Cja v Secretary (Department of Education)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CJA v Secretary (Department of Education) & Anor [2025] NSWPIC 452
APPLICANT:	CJA
FIRST RESPONDENT:	Secretary (Department of Education)
SECOND RESPONDENT:	Recruitment Solutions (A Division of Chandler Macleod) Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	2 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 16 and 37 referred to; injury; main contributing factor; apportionment; Kooragang Cement Pty Ltd v Bates, State Transit Authority of NSW v Fritzi Chemler, Attorney General’s Department v K, Federal Broom v Semlitch, Cant v Catholic Schools Office, Stewart v NSW Police Service, AV v AW, and Ariton Mitic v Rail Corporation of NSW considered and applied; Held – the applicant sustained a psychological injury as defined by section 4(b)(ii) in the course of his employment with the second respondent; pursuant to section 60 the first and second respondents are to pay the applicants reasonably necessary medical and treatment expenses with liability apportioned 43% to the first respondent and 57% to the second respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. That the applicant sustained a psychological injury as defined by s 4(b)(ii) of the Workers Compensation Act 1987 in the course of his employment with the second respondent. 2. The first respondent is to pay to the applicant pursuant to s 37 of the Workers Compensation Act 1987: (a) $1,111.80 per week from 6 January 2025 to 31 March 2025, and (b) $1,117.04 per week from 1 April 2025 to date and continuing subject to indexation. 3. The second respondent is to pay to the applicant pursuant to s 37 of the Workers Compensation Act 1987: (a) $640.20 per week from 6 January 2025 to 31 March 2025, and (b) $642.96 per week from 1 April 2025 to date and continuing subject to indexation. 4. Pursuant to s 60 of the Workers Compensation Act 1987 the first and second respondents are to pay the applicants reasonably necessary medical and treatment expenses with liability apportioned 43% to the first respondent and 57% to the second respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

[CJA] (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he was subjected to ongoing bullying, harassment, isolation tactics and intimidation tactics throughout his employment with the Secretary (Department of Education) (first respondent) sustaining psychological injury which led to his ceasing work on 7 December 2023. The applicant pleads a deemed date of injury against the first respondent of 7 December 2023.
The applicant alleges that his psychological injury with the first respondent did not wholly resolve by the time that he commenced employment with Recruitment Solutions (A Division of Chandler MacLeod) Pty Limited (second respondent) and that his pre-existing psychological injuries were then aggravated and exacerbated due to ongoing bullying and harassment by his manager, [BZF] at the second respondent leading him to cease work on 9 October 2024. The applicant pleads a deemed date of injury of 9 October 2024 against the second respondent.
Whilst employed by the second respondent the applicant was a labour-hire worker and was placed with Transport NSW
The applicant seeks weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) from 6 January 2025 to date and continuing as well as a general order for medical treatment expenses pursuant to s 60 of the 1987 Act.
The applicant’s pre-injury average weekly earnings (PIAWE) with the first respondent is agreed at $2,190 and indexed as at 1 April 2025 at $2,200.

It is not in dispute that the applicant sustained injury with the first respondent. The second respondent does however dispute the alleged injury.
The applicant has a prior mental health history. It is the applicant’s evidence that whilst employed as a teacher at an international school in Taiwan he felt ignored, disregarded, dismissed and would receive negative feedback from his manager who would constantly put him down and compare him to other teachers. That the job expectations here were very high and he kept pushing himself to achieve results. As a result, he suffered depressive episodes in which he tried to overdose on diazepam tablets.
It is the applicant’s evidence that from 2012 to 2014 he worked in China as a teacher at which time he encountered interpersonal issues with the deputy principal who was aggressive towards him. That at the same time as experiencing stress at work he also experienced a breakup with his girlfriend leading to further psychological strain.
It is the applicant’s evidence that in August 2014, he moved to the Philippines where he felt overwhelmed regarding his role, so he ceased employment there in around December 2014.
It is the applicant’s evidence that in March 2015 he moved to Germany where he did not experience any issues.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    injury including main contributing factor – ss 4 and 11A(3) of the 1987 Act – second respondent only;
(b)    substantial contributing factor – s 9A 1987 Act - second respondent only;
(c)    contribution/apportionment - ss 15 and 16 of the 1987 Act;
(d)    incapacity – s 33 of the 1987 Act, and
(e) whether treatment reasonably necessary as a result of injury – s 60 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 30 June 2025. Mr Craig Tanner, counsel, instructed by Ms Christina Dahdal, solicitor, appeared for the applicant, who was present. Mr Bill Loukas, counsel, instructed by Mr Danny Khoshaba, solicitor, appeared for the first respondent. Mr Lachlan Robison, counsel, instructed by Mr Ethan Brawn, solicitor, appeared for the second respondent. The proceedings were conducted in-person. 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.
Oral submissions were made by the applicant and the first respondent at the arbitration hearing. Due to there being insufficient time to hear oral submissions from the second respondent and the applicant’s submissions in reply those submissions were provided in writing.

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 (ARD);
(b)    Reply lodged by the first respondent and attached documents (R1 Reply);
(c)    Reply lodged by the second respondent and attached documents (R2 Reply);
(d)    Documents attached to Application to Lodged Additional Documents lodged on behalf of the second respondent dated 23 June 2025 (R2ALAD);
(e)    Documents attached to Application to Lodge Additional Documents lodged on behalf of the first respondent dated 24 June 2025 (R1ALAD);
(f)    Documents attached to Application to Lodge Additional Documents lodged on behalf of the applicant dated 3 July 2025 (AALAD);
(g)    Applicant’s wages schedule dated 20 May 2025;
(h)    First respondent’s wages schedule dated 4 June 2025, and
(i)    Second respondent’s wages schedule dated 23 June 2025;
In respect to the applicant’s wages schedule dated 20 May 2025 the period during which weekly compensation is claimed was amended at the arbitration hearing to commence from 8 April 2025. It was also confirmed in respect to the wages schedule of the second respondent dated 23 June 2025 that the PIAWE is $1,305.
The second respondent objected to the admission into evidence of the applicant’s further statement of 20 May 2025 which is attached to AALAD. At the arbitration hearing I admitted the said statement into evidence advising that I would give written reasons which I do now. The statement had been served by the applicant on 21 May 2025. An Application to Lodge Additional Documents had been lodged on behalf of the applicant with the Commission but was rejected on the basis that it was lodged late.

Submissions

In the applicant’s submission the second respondent would not be surprised by the contents of the statement given that it was served on 21 May 2025, the day after it was made. In the applicant’s submission those who received the served statement could not be in any doubt as to the reason it was served. In the applicant’s submission the statement records the applicant’s evidence as to his condition as at the date of the statement and contains relevant evidence in respect to the applicant’s current condition and work capacity.
In the second respondent’s submission documents can be served for all sorts of reasons and the statement was not lodged and served in the usual way indicating that it was to be relied upon. In the second respondent’s submission the matters with which the statement deals are matters which should be put to a doctor for their expert opinion otherwise it is just “dangling there in a prejudicial way”. The respondent had assumed that the statement would have been briefed to an independent medical expert or that at a minimum it would have been lodged with an Application to Admit Additional Documents

Findings and consideration

At the time of the preliminary conference on 14 May 2025 the applicant gave notice that he intended to serve a further statement going to the impact of the alleged injury and in respect to his current capacity for work. As the parties were on notice of the applicant’s intention, the service of the statement should not have taken the parties by surprise.
It is not unusual for documents to be served in proceedings without being the subject of an Application to Lodge Additional Documents at the time of service due to the restrictions which are placed on the number of Applications to Lodge Additional Documents which can be lodged by any one party in proceedings. As to the second respondent’s submission that it would be expected that the statement would have been accompanied by an opinion from an independent medical expert who had considered the statement evidence; the applicant at the preliminary conference did not give notice of any intention of serving any further medical reports and it is a matter for each party as to how they prepare and present their respective cases.
The evidence before the Commission includes reports from the applicant’s treating psychologist, Mr Matthew Gullotta, the most recent of which is dated 25 March 2025 as well as forensic reports from Dr Dale Marchant, psychiatrist, dated 23 January 2025, Dr Ashwinder Anand, psychiatrist, dated 6 March 2025 and Dr John Honey, psychiatrist, dated 22 May 2025 all of whom considered the applicant’s symptoms and function in coming to their opinion.
Dr Honey, who has provided the most recent forensic report, examined the applicant at the request of the second respondent on 15 May 2025 shortly prior to the applicant making the statement in question. As part of the examination of the applicant Dr Honey obtained from the applicant details of his symptoms including his current functioning.
In my view the second respondent is not prejudiced by the admission of the statement. The parties were on notice from the preliminary conference of the intention of the applicant to serve a further statement and therefore the parties should not have been taken by surprise. Dr Honey examined the applicant shortly prior to the statement being made and at that time obtained from the applicant details as to his symptoms and level of function. The statement evidence is relevant in that it contains a somewhat more detailed description of the applicant’s functioning than the brief histories recorded in the medical reports. There is a previous statement from the applicant in evidence, and the further statement simply provides update evidence as to the applicant’s condition.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Injury

There is no disputed that the applicant sustained injury with the first respondent. The first respondent has accepted liability and paid compensation including weekly compensation.
The second respondent disputes that the applicant sustained psychological injury as alleged.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
In the applicant’s submission the accepted psychological injury with the first respondent had not resolved by the time he had commenced employment with the second respondent on
5 August 2024. I accept the applicant’s submission.
In the first respondent’s submission the balance of the medical evidence supports that the applicant did not fully ever recover from the accepted injury with the first respondent.
In the second respondent’s submission the applicant was still suffering from the effects of the injury sustained with the first respondent when he commenced employment with the second respondent.
The clinical records, and in particular the opinion of the treating psychologist, Mr Matthew Gullotta, supports that whilst the applicant may have been in partial remission from the injury sustained with the first respondent at the time that he commenced employment with the second respondent he was still suffering from a diagnosable psychological condition being an adjustment disorder with depressed mood, that he was still symptomatic, was still subject to work restrictions and was at high risk of relapse.
Prior to commencing with the second respondent the applicant’s general practitioner (GP), Dr William Lee, of the Multicare Family Medical Practice reported on the applicant on 4 January 2024.[1] Dr Lee reported that the applicant showed symptoms consistent with an adjustment disorder with anxious and depressed mood. In the doctor’s opinion the development of the condition was consistent with the applicant’s description of reported workplace bullying with the first respondent since March 2023. The doctor assessed the applicant as unfit for work because of the severity of his symptoms and pending psychological support input. The doctor advised that the applicant would require psychological support before returning to suitable or light duties to reduce the risk of worsening or progressive symptoms given the nature of his injury.
[1] ARD pp. 42-45.
On 27 January 2024 Dr Lee approved the following vocational options identified by Pinnacle Rehab - Programme or Project Administrator, Education Adviser and Education Manager[2] and on 29 May 2024 Dr Lee approved General Clerk, Careers Counsellor and Recruitment Officer as suitable vocational options.[3] At no time prior to the applicant commencing employment with the second respondent was the applicant cleared to return to his pre-injury occupation of school teacher.
[2] ARD pp. 60-64.
[3] ARD pp. 101-105.
Mr Gullotta reported to Dr Lee on 5 August 2024,[4] the same day that the applicant commenced employment with the second respondent, that the applicant had been a patient since 8 July 2024 and had attended four sessions with the last being on 2 August 2024.
[4] ARD pp. 119-120.
Mr Gullotta reported that the applicant presented with symptoms consistent with an adjustment disorder with depressed mood or a major depressive disorder, stemming from the workplace injury. Mr Gullotta was of the opinion that the applicant met the diagnostic criteria for an adjustment disorder with depressed mood.
Mr Gullotta reported that the applicant’s depressive symptoms were moderate; however, with an emotional and behavioural response to workplace stressors, resulting in significant impairment in his occupational, social, and other areas of functioning. Whilst the symptoms in the opinion of Mr Gullotta appeared to be in partial remission the psychologist observed that the applicant still presented with symptoms consisting of low mood, significant difficulty in sustaining attention and memory retrieval, poor sleep patterns, inactivity and loss of interest in previously pleasurable activities. At that time Mr Gullotta anticipated a discharge date of
5 December 2024 and recommended certain work restrictions which included not returning to work as a teacher at that point in time.
Mr Gullotta again reported to Dr Lee on 10 September 2024[5] by which time the applicant had attended eight sessions with the psychologist with the last being on 2 September 2024. Mr Gullotta observed that whilst the applicant had shown improvement since his initial consultation, he continued to present with symptoms consistent with an adjustment disorder with depressed mood. Mr Gullotta noted that on 26 August 2024 the applicant had tested with scores within the normal ranges for anxiety, depression and stress which was a marked improvement and indicated substantial progress in managing his symptoms. However, the psychologist observed that the applicant continued to experience occasional irritability, anxiety related to the sustainability of his employment as well as moments of low motivation.
[5] ARD pp. 121-122.
On 25 March 2025 Mr Gullotta reported to the applicant’s then solicitors[6] that in his opinion the injury sustained with the first respondent had not fully resolved before the applicant commenced employment with the second respondent.
[6] ARD pp. 127-136.
That the accepted injury with the first respondent had not resolved by the time the applicant commenced with the second respondent is also supported by the opinions of Dr Ashwinder Anand, neuropsychiatrist, who provided a forensic report to the applicant’s solicitors on
[7] R1 Reply pp. 14-31.
[8] R1 Reply pp. 3-13.
6 March 2025[7] and Dr Dale Marchant, psychiatrist, who provided a forensic report to the first respondent dated 23 January 2025.[8]
In the opinion of Dr Anand, the injury with the first respondent had not resolved by the time that the applicant commenced with the second respondent. Dr Anand noted that at the time of commencing work with the second respondent the applicant was experiencing a lot of anxiety, even getting triggered by television shows involving teaching with the applicant describing being dejected, anxious, drinking excessive amounts of alcohol, isolating himself and having suicidal ideations.
Dr Marchant records a history that although there were some improvements in the applicant’s mental health at the beginning of 2024 due to feeling hopeful about changing jobs, the applicant reported that almost all the symptoms he had experienced in late 2023 continued but at a lesser severity. The applicant reported that he still felt lost and continued to have a lack of trust in others based on his perceived bullying in his previous role. He reported that although he felt hopeful about a new job, he did not feel hopeful that the issues that had occurred with the first respondent would not occur in his new role and this caused him to feel some level of hopelessness. He continued to feel isolated. The only time he would not feel isolated was when he was at the pub speaking with people.
Dr Marchant was not convinced based on his assessment of the applicant or the file material available to him, that the injury with the first respondent had ever resolved.
The opinion of Dr John Honey, psychiatrist, who provided a forensic report to the second respondent dated 22 May 2025[9] is in my view of no assistance in determining whether the applicant had recovered from the injury with the first respondent prior to commencing employment with the second respondent.
[9] R2 ALAD pp. 1-9.

In the opinion of Dr Honey, the applicant did not sustain a psychological injury with the first respondent, and if he did that injury had resolved by the time of the doctor’s examination. The opinion of Dr Honey is not of assistance as it is not in dispute that the applicant sustained a psychological injury with the first respondent. Whilst Dr Honey provides an opinion that, if a psychological injury was sustained with the first respondent that injury had resolved, the doctor does not provide an opinion as to when it resolved.
In my view the weight of the medical evidence supports that the accepted psychological injury sustained by the applicant with the first respondent did not resolve prior to the applicant commencing employment with the second respondent on 5 August 2024. In particular the opinion of Mr Gullotta as the psychologist who treated the applicant both prior to his commencement with the second respondent and during his employment with the second respondent, and who consulted with the applicant on multiple occasions is particularly persuasive. In my view Mr Gullotta is in the best position to provide such an opinion and I accept the opinion of Mr Gullotta.
In respect to the alleged incidents which occurred in the course of the applicant’s employment with the second respondent the applicant submits that the applicant’s evidence is unchallenged and should be accepted. I accept the applicant’s submission.
It is the applicant’s evidence that the primary source of ongoing issues in his employment with the second respondent was his colleague, [COM]. It is the applicant’s evidence that [COM] frequently commented on how things could be done better and pointed out what the applicant and others were doing “wrong” and that on 30 August 2024 [COM] pointed out mistakes in the applicant’s work which to the applicant were “minor infractions”.
It is the applicant’s evidence that he reported a colleague, [BRK], for falling asleep at work to his supervisor/manager, [BZF]. It is the applicant’s evidence that he was then shocked and felt dispirited and dejected when he was included in a meeting where the staff were told that “things need to improve.” It is the applicant’s evidence that after the meeting [COM] asked him how he felt about it to which the applicant responded, “not good,” to which [COM] said “You can’t handle the feedback.”
It is the applicant’s evidence that on 25 September 2024 he complained to [BZF] about [COM]’s behaviour and told [BZF] that he had not been able to sleep the night before due to the stress caused by [COM]’s behaviour and that [BZF] subsequently confirmed to the applicant that he had spoken to [COM].
It is the applicant’s evidence that [COM]’s behaviour escalated around 10 September 2024 when he poked the applicant in the arm while demanding that he complete a trivial task. It is the applicant’s evidence that after being poked by [COM] he felt humiliated when [COM] walked him down to the preparation room so he could demonstrate to [COM] that he could click “OK” on a computer screen. The applicant made a compliant in regard to being poked by [COM].
It is the applicant’s evidence that by early September, he was no longer looking forward to going to work, that he felt overwhelmed and was attending weekly psychologist sessions, where he would vent his frustrations about the behaviour of [COM]. It is the applicant’s evidence that over the long weekend in October 2024 he realized he was not okay. He was constantly thinking about [COM] and worrying about how he would be treated by him, so he wrote a letter to [BZF].
In his letter to [BZF] dated 5 October 2024[10] the applicant stated that he was making an “official complaint” against [COM]. The applicant stated that he found [COM] on a nearly daily basis to be intimidating and to have a harassing attitude towards him and other staff. The applicant then outlined what he termed “the most serious of incidents” which included on or about 10 September 2024 jabbing his finger into the applicant’s forearm, commenting on what the applicant was eating, calling the applicant an alcoholic, expecting an immediate response to a MS Teams meeting, meddling in the applicant’s work, gossiping, prying for personal information and commenting negatively on the applicant’s clothing.
[10] ARD pp. 38-40.
In response to the applicant’s letter [BZF] informed the applicant that human resources (HR) would investigate. It is the applicant’s evidence that after a week, no investigation had occurred, and no explanation had been provided.
On 16 October 2024 the applicant attended Ashfield police station. A police report[11] records that the applicant reported that he had been involved in a verbal dispute which led to him being poked in the eye. He reported that he sustained no injuries and did not attend a doctor. The police contacted Transport for NSW, the workplace where the applicant had been placed by the second respondent, and spoke to [BZF] who informed the police that the applicant had not reported any such incident and that due to a complaint made by the applicant on 8 October 2024 the applicant had been removed from working in the same area as the team and relocated to a separate office on level 1.
[11] R2 ALAD pp. 29-24.
[COM] was also contacted by the police and stated that he was unaware of any such incident and said that he had not spoken to the applicant that day. The applicant retracted the statement and then said that the incident occurred on either 8 or 9 September 2024. On 16 October 2024 [COM] also denied this allegation. No CCTV cameras were present in the room.
Also, on 16 October 2024 the applicant attended on his GP, Dr Lee. The clinical record of the applicant’s attendance records that the applicant had been having issues with a co-worker with bullying and harassment for approximately seven weeks which had been affecting his mental health with exacerbation of symptoms.[12]
[12] ARD pp. 201-202.
On 4 November 2024 the police took a statement from the applicant[13] which consistent with the letter of complaint to [BZF] records that the pokes were to the left forearm and that the incident occurred on either the 9^th or 10^th of September 2024.
[13] R2ALAD p. 27.
On 18 December 2024 the applicant completed a Workers Injury Claim Form[14] in which he recorded that he sustained injury on 10 September 2024 and records:
“I was physically jabbed in the arm by a co-worker. This same co-worker repeatedly bullied and harassed me in several different manners on several different days. This included calling me an alcoholic, made remarks about my weight. Was extremely demanding on a very frequent basis. This included sending a teams message and then immediately requiring verbal confirmation that it had been received. Ignore requests on how I like to receive feedback, stood too close on a frequent basis, relayed highly sensitive information about co-workers to me which I did not want to know about, would 'dig' for personal information and repeatedly ask the same question in different ways, made comments about my clothing. These are some examples of the harassing behaviour that I experienced.”
[14] R2Reply pp. 21-28.
There is no evidence which traverses or challenges the applicant’s evidence. In particular there are no statements from [COM] or [BZF].
The police report does record that [COM] denied jabbing the applicant and that [BZF] denied that any such incident had been reported. The police report however records that the applicant was poked in the eye on 9 October 2024.
Both [BZF] and [COM] appear from the police report to have been contacted on
16 October 2024 and given this history. However, the statement taken from the applicant by the police on 4 November 2024 records, consistent with the letter of complaint to [BZF] of 5 October 2024, that the applicant was poked in his left forearm on 8 or 9 September 2024.
The police report also records that the applicant was moved the day before the alleged incident due to a complaint made on 8 October 2024 however the incident is alleged to have occurred on 8 or 9 September 2024, a month prior to the applicant being moved within the workplace. Whilst [COM] also denied that he poked the applicant on 8 or 9 September the history provided by the police to [COM] again appears to have been that it was alleged that he was poked in the eye not the forearm.
The second respondent questioned the reliability of the applicant’s evidence submitting that the applicant’s evidence in his supplementary statement of 20 May 2025 that he struggles to attend to hobbies is contradictory to his “earlier” evidence.
The submission did not identify what that earlier evidence is. However, if it is a reference to the applicant attending pubs, Dr Marchant takes a history from the applicant that the pub is the only place that he does not feel isolated, otherwise the applicant reported to Dr Marchant doing little else other than watching television. Dr Anand recorded that the applicant did a bit of reading, tried to exercise by going for walks, played video games and would occasionally catch up with a friend. I fail to see the inconsistency.
The second respondent also submitted that the applicant’s evidence is inconsistent with a clinical record of Mr Gullotta of 3 February 2025 in which the applicant presented with “improved mood today” and stated that he felt “really good”, was well groomed and expressed interest in pursuing a role in the Navy.
The clinical record which the respondent relies on is a single record. It is clear on reviewing the rest of the clinical records that the applicant was having a very good day and that day is not representative of his usual presentation to Mr Gullotta.
The applicant’s evidence is unchallenged, and I have no reason to doubt that the applicant is a witness of truth. I accept the applicant’s evidence.
Mr Robison submitted on behalf of the second respondent that no adverse inference should be drawn from the lack of a statement from [COM] as a criminal complaint had been made against [COM] and [COM] has the right to silence.
It is not necessary for me to draw any inference from the lack of statement evidence from [COM] as there is simply no evidence disputing the applicant’s allegations including any statement evidence from [BZF] or any of the applicant’s other work colleagues.
Mr Tanner submitted on behalf of the applicant, that the applicant suffered with the second respondent an exacerbation and/or aggravation of the injury which he had suffered with the first respondent. I accept the applicant’s submission.
Mr Gullotta in his report to Dr Lee of 5 August 2024 observed at the time of the applicant’s commencement of employment with the second respondent that whilst the applicant had secured employment, which was a positive step, the risk of relapse remained high due to the persistent symptoms and challenges which the applicant faced. Mr Gullotta observed that whilst the applicant’s mood was slightly improved, it continued to be a significant barrier to stabilising his employment and overall well-being.
Mr Gullotta reported that the applicant’s treatment regime was based upon cognitive behaviour therapy to manage the depressive symptoms. That their sessions had focused on psychoeducation and developing better coping strategies for reducing automatic negative thoughts as well as coping mechanisms for dealing with negative rumination and that the focus would shift to developing a robust relapse prevention plan to ensure long-term stability and prevent recurrence of symptoms. It was the intention of Mr Gullotta to continue with weekly sessions until a period of stabilisation was achieved, after which the frequency of sessions could be reduced to fortnightly to support ongoing progress and prevent relapse.
On 10 September 2024 Mr Gullotta reported to Dr Lee that whilst substantial progress had been made in managing the applicant’s symptoms, he continued to experience occasional irritability, anxiety related to the sustainability of his employment, and moments of low motivation. In the opinion of Mr Gullotta whilst these symptoms had not significantly impacted on the overall progress, they highlighted the importance of a continued focus on skill development and relapse prevention.
Mr Gullotta reported that whilst the applicant had to some extent been able to adapt to his current work duties, he had experienced instances of irritability at work. Mr Gullotta observed that given the applicant’s history of depressive symptoms, hesitancy and irritability, which led to interpersonal difficulties and negative rumination, these symptoms remained a concern, requiring ongoing monitoring and management. The psychologist also noted that the applicant had experienced instances where he struggled with motivation.
In the opinion of Mr Gullotta these fluctuations, while not pervasive, indicated areas where additional support may be needed to ensure long-term stability. Mr Gullotta observed that the focus of therapy would now shift towards developing a comprehensive relapse prevention plan. The plan would be designed to consolidate the gains made as well as providing the tools needed to maintain the applicant’s mental health and prevent a recurrence of symptoms.
Mr Gullotta again reported to Dr Lee on 16 October 2024[15] noting that by that time the applicant had attended a total of thirteen sessions. Mr Gullotta reported that over the previous month, the applicant had reported experiencing incidents of workplace bullying in his employment with the second respondent. These incidents included name-calling, inappropriate interactions and requests, as well as unwanted physical contact. Mr Gullotta noted that the applicant had made a formal complaint regarding these matters, however his employment had been terminated. In the opinion of Mr Gullotta this situation had “exacerbated” the applicant’s mental health concerns with the applicant suffering a relapse.
[15] ARD pp. 123-124.
In the opinion of Mr Gullotta, the bullying and subsequent job loss had intensified the symptoms, with a marked decline in mood, sleep, and overall ability to function.
In the opinion of Mr Gullotta, the applicant’s ability to engage in full-time work was severely compromised due to his psychological injury and he “strongly” recommend revising the Certificate of Capacity to reflect his current mental state and his capacity for work.
On 25 March 2025 Mr Gullotta reported to the applicant’s then solicitors[16] that in his opinion the applicant’s employment with the first respondent was the direct and primary contributing factor to his psychological injury. It is also the opinion of Mr Gullotta that the injury sustained with the first respondent had been exacerbated by his employment with the second respondent. The psychologist observed that in his employment with the second respondent the applicant had faced additional stressors that somewhat mirrored those he experienced with the first respondent and had exacerbated his symptoms.
[16] ARD pp. 127-136.
In the opinion of Mr Gullotta, while the employment at the second respondent contributed to the aggravation of his symptoms, it was likely not the primary cause but rather a trigger for the exacerbation of pre-existing injuries. His injuries with the first respondent had already created a vulnerable psychological state, and the bullying and workplace stress at the second respondent exacerbated this pre-existing condition.
The opinion of Mr Gullotta that the applicant suffered an exacerbation with the second respondent of his previous injury with the first respondent is also supported by the opinions of the GP, Dr Lee, as well as Dr Anand and Dr Marchant.
On 31 October 2024 Dr Lee reported to Allianz[17] that the applicant had experienced an exacerbation of his adjustment disorder with mood and anxiety components observing that it was difficult to state if the applicant had not experienced the alleged workplace bullying with the second respondent whether he would have been able to maintain his capacity for work at eight hours per day, five days per week.
[17] ARD pp. 48-49.
On 6 March 2025 Dr Lee reported to the second respondent that at a case conference on
30 October 2024 attended by Pinnacle Rehab and Mr Gullotta the applicant’s progress was explained and that he had suffered an exacerbation and relapse of his condition secondary to events during his employment with the second respondent.
In the opinion of Dr Marchant, the slight improvement in the applicant’s mental health in early 2024 was not sustained and the psychological injury sustained with the first respondent had been aggravated by the applicant’s experiences with the second respondent. In the opinion of Dr Marchant, the worsening of the applicant’s mental health during his employment with the second respondent represents an aggravation of the original condition.
In the opinion of Dr Anand there are multiple factors which have impacted on the applicant’s mental health, including issues related to his employment with the first and second respondent’s, pre-existing depression, issues within his personal life as well as long standing alcohol use.
In the opinion of Dr Anand, the applicant’s employment with the first and second respondents have both contributed to his psychological injury and appeared to be the main contributing factor to the aggravation of his depressive disorder.
In the doctor's opinion the applicant’s employment with the second respondent was a substantial contributing factor to his psychological injuries although not the main one. He was symptomatic from his previous employment with the first respondent when the work environment at the second respondent which was characterised by invasive and belittling behaviour from a coworker aggravated his symptoms.
The second respondent relies on the opinion of Dr Honey who concedes that the applicant “may” have suffered a temporary aggravation as a result of the circumstances with the second respondent but was of the opinion that the applicant was not suffering from any psychological condition at the time of the doctor’s examination. Dr Honey however does concede that the applicant may have suffered with an adjustment disorder with anxious and depressed mood, but in the doctor’s opinion, if he had, he had recovered. Dr Honey doubted that the second respondent was a substantial contributing factor to an aggravation, acceleration, exacerbation or deterioration of a disease. In the opinion of Dr Honey, the history and the applicant’s presentation suggested that he has a “maladaptive personality” and that he finds it difficult with people who do not agree with him, and they should behave differently.
The second respondent submitted, relying on the opinion of Dr Honey, that the applicant has “inherent personality defects”. The fact that the applicant may or may not have personality issues is irrelevant. The questioned is whether the applicant sustained a psychological injury.
The second respondent also referred to the observation by Dr Honey that the applicant was evasive about the true extent of his prior psychological difficulties. That the doctor reports that the applicant was not forthcoming about his prior problems is curious given that the applicant had by the time he was examined by Dr Honey made a statement which included details of his previous issues. Dr Honey had been provided with a copy of that statement which is listed in his report. In my view nothing turns on the failure of the applicant to fully advise Dr Honey of his previous mental health issues when prior to attending Dr Honey he had disclosed those issues in a statement.
In the second respondent’s submission the Commission is not assisted by generalisations and conclusionary phrases like “ongoing issues” as appears at [33] of the applicant’s statement of 27 March 2025. In the second respondent’s submission those ongoing issues are not set out.
I do not accept the second respondent’s submission that those ongoing issues are not set out. Following [33] the applicant proceeds to provide statement evidence as to those issues.

At [35] the applicant states that [COM] would frequently comment on how things could be done better and what others were doing “wrong”, at [38] that [COM] on 30 August 2024 pointed out mistakes in the applicant’s work which whilst the applicant acknowledged these errors states that no one had previously shown him these “minor infractions.” At [43] that [COM] had said to him “You can’t handle the feedback” after the meeting where the staff were told by [BZF] that “things need to improve”. At [46] the applicant gives evidence as to the events of 10 September when he states that he was poked in the forearm by [COM].
Whilst the second respondent submits that it is unclear how [COM] commenting on how things could be done better amounts to bullying it is the applicant’s evidence that he perceived that this behaviour “was more about enforcing perfectionism in others while allowing himself to make mistakes” and in respect to pointing out the “minor infractions” it is the applicant’s unchallenged evidence that [COM] “admitted he had not engaged with me professionally, apologized, and said he would do better in the future.”
Further complaints in respect to the conduct of [COM] are also recorded in the applicant’s letter of complaint to [BZF] of 5 October 2024.
Whilst the applicant does plead that he was bullied he also pleads that he was harassed. Whilst the terms bullying and harassment are pleaded the applicant is not required to prove that the conducted amounted to bullying and/or harassment and the use of such terms is generally unhelpful. The issue is whether the conduct took place and whether injury was sustained as a result of the incidents. Whilst the incident’s may be viewed as being helpful or innocuous by others it is the applicant’s perception which is of relevance.[18]
[18] State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler); Attorney General’s Department v K [2010] NSWWCCPD 76
Mr Robison submits on behalf of the second respondent that the “alleged bullying said to have emanated from [COM] centres on an unprovable battery” being the poke. I do not accept the second respondent’s submission. Whilst arguably the poke may be the most significant incident or the last straw, the applicant relies on a host of incidents in the workplace. In any event, as I have discussed above, the evidence of the applicant is not challenged and for reasons previously given I accept the applicant’s evidence as to the poke in the arm having occurred.
In the second respondent’s submission the opinion of Mr Gullotta at [32] of his report of
25 March 2025 that the injury with the first respondent was exacerbated by the applicant’s employment with the second respondent is an ipse dixit. I do not accept this submission. At [33] Mr Gullotta provides his reasons for his opinion stating:
“At Chandler McLeod, he faced additional stressors that somewhat mirrored those he experienced at the Department of Education (i.e., a bullying coworker), had exacerbated his symptoms. The coworker’s behaviour (e.g., poking him, making negative remarks about his weight, and calling him an alcoholic), led to heightened anxiety and distress, which resulted in a complete relapse of his psychological injury. That is, while the employment at Chandler McLeod contributed to the aggravation of his symptoms, it was likely not the primary cause but rather a trigger for the exacerbation of pre-existing injuries. His injuries from Abbotsford Public School had already created a vulnerable psychological state, and the bullying and workplace stress at Chandler McLeod exacerbated this pre-existing condition.”
In the second respondent’s submission Mr Gullotta tends to suggest that whilst the applicant was having difficulties when employed by the second respondent, that these in truth, were manifestations of the earlier injury and not a new injury and do not involve any causation from employment with the second respondent such as bullying. In support of the submission the second respondent relies on the following passage from Mr Gullotta’s report of
10 September 2024:
“[CJA] has to some extent been able to adapt to his current work duties. However, he has experienced instances of irritability at work. Given his history of depressive symptoms; hesitancy; and irritability, which led to interpersonal difficulties; and negative rumenation [sic], these symptoms remain a concern that requires ongoing monitoring and management. He has also had some instances where he has struggled with motivation. These fluctuations, while not pervasive, indicate areas where additional support may be needed to ensure long-term stability.”
I do not accept the submission. At that point in time Mr Gullotta also reported that the applicant had made positive progress and this is before the applicant’s condition deteriorates. Then on 16 September 2024 Mr Gullotta reported:
“Over the past month, [CJA] has reported experiencing incidents of workplace bullying at his most recent place of employment. These incidents have included name-calling, inappropriate interactions and requests, as well as unwanted physical contact. He filed a formal complaint with his employer regarding these matters, but, unfortunately, he was terminated from employment.
This situation has exacerbated [CJA]’s mental health concerns.”
The above does express a causal connection. A causal connection which is again expressed in Mr Gullotta’s report of 25 March 2025 at [33] where he states:
“At Chandler McLeod, he faced additional stressors that somewhat mirrored those he experienced at the Department of Education (i.e., a bullying coworker), had exacerbated his symptoms. The coworker’s behaviour (e.g., poking him, making negative remarks about his weight, and calling him an alcoholic), led to heightened anxiety and distress, which resulted in a complete relapse of his psychological injury. That is, while the employment at Chandler McLeod contributed to the aggravation of his symptoms, it was likely not the primary cause but rather a trigger for the exacerbation of pre-existing injuries. His injuries from Abbotsford Public School had already created a vulnerable psychological state, and the bullying and workplace stress at Chandler McLeod exacerbated this pre-existing condition.”
It is settled law that an increase in symptoms is an aggravation or exacerbation.[19]
[19] Federal Broom v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch); Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant)
In my view the medical evidence supports that whilst the applicant’s condition did improve following the accepted injury with the first respondent and even after the applicant commenced employment with the second respondent as observed by Mr Gullotta in his report of 10 September 2024, the injury never fully resolved with the applicant continuing to be symptomatic and vulnerable to relapse. With relapse occurring as observed by Mr Gullotta in his report of 16 October 2024 on a background of the incidents occurring in the course of his employment with the second respondent causing an exacerbation.
I accept the opinion of Mr Gullotta, an opinion which is supported by Dr Lee, Dr Anand and Dr Marchant, as to the applicant sustaining with the second respondent an exacerbation of his accepted injury with the first respondent. Whilst Dr Honey is less supportive of the applicant having suffered an aggravation or exacerbation with the second respondent, he concedes that the applicant may have suffered such an aggravation.
In my view the weight of the medical evidence supports that the applicant did suffer an aggravation and/or an exacerbation of his previous injury with the first respondent whilst in the course of his employment with the second respondent.
In my view Mr Gullotta is in the best position as the treating psychologist to determine if an exacerbation had been sustained having commenced treating the applicant for his accepted injury with the first respondent prior to the applicant commencing employment with the second respondent and continuing to treat the applicant at the time of the exacerbation and relapse.
In the applicant’s submission the exacerbation suffered by the applicant during his employment with the second respondent is an injury within the meaning of s 4(b)(ii) of the 1987 Act. I accept the applicant’s submission.
Section 4(b)(ii) of the 1987 Act defines “injury” to include:
“the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”
There does not appear to be any dispute between the parties that the applicant’s psychological injury is a disease. In Stewart v NSW Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202, Neilson CCJ (as he then was) said that to prove psychiatric injury, a worker needs to prove either:
(i)That the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse, or
(ii)The aggravation, acceleration, exacerbation or deterioration of a pre-existing condition.
I have previously found that the injury with the first respondent had not resolved and that the applicant suffered an aggravation and/or exacerbation of that injury with the second respondent.
For there to be an injury within the meaning of s 4(b)(ii) employment has to be “the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”.
Snell DP observed in AV v AW [2020] NSWWCCPD 9 (AV v AW) that the test of “main contributing factor”:
“involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”
It is settled law that it is not necessary that employment be the main contributing factor to the underlying disease process as a whole but rather just to the aggravation, acceleration, exacerbation or deterioration.[20]
[20] AV v AW; Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic).
Whilst Dr Anand observed that there are multiple factors which have impacted on the applicant’s mental health, including issues related to his employment with the first and second respondent’s, pre-existing depression, issues within his personal life as well as long standing alcohol use. It is the doctor’s opinion that the applicant’s employment with the first and second respondents have both contributed to his psychological injury and appeared to be the main contributing factor to the aggravation of his depressive disorder. Those aggravations occurred at different times.
Whilst Dr Honey concedes that the applicant may have suffered an aggravation with the second respondent, the doctor is “very doubtful” that the second respondent was a “substantial contributing factor” to an aggravation, acceleration, exacerbation or deterioration of a disease. The doctor did not explain why the applicant’s employment with the second respondent would not have been a substantial contributing factor to an aggravation and did not refer directly to any other competing causes of the aggravation/exacerbation.
Dr Honey did note that there was a particularly stressful event in his life in September 2024 when a friends two children were murdered by their mother however the doctor did not elaborate further on the impact of this on the applicant’s mental health and did not proffer this event as an alternate or competing cause for the aggravation in any meaningful way.
Dr Marchant considered the consequences of the tragic murders noting that the applicant reported that he was able to find some resolution to that shock by the end of 2024.
The second respondent submits that the murder of the friends two children by their mother, which the applicant learnt of on 11 September 2024, would have been very troubling. I accept that the event was troubling to the applicant. However, there is no evidence that it either caused the applicant any incapacity or that it contributed to the exacerbation which the applicant suffered with the second respondent.
In my view the weight of the evidence supports that the applicant’s employment with the second respondent was/is the main contributing factor to the aggravation and/or exacerbation. The opinions of Mr Gullotta, Dr Marchant and Dr Anand support that conclusion. The opinion of Mr Gullotta is particularly persuasive given that Mr Gullotta was treating the applicant at the time that the exacerbation occurred.
For the above reasons I find that the applicant sustained a psychological injury as defined by s 4(b)(ii) of the 1987 Act in the course of his employment with the second respondent.

Incapacity

The applicant seeks weekly compensation pursuant to s 37 of the 1987 Act from 6 January 2025 to date and continuing.
In the applicant’s submission the opinion of Dr Honey that the applicant is not suffering from a psychological condition is an “outlier” not supported by the weight of the evidence. I accept the applicant’s submission.
On 25 March 2025 Mr Gullotta reported to the applicant’s then solicitors with a diagnosis of a Major Depressive Disorder providing reasons for that diagnosis. In the opinion of Mr Gullotta, the applicant’s condition remained chronic, and his mental health continued to be fragile, particularly in response to work-related stressors. In the opinion of Mr Gullotta, the applicant’s time off work was reasonably and causally related to his psychological injury. The mental health distress stemming from the workplace injuries with both the first and second respondent significantly impairing his ability to engage in any form of work.
Dr Marchant who reported on the applicant on 23 January 2025 stated in response to being asked whether the injury with the first respondent had resolved that he could not “with any level of certainty or defendability, say that the original injury had or has resolved.”[21]
[21] R1 Reply p. 12.
It is the doctor’s opinion that the worsening of the of the applicant’s mental health throughout his employment with the second respondent represented an aggravation of the original condition. In the doctor’s opinion the applicant’s symptoms at the time of examination were clinically significant and, in the doctors, opinion fulfilled the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood.
Dr Anand who reported on 6 March 2025 was of the opinion that the applicant met the criteria for major depressive disorder with alcohol use disorder observing that there were multiple factors which have impacted on his mental health, including issues related to his employment with the first and second respondents and issues within his personal life. In the doctor’s opinion the aggravation from his employment had not ceased entirely, as evidenced by his ongoing symptoms.
In the applicant’s submission the opinion of Mr Gullotta that the applicant has no capacity for work should be accepted. I accept the applicant’s submission.
On 16 October 2024 Mr Gullotta reported to Dr Lee that on the background of the issues at work with the second respondent the applicant had suffered a relapse. In the opinion of Mr Gullotta, the applicant’s ability to engage in full-time work had been severely compromised due to his psychological injury and as a result Mr Gullotta strongly recommend revising his Certificate of Capacity to reflect his current mental state and his capacity for work. Mr Gullotta recommended a treatment plan to stabilise the applicant’s condition.
On 29 October 2024 Mr Gullotta reported to Dr Lee that some short-term stabilisation of the applicant’s condition had been achieved. To further assist with the applicant’s recovery Mr Gullotta, recommend a graded return to work. He proposed increasing the applicant’s work capacity to one day per week as part of a structured reintegration plan. Mr Gullotta observed that this graded approach aimed to build resilience while minimising the risk of further setbacks. In addition, the applicant and Mr Gullotta had been exploring the possibility of a return to teaching.
Dr Lee reported to Allianz on 31 October 2024[22] that the change in certification of capacity on 16 October 2024 was based on Mr Gullotta's report of 16 October 2024.
[22] ARD pp. 48-49.
In Certificates of Capacity dated 13 September 2024 and 12 October 2024 Dr Lee certified the applicant with capacity for some type of work from 13 September 2024 to 8 November 2024 working eight hours per day, five days per week.[23] With the exacerbation of the applicant’s condition with the second respondent Dr Lee in a Certificate of Capacity dated
[23] ARD p. 257, 260.
[24] ARD p. 263.
[25] ARD p. 266.
16 October 2024 downgraded the applicant certifying him with no current capacity for any form of work from 16 October 2024 to 30 October 2024.[24] In accordance with the recommendation of Mr Gullotta, Dr Lee on 30 October 2024 certified the applicant with capacity for some type of work from 30 October 2024 to 13 November 2024 eight hours per day, one day per week.[25]
In a Certificate of Capacity dated 13 November 2024 Dr Lee certified the applicant with capacity for some type of work from 13 November 2024 to 11 December 2024 working eight hours per day, 5 days per week.[26] This certification continued to 8 January 2025.[27] The basis for this short term upgrade in the applicant’s certification of capacity is unclear, however the certification was again downgraded on 20 December 2024 when the applicant was certified as having no capacity for any work from 20 December 2024 to 10 January 2025.[28] Between 10 January 2025 and 6 March 2025 the applicant continued to be certified with no capacity for work.[29]
[26] ARD p. 269.
[27] ARD p. 272.
[28] ARD p. 275.
[29] ARD p. 278, 281.
On 25 March 2025 Mr Gullotta reported to the applicant’s then solicitors that the applicant’s condition remained chronic, and that his mental health continued to be fragile, particularly in response to work-related stressors. In Mr Gullotta’s opinion a recovery in mental health symptoms for a full return to work in pre-injury duties and hours as a primary school teacher, is extremely unlikely. His prognosis for recovery from the psychological injury more generally is possible but guarded.
Mr Gullotta believed the applicant may have the capacity to return to some form of work “if” he were to receive ongoing psychological support, vocational rehabilitation and potential pharmacological interventions. However, Mr Gullotta noted that there had not been any meaningful or significant engagement in therapy since the insurers denied liability. As such, the applicant’s treatment needs had changed, and he now required a multidisciplinary and extensive treatment approach.
Mr Gullotta was of the opinion that the applicant did not have any capacity to engage in any form of work or study. In his opinion the applicant’s capacity to return to some form of work could improve with a recommended treatment plan and a gradual return to work under suitable conditions. In his opinion a gradual return to work should commence two to three days per week, three to four hours per day or potentially 10-20 hours per week. This would allow the applicant to re-engage in work while minimising risk of relapse of symptoms.
In Mr Gullotta’s opinion the applicant would require vocational rehabilitation to assist in identifying his transferrable skills and identify practical training to re-enter the workforce. Further psychological rehabilitation would also be beneficial to help him manage work related stress, build resilience, and cope with workplace stress in a more adaptive manner.
In the opinion of Mr Gullotta, the applicant’s time off work was reasonably and causally related to his psychological injury. The mental health distress stemming from his workplace injuries with both the first and second respondent significantly impaired his ability to engage in any form of work. The psychological impact of these stressors has led to extended periods of time off work, which in the opinion of Mr Gullotta is a reasonable response to the severity of his condition.

Like Mr Gullotta, Dr Anand in his report of 6 March 2025 noted that the applicant had been unable to return to work since 7 October 2024 due to his psychological injury and in the doctor’s opinion the applicant’s time off work was reasonably and causally related to the injury.
In the opinion of Dr Anand, the applicant had the capacity to go back to work for around 20 hours per week in a suitable role as identified by engaging with a vocational consultant and identifying his transferable skills. The doctor observed that the applicant would also benefit from ongoing engagement with a psychologist or a psychiatrist. In the doctor’s opinion the applicant would benefit from a return to work.
Dr Marchant did not provide an opinion as to the applicant’s capacity for work.
As previously discussed, I do not accept the opinion of Dr Honey that the applicant has recovered from the injuries sustained with the first and second respondent.
In my view Mr Gullotta as the applicant treating psychologist is in the best position to assess the applicant’s capacity for employment. Mr Gullotta has had the opportunity to examine the applicant on multiple occasions with those examinations occurring both prior to the applicant engaging in employment with the respondent, during the course of that employment and after the applicant’s condition had been exacerbated. As such Mr Gullotta is best placed to not only assess the applicant’s functional capacity but also the condition of the applicant and the risks posed to the applicant’s psychological condition by potential reengagement in employment.
Whilst Mr Gullotta in his report of 29 October 2024 recommend a graded return to work and proposed increasing the applicant’s work capacity to one day per week as part of a structured reintegration plan no such plan was ever adopted. The graded approach was in effect part work and part treatment with Mr Gullotta observing that this graded approach aimed to build resilience while minimising the risk of further setbacks.
Whilst Mr Gullotta in his report of 25 March 2025 stated that he believed that the applicant “may” have the capacity to return to some form of work “if” he were to receive ongoing psychological support, vocational rehabilitation and potential pharmacological interventions, the applicant remained psychologically injured and fragile. Whilst the applicant had received some treatment from Mr Gullotta the multidisciplinary approach that he suggested was required had not been adopted and no rehabilitation plan to return to gradual return the applicant to work instituted.
Whilst Dr Anand is the opinion that the applicant has the capacity to go back to work for around 20 hours per week in a suitable role as identified by engaging with a vocational consultant and identifying his transferable skills and whilst also noting that he would benefit from ongoing engagement with a psychologist or a psychiatrist, which has not occurred. In many respects the opinion of Dr Anand is not dissimilar to that of Mr Gullotta. However whilst Dr Gullotta indicates that some degree of treatment is required prior to the applicant engaging in a managed return to work program Dr Anand does not explain, given that the doctor accepts that the applicant’s time off work was reasonable and causally related to his work related injuries, how the applicant progresses from having no current work capacity to having a capacity to work 20 hours per week without there at first being some further treatment and management of the condition.
The second respondent submits that the applicant has received treatment with Dr Lee noting in his report of 31 October 2024 that the applicant had previously been referred to a psychiatrist.
Dr Lee does not elaborate any further on the referral however Dr Lee did refer the applicant to Dr Kin Chiam of St John of God Burwood Medical Centre on 1 May 2024 prior to the applicant commencing employment with the respondent. The reference by Dr Lee to the applicant having been previously referred to a psychiatrist goes on to state “and would benefit from Specialist Psychiatric input.” It would seem from the reference that the applicant was receiving specialist psychiatric input at that time and whilst there are references in the GP records to the input from Mr Gullotta there is no reference that I have been able to locate to any input from a psychiatrist.
In the second respondent’s submission that the opinion of Mr Gullotta in his report of
25 March 2025 at [23] that the applicant has no capacity for work is “cut across” at [25] which limits incapacity to working as a primary school teacher. I do not accept the submission. At [23] Mr Gullotta gives his opinion as to the applicant’s current capacity to engage in any form of work or study. At [24] he gives his opinion as to whether the applicant will “ever” be able to return to work as a full-time primary school teacher. At [25] he provides his opinion as to how the applicant’s capacity to return to “some form of work” could be improved with a treatment plan and a gradual return to work under suitable conditions. At [26] he speculates that the applicant “may” be able to return to primary teaching on a casual basis in the future with limitations. At [27] he talks about potential roles. I do not see any “cut across” as submitted. The opinion in my view is clear and unambiguous.
For the above reasons I accept the opinion of Mr Gullotta that the applicant has and has had no capacity to engage in any form of work or study.
In the second respondent’s submission there is a further “cut across” at [46] however there is no [46] in the report, and I assume that the reference is to [25] which refers to a treatment plan and the second respondent submitting that the applicant has had some treatment. I accept that the applicant has received some treatment from both Mr Gullotta and his GP, however, the applicant in the psychologist’s opinion continues to be symptomatic with a diagnosable condition which in the psychologist’s opinion has resulted in the applicant being totally incapacitated for work with the psychologist providing a recommendation for further treatment.
The second respondent submits in respect to the evidence of the applicant in his statement dated 20 May 2025 at [9] where he discusses his problems following the work incidents and in particular the “multiple declinatures” that the effects flowing from the declinatures would be pure litigation neurosis and not compensable.
It is settled law that litigation neurosis is not compensable. There is however no medical opinion to the effect that the applicant is suffering from litigation neurosis or that the psychological effects of the declinature have affected his capacity to work.
For the above reasons I find that the applicant has had no current capacity for work
6 January 2025 to date and continuing.

Apportionment

As previously discussed, the applicant had not recovered from the injury with the first respondent by the time he commenced employment with the second respondent. Nor had he recovered from the injury sustained with the first respondent by the time he suffered the aggravation/exacerbation with the second respondent.
Whilst the applicant was able to return to employment working seven and a half hours per day, five days per week with the second respondent following the injury with the first respondent the applicant remained symptomatic, his psychological condition was fragile and susceptible to relapse. The reports of Mr Gullotta are littered with the psychologists concerns of a relapse given the applicant’s fragile psychological state. As Mr Gullotta in his report of
10 September 2024 observed:
“[CJA] has to some extent been able to adapt to his current work duties. However, he has experienced instances of irritability at work. Given his history of depressive symptoms; hesitancy; and irritability, which led to interpersonal difficulties; and negative rumenation, these symptoms remain a concern that requires ongoing monitoring and management. He has also had some instances where he has struggled with motivation. These fluctuations, while not pervasive, indicate areas where additional support may be needed to ensure long-term stability.”
Dr Lee in his report of 31 October 2024 also observed that it was:
“difficult to state if [CJA] had not experienced the alleged workplace bullying at his new employment whether he would have been able to maintain his capacity for work at 8 hours per day 5 days per week.”
Whilst the applicant appears to have initially coped well with the work at the second respondent he has decompensated with the exacerbation having never fully recovered from the first injury and having continued in a fragile psychological state. Even though the applicant had returned to full-time work following the injury with the first respondent the applicant had not by the time of injury with the second respondent ever been cleared to return to his pre-injury duties.
Section 16(2A) of the 1987 Act provides for the apportionment of liability in the case of a disease injury stating:
“The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case—
C = T x A/B
where—
C is the contribution to be calculated for the particular employer concerned.
T is the amount of compensation to which the employer is required to contribute.
A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.”
I am of the view that it is appropriate in this matter to apply that formula, a position which is also taken by the second respondent. Neither the applicant nor the first respondent submitted as to the method of apportionment. There is otherwise no logical method of apportioning liability that I have been able to settle upon as whilst the applicant did demonstrate an earning capacity with the second respondent following the injury with the first respondent the fragility of the applicant’s ongoing condition as a result of the ongoing injury raises considerable doubt as to whether the applicant would have been able to maintain that or other alternate employment with the same hours of work if the injury with the second respondent had not been sustained.
I will however adjust the apportionment to take into consideration the fact that the PIAWE with the second respondent is less than that of the first respondent the applicant having been still subject to restrictions and incapacity as a result of the injury with the first respondent at the time that he commenced employment with the second respondent.
The applicant’s PIAWE with the first respondent is agreed at $2,190 and indexed as at
1 April 2025 at $2,200.
I calculate the PIAWE for the second respondent as $1,403.95 after adjusting the earnings period in accordance with regulation 8D of the Workers Compensation Regulations 2016 by closing the period on 11 October 2024. The second respondent PIAWE indexed at 1 April 2025 is $1,410.
There is some uncertainty on the evidence as to when the applicant ceased duties with the second respondent. The applicant pleads that he ceased work on 9 October 2024. However, the payslips record that he was last paid wages for 9, 10, 11 and 14 October 2024. He is advised by the second respondent of the end of the assignment with Transport NSW on
15 October 2024 and first certified as unfit for any work on 16 October 2024. For the purposes of the apportionment calculation, I will adopt 14 October 2024 as the last day that the applicant worked for the second respondent.
In the 12 month period to 14 October 2024 the applicant worked for the first respondent from 15 October 2023 to 7 December 2023 a period of 54 days and for the second respondent from 5 August 2024 to 14 October 2024 a period of 71 days. The base apportionment of liability is therefore 43% to the first respondent and 57% to the second respondent.
Pursuant to s 37 of the 1987 Act the applicant as a worker with no current work capacity has an entitlement to weekly payments of compensation at 80% of his PIAWE. Applying the PIAWE of the second respondent gives the applicant an entitlement of $1,123.16 for all periods prior to 1 April 2025 and an entitlement of $1,128 from 1 April 2025.
When the applicant commenced with the second respondent, he was already the subject of an incapacity as a result of the injury with the first respondent. Whilst the first respondent submitted that the applicant could have earned more than he did with the second respondent there is no evidence to support that submission.
To compensate the applicant for the incapacity which he was carrying prior to his commencement with the second respondent the first respondent is to additionally pay the difference between 80% of the first and second respondents PIAWE’s. I apportion the liability for the weekly benefits compensation as follows:
(a) The first respondent to pay to the applicant:
(i)$482.96 (43% of $1,123.16) + $628.84 ($2,190 x 0.8 = $1,752; $1,752 - $1,123.16) for the period 6 January 2025 to 31 March 2025, and
(ii)$485.04 (43% of $1,128) + $632 ($2,200 x 0.8 = $1,760; $1,760 - $1,128) for the period 1 April 2025 to date and continuing.
(b) The second respondent is to pay to the applicant:
(i)$640.20 (57% of $1,123.16) for the period 6 January 2025 to 31 March 2025, and
(ii)$642.96 (57% of $1,128) for the period 1 April 2025 to date and continuing subject to indexation.

Medical and treatment expenses

As I have found that the applicant sustained injury with the second respondent and that the injury sustained with the first respondent is ongoing there will be an award for the applicant pursuant to s 60 of the 1987 Act for the reasonably necessary medical and treatment expenses in accordance with the s 16(2A) 43% to the first respondent and 57% to the second respondent. As the treatment is for the one condition there is no need to adjust that apportionment as I have done for the payment of weekly compensation pursuant to s 37 of the 1987 Act.

[2025] NSWPIC 452

2 September 2025