Makdessi v Millennium Security Specialist Services Pty Ltd
[2025] NSWPIC 403
•13 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Makdessi v Millennium Security Specialist Services Pty Ltd [2025] NSWPIC 403 |
| APPLICANT: | George Makdessi |
| RESPONDENT: | Millennium Security Specialist Services Pty Ltd |
| MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 13 August 2025 |
| CATCHWORDS: | WORKERS COMPENSATION -Workers Compensation Act 1987; entitlement to weekly compensation; whether applicant has no current capacity for any employment or an ability to work in suitable employment; sections 36, 37, 32A, and Schedule 3, clause 9 applied; Held – the applicant has no current capacity for any employment; the respondent is to pay the applicant weekly compensation pursuant to sections 36(1) and 37(1). |
| DETERMINATIONS MADE: | The Commission determines: 1. That the applicant has no current capacity for any employment from 18 February 2023 to date and continuing. 2. The respondent is to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 based on the agreed pre-injury average weekly earnings (PIAWE) rate of $1,534.42, as indexed, from 18 February 2023 to date and continuing. 3. The Application to Resolve a Dispute is amended to add a claim for incurred s 60 expenses in the sum of $1,660 in relation to treatment provided by WiseMind Medical Practice and to add a claim for a “general order” for treatment expenses. 4. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant for his incurred psychological treatment expenses from WiseMind Medical Practice set out in the invoice dated 11 July 2025 at the applicable SIRA gazetted rates. 5. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant’s treatments expenses on production of accounts, receipts and or Medicare Notice of Charge. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
George Makdessi, the applicant, was employed by the respondent, Millennium Security Service Pty Limited, as a security guard at the Stockland Shopping Centre, Merrylands. He sustained a psychological injury on 18 February 2023. On 20 January 2025 Acting Deputy President Parker SC revoked the decision of a Member of the Personal Injury Commission (Commission) and determined that the respondent’s defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act) fails and he remitted the matter for determination by an alternative Member of the Commission. The parties agree that the only remaining issue in dispute requiring determination by me is the applicant’s entitlement to weekly compensation, specifically the period for which the applicant was incapacitated for employment as a result of the injury. The claim for weekly compensation is for the period 18 February 2023 to date and continuing pursuant to ss 36 and 37 of the 1987 Act. The pre-injury average weekly earnings (PIAWE) figure is agreed at $1,534.42.
The Application to Resolve a Dispute (ARD) was amended by consent to claim treatment expenses pursuant to s 60 of the 1987 Act in the amount of $1,660 and an ongoing general order.
This matter proceeded before me in arbitration hearing on 24 July 2025 in person. Mr Jarryd Malouf, counsel, instructed by Mr Malai, solicitor, appeared on behalf of Mr Makdessi, who was present. Mr Fraser Doak, counsel, instructed by Mr Ware, solicitor, and Ms Padas from the insurer represented the respondent.
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 in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents dated 27 March 2025 filed by the applicant;
(d) Application to Lodge Additional Documents dated 18 July 2025 filed by the respondent, and
(e) Application to Lodge Additional Documents dated 24 July 2025 (filed following the arbitration hearing pursuant to my direction and by consent noting hard copies of the documents were shown to me at the arbitration hearing).
Oral evidence
There was no oral evidence. Both counsel made oral submissions which have been sound recorded, and a copy is available on request to the parties. A written transcript (T) has also been made from the recording. As the submissions have been recorded, I will not reproduce them verbatim in these reasons, but I will refer to the main thrust of each party’s arguments.
FINDINGS AND REASONS
The applicant submits that the weight of the medical evidence supports a finding that he has no current work capacity. Ironically, the applicant relies on the respondent’s independent medical assessor (IME), Dr Young, together with the treating medical evidence. Equally ironically, the respondent relies on the opinion of the applicant’s IME, Dr Anand, who refers to the applicant having some capacity for employment. The applicant submits that
Dr Anand’s opinion needs to be understood in the context that he qualifies his opinion by setting out a number of restrictions on the potential employment of the applicant. The respondent also made submissions about the difference in the histories in the recent reports of Dr Anand and Dr Young and their accuracy taking into account the contents of various entries in the applicant’s bank records.Below is a summary of the evidence about the applicant’s employment capacity:
Applicant’s statements
(a) In the applicant’s second statement dated 12 September 2023 he describes his psychological symptoms, such as in [10], [11], [15], [16], and [17].[1]
[1] ARD p 8.
(b) At [26] the applicant states that he has not been able to return to work since the incident and at [27] that the idea of returning to work is very overwhelming and stressful. He also says he feels extremely paranoid about his workplace as he thinks they targeted him. He continues to relate that when he goes to the shops, he feels paranoid about the public because he has had about seven instances where members of the public have approached him to ask him if he was the security guard involved in the robbery.
(c) At [30] the applicant states that most days he does not have enough energy or motivation to get out of bed and shower.
(d) The applicant had also given a statement to the insurer’s investigator which is dated 6 June 2023[2] in which he refers at [27] that the incident stressed him out, he has mood swings, anxiety and he has difficulty sleeping despite taking over the counter sleeping tablets.
[2] Reply p 26.
(e) The applicant wrote to the employer to respond to the formal allegations notice. The letter is undated.[3] He refers to the anxiety, stress, poor sleep and loss of appetite he has been experiencing. He refers to an email of 20 February at 5.27pm and states he was rushed to the doctor by his father as he had fainted due to high blood pressure and says the situation has left him in a dark place.
[3] Reply p 60.
(f) A supplementary statement of the applicant dated 21 March 2025[4] has been filed to provide evidence of the applicant’s psychological symptoms since the arbitration hearing in February 2024. He states he has not been able to resume working. He refers to a lack of motivation, energy, cognition, inability to tolerate stress and loss of self-esteem and self-confidence. He says he has tried to continue to exercise to help himself, but he is struggling without proper medical treatment as his claim has been denied. At [18] he says he continues to struggle with passive suicide ideation. At [22] he lists further psychological symptoms.
[4] ALAD 27 March 2025 p 2.
Dr Wafik Latif
(a) Dr Latif is the applicant’s general practitioner who provided a medical certificate on 5 October 2023 that he was suffering from a chronic adjustment disorder in relation to the work-related incident. He states that the applicant received counselling and commenced on anxiolytic medication and referred to psychological counselling under a mental health care plan.[5] He describes symptoms such as stress, anxiety, depressed mood and insomnia.
[5] ARD p 43.
(b) Dr Latif’s clinical notes have an entry dated 20 February 2023 referring to the incident at work and that he was stressed, anxious and not sleeping. The doctor prescribed Diazepam.[6] A similar entry is recorded on 6 March 2023 with a reference to an NSW Workcover certificate being issued.[7] The certificate states that the applicant has no current work capacity for any employment.[8] On 22 June 2023 the applicant was prescribed Circadin, and a Centrelink medical certificate was issued.[9] On 15 August 2023 Dr Singanamala, at the same practice, completed a Mental Health Care Plan.[10] Centrelink medical certificates by
Dr Singanamala dated 16 April 2025 and 15 July 2025 certify the applicant is incapacitated for work.[11][6] ARD p 73.
[7] ARD p 74.
[8] ARD p 114.
[9] ARD p 75.
[10] ARD p 75.
[11] ALAD dated 24 July 2025 p 5 and 7.
(c) Dr Latif has provided a medical report dated 13 March 2025.[12] He sets out the applicant’s symptoms and expresses the opinion that he is unfit for pre-injury duties or any suitable work. He adds that he will need a graded return to work plan subject to addressing his work-related psychological issues. He also sets out the treatment regime he recommends over the next 6 to 12 months for the applicant including CBT.
[12] ALAD 27 March 2025 p 25.
Mustafa Alameddine
(a) Mr Alameddine is the applicant’s treating psychologist from the WiseMind Medical Practice. He has provided reports dated 26 October 2023[13] and 4 March 2025.[14] He sets out the applicant’s symptoms and diagnoses these to be consistent with an adjustment disorder with mixed anxiety and depressed mood. He recommended that the applicant receive cognitive behaviour therapy to address his psychological symptoms and to return to work. He states that the applicant is currently unfit to return to work and when he is deemed fit to work, he will need to consider a graded return to work.
[13] ARD p 39.
[14] ALAD 27 March 2025 p 17.
(b) In his 2025 report Mr Alameddine sets out his current observation of the applicant and his presenting symptoms.[15] He advises that he has provided eight psychology sessions from 2023 to 2024, advising that his financial situation prevented the applicant from seeking more treatment. Mr Alameddine opines that due to the applicant’s ongoing symptoms he continues to have limited capacity for pre-injury or any suitable work due to his work-related psychological injury. He explains that the applicant’s persistent anxiety, low mood, agitation and impaired concentration significantly impact his ability to function in a work environment.
Mr Alameddine also refers to emotional distress, ruminating thoughts, sleep disturbances and social withdrawal also hinder the applicant’s ability to maintain consistent employment. He adds that his heightened stress response and passive suicidal ideation indicate that he is not yet psychologically stable enough to return to work.[15] ALAD 27 March 2025 p 18.
(c) Mr Alameddine sets out his recommendations for ongoing treatment for at least 6 to 12 months. He concludes by stating that the applicant has no current capacity for pre-injury duties or any suitable employment.
Dr Young
(a) Dr Young, psychiatrist, issued a medico-legal report for the insurer dated
11 August 2023.[16] The doctor sets out the applicant’s symptoms including anxiety, increased heart rate, palpitations, tremor, breathing difficulties, difficult to relax and overreactive to situations and being irritable. The doctor adds that the applicant is not able to envisage returning to work. Despite the doctor believing there to be significant symptom over reporting, he diagnosed an adjustment disorder. Dr Young opines that the applicant is not fit to return to his pre-injury role. He states in time he should be able to return to work with a different employer, but this would require continuing appropriate psychological treatment. He recommended CBT psychological treatment, workplace mediation and resolution of industrial issues to enable him to regain functional work capacity.[16] Reply p 106.
(b) In a further report dated 2 July 2025,[17] after a re-examination of the applicant,
Dr Young found that the applicant experiences ongoing anxiety, depressive and anger symptoms. He describes his psychological treatment as limited and says he requires further detailed CBT based therapy to address dysfunctional thoughts and behaviours. Dr Young also recommended he be seen by a psychiatrist in relation to his medication. Dr Young says the prognosis is guarded but with proper treatment there can be expected a substantial improvement in the next 12 months. Dr Young opines that the applicant is currently incapacitated for work and is not fit to return to pre-injury duties or to duties with an alternate employer due to the severity of his current symptoms. He confirms that he has had no capacity for employment since his prior assessment.[17] Respondent’s ALAD p 223.
Dr Anand
(a) Dr Anand, psychiatrist, prepared medico-legal reports for the applicant dated
11 September 2023[18] and 24 February 2025.[19] He diagnosed that the applicant suffered from an adjustment disorder with mixed anxiety and depressed mood predominantly caused by the disciplinary action instigated against him. The doctor describes the applicant’s continuing symptoms such as low energy levels, poor concentration, anxiety, depressed mood, poor sleep, anger issues, irritability, social withdrawal, disordered appetite and paranoia.[18] ARD p 28.
[19] ALAD 27 March 2025 p 7.
(b) Dr Anand opines that the applicant has capacity to resume his pre-accident occupation with an alternate employer, but he lists a number of restrictions such as:
(i)gradual return to work, starting three days per week, and increase by four hours each week until he returns to full time hours;
(ii)meetings and assignments to be provided regularly;
(iii)avenues to allow him to raise concerns and report issues;
(iv)access to employee assistance program or counsellors;
(v)placement in a role that utilises his skills and provides him with meaningful work and realistic workload and performance expectations, and
(vi)provision of psychologically safe workplace including a supportive and encouraging manager that listens and acts on his concerns and provides positive and constructive feedback.
(c) In his first report Dr Anand also recommended six sessions with a psychologist.
(d) In his 2025 report Dr Anand states that the applicant is not currently fit to resume normal duties in his pre-injury occupation. The doctor estimated this could occur in 6 to 12 months’ time. However, the doctor states that the applicant has the partial capacity for around 20 hours per week in less stressful roles in a supportive environment. The doctor places restrictions on such work as listed above in b (i), (iii), (iv) and (v). Dr Anand sets out a treatment regime including CBT and referral to a psychiatrist.
The claim for weekly compensation is brought from 18 February 2023 to date and continuing pursuant to ss 36 and 37 of the 1987 Act. Both of those sections contain various formulas to apply depending on whether an injured worker has “no current work capacity” or “current work capacity”. These phrases are defined in schedule 3, cl 9 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”“Suitable employment” is defined in s 32A of the 1987 Act as follows:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence”
It is common ground that the applicant cannot return to his pre-injury employment. The issue is whether the applicant in the period claimed to date and continuing has a present inability to work in suitable employment.
Section 32A (a) (i) requires that the details provided in the medical information be considered including but not limited to any certificate of capacity.
The applicant submitted that his treating general practitioner, Dr Latif and his colleague
Dr Singanamala and psychologist, Mr Alameddine, have seen him on many occasions and their opinion is that the applicant has no current capacity for employment. I accept the tenor of this submission that these practitioners are in an advantageous position to assess the applicant’s capacity for employment due to the frequency of their consultations with him over many years. The general practitioners when issuing medical certificates, both SIRA Certificates of Capacity and those to Centrelink, have certified the applicant as having no current capacity for employment.The applicant’s counsel also submitted that the general practitioner and treating psychologist both recommended further treatment for the applicant. It was submitted that he has not had full treatment because the insurer had declined liability, and the applicant could not afford more sessions of psychological treatment. Dr Young does support the need for more treatment particularly CBT and with a psychiatrist and the applicant relies upon his opinion that the applicant lacks current capacity for any employment. Dr Anand also recommends further treatment for the applicant. I accept that to date the applicant has not had optimal treatment.
The reason why the applicant was critical about acceptance of Dr Anand’s opinion is because he qualifies his view that the applicant has some work capacity by the restrictions he places upon such employment. I have listed these restrictions above. It was submitted that these restrictions take the question into a “theoretical realm” and should not satisfy the Commission that the applicant has a real capacity for work. The applicant relies upon the treating opinions about capacity for work together with the opinion of Dr Young, that the applicant has no current capacity for any employment.
The respondent categorised the factors listed by Dr Anand not as restrictions. It submitted that there is no suggestion that in a modern workplace these factors would be absent. For instance, it argues that access to employee assistance program (EAP) or counsellors are commonplace in modern industrial practice. However, such an argument, I find, glosses over the fact that the applicant even on Dr Anand’s view still suffers from a significant psychological condition. In his most recent report Dr Anand finds the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood. He advises “Mr Makdessi has continued to struggle to manage a mix of anxiety and depressive symptoms despite having ceased work”. Even though Dr Anand recommends a workplace have access to EAP or counsellors, he recommends a raft of treatment be provided by his general practitioner, psychologist and a psychiatrist. He refers to a combination of psychotherapy and pharmacotherapy and CBT “in conjunction with supportive counselling, coping skills training, behavioural activation and mindfulness.” He says the applicant needs multiple fortnightly psychological treatment and bimonthly visits to a psychiatrist. Clearly Dr Anand does not suggest employment with available EAP or counselling could provide such treatment.
I find a flaw in Dr Anand’s opinion when he states the applicant has the partial capacity to work 20 hours in less stressful roles in a supportive environment because he does not give any assistance as to the nature of such roles. Given the extent of the treatment recommended by Dr Anand, which is also recommended by Dr Young, the general practitioner and psychologist I consider the preferable view is that the applicant should undergo such treatment before returning to work. Hopefully with such treatment he can obtain the skills for a successful return to some work.
The respondent, while relying on the opinion of Dr Anand, has not prepared as part of the return-to-work planning process any plan, including an injury management plan or provided any occupational rehabilitation services. These are also factors to be taken into account under s 32A(a)(iii) and (iv).
The respondent relied on the history to Dr Anand that in the month prior to his assessment in 2025 he went to a wedding and has been attending a gym a couple of times a week and can drive locally, which counsel submits is supported by his bank records before and after
Dr Anand’s assessment. Counsel also submitted that “the applicant is fairly socially active, at least as far as purchasing from shops…”[20][20] T24.28.
The respondent referred to various entries in the bank statements, which I will not list here as they are recorded in the transcript. The applicant submitted that if the submission was intended to be a reflection on the applicant’s credit it is not persuasive as the applicant has never said that he cannot drive his car or purchase takeaway food. It was submitted that the applicant has mentioned to the doctors that he attends the gym to help himself because he was not getting enough treatment. The applicant’s counsel submitted that none of the entries in the bank statements assist in determining if the applicant has any current capacity for real work. I accept these submissions by the applicant because I find there is a significant difference between attendances to buy takeaway food and the ability to obtain and maintain employment. Different skills are involved, such as concentration and motivation which are necessary to participate in employment but not in transacting the purchases shown in the bank statements.
The respondent’s counsel also submitted that less weight should be given to Mr Alameddine’s opinion than that of Dr Anand because Mr Alameddine, when he stated that the applicant was not fit for suitable employment, did not explain what that employment was. However, as I have observed Dr Anand does not explain what less stressful work encompasses in terms of an occupation. The respondent’s counsel submitted that Mr Alameddine had a history that is “more extreme” in contrast to that of Dr Anand. I do not accept this submission. The fact that the applicant may have attended a wedding and goes to the shops from time to time does not, in my view, render the history of Mr Alameddine unreliable. As noted, he has treated the applicant in at least eight sessions, and I consider he was well placed to assess the applicant’s social functioning. The respondent challenged the opinion of Dr Young in the same manner and again I do not accept that submission. I find that Dr Young has provided a careful, well-reasoned opinion relating to the applicant’s psychological injury and work capacity. It accords with the opinions of the treating practitioners.
The respondent also challenged the understanding of Dr Young that the applicant had disengaged from most social and recreational activities. I find the fact that Dr Young does not mention attendance at a wedding to be immaterial because he did state in response to question (f) that the applicant occasionally participates in family activities, and he says he attends the gym once or twice per week. The point Dr Young was making is that he predominantly spends time in his room alone. I am not satisfied that having access to the applicant’s bank statements would have altered this opinion. Dr Young also found the applicant exhibited no indication of exaggeration and he engaged in a forthright discussion regarding his symptoms including open challenge. Furthermore, Dr Young was direct and forthright in expressing his opinion that the applicant has no capacity to work full time or at all and that he requires treatment to control his symptoms.
Section 32A also requires me to take into account the applicant’s age, education and work experience. He is now aged 38. He left school having completed year 12. Prior to working as a security guard for the respondent he was a carpenter working as a sole trader. He states he sold his tools and closed his business as there was not enough work. Dr Anand recorded in his first report that during COVID-19 he lost his customers. He informed Dr Young he ceased his carpentry work after fracturing his hand and ankle. He commenced work with the respondent in November or December 2022, or according to Dr Young’s history in September 2022.
The applicant is comparatively young and hopefully with treatment he can return to some suitable employment, however based on the weight of the evidence from his treating practitioners and the consistency with the assessment of Dr Young, I find their opinions should be preferred to that of Dr Anand. Therefore, I find from 18 February 2023 to date and continuing the applicant has no current capacity for employment in his pre-injury duties or in suitable employment. I find the applicant is entitled to an award of weekly compensation under ss 36(1) and 37(1) of the 1987 Act based upon the agreed PIAWE of $1,534.52, as indexed from time to time.
The respondent advised it would not make submissions in relation to the s 60 expenses. I make an award in favour of the applicant pursuant to s 60 of the 1987 Act for the eight psychological sessions with Mr Alameddine which the applicant has paid in the sum of $1,660 at the applicable SIRA gazetted rates. The applicant also sought a “general order” which I have made in the Certificate of Determination.
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