Zupancic v Sydney Group Formwork Pty Ltd
[2025] NSWPICMP 111
•21 February 2025
| 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, 4th edition
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 of 2015 and Mr Zupancic, due to some visa problems, ultimately left the country. The assessment was done by teleconference with
Mr Zupancic who is in Germany.The Medical Assessor assessed 5% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination, as no error was found in the MAC.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appeal was based on the alleged failure by the Medical Assessor to diagnose or assess the right ulnar nerve palsy.
The MAC
The Medical Assessor took a history that in early July 2014, Mr Zupancic had an increase in symptoms:[2]
“…he had increasing pain in his shoulder and numbness in his ring and little fingers subsequent to a physiotherapy session. He went on to have further imaging of his shoulder, nerve conduction study and imaging of the neck. Dr Petchell in a clinical letter dated 16/09/2014 concludes ‘the shoulder scan demonstrates evidence of a new full thickness tear of the supraspinatus’. The EMG apparently demonstrated a right ulnar nerve palsy but also evidence of bilateral carpel tunnel syndrome.”
[2] Appeal papers page 26.
In his findings on physical examination, the Medical Assessor noted:[3]
“The upper limb appeared distally neurovascularly intact. There was no obvious asymmetry of movement in the elbows, wrists and fingers. There was no evidence of wasting or clawing of the fingers consistent with significant ulnar nerve pathology.”
[3] Appeal papers page 27.
The Medical Assessor did not otherwise refer to any involvement of the central or peripheral nervous system. As to the 5% WPI assessed, the Medical Assessor said[4]:
“Restricted range of motion in the shoulder is assessed according to AMA-5, page 476
Figure 16-40, page 477 Figure 16-43 and page 479 Figure 16-46. On the basis of a differential restriction in range of motion, 8% upper extremity impairment was assessed. According to AMA-5, page 439, Table 16-3 this converts to 5% whole person impairment.”
[4] Appeal papers page 28.
In commenting on the other medical opinions before him at [10c] of the MAC, the Medical Assessor referred to the range of motion measurements taken by Dr Mark Ridhalgh who had been retained as a medico-legal specialist for Mr Zupancic, Dr Robert Breit, retained by the respondent, and Associate Professor Brett Courtenay, who reported to the respondent’s solicitor.
SUBMISSIONS
The appellant
As noted above the appellant's ground of appeal was the apparent failure by the Medical assessor to diagnose the right ulnar nerve injury, or to assess it.
The appellant referred to different parts of the material before the Medical Assessor that pointed to involvement of the peripheral nervous system. In particular Mr Zupancic referred to findings by his treating Orthopaedic Surgeon, Dr Jeffrey Petchell of neurological symptoms in 2014, 2015 and 2017.
Mr Zupancic also referred to the reports of Dr Ridhalgh, Dr Smithers, and the English translations of reports from Dr Kurnik, Dr Gregor, Helena Jamnik and Fursova Tatiana.
He also referred to his own statement of 31 October 2022 where he stated:[5]
“I continued to experience pain and stiffness in my right shoulder. I have weakness in the right shoulder and arm as well as tingling and paralysis in my right arm.”
[5] Appeal papers page 42.
We were referred to the relevant guidelines for the assessment of peripheral nerve disorders and Mr Zupancic submitted that the failure by the Medical Assessor to diagnose the right ulnar nerve injury was a demonstrable error, as was his failure to assess any permanent impairment caused thereby.
Respondent
The respondent referred to the AMA guidelines, submitting that in order to apply them, a peripheral nerve injury had to be established. The Medical Assessor had not identified any such injury where he had conducted an appropriate physical examination and taken an adequate history, the respondent said, noting that the claim was based on the report of Dr Ridalgh.
We were referred to the Medical Assessor's comment that there was no significant ulnar nerve pathology, and the respondent relied on the summary of injuries and diagnoses by the medical assessor.
We were referred to Chapter 1.6 of the Guides that provide that Medical Assessors are required to exercise their clinical judgement in determining a diagnosis. It was submitted that after exercising that judgment the Medical Assessor did not diagnose any peripheral nerve injury.
Further, the respondent noted that the assessments by Dr Ridhalgh and Associate Professor Courtenay were based solely on range of motion and the Medical Assessor’s assessment was consistent with the range of motion methodology, “without also assessing impairment of a right ulnar nerve injury.”
Further, it was submitted that the present symptoms recorded by the Medical Assessor did not identify any involvement of the ulnar nerve as had other material relied on.
Discussion
There are some preliminary issues raised by this matter. The sole basis of the appeal is that the Medical Assessor erred by not assessing the right ulnar nerve injury. The first issue is whether he was obliged to, which the appellant appeared to assume.
In Skates v Hills Industries Ltd[6] Leeming JA (as his Honour then was) criticised the preparation of a deficient referral, his Honour then said at [49]:
“…the referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. …”
[6] [2021] NSWCA 142.
Criticism of the referral in this case is appropriate too, with respect. It sought an assessment of “the right upper extremity” without identifying which system or anatomical part of the right upper extremity was to be assessed. This lack of particularity has led to this dispute and necessitated an examination of the documents attached to the referral to establish the parameters of the medical dispute.
Amongst that material was the appellant’s letter of claim, dated 18 April 2023.[7] It stated relevantly that on 10 October 2013 Mr Zupancic suffered an injury, described as:
“Type of Injury: Personal Injury
Injury Description: Right shoulder”
[7] Appeal papers page 48.
The letter also stated:
“We enclose by way of service the following: -
1. Permanent Impairment Claim Form.
2. Medical report of Dr Ridhalgh dated 14 March 2023.
In accordance with the enclosed medical assessments, we are instructed to claim the following:
1. $15,400 in respect of 11% whole person impairment pursuant to s.66 of the Workers Compensation Act 1987 (NSW).”
The respondent was correct in its submission that the Medical Assessor accepted that he was dealing with a “muscle” injury, and not, relevantly, a peripheral nerve injury.
Dr Ridhalgh’s report of 14 March 2023 assessed 11% WPI, which was based solely on the range of motion methodology for assessment of the shoulder. Although Dr Ridhalgh identified an ulna nerve entrapment syndrome at the elbow as a diagnosis, he did not assess it.[8][8] Appeal papers page 68.
There is no evidence of any agreement between the parties that the claim was amended to involve the injury to either the right ulnar nerve, or the elbow.
The claim on 18 April 2023 was made “in accordance with the enclosed medical reports,” but only one report was identified – that of Dr Ridhalgh on 14 March 2023. That report assessed the shoulder impairment based on restricted range of motion methodology. In response
Dr Breit assessed only the shoulder on the range of motion methodology, as did Associate Professor Courtenay.Moreover, the s 78 Notice of 27 July 2023 disputed liability for injury to the right shoulder.[9]
[9] Appeal papers page 58.
It follows that the agreement crystalised by the above documents was that the matter was to be referred for an assessment of impairment to the right upper extremity (shoulder). Accordingly, notwithstanding the thoroughness of Mr Zupancic’s evidence as to the presence of the ulnar nerve injury, it had never been claimed, and the Medical Assessor, as indeed did Dr Ridhalgh, simply noted the elbow condition, without comment.
Accordingly, the appeal fails at the outset. The Medical Assessor made no error in failing to assess the ulnar nerve injury as he had not been asked to. The MAC will accordingly be confirmed.
If that view is incorrect, the Panel in any event made an assessment of the ulnar nerve involvement. The Panel notes the appellant is resident in his native Slovenia and is unavailable for face-to-face physical examination which would normally be required for WPI assessment of a peripheral nerve injury. The Panel accordingly decided to conduct an assessment 'on the papers'.
Drs Petchell (report of 1/05/2017) Smithers (report of 31/08/2017) and Kurnik (report of 14/03/2018) all refer to altered sensation in the right ring and little fingers, but no consistent finding of motor weakness in the distribution of the ulnar nerve, and an EMG study referred to in Dr Petchell's report dated 16/09/2014 demonstrated a right ulnar nerve palsy with no motor palsy evident.
The Panel would have assessed grade 4 sensory deficit of the ulnar nerve above mid-forearm. It was not grade 3 because no examiner referred to "abnormal sensation or pain interfering with some activities".
The Panel would have assessed 25% of the maximum sensory deficit of 7% UEI (upper extremity impairment), i.e., 25% of 7% which equals 1.75%, rounded to 2% UEI.
This figure would be combined with 8% UEI from loss of range of motion of the right shoulder, as assessed by the Medical Assessor, which would have given 10% UEI, equivalent to 6% WPI.
However, for the above reasons, the Appeal Panel has determined that the MAC issued on
1 October 2024 should be confirmed.
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