Derikuca v ISS Property Services Pty Ltd - [2025] NSWPIC 85

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Derikuca v ISS Property Services Pty Ltd [2025] NSWPIC 85
APPLICANT:	Stevo Derikuca
RESPONDENT:	ISS Property Services Pty Limited
MEMBER:	Diana Benk
DATE OF DECISION:	12 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and dispute as to whole person impairment arising out of psychological injury; applicant actively sought reinstatement of employment in Fair Work proceedings and in associated proceedings in the Supreme Court during periods in which he claimed to be totally incapacitated; delayed reporting of psychological injury; backdated certification by general practitioner for periods in which there was no psychological complaint despite regular consultations; definition of psychological injury discussed; emotional impulse, anxiety state, frustration, and emotional upset do not constitute psychological injury; Stewart v New South Wales Police Service applied; Held – unable to accept the applicant’s evidence as to the effect of the workplace events had on his psyche; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Derikuca (the applicant) was a cleaner employed by ISS Property Services Pty Ltd (the respondent). There is no dispute his pre-injury earnings were $547 per week.
The dispute before the Personal Injury Commission (Commission) concerns a claim for weekly benefits (limited to 52 weeks on account of the applicant’s age) and lump sum compensation relating to psychological injury said to arise from workplace events on
30 March 2020.
Injury was pleaded in the Application to Resolve a Dispute (ARD) as follows (unedited);
“The applicant's employment was suspended on 5 February 2020, following a complaint and subsequently terminated on 30 March 2020. The applicant suffered a psychological injury as a result of the nature of the complaint itself and the unreasonable action taken by his employer in response to the subject complaint made. In particular, the employer failed to contact their own investigation into the allegations made before terminating his employment.”
The claim for compensation is not straightforward and has somewhat of an unusual and protracted history. In an attempt to make the complex simple, the following chronology has been extracted from both the applicant’s statement and documents filed in the ARD and the Reply filed by the respondent.
On 3 February 2020, a school teacher at the Strathfield Girls High School alleged the applicant had asked her for a kiss and raised a sexual harassment complaint. This caused the applicant to be suspended pending enquiry and meeting. The suspension advice nominated the reasons for suspension as:
(a)     multiple allegations of sexual misconduct against staff members;
(b)     inappropriate comments to staff, and
(c)     inappropriate physical advances and/or suggestive body language.[1]
[1] Folio 9 of the ARD.
During the course of the investigation, the applicant admitted to asking the teacher for a kiss[2] maintaining it was “innocent and misunderstood” denying any intentional wrongdoing or sexual harassment. On 9 March 2020, the respondent considered…

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 85
Decision Date: 12 March 2025

CaseChat Overview and Summary

The matter of Derikuca v ISS Property Services Pty Ltd involved a dispute over workers' compensation, specifically concerning the applicant's claim for weekly payments of compensation and the assessment of his whole person impairment following a psychological injury. The applicant sought to prove that he was totally incapacitated due to the psychological injury, a claim contested by the respondent. The dispute was heard in the Federal Circuit Court.

The primary legal issues before the court were whether the applicant's psychological injury arose from the workplace and whether the applicant's actions and evidence were consistent with the claims of total incapacity. The court had to determine the nature and extent of the psychological injury, whether the applicant's actions and the delayed reporting of the injury were consistent with his claims, and whether the applicant's evidence was credible.

The court found that the applicant's evidence regarding the impact of the workplace events on his psyche was not credible, primarily due to his active pursuit of reinstatement of employment through Fair Work and Supreme Court proceedings during periods in which he claimed to be totally incapacitated. The court also noted that the applicant's psychological injury did not meet the statutory definition of a psychological injury under the Workers Compensation Act 1987, as it did not involve an emotional impulse, anxiety state, frustration, or emotional upset. The court relied on the precedent set by Stewart v New South Wales Police Service to conclude that the applicant's claims were not substantiated. Consequently, the court awarded costs to the respondent.

The final orders of the court included a dismissal of the applicant's claim for weekly payments of compensation and a determination that the applicant was not entitled to a whole person impairment award. The court further awarded costs to the respondent, ISS Property Services Pty Ltd.

Orders