Zarkovic v APA Monet Pty Ltd - [2025] NSWPIC 147

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zarkovic v APA Monet Pty Ltd [2025] NSWPIC 147
APPLICANT:	Mirko Zarkovic
RESPONDENT:	APA Monet Pty Limited
MEMBER:	Adam Halstead
DATE OF DECISION:	11 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for payment of weekly compensation pursuant to section 37 of the 1987 Act and for medical expenses pursuant to section 60 of the 1987 Act; whether the applicant was a worker pursuant to section 4 of the 1998 Act or a deemed worker pursuant to section 5 of the 1998 Act and clause 2 of Schedule 1 to the 1998 Act; correct calculation for pre-injury average weekly earnings (PIAWE); Held – applicant a worker or deemed worker at the time of injury; PIAWE is $1,575.87 and subject to indexation; general order for medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. At all material times, the applicant was a worker or deemed worker employed by the respondent. 2. The applicant had pre-injury average weekly earnings of $1,575.87, which is subject to indexation. 3. General order pursuant to s 60 of the Workers Compensation Act 1987 for medical and related treatment expenses. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

These proceedings are primarily about the nature of the contractual relationship between the parties. The applicant, Mr Mirko Zarkovic, commenced undertaking carpentry work for the respondent, APA Monet Pty Ltd, from 19 September 2023. He was injured while working at a job site on 27 February 2024 when a door fell on him.
The applicant claims to have been a worker employed by the respondent at the time or, in the alternative, a deemed worker. The applicant seeks payment of weekly compensation and expenses for medical and related treatment. The respondent disputes the claim made by the applicant and denies he was a worker or deemed worker.
The applicant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 29 October 2024 in relation to the disputed claim.

ISSUES FOR DETERMINATION

The following issues remain in dispute and require determination by the Commission:
(a) whether the applicant was a “worker” according to s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) whether the applicant was a “deemed worker” according to s 5 and cl 2 of Sch 1 to the 1998 Act, and if so,
(c) the amount of the applicant’s pre-injury average weekly earnings (PIAWE).
The respondent accepts it would be liable for the payment of weekly compensation and to pay reasonably necessary medical and related treatment expenses if the applicant is found to be entitled, that is, as a worker or deemed worker.

PROCEDURE BEFORE THE COMMISSION

The matter was before the Commission for arbitration hearing on 5 February 2025.
Mr Adhikary of counsel, instructed by Taylor & Scott Lawyers, appeared for the applicant. The respondent…

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.

Keep reading for free

Create a free CaseChat account to read Zarkovic v APA Monet Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWPIC 147
Decision Date: 11 April 2025

CaseChat Overview and Summary

The matter of Zarkovic v APA Monet Pty Ltd involved the applicant seeking payment of weekly compensation and medical expenses following an injury sustained during employment. The case was heard in the Workers Compensation Magistrates Court of New South Wales. The applicant argued that the employer was liable for compensation under the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The dispute centred on whether the applicant qualified as a worker or a deemed worker at the time of the injury and the correct calculation of the pre-injury average weekly earnings (PIAWE).

The court had to determine whether the applicant was a worker under section 4 of the 1998 Act or a deemed worker under section 5 of the 1998 Act and clause 2 of Schedule 1 to the 1998 Act. Additionally, the court needed to establish the correct PIAWE, which was essential for calculating the weekly compensation. The court examined the definition of a worker and a deemed worker, and considered the evidence provided regarding the applicant’s employment status and income prior to the injury. The court found that the applicant qualified as a worker or a deemed worker and proceeded to calculate the PIAWE.

The court held that the applicant was a worker or deemed worker at the time of the injury and determined the PIAWE to be $1,575.87, subject to indexation. The court provided a detailed analysis of the evidence and calculations to support this finding. Furthermore, the court made a general order for the payment of medical expenses as claimed. The outcome was favourable to the applicant, who was entitled to weekly compensation and reimbursement of medical costs in accordance with the court's determination.

Orders