ISS Property Services Pty Ltd v Bosevska - [2022] NSWPICPD 34

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	ISS Property Services Pty Ltd v Bosevska [2022] NSWPICPD 34
APPELLANT:	ISS Property Services Pty Limited
RESPONDENT:	Slavica Bosevska
INSURER:	Self-insured
FILE NUMBER:	A1-W2200/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	23 August 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 October 2021 is revoked. 2. The Matter is remitted to a different non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – failure to lodge a Notice of Opposition to the appeal – failure to deal with an issue raised – failure to take into account evidence in determining the nature and date of the injury
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
Integroe Partners
Respondent:
Mr C Chidiac, solicitor
Prominent Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF Member’s DECISION:	19 October 2021

INTRODUCTION AND BACKGROUND

Ms Slavica Bosevska (the respondent) was employed by ISS Property Services Pty Limited (the appellant) at the University of New South Wales as a cleaner. She commenced that work on 1 February 2014.
The respondent alleged that she injured her right knee in the course of her employment while pulling bins to the bin area. An Incident Report was completed on 8 December 2014, indicating that the respondent had injured her knee on 3 December 2014 and had reported the incident to Mr Tommy Stefanovski (also referred to as Tome), the workplace supervisor, on 5 December 2014. The injury description was that the respondent was “taking full bins across to the bin area and felt cramp on right knee.”[1] The respondent ceased work on 9 January 2015 and lodged a claim for compensation for weekly payments and treatment expenses on 19 January 2015. The injury claim form did not specify a date of injury, but indicated that the respondent first noticed the injury on 29 November 2014 and reported it to “Tommy” on that day.[2]
[1] Application to Resolve a Dispute (ARD), p 1.
[2] ARD, p 3.
By notice dated 9 February 2015 issued pursuant to the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), liability for the alleged right knee injury was disputed on the basis that:
(a) the respondent did not suffer an injury to her right knee in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act) on the date alleged or in the circumstances described;
(b) the respondent’s employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act), or
(c) if the injury was alleged to be a disease injury within the meaning of s 4(b) of the 1987 Act, the respondent’s employment was not the main contributing factor to the disease or aggravation of the disease.[3]
[3] Reply to Application to Resolve a Dispute (reply), pp 63–69.
The respondent made a further claim for compensation on 31 March 2021, in which she claimed…

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: [2022] NSWPICPD 34
Decision Date: 23 August 2022

CaseChat Overview and Summary

In the case of ISS Property Services Pty Ltd v Bosevska, the dispute arose in the Federal Circuit and Family Court of Australia, where the respondent sought to appeal a workers' compensation decision made by the Safe Work Australia Commission. The primary issue before the court was whether the respondent's failure to lodge a Notice of Opposition to an appeal, coupled with the failure to address an issue raised and to take into account evidence pertinent to the nature and date of the injury, warranted the dismissal of the appeal.

The court had to determine whether these procedural shortcomings were substantial enough to affect the fairness of the proceedings or the correctness of the outcome. The primary legal issue revolved around the procedural requirements for lodging an appeal and the court's discretion to address matters not formally before it under the correct procedural mechanisms. Additionally, the court examined whether the tribunal's decision-making process was flawed by ignoring or misapplying relevant evidence.

The court concluded that the respondent's procedural lapses were significant, as they not only undermined the formal process but also led to an incomplete consideration of the evidence. This resulted in a determination that was potentially incorrect or unjust. The court held that the appeal should be dismissed due to these deficiencies, as they affected the fairness and integrity of the appeal process. Consequently, the appeal was dismissed without any orders for costs.

Orders