Oriental Star International Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Oriental Star International Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2025] NSWPIC 238
APPLICANT:	Oriental Star International Pty Ltd
RESPONDENT:	Workers Compensation Nominal Insurer (iCare) & Anor
MEMBER:	Rachel Homan
DATE OF DECISION:	30 May 2025
CATCHWORDS:	Workers Compensation Act 1987; miscellaneous claims assessment; application seeking orders that the applicant was not liable to reimburse the Insurance Fund an amount specified in a notice pursuant to section 145(1); whether injury pursuant to section 4; extent of incapacity resulting from injury; whether treatment expenses reasonably necessary; credibility of injured worker’s evidence and self-reporting of symptoms; Held – psychological injury sustained in the course of employment; the injured worker had current work capacity for part of the period in which he was paid on the basis of no current work capacity; amount the applicant is required to reimburse the insurance fund reduced; the medical and related treatment expenses were reasonably necessary as a result of injury.
DETERMINATIONS MADE:	1. The Commission declines to make the orders sought by the applicant. 2. Pursuant to s 145(4) of the Workers Compensation Act 1987, the applicant is to reimburse the first respondent the amount specified in the s 145(1) notice dated 21 August 2024 less: (a) $2,376.92 for the payment made as weekly compensation for the week commencing 15 November 2023, and (b) $360 per week for payments made as weekly compensation for the period from 22 November 2023 onwards.

STATEMENT OF REASONS

BACKGROUND

These proceedings concern a Miscellaneous Application lodged by Oriental Star International Pty Ltd (the applicant) seeking orders setting aside a notice issued under issued under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) by the Workers Compensation Nominal Insurer (the first respondent).
The notice in question was issued on 10 July 2024 and sought reimbursement of the amount of $91,386.27, being an amount paid as compensation to Mr Yongxiao Zhou (the second respondent) in respect of a psychological injury on “20 June 2023”.
After I had queried whether the date of injury on the notice was correct at the first preliminary conference, a further notice pursuant to s 145(1) of the 1987 Act was issued by the first respondent on 21 August 2024 seeking reimbursement of the amount of $107,726.47 in respect of a psychological injury on 24 September 2023. The Miscellaneous Application was subsequently amended, with the consent of all parties, to seek orders in respect of the later notice.
Particulars of the compensation paid annexed to the s 145(1) notice indicated that an amount of $95,949.47 had been paid as weekly compensation for the period from 15 November 2023 to 13 August 2024. In addition, $11,777 had been paid in medical expenses.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant is liable to reimburse the first respondent the amount set out in the notice issued pursuant to s 145(1) of the 1987 Act dated
21 August 2024, including:
(i)whether the second respondent received an injury pursuant to s 4 of the 1987 Act;
(ii)the extent and quantification of incapacity resulting from injury during the period covered by the s 145(1) notice, and
(iii)whether the medical and related treatment expenses identified in the notice were reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to a conciliation conference and arbitration hearing on 3 March 2025 after preliminary conferences on 14 August 2024, 23 September 2024, 30 October 2024 and a conciliation conference and arbitration hearing on 13 December 2024, which was unable to proceed due to the need for further interlocutory orders.
The applicant was represented at the arbitration hearing by Mr Wilson Chan of counsel, instructed by Mr David Chiu. The first respondent was represented by Mr Greg Young of counsel, instructed by Ms Katt Faapito. Mr Butcher from iCare was also present. The second respondent was represented by Ms Eraine Grotte of counsel, instructed by Mr Carmine Santone.
During the arbitration hearing, submissions were made in respect of bank statement evidence suggesting that the second respondent may have been in receipt of earnings for part of the period in respect of which weekly compensation was paid. As there was some uncertainty as to whether compensation was in fact paid in respect of that period, directions were made for further evidence and written submissions on that question to be lodged according to a timetable. The parties were advised of the Commission’s intention to determine the dispute on the material before it at the conclusion of that timetable
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Miscellaneous Application and attached documents;
(b)    Reply lodged by the first respondent and attached documents;
(c)    Reply lodged by the second respondent and attached documents;
(d)    Documents attached to Applications to Lodge Additional Documents lodged by:
(i)the applicant on 11 September 2024;
(ii)the first respondent on 13 September 2024;
(iii)the first respondent on 25 October 2024
(iv)the applicant on 20 November 2024;
(v)the first respondent on 9 December 2024;
(vi)the second respondent on 9 December 2024;
(vii)the second respondent on 20 December 2024;
(viii)the second respondent on 26 February 2025; and
(ix)the applicant on 27 February 2025;
(e)    “Chronology” handed up at hearing on 3 March 2025 by the applicant;
(f)    supplementary statement, dated 28 February 2025, handed up at hearing on
3 March 2025 by the second respondent, and
(g)    documents attached to an Application to Lodge Additional documents lodged by the first respondent on 12 March 2025.
It is noted that on 5 March 2025, the Commission granted leave to the second respondent to lodge the supplementary statement, dated 28 February 2025, and handed up at hearing on
3 March 2025, on the portal within three working days. On 10 March 2025, the second respondent lodged an Application to Lodge Additional Documents attaching a fresh statement dated 10 March 2025. Leave had not been granted to the second respondent to lodge a new statement. The other parties have not had an opportunity to make submissions in respect of the statement dated 10 March 2025. I am not satisfied that the introduction of that document is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings for the purposes of r 67C. Accordingly, I decline to admit the statement dated 10 March 2025.
No application was made to adduce oral evidence or cross-examine any witness.
The evidence attached to the Miscellaneous Application included a written offer of employment addressed to the second respondent, dated 22 May 2023. The second respondent was offered permanent employment as a Vice General Manager of the applicant’s business commencing on 20 June 2023. The second respondent was required to work 38 hours per week comprising five days per week at 7.6 hours per day. According to the offer, the second respondent was to be based in Sydney but may be required to travel to work at different locations interstate or overseas in the performance of his duties and responsibilities. The second respondent was subject to a three month probationary period.
A letter of termination sent on 21 September 2023 by Mr Jason Hung, Director, informed the second respondent that he had not passed probation and his employment was terminated with immediate effect.
An ordinary medical certificate issued by Dr So Hyun Kwon at 1Health Medical Centre on
21 September 2023, certified that the second respondent had a medical condition and would be unfit for work from 22 September 2023 to 29 September 2023.
A SIRA Worker’s Injury Claim Form was completed by the second respondent on
1 November 2023. The second respondent claimed that he sustained a psychological injury in the form of anxiety and depression due to bullying and harassment in the course of his employment with the applicant. In response to a question about other employment at the time of the injury, the second respondent disclosed:
“Employed by UNSW College to provide procurement function advice earning $2376.93 per week. Finished 21 November 2023.”

Jason Hung’s statement

The applicant relies on a written statement prepared on 8 May 2024 by Mr Jason Hung who is the applicant’s sole director.
Mr Hung indicated that the applicant was a subsidiary of a Hong Kong listed company, Greentech Technology. The second respondent was the applicant’s first employee and had been recruited to oversee the daily operations of the applicant’s business and provide guidance as to the operations of the business in Australia, including legislative compliance. It was expected that as part of the role, the second respondent would undertake regular trips to Tasmania, approximately once per month, and travel to Hong Kong. This was reflected in the employment agreement.
Between 27 June 2023 and 7 July 2023, the second respondent travelled to Hong Kong to meet with staff from Greentech Technology and its other subsidiaries (the Group). During this trip, Mr Hung said he had a conversation with the second respondent in which he enquired whether there was any workers insurance requirement in Australia. The second respondent advised there was no such requirement because the government covered all of those expenses in Australia. Having taken second respondent’s word for it, the applicant did not obtain a workers compensation insurance policy until early October 2023.
The second respondent undertook work trips to Tasmania between 16 July 2023 and
20 July 2023, 28 July 2023 to 23 August 2023 and 19 September 2023 to
21 September 2023. Mr Hung denied that the second respondent was required to take excessive business trips, stating that the second respondent knew all along that the role required him to travel to Tasmania to supervise the operation of mining sites and report back to the Group.
Whilst not travelling, the second respondent worked from home or had time off. Due to the nature of the job, the employment agreement allowed for flexible working days and hours.
Mr Hung denied that the second respondent ever made any complaints about his employment, work environment or other staff or disclosed any medical condition during the term of his employment. Mr Hung expressed the belief that the second respondent’s claim had been made in bad faith.
Mr Hung said that the second respondent’s employment was verbally terminated on
19 September 2023 after he made wilful and misleading representations to investors at a meeting on the same date. The Group’s policy had been to reduce operational costs yet the second respondent had announced to attendees at the meeting that the company should expand and put more resources into its operations. This representation placed Greentech Technology at risk of a multimillion dollar lawsuit.
The second respondent’s termination was confirmed in an email sent to him on
21 September 2023. On that date, Mr Hung said he had directed the second respondent to return company property. At about 1.49pm, the second respondent informed Mr Hung by WeChat that he had consulted a doctor and wished to take medical leave.
Mr Hung said he doubted the authenticity of the medical certificate as it appeared the second respondent had asked for it to be emailed to a particular address at 11.12am on
21 September 2023. The doctor was based in Sydney yet the second respondent did not return to Sydney from Tasmania until about 3.00pm or 4.00pm.
Mr Hung said this was the first time he came to know about the alleged injury.
Mr Hung said that after multiple unsuccessful attempts to contact the second respondent to secure the return of property including a laptop containing confidential information, he instructed a solicitor send an official letter of demand on 28 September 2023. The second respondent replied through his legal representatives on 6 October 2023 indicating that the property would be returned.
After further attempts to recover the property between 6 and 17 October 2023, some of the property was returned on 18 October 2023. Mr Hung noted that the entire operating system of the laptop had been removed without consent. It later became known that after the termination of his employment on 22 September 2023, the second respondent had forwarded at least two confidential emails to his personal address. A number of other items of property had still not been returned.

Second respondent’s statements

In a written statement dated 16 January 2024 but signed on 3 July 2024, the second respondent denied any medical history of significance or similar prior injury.
The second respondent said he was introduced to the applicant through a head hunter. The second respondent said that according to the job offer, his work location was to be Sydney but in actuality he had continuous business trips to locations such as Tasmania. The second respondent confirmed that during the period of his employment he went on three business trips to Tasmania and a 10 day business trip to Hong Kong.
The second respondent said his job responsibilities were mainly guided by Mr Xie Haiyu and Mr Hung. Instructions were usually conveyed orally or through WeChat.
The second respondent said that although his employment contract specified he was required to work 38 hours per week, he actually worked far more than that.
The second respondent disclosed that he was performing work for the University of NSW (UNSW) concurrently with his work for the applicant:
“I also did contracting work with UNSW Global as a consultant from 2022. This was casual work and was quite flexible. The hours varied depending on what work was required. I stopped this work in November 2023 because of my injury.”
During his employment with the applicant, the second respondent said he was required to go on excessive business trips, work overtime and perform tasks unrelated to his job description. The company culture was toxic. Mr Xie was insulting and demeaning towards employees and made slanderous remarks about other stakeholders.
The second respondent said he often had to work on weekends and late at night. Half of his time was spent on business trips. The second respondent spent a significant amount of time dealing with matters such as searching for housing and cars, working on renovations, housecleaning and preparing food for guests in Mr Xie’s private house. Mr Xie treated others as servants and behaved as a tyrant. There was a culture of flattery and complementing superiors within the company. The second respondent found it hard to handle Mr Xie’s short tempered and rude behaviour.
The second respondent said he repeatedly conveyed his dissatisfaction about the toxic work environment to Mr Hung who said there was no choice but to comply with Mr Xie’s directives. Mr Hung did not allow the second respondent to adjust his travel plans or voice objections. The second respondent’s work was filled with unprofessional management, undefined job scope and responsibilities and criticism and pressure from his superiors. These conditions troubled the second respondent. After being publicly humiliated and verbally dismissed on
19 September 2023, the second respondent experienced a severe stress reaction.
The second respondent said he consulted a general practitioner due to prolonged mental stress on 6 September 2023. The second respondent was advised to see a psychologist but due to time constraints and the upcoming trip to Tasmania was unable to schedule an appointment.
On the morning of 21 September 2023, on his way back to Sydney, the second respondent contacted his general practitioner narrating his experiences and received a medical certificate confirming his inability to work. That evening, the second respondent was formally informed that his employment had been terminated.
For a month after 19 September 2023, the second respondent experienced mental confusion, insomnia spasms and abrupt weight loss. From 24 September 2023 onwards, the second respondent consulted Dr Mohandas Balasingham who provided medication and certificates of capacity. The second respondent was taking venlafaxine and, occasionally, diazepam. On his general practitioner’s recommendation, the second respondent sought the assistance of a psychologist, Dr Sue Stern.
Annexed to the second respondent’s statement was a letter of referral to psychologist, Wei Lu dated 6 September 2023. The referral stated that the second respondent was under a lot of stress and pressure from work and had several work trips in the last three months. The second respondent was finding balancing life and work difficult and stressful. The work stress had driven the applicant to seek comfort food and increased alcohol intake which was exacerbating the second respondent’s type II diabetes mellitus.
The second respondent prepared a second written statement, dated 6 December 2024, in which he elaborated on his concurrent employment as a contractor for a subsidiary of UNSW. The second respondent’s role was to draft and prepare documents updating policies and procedures in relation to procurement.
The second respondent stated:
“As I was a contractor, it was quite quiet during my employment, and there was not a lot of work for me to do. I was hoping it would turn into a permanent role as I was struggling psychologically at Oriental due to my treatment. However, I realised that it would not be a long-term fix.
Whilst it was a full-time job, there was not much work involved in my role, and I was only using about 10% of my capacity. Whilst I was working for UNSW, my role only required me to work roughly five to ten hours per week, as that is all that was required.
This was how I managed to work two jobs at once. As my work with UNSW had no strict deadlines, I would do most of my work after work at Oriental. As UNSW had minimal work, I could complete most of the requested work within an hour.”
The second respondent said he was made redundant as there was not enough work for him to do.
The second respondent said he was able to continue his job at UNSW following the injury as the work was minimal and his boss was supportive.
The second respondent provided further details regarding the applicant’s workplace environment and the events on 19 September 2023.
The second respondent said that he had continued to see his psychologist once a week and was seeing a psychiatrist, Dr Gopi Ilawala, as needed. The second respondent consulted a general practitioner at Hawkesbury Road Family Medical Centre every two weeks for ongoing treatment.
The second respondent described his ongoing symptoms and said he did not feel that he could work. The second respondent said he would like to get back to work but was worried about handling the responsibility, particularly when he could not think as clearly.
A further written statement was prepared by the second respondent on 24 February 2025.
The second respondent stated that he was a director of a company, Armis Industries Pty Ltd, which operated a business selling masks and test kits during the COVID-19 pandemic. The second respondent said he stopped all involvement, including any work for the company, in June 2023. The second respondent denied receiving any income in any form during the course of his work with the company

With regard to his work at UNSW, the second respondent said he realised that his position was expected to become quiet in 2023. His daily routine changed to a relatively low workload involving processing purchase orders. The second respondent started seeking alternative employment opportunities.
The second respondent said that after the incident on 19 September 2023 and his subsequent termination, his mental health deteriorated and he found it increasingly difficult to manage his daily routine. In November 2023, the second respondent was advised that he would be made redundant. The second respondent accepted the redundancy and chose not to participate in a redeployment process. One of the reasons for this was that the second respondent was spending time in hospital taking care of a family member.
The second respondent said that he shared a bank account with his wife, DanFeng Chen. Transactions into that account were made from his wife’s business as shareholder loans, a gift from his father and repayment of a debt from a friend. The second respondent was also reimbursed by a company, Sanfeng, for a trip to Perth in April 2024.
In a fourth statement, dated 28 February 2025, the second respondent addressed his association with various corporate entities including Sanfang Australia Pty Ltd. The second respondent said his role at Sanfang was to provide information regarding the steel market to assist the owner to sell steel products. The second respondent said the correct date of resignation of his role as Director was 30 June 2023.

Danfeng Chen’s statement

A written statement prepared by the second respondent’s spouse, Danfeng Chen, dated
24 February 2025 indicated that she opened a business in 2014 offering supply chain solutions. Ms Chen confirmed that several deposits into a joint bank account held with the second respondent were shareholder loans from her business.
Ms Chen said that, as the second respondent’s income was limited due to his incapacity for work, she borrowed money from her business to support the family’s daily expenses. The second respondent was not involved in the business or the transactions.

Treating evidence

1Health Medical Centre

Clinical records from1Health Medical Centre show a consultation with Dr So Hyun Kwon on
6 September 2023, in which the second respondent was recorded to have reported that his diet and exercise were worse in the last few months especially since having to work in Tasmania for six weeks away from family. The second respondent reported increased stress and increased alcohol intake were driving poor eating habits and he was reaching out for comfort food. The second respondent reported low mood as he was finding it difficult to find time to spend with his family and felt stuck.
On 21 September 2023, Dr Kwon recorded telephone consultation as follows,
“under a lot of stress due to work
affecting his mental health
would like to take some time off work
medical certificate needed
denies TOS/TOSH/TOHO”
On 23 September 2023, Dr Kwon had a long discussion with the second respondent about stress due to workload and a stressful and unsupported working environment. The second respondent reported that his employer had made inappropriate comments about him in public during an official dinner on 19 September 2023. This had affected the second respondent’s mental and physical health. The second respondent was binge eating, had disturbed sleep, anxiety around work, dizziness and distressed mood. It was noted that the second respondent had been on several interstate and overseas business trips. The second respondent had seen a workers compensation lawyer and wished to make a claim. The second respondent was referred to a psychologist.
On 11 October 2023, Dr Kwon prepared a report for the applicant’s solicitors confirming that the medical certificate issued on 21 September 2023 was issued by her following a telephone consultation that morning.

Woodville Road Medical + Dental Centre

Clinical records from Woodville Road Medical + Dental Centre record that on or around
24 September 2023, the second respondent reported psychological symptoms due to a toxic work environment. The second respondent reported that his work was poorly managed and he was asked to do personal work including house painting for his boss. The second respondent was treated as personal servant and required to work overtime without extra pay. The owners and senior managers bullied the applicant and threatened that he would be fired if he didn’t finish his work on time.
The second respondent reported that he had developed symptoms of anxiety and panic attacks with increased heartbeat, shortness of breath, sweaty palms, red eyes, cold sweats, dizziness and loss of balance. Other reported symptoms included, a low tolerance to anger and frustration, disrupted sleep, constant depressed mood, tearfulness, low self-esteem, lack of motivation, poor memory and concentration, social anxiety and withdrawal, poor problem-solving abilities, planning and organisational skills, obsessive rumination, loss of appetite and weight loss.
Dr Mohandas Balasingham made referrals to psychiatrists, Dr Ben Teoh and Dr Prashanth Mayur in mid 2024.

Certificates of capacity

SIRA certificates of capacity were issued by Dr Balasingham commencing on
24 September 2023, certifying the second respondent as having no current work capacity.
From 3 October 2023 to 10 October 2023, the second respondent was certified as having capacity for suitable work two hours per day, two days per week.
From 19 October 2023 onwards, the second respondent’s capacity increased to four hours per day, three days per week. The second respondent continued to be certified as having capacity for some type of work for 12 hours per week until 14 July 2024.

Ms Stern

The second respondent’s psychologist, Ms Sue Stern, prepared a report on 21 June 2024. Ms Stern said the second respondent had made steady progress and found the sessions with her very beneficial. Although the second respondent still had residual symptoms of anxiety and depression he was able to see life through a positive lens. Ms Stern said the second respondent would continue to benefit from CBT and counselling and stress management.
In a report dated 4 October 2024, Ms Stern again reported that the second respondent was progressing well with treatment and making steady improvements in self-confidence, boundaries and how to recognise and deal with toxic people.
On 19 December 2024, Ms Stern reported that the second respondent continue to progress well with treatment and have an outer time when they would be reducing sessions. The second respondent continued to have symptoms of anxiety but was making steady progress and was pleased with his improvement. Ms Stern said that further sessions would assist the second respondent to strengthen his resilience and determination to progress with improvement in his overall ability to return to work.

Dr Abishek Nagesh

The first respondent relies on a medicolegal report prepared by psychiatrist, Dr Abhishek Nagesh on 15 February 2024.
Dr Nagesh recorded a history that was broadly consistent with the second respondent’s statement evidence. The second respondent found the work environment with the applicant toxic and reported that he was treated badly. After working for three months, there was a formal dinner at which he answered some questions from the guests present. The second respondent’s boss became irate and angry. The second respondent alleged that his boss verbally abused him for 20 minutes, swore at him in front of the guests and he was fired. The guests present during the dinner were shocked.
The second respondent was noted to have described his current functioning as follows:
“In terms of his current functioning, Mr Zhou states that he sits at home, he does nothing. He can do some basic cooking like instant noodles. He struggles to clean. He avoids going out. He relies on his wife for shopping. In terms of his self-care, he states that he has a shower only once a week, that is when his wife prompts him. Mr Zhou states that he has become completely socially withdrawn. He states that he is anxious to leave the house, and he has not been attending any social events. With regard to his ability to drive and travel, he states that he can travel locally, that is to attend his GP, but to travel to far away and unfamiliar places he requires the presence of his wife. In terms of his social relationships, he states that his wife is supportive and understanding, and his relationship with her is intact. He has lost contact with the majority of his friends since he left the company and his injury. Mr Zhou describes his attention and concentration as poor, where he can barely concentrate for a few minutes. He describes his memory as poor. He states that he cannot read and send emails anymore. He cannot read books, watch television or movies.”
Dr Nagesh noted that the second respondent’s symptoms had been treated with antidepressant medication, venlafaxine. The second respondent had been referred to a psychologist who had treated him with cognitive behavioural therapy and supportive psychotherapy.
Dr Nagesh gave the opinion:
“Mr Zhou alleged while working for Oriental Star International he was verbally abused, humiliated by his boss during a formal dinner in front of his colleagues and guests. As a consequence of the alleged verbal abuse, swearing, and being humiliated, he has alleged to have developed the following symptoms which include depressed mood, anxiety, insomnia, fluctuating appetite, lack of energy and motivation, irritability, and diminished ability to concentrate. Based on his alleged symptoms, I am of the opinion that Mr Zhou meets the criteria for an episode of adjustment disorder with depressed and anxious mood.”
Dr Nagesh said he could not identify any non-work-related factors contributing to the injury.
With regard to the second respondent’s capacity for work, Dr Nagesh opined that as the second respondent was symptomatic and focused on his recovery he was not motivated to return to work in any capacity. Dr Nagesh estimated the recovery time at three to six months.
Dr Nagesh recommended that the second respondent continue with weekly sessions with a psychologist for cognitive behavioural therapy and continue to see his general practitioner on a fortnightly basis to titrate his medication. Alternatively, the second respondent could be referred to a psychiatrist to see on a monthly basis.

Dr Richa Rastogi

The second respondent relies on a medicolegal report prepared by Dr Richa Rastogi, dated 31 January 2025.
Dr Rastogi took a history of injury and the applicant’s symptoms that was broadly consistent with the second respondent’s statement evidence.
Dr Rastogi noted that the applicant was taking venlafaxine, seeing a psychologist, Ms Stern, on a weekly basis and a psychiatrist, Dr Gopi, on a monthly basis.
Dr Rastogi gave the opinion:
“Mr Zhou reported work environment being toxic and hostile, being overburdened and given unrealistic work tasks and beyond the scope of his role. He was humiliated by his boss during a formal dinner in front of his colleagues and guests and put down. This resulted in severe anxiety with themes of powerlessness and hopelessness. He has developed a pervasive fear of returning to the workplace. He has since then developed symptoms of major depression perpetuated by unresolved grievances, betrayal and discrimination by his employer and the safety of his workplace compromised. He has responded poorly to treatment so far with minimal shift of symptoms. He has not worked since 2023 to date and continues to display active symptoms with marked function decline. His prognosis is significantly guarded, and it is unlikely he would return to preinjury duties.
I note he was diagnosed with an adjustment disorder with anxious distress by Dr Nagesh, psychiatrist on 15/2/2024 however his symptoms have bene more entrenched and persistent with limited response to treatment and significant impairments. He fulfills the diagnosis of major depressive disorder.”
Asked for an opinion with regard to the second respondent’s capacity for work, Dr Rastogi stated:
“He has continued to be incapacitated to work since November 2023 to date. There has been poor response to treatment. The barriers include anxiety, markedly reduced pace, unresolved grievances, cognitive deficits, issues of trust and poor stress coping. He remains stress prone and has extremely poor stress with poor conflict resolution. He cannot work in highly stressful and demanding roles and remains vocationally incapacitated partially given his educational qualifications, training, experience, employment skills and individual characteristics. There are unresolved grievances. He has issues of trust and debilitated by anxiety that pose barriers to any future rehabilitation. He need further treatment and gradually be engaged with vocational rehabilitation and consider part time roles in foreseeable future in a supportive environment. He has limited prospects in working in pre-injury employment causing vocational disadvantage.”

Bank records

Statements from a number of ANZ bank accounts in the second respondent’s name are in evidence. Relevantly, those records show payments of “pay /salary” from “UNSW Global P/L” on:
(a)    26 September 2023 in the amount of $3,473.85;
(b)    10 October 2023 in the amount of $3,473.85;
(c)    24 October 2023 in the amount of $3,473.85;
(d)    7 November 2023 in the amount of $3,473.85, and
(e)    21 November 2023 in the amounts of $2,857.08 and $27,700.29.
There are also deposits from “Sanfang” on:
(a)    25 September 2023 in the amount of $14,347.83 described as “FROM SANFANG (AUSTRAL CONSOLTING STEVE”;
(b)    2 April 2024 in the amount of $2,079.52 described as “FROM SANFANG (AUSTRAL YONG XIAO TRIP”;
(c)    5 July 2024 in the amount of $3,044.73 described as “FROM SANFANG (AUSTRAL TOWNSVILLE EXP”, and
(d)    23 September 2024 in the amount of $9,565.21 described as “FROM SANFANG (AUSTRAL CONSULTANT FEE”.

ASIC records

A Current & Historical Company Extract for Sanfang (Australia) Pty Ltd dated
25 February 2025 indicates that it is a company first registered in Western Australia in 2018. The company was known as Yutai Global Trading Pty Ltd until 23 February 2023.
The second respondent was identified as a director of the company between
21 November 2022 and 30 July 2024.
On 30 July 2024, a Change to Company Details form was registered notifying the cessation of the second respondent’s role as Director effective 29 July 2024.
On 28 January 2025, company director, Yang Hou, requested a correction to indicate that the second respondent’s correct resignation date should have been 30 June 2023.

Documents from UNSW Global Pty Ltd

On 21 February 2022, the second respondent received an offer of employment as a Procurement Lead with UNSW Global Pty Ltd. The role was to commence on
28 February 2022 and end automatically on 27 February 2024. The role was full-time for 35 hours per week. The second respondent was employed on a salary of $120,000 plus superannuation.
The offer of employment was accepted by the second respondent on 21 February 2022.
In an email to the second respondent on 31 October 2023, HR Manager, Cameron Briggs, indicated that the second respondent had attended a meeting in which redundancy had been discussed. The second respondent had been invited to consider applying for a procurement administrator position.
A record of discussion prepared on the same date indicates that a review was undertaken, as a result of which, changes had been proposed to the second respondent’s team that were likely to impact the second respondent’s position of Procurement Lead. It was noted that tendering was to be managed externally and the remaining work could be performed by administrative level personnel.
In an email in response dated 1 November 2023, the second respondent said that he was fine to go with redundancy due to a “current unexpected family issue”. The second respondent asked for two more weeks of salary as he had contributed a lot to the business over the past two years.
Email correspondence sent by Mr Briggs on 20 November 2023 indicated that the procurement lead position filled by the second respondent was to be made redundant. Through exit conversations, the second respondent had requested a two-week ex-gratia payment in addition to a payout of four weeks’ severance and two weeks’ notice. The ex-gratia payment was approved.
A redundancy estimate worksheet indicated that the respondent’s current weekly salary was $2,376.92. The termination date was 21 November 2023.
A termination letter was emailed to the second respondent on 21 November 2023.

Applicant’s submissions

The applicant referred to the report from Dr Nagesh and noted that Dr Nagesh’s diagnosis was based on the second respondent’s self-reported symptoms.
The applicant referred to the SIRA certificates of capacity, observing that the second respondent was, from an early stage, certified as having capacity to work two hours per day two days per week, later increasing to four hours per day three days per week.
The applicant submitted that the second respondent continued to work at UNSW after he was terminated from his employment with the applicant. The applicant referred to the contract of 25 October 2022, noting that the second respondent was required to work 35 hours per week and was paid an annual salary of $120,000. It had been agreed that the second respondent’s employment with UNSW would end automatically on 27 February 2024.
The second respondent performed his work with UNSW concurrently with his full time work for the applicant. The evidence confirmed that the second respondent stayed on in his role with UNSW for a period of time after the termination of his employment with the applicant. The evidence indicated that the second respondent’s role with UNSW was terminated on
21 November 2023 due to redundancy and no other reason.
The applicant submitted that in the period in which the second respondent continued to work with UNSW after the termination of his employment with the applicant, he claimed to have been suffering from an allegedly devastating psychological injury.
Despite this, the email correspondence from UNSW showed that the second respondent had been invited to apply for an alternative role. This suggested that UNSW took the view that the second respondent was performing his work satisfactorily.
The email correspondence from UNSW did not disclose that the second respondent had a psychological injury which influenced his decision to accept a redundancy. The second respondent did refer to an unexpected family issue and suggested he was performing carer’s duties but said nothing about his own health. The second respondent was able to negotiate an ex gratia payment. The second respondent attended meetings in relation to the redundancy on his own and was apparently able to look after his own interests. The evidence confirmed that the second respondent’s redundancy was not related to any issues or concerns with his performance.
The applicant submitted that the Commission would accept that the contemporaneous evidence reflected the second respondent’s actual position. The fact that he was able to continue working for UNSW and advocate for an ex gratia payment was inconsistent with the reported psychological symptoms and reflected poorly on the second respondent’s credibility.
The applicant also noted the payments into the second respondent’s bank accounts from “Sanfang” suggesting that the second respondent had taken a trip and had been doing consulting work for that company.
The applicant contrasted this evidence with the symptoms and functional impairments described by the second respondent to Dr Nagesh. The second respondent claimed to be unable to work, lying in bed, completely socially withdrawn, unable to read or send emails to anyone and showering only once a week. It was on the basis of the second respondent’s self-described symptoms and impairments that Dr Nagesh formed his opinion. The applicant submitted that the basis for Dr Nagesh’s opinion was flawed and that no weight would be attached to his report.

For these reasons, the applicant submitted that the Commission would find that there was no relevant injury.
In the alternative, if the Commission accepted there was an injury, the applicant submitted that the second respondent continued to work 35 hours per week, essentially with full capacity, for UNSW. Any reduction in capacity resulting from the injury was not significant. No allowance had been made for the second respondent’s actual earnings during this period when the first respondent paid weekly compensation. At the very least, the applicant should be given a credit for those earnings.
The applicant further submitted that the second respondent’s continuing work for UNSW was not voluntarily disclosed by the second respondent until the applicant made its own enquiries. This work was not revealed to Dr Nagesh or the doctors issuing the certificates of capacity. The applicant submitted that these circumstances should be taken into account in assessing the credibility of the second respondent’s evidence. The applicant submitted that the Commission would infer that the second respondent was not genuinely suffering any incapacity, or if he was, it was not significant. Due allowance for the second respondent’s continuing capacity ought to be made.
The applicant noted that in the initial SIRA certificates of capacity, the second respondent had not declared that he had engaged in paid employment for which he was entitled to receive money.

Second respondent’s submissions

The second respondent observed that the first issue was whether there had been an injury. The second respondent referred to his statement evidence where he talked about the nature of his work for the applicant. The second respondent disclosed his contracting work with UNSW as a consultant from 2022 onwards. The second respondent described that work as casual and quite flexible. His hours varied depending on what work was required.
Although the second respondent indicated that he stopped that work in November 2023 because of his injury in his first statement, he later disclosed that the cessation was due to both redundancy and the injury.
The second respondent submitted that it was not surprising that he did not disclose his injury to UNSW. The evidence should not be cast in a way that would discredit the second respondent. He did disclose an unexpected family issue and did not take up the opportunity for redeployment, which was consistent with his injury.
The second respondent observed that at a consultation on 6 September 2023 he had disclosed work-related stress and symptoms including binge eating. It was noted that the second respondent had been required to take several work trips and was finding balancing his work and personal life difficult.
Dr Kwon, saw the second respondent again on 21 September 2023 in relation to work stress and issued a medical certificate certifying him as unfit for work. Although the second respondent was told by his employer that the certificate was fake, Dr Kwon later confirmed that she had issued the certificate after a consultation with the second respondent.
The second respondent began to see Dr Balasingham who issued SIRA certificates of capacity. The second respondent observed that neither box was ticked for the employment declaration on the first certificate of capacity. The certificates of capacity never certified the second respondent as having capacity beyond 12 hours per week.
The evidence confirmed that the second respondent reported psychological symptoms to his general practitioner within days of the incident on 19 September 2023.
The second respondent observed that Dr Nagesh took a consistent history of the injury. The consultation note on 6 September 2023 was consistent with what the second respondent later told Dr Balasingham and Dr Nagesh. Although Dr Rastogi saw the second respondent later in time, the history she took was also consistent.
The second respondent said that submissions had been made by the applicant attempting to minimise the impact of the meeting on 19 September 2023. The contemporaneous clinical records revealed that the second respondent was already feeling the pressure of the constant work trips. The second respondent was prescribed venlafaxine. The clinical records were powerful evidence of injury.
The second respondent submitted that Dr Nagesh took a history and gave an opinion that was consistent with the clinical notes. Dr Nagesh found the second respondent was symptomatic and focused on his recovery. Dr Nagesh did not consider the injury had resolved and estimated that the recovery would take three to six months. The second respondent was still receiving treatment. The second respondent submitted that Dr Nagesh did not consider the applicant had recovered. Although he was improving, it was taking time.
The second respondent submitted that the Commission would be satisfied that there was an injury in the form of a diagnosable psychological condition. There was no evidence to refute the occurrence of an injury. There was a plethora of medical evidence to support a finding that the requirements of s 4 of the 1987 Act were met. There was no evidence of any other factor contributing to the contraction of the injury.
With regard to the question of capacity, the second respondent noted that he had disclosed his contractual arrangement with UNSW at the time of his first statement. The second respondent’s contract was intended to end at the end of February 2024 and he gave evidence that his daily responsibilities had slowed down and often took less than one hour per day to perform. The second respondent was expecting to be made redundant. This was said to be a perfectly rational explanation of what was going on.
With regard to the applicant’s submission regarding the second respondent’s attendance at meetings relating to the redundancy and negotiating an ex gratia payment, the second respondent submitted that nothing ought to be read into those circumstances.
There was no evidence that the second respondent had a full capacity to work. There was no evidence of income coming into the second respondent’s bank accounts. The second respondent was certified as having no current work capacity for the initial weeks then certified as having some capacity. Although Dr Nagesh noted that he was not motivated to return to work, the second respondent’s lack of motivation was due to his diagnosed condition.
The second respondent submitted that there was no evidence of any jobs he could perform. The UNSW administrative job would have been available but the second respondent chose not to be redeployed because he was unwell.
Although Dr Balasingham had certified the second respondent as having some capacity for suitable work for 8 to 12 hours per week, that was not a realistic representation of the second respondent’s ability to engage in employment.
The second respondent submitted that there was no basis on which to attack his credibility. The second respondent had disclosed his UNSW contract work from the start. There had been no attempt to conceal that employment. The second respondent’s evidence had only been inferentially challenged from a written contract and emails. The Commission would accept that the second respondent only continued to work one hour per week.
With regard to the payments from Sanfang, there was little evidence as to what those payments pertained to.

First respondent’s submissions

The first respondent endorsed the second respondent’s submissions.
The first respondent noted the applicant’s submissions regarding credit and said that the clinical record of 6 September 2023 was key. If the applicant seriously wished to place the second respondent’s credit in issue, it had the opportunity to cross-examine the second respondent but had made a forensic decision not to do so. In the absence of an application to cross-examine the second respondent, the Commission would not draw any adverse inference with regard to the second respondent’s credibility.
The first respondent observed that the contract with UNSW was formed in 2022. Notwithstanding what it said regarding the second respondent’s hours, duties and payments, the second respondent’s evidence was that the hours he was required to work were far less onerous by 2023. The contract included a sunset clause. The second respondent’s explanation was reasonable.
The first respondent noted the applicant’s submissions that the emails from UNSW suggested some capacity because of an ability to negotiate a two-week ex gratia payment. The first respondent submitted that the Commission should compare that submission with the medical certificates issued by Dr Kwon and the SIRA certificates of capacity.

Applicant’s submissions in reply

The applicant submitted that the objective evidence was most persuasive. After the second respondent’s employment was terminated, he did not declare any other payment for work. The evidence established that the second respondent did receive payments from UNSW which he did not disclose. It could be expected that those payments were made on the basis that the second respondent was working his full hours.
With regard to the first respondent’s submissions in relation to the failure to cross-examine the second respondent, the applicant submitted that cross-examination occurred only in exceptional circumstances in Commission proceedings. If the parties were on full notice of what was in issue, cross-examination was not required. Statements had been prepared by the second respondent responding to the issues raised by the applicant.

FINDINGS AND REASONS

It is conceded that at all relevant times, the applicant in these proceedings did not hold a valid policy of workers compensation insurance.
Section 155 of the 1987 Act makes it compulsory for an employer to obtain and maintain in force, a policy of insurance for the full amount of the employer’s liability under the 1987 Act in respect of all workers employed by the employer for any injury to any such worker.
Part 4 Division 6 of the 1987 Act permits workers who consider that they have a claim against an employer for compensation to make a claim against the Nominal Insurer if the employer is uninsured: s 140 of the 1987 Act.
Sub-section 141(3) provides that if a payment is made in respect of a claim under Division 6, the Nominal Insurer may recover the amount paid from the employer. The process for requiring an uninsured employer to reimburse the Insurance Fund is set out in s 145 of the 1987 Act and requires a notice to be served under s 145(1):
“145 Employer or insurer to reimburse Insurance Fund
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.”
Sub-section 145(2) makes provision for the Nominal Insurer to waive an employer’s liability under s 145(1) in certain circumstances.
Sub-section 145(3) provides that a person on whom such a notice has been served may apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
In hearing such an application, s 145(4) provides that the Commission may make such determination in relation to the application, and such awards or orders as to the payment of compensation or in respect of the injured worker concerned, as the Commission thinks fit. However, s 145(4A) provides that the Commission is not authorised to make a determination that “waives” the liability of an employer or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
In Ballantyne v WorkCover Authority of NSW[1] (Ballantyne) the Court described the Commission’s function in determining an application under s 145(3) as follows:
“(f) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of ‘compensation in accordance with this Act’, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.
(g) If satisfied as to the amount of the payment concerned and the identity of the employer, the Commission would ordinarily make whatever order it thought appropriate to dispose of the application according to law. As now envisaged by sub-s (7), the appropriate order would be that the person served with the notice pay the amount to the Authority by way of reimbursement of the WorkCover Authority Fund, within a specified time.”
[1] [2007] NSWCA 239.
Sub-section 145(5) provides that for the purpose of proceedings in the Commission, a certificate certifying that payments were paid to or in respect of an injured worker is evidence of the matters stated in the certificate:
“(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”

Did the second respondent sustain a compensable psychological injury?

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) 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, and
(iii)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[2] (K) Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[2] [2010] NSWWCCPD 76.
In AV v AW[3] Snell DP at [65]-[78] discussed the authorities on the main contributing factor test and noted:
“It follows 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.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
[3] [2020] NSWWCCPD 9.
The evidence before the Commission is consistent with the second respondent having sustained a psychological injury in the course of his employment with the applicant.
In his initial statement, the second respondent claimed that he had sustained a psychological injury due to excessive business travel, being required to work overtime and perform tasks unrelated to his job as well as what he perceived as a ‘toxic’ work environment in which senior staff behaved in an insulting and demeaning way towards more junior employees. The second respondent described a particular incident on 19 September 2023 in which he was publicly humiliated and verbally dismissed, which he said caused a severe stress reaction.
Consistently with the second respondent’s evidence, the clinical records of Dr Kwon reveal that on 6 September 2023, the second respondent consulted Dr Kwon in relation to increased stress and alcohol intake as well as poorer eating habits due to being required to work away from his family in Tasmania for six weeks. On 21 September 2023, the second respondent reported that work stress was affecting his mental health and he required time off work. On 23 September 2023, the second respondent reported to Dr Kwon that his employer had made inappropriate comments about him during an official dinner on 19 September 2023, which had affected his mental and physical health. Psychological symptoms including disturbed sleep, anxiety and distressed mood were disclosed.
A consistent history of the injury was also reported to Dr Balasingham a few days later.
Dr Balasingham’s clinical notes referred to psychological symptoms arising due to a toxic work environment, being treated as a personal servant and being required to work overtime without extra pay as well as the incident on 19 September 2023.
The contemporaneous treating evidence confirms that the second respondent’s symptoms were treated with medication and psychological therapy. The evidence suggests that the second respondent has also at times received treatment from a psychiatrist, although no reports or clinical records from a treating psychiatrist are before me.

The second respondent was examined by an independent psychiatrist at the request of the first respondent. Dr Nagesh recorded a history that was consistent with the second respondent’s statement evidence and the treating evidence. Dr Nagesh noted that the second respondent had been treated with venlafaxine and referred to a psychologist who had treated him with cognitive behavioural therapy and supportive psychotherapy.
Dr Nagesh could not identify any contributing factors to the condition which were unrelated to work. Dr Nagesh gave the opinion that the second respondent met the criteria for an episode of adjustment disorder with depressed and anxious mood.
More recently, an independent psychiatrist qualified by the second respondent, Dr Rastogi has given a similar opinion. Dr Rastogi noted in January 2025 that the second respondent was seeing a psychiatrist on a monthly basis and continuing to take venlafaxine and receive treatment through his psychologist, Ms Stern. Dr Rastogi took the view that the second respondent’s condition had progressed to a major depressive disorder.
The applicant disputes the allegation of injury primarily on credibility grounds. The applicant observes that despite reporting significant psychological symptoms to his treating doctors and receiving certificates of capacity certifying him as having no current work capacity or minimal work capacity, the second respondent continued to work for UNSW Global Pty Ltd for another two months after his employment with the applicant was terminated.
The applicant observed that the correspondence from UNSW demonstrated that the second respondent’s employment had come to an end due to a genuine redundancy following a review of the second respondent’s team. The second respondent had been invited to apply for an alternative role suggesting that his performance had been viewed favourably. The applicant also observed that the second respondent had been able to attend meetings relating to his redundancy independently and negotiate an ex gratia payment. The second respondent did not disclose any psychological injury to UNSW. The applicant submitted that, in these circumstances, an inference ought to be drawn that the second respondent was not experiencing the severe and debilitating psychological symptoms reported to his treating practitioners and
Dr Nagesh at all or at least not of the nature and extent described.
The respondents submitted that the inferences sought to be drawn by the applicant were not open on the evidence. The second respondent had explained that his contract with UNSW was subject to a sunset clause and that during 2023 the volume of work began to decline. The second respondent had given evidence that by the time he sustained the psychological injury he was working for approximately one hour per day for UNSW. The respondents submitted that the failure to take up the offer of redeployment and the decision to accept the redundancy were consistent with the second respondent’s reported psychological symptoms at the time.
I find that the second respondent’s explanation for how he was able to continue in employment with UNSW despite his psychological symptoms is consistent with the evidence that his role was made redundant following a restructure of the second respondent’s team. The email correspondence and meeting notes from UNSW indicate that part of the second respondent’s duties were to be performed externally. The remaining duties were of an administrative nature and capable of being performed by staff at a lower pay grade. The presence of a sunset clause in the contract is in itself consistent with a tapering off of the second respondent’s workload.
I do accept that the fact that the second respondent continued to be paid his full salary suggests prima facie that he continued to work full-time hours in accordance with his contract. I note, however, that the second respondent worked almost entirely from home. It also appears to be the case that the second respondent was able to satisfactorily perform his duties for UNSW despite holding concurrent full-time employment with the applicant for a period of approximately three months.
The applicant also sought to impugn the second respondent’s credibility on other grounds, including his failure to disclose his employment with UNSW in the certificates of capacity or in the histories given to the doctors involved in his case. The applicant submitted that the second respondent had not been forthcoming about the nature or extent of his continuing employment with UNSW and had failed to adequately explain his involvement with Sanfang (Australia) Pty Ltd.
While I accept that there is some merit to those submissions, it remains the case that the second respondent’s concurrent employment with UNSW was disclosed both in the worker’s injury claim form and in the initial statement prepared by an investigator procured by the first respondent.
The statement evidence from Mr Hung casts some doubt over the reasonableness of the second respondent’s perceptions of his work environment and the requirements of his role with the applicant. It confirms, however, that there were real events in the workplace as described by the second respondent. I accept that the second respondent spent a significant portion of his three months of employment with the applicant on business trips to Hong Kong and Tasmania. Mr Hung confirmed that there was an event on 19 September 2023 in which the second respondent’s employment was terminated without notice in a public forum. Although there were some concerns as to the veracity of the medical certificate issued by
Dr Kwon on 21 September 2023, Dr Kwon has confirmed that she issued the certificate following a telehealth consultation earlier that day.
After carefully considering all of the evidence and submissions, I am satisfied that there were real events in the workplace which were perceived by the second respondent as hostile and which led to an onset of psychological symptoms and ultimately a diagnosable psychological condition.
There is nothing in the evidence to suggest any factor outside the second respondent’s employment with the applicant which may have contributed to the contraction of the psychological condition. Nor is there any suggestion that the second respondent suffered from a pre-existing psychological condition. I am satisfied in the circumstances that employment with the applicant was the main contributing factor to the contraction of the psychological condition.
I am satisfied that the second respondent sustained a psychological injury in the course of his employment with the applicant for the purposes of ss 4(b)(i) and 11A(3) of the 1987 Act.

Were the payments of weekly compensation made in accordance with the 1987 Act?

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an “injury”, the compensation payable to an injured worker shall include a weekly payment during the incapacity.
The rate at which weekly compensation is payable is governed by ss 36 and 37 of the 1987 Act and is determined by whether an injured worker has, in the relevant periods, had “no current work capacity” or “current work capacity”. Those expressions are defined in cl 9 of Schedule 3 to the 1987 Act:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression, “suitable employment” is defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)  whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[4] commented in this regard:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
[4] [2014] NSWWCCPD 55.
The first respondent has provided evidence that payments of weekly compensation were made at the statutory maximum weekly rate for the period commencing from 15 November 2023. The documents from UNSW indicate, however, that the second respondent’s employment was terminated with effect from 21 November 2023. Amounts were paid into the second respondent’s bank account by UNSW on that date representing the ex-gratia payment which had been negotiated as well as the redundancy package, which included four weeks’ notice.
The certificate of capacity issued by Dr Balasingham covering the week commencing
15 November 2023 certified the second respondent as having capacity to engage in suitable employment for 12 hours per week. The second respondent continued to be certified as having the same capacity for the remainder of the period covered by the s 145(1) notice. Although certificates are not before me for the final four weeks of the period covered by the notice, there is no evidence to suggest any change in the second respondent’s condition in that time.
Neither the report of Dr Nagesh, nor the report of Dr Rastogi cause me to find that the certifications issued by Dr Balasingham, who saw the second respondent on a regular basis and was well placed to comment on the extent of his capacity, were unreliable. Although both experts opined that the second respondent lacked capacity to engage in his pre-injury duties, neither suggested that he lacked capacity to engage in suitable duties consistently with the certificates of capacity.
Dr Nagesh simply indicated that the second respondent was symptomatic and focused on his recovery and was not motivated to return to work in any capacity. Dr Rastogi’s opinion was based on her examination of the second respondent well after the period which is the subject of these proceedings. Dr Rastogi indicated that the second respondent could not work in highly stressful or demanding roles and remained partially incapacitated.
The second respondent clearly has a range of transferable skills. While the second respondent submitted that no suitable roles had been specifically identified by the applicant, I am satisfied that there is a wide range of low stress, real jobs that could have been performed by the second respondent for 12 hours per week given his age, linguistic abilities, administrative skills and extensive business experience.
I am satisfied that at all relevant times during the period covered by the s 145(1) notice, the second respondent had a capacity to work in suitable employment for a period of 12 hours per week.
I note that there are some indications that the second respondent in fact received remuneration for activities associated with Sanfang (Australia) Pty Ltd during the relevant period. However, as those payments have not adequately been explained in the second respondent’s evidence, I am unable to make any findings in this regard.
The records from UNSW indicate that the second respondent received a weekly salary of $2,376.92 or an hourly rate of $67.91.
I am satisfied that for a period of one working week from 15 November 2023, the second respondent received actual gross earnings of $2,376.92. I find that an amount of $2,376.92 ought to be deducted from the weekly payment made in that week consistently with s 36(2)(b) of the 1987 Act.
For the balance of the period covered by the s 145(1) notice, s 36(2)(b) and s 37(3)(b) provided that an amount representing the second respondent’s “current weekly earnings” ought to have been deducted from the maximum weekly compensation amount.
Clause 8 of Schedule 3 to the 1987 Act defines “current weekly earnings” as follows:
“Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
There is no evidence of actual earnings in this period.
I am satisfied that, owing to his psychological injury, the second respondent was unable to earn an equivalent amount to that he was earning in his demanding, senior roles with either UNSW or the applicant. I am satisfied, however, that the second respondent was able to earn an hourly rate consistent with, for example, an administrative clerk. The Clerks Private Sector Award 2020 published on the Commonwealth Fair Work Ombudsman’s website provides for a minimum rate of pay of $30.13 for an adult level 4 clerk. Accepting that as an appropriate guide, I am satisfied that for the balance of the period covered by the s 145(1) notice there ought to be a deduction of $360 per week, representing 12 hours of work in suitable employment at a rate of $30 per hour.
I find that the applicant is liable to reimburse the first respondent the amounts paid as weekly compensation set out in the s 145(1) notice, subject to the deductions described above.

Were the medical and related treatment expenses paid in accordance with the 1987 Act?

Section 60 of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Diab v NRMA Ltd,[5] Roche DP provided a summary of the relevant principles for determining whether treatment can be said to be “reasonably necessary” as follows:
[5] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[6]
[6] At [88] to [90].
Deputy President Roche commented further:[7]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[7] At [86].
The schedule attached to the s 145(1) notice indicates that payments pursuant to s 60 of the 1987 Act were made for treatment administered by the second respondent’s general practitioner and psychologist. Both Dr Nagesh and Dr Rastogi have expressed the view that the second respondent’s treatment had been appropriate for his psychological condition. There is no evidence to the contrary. In view of the findings above, I accept that such treatment was reasonably necessary as a result of the compensable psychological injury.

I find that the applicant is liable to reimburse the first respondent the amounts paid as s 60 expenses in their entirety.

[2025] NSWPIC 238

30 May 2025