Massih v Serco Australia Pty Ltd
[2021] NSWPIC 224
•5 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Massih v Serco Australia Pty Ltd [2021] NSWPIC 224 |
| APPLICANT: | Bernadette Massih |
| RESPONDENT: | Serco Australia Pty Ltd |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Determination of capacity and weekly compensation where credit of the worker in dispute; where worker allegedly sighted by employee of the respondent wearing uniform of a security company at a pedestrian crossing at Bankstown Central Shopping Centre; where no documentary or other evidence that worker had performed work; where worker denied wearing a uniform or working in her sworn evidence; Goodrich Aerospace Pty Limited v Arsic considered; Held- in the absence of other compelling evidence of employment, sworn evidence of the worker and evidence of her mother preferred to the observations of the employer’s witness; award for worker for weekly compensation pursuant to section 37. |
| DETERMINATIONS MADE: | 1. Respondent to pay the applicant the sum of $48,670 pursuant to section 66 of the Workers Compensation Act 1987 in respect of 19% whole person impairment for a psychological injury deemed to have occurred on 29 August 2019. 2. Respondent to pay the applicant weekly compensation pursuant to section 37 in the sum of $1056 from 13 October 2020 until same is suspended or terminated in accordance with the Workers Compensation Act 1987. 3. Respondent to pay applicant’s medical and hospital expenses pursuant to section 60. 4. Liberty to apply in relation to the above calculations. |
STATEMENT OF REASONS
INTRODUCTION
This matter has an unfortunate history. On 6 January 2021, I determined that Bernadette Massih (the applicant) suffered psychological injury arising out of and in the course of her employment with Serco Australia Pty Ltd (the respondent) prior to 29 August 2019. These reasons should be read in conjunction with my earlier reasons.
On 6 January 2021, I ordered that the issue of permanent impairment as a result of psychological injury be referred to an Approved Medical Specialist (AMS). The balance of the case being a claim for weekly payments and medical expenses was stood over to be dealt with after receipt of the Medical Assessment Certificate (MAC).
On 26 March 2021, Dr Morris, the AMS, certified that the applicant suffered 19% whole person impairment in respect of her psychological injury. He assessed her as having a severe impairment in the area of employability. At a telephone conference on 29 April 2021, I listed the matter for a further arbitration hearing on 11 June 2021 to deal with outstanding issues.
PROCEDURE BEFORE THE COMMISSION
When the matter came on for conciliation and arbitration on 11 June 2021, Mr Tanner of counsel represented the applicant and Mr Beran of counsel represented the respondent. The matter was conducted audio visually. I was informed by counsel that the issue of weekly payments could not be resolved between the parties. Once again, I am satisfied that the parties had ample opportunity to settle the matter but were unable to agree on mutually satisfactory terms.
EVIDENCE
The documents before the Commission are those listed in paragraph 16 of the Certificate of Determination of 6 January 2021. In addition, the following documents were admitted:
(a) the MAC dated 26 March 2021;
(b) an Application to Admit Late Documents dated 12 May 2021 lodged by the applicant;
(c) wages schedule lodged by the applicant on 12 May 2021, and
(d) an Application to Admit Late Documents which was lodged by the respondent on 18 June 2021 in accordance with a direction which I made at the telephone conference.
Mr Beran objected to the reports of the applicant’s treating general practitioner dated 2 May 2021, her treating psychiatrist Dr Khan dated 30 April 2021 and the psychiatrist qualified by her solicitor, Dr Rastogi dated 7 May 2021. These reports had been obtained by the applicant’s solicitor and served on the respondent after the receipt of the MAC. For reasons which I gave at the arbitration hearing, I received these documents in evidence. In my opinion, the issue of incapacity turned on a consideration of the applicant’s credit and not on an analysis of the post-medical assessment opinions. If one accepts the applicant, it must follow that she is significantly incapacitated. If one does not she has not proven that she is incapacitated for work. Much of the medical evidence in respect of this issue is canvassed in my previous decision. I will return briefly to the admission of these documents below.
ISSUES
The respondent had paid the applicant weekly compensation for a period of more than 12 months after her cessation of employment. Those payments ceased on 12 October 2020, after the first telephone conference in this matter. By its s 78 Notice, the respondent asserted that the applicant was malingering. She had not suffered a psychological injury or, if she did, she was not incapacitated for work. The allegation of malingering was based upon the opinion of Dr Phillips, a psychologist dated 5 June 2020.
At the first hearing, it emerged that the respondent was in possession of an email dated 22 January 2020 from an employee of the respondent, Bill Houteas, which stated that he had observed the applicant conducting duties as a security officer at Bankstown Central Shopping Centre on the morning of 20 January 2020.
It is the respondent’s contention that if the applicant was working on that day as a security officer her credibility is undermined and her evidence as to incapacity for work cannot be accepted by the Commission. In those circumstances, she is not entitled to an award of weekly compensation.
Before considering the submissions of the parties, I will briefly summarise the written and oral lay evidence in respect of the applicant’s alleged work at the Bankstown Central Shopping Centre on 20 January 2020. What follows is not intended to be a comprehensive survey of the evidence.
Bill Houteas
In addition to his email of 20 January 2020, Bill Houteas provided a signed statement dated 17 February 2021. By that statement, Mr Houteas states that he has been employed by the respondent at the Villawood Immigration Centre since 2017. He works both as a detainee service officer and as a trainer, conducting both training for students and ongoing security training for existing employees.
Mr Houteas says that he had:
“known Bernadette Massih since she underwent her ITC training in February or March 2019. I was with that training group for about 2 or 3 weeks although I was not in charge of the training.”
Mr Houteas recounts that he occasionally worked with the applicant after that date and says that he recalls the last shift they worked together was a charter operation “on or about 18 August 2020”. He subsequently became aware that the applicant had ceased work and was on workers compensation.
Mr Houteas recounts that on 20 January 2020 while standing at the pedestrian crossing between the “main building of Bankstown Central Shopping Centre and the Woolworths Big W section” he again saw the applicant. He continues:
“I had come out of the Woolworths/Big W building and waiting to cross the road to return to the main building. I was at the front at the pedestrian crossing. I saw Bernadette cross the street, waiting to cross over to the side I was on.
I have no doubt that it was Bernadette Massih. Bernadette was wearing an Egroup uniform consisting of a white top and suit pants. She was wearing a yellow high vis vest. This is the regular uniform which security at Bankstown Central Shopping Centre wear at the time.
Bernadette was by herself. When the crossing light turned green, we each started to cross. Bernadette then saw me when she was about a metre away to my right from me and quickly dropped her head to avoid me. I said ‘hello’. Bernadette acknowledged me, shook her head forward and said ‘how are you going?’. I replied ‘ok’.”
The witness recounts that he subsequently asked the respondent’s work health capabilities officer if the applicant was still on “workers comp”. When he was told that she was he related seeing her at the Bankstown Central Shopping Centre. He records that Ms Lam replied that ‘other staff had seen her there as well’.
THE APPLICANT
By her supplementary statement bearing date 5 May 2021, the applicant acknowledges that she attended the Bankstown Central Shopping Centre with her mother. She says that she does not own an Egroup uniform and did not wear one. She continues:
“I was not employed nor was I undertaking any work as [sic] at that time. Such suggestion is false and misleading. I have been unemployed since late August 2019 to date as certified by my doctors to date. I have regularly sought treatment from my doctors throughout the entirety of the claim.”
The applicant asserts that Mr Houteas had “a number of issues with me during the training process”. She states that he was dismissive of her during her training. She alleges that his statement is another “targeted attack” on her by her employer.
She says that at the time of her encounter with Mr Houteas at Bankstown Central Shopping Centre she was “reliant on medication and would definitely not have any capacity for any type of employment as confirmed by all my doctors”.
Georgette Massih
Georgette Massih is the applicant’s mother. She states that she can “confirm with 100% certainty” that the applicant had not work since August 2019. She continues:
“On the date suggested, I attended with my daughter to Bankstown Central Shopping Centre. Bankstown Central Shopping Centre is our local shopping centre and it would have been a situation whereby I accompanied my daughter to the shopping centre to attempt to get her out of the house. Furthermore, I would have purchased items for my family on that day.”
APPLICANT’S ORAL EVIDENCE
By her evidence in chief the applicant stated that she had not worked since 21 August 2019. She reiterated that Mr Houteas did not like her and “always used to push me in class”. The applicant conceded that she was at the Bankstown Central Shopping Centre on 20 January 2020. She was there with her mother. She was not working and not wearing a uniform.
Mr Beran cross-examined the applicant to suggest that her evidence that Mr Houteas did not like her had not been raised in her previous written evidence. The applicant agreed. He suggested that it was a recent invention to assist her case. The applicant stated that it had been “brought up before” in a document submitted to the respondent by members of her class. She stated he did not “think anything of it at the time”. Mr Beran put to the applicant that this evidence in respect of Mr Houteas was to support her own claim and “make him look like a liar”. The applicant did not agree.
Mr Beran cross-examined the applicant to suggest that she was working for an organisation known as “City Wide” on 20 January 2020 and wearing its uniform on that date. The applicant denied this.
Mr Beran cross-examined the applicant on her bank statements which showed regular debit entries reflecting use of her credit card. The applicant was cross-examined to suggest that her evidence that she “rarely” left home by herself was false. It was put to her that purchases by Visa card at Bankstown on 20 January 2020 reflected purchased made by her. The applicant responded that her mother also used her credit card. She was uncertain as to whether the entries reflected her use of the card or her mother’s use of the card. The applicant was specifically referred to Visa card entries for food purchases at Bankstown on 20 January 2020 and purchases at Café BIbi and the Little Hong Kong (presumably a restaurant) at Guildford on 21 October 2020. The applicant again responded that she did not remember which of the entries reflected her use of the credit card and which of the entries reflected her mother’s use of the card.
Mr Beran cross-examined the applicant to suggest that her explanation for the credit card entries was not truthful. The applicant responded that her mother did not work and did not have any money. She stated that she rarely left the house alone. She almost always travelled with her mother or one of her siblings. She often had a panic attack after leaving home.
At the conclusion of cross-examination, I asked the applicant whether she agreed that she had been for an interview with City Wide, a security company. She said that she had been for an interview with a security company but did not know the name of the company. I asked her whether she had received a uniform following that interview. She denied that. I asked her whether she had given her visa card pin number to her mother. She stated that she had.
SUBMISSIONS
The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel. They largely relate to the applicant’s credibility. Mr Beran submitted that the evidence of Mr Houteas should be accepted. The applicant’s evidence of not working on 20 January 2020 was “implausible”. Mr Houteas specifically identified her apparel as being an Egroup uniform; an email of 21 October 2020 from Egroup stated that the applicant had performed work for it through a labour hire agency; and the applicant conceded that she had been for an interview in respect of a security position.
Mr Beran argued that the applicant’s evidence that she received payment for one week’s work for Wilson Security some two months after she left that employment was also implausible. Similarly, her evidence in respect of card usage was difficult to accept. If the Commission did not accept the applicant’s evidence that her mother used her credit card on a regular basis, the statements recorded transactions which suggested that the applicant had travelled throughout the metropolitan area contrary to the history which she had given the AMS and other doctors.
If the applicant’s evidence was not accepted by the Commission the evidence of medical practitioners as to incapacity was without a proper foundation and it followed that the applicant should not be awarded weekly compensation. Alternatively, it might be determined that she could work in some other employment such as the call centre work which she had previously performed for the National Australia Bank.
Finally, Mr Beran returned to the evidence of Dr Phillips, which is addressed at length in my previous determination. He submitted that Dr Phillips opinion of malingering was consistent with the other evidence on which the respondent relied to establish the applicant’s unreliability.
Mr Tanner submitted that the observations of Mr Houteas were unsupported by any documentary evidence which would ordinarily be adduced to establish employment. There were no wages records or bank records which suggested that the applicant received income from work at the relevant time. The respondent had had the opportunity to have these records produced and had not done so: there was no documentation from Egroup to confirm that the applicant had performed work as a subcontractor under their auspices and nothing from City Wide.
The medical practitioners who had treated the applicant and who had seen her for medico-legal purposes, including the AMS, had all opined that she had suffered a psychological condition which precluded her from useful work.
Mr Tanner submitted that the applicant’s evidence that she was not working was given on oath and had stood the test of cross-examination. It was corroborated by the evidence of her mother. By contrast, the email from the Egroup did not state that the applicant had worked for that company. The assertion that she was engaged by a subcontractor did not prove that she had performed work. Engaged may mean taken into the organisation but it was not evidence that the applicant had actually performed work pursuant to that engagement. There was no evidence that the respondent had investigated the “engagement”; it was possible that they had and the investigation produced an outcome that was consistent with the applicant’s evidence that she had not worked at Bankstown wearing an Egroup uniform.
In response to Mr Beran’s attack on the applicant’s credit arising from her credit card use,
Mr Tanner submitted that there was no reason to reject the applicant’s evidence that she always went out with a member of the family. Her visa card entries did not prove the contrary. Her evidence in respect of this aspect was persuasive.Mr Tanner then systematically considered the medical evidence with emphasis on the findings of mental state examination of the various psychiatrists who treated the applicant for the purposes of establishing that she had no remunerable residual capacity. She was unable to perform a real job.
In reply Mr Beran submitted that the applicant’s mother’s evidence that her family supported the applicant financially was totally inconsistent with the applicant’s sworn evidence that she supported her mother by permitting her to use her credit card as her mother had no job and no income.
EGROUP
The letter from Egroup to the respondent’s solicitor dated the 25 September 2020 is as follows:
“We refer to your letter dated the 21 September 2020 in respect of the above matter.
Please be advised the applicant was not a direct employee of the Egroup Security. The applicant was engaged through a labour hire agency and therefore we do not hold any employment documents pertaining to her.”
The email from Egroup dated 21 October 2020 is as follows:
“In respect to your letter dated 13th October 2020 requesting information pertaining to who Bernadette Massih labour hire agency was, we wish to advise that due to confidentiality we can’t release that information to you direct.
We have however reached out to her labour hire agent and requested they contact you to assist with your enquiries.”
DISCUSSION AND FINDINGS
I accept the respondent’s submission that the reliability of the applicant is a vital ingredient of her case that she has been incapacitated for work because of psychological injury. Medical opinion in respect of incapacity is often dependent on the truthfulness of the patient’s account of the severity of symptoms and their effect upon her/his activity, including the ability to engage in employment. A fortiori in a case of psychological injury where there is often little, if any, objective evidence of disability c.f. Whisprun Pty Ltd v Dixon [2003] (2003) 77 ALJR 1598 (3 September 2003).
I also accept that if the applicant is proven to have lied about working as a security officer, it would undermine the entirety of her evidence including that in respect of incapacity for work.
There was nothing about the applicant’s demeanor or the manner in which she gave evidence at the arbitration hearing which would indicate that she was not telling the truth. It was my impression that during her oral evidence she was attempting to assist the Commission in reaching appropriate conclusions in respect of the primary issue in dispute namely whether she was working on 20 January of 2020 as asserted by Mr Houteas.
However, it is no longer permissible for a tribunal member to rely solely on impressions formed from the demeanor of a witness in reaching conclusions of fact save in cases where there is little or no dispute as to the factual matrix. In Goodrich Aerospace Pty Limited v Arsic[2006] NSWCA 187 Ipp JA (Mason P and Tobias JA agreeing) (Arsic) stated principles, which have been applied to demeanor evidence by subsequent decisions of the NSW Supreme Court and by the Presidential Unit of the Commission. Utilising the headnote, they are as follows:
“ii. When making demeanour findings, trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case
iii. Demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.
iv. Often important issued of credibility involve sub-issues. Objective facts, or facts that are probable, may have significant bearing on these sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
v. A failure by a judge when making a demeanour finding to deal with an improbability constituting a “governing fact” may constitute an error in the process of fact-finding.”
I doubt that there are “governing” facts in this case as there were, for example, in Arsic or in Fox vPercy [2003] 214 CLR 118 (30 April 2003). Nonetheless, putting aside the conflict between the evidence of the applicant and her mother on the one hand and that of
Mr Houteas, on the other, there is other evidence which must be “properly taken into account”.Mr Beran submitted that the letter from Egroup dated the 25 September 2020 gave credence to the account of Mr Houteas that the applicant was working on 20 January 2020. The letter, of course, states that she was not a “direct employee of Egroup” but was “engaged through a labour hire agency”. The letter, at least, hints at the possibility that the applicant performed work during which she wore an Egroup uniform, the apparel that Mr Houteas described her wearing on 20 January 2020. Mr Tanner conceded that the word “engaged” suggested that applicant had been “taken into the organization” of the labour hire agency but did not establish that she had performed work.
The way in which the parties addressed this evidence at the arbitration hearing has made the resolution of this sub- issue more difficult than it should have been. The applicant conceded that she had been for an interview with a company that provided security personnel but could not remember its name. She did not elaborate on this in her evidence in chief. Curiously, this was not pursued at all in cross-examination. The applicant was not asked whether she agreed to work for the company, signed a contract, or was allocated any work. The only aspect of the interview that is found its way into evidence is that that she was not provided with a uniform.
Leaving credit aside, attending a job interview may be relevant to an assessment of capacity for work, although the importance of such evidence would have to be assessed in the context of the entirety of the evidence including the medical evidence. The latter evidence may in some cases be determinative of the issue. But it would be necessary to know far more about the circumstances of the interview than is revealed by the evidence in this case before reaching any positive conclusions.
The correspondence from Egroup does not state in terms that the applicant performed work at Bankstown Central Shopping Centre or at any other site at which it had a contract to perform security work. No documentary evidence was adduced to establish that the applicant had worked at such a site. It is not evident precisely what enquiries the respondent has undertaken in order to establish that the applicant performed security work. However, it is evident that the respondent did not request the issuing of a Direction for Production to Egroup or any other entity during the course of the proceedings. It seems very unlikely that the applicant would be provided with an Egroup uniform and perform work to facilitate it carrying out its contractual obligations without the company having any record of her activities.
While I appreciate that the respondent may not have been aware of the name of the personnel company referred to in the correspondence until very recently, in my opinion there is considerable force in Mr Tanner’s submission that the evidence of the employment to support the observations of Mr Houteas is so unsatisfactory that it should be accorded little or no weight. There is not a scrap of documentary evidence, including a record of payment to establish that the applicant worked on 20 January 2020. There is no evidence as to what steps the respondent took to obtain such evidence.
Mr Tanner submitted the absence of this evidence is consistent with a conclusion that the ordinary enquiries an employer might make in such a situation have not adduced evidence which would prove employment. I doubt whether I can draw such an inference. On the other hand, the absence of any documentary evidence of employment without any explanation as to why the evidence is not available obviously makes it more difficult to conclude that the applicant was employed on 20 January 2020 and performing work under the ultimate control of the Egroup.
It is common ground the applicant was at Bankstown Central Shopping Centre on 20 January 2020 and encountered Mr Houteas. He does not state that she was performing a task that was only consistent with the work of security personnel. They were crossing a pedestrian crossing in the opposite direction. Thus, the conflict in the evidence relates to the clothes the applicant was wearing at the time. Mr Houteas clearly believed she was wearing an Egroup uniform on the day. The applicant says that following one interview with a security company she was not given a uniform.
I have concluded that I should accept the applicant’s evidence that she was not working at the Bankstown Central Shopping Centre on 20 January 2020 and has not worked since August 2019. Critically, her evidence on this issue was not in any way undermined during cross-examination. It was supported by the written evidence of her mother. The observations of Mr Houteas as to the applicant’s clothing provide an insubstantial basis to reject this evidence. Identification of witnesses and of clothing can be fraught with difficulty. I prefer the applicant’s sworn evidence to the evidence of Mr Houteas.
Mr Beran relied on two other matters in respect of the issue of credibility. First, it was common ground that the applicant received payment from Wilson Security in October 2019 which probably represents wages in respect of one week’s work. The applicant says in her written evidence that she performed that work at around the time that she left the employment of the respondent. She was unable to say why it took so long for wages to be transmitted to her bank account. Mr Beran submitted that this evidence was extraordinary and should not be accepted by the Commission. However, I do not find it inherently improbable. Again, it was open to the respondent to have the wages records produced and to put them into evidence if they contradicted the applicant’s account. Absent evidence to the contrary, I accept the applicant’s evidence on this point.
Secondly, Mr Beran tendered the applicant’s bank statements which demonstrated that her Visa card was used for purchases at the Bankstown Central Shopping Centre on 20 January 2020. This is unsurprising as the applicant says that she was there on the day. Probably of greater importance is the evident use of the card in the months before and after 20 January 2020 at a variety of businesses which are reasonably widely dispersed across the metropolitan area. I accept that if the applicant used her card for all these transactions, it would undermine her credit as the history of her social activities recently recorded by the AMS indicates that she is rarely able to remain outside of the house for long even with members of her family.
The applicant was briefly cross-examined on this issue at the arbitration hearing. As recorded above she said that her mother, who had no income and no card of her own, also used her Visa card. She was unable to identify which transactions in January 2020 were made by her and which were made by her mother. Again, I have no reason to disbelieve the applicant on this point. She reiterated her evidence that she rarely goes out by herself and rarely for long. Nothing that was put to her in cross-examination on her bank statement undermined her evidence on this point.
An acceptance of the applicant’s evidence leads to the conclusion that she was incapacitated for work. On 26 March 2021, Dr Patrick Morris, the AMS, assessed the applicant’s capacity for work for the purposes of the Psychiatric Impairment Rating Scale in the NSW workers compensation guidelines for the evaluation of permanent impairment, fourth edition. He said this of the of her capacity to work:
“Severe impairment. In my opinion because of the severity of Ms Massih’s depressive and anxiety symptoms, including her reduced concentration and memory, she would only be able to work from home for one or two days at a time, for less than 20 hours per fortnight with likely reduced pace and erratic attendance.”
With the exception of Dr Phillips, the psychologist, whose evidence I discussed in the previous judgment, which I do not accept, the entirety of the medical brought into existence before e 26 March 2021 is consistent with the opinion of Dr Morris. No doctor expressed the opinion that the applicant had any significant capacity to work. His opinion is of course not partisan in the way which is often seen in the reports of doctors qualified by a party to proceedings. I propose to accept his formulation of the applicant’s capacity for work. I am surprised that a young woman has not progressed at all in her recovery from a psychological injury over the last two years. However, each case has to be determined on the evidence.
My approach to the medical evidence in relation to incapacity means that it is unnecessary to determine the weight, if any, to be given to the opinion evidence brought into existence after the date of the medical assessment. Thus to the extent that Dr Rastogi expresses a view that is a different to Dr Morris, I disregard it.
In my opinion, the formulation of Dr Morris leads to the conclusion that the applicant is not fit for any “real” job: see Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (2 September 2014). I am unable to envisage a real job where the applicant can work from home one or two days at a time at reduced pace and erratic attendance to the work. One was not suggested at the arbitration hearing. Accordingly, I propose to find that the applicant had no residual or current earning capacity.
The applicant’s wages schedule states that her PIAWE was $1533.20. That figure was not challenged at the arbitration hearing. I have also recorded that the applicant’s base rate was $1,320. If that is correct the applicant’s entitlement to weekly compensation from 13 October 2020 would be the sum of $1,056 per week. I propose to make an award for the applicant at that rate from 13 October 2020 to date and continuing pursuant to section 37 of the Workers Compensation Act 1987.
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