Roche v ISS Property Services Pty Ltd - [2024] NSWPIC 708

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roche v ISS Property Services Pty Ltd [2024] NSWPIC 708
APPLICANT:	Yubelkis Cabrera Roche
RESPONDENT:	ISS Property Services Pty Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	17 December 2024
DATE OF AMENDMENT:	6 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the respondent conceded injury but raised an issue as to the mechanism of injury, and claimed the effects thereof had ceased, therefore the applicant was not entitled to continuation of weekly benefits or medical expenses; findings on the mechanism of injury and that the effects of such injury had not ceased; finding that the applicant has a current work capacity having regard to what was determined in Wollongong Nursing Home v Dewar; award for the applicant for weekly benefits and medical expenses pursuant to sections 37 and 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her lumbar spine arising out of or in the course of her employment on 16 September 2022. 2. The effects of that injury have not ceased. 3. The applicant is able to earn $400 per week in suitable employment. 4. The applicant’s pre-injury average weekly earnings as at 29 September 2023 were $1,185.22 as indexed. Eighty percent thereof is $948.18. 5. The respondent is to pay the applicant $548.18 per week as indexed from 29 September 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant’s hospital, and medical and related treatment expenses, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Yubelkis Cabrera Roche (the applicant/Mrs Roche) seeks weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on either 15 or 16 September 2022 arising out of or in the course of her employment as a cleaner with ISS Property Services Pty Ltd (the respondent).
At the time of her accident Mrs Roche was employed as a full-time cleaner at the Revesby South Public School. On the day of the accident she was lifting a heavier than usual garbage bag out of a bin. As she bent over and tried to pull the bin liner up, she says that she felt a crack in her back, and pain that spread down to her legs. As she could not move the bag by herself, she says that she asked a co-worker to help her.
The applicant says that as she worked during the rest of her shift, back pain increased and spread down to her buttocks and both legs. Mrs Roche managed to work to the end of her shift.
After no improvement over the following few days, the applicant consulted her general practitioner, Dr Sidrak, who prescribed anti-inflammatory medication, organised some scans and made a referral for physiotherapy.
Dr Sidrak referred the applicant to Dr McKechnie, neurosurgeon, who treated her over a period…

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.

Continue reading Roche v ISS Property Services Pty Ltd

Details

AGLC: Roche v ISS Property Services Pty Ltd [2024] NSWPIC 708
Case: [2024] NSWPIC 708
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the matter of Roche v ISS Property Services Pty Ltd, the applicant, Roche, sought a review of a decision made by the Workers Compensation Regulator. Roche had been injured while working for the respondent, ISS Property Services Pty Ltd, and was contending for continued entitlement to weekly benefits and medical expenses. The respondent conceded that Roche had suffered an injury, but argued that the mechanism of injury was different from what Roche claimed, and that the effects of the injury had ceased, thus terminating Roche's entitlement to ongoing benefits and expenses. The court was tasked with determining the mechanism of injury and whether the effects of the injury had indeed ceased, and further, whether Roche had any current work capacity.

The legal issues central to this case involved the interpretation of the Workers Compensation Act 1987, specifically concerning the conditions under which an injured worker is entitled to ongoing weekly benefits and medical expenses. The court had to ascertain the mechanism of injury, which was contested by the respondent, and assess whether Roche's injuries had resulted in a permanent impairment or if they were temporary, thereby affecting the duration and extent of the entitlements. Additionally, the court had to consider the case law precedent set by Wollongong Nursing Home v Dewar, to determine Roche's current work capacity.

The court found that the mechanism of injury was as claimed by Roche and that the effects of the injury had not ceased. In reaching this conclusion, the court examined the evidence presented by both parties and determined that Roche's injuries were of a nature that warranted ongoing weekly benefits and medical expenses. The court also considered Roche's work capacity in light of the principles set out in Wollongong Nursing Home v Dewar, and found that Roche did indeed have a current work capacity, albeit limited. Consequently, the court awarded Roche weekly benefits and medical expenses in accordance with sections 37 and 60 of the Workers Compensation Act 1987.

In summary, the court ruled in favour of Roche, finding that the mechanism of injury was as claimed, that the effects of the injury had not ceased, and that Roche had a current work capacity. The court ordered that Roche was entitled to continued weekly benefits and medical expenses, consistent with the provisions of the Workers Compensation Act 1987.

Orders