Zupancic v Sydney Group Formwork Pty Ltd - [2025] NSWPICMP 111

DETERMINATION OF APPEAL PANEL
CITATION:	Zupancic v Sydney Group Formwork Pty Ltd [2025] NSWPICMP 111
APPELLANT:	Joze Zupancic
RESPONDENT:	Sydney Group Formwork Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	21 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Appeal by worker alleging that the Medical Assessor (MA) erred by not assessing an alleged peripheral nerve injury; whether referral in terms of “upper extremity” required MA to assess all systems and anatomical parts of the extremity; Held – the lack of particularity in the referral is infelicitous and did not reflect the dispute between the parties; Skates v Hills Industries Ltd considered and applied; letter of claim confined the dispute to the assessment of the shoulder; documentation before the MA confirmed that issue; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 October 2024 Joze Zupancic, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th edition
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 24 June 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the “right upper extremity” on 10 October 2013.
Mr Zupancic was employed as a form worker on a construction site when a 3m x 2m metal pallet dislodged and fell onto his right shoulder. He came to surgery with in the form of a pectoralis major transfer. This was unsuccessful and the Medical Assessor noted that “the EMG apparently demonstrated a right ulnar nerve palsy but also evidence of bilateral carpal tunnel syndrome”.[1]
[1] Appeal Papers page 26.
Revision surgery was undertaken in September…

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: [2025] NSWPICMP 111
Decision Date: 21 February 2025

CaseChat Overview and Summary

Zupancic v Sydney Group Formwork Pty Ltd was a case in the Industrial Court of New South Wales, where the worker, Mr Zupancic, appealed the decision of a Medical Assessor (MA) who did not assess an alleged peripheral nerve injury. Mr Zupancic contended that the MA erred in not examining the peripheral nerve injury, while the insurer, Sydney Group Formwork Pty Ltd, argued that the referral did not require the MA to assess all systems and anatomical parts of the extremity. The court was tasked with determining whether the referral in terms of “upper extremity” necessitated the MA to evaluate all components of the extremity, or if the lack of particularity in the referral was insufficient to warrant a comprehensive assessment.

The legal issues before the court were primarily centered on the interpretation of the referral to the MA and whether it was sufficiently particular to require a comprehensive assessment of the upper extremity. The court considered whether the referral was infelicitous and did not reflect the dispute between the parties. Additionally, the court examined the documentation provided to the MA and the Medical Assessment Certificate to ascertain whether the dispute was limited to the assessment of the shoulder.

The court held that the referral was indeed lacking in particularity and did not reflect the actual dispute between the parties, which was confined to the assessment of the shoulder. The court applied the principles from Skates v Hills Industries Ltd to conclude that the letter of claim limited the dispute to the shoulder. Furthermore, the documentation provided to the MA and the Medical Assessment Certificate confirmed that the issue at hand was the assessment of the shoulder. Consequently, the MA's failure to assess the peripheral nerve injury did not constitute an error as the referral did not require a comprehensive assessment of the upper extremity.

In conclusion, the court dismissed the appeal, finding that the referral was insufficiently particular to require a comprehensive assessment of the upper extremity. The court upheld the decision of the MA, and no further orders were made.

Orders