Keremelevska v Qantas Airways Ltd
[2025] NSWPIC 534
•8 October 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Keremelevska v Qantas Airways Ltd [2025] NSWPIC 534 |
| APPLICANT: | Elizabeth Keremelevska |
| RESPONDENT: | QANTAS Airways Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 8 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment; claim for consequential conditions said to arise as a result of accepted left knee injury; Held – the applicant suffered injury to her left knee on 21 May 2018; as a result the applicant suffered consequential conditions to her right lower extremity (ankle) and right upper extremity (shoulder); the applicant also suffered a frank injury to her right knee on 5 November 2020; matter remitted to President for referral to a Medical Assessor; claim for medical expenses adjourned; matter adjourned for further preliminary conference after issuing of medical assessment certificate for determining whether any impairments to the right knee arising from the consequential condition and form the frank injury can be aggregated. |
| DETERMINATIONS MADE: | The Personal Injury Commission (Commission) determines: 1. The applicant suffered an injury to her left lower extremity (knee) in the course of her employment with the respondent on 21 May 2018. 2. As a result of her injury, the applicant suffered consequential conditions to her right lower extremity (knee and ankle) and right upper extremity (shoulder). 3. The applicant suffered injury to her right lower extremity (knee) in the course of her employment with the respondent on 5 November 2020. 4. 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: 21 May 2018. Body systems referred: left lower extremity (knee); right lower extremity (ankle and knee) (consequential condition), and right upper extremity (shoulder) (consequential condition). Method of assessment: whole person impairment. Date of injury: 5 November 2020. Body system referred: right lower extremity (knee). Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments; (d) applicant’s Application to Lodge Additional Documents and attachments dated (e) respondent’s Application to Lodge Additional Documents and attachments dated 6 August 2025. 6. The matter is listed for further preliminary conference upon issuing of the Medical Assessment certificate to determine whether any impairments to the right knee can be aggregated. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
On 21 May 2018, Elizabeth Keremelevska (the applicant) tripped over a bag on an aircraft and injured her left knee whilst in the employ of the respondent, QANTAS Airways Ltd. The applicant brings these proceedings seeking payment of permanent impairment compensation in relation to that injury, together with alleged consequential conditions to her right lower extremity (knee and ankle) and right upper extremity, together with scarring.
Liability for the left knee injury is accepted. However, the alleged consequential conditions are disputed.
The applicant alleges on 17 June 2018, the instability in her left knee caused it to give way leading to her twisting her right ankle for which she underwent surgery in September 2019.
As a result of that surgery, the applicant was required to use a scooter for mobility which she alleges forced her to apply abnormal pressure on her right knee, leading to weakness and pain. The applicant alleges that due to ongoing issues with her left knee, she has overused her right knee leading to a consequential condition in that body system.
Additionally, on 5 November 2020, the applicant slammed her right knee into a door in the course of her employment and sustained further falls on 31 March 2023 and
5 August 2023 which she alleges were due to her left knee giving way. The latter fall occurred in the applicant’s home and as she fell, the applicant used her right arm to brace herself and alleges as a result she suffered injury to her right shoulder.In respect of the right lower extremity, the respondent alleges the applicant has suffered separate and distinct injuries. The right shoulder is said by the respondent not to be related to work, as the fall took place in her home.
ISSUES FOR DETERMINATION
The parties agree that the only issues in dispute are whether the applicant suffered consequential conditions to the alleged body systems.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 14 August 2025. At the conclusion of that hearing, after an interlocutory decision as to the admissibility of various medical evidence was made, directions were entered for the provision of written submissions. Those directions have been complied with, and the last of the submissions were received by the Personal Injury Commission (Commission) on 25 September 2025.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application);
(b) Reply, and
(c) applicant’s Application to Lodge Additional Documents (ALAD) dated
22 July 2025 and respondent’s ALAD dated 6 August 2025.
Oral evidence
There was no oral evidence called in the proceedings.
FINDINGS AND REASONS
Whether the applicant suffered consequential conditions as alleged
The law surrounding consequential conditions
The authorities make it clear that the requirements for establishing a consequential condition are less stringent than the factors required to determine an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). Likewise, tests of substantial or main contributing factor as set out in s 4(b) and s 9A do not apply.
In order to establish the presence of a consequential condition, an injured worker must establish that the claimed condition results from the underlying injury, having undertaken a commonsense evaluation of the causal chain: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 per Kirby P (as he then was).
Although there seems little factual contest in this matter that the applicant has suffered conditions to her claimed body parts and the contest relates to the cause of those conditions, it is worth stating that the applicant is not required to prove the presence of a sudden or discernible change in pathology such as to establish an injury, but rather only that the claimed body symptoms have caused her difficulties and/or pain and restriction, and that there is an unbroken chain of causation from the initial left knee injury and the claimed body systems: see for example: Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23.
As the parties note in their respective submissions, the contentious question in this matter relates to causation. Questions of causation are matters of fact and an actual persuasion of the cause of a consequential condition must be found.
The respondent’s position on the alleged consequential conditions
The respondent has accepted liability for the injury to the applicant’s left knee on
21 May 2018, for injury to the right ankle on 17 June 2018 and to the right knee on
15 November 2020. However, the respondent asserts the right ankle and right knee injuries were not consequential conditions resulting from the left knee injury, but rather are separate and distinct injuries.In relation to the right shoulder injury incurred on 5 August 2023, the respondent disputes there was any work related injury and that it is consequential to the left knee injury.
The right ankle
The applicant alleges she suffered a consequential condition to her right ankle on
17 June 2018. In her first statement, the applicant provided the following history in relation to the injury:“11.I injured my right ankle on 17 June 2018… My left knee buckled suddenly and has led to near falls. My left knee gave way around 2-3 times. It did not result in a fall, but I was worried that it might someday. I brought this to my acting supervisor Kevin Diaz, who read out the information as the duty manager, Julia Spinetti, who told me I should see my doctors if I am not satisfied with the ones at QANTAS.
12. On the day of the injury, it was 3:00 am and very cold. I was in the meal room and I walked out into a pothole with my left leg forward. My knee gave way, and I twisted my right ankle. My colleague Elizabeth Sharp witnessed the injury. Due to how cold it was, I did not initially feel much discomfort except for throbbing pain, and I was limping. I asked to go home. My work boots were quite sturdy, and they held my ankle together until I went home and Iced the injury. I took a few Panadol tablets and saw my GP, who sent me to do some tests. The test results came back saying I had ripped ligaments in my ankle.”
In a supplementary statement dated 1 March 2022, the applicant recounted the right ankle injury as follows:
“On 7:00 am June 2018, my left knee gave way on the meal room floor. The meal room floor was broken up with concrete making it hard to walk on with my injured knee. As a result, I fell and twisted my right ankle.”
The respondent submitted the variance in these histories mean that they could be given little weight, as there was a relevant difference in terms of walking into a pothole on the one hand, whereas the other was walking on broken up concrete. Further, the respondent alleges the mechanism of injury in the first statement does not include a fall, whereas the version in the latter statement does.
In my view, the versions of events provided by the applicant are broadly consistent. As the applicant noted in her submissions, the same core fact is present, namely that her left knee gave way. Whether that giving way was associated with either a pothole or broken concrete, phenomena so similar as to potentially be referring to the same thing, is not in my view significant. What is apparent is the applicant was walking on an uneven surface and her left knee gave way.
The respondent submitted there was no contemporaneous evidence which supported the incident on 17 June 2018 being caused by the applicant’s left knee giving way and that her version of events was unreliable owing to the different accounts provided in her statements. However, having found the versions of events are not significantly different in a material fashion, I do not accept this submission, nor do I accept the respondent’s submission at [11] of the written submissions that the applicant cannot be relied on because of a “obvious attempt by her to link all the injuries together for financial reward”.
That allegation is serious one and if it is suggested the applicant was attempting to tailor her evidence for such reward, the proposition ought to have been put to her in cross-examination. No such application was made. In any event, even allowing for this not being the case, the authorities make clear in a civil case there is no need for corroboration: see Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD56 at [83] per Roche DP quoting the Court of Appeal decision in Chanaa v Zarour [2011] NSWCA 199.
On balance, I accept the applicant’s version of right ankle injury, namely that it was brought about by the giving way of her left knee and is therefore consequent upon the left knee injury.
Right knee
The applicant describes the circumstances of her right knee injury on 5 November 2020 as follows:
“15. … On the date of injury, I was cleaning the galleys of the aircraft. The galleys are where the food is stored. As I was cleaning, the rubbish doors were wide open. The doors were not supposed to be open; it is the caterer’s job to close the door before we start cleaning. My right leg jammed into one of the doors that had a metal chute and it was the most excruciating pain I have ever felt. My colleague, Jennifer Cvijan was with me and saw the accident occur.
16.I was taken out of the aircraft and I was limping. I went to see my supervisor, Fatima, who told me to ice my knee. She then put me on light duties for a couple of days.”
That mechanism of injury is broadly consistent with the versions provided by the applicant to all of the medical practitioners.
In her written submissions, the applicant makes clear her assertion of the right knee being a consequential condition relies on that body system having been deconditioned as a result of the index injury to the left knee on 17 June 2018, rather than the mechanism of injury being brought about by the left knee giving way.
In her second statement, the applicant sets out the daily basis of her ongoing problems with her left knee and how it reacts when she moves. She submitted this evidence, in conjunction with the medical material, that means “it is not a stretch to connect liability to the right lower extremity, even allowing for the factual difficulty if one confines the analysis to what transpired on 5 November 2020”.
The respondent submits, and I accept, there is no mention of any involvement of the applicant’s left knee in the circumstances of the right knee injury on 5 November 2020.
The applicant’s medical case in relation to the right knee is supported by IME Dr Patrick in his report dated 7 February 2024. He opined the applicant suffered work related injury to the left knee with consequential injuries to the right ankle/hind foot and right knee. In his report, Dr Patrick indicated the applicant was developing pain in her right knee as a result of using a scooter to avoid stepping on her right ankle. That evidence is consistent with the applicant’s supplementary statement dated 1 March 2022 in which she noted:
“4. On 20 September 2019, I had surgery at the hand of Dr Kaplan for my twisted right ankle. I was given a scooter for my right leg to recover from my right ankle injury. I would lean on the scooter with my right knee to move around. I used the scooter for hours each day. I could not move around without it due to my recovering right ankle and my problems still occurring with my left knee.
5. The scooter was awkward to use, but I had no other choice. I could not use crutches since I could not lean against either leg.
6. After around one week of using the scooter, I started to experience discomfort in my right knee. From the continuous kneeling on the scooter with my right knee and not using my right leg muscles, my right knee weakened and became quite sore.
7. I complained to QANTAS about my sore right knee but no action was taken. I received no treatment for my right knee and I continued working as normal.
8. On 5 November 2020, I aggravated my sore right knee by slamming my right leg into a door whilst cleaning the galleys of an aircraft.”
To the extent the applicant’s right knee was deconditioned as a result of the use of the scooter caused by her ankle consequential condition, I am satisfied there is a consequential condition relating to the original left knee injury.
However, I am not satisfied that any condition arising from the specific incident to the applicant’s right knee on 5 November 2020 is as a consequence of the original injury. To the extent there is any additional impairment to the right knee which has arisen from that specific incident, it will be a matter for a Medical Assessor to determine the extent of any impairment.
Upon the Medical Assessment Certificate (MAC) being issued, the matter will then be listed before me for further preliminary conference to list the matter for determination of the question of whether impairments to the right knee as a result of both the consequential condition and the injury on 5 November 2020 (if found) can be aggregated.
Right shoulder
The applicant states that on 5 August 2023, she was at home when she fell as a result of her left knee giving away and used her right arm to brace herself, causing right shoulder injury. That account is broadly consistent with the version given by the applicant to Dr Nicola on 10 August 2023, whose note states:
“L knee gave way while walking at home on 5/8/23. Hit medial aspect of the L ankle against the wall and jarred the R shoulder against the wall as she reached out her R arm to support her while falling. Ankle pain improved since then but R shoulder still painful with movement mainly abduction.”
In relation to this aspect of the claim and the question of the applicant’s left knee giving way generally, the respondent noted there were some clinical entries from as far back as 2016 indicating the applicant’s left knee periodically gave way and submitted that the Commission could therefore not be satisfied that the cause of the giving way in that body system was the accident at issue.
In my view, if there was pathology in the applicant’s left knee which pre-dated the injury at issue, then it will be a matter for a Medical Assessor to determine any deduction to be made pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Although there was some demonstrable pathology in the applicant’s left knee before the injury at issue, as demonstrated by the report of A/Prof Paoloni dated
10 February 2016, the applicant was plainly able to attend to her work duties until the initial injurious event at issue on 21 May 2018. It was, in my view, having regard to all of the medical and lay evidence, this incident which precipitated the giving way of the left knee which caused both the right ankle injury and the right shoulder injuries. As such, the right shoulder injury is, in my view, also a consequential condition and will be the subject of referral to a Medical Assessor.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1.
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