Leuzzi v Primo Concrete Pty Ltd - [2025] NSWPIC 9

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Leuzzi v Primo Concrete Pty Ltd [2025] NSWPIC 9
APPLICANT:	Giuseppe Leuzzi
RESPONDENT:	Primo Concrete Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	10 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits compensation pursuant to sections 33 and 37; claim for permanent impairment compensation pursuant to section 66; accepted right shoulder frank injury and left wrist carpal tunnel syndrome; whether applicant sustained injury to the cervical spine in the nature of a disease pursuant to section 4(b)(i) and (ii); whether the left upper extremity (wrist) can be included in a referral to a Medical Assessor (MA) in relation to a claim pursuant to section 66 because there is no evidence of assessment of whole person impairment (WPI); quantification of the applicant’s entitlement to weekly compensation pursuant to sections 33 and 37(3); what is the “current weekly earnings” that should be applied for calculation of the entitlement to weekly benefits compensation pursuant to section 37(3); Held – award for the respondent in relation to the claimed injury to the cervical spine pursuant to section 4(b)(i) and (ii); in the circumstances, no basis to remit to the President for referral to an MA for determination of WPI; the applicant had current work capacity and returned to work for less than fifteen hours per week; “current weekly earnings” pursuant to section 37(3) are (a) for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024 is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on a full-time basis, and (b) for the period from 2 November 2023 to 30 November 2023 is $222.65 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on the basis of six hours work per week.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); 2. There is no basis to remit any part of the matter to the President for referral to a Medical Assessor for determination of whole person impairment; 3. During the claim period, the applicant had current work capacity and returned to work for less than 15 hours per week, and 4. The “current weekly earnings” that should be applied in this case for calculation of the applicant’s entitlement to weekly benefits compensation pursuant to s 37(3) of the 1987 Act: (a) for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024, is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with…

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 Leuzzi v Primo Concrete 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 9
Decision Date: 10 January 2025

CaseChat Overview and Summary

Leuzzi filed a claim against Primo Concrete Pty Ltd seeking workers' compensation benefits, including weekly compensation and compensation for permanent impairment. The dispute centered on whether the applicant sustained a cervical spine injury and whether the left upper extremity could be included in a referral to a Medical Assessor. The case was heard in the Workers Compensation Court of New South Wales. The primary legal issues were whether the applicant's injuries to the cervical spine constituted a disease under the Workers Compensation Act 1987 and whether the left wrist condition could be included in a referral to a Medical Assessor for the assessment of whole person impairment.

The court held that there was no basis to find that the applicant sustained a disease in the cervical spine. Consequently, the claim for compensation in relation to the cervical spine was dismissed. The court found no grounds to remit the matter to the President for a referral to a Medical Assessor for whole person impairment assessment. The applicant had returned to work, albeit for less than fifteen hours per week, indicating current work capacity. Regarding the calculation of "current weekly earnings" under section 37(3) of the Act, the court determined that for certain periods, the applicant's potential earnings were $1,960 per week, considering suitable employment in managerial roles with the respondent on a full-time basis. For another period, the court found that the applicant could earn $222.65 per week based on six hours of work per week. These findings directly influenced the quantification of the applicant’s entitlement to weekly benefits compensation.

Orders