| 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…
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- AGLC
- Shabib v Green Formwork Pty Ltd [2022] NSWPIC 260
- Case
- [2022] NSWPIC 260
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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