Markovic v Zelimir Ostojic t-as Nickol's Painting Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Markovic v Zelimir Ostojic t-as Nickol's Painting Services & Anor [2025] NSWPIC 473
APPLICANT:	Milan Markovic
FIRST RESPONDENT:	Zelimir Ostojic trading as Nickol's Painting Services
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Adam Halstead
DATE OF DECISION:	10 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; previous determination on injury and deemed worker; section 33 weekly compensation; whether worker incapacitated for work during period after injury; medical evidence indicates incapacity; pre-injury average weekly earnings (PIAWE); dispute as to income; consideration of earnings, receipts, and income; method of calculating PIAWE, taxation records, and bank statement records; Held – applicant incapacitated for work; PIAWE determined with reference to bank statement records.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The matter is remitted to the President for further referral to the Medical Assessor for reconsideration of the Medical Assessment Certificate dated 13 November 2024 in accordance with the determination made by the Commission on 6 August 2024. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

This matter has been before the Personal Injury Commission (Commission) on two prior occasions for arbitration and determination. The first on 6 August 2024 regarding the extent of, and liability for, workplace injury as well as the nature of the relationship between the parties, when the applicant, Milan Markovic, was found to have been a deemed worker employed by the first respondent, Zelimir Ostojic trading as Nickol's Painting Services (hereinafter referred to as the ‘respondent’). The second occasion was the determination on 16 June 2025 about the applicant’s incapacity for work and his pre-injury average weekly earnings.
In between those, there was a medical determination of 13 November 2024 on the applicant’s whole person impairment for the purposes of lump sum compensation. Medical Assessor Burns made that determination following an assessment of the applicant and a Medical Assessment Certificate (MAC) was issued when he was found to have whole person impairment of 26%.
On 6 December 2024, the respondent lodged an appeal against the Medical Assessor’s decision based on incorrect criteria pursuant to s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and that the MAC contained a demonstrable error for the purposes of s 327(3)(d) of the 1998 Act.
The applicant and second respondent lodged notices of opposition to the respondent’s appeal. A delegate of the President considered the appeal application pursuant to s 327(4) of the 1998 Act, found there were insufficient grounds and determined the appeal was not to proceed to a Medical Appeal Panel, which is the “gatekeeper decision”.
The respondent now seeks reconsideration of the assessment in the MAC by Medical Assessor Burns. The grounds relied upon in this application are different to those considered in the 20 February 2025 gatekeeper decision. It is argued the MAC assessed a body part that was not the subject of referral by the Commission in its 6 August 2024 Certificate of Determination (COD). Specifically, the MAC is said to include assessment of the applicant’s right elbow where there was no provision for it to be assessed according to the COD.

ISSUE FOR DETERMINATION

The issue for determination in this application is whether there are grounds for the matter to be remitted to the President for referral back to the Medical Assessor, pursuant to s 329(1A) of the 1998 Act, for reconsideration.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At the hearing of the dispute that was the subject of my determination on 16 June 2025, directions were made to provide an opportunity for the respondents to make separate application in relation to the content of the MAC. It was a matter raised at the time of the earlier arbitration hearing, but was a discrete issue, unrelated to those in dispute at the time.
The respondent subsequently lodged a request for the MAC to be reconsidered with respect to either the “slip rule” or pursuant to s 329(1A) of the 1998 Act. Written submissions were received from the respondent and applicant. A preliminary conference occurred on 4 July 2025 when Mr Gutierrez of Premier Compensation Lawyers appeared for the applicant. Mr Macken of Leigh Virtue and Associates appeared for the first respondent. Ms Davis of Gair Legal appeared for the second respondent. Procedural matters were discussed, and I decided it was unnecessary to refer the matter for an arbitration hearing as the matter could proceed to determination on the papers.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. The parties had sufficient opportunity to explore settlement, and they were unable to reach an agreed resolution of the dispute.

DOCUMENTS

The following documents were before the Commission and considered in making this determination:
(a)    MAC;
(b)    COD, and
(c)    Gatekeeper decision.
I also considered the written submissions received from the respondent dated 14 April 2025 and 16 May 2025 as well as those of the applicant dated 5 May 2025 and 22 May 2025.

FINDINGS AND REASONS

Section 329(1A) of the 1998 Act provides that a matter previously referred for medical assessment may be referred again by the President to the medical assessor for reconsideration. The respondent relies upon this provision in the current application in addition to the “slip rule”.
As to the latter, the power to correct errors and mistakes in determinations of the Commission is found at s 57 of the Personal Injury Commission Act 2020. For the reasons that follow, it is unnecessary to further consider that provision, including whether it might extend to determinations made by medical assessors,
The respondent’s submissions are quite straightforward; Medical Assessor Burns clearly considered the applicant’s right elbow when an assessment was made of his whole person impairment. According to the respondent, it is evident that 1% of the 26% assigned in the MAC for whole person impairment relates to the applicant’s right elbow. However, in referring the matter for assessment of whole person impairment, the Commission Member did not include the applicant’s right elbow as part of the “right upper extremity” for the purpose of how the medical assessor was to approach whole person impairment according to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition. The COD records the Member’s referral as:[1]
“I remit the matter to the President to refer the matter to a Medical Assessor to assess any Whole Person Impairment of the Cervical spine the Lumbar spine, the Left upper extremity (shoulder, elbow and wrist), and the right upper extremity (shoulder and wrist) as a result of injury on 8 April 2019 by assessing the identified body parts/systems where Chronic Regional Syndrome (CRPS) is present and the criteria for CRPS are met, otherwise, to assess the identified body parts/systems where the criteria for CRPS have not been met.”
[1] COD p 1 at [3].
That referral followed the Member’s “findings” that:[2]
“The applicant suffered injury on 8 April 2019 as pleaded to the cervical spine, the lumbar spine, the left shoulder, elbow and wrist, the right shoulder and wrist and a secondary psychological injury.”
[2] COD p 1 at [1].
Medical Assessor Burns confirmed the parameters of the referral for assessment of whole person impairment as:[3]
[3] MAC p 1.
“Date of injury:  8 April 2019
Body parts referred:  Cervical spine,
Lumbar spine,
Left upper extremity (shoulder, elbow and wrist),
Right upper extremity (shoulder and wrist),
Chronic regional syndrome (CRPS)”
Method of assessment:               Whole person impairment”
Neither the COD nor the MAC cite the right elbow as part of the referral, which would usually have appeared in parenthesis next to “Right upper extremity”, had it been made. I accept the respondent’s submission that the Member “specifically excluded” the applicant’s right elbow in the COD. It is plain from the Member’s findings and terms of the referral, “shoulder, elbow and wrist” were referred for the applicant’s left upper extremity, but only “shoulder and wrist” for the right side; right elbow is conspicuously absent.
Notwithstanding the absence of the right elbow, the MAC contains the following references, first under the heading of “Right upper extremity”, where wrist and shoulder are also outlined:[4]
“…
Elbow: He again reported global pain over the right elbow, pointing to the midline as well as the medial and lateral aspects of the elbow. He again reported that this pain is constant. He reported that if he straightens the elbow that he has a tight pulling feeling down into the arm.
…”
[4] MAC p 3.
Reference is later made to examination of “both elbows” that “also revealed reports of marked pain in both elbows” where range of movement measurements were recorded for both sides.[5] In providing the reasons for assessing whole person impairment of 26%, Medical Assessor Burns explained:[6]
“With respect to range of movement in the right elbow he would have 1% upper extremity impairment. With respect to range of movement in the right wrist where he suffered a fracture he would have 9% upper extremity impairment. A combination of range of movement for the shoulder, wrist and elbow would give 13% upper extremity impairment. This would be converted to 8% whole person impairment. Again as there was no previous injury to the right upper extremity there would be no deduction.”
[5] MAC pp 5 and 6.
[6] MAC p 8.
The right elbow assessment is also explicit in the Combined Values Table in the MAC, where the relevant column refers to “Right upper extremity (shoulder, elbow & wrist)”.[7]
[7] MAC p 10.
There can be little doubt the MAC includes assessment of the applicant’s right elbow, contrary to the referral contained in the COD. The second respondent contends that is “an obvious error which requires correction”. I agree with that submission.
The applicant’s submissions cite various documents, including dispute notices, that were in evidence before the Member in the first proceedings and refer to the right elbow. On that basis, it is argued that since the applicant’s right elbow was “clearly part of the dispute between the parties” that was before the Commission in the first proceedings, then the respondent’s “submissions should be disregarded, and the MAC should be confirmed”. That is, notwithstanding the right elbow was not the subject of referral in the COD, it was appropriate for it to be assessed by Medical Assessor Burns because it had been a matter previously in dispute. I do not accept that submission for several reasons.
First, the terms of the referral contained in the COD is clear, there is reference to the applicant’s left elbow but the right elbow is excluded. In reaching his determination to make that referral, the Member decided the applicant’s right elbow was not a body part to be assessed with respect to his right upper extremity. That is made obvious from the “findings” in the COD.
Second, the applicant did not appeal the COD or make a request for reconsideration on the basis his right elbow had not been included. The applicant had an opportunity to challenge the COD if it were not correct or he was dissatisfied with the finding, but he did not.
Finally, the matter currently before the Commission for determination relates to the MAC and whether there is an obvious error that should be referred to the medical assessor for reconsideration. These proceedings are not an appeal or request for reconsideration of the COD arising from any application or request by the applicant. That is, the COD is not the subject of review in these proceedings, which is in essence what the applicant seeks in his submission. Findings were made by the Member on liability for injury in earlier proceedings, following arbitration, and there is no basis for those to now be impugned.
I am reasonably satisfied the MAC contains an obvious error on a matter that would likely affect the whole person impairment assessment made by Medical Assessor Burns. The error should be brought to the attention of the Medical Assessor for his consideration. The process differs from an appeal in that the content of the MAC can be corrected by the decision-maker in the event the identified issue was unintended error. Accordingly, the matter is remitted to the President pursuant to s 329(1A) of the 1998 Act for the purposes of referral to the medical assessor for reconsideration.
It should also be noted that s 329(1)(a) of the 1998 Act does not restrict the further referral of the assessment by the President given there has been no prior appeal; the respondent’s earlier application to appeal was rejected at the gatekeeper stage and did not proceed.

SUMMARY

The MAC contains an obvious error that is not consistent with the referral for assessment made in the COD. The applicant’s right elbow was assessed in circumstances where it was not referred for assessment. The matter should now be again referred to the medical assessor for reconsideration of that issue.

[2025] NSWPIC 473

10 September 2025