 439
Decision Date: 4 August 2022

CaseChat Overview and Summary

Khalek v Mouy Formwork Pty Ltd involved a dispute between the applicant, Mr Khalek, and Mouy Formwork Pty Ltd regarding workers compensation entitlements. The central issue was whether a contract existed between the parties and, if so, whether it was a contract of service or for services, thereby determining if Mr Khalek was a worker or deemed worker under the Workers Compensation Act 1987. The case also examined the relationship between Mr Khalek's lumbar spine injury and an alleged consequential gastrointestinal condition, and the accuracy of the history provided regarding the gastrointestinal condition. The decision was made by the Fair Work Commission, considering several precedent cases.

The primary legal issues before the court were the characterisation of the contract between the parties and whether Mr Khalek was a worker for the purposes of the Workers Compensation Act 1987. Additionally, the court had to determine whether Mr Khalek's lumbar spine injury and any consequential gastrointestinal condition were related to his injury, and whether the history provided regarding the gastrointestinal condition was accurate. The court had to consider the nature of the contract between the parties, which was not comprehensively documented in writing, and had to look at the substance of the relationship instead. It was also required to assess the impact of Mr Khalek's lumbar spine injury on his gastrointestinal condition.

The court found that a contract had been formed between the parties, and it was characterised as a contract of service, meaning Mr Khalek was a worker under the Workers Compensation Act 1987. The court considered the substance of the relationship between the parties in the absence of a written agreement. Regarding the lumbar spine injury, the court concluded that while Mr Khalek did suffer such an injury in an accident, the gastrointestinal condition could not be held to be consequential to the pain medication taken by Mr Khalek. The court also found that Mr Khalek did not provide an accurate history of his prior gastrointestinal condition to the relevant specialists. As a result, the court remitted the matter back to the President of the Commission for referral to a medical assessor to assess Mr Khalek's entitlement to whole person impairment for all injuries and conditions claimed, excluding the gastrointestinal condition.

The final orders of the court were to remit the matter back to the President for a medical assessor to assess Mr Khalek's entitlement to whole person impairment for all injuries and conditions claimed, excluding the gastrointestinal condition. The court's decision provided clarity on the characterisation of the contract between the parties and Mr Khalek's status as a worker under the Workers Compensation Act 1987. Furthermore, it established that the gastrointestinal condition was not related to Mr Khalek's lumbar spine injury, and the history provided regarding the gastrointestinal condition was not accurate.

Orders