Salam v BioGiene Services Pty Ltd - [2025] NSWPIC 201

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Salam v BioGiene Services Pty Ltd [2025] NSWPIC 201
APPLICANT:	Abdul Salam
RESPONDENT:	BioGiene Services Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	13 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments for injury to both shoulders; whether worker has no current work capacity or a partial incapacity for work; whether there are any real jobs in the labour market in which the worker would be able to work; Wollongong Nursing Home P/L v Dewar, and Gradan Bathrooms P/L v Workers Compensation Nominal Insurer considered; whether the worker meets the criteria for weekly benefits of compensation after the second entitlement period; Held – worker has had no current work capacity since weekly payments of compensation terminated; award of weekly payments of compensation pursuant to sections 37 and 38.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has had no current work capacity since 9 June 2023. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $1,200 per week from 9 June 2023 to 30 September 2023 pursuant to s 37 (1) of the Workers Compensation Act 1987 (the 1987 Act); (b) $1,228.40 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act; (c) $1,250.40 per week from 1 April 2024 to 21 August 2024 pursuant to s 37 (1) of the 1987 Act; (d) $1,250.40 per week from 22 August 2024 to 30 September 2024 pursuant to s 38 (6) of the 1987 Act; (e) $1,275.20 per week from 1 October 2024 to 31 March 2025 pursuant to s 38 (6) of the 1987 Act, and (f) $1,281 per week from 1 April 2025 to date and continuing pursuant to s 38 (6) of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Abdul Salam, the applicant in these proceedings, sustained an injury to both shoulders as a result of the work he undertook as a hygiene cleaner with the respondent, BioGiene Services Pty Ltd, with a deemed date of injury of 22 February 2022.
Mr Salam ceased work as a result of his injury on 22 February 2022 and has not returned to work since then.
Mr Salam was paid weekly benefits of compensation until 8 June 2023. A dispute notice was issued by icare on behalf of the respondent on 28 February 2023 wherein a decision was made to cease the payment of weekly benefits of compensation on the grounds that
Mr Salam could work 40 hours per week in suitable employment and there were jobs which Mr Salam was suited for which provided wages in excess of Mr Salam’s earnings with the respondent by working a 40 hour week.
Mr Salam claims the payment of weekly benefits of compensation from 9 June 2023 onwards.
A Medical Assessment Certificate (MAC) was issued by Medical Assessor…

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 201
Decision Date: 13 May 2025

CaseChat Overview and Summary

The case of Salam v BioGiene Services Pty Ltd involved the claimant, Salam, seeking weekly payments for injuries to both shoulders under the Workers Compensation Act 1987. The dispute centred on whether Salam had no current work capacity or a partial incapacity for work, and if there were any real jobs in the labour market in which Salam could be employed. The matter was heard and determined in the relevant workers compensation court.

The central legal issues were whether Salam had no current work capacity since the termination of weekly payments of compensation, and whether Salam met the criteria for weekly benefits of compensation after the second entitlement period. The court had to consider the decisions in Wollongong Nursing Home P/L v Dewar and Gradan Bathrooms P/L v Workers Compensation Nominal Insurer to determine the appropriate course of action.

The court found that Salam had no current work capacity since the weekly payments of compensation had been terminated. By examining the available evidence and applying the relevant statutory provisions, the court concluded that Salam met the criteria for weekly benefits of compensation after the second entitlement period. As a result, the court awarded weekly payments of compensation pursuant to sections 37 and 38 of the Workers Compensation Act 1987. This decision ensures that Salam receives the necessary financial support while they are unable to work due to their injuries.

Orders