Bosevska v ISS Property Services Pty Ltd - [2021] NSWPIC 420

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bosevska v ISS Property Services Pty Ltd [2021] NSWPIC 420
APPLICANT:	Slavica Bosevska
RESPONDENT:	ISS Property Services Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	19 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; whether applicant suffered injury to right knee in the course of her employment with the respondent; Held - the applicant suffered an injury in the course of her employment; although the precise date of injury is not known, the respondent does not allege any prejudice arises from that uncertainty, and the evidence relied on by the applicant in support of her claim was known to the respondent and dealt with by its medical expert before the commencement of proceedings; Castro v State Transit Authority (NSW) referred to; although the applicant had pre-existing degenerative changes in her right knee, the evidence discloses they were asymptomatic at the time of injury, and that those changes were aggravated by the injurious events at issue; as such, the applicant’s employment was the main contributing factor to the aggravation of that condition; Federal Broom Co Pty Ltd v Semlitch and Motor Body Repairers (NSW) Pty Ltd v Raymond referred to; Zickar v MGH Plastic Industries Pty Ltd (Zickar) referred to; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment to the right lower extremity (knee).
DETERMINATIONS MADE:	1. The applicant suffered an injury to her right lower extremity (knee) and scarring (TEMSKI) in the course of her employment with the respondent on or about 3 December 2014. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: on or about 3 December 2014 Body systems referred: right lower extremity (knee) Method of Assessment: whole person impairment

STATEMENT OF REASONS

BACKGROUND

The applicant in this matter seeks permanent impairment compensation in respect of an alleged injury to her right leg, said to have taken place on or about 3 December 2014 together with associated scarring brought about by surgery.
The applicant alleges that she was pulling a series of full, heavy bins to a bin station in the course of her employment with the respondent when she suffered an injury to her right knee. In September 2015, the applicant came to have arthroscopic surgery to her right knee at the hands of Dr Szonor.
The applicant reported the incident to the respondent on 8 December 2014 and in the incident report form indicated the date of incident on that 3 December 2014. There is, however, some confusion as to the precise date of injury. For reasons which follow, I do not consider that anything turns on the uncertainty surrounding the precise date of injury, and the respondent did not allege any substantive prejudice arose from it.
By section 78 notice dated 2 June 2021, the respondent disputed liability for the alleged injury, relying on section 4 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: [2021] NSWPIC 420
Decision Date: 19 October 2021

CaseChat Overview and Summary

The matter of Bosevska v ISS Property Services Pty Ltd was heard in the New South Wales Civil and Administrative Tribunal. The applicant, Bosevska, sought compensation for permanent impairment to her right knee, which she claimed was caused by an injury sustained in the course of her employment with ISS Property Services. The respondent, ISS Property Services, did not dispute that Bosevska suffered an injury, but contested the extent of her impairment and its connection to her employment.

The primary legal issue before the Tribunal was whether the applicant’s employment was the main contributing factor to the aggravation of her pre-existing degenerative changes in the right knee. The Tribunal needed to determine if the injury to her knee during employment significantly contributed to her current condition, despite the presence of pre-existing degenerative changes. It also considered whether the date of the injury was ascertainable and if the uncertainty prejudiced the respondent.

The Tribunal found that, while the exact date of the injury was not known, the respondent did not claim any prejudice from this uncertainty. The evidence supporting the applicant’s claim was known to the respondent and had been reviewed by its medical expert prior to the proceedings. The Tribunal noted that the applicant’s pre-existing degenerative changes were asymptomatic at the time of the injury, and these changes were aggravated by the employment-related events. Based on the authorities cited, including Castro v State Transit Authority (NSW), Federal Broom Co Pty Ltd v Semlitch, Motor Body Repairers (NSW) Pty Ltd v Raymond, and Zickar v MGH Plastic Industries Pty Ltd, the Tribunal concluded that the applicant’s employment was the main contributing factor to the aggravation of her condition. Consequently, the matter was remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment to the right lower extremity (knee).

Orders