Bakiir v Serco Australia Pty Ltd
[2023] NSWPIC 428
•23 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Bakiir v Serco Australia Pty Ltd [2023] NSWPIC 428 |
| APPLICANT: | Danyal Bakir |
| RESPONDENT: | Serco Australia Pty Ltd |
| Member: | Jane Peacock |
| DATE OF DECISION: | 23 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Cervical spine injury; injury disputed; factual dispute as to whether injurious event took place at all; evidence weighed in the balance; Held – satisfied, on the balance of probabilities, that the cervical spine injured as alleged; lump sum claim and accordingly matter remitted to the President for referral to a Medical Assessor; award for the applicant. |
| determinations made: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of Injury: 27 August 2018; (b) Body systems/parts: cervical spine, and (c) Method of assessment: whole person impairment. 2. The documents to be forwarded to the Medical Assessor are as follows: (a) the Application to Resolve a Dispute and all documents attached; (b) late documents filed by the applicant with an Application to Admit Late Documents dated 25 July 2023, and (c) the Reply and all documents attached. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application), Mr Danyal Bakir (Mr Bakir) seeks lump sum compensation as a result of injury alleged to his cervical spine on 27 August 2018.
The respondent is Serco Australia Pty Ltd (Serco). Serco was insured by Employers Mutual Limited (EML) for the purposes of workers compensation.
Serco denied liability for the claim.
ISSUES IN DISPUTE
Mr Bakir alleges that he injured his cervical spine at work on 27 August 2018 when removing heavy filing cabinets from a work ute unassisted.
Serco denies that Mr Bakir injured himself as alleged. Essentially Serco denies the event took place at all.
This is a claim for lump sum compensation. In the event it is found that Mr Bakir was injured as alleged, it is agreed that the matter would need to be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the cervical spine as a result of injury on 27 August 2018.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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 have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were admitted into evidence before the Personal Injury Commission (Commission) by consent and considered in making this determination:
For Mr Bakir:
(a) Application and attached documents, and
(b) late documents filed with an Application to Admit Late Documents dated
25 July 2023.For Serco:
(a) Reply and attached documents.
Oral evidence
Mr Bakir did not seek leave to adduce oral evidence.
10.Counsel for Serco did not seek leave to cross-examine Mr Bakir. It is noted that at the initial conference it was foreshadowed by the respondent ‘s solicitor that their counsel may seek leave to cross examine Mr Bakir. Mr Bakir was available for cross-examination at the arbitration hearing. Counsel for the respondent did not make application for leave to cross-examine the applicant and the failure to do so was the subject of submissions by both parties.
FINDINGS AND REASONS
11.Mr Bakir alleges that he injured his cervical spine at work on 27 August 2018 when removing heavy filing cabinets from a work ute unassisted.
12.Serco denies that Mr Bakir injured himself as alleged. Essentially Serco denies the event took place at all.
13.In this matter, the crux of the dispute is whether Mr Bakir suffered injury to his cervical spine at work on 27 August 2018 when he says he was removing heavy filing cabinets from a work ute and he felt pain in his left shoulder. He continued to try to work until the symptoms worsened such that he reported the injury and left work at the respondent’s request to see a doctor.
14.Whilst Mr Bakir’s symptoms were initially felt in the left shoulder and then progressed to the left arm and hand, it is not in dispute that ultimately the medical diagnosis was of injury to the cervical spine.
15.There is a factual dispute between the parties, as articulated by counsel for the respondent, that the injury did not occur at all as alleged on the day alleged and/or that Mr Bakir has not, for reasons of various inconsistencies in the evidence, discharged the onus of proving that it did.
16.In the event that the factual dispute is resolved in the applicant’s favour, it is not disputed that it was in fact the cervical spine that was injured and that, as this is claim for lump sum compensation, the matter would be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the cervical spine resulting from injury on 27 August 2018.
17.I must decide on the balance of probabilities whether Mr Bakir suffered injury to his cervical spine in the course of or arising out of his employment with Serco on 27 August 2018.
18.Turning now to a careful examination of the evidence.
19.Mr Bakir gave evidence that he started work with Serco on a full time basis as a handyman in May 2017. He gave evidence about his duties as follows:
“My duties include absolutely everything, moving things, furniture removal, fixing doors, fixing gates and windows or anything that is broken.
I work out of a 10 x 6m shed at Villawood detention centre which is about 20 acres in size., I have a company vehicle I use on site only. …Everything I do is manual handling.”
20.Mr Bakir gave evidence in a statement dated 23 October 2018 given to an investigator commissioned by the insurer.
21.Mr Bakir gave evidence that he suffered an injury on 28 August 2018. Counsel for the respondent points out that in Mr Bakir’s later statement in 2021 he says the injury happened on 27 August 2018. He says this is an inconsistency in the evidence in the applicant’s case.
22.The applicant’s case is that the injury in fact occurred on 27 August 2018 in the morning. He was lifting heavy filing cabinets ff the ute by himself when he felt pain in his left shoulder.
23.He gave evidence that he thought the pain would settle and he tried to continue working.
24.However the pain did not settle and his symptoms worsened, progressing down the left arm to the hand, and ultimately he reported the matter to his supervisor Justine.
25.Mr Bakir gave evidence that he reported the injury to his supervisor Justine. She told him to go the doctor.
26.Consistent with the applicant’s evidence, the investigator records in his report that Justine told the investigator that he reported the injury to her and she told him to go to the doctor. There is however no statement from Justine.
27.Mr Bakir left work early to go to the doctor on Justine’s advice.
28.He gave evidence that he went to his general practitioner (GP) Dr Abrahams but he couldn’t get into see him straight away and saw him the next day 28 August 2018.
29.The clinical records of Dr Abrahams are in evidence and show that Mr Bakir saw him on
28 August 2018. The injury is recorded as being from moving heavy equipment a few days ago.30.I note counsel for the respondent submitted that the reference to the injury happening a few days ago is an inconsistency with the presentation of the applicant’s evidence that must be weighed in the balance.
31.It is well settled that caution must be had when weighing clinical notes recorded by busy doctors. All of the evidence must be weighed in the balance and a determination made on the balance of probabilities whether Mr Bakir suffered an injury at work as alleged on
27 August 2018 moving heavy filing cabinets.32.Counsel for Serco submitted that an injury occurring as alleged on the morning of
27 August 2018 is inconsistent with a notification of injury form that identifies the time of injury as 2pm 27 August 2018. I note that this document is the respondent’s own document and it is a form entitled “unplanned event report”.33.When regard is had to the notification of injury form or “unplanned event report”, it is apparent that this form was completed by another employee of the respondent and not Mr Bakir and that she is recording the time and date (2pm 27 August 2018) that Mr Bakir presented to the facility office to report his injury.
34.It would seem that far from being inconsistent with Mr Bakir’s evidence as contended for by counsel for the respondent, Mr Bakir’s evidence is lent support by this document which appears at page 192 of the Application. This is the respondent’s own document entitled “unplanned event report” and records that on 27 August 2018 Mr Bakir attended at the facility office at 2pm to notify of his injury and the event/injury description which is recorded by a Antonija Coyle as:
“while taking down the filing cabinet from the UTE felt pain in his left shoulder.
Danyal Bakir entered the facility office to report the pain in his left shoulder. Danyal was removing filing cabinets from the UTE- without any help and felt pain in his left shoulder.”
35.The event date and time is recorded as 27 August 2018 at 2pm. It seems clear when the document is read as a whole that the time of 2pm is the time that the injury was reported at the facility office and not the time the injury actually happened.
36.There would appear to be no inconsistency with the applicant’s evidence that the injurious event occurred earlier in the day and he tried to keep working.
37.Counsel for Serco submitted that another inconsistency with the applicant’s evidence is the claim form appearing at page 177 of the Application. The inconsistency with the applicant’s evidence is said to arise from the fact that EML was notified that the injury occurred on
28 August 2018 at 12pm. When regard is had to this evidence, it is notification of injury form to the insurer EML which was not completed by Mr Bakir. It is completed by the respondent on EMLs “initial notification of injury” form. It is a form completed by Joanne Moss for the respondent as the employer’s contact. It seems clear on the evidence that in fact Mr Bakir attended his GP Dr Abrahams on 28 August 2018 and was not at work on 28 August 2018.38.How the injury occurred is described in essentially the same terms as the respondent’s “unplanned form” that is referred to above, as follows:
“Officer entered the Facility Office to repport the pain in his left shoulder. They were removing filing cabinets from the UTE – without any help and felt pain in their left shoulder. We don’t seem to have a work order with this request.”
39.However, the date and time of injury is recorded as 12 noon on 28 August 2018. The completion of the form by the respondent is inconsistent with the respondent’s own document, the “unplanned event form”, that clearly contemporaneously records
27 August 2018 as the date of injury and 2pm as the time Mr Bakir attended the facility office to report the injury.40.Counsel for the respondent appears to be using an inconsistency within the respondent’ own documents which recorded the applicant’s report of the injury against the applicant when the applicant did not complete either the “unplanned event form” (contemporaneously recorded by another employee on 27 August 2018) or the EML injury notification form completed by another employee on 28 August 2018.
41.What the ”unplanned event form” supports is that Mr Bakir, consistent with his evidence, attended the office at 2pm on 27 August 2018 to report that he had injured himself getting heavy filing cabinets off the ute.
42.The event date time is recorded as 27 August 2018 at 2pm. It seems clear when the document is read as a whole that the time of 2pm is the time that the injury was recorded not the time the injury happened. There would appear to be no inconsistency with the applicant’s evidence that the event occurred earlier in the day and he tried to keep working.
43.The “unplanned event report” form does record that there does not seem to be a work order for the removal of the filing cabinets.
44.Counsel for the respondent pointed to the evidence of an earlier work order dated 10 August 2018 that refers to the removal of seven filing cabinets which was signed off (although not by Mr Bakir) as having been completed on a date much earlier than 27 August 2018.
45.Mr Bakir’s evidence is that the filing cabinets were on the ute from an earlier job and it was the morning of 27 August 2018 that he was getting them off the ute when he was injured.
46.When I weigh all of the evidence in the balance I do not regard the evidence of Mr Bakir that the filing cabinets were still on the ute from an earlier job as inconsistent with the work order of 10 August 2018 which refers to the fling cabinets to be removed but not where they were to be moved to.
47.The respondent relies on the evidence of Mr Drury in regard to the work order and other matters including observations from CCTV footage.
48.In fact counsel for the respondent submitted that the centrepiece of the respondent’s case was to be found at paragraph 20 (page 206 of the Reply) of Mr Drury’s statement as follows:
“There was training, equipment, work orders in place for the movement of equipment. There was no evidence to say the event occurred, there was no work order. There was no CCTV of it occurring. There was CCTV afterwards of him moving freely and completing work tasks.”
49.The respondent relies on Mr Drury’s evidence that there were no work orders for
27 August 2018 for moving filing cabinets, no CCTV footage of filing cabinets being removed and CCTV of him moving freely and completing work tasks.50.Counsel for the respondent submitted that this is where we “take issue” with the applicant in this case. This is the “centrepiece” of what this case is about.
51.The problem with the respondent’s reliance on Mr Drury’s evidence is that he gave a statement to the investigator in 2018 but Mr Drury never provided a signed statement and the investigator submitted the report specifically noting that they were still waiting on the signed statement.
52.Mr Drury’s statement is unsigned. The respondent had ample opportunity to obtain a signed statement from Mr Drury, namely since 2018. The respondent was given the opportunity to produce a signed statement at the arbitration hearing and they were unable to do so. It is matter for speculation why Mr Drury never signed the statement about the evidence he was prepared to give and this is why it is unsafe to rely on an unsigned statement. I note counsel for the applicant did not object to Mr Drury’s unsigned statement being admitted into evidence preferring to make submissions as to weight.
53.Put simply, Mr Drury’s unsigned statement can be accorded little to no weight in circumstances where there is no explanation for why it remains unsigned particularly given that the respondent places such heavy reliance on Mr Drury’s evidence.
54.In so far as the respondent’s case relies in part on observations of lay witnesses who have apparently viewed CCTV footage and given evidence that Mr Bakir was able to perform his duties without apparent injury, I note this can also be accorded little to no weight for the following reasons:
(a) the CCTV footage has never been produced despite a valid notice for its production, and
(b) the observations of a lay person, with no medical training, of CCTV footage as distinct from the observations of a medical expert as to whether the applicant was showing signs of injury is essentially meaningless and cannot assist me in the determination of this matter.
55.It is conceded by the respondent that the CCTV footage did not cover the area where
Mr Bakir said he was unloading the filing cabinets.56.The respondent also relies on a photograph of the empty tub tray of the ute driven by
Mr Bakir. Again this evidence of a non-time stamped photograph is of little to no probative value and in any event, is not inconsistent with the applicant’s evidence that he was injured unloading the ute and then went about doing other jobs thinking the pain would resolve.57.The event date time is recorded as 27 August 2018 at 2pm. It seems clear when the document is read as a whole that the time of 2pm is the time that the injury was recorded not the time the injury happened.
58.There would appear to be no inconsistency with the applicant’s evidence that the event occurred earlier in the day and he tried to keep working.
59.Some of the respondent witnesses who did provide signed statements have apparently viewed CCTV footage. The CCTV footage was the subject of a notice to produce but was not produced apparently on the basis of department of immigration protocols.
60.Witness testimony to having viewed surveillance footage and observed that Mr Bakir was apparently suffering effects of injury in 27 August 20178 when he was observed by lay witnesses watching surveillance footage and observed him to perform his duties without hindrance, is evidence that simply can be given no weight in circumstances where the CCTV footage has not been produced and nor has it been viewed by any medical expert for comment on whether Mr Bakir was showing signs of injury.
61.In any event Mr Bakir is found to be showing the effects of injury on 28 August 2018 when seen by his GP Dr Abraham, is referred for radiological investigation and then referred for ongoing specialist care by a neurosurgeon.
62.Counsel for the respondent did not make application for leave to cross-examine Mr Bakir. He submitted he didn’t need to because there is no procedural unfairness and no ambush because it is up front filing system and both parties are aware of the factual dispute.
63.Counsel for Mr Bakir submitted that if Mr Bakir’s credit is properly being placed in issue, he should have been cross-examined. He was available for cross-examination.
64.Whilst I take into some account the failure to cross-examine when credit is in issue, the failure to cross examine is not determinative of the matter. What I have done is have regard to the totality of the evidence before me and weigh all of the evidence carefully in the balance.
65.When I weigh all of ethe evidence in the balance, I am satisfied for the reasons expressed throughout that Mr Bakir evidence that he hurt himself on the morning of 27 August 2018 removing heavy filing cabinets from the ute should be accepted and the inconsistencies purported to be shown either are not inconsistent with the applicant’s evidence, or are inconsistencies of such little moment such as the GP referring to the injurious event of moving heavy equipment happening a few days ago when it was the day before or rely on evidence which has little to no probative value, that is the unsigned statement of Mr Drury, the witnesses account of CCTV footage not produced and a photograph, which is not time stamped, of an empty ute.
66.Having had regard to the totality of the evidence, when I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Mr Bakir injured himself as alleged on 27 August 2018. That is, I am satisfied, on the balance of probabilities, that Mr Bakir suffered an injury on 27 August 2018 to his cervical spine in the course of or arising out of his employment with the respondent. This was the only dispute that had to be determined by me and noting that it was determined in the applicant’s favour, it was agreed that the matter would be remitted for referral to a Medical Assessor.
67.In the event the finding on the factual dispute favoured Mr Bakir, it was not in dispute that the matter would be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, of the cervical spine as a result of injury on 27 August 2018. The documents to be forwarded to the Medical Assessor are those admitted into evidence in these proceedings. Accordingly my orders are as follows:
1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows:
(i)date of injury: 27 August 2018;
(ii)body systems/parts: cervical spine, and
(iii)method of assessment: whole person impairment.
2. The documents to be forwarded to the Medical Assessor are as follows:
(i)the Application and all documents attached;
(ii)late documents filed by the applicant with an Application to Admit Late Documents dated 25 July 2023, and
(iii)the Reply and all documents attached.
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