Zulamoska v ISS Property Services Pty Ltd - [2024] NSWPIC 552

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zulamoska v ISS Property Services Pty Ltd [2024] NSWPIC 552
APPLICANT:	Violeta Zulamoska
RESPONDENT:	ISS Property Services Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	3 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant worked for 20 years to age 70 as a cleaner of a primary school alleging disease injury to her left knee; claim for weekly compensation and cost of, and incidental to, left knee total knee replacement; “injury” and whether the knee replacement was reasonably necessary treatment as a result of injury were disputed; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services, and Diab v NRMA Ltd applied; Held – pursuant to section 4(b)(ii) the applicant sustained an injury to her left knee with her employment with the respondent being the main contributing factor to the aggravation of disease; pursuant to section 60 the treatment proposed of left total knee replacement is reasonably necessary treatment as a result of injury in the course of employment with the respondent; the respondent is to pay for the costs of and incidental to the left knee replacement surgery; the respondent is to pay the claimed incurred section 60 expenses on production of accounts, receipts and/or Medicare Notice of Charge at the SIRA gazetted rates; the respondent is to pay the applicant weekly compensation pursuant to section 37; the claim for lump sum compensation is withdrawn.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained an injury to her left knee with her employment with the respondent being the main contributing factor to the aggravation of disease with a deemed date of injury of 1 November 2023. 2. Pursuant to s 60 of the Workers Compensation Act 1987 the treatment proposed by Dr Chien of left total knee replacement is reasonably necessary treatment as a result of injury in the course of employment with the respondent. 3. The respondent is to pay for the costs of and incidental to the left knee replacement surgery. 4. The respondent is to pay the claimed incurred s 60 expenses on production of accounts, receipts and/or Medicare Notice of Charge at the SIRA gazetted rates. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 15 March 2024 to 31 March 2024 at the rate of $342.19 (being 80% of the pre-injury earning figure of $427.74), and (b) from 1 April 2024 and ongoing at the rate of $348 being 80% of the pre-injury earning figure of $435), subject to increases in the future for indexation. 6. The claim for lump sum compensation is withdrawn.

STATEMENT OF REASONS

BACKGROUND

Violeta Zulamoska, the applicant, is 70 years old and has been employed by the respondent, ISS Property Services Pty Ltd, for 20 years as a primary school cleaner. She alleges she sustained an injury to her…

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: [2024] NSWPIC 552
Decision Date: 3 October 2024

CaseChat Overview and Summary

In the matter of Zulamoska v ISS Property Services Pty Ltd, the applicant, a former cleaner for the respondent, sought compensation for injuries she claimed to have sustained during her employment. She alleged that her left knee disease was aggravated by her work, leading to a total knee replacement. The dispute centred on whether the knee replacement was necessary treatment for an injury sustained in the course of employment. The case was heard and determined by the Industrial Relations Commission of New South Wales.

The legal issues before the court included the definition of "injury" under the Workers Compensation Act 1987, and whether the treatment proposed—a total knee replacement—was reasonably necessary as a result of the injury. The court had to interpret relevant statutory provisions and consider previous case law, including Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services, and Diab v NRMA Ltd. The court had to determine if the applicant’s employment was the main contributing factor to the aggravation of the disease and if the proposed treatment was reasonably necessary.

The court found that the applicant sustained an injury to her left knee, with her employment being the main contributing factor to the aggravation of the disease, pursuant to section 4(b)(ii). The court held that the treatment proposed, a total knee replacement, was reasonably necessary treatment as a result of the injury under section 60. Consequently, the respondent was ordered to pay for the costs of, and incidental to, the surgery. Additionally, the respondent was to pay the claimed incurred section 60 expenses on production of accounts, receipts, and/or a Medicare Notice of Charge at the SIRA gazetted rates. The respondent was also required to pay the applicant weekly compensation pursuant to section 37. The claim for lump sum compensation was withdrawn.

In summary, the court determined that the applicant was entitled to compensation for her work-related injury and reasonably necessary treatment, including the cost of the knee replacement surgery. The respondent was liable for these expenses and weekly compensation, as per the statutory provisions of the Workers Compensation Act 1987.

Orders