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Shabib v Green Formwork Pty Ltd

Shabib v Green Formwork Pty Ltd

Case [2022] NSWPIC 260 31 May 2022

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shabib v Green Formwork Pty Ltd [2022] NSWPIC 260
APPLICANT:	Nadia Shabib
RESPONDENT:	Green Formwork Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	31 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; no dispute about injury; claim for lump sum compensation; whether applicant precluded from recovering compensation by reason of section 151A(1) of the Workers Compensation Act 1987 (the 1987 Act) because she had received payment under a deed in the context of proceedings taken under the Fair Work Act 2009 (Cth); Court of Appeal authority in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd (Gardiner) applied; the Fair Work Act 2009 provides for statutory protections under a discrete and independent statutory scheme; the legislative purpose of section 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury; the Fair Work Act 2009 allows for damages for pain and suffering resulting from adverse action based on sex; even if the sexual harassment resulted in personal injury which it did here, this does not disentitle the applicant’s claim for workers compensation; rather the proper construction of both section 151A(1) and the deed, is that the applicant has received payment under an independent statutory scheme (the Fair Work Act) for adverse action based on sex and she is not disentitled from claiming workers compensation; this conclusion reinforced by the parties specifically excluding from the release the applicant’s claim for workers compensation by identifying the specific workers compensation claim number; award for the applicant and matter remitted for referral to a Medical Assessor.
DETERMINATIONS MADE:	1. The matter be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 28 May 2021. 2. The Application to Resolve a Dispute and all documents attached admitted. 3. The Reply and all documents attached admitted. 4. The matter be relisted, in respect of the claim for weekly benefit and medical expenses, for a telephone conference before me once the Medical Assessment Certificate issues.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, filed by the applicant,
Ms Nadia Shabib (Ms Shabib) seeks lump sum compensation, weekly compensation and compensation for medical expenses as a result of psychological injury deemed to have occurred on 28 May 2021.
The respondent is the Green Formwork Group Pty Ltd. The respondent was insured for the purposes of workers compensation.

ISSUES FOR DETERMINATION

At the arbitration hearing, Ms Shabib sought to amend the Application to rely on a deemed date of injury of 28 May 2021 and the respondent consented to this amendment.
There is no dispute that Ms Shabib suffered, in the course of or arising out of her employment with the respondent, a psychological injury which is agreed deemed to have occurred on 28 May 2021.
There is no dispute that Ms Shabib suffered psychological injury as a…

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.

Continue reading Shabib v Green Formwork Pty Ltd

Details

AGLC: Shabib v Green Formwork Pty Ltd [2022] NSWPIC 260
Case: [2022] NSWPIC 260
Decision Date: 31 May 2022

CaseChat Overview and Summary

The appeal concerns a claim by Shabib against Green Formwork Pty Ltd for workers' compensation related to psychological injury sustained due to sexual harassment at work. The primary dispute in the case was whether the applicant was precluded from recovering compensation under section 151A(1) of the Workers Compensation Act 1987, given she had already received payment under a deed in proceedings taken under the Fair Work Act 2009. The matter was heard and determined by the Supreme Court of New South Wales.

The legal issues that the court had to resolve included the interpretation and application of section 151A(1) of the Workers Compensation Act 1987 in conjunction with the payment made under the Fair Work Act 2009. Specifically, the court needed to determine whether the receipt of compensation under the Fair Work Act precluded the applicant from claiming workers' compensation under the Workers Compensation Act. The court also had to consider the relevance of the exclusion of the specific workers' compensation claim from the release under the deed.

In addressing these issues, the court relied on the decision in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd. It held that the Fair Work Act 2009 provides for statutory protections under a distinct and independent statutory scheme, and that the legislative purpose behind section 151A is to ensure that a worker does not receive both workers' compensation and damages for the same injury. The court found that even though the sexual harassment resulted in personal injury, this did not disentitle the applicant from claiming workers' compensation. The court concluded that the applicant had received payment under an independent statutory scheme for adverse action based on sex and was not precluded from claiming workers' compensation. This conclusion was reinforced by the fact that the parties specifically excluded the applicant’s claim for workers' compensation from the release under the deed, identifying the specific workers' compensation claim number. Therefore, the court awarded compensation to the applicant and remitted the matter for referral to a Medical Assessor.

The final orders of the court included the award of compensation to Shabib and the remittance of the matter for referral to a Medical Assessor to determine the appropriate amount of compensation.

Orders