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 267
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:	16 June 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 Commission determines: 1. The applicant has been incapacitated for work throughout the period relevant to the dispute and his incapacity is continuing. 2. The applicant had pre-injury average weekly earnings of $551.73. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

These proceedings arise from an application made on 8 November 2023 about a dispute related to compensation for permanent impairment as well as weekly compensation. This matter was the subject of a previous determination of the Personal Injury Commission (Commission) on 6 August 2024, and subsequent medical assessment for which a Medical Assessment Certificate (MAC) was issued on 13 November 2024, regarding compensation for permanent impairment. There is an on-going dispute about the MAC that is not the subject of this determination.
The applicant, Milan Markovic, claims payment of weekly compensation from the first respondent, Zelimir Ostojic, who traded a business known as Nickol's Painting Services. The second respondent, Workers Compensation Nominal Insurer (iCare), is a party to the proceedings as the first respondent did not hold workers compensation insurance when the applicant was injured on 8 April 2019. Other than where necessary to make a distinction, the respondents will be referred to hereinafter as the ‘respondent’. The applicant’s claim is disputed by the respondent.
In the determination of 6 August 2024, the Commission found the applicant was a deemed worker of the respondent for the purposes of s 5 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and that he was injured at work.

PROCEDURE BEFORE THE COMMISSION

The dispute in relation to weekly compensation was before the Commission for arbitration hearing on 11 April 2025. Mr Grimes of counsel, instructed by Mr Gutierrez of Premier Compensation Lawyers, appeared for the applicant, who was also present. The first respondent was represented by Mr Macken of Leigh Virtue and Associates Solicitors.
Mr Hart of counsel, instructed by Ms Davis of Gair Legal, appeared for the second respondent. The parties were given leave to provide written submissions following the arbitration hearing, however that was in relation to the separate issue concerning the disputed MAC.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The following issues remain in dispute and, in this part of the application, the parties have requested the Commission determine:
(a) the applicant’s capacity to work, and
(b) the amount of the applicant’s pre-injury average weekly earnings (PIAWE).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to the ARD with attachments (Reply);
(c)    MAC;
(d)    Application to Lodge Additional Documents from the applicant dated
14 March 2025 with a Wages Schedule and supporting calculations (ALAD), and
(e)    Wages Schedule from the first respondent dated 18 March 2025 with attached note containing calculations.

There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

Section 33 of the Workers Compensation Act 1987 (the 1987 Act) provides that weekly compensation is payable by an employer in circumstances where a worker is partially or totally incapacitated for work as a result of a workplace injury. It has previously been determined the applicant is deemed to have been the first respondent’s worker at the time he was injured on 8 April 2019.

Incapacity for work

Although the first respondent “accepts the medical evidence says the applicant has no capacity” for work, it was nevertheless submitted the applicant “should be found to have some capacity”. The submission was made on the basis the medical evidence was “based on examination” of the applicant, which was said to have been a “challenging assessment”. Those submissions were made in relation to the comments of Dr Richard Powell, orthopaedic surgeon, the independent medical examiner qualified by the second responded to examine the applicant and provide a report.
In his 14 June 2022 report,[1] Dr Powell found the applicant to be “a poor historian” from whom “it was difficult to obtain a detailed and sequential history”. Dr Powell considered the applicant “found it difficult to provide relevant answers to the questions directed towards him”. He stated that the applicant “represented a challenging assessment” and that his presentation at the examination was such that Dr Powell considered “meaningful interpretation of his clinical examination extremely limited” and he was “totally unsuitable for any form of whole person impairment assessment”. [2]
[1] Reply p 40.
[2] Reply p 43.
However, in addition to the request for an assessment of whole person impairment,
Dr Powell was also requested to comment on the applicant’s capacity for work. In relation to that issue, he stated:[3]
“Based on my examination I do not believe Mr Markovic is fit to return to work in any capacity. The extent of his current symptoms and functional limits are such that he is unemployable on the open labour market.”
[3] Reply p 47.
It is evident from the report that while Dr Powell considered the applicant was unsuitable for assessment in relation to whole person impairment (WPI) at that time, he was nonetheless able to assess the applicant’s capacity for work. Dr Powell found the applicant had none.
The first respondent’s submission about the basis of the opinion is noted, that is, being based on the examination. It is clear though that while it may have been unsuited to WPI assessment, Dr Powell considered his examination was sufficient to address work capacity, and his finding on that issue was unambiguous. The submission made by the first respondent conflates two distinct aspects of the report and is not accepted.
The first respondent further submits, which essentially argues against the respondent medical evidence, that the “medical evidence does not reflect [the applicant’s work] capacity”; a submission made without reference to any supporting evidence, aside from conflating the matters already mentioned. It too is rejected.
The applicant disputes the respondent’s submissions[4] on work capacity and referred to
[4] The submissions on capacity made by the first respondent were adopted by the second respondent.
[5] ARD pp 74, 383, 388, 409, 424, 419, 435, 441, 437, 446, 448, 450, 455, 458, 465, 467, 469, 476, 487, 489, 496 and 504 (which should presumably reference to p 507).
22 separate medical certificates in evidence that state he did not have capacity for work during the period to which each refers.[5] The respondents did not cavil with any of those certificates.
The MAC was provided by Medical Assessor Mark Burns, an occupational specialist, following examination of the applicant. A Medical Assessor is assigned by the Commission, it is a role entirely independent of either party. Medical Assessor Burns also found the applicant to be “a poor historian” who “frequently stated that he could not remember details”.[6] The Medical Assessor did not specifically address the issue of work capacity (being an issue that was not referred for comment) but noted, without further comment, that the applicant was “certified totally unfit” for employment at that time, being 13 November 2024.
[6] MAC p 2.
There has been no evidence produced in these proceedings that the applicant has recovered from his various injuries and related conditions to the extent that he has capacity for work. The available medical evidence is that the applicant has been, and remains, incapacitated. There is no functional capacity assessment in evidence. In the absence of evidence that the applicant has capacity for work, the weight of the evidence is that he does not. Submissions of the respondent without evidence have no weight. Accordingly, I find the applicant did not have capacity or work during the period relevant to the dispute and incapacity continues.

PIAWE

The amount of weekly compensation to be paid to an injured worker is determined in accordance with ss 36, 37 and 38 of the 1987 Act by reference to their PIAWE.
Sections 44C, 44D and 44E of the 1987 Act were in effect at the time the applicant was injured.[7] Those provisions related to PIAWE and the method to calculate the applicable amount. In summary, it is an average of the worker’s ordinary income for the 52-week period immediately prior to injury, but where a shorter period may be used in certain circumstances to obtain an average weekly sum.
[7] All since repealed.
The applicant’s PIAWE amount is not agreed. The applicant contends the amount should be $744.04. The respondents contend PIAWE is in the range of $273 to $397. The parties have calculated those amounts on different bases. Certain income said to have been received by the applicant is disputed.
The applicant relies on bank statement records and submits his earnings for the pre-injury period were $28,960 in bank deposits received from the respondent as well as an “estimate” of $10,000 in cash payments, purportedly made at the rate of $250 per day.[8] It is contended by the applicant the relevant total ordinary earnings for the period were $38,690, divided by 52, for a PIAWE amount of $744.04.
[8] ALAD p 6.
The first respondent refers to the applicant’s income tax return for the 2018-19 financial year[9] and contends PIAWE be calculated based on gross reported income less deductions. In his Wages Schedule and related calculations, the first respondent refers to earnings of $18,485 less business expenses of $7,275, leaving $11,210 as the relevant earnings for the period from 1 July 2018 to 8 April 2019, a period of 41 weeks. A PIAWE amount of $273.41 is propounded by the first respondent on that basis.
[9] ARD p 738.
I consider the bank statement records to be the best evidence of the applicant’s actual, verifiable income received from the respondent during the 52-week period prior to injury. Deposits made by the respondent are clearly identified as such and I have no doubt the bank statement evidence reflects the amounts paid by account transfers. There are total deposits of $28,690 during the relevant period. The applicant invoiced the first respondent for the work performed and there has been no suggestion income tax withholdings were made from the invoiced amounts. I am therefore satisfied the amounts deposited by the respondent were the total amounts invoiced by the applicant.
The respondent relies on the applicant’s 2018-19 income tax return for calculating PIAWE, makes a distinction between ‘receipts’ and ‘earnings’, and contends deductions for business expenses should be applied to reduce the applicant’s total ‘receipts’ to ascertain his earnings. This was said to be on the basis that as a ‘deemed’ worker, the applicant retained a business-type arrangement and so his income less business deductions would be his earnings. That is, simply using total ‘receipts’ for the period would not reflect his earnings according to the first respondent. There was however no reference to any authority in support of that proposition offered and it is rejected for the following reasons.
First, the 2018-19 financial year is not the relevant period, even with adjustments.
Second, it is evident from the bank statement records that the applicant received $28,190 in that financial year, which appears to indicate a significant discrepancy between the income he reported in the income tax return and his actual income. It is not necessary to explore the reason the applicant may have understated income in the tax return.
Finally, the term ‘earnings’ has different meanings depending on the context. For example, in corporate finance it means a company’s revenue less expenses, which if applied here would require business deductions claimed by the applicant to be taken into account. However, the ordinary meaning of earnings is: something that is gained by labour or service.[10] As the respondent has provided no authority for the submission that allowance should be made for business deductions, and the applicant is not public company, it is appropriate to apply the ordinary meaning of the word. That is, the amount of the money received by the applicant is taken to be that from the provision of his labour and services. The amount received by the applicant for the provision of labour and services can be readily identified based upon the bank statement records and is $28,690.
[10] Macquarie Dictionary.
The applicant also claims an “estimate” of $10,000 cash payments that he says were received from the first respondent, based on daily amounts of $250. Using that “estimate” there must have therefore been 40 during the relevant period. There is no corroborating evidence for this claim of cash payments, no specific details have been provided such as when the payments occurred, the circumstances in which they were made, how often precisely or when and how the cash was used. It is clear from the statement records that no cash deposits were made to the applicant’s bank account during the period.
The respondents highlight both Dr Powell and Medical Assessor Burns found the applicant a poor historian of fact. That is correct and is a relevant consideration when assessing the veracity of his claims to having received a substantial number of cash payments for which there is simply no supporting evidence. It was submitted for the applicant that his evidence is uncontradicted and should therefore be accepted, but as was identified by the second respondent, there is no rule of law that requires unchallenged or untested evidence to be accepted[11] and it is not accepted here.
[11] Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48, per Phillips P at [167].
The applicant’s evidence is that he was paid by the respondent at a rate of $35 per hour, yet a cash amount of $250 is not a multiple of $35. There is no explanation about the number of hours worked for $250 and assuming a standard day was seven hours, then the applicant would have received less than the purportedly agreed hourly rate of $35. It would have therefore been to his disadvantage to agree to the arrangement.
The applicant’s statement evidence was prepared more than four years after the relevant period and, in circumstances where he was unable to provide information in response to queries by an independent medical examiner and the Medical Assessor about his injury (which would presumably be more acute issues in his memory given the extent of claimed impairment), is not accepted as reliable in the absence of corroboration.
The applicant claims the respondent “told [him] not to disclose to anyone that [he] had been paid in cash”[12], which would make little sense given it would be in the interests of an employer (or primary contractor) to record all such payments since they would be business deductions for operational and taxation purposes. It is also noted that in his statement evidence,[13] the first respondent did disclose an occasion when a cash payment was made to the applicant, which tends to contradict the applicant’s assertions of the first respondent requiring non-disclosure of same.
[12] ARD p 4 at [31].
[13] Reply p 37 at [39].
The applicant’s claim of receiving a significant number of cash payments from the first respondent is a bare assertion without any supporting evidence, it is entirely uncorroborated and there is not a single cash deposit to his bank account in the relevant period. It is not accepted he received $10,000 in cash payments in the circumstances, and his claim of that occurring is rejected accordingly. I am satisfied the applicant received total ordinary earnings from the first respondent of $28,690 during the 52-week period before injury. Accordingly, his PIAWE were $551.73.

SUMMARY

The applicant was incapacitated for work for the period relevant to the dispute and his incapacity is continuing. The applicant’s PIAWE were $551.73.

[2025] NSWPIC 267

16 June 2025