Morris v Sika Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Morris v Sika Australia Pty Ltd [2025] NSWPIC 539
APPLICANT:	Sean Morris
RESPONDENT:	Sika Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	10 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation and medical expenses; whether claim made in time; discussion surrounding correct deemed date of injury; whether date the applicant says he first experienced symptoms or date of initial incapacity; whether applicant’s employment was the main contributing factor to his condition; whether medical basis for assertion to contrary by respondent accords with the evidence; whether the injury was caused by perception of real events; whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to transfer and/or provision of employment benefits; whether a temporal basis for the section 11A defence exists; whether the applicant is incapacitated for employment and if so to what extent; Held – applicant did not suffer incapacity in relation to his condition or receive a diagnosis of any psychological condition until 22 January 2025, which is the correct deemed date of injury; Haddad v the GEO Group Australia Pty Ltd followed; the evidence discloses the applicant was and remains totally incapacitated for employment and accordingly the respondent will be ordered to pay weekly compensation as claimed; respondent is to pay the applicant’s medical and treatment expenses pursuant to section 60.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 22 January 2025. 2. At the date of his injury, the applicant’s pre-injury average weekly earnings were $2,204.00 per week. 3. The applicant’s injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to transfer and/or employment benefits. 4. The defence pursuant to s 254 and s 261 of the Workplace Injury Management andWorkers Compensation Act 1998 is unsuccessful. 5. As a result of his injury, the applicant has been totally incapacitated for employment from 22 January 2025 to date and continuing. 6. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 as follows: (a) from 22 January 2025 to 31 March 2025 at a rate of $2,093.80 per week, and (b) from 1 April 2025 to 22 April 2025 at the rate of $2,099.50 per week. 7. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 23 April 2025 to 30 September 2025 at the rate of $1,768 per week, and (b) from 1 October 2025 to date and continuing at the rate of $1,792 per week. 8. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Sean Morris, seeks payment of weekly compensation and medical expenses with respect to an alleged psychological injury suffered in the course of his employment with the respondent, Sika Australia Pty Ltd.
The applicant pleads a deemed date of injury of 15 March 2024, being the period where he believes he first experienced psychological symptoms, despite not consulting a general practitioner (GP) or taking any time off work as a result of the alleged condition until January 2025.
The respondent disputes liability on a number of bases, including that the claim was made out of time; that the applicant did not suffer a work injury, and if such an injury was suffered, it was wholly or predominantly caused by the respondent’s reasonable actions with respect to provision of employment benefits and social transfer. The respondent also argues the applicant is not incapacitated as alleged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant’s claim was brought out of time;
(b)    whether the applicant suffered a work injury;
(c)    if the answer to (b) above is in the affirmative, whether that injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to transfer and/or provision of employment benefits, and
(d)    whether the applicant is incapacitated for employment, and if so, to what extent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 7 October 2025. The applicant was represented by Mr Malouf of counsel, instructed by Ms Panju. The respondent was represented by Mr Pecelj of counsel, instructed by Mr Chronister.
At the preliminary conference, the applicant was granted leave to lodge an Amended Application to Resolve a Dispute (Application) pleading a claim for medical and treatment expenses. No objection was taken at the hearing to that claim, and accordingly the matter proceeded as one which dealt with both medical expenses and weekly payments.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at the rate of $2,204.00 per week, subject to periodic indexation.
At the hearing, the applicant objected to the respondent raising a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act), on the basis the defence was insufficiently particularised and that the respondent would therefore require leave to raise it over objection. After hearing submissions from both counsel, I determined to allow the respondent to raise and ventilate the defence pursuant to s 11A.
The respondent also sought leave to raise a defence pursuant to s 53 of the 1987 Act. That defence said to arise as a result of the provision of financial records by the applicant to the respondent in answer to a Notice for Production. Notice of the proposal to raise that defence was first sent to the applicant’s solicitors on or about 30 September 2025.
It is a requirement when considering a defence pursuant to s 53 that the Commission be satisfied any potential incapacity on the part of an injured worker is likely to be of a permanent nature. Given the defence pursuant to s 53 was raised so late in proceedings, it was apparent the applicant would not be able to meet this aspect of the defence at the hearing, and after hearing from both counsel, I rejected the application by the respondent to dispute liability on this basis.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments;
(c)    applicant’s Application to Lodge Additional Documents (ALAD) dated 19 September 2025 and attachments, and
(d)    respondent’s ALAD dated 30 September 2025 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant’s claim was brought out of time

The respondent’s argument that the applicant’s claim was brought out of time relies on the date of injury pleaded in the Application, namely 15 March 2024.
The difficulty with the pleaded deemed date of injury is although the applicant considered himself to be suffering from symptoms at that point in time, he did not receive a diagnosis until January 2025. It is a prerequisite for a finding of psychological injury that a recognisable psychological or psychiatric disorder is identified. That is, it is not enough simply for a worker to complain of feelings of stress or generalised anxiety. As Mr Malouf noted, and I accept, there can be no psychological injury until such time as the applicant receives a diagnosis. Moreover, the question of a correct deemed date of injury in circumstances such as the present case was settled by the Court of Appeal in Haddad v the GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad).
In that matter, the worker made a claim for weekly payments and medical expenses from his first date of incapacity, namely January 2017 onwards. Having withdrawn the claim for weekly payments in November 2021, the worker alleged the correct deemed date of injury was the date of claim (19 January 2021) rather than the date of first incapacity,
20 January 2017.
The Court of Appeal held that where a worker suffers incapacity, the fact they later make a claim for a benefit which does not rely on that incapacity does not mean the fact of the incapacity can be ignored, and as such, the correct deemed date of injury was
20 January 2017.
Applying the Court of Appeal’s reasoning in Haddad to the facts of this matter, it follows the correct deemed date of injury would be that of the applicant’s first date of incapacity, namely 22 January 2025.
However, even if it was the case that the applicant’s deemed date of injury was March 2024, it follows he could not be aware that he was entitled to make a claim until such time as he was diagnosed with a psychological condition, which was also in January 2025. This being so, the applicant plainly has a reasonable excuse, namely ignorance of his having suffered a psychological injury in the nature of a recognisable psychiatric condition, sufficient to obviate the operation of ss 254 and 261 of the 1998 Act.

Whether the applicant suffered a psychological injury

The applicant carries the onus of establishing he suffered a psychological injury. In cases involving a disease process such as the present (and in all cases involving psychological injury), the applicant must establish his employment was the main contributing factor to his injury, rather than a substantial contributing factor as is required under s 9A of the 1987 Act for frank injuries.
As Mr Pecelj noted, the applicant must satisfy the Commission that his employment was the chief or principal cause of his injury: see Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 and AV v AW [2020] NSWWCCPD 9. In that case, Snell DP said at [66]:
“[66] I previously expressed a view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one ‘substantial contributing factor.’ … That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ permits the existence of only one such factor. The requirement of the main contributing factor involves a more stringent connection with the employment than the requirement of a substantial contributing factor but applied to disease injuries prior to the 2012 amendments.”
The applicant set out his evidence concerning the onset of his injury as follows:
“[17] I suffered a psychological injury in the workplace. Whilst my certificate of capacity, issued by Dr Medina on 22 January 2025, lists the injury date as
15 March 2024, my injury was a buildup of work-related stress over time.
[18] In late 2023, I received a phone call from manager Reg Hutchinson (‘Hutchinson’), who expressed concerns regarding [the applicant’s direct manager Chachi Tilocca]’s excessive alcohol consumption, which had been noticed by others in the workplace. I was also aware that Tilocca was consuming alcohol as I spoke to him regularly and could hear him slurring his words, generally in the afternoons when he was working from home.
[19] I called Tilocca and informed him of my concerns and that other staff had noticed his drinking. Tilocca appeared to listen to what I had to say; however, he remained quiet and did not say much.
[20] For context, Tilocca would generally get into the office around 8:00 am and we would speak about work-related matters. Tilocca would then drive home around lunchtime comment, he would consume alcohol progressively over the afternoon. I could detect his slurred speech, and I heard him open beer cans as he opened the fridge.
[21] Around January 2024, I believe Tilocca may have listened to what I told him, as he appeared to stop drinking alcohol during the afternoons at work.
[22] Sometime in early February 2024, Tilocca called me around 7:00 pm and he was heavily affected by alcohol. Tilocca I told me that he had purchased some concert tickets for a Matchbox 20 concert on 24 February 2024 in Sydney for a customer. I am unsure why Tilocca called me to tell me that.
[25] The following morning, Tilocca called me and relayed the same story again. I did not say anything to him, but he did not recall our conversation the evening before. Tilocca’s drinking became worse and worse.
[24] This caused me anxiety as Tilocca could be short with me. He was sometimes aggressive, he repeated himself and he was generally difficult to communicate with. This made things hard as I relied on him as a national sales manager to provide things such as product pricing or to discuss general business. I received little support from him.
[25] Tilocca’s capacity to work effectively was diminished and I considered reporting my concerns to management, but I was uncomfortable to do so.”
The applicant then refers to a number of tenders for which the respondent was bidding. He noted Mr Tilocca’s input was minimal as he was drinking, and in around August or September 2024, Mr Hutchison again mentioned his concerns about Mr Tilocca’s drinking.
The respondent was unsuccessful in one of the tenders, and the other decided to roll their contract over for 12 months rather than enter into a new agreement.
According to the applicant, by late 2024, “I was not in a good headspace mentally. I was extremely anxious, I did not feel like leaving the house or go to work or shopping.”
The applicant’s statement continued:
“[32] I had a meeting with Boral in mid-January 2025 and Tilocca called me afterwards to see how the meeting went. Tilocca sounded paranoid, he said that we should not speak on the phone, people were listening and watching us.
[33] I received a further call from Tilocca and he said that we needed to increase sales with Boral. I sent an email to Tilocca outlining how we could improve the sales then he called and asked me where the information was (which I had sent him), Tilocca asked me why I was making his life hard. I decided then and there that I could not work in that environment anymore or accept his behaviour. Tilocca’s alcohol consumption was impairing his ability to work properly.
[34] On 22 January 2025, I consulted my GP, Dr Kyle Medina, and secured a certificate of capacity. Dr Medina diagnosed me with an adjustment disorder with low mood and anxiety secondary to work-related stress.”
In a supplementary statement dated 11 March 2025, the applicant noted his initial certificate of capacity was obtained on 22 January 2025, but that he had told his GP his injury dated from 15 March 2024. On that explanation, the applicant said:
“[5]    The reason for this is because, in March 2024, I first experienced psychological symptoms.
[6]     During March 2024, I was on annual leave as I was going on a holiday to Bali. However, during my holiday, I began to experience psychological symptoms. While I was in Bali, or what I could think about was what was happening at work, and what was going to happen to me in the future when I returned from holiday. This is the last thing I wanted to do while I am on a holiday. I remember the symptoms of sickening and I felt horrible. As a result, I was suffering from anxiety during my holiday away.
[7]     Although this was only early days, it was the first time that I remember experiencing any psychological symptoms in regard to the subject incident. This is why I came back from holiday and reported this to my GP. This is why he reported my date of injury as being March 2024.”
Through the course of three statements, the applicant maintains that he had no predisposing stressors in his life other than the work-related issues. The respondent denies liability for any injury on essentially two bases. The first is that the applicant’s supervisor Mr Tilocca did not drink at work, and as such the applicant’s complaint did not relate to real events. The second basis is that in any event, the applicant had a number of non-work-related stressors which also caused his injury, such that his employment was not the main contributing factor to it.
I do not believe it necessary to make a definitive finding as to whether Mr Tilocca was consuming alcohol in the course of his employment. For his part, Mr Tilocca denied this was the case, and the statement provided by the respondent’s senior target market manager, Mr Benes stated, “There was absolutely no evidence of Tilocca consuming alcohol during works hours…”
The respondent alleges the applicant’s injury, to the extent it relates to concerns surrounding Mr Tilocca’s supposed drinking, is not based on real events, as Mr Tilocca did not drink in the workplace. However, I reject that submission.
The parties agree that an injury can be based upon a worker’s perceptions of real events. That much is made clear in the line of authorities commencing with Attorney General’s Department v K [2010] NSWWCCPD 76, in which Roche DP made it clear a flawed perception of events may give rise to an injury, so long as the events within the workplace were real, rather than imaginary.
In this matter, the question of whether Mr Tilocca was actually drinking is not determinative of whether they were real events of concern in the workplace. Rather, it is apparent several of Mr Tilocca’s colleagues, including but not limited to the applicant, were concerned about his behaviour and performance, which concerns they attributed to alcohol consumption. Regardless of whether Mr Tilocca was actually drinking or not, the concerns expressed in the workplace about his behaviour and performance were plainly real.
Indeed, Mr Benes, having said there was “absolutely no evidence” of Mr Tilocca consuming alcohol whilst working, then revealed the following instances where concerns were in fact raised about him:
(a)    a telephone call from the applicant on 13 February 2025 mentioning that talk I have been consuming alcohol at work, following which Mr Benes said, “I confirm that I did tell the claimant that I had spoken to Tilocca, and he denied consuming alcohol whilst working. I told the claimant that I had spoken to HR about this in the past.”
(b)    other colleagues had raised concerns about Mr Tilocca in or around mid-2024 concerning slurring his words during MS Teams meetings, and that he appeared to be affected by alcohol, prompting Mr Benes to contact HR about the matter;
(c)    Mr Benes himself contacted Tilocca, who completely denied he had consumed alcohol whilst working, and
(d)    the respondent subjected Mr Tilocca to a random breath test.
These issues are in addition to Mr Hutchinson raising concerns about Mr Tilocca to the claimant. Although Mr Benes says that Mr Hutchinson “would do anything to progress in the business” and suspected rumours about Mr Tilocca consuming alcohol were started by him, there is no question that the concerns surrounding Mr Tilocca were expressed not just by the applicant but by others, and as such, I have no difficulty in accepting the applicant’s concerns were based on real events.

To the extent Mr Benes’ statement is contradictory to that of the applicant, I prefer the evidence of the applicant. Mr Benes’ statement contains a number of internal contradictions. He states there was no evidence of Tilocca drinking in the workplace, then listed several examples of where people stated that he was. I also noted that he had referred concerns to HR himself.
The respondent also suggests that non-work-related factors are causative of the applicant’s condition.
The respondent’s Independent Medical Examiner (IME), Associate Professor Basu, provided a report dated 22 April 2025, and a supplementary report dated 20 May 2025. In his first report, Associate Professor Basu noted there were other stressors present in the applicant’s life. He stated the following:
“Sika Australia Pty Ltd rejected Mr Morris’ proposal for similar retirement in Bali with continued remote work in April 2024. His default settlement required him to sell his house in late 2024. Construction of his home in Bali was delayed in late 2024/early 2025 due to windows and road noise issues. During my interview, upon direct questioning about these stressors, Mr Morris underpaid their role in his current mental health.”
This statement by Associate Professor Basu is contrary to every piece of contemporaneous medical evidence in the matter. There is no evidence whatsoever of the applicant being at all concerned from a psychological perspective about any of the matters on which Associate Professor Basu bases his opinion. Indeed, before Associate Professor Basu’s report, there was never any mention of these stressors at all by the applicant to any treating or
medico-legal practitioner.
Moreover, the listed stressors are not accounted for accurately by Associate Professor Basu. For example, the applicant separated from his wife in 2022, not 2024. There is no suggestion at all that anything other than work caused the applicant’s condition.
There is also a factual problem for the respondent in relying on the refusal of the applicant’s application to live and work remotely from Bali. That is, in his statement which is not contradicted, the applicant said he asked to work remotely from Bali in an email on about
10 April 2024 because he had already reached the point where he was suffering stress and anxiety in the workplace. That application was rejected by no later than 16 April 2024, and the rejection was conveyed to the applicant, after which he simply continued to carry out his work. Accepting as I do the applicant’s version of events, it follows that as he was already experiencing symptoms of depression and anxiety by April 2024, the rejection of his application to live overseas cannot be causative of his condition, as it already existed and indeed its very existence prompted him to make the application for a transfer to live and work remotely.
On balance, I reject Associate Professor Basu’s contention that non-work-related factors were causative of the applicant’s condition. Rather, I prefer the opinion of Dr Kumar, who took an accurate history of the applicant’s work-related issues and conditions, diagnosed him with a generalised anxiety disorder and found the main cause of the applicant’s psychiatric injury was his employment.
In his report dated 3 June 2025, Dr Kumar, when asked specifically what the main cause of the applicant’s injury was, stated:
“The primary cause of Mr Morris’ generalised anxiety disorder are workplace events. Mr Morris believed that his immediate manager was consuming an excessive amount of alcohol at work and did affected the manager’s ability to work. As a result, he was not able to provide the assistance that Mr Morris required imagining a highly complex and stressful workplace environment. He was not supported when he raised concerns about the manager, and this eventually led him to stop work. There are no other nonwork-related factors identified. I have noted the s 78 Notice, however the factors identified in s 78 are not credible, and there is no evidence that these factors have led to any psychiatric disturbances.”
This opinion of Dr Kumar is consistent with the clinical records of Ms Gardner, treating psychologist, of the applicant’s GP and of treating psychologist, Mr Stevens. There is nothing to suggest anything other than the applicant’s employment with the respondent was causative of his psychiatric condition, and I therefore find he suffered a work-related psychological injury in the course of his employment with the respondent.

The Defence under s 11A

The respondent carries the onus of establishing a defence under s 11A. It must prove not only that its reasonable actions with respect (in this case) to either transfer and/or the provision of employment benefits was the whole or predominant cause of the applicant’s injury and that its actions were reasonable. Each of these limbs must be satisfied in order for the defence to be made out.
The respondent’s defence under s 11A fails at the first hurdle. This is because the actions which it took in relation to each of transfer and the provision of employment benefits relate to the rejection of the applicant’s request to live and work remotely from Bali. However, as has already been noted, the applicant’s condition had already been in existence at the point when that condition when that application was rejected. As such, the rejection logically cannot be even a substantial contributing factor to the development of the applicant’s condition, let alone the main contributing factor.
In circumstances where the evidence overwhelmingly demonstrates the respondent’s actions relied on were not the whole or predominant cause of injury, it is unnecessary to examine whether those actions were reasonable.
The overwhelming lay and medical evidence in this matter clearly establishes the respondent has not discharged its onus of proving the conduct relied on was the whole or predominant cause of the applicant’s injury. This being so, the defence under s 11A must fail.

Capacity for Employment

Mr Pecelj submitted the applicant has had capacity for employment at least from April 2025, at which point he was offered a job with the respondent at Wetherill Park. In the alternative, the respondent submitted the applicant’s certificate of capacity dated 12 February 2025 envisaged a return to work within three to six months. He submitted the Commission should not find any incapacity beyond approximately August 2025 at the latest.
The difficulty with this submission is the fact the applicant was offered a job does not mean he was fit to take it. Likewise, notwithstanding the certificate of capacity, the IME and treating evidence on balance discloses the applicant did not recover sufficiently to enable him to work, and I have no difficulty accepting the evidence of Dr Kumar that the applicant remains totally incapacitated for employment.
Indeed, there is no medical opinion in the matter which supports a finding of the applicant having capacity for employment. Associate Professor Basu’s reports are silent on this issue. By contrast, Dr Kumar states the applicant is and remains totally incapacitated for employment. This is the only opinion which addresses this issue. I have no difficulty in accepting it, as it has not been contradicted.
As such, there will be a finding the applicant has been totally incapacitated for employment from January 2025 to date as claimed.
The applicant’s PIAWE is agreed. I therefore accept the calculations contained within the applicant’s wages schedule in relation to the amounts payable by the respondent to him. Likewise, there is no attack on the medical expenses claimed, rather they were said not to be payable on the basis of the liability dispute.
Having found in favour of the applicant on questions of both liability and incapacity, there will therefore be orders made for the payment of weekly benefits and medical expenses as sought.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 539

10 October 2025