West v Australian Catholic University Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	West v Australian Catholic University Ltd [2025] NSWPIC 381
APPLICANT:	Jye West
RESPONDENT:	Australian Catholic University Limited
MEMBER:	Anne Gracie
DATE OF DECISION:	6 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation, treatment expenses pursuant to section 60 and lump sum compensation pursuant to section 66; consideration of injury and causation; notice; whether the respondent can establish (pursuant to section 11A) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline and/or provision (withdrawal of) employment benefits; whether a determination can be made in relation to section 66 entitlements or should be referred to a Medical Assessor (MA); whether the applicant is entitled to reasonably necessary medical and treatment expenses; State Transit Authority of New South Wales v Fritzi Chemler, Attorney General v K, Kendall v Woollahra Municipal Council, Sedat Boga v Carpet Call (VIC) Pty Ltd t/as Carpet Call, Kooragang Cement Pty Limited v Bates, Jaffarie v Quality Castings Pty Ltd, and Haddad v The GEO Group Australia Pty Ltd considered; Held – the applicant sustained a psychological injury in accordance with section 4(b)(i); the respondent failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken; matter referred to the President for referral to a MA.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of events occurring in the course of his employment between 3 July 2023 and 28 July 2023 with the respondent, the applicant has sustained a psychological injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). At that time, the applicant was a worker employed by the respondent. 2. The applicant has established that special circumstances exist pursuant to s 254 (3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) excusing the applicant from the obligation to give notice of injury as soon as possible after the injury. 3. The respondent has failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or provision of employment benefits pursuant to s 11A of the 1987 Act. 4. The applicant’s employment with the respondent was a substantial contributing factor to his psychological injury in accordance with s 9A of the 1987 Act. 5. The applicant’s employment with the respondent is the main contributing factor to the injury in accordance with s 4(b)(i) of the 1987 Act. 6. The respondent is to pay the applicant’s reasonably necessary medical or related expenses in the sum of $3,800.20 pursuant to s 60 of the 1987 Act on production of invoices, receipts and/or Medicare notice of charge. 7. Pursuant to s 15(1)(a)(i) of the 1987 Act and the decision of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad) the applicant’s psychological injury will be deemed to have occurred on 2 January 2024, that being the applicant’s first date of incapacity for the purpose of the referral to the Medical Assessor. 8. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows: Date of injury: 2 January 2024 (deemed/ first date of incapacity) (in respect of the period 3 July 2023 to 28 July 2023). Body systems / parts: psychological. Method of assessment: whole person impairment. 9. Documents to be referred to the Medical Assessor: (a) Application to Resolve a Dispute and annexures; (b) Reply and annexures; (c) Application to Lodge Additional Documents (ALAD) and annexures filed by the applicant on 8 July 2025; (d) ALAD and annexures filed by the respondent with the exception of the document described as “Court Data” dated 23 October 2023 and 9 December 2023 (at page 173 of the ALAD) and the email from Hall and Wilcox to the applicant’s lawyers dated 24 June 2025 (page 60 of the ALAD), and (e) a copy of this Certificate of Determination and Statement of Reasons. 10. This matter is remitted back to a Member following the provision of the medical assessment certificate, or any appeal therefrom, to determine the outstanding claim for weekly payments of compensation. The Commission orders: 11. There will be an award for the applicant pursuant to s 60 of the 1987 Act and the respondent is ordered to pay the applicant the sum of $3,800.20 in respect of reasonably necessary medical treatment accounts incurred as a result of the psychological injury to the applicant sustained between 3 July 2023 and 28 July 2023. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Jye West, the applicant, is 53 years old. He was employed by the Australian Catholic University Limited, the respondent, as an Associate Director of Facilities Management. He commenced employment with the respondent on 22 January 2014.
On 26 May 2023, the applicant received an email from Mr Michael Tracey who was the applicant's direct supervisor with the title Director of Properties and Facilities. The email confirmed the applicant’s date of separation with the respondent on 28 July 2023. The email also confirmed that the applicant would work two days per week between 1 July 2023 to
28 July 2023 and the remaining three days per week were to be considered “garden leave” with full pay and entitlements. The email confirmed the applicant’s last official working day with the university was Friday, 28 July 2023 (page 43 of the Application to Lodge Additional Documents (ALAD) filed by the respondent).
On 30 May 2023 the applicant received correspondence from the respondent confirming that he was to be made redundant effective on 28 July 2023. (page 46 of the ALAD filed by the respondent). The applicant advises that he was “supportive of the redundancy plan” (page 5 of the Application to Resolve a Dispute (ARD)).
On 3 July 2023, the applicant was contacted by Mr Linton Besser, a journalist from the ABC who requested the applicant to complete a questionnaire in relation to his work with the respondent and his relationship with a person by the name of John Zeitoune and a company called Asset Group Solutions that held security and cleaning contracts with the respondent.
On 4 July 2023, the applicant had a meeting with Mr Michael Tracey. The applicant provided Mr Tracey with a copy of the questionnaire he had received from the ABC together with his draft reply to the questionnaire (page 11 of the ALAD filed by the respondent).
On 5 July 2023, Mr Tracey provided a copy of the questionnaire and the applicant’s draft responses to Dr Stephen Weller who held the position of Deputy Vice Chancellor and Chief Operating Officer of the respondent. He was also the Convenor of the Critical Incident Management (CIM) Group. Mr Tracey also provided a copy of the ABC questionnaire and the applicant’s draft response to the CIM Group.
On 6 July 2023, Mr Tracey contacted the applicant and advised him that he no longer needed him to physically attend the university two days per week between 6 July 2023 and 28 July 2023 and that he should hand over his university equipment. The applicant claims
Mr Tracey told him to cut up his ID card and send him a photograph of the destroyed card. This conversation was followed up by a letter dated 6 July 2023 from Dr Weller.
On 6 July 2023 the applicant received a letter from Dr Weller on behalf of the respondent advising him that he was not required to attend the university between 6 July 2023 to his separation date of 28 July 2023. He was advised that his access to university systems and buildings ceased as of 6 July 2023. He was advised that he was to be paid up to his separation date of 28 July 2023 and was expected to continue to comply with the ACU Staff Code of Conduct for all Staff.
On 7 July 2023 the respondent published a media statement in relation to Asset Group Solutions (AGS) which advised that the university was investigating the services provided by AGS. There was no mention of, nor reference to, the information made available to the respondent by the applicant on 4 July 2023.
On 13 July 2023 at 5.00am the ABC published an article entitled “ACU launches inquiry into its Security Contractor Asset Group Solutions”. The applicant was mentioned by name in the article.
On 13 July 2023, the respondent released a statement in response to the ABC article (page 51 of the ALAD filed by the respondent). The statement advised that the respondent had launched an enquiry into the issues raised in the article. The statement made no mention of the information that the applicant had provided to Mr Tracey on 4 July 2023. The statement mentioned the applicant by name.
The applicant claims that as a result of the respondent’s failure to consider the information he had provided Mr Tracey on 4 July 2023 and provide an appropriate response to the ABC in relation to this matter, which the applicant believes would have discredited the ABC article, the article was published by the ABC on 13 July 2023 causing the applicant to feel “absolute despair, stressed, devastated and filled with immense anger” (page 35 of the ARD). The statement issued by the respondent on 13 July 2023 caused the applicant further despair and distress and he felt he was “psychologically imprisoned” (page 40 of the ARD).
The applicant claims he sustained a psychological injury following the inaction of the respondent between 3 July 2023 and 28 July 2023 in respect of the ABC investigation and the publication of the article. The applicant claims he tried to refute the allegations and asked, as an employee, for support from the respondent in responding to the allegations both before and after the article was published. The applicant claims he was abandoned by his employer. The applicant claims that he received no support from the respondent despite the fact there was a direct connection between the allegations made against the applicant and his employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the nature of the injury and when it occurred- causation s 4, s 9A and s 4(b);
(b) notice of injury, s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(c)    was the applicant a “worker” at the time of injury;
(d)    s 11A of the 1987 Act in respect of discipline and provision of employment benefits;
(e)    the applicant’s capacity, s 33 of the 1987 Act;
(f)    in the event that an award is made in favour of the applicant, the claim pursuant to s 66 of the 1987 Act would, in the respondent’s submission, need to be referred to a Medical Assessor despite the applicant’s acceptance of the assessment of whole person impairment (WPI) as determined by the respondent’s independent medical examiner Dr Nagesh in his report dated
29 October 2024 (page 26 of the reply), and
(g)    the reasonable need for medical and associated treatment s 59 and s 60 of the 1987 Act.

Matters not in dispute

The parties agree that injury, per se, is not in dispute.
The parties agree that the pre-injury average weekly earnings (PIAWE) is $4,335.40. As such, the maximum statutory rate of compensation pursuant to s 34 (1) of the 1987 Act as of 2 January 2024 as indexed is the appropriate rate for the claim. The applicant has not received any benefits of workers compensation. The respondent does however maintain the dispute in relation to the applicant’s capacity to work.
The respondent withdrew the s 11A defence in relation to dismissal and retrenchment during the arbitration hearing. The respondent relies on the s 11A defence of discipline and provision of employment benefits.
The parties agreed that in the event the applicant was successful in his claim and I was not prepared to determine the applicant’s s 66 entitlements, the matter should be remitted to the President of the Personal Injury Commission (Commission) for referral to a Medical Assessor.
The parties further agreed that the issue of the applicant’s entitlements to weekly benefits of compensation is to be determined after the issue of a Medical Assessment Certificate in the event the applicant is successful in his claim. The matter should be listed for a further preliminary conference once the Medical Assessment Certificate has been issued to deal with this outstanding issue.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference /arbitration hearing before me on
15 July 2025.
Mr Phillip Perry, counsel, instructed by Mr Becker, solicitor, appeared for the applicant,
Mr Jye West, who was present. Mr Graham Barter, counsel, instructed by Ms Raiman solicitor, appeared for the respondent. Ms Tan from GIO was also present.
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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    ALAD and annexures filed by the applicant on 8 July 2025, admitted by consent, and
(d)    ALAD and annexures filed by the respondent on 11 July 2025 with the exception of the documents annexed to the ALAD described as Court Data dated
23 October 2023 and 9 December 2023 (at page 173 of the ALAD) and the email from Hall and Wilcox to the applicant’s lawyers dated 24 June 2025 (page 60 of the ALAD) which the respondent did not press. The applicant consented to the statement of Mr Michael Tracey dated 28 May 2025 (at page 1 of ALAD). The additional documents annexed to the ALAD were admitted over objection by the applicant and included the following documents:
(i)desktop surveillance search from Huxley Hill Group dated 30 June 2025 (page 61 of the ALAD);
(ii)Attachments: ASIC and Business Names (page 103 of the ALAD);
(iii)attachments: Article 2024 co-authored by the applicant dated 14 June 2024 (page 108 of the ALAD);
(iv)attachments: Article 2024 co-authored by the applicant dated
11 November 2024 (page 122 of the ALAD);
(v)attachments: Article 2024 co-authored by the applicant 16 November 2024 (page 138 of the ALAD);
(vi)attachments: Article 2024 co-authored by the applicant 2 December 2024 (page 154 of the ALAD);
(vii)NAB Statement of the Applicant 24 June 2023 to 22 December 2023 (page 174 of the ALAD);
(viii)Commonwealth Bank Statement of the applicant 1 July 2023 to
30 December 2023 (page180 of the ALAD);
(ix)Commonwealth Bank Statement of the applicant 31 December 2023 to
30 June 2024 (page 189 of the ALAD);
(x)Commonwealth Bank Statement of the applicant 1 July 2024 to
30 December 2024 (page 198 of the ALAD);
(xi)clinical records Myhealth Wentworth Point 19 April 2018 to 3 April 2024 (page 203 of the ARD), and
(xii)clinical records Myhealth Wentworth Point 3 April 2024 to 12 April 2025 (page 205 of the ALAD).
The documents were admitted into evidence over objection by the applicant on the basis that refusal to admit the documents would have caused considerable prejudice to the respondent. The articles that were co-authored by the applicant and the financial records were the applicant’s own documents. The respondent had sought copies of the applicant’s financial records before the preliminary conference on 27 May 2025 at which time the applicant had only provided redacted copies of his financial records. A direction was made at the preliminary conference for the applicant to provide complete copies of his financial records. The clinical records from MyHeath provided an update of the applicant’s medical treatment from 3 April 2024 to 12 April 2025. The Desktop Surveillance Search dated 30 June 2025 from Huxley Hill Group and the ASIC Business Name search provided updated information to the information that had already been provided in the documentary and statement evidence before me. The respondent had relied on an earlier Desktop Report from the Huxley Hill Group dated 7 February 2024 and a Factual Report and attachments dated
14 February 2024 (pages 60 and 69 of the reply).
The interests of justice allow me to admit the documents that were objected to by the applicant in the respondent’s ALAD pursuant to cl 67 (4) of the Personal Injury Commission Rules 2021. I have also considered the matters referred to in Procedural Direction PIC3, specifically, the prejudice to the respondent if the application was not admitted and the guiding principles of the Commission under s 42 of the Personal Injury Commission Act 2020 to facilitate the just, quick and cost-effective resolution of the real issues in dispute. The real issues in dispute were identified by the respondent’s counsel as injury, the nature of the injury, when the injury occurred, notice of injury, s 11A of the 1987 Act in respect of discipline and provision of employment benefits, the applicant’s capacity, reasonable necessity of medical treatment and, in the event that an award is made in favour of the applicant, the claim pursuant to s 66 of the 1987 Act would in the respondent’s submission need to be referred to a Medical Assessor. In light of this, the respondent’s ALAD filed on 11 July 2025 was admitted into evidence apart from the documents that were not pressed by the respondent.

Oral evidence

There was no oral evidence called at the arbitration hearing. Both counsel made submissions which were sound recorded and a copy of the recording is available to the parties. Due to time constraints, the applicant was directed to provide written submissions in response to the respondent’s submissions by 1 August 2025 and the respondent was given liberty to apply if the respondent wished to respond in the event that any new matters were raised in the applicant’s written submissions in response. A transcript was provided to the parties on
17 July 2025.
The respondent filed closing final written submissions by consent on 17 July 2025. The applicant filed his written submissions in reply on 23 July 2025. On 1 August 2025 the respondent advised me that they did not detect any new matters raised in the applicant’s submissions in reply and would not be applying to make further submissions.

The applicant’s evidence

The applicant relies on a number of comprehensive statements prepared by the applicant supported by documentary evidence and correspondence and policy and procedure documents from the respondent. The applicant relies on numerous medical reports prepared by his treating doctors. The applicant relies on an independent medical report from
Dr Pothala dated 24 June 2024. The applicant relies on numerous certificates of capacity, medical certificates, clinical notes from his treating general practitioner at Myhealth Wentworth Point and clinical notes from his psychologist Mr Di Prinzio. Finally, the applicant relies on a wage schedule and supporting income statements and a medical expense schedule with supporting receipts. I have considered all of this evidence.

The respondent’s evidence

The respondent relies on the applicant’s claim form and s 78 notices dated 8 February 2024, 23 May 2024 (s 11A), 5 September 2024 (s 66) and 17 December 2024 (s 66) and a s 287A review notice dated 7 April 2025, all issued pursuant to the 1998 Act. The respondent relies on several reports from independent medical specialist Dr Nagesh dated 18 March 2024,
29 April 2024 and 29 October 2024. The respondent relies on a report from the applicant’s treating doctor, Dr Khan dated 8 January 2024 and clinical notes from Dr Stewart. The respondent relies on several reports from the Huxley Hill Group including a desk top report, a factual report and attachments and a desk top surveillance report and attachments. The respondent relies on the applicant’s statement dated 18 January 2024 and a record of interview with Dr Stephen Weller dated 25 January 2025, a statement from Mr Michael Tracey dated 12 February 2025 and a further statement from Mr Michael Tracey dated
28 May 2025. The respondent relies on an ASIC business name search and four articles co-authored by the applicant dated 14 June 2024, 11 November 2024, 16 November 2024 and 2 December 2024. The respondent also relies on the financial records produced by the applicant pursuant to a notice for production including the applicant’s NAB statement for the period 24 June 2023 to 22 December 2023, and the applicant’s Commonwealth Bank statements for the period 1 July 2023 to 30 December 2023, 31 December 2023 to 30 June 2024 and 1 July 2024 to 30 December 2024. The respondent relies on the updated clinical records produced by Myhealth Wentworth Point up to 12 April 2025. The respondent also relies on numerous documents produced by the respondent including correspondence, emails and media releases. The respondent also relies on the article published by the ABC on 13 July 2025. I have considered all of this evidence.

The applicant’s submissions

The applicant made oral submissions on 15 July 2025 and then pursuant to my direction on that date he also provided written submissions in reply to the respondent submissions on
23 July 2025. The oral submissions have been recorded and the written submissions form part of the Commission's record. I will therefore not repeat the submissions in detail. A typed transcript of the proceedings of the oral submissions made on 15 July 2025 has also been made available to the parties together with a sound recording taken on that day.
The applicant submits that I would be satisfied that the applicant suffers from a significant and disabling psychological condition.
The applicant submits that I would be satisfied that the applicant’s injury arose out of or during the course of his employment.
The applicant submits that the applicant should be accepted as a witness of truth. In the numerous statements provided by the applicant, the applicant made concessions where he felt appropriate in relation to the evidence of other witnesses. The applicant submits
Mr Michael Tracey, the applicant's direct supervisor, confirms that during the applicant’s nine year plus service the applicant had no work performance issues, covered a lot of bases and had good technical skills (page 89 of the reply). In his report dated 29 October 2024,
Dr Nagesh states the following “I did not consider the claimant to display or exhibit any behaviours which might be inconsistent or exaggerated having regard to the history taken” (page 31 of the reply).
In response to the respondent’s claim that the injury did not occur either in the course of or arising out of employment the applicant submits that there is no other likely cause for injury.
The applicant submits that the contact by the ABC journalist Mr Besser and the inaction of the applicant’s direct supervisors Mr Tracey and Dr Weller following this contact left the applicant feeling devastated. Following the initial contact by the ABC journalist on
3 July 2023, the applicant’s situation was compounded by the respondent's actions advising him that he no longer had access to university equipment and buildings and that he should cut up his ID security pass.
The applicant submits that no suggestion can be made that the redundancy caused a psychological injury. The applicant had accepted the redundancy prior to the events that transpired in July 2023.
For the purpose of my determination the applicant and the respondent were in agreement that I do not need to conduct an investigation into the matters that were raised by Mr Besser from the ABC.
The applicant says that the questions raised by the ABC did cause him concern. The applicant concedes the questions would have been considered challenging. The questions posed by the ABC raised issues of inappropriate conduct. Following receipt of the questions, the applicant immediately prepared a detailed draft response to the questions and provided them to the respondent the next day. The applicant received no feedback or comment from his direct supervisor Mr Tracey. The applicant says the only contact he received from
Mr Tracey was a telephone call on 6 July 2023 when Mr Tracey ordered the applicant to destroy his ID card and send him a photo of the destroyed card. Mr Tracey also advised him that he was no longer required to attend the university two days per week as per the previously agreed work schedule leading up to his date of separation with the respondent on 28 June 2023.
The applicant disputes that the respondent can maintain the s 11A defences in respect of discipline or provision of employment benefits. The applicant submits that the defence pursuant to s 11A has not been established by the respondent. The acts and omissions by the respondent's officers caused great harm to the applicant but they were not the whole or predominant cause of the injury. The injury, to a significant extent, was caused by the ABC inquiry and the publication of the report and the failure by the respondent to support and communicate with the applicant during that time. Furthermore, the actions taken by
Mr Tracey and Dr Weller were not actions with regard to discipline, nor provision of employment benefits. The applicant does say that in any event, none of the required steps in relation to an appropriate disciplinary procedure had been followed by Mr Tracey nor had the appropriate steps been taken by the respondent in relation to withdrawal of employment benefits.
The applicant submits that the respondent cannot maintain that the applicant’s psychological injury did not arise out of or during the course of the applicant’s employment with the respondent on the basis that he was not employed at the time of the onset of his psychological injury. The applicant submits that the date of injury that has been adopted by the respondent as 2 January 2024 is not supported by the evidence. The applicant submits that the applicant sustained injury between 3 July 2023 and 28 July 2023 whilst the applicant was still employed by the respondent. In this respect, the applicant relies on the detailed statement prepared by the applicant in response to the statement of Mr Tracey. The applicant’s statement is dated 25 March 2025 (page 31 of the ARD).
The applicant also relies on the letter the applicant received on 6 July 2023 from the respondent confirming he would receive his normal salary until the separation date of
28 July 2023 and be expected to continue to comply with the respondent's code of conduct.
The applicant submits that it was Mr Tracey’s actions on 6 June 2023 that shattered the applicant. He was left devastated. Mr Tracey had advised the applicant that “ACU would do without his involvement” (page 3 of the ALAD filed by the applicant). The applicant submits that comment gave the applicant some reason to understand that the respondent would address the allegations of improper conduct raised by the ABC questionnaire. However, as became evident, the applicant was provided with no information, no comment and no contact by the respondent prior to the release of the ABC article on 13 June 2023 as to what actions they intended to take on behalf of the applicant.
The applicant then referred to the decisions of State Transit Authority of New South Wales vFritzi Chemler [2007] NSWCA 249 (Chemler) and Attorney General v K [2010] NSWWCCPD 76 (AG v K). The applicant’s submission was based on the findings of Deputy President Roche in the matter of AG v K that employers must take their employees as they find them and a perception of real events, which are not external events, can satisfy the test of injury arising out of the course of employment. The applicant also referred to the matter of Chemler in which it was held that if events which actually occurred in the workplace were perceived as creating an offensive or a hostile working environment and a psychological injury followed it is open to the Commission to conclude that causation is established.
Importantly, the applicant submits that the letter from the respondent dated 6 July 2023 confirmed that the applicant was advised not to attend the workplace, and the applicant’s access to the respondent’s systems and buildings was terminated. As a result, the applicant’s access to human resources, where in the normal course of events he would have been able to seek support, was withheld. The applicant maintains that unbeknownst to him he was being manipulated and manoeuvred into a position where the respondent would have complete control over his narrative, his actions, his voice and his speech in relation to the allegations made about him in the ABC investigation. The applicant was mortified and could not understand why he was being treated this way without any further information, no due process and no notice of disciplinary processes. He was told nothing, just immediate isolation and alienation.
The applicant does not dispute that the publication of the article by the ABC on 13 June 2023 was devastating to him however the applicant submits that the article was directly associated with his employment with the respondent. The article specifically identified the applicant by name as the Associate Director of Facilities Management of the respondent.
The applicant submits that he was left with a great feeling of abandonment by his employer due to the respondent’s conduct surrounding the ABC investigation. The respondent failed to intervene despite the applicant providing the respondent with a detailed response to the ABC's questionnaire together with supporting information.
The applicant rejects the dispute in relation to the date of injury raised in the first s 78 notice dated 8 February 2024 (page 71 of the ARD), that the applicant's injury occurred when he first saw his general practitioner on 2 January 2024 and therefore not during the course of his employment.
The applicant submits that the respondent's attempt to rely on the date of injury as 2 January 2024 is in complete contrast to the applicant’s claim form dated 14 January 2024 (page 1 of the reply). In the claim form the applicant has clearly nominated the date of injury as
3 July 2023 (page 4 of the reply).
The applicant’s submission (although I note that there are some errors in the transcript) is that the deemed date of injury is 3 June 2023 and the applicant’s psychological condition was compounded following that date arising out events that occurred during the course of his employment up to his date of separation on 28 July 2023.
The applicants submits that the independent medical opinions of Dr Nagesh and Dr Pothala both support that the applicant is totally incapacitated for work.
The applicant submits that there is no dispute in relation to s 66 and therefore in the event that the applicant is successful with his claim the matter need not be referred to a Medical Specialist. The applicant accepts the whole person impairment assessment provided by the respondent’s independent medical assessor Dr Nagesh of 19%. In the circumstances, the applicant submits that with regard to the decision of Member Bamber (as she then was) in the matter of Kendall v Woollahra Municipal Council [2024] NSWPIC 411 (Kendall) and the decision of Arbitrator Bamber (as she then was) in the matter of Sedat Boga v Carpet Call (VIC) Pty Ltd t/as Carpet Call [2019] NSWWCC 127 (Boga), I cannot make an assessment of whole person impairment however I can note that there is no dispute and the applicant is prepared to accept the assessment of Dr Nagesh once the other matters have been determined and I can conclude that there is no dispute that he has an impairment of 19% and direct the payment of the appropriate sum pursuant s 66 should be made to the applicant by the respondent.

Respondent’s submissions

The respondent provided oral submissions on 15 July 2025 and, by consent, the respondent filed final written submissions on 17 July 2025.
The respondent submits that the applicant did not suffer an injury arising out of or in the course of his employment with the respondent.
In support of this, the respondent submits that the main issue in this matter is causation. The respondent referred to the matter of Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang). The respondent asks me to closely consider what caused the applicant’s psychological condition.
The respondent submits the applicant has not indicated whether he relies on a frank injury or whether he relies on the aggravation of a disease arising out of the applicant’s employment. As such, it is not clear whether I need to determine whether employment was the main contributing factor or a substantial contributing factor.
The respondent took me to the report of Dr Nagesh dated 28 April 2024 (page 25 of the reply). Dr Nagesh in order of significance, lists seven issues faced by the applicant that had an impact on his psychological wellbeing. Dr Nagesh claims the primary cause for the applicant’s psychological condition was the applicant’s redundancy.
The respondent submits that there is a factual dispute about the interaction between
Mr Tracey and the applicant concerning the conversation they had on 6 July 2023 in relation to the applicant’s security card. The applicant says Mr Tracey spoke to him in very strong terms (page 19 of the ARD) and Mr Tracey disputes this in his statement dated 28 May 2025 (page 2 of the ALAD filed by the respondent). Mr Tracey maintains it was a “cordial” discussion.
The respondent disputes the applicant’s assertion that he felt devastated when he received the letter from Dr Weller dated 6 July 2023 (page 17 of the ARD) advising him of the change to the respondent’s expectations from him during the last month of his employment with the respondent. The respondent submits that if he had felt sufficiently devastated, he would have sought medical treatment, put in a workers compensation claim, lodged a notice of injury and/or complained to someone.
The respondent submits that the applicant had been seeing his nominated treating doctor,
Dr Khan since 30 January 2019. The applicant attended Dr Khan on 11 September 2023 for a travel vaccine making no mention of his psychological condition. The applicant did not report his psychological condition to Dr Khan until 2 January 2024.
The respondent submits that the s 11A defence with respect to discipline is grounded in the serious nature of the allegations raised by the ABC in the questionnaire received by the applicant and provided to the respondent by the applicant together with his detailed response. The respondent’s actions following contact by the ABC and being advised by the applicant that he had received a questionnaire from the ABC were reasonable in the circumstances and could be considered disciplinary. The respondent further submits that restricting the applicant’s access to the university and requesting that he destroy his security ID card forms the basis for the respondent’s reliance on the s 11A defence of the provision and/or withdrawal of employment benefits. The respondent submits that these actions were reasonable in light of the questions raised in the ABC questionnaire.
The respondent also points out that these “positive” steps taken by the university in relation to discipline, also referring to the email from Diane Barker, general counsel for the respondent, to the applicant dated 15 September 2023 (page 57 of the reply) were not identified by the applicant until six months after July 2023 as causative of his psychological condition.
The respondent submits that as the applicant’s redundancy was to take effect on
28 July 2023, there was no real need for the respondent to follow up with him in relation to the information he had provided to them. The applicant was paid up until his redundancy took effect.
The respondent submits that although the applicant had previously taken medicinal cannabis when he had experienced stress, there is no evidence before me that he had been prescribed medicinal cannabis after the events in July 2023.
The respondent submits that the applicant’s psychological condition results from the publication of the ABC’s article on 13 July 2023. The respondent notes Dr Pothala in his report dated 24 June 2024 (page 145 of the ARD) describes a substantial contributor to the applicant’s psychological condition was the ABC article and the university’s response dated 13 July 2023. The respondent submits the respondent’s published response to the ABC article which was also published on 13 July 2023 was appropriate (page 51 of the reply).
The respondent challenges the applicant’s credit based on the following:
·        the failure of the applicant to make contemporaneous complaints to the university;
·        the failure of the applicant to seek contemporaneous medical treatment;
·        the failure of the applicant to complain to Diane Barker;
·        the failure of the applicant to tell Dr Nagesh about his overseas travel, and
·        the failure of the applicant to disclose his contribution to academic articles or completion of his PhD to Dr Nagesh.
The respondent questions the use of medicinal cannabis by the applicant. The respondent points out that there is no evidence from Dr Stewart as to when he prescribed the treatment and for what reason.
The respondent also submits that the applicant was using medicinal cannabis for stress arising out of his redundancy and was clearly impacted by his employment with the respondent coming to an end.
The respondent submits that it was not until the applicant lodged his claim for compensation, some six months after the July events in January 2024, that the respondent were made aware that the actions taken by the respondent between 3 July 2023 and 28 July 2023 were injurious or perceived by the applicant to be discipline or the provision (withholding) of employment benefits. The respondent submits that it is a retrospective perception of the applicant that enlivens the defence.
In light of the serious nature of the enquiries made by the ABC, the actions taken by the respondent were not disciplinary in nature or potentially injurious, and as such should be regarded as reasonable actions.

FINDINGS AND REASONS

Notice

The respondent submits that the applicant did not give notice of an injury in compliance with s 254 (1) of the 1998 Act and therefore his claim for compensation should be dismissed.
Section 254 (1) of the 1998 Act requires the applicant to give notice of injury to the employer “as soon as possible” after the injury has happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
There are however exceptions to the section set out above.
Section 254 (2) and s 254 (3) similarly provide that the failure to give notice of injury as soon as possible after the injury happened is not a bar to the recovery of compensation if, in the proceedings to recover compensation, it is found that there are special circumstances.
The applicant relies on the special circumstances set out in s 254 (2) and s 254 (3) (a) and (b) of the 1998 Act.
Section 254 (3) (a) excuses the applicant from making his claim as soon as possible after the injury happened if it can be shown that the respondent has not been prejudiced by the failure to give notice or by a defect or inaccuracy in the notice.
Section 254 (3) (b) excuses the applicant from making his claim as soon as possible after the injury happened if the failure to give notice of injury or the defect or inaccuracy in the notice was occasioned by ignorance, mistake or other reasonable cause.
The onus is on the applicant to establish the special circumstances.
I accept, for the following reasons, that special circumstances exist that excuse the applicant from the requirements of s 254 (1) of the 1998 Act to have made his claim “as soon as possible” after the injurious event.
Firstly, the respondent made no submissions in relation to notice apart from noting that the applicant has claimed injury between 3 July 2023 and 28 July 2023 but did not bring a claim until he first sought medical treatment on 2 January 2024.
In his claim form (page 4 of the reply), the applicant explains the delay in lodging his claim for compensation. The applicant has nominated 3 July 2023 as the date of the injury/condition. He notes that he reported the injury/ condition to his employer on 2 January 2024 with the provision of a certificate of capacity certifying him unfit for work from 2 January 2024, just slightly under six months since the events that occurred in July 2023. The applicant gives the reason for his delay in reporting his injury as he had pre-arranged travel after his separation date of 28 July 2023 and he had also continued to assist the respondent with their investigation after his separation date. The applicant also noted on the claim form that he had been self-managing his workplace stress leading up to the July events. In September 2023, the applicant advised the respondent that although the ABC article was still “extremely distressing” to him he was prepared to assist with the external investigation (page 57 of the reply). He requested a copy of the external investigation report on 8 and 14 December 2023 (page 55 of the reply) but never received a copy from the respondent.

The applicant has addressed this delay in his statement dated 25 March 2025 (page 44 of the ARD). In that statement the applicant advises that by December 2023, having received no response from the respondent about the outcome of the external independent inquiry, the applicant was instructed by his wife to seek medical health [BG1] as his symptoms were impacting his relationship with his wife and his son.
The applicant advises in his statement that “On the first available date after the 2023 Christmas and New Year break, when businesses returned, on January 02, 2024” he consulted his family medical practitioner Dr Khan who immediately prescribed 30mg of Mirtazapine and referred him to see Mr Di Prinzio for ongoing psychological support. On the same day the applicant notified the respondent of his injury and the applicant lodged his claim form on 14 January 2024.
It is also noted that the applicant had previously used medicinal cannabis to address anxiety, mild depression and insomnia that he had experienced in mid-2022 when the respondent was planning a large-scale restructure. In early 2023 he had consulted Dr Stewart in relation to his prescription for medicinal cannabis (see the applicant’s statement dated 10 April 2024) (page 18 of the ARD). The clinical notes from Dr Stewart (page 35 of the reply) indicate the applicant had complained of anxiety, insomnia and mild anxiety. The applicant advised he had been using medicinal cannabis but was concerned that he was consuming too much product. The applicant also indicated when asked about his general health, that he had workplace stress, no exercise, he was trying to start a business, had family commitments and was undertaking his PhD.
Dr Stewart’s clinical notes confirm the applicant’s first consultation took place on
28 April 2023 and he had a follow up consultation on 9 June 2023 following a change to his prescription. Of note is the reference to “scripts” to be forwarded to Astrid pharmacy and review in four months following this consultation. This is contrary to the respondent’s submission that there is no evidence as to when Dr Stewart prescribed the medicinal cannabis.
The respondent has submitted that the applicant’s failure to notify the respondent or seek medical advice about his psychological condition between his date of separation with the respondent on 28 July 2023 until he consulted with Dr Khan on 2 January 2024, demonstrated that the impact of the events in early July 2023 could not have been that “devastating”. The applicant has addressed this in his statement of 10 April 2024 and his statement is supported by the clinical notes from Dr Stewart. Dr Stewart had provided the applicant with scripts for medicinal cannabis one month before the July 2023 events. I accept the applicant’s statement evidence that between the period 3 July 2023 to 2 January 2024 the applicant tried to self-manage his own condition. In his statement dated 10 April 2024 the applicant says, “I thought I could rely on medicinal cannabis oil” (page 22 of the ARD).
I further note that on separation from the respondent on 28 July 2023, the applicant’s notice period was for six months and the respondent agreed to pay out the notice period in lieu plus eligible leave entitlements which were to be deposited into his account on 9 August 2023. (see letter from respondent to the applicant dated 30 May 2023 page 16 of the ARD). The applicant’s income statements from the respondent confirm this payment (page107 of the ARD).
Finally, the applicant states that he “tried to deal with this catastrophic nightmare” himself “while at the same time being embarrassed, ashamed and alienated” by his employer… “it was not until mid-December 2023 that” his “wife intervened and instructed” him “to seek mainstream medical help.”
There is no evidence before me that the applicant engaged in any other form of employment between 3 July 2023 and 2 January 2024 nor was he subjected to any other stressful events in his life that could be considered the cause of his psychological condition.
I find that the evidence I have referred to above demonstrates “special circumstances” and the applicant has established a “reasonable cause” for his delay in notifying the respondent. Furthermore, on 2 January 2024, the respondent was still awaiting the outcome of the external enquiry into the matter. The respondent released a media response on
8 January 2024 advising the independent external investigation had concluded. In light of this I do not consider the respondent has been prejudiced by the late notice of the applicant’s claim. At the time of lodging his claim the respondent was still investigating the allegations made by the ABC.

Consideration of injury/causation/main contributing factor/substantial contributing factor

There is no dispute that the applicant suffers from a psychiatric condition.
Dr Pothala has diagnosed the applicant suffers from “Major Depressive Disorder with anxious distress” in his report dated 24 June 2024 (page 150 of the ARD). Dr Pothala opines,
“In my opinion, the events as described above and as set out in the attached statements, particularly the ABC article and the response by ACU, are a substantial contributing factor to Mr West's psychological injury. He was under substantial stress due to the ABC article and the response by ACU. He was understandably upset and distressed that he received poor support from his employer and he was left in a vulnerable situation with limited options available to defend himself. He would not have developed the psychological condition in absence of these factors (my emphasis) … Mr West had no pre-existing psychological disorders and his presentation is clearly due to his workplace stressors and hence, in my opinion, this was a disease of gradual onset due to his employment… Mr. West had no past psychiatric history and he was in good health prior to the events as described above. In my opinion, the events described as above and as set out in the attached statements, particularly the ABC article and the response by ACU, are the main contributing factors to the disease of gradual onset... In my opinion it was reasonable that your client has been totally unfit to work since 2 January 2024.”
I note that Dr Pothala was aware that the applicant had previously used medicinal cannabis for workplace stress. Despite this, Dr Pothala opined that the applicant had no past psychiatric history (Page 147 of the ARD).
Dr Nagesh has in his report dated 29 October 2024 diagnosed the applicant with major depression of moderate degree with anxious distress (page 30 of the reply).
I note in his report dated 18 March 2024, Dr Nagesh has also taken a history from the applicant that around mid-2022 he was experiencing “some mild anxiety and he saw his GP, Dr Stewart, who prescribed him medicinal cannabis”. (page 14 of the reply). Dr Nagesh also confirmed that the applicant had no previous history of mental illness.
The parties have agreed that the applicant suffers from a psychological condition.
In light of the evidence from Dr Nagesh and Dr Pothala I do not find it necessary to consider “injury” in the context of s 4 (b) (ii) of the 1987 Act. The psychological condition that the applicant now presents is not the result of an aggravation, acceleration, exacerbation or deterioration of a disease process.
It is therefore necessary for me to consider whether or not the applicant’s injury should be considered a disease injury that has been contracted by the applicant in the course of his employment but only if the applicant’s employment was the main contributing factor to his psychological condition (s 4 (b) (i) of the 1987 Act) or a personal injury. Dr Pothala opines that the applicant’s psychological injury is in the nature of a disease rather than a personal injury (page 151 of the ARD). In his first report dated 18 March 2024, Dr Nagesh considers the applicant’s psychological condition is a personal injury (page 20 of the reply) however, in his report dated 29 April 2024, Dr Nagesh is of the opinion that the applicant’s psychological injury is in the nature of a disease (page 24 of the reply). Dr Nagesh explains this by stating “in my opinion the claimant's diagnosed adjustment disorder with depressed and anxious mood is a disease injury. My rationale is the claimant's alleged psychological injury evolved over a period of time due to a number of factors (my emphasis) as alleged by the claimant”. I agree with this rationale.
The applicant says his psychiatric injury was caused by the events that occurred between
3 July 2023 and 28 July 2023 during the course of his employment that I have set out above under the heading “Background”.
The respondent submits that the applicant did not suffer an injury arising out of or in the course of his employment.
The respondent further submits that the applicant has not identified whether he relies on a disease injury or a personal injury. The claim form is of assistance to address this submission. In the claim form, the applicant has nominated a date of injury on 3 July 2023 but has added additional information on the claim form. He has acknowledged the impact of the publication of the ABC report but states the “primary cause of my injury is a result of my employer’s decision to not share information that they already had on hand while I was an employee that would have refuted/ dismissed and/or caused a retraction of the published article”.
In light of this evidence and the medical opinions expressed by both Dr Pothala and
Dr Nagesh I am comfortable in finding that the applicant’s psychological condition is properly described as a disease type injury.
In the s 78 notice dated 8 February 2024 the respondent claims that at the time of injury the applicant was not employed with the respondent. The respondent has based this submission on the fact that the applicant did not see a doctor in relation to his psychological condition until 2 January 2024 some six months after his separation of employment with the respondent. The respondent maintains that the applicant was not a worker engaged pursuant to a contract of service at the time he suffered injury.
I reject this submission. The applicant has clearly indicated in his claim form that the date of injury was 3 July 2023. The claim form also supports the applicant’s submission that the psychological injury arose out of work-related events that occurred between 3 July 2023 and 28 July 2023. The applicant received the questionnaire from the ABC reporter on
3 July 2023. The questionnaire directly related to the applicant’s employment with the respondent. The applicant had promptly provided a copy of the questionnaire and his detailed response with supporting material to the respondent on 4 July 2023 on the understanding that the respondent would use this information to provide an appropriate response to the ABC journalist. (page 11 of the ALAD filed by the respondent). The applicant did not respond directly to the ABC reporter in accordance with his contract of employment with the respondent. It is clear from the questionnaire forwarded to the applicant by the ABC journalist that the questions were directly related to the applicant’s employment with the respondent (page 9 of the ALAD filed by the respondent).
The respondent submits that the actions of the ABC journalist contributed to the applicant’s injury but the respondent “had nothing to do with that”. (Transcript page 39 line 5). This ignores the fact that the questions raised by the ABC journalist were directly concerning the applicant’s employment with the respondent. In the applicant’s submissions in reply, the applicant submits that if a worker’s being employed in a particular employment caused, or to some extent contributed to an injury, then the injury arose out of the course of employment. The applicant refers to the decision of Smith v AustralianWoollen Mills Limited (1933) 50 CLR 504 and Nunan v Cockatoo Docks & Engineering CoPty Ltd (1941) 41 SR(NSW) 119.
The applicant’s statements are also of assistance when considering the applicant’s submission that the injury occurred between 3 July 2023 and 28 July 2023 whilst the applicant was still employed by the respondent.
In his updated supplementary statement dated 25 March 2025, the applicant states “These facts” (the information provided to the respondent by the applicant on 4 July 2023),
“have been known to ACU management throughout my tenure with ACU. They were most certainly known to ACU management during the ten days of July 3 and July 13, 2023, when ACU management should have responded to the ABC questioning, which could have altered, retracted, or withdrawn the publication of the same ABC article. I could not respond directly because my voice was rendered mute under my employment contract. I relied on my employer to take reasonable steps to respond to the reporter’s enquiries.” (page 34 of the ARD).
In relation to injury, the applicant goes on to say that following the publication of the ABC article he was,
“speechless, ashamed, embarrassed, and very, very ALONE! Seven (7) days prior, my employer consciously acted to ensure I was rendered silent/speechless. For the week prior, ACU management established themselves as having hierarchical control of the narrative, and with them now controlling my silence, they controlled what my employer was (or wasn’t) prepared to disclose to the ABC reporter.” (page 34 of the ARD).
The applicant states,
“ACU management's refusal to intervene and their resistance to explaining the facts and the correct operating environment within the Properties and Facilities Directorate caused this cascading catastrophic mess, which could have been avoided if the ACU had responded to the ABC reporter. From July 4 2023 until July 13 2023, and extending until July 28 2023, I believe the ACU management internally conspired to silence me and unilaterally nominated me (in my absence) to become the ACU sacrificial lamb. I assume that they needed someone to blame, it was better to blame someone scheduled to leave their employment in a forthcoming redundancy plan – i.e.,me!”
The applicant describes his interactions with Mr Tracey on 6 July 2023 as follows. He states at paragraph 40, “On the morning of July 6, 2023, Michael Tracey called me and attempted to strong arm me into cutting up my ID and access card and demanding that I send him photographic evidence, implying that he did not trust me” and paragraph 41 “On the morning of July 6, 2023, I explained to Michael Tracey that many outstanding tasks and issues required addressing (e.g., the ABC reporters’ allegations, to name just one). However, Michael Tracey responded, “ACU will do without my involvement!”’ (page 38 of the ARD).
The applicant records how he felt following this interaction as follows,
“I was devastated. After nine and a half years of dedication to this company, I felt I was being treated as a criminal. What made things worse was that these changes occurred without discussing matters with me, without my involvement, consultation, or any semblance of due process if I had done something wrong, which I do not believe I had.” (page 32 of the ARD).
Further, the applicant outlines the events later on the same day, 6 July 2023, as follows “I received an email from the Chief Operating Officer and Company Secretary, Dr Stephen Weller, advising me of my employer’s decision to change my workplace requirements. Once again, this compounded my horror from the morning’s conversation with Mr Michael Tracey, as these changes occurred in my absence without my involvement, discussion, or consultation.” Further in paragraph 10 “The same letter confirmed that I was refused entry to the workplace, access to my computer (where my files were stored) was terminated, and access to Human Resources, where I could seek support, was rendered inaccessible” (page 32 of the ARD)
The applicant records how he felt “mortified” in paragraph 11 (page 32 of the ARD). He further records that the receipt of the letter from Dr Weller later that day on 6 July 2023, compounded his horror from the morning's conversation with Mr Tracey.
The respondent disputes that the interaction between the applicant and Mr Tracey on
6 July 2023 and the letter he received from Dr Weller on behalf of the respondent were causative of his psychological condition. The respondent relies on the statement of
Mr Tracey dated 28 May 2025 which states “the conversation was cordial and not hostile.” (page 2 of the ALAD filed by the respondent).
I accept the applicant’s account of this interaction between himself and Mr Tracey. The applicant had received no contact from the respondent following his submission of the ABC questionnaire and his draft response on 4 July 2025. The applicant was given no indication by the respondent that they had conveyed the information he had provided to them to the ABC journalist. After two days, and without any notice he was told that he was no longer required to attend the university and to hand over his university equipment (see paragraph 8 of Mr Tracey’s statement dated 28 May 2025) (page 2 of the ALAD filed by the respondent). I accept that after nine and a half years’ service and having had “no prior work performance issues during his period of employment” (see statement of Mr Tracey dated 12 February 2024) (page 89 of the reply), the request to cut up his ID and access card and return university property and not to attend the respondent’s premises was also causative of the applicant’s psychological condition and arose directly out of his employment. Furthermore, I accept the applicant’s submission that Mr Tracey did not dispute that he directed the applicant to cut up his ID card and immediately send him photographic evidence of the destroyed card.
I further accept the applicant’s evidence that receipt of the letter from Dr Weller would have caused the applicant considerable distress and was also causative of the applicant’s psychological condition.
In his statement dated 6 June 2025 (page 1 of the ALAD filed by the applicant), the applicant comprehensively addresses the statement of Mr Tracey dated 28 May 2025. After addressing the statement of Mr Tracey, he confirms that as a result of the inaction of the respondent in response to the ABC article, he has been left in an “unescapable state of perpetual psychological imprisonment.”
I also accept that the publication of the ACU response to the ABC news story on
13 July 2023 (page 51 of the reply) would have caused the applicant further anxiety and stress. The applicant was still employed by the respondent. The response specifically names the applicant and his role with the respondent. The applicant is described in the response as “the Universities former Associate Director of Facilities management” (my emphasis). The applicant had not been contacted by the respondent prior to the publication of the response. The applicant advises that none of the information that he had provided to Mr Tracey on
4 July 2023 was used in drafting the response. The information the applicant had provided to the respondent was ignored (pages 29 and 39 of the ARD).
I also note the report of Mr Di Prinzio, the applicant’s treating psychologist dated
30 August 2024 (page 160 of the ARD). In the report Mr Di Prinzio takes a history that he saw the applicant on 9 April 2024 and 23 April 2024. He diagnosed the applicant as suffering from a major depressive disorder with anxious distress. He noted the applicant was doing his PhD but struggled to complete academic work due to a diminished ability to concentrate. He diagnosed his condition as an occupational disease of gradual onset. He confirmed that the condition was not an aggravation. He opined “I believe Mr West's current mental health diagnosis is a consequence of how he was managed by his employer, having been abandoned and left to his own devices in responding to the allegations made in the ABC story.”
I also accept the applicant’s evidence that he self-managed his psychiatric condition between 3 July 2023 and 2 January 2024 and did not seek formal medical treatment until
2 January 2024.

I will now address the respondent’s submission that there are other contributing factors to the genesis of the applicant’s psychological condition, unrelated to his employment with the respondent, as set out in the report from Dr Nagesh dated 29 April 2024 (page 25 of the reply). Dr Nagesh opines that the most significant impact was caused by the applicant being advised he was to be made redundant. I do not accept this. The applicant has made it clear in his statement dated 25 March 2025 that he accepted the redundancy and had already started making plans for his future. In paragraph 64 of his updated supplementary statement dated 25 March 2025, the applicant states,
“Therefore, well before the incident date, I had already commenced working on my secondary income investment strategy. I had already secured federal government licences, permits and operating authorisations. I had commenced importing and distributing Schedule 4 and Schedule 8 narcotics, so there was never any concern about retrenchment. My redundancy has in no way contributed to my injury. I had accepted my employment with ACU, which would end in July 2023, and I was okay with this.”
I further note in the record of interview with Dr Weller on 25 January 2024, Dr Weller confirms that the applicant “didn’t contest” the redundancy. He didn’t lodge a submission and the respondent did not have to seek advice from his union or legal counsel (page 82 of the reply).
Dr Nagesh then lists the following causative factors for the development of the applicant’s psychological injury:
“●      2. The claimant being asked by a ACU to return his security card and to not continue to attend the campus in the period up until his redundancy took effect
·        3. The publication of article by the ABC.
·        4. The claimant being contacted by the ABC and asked to respond to allegations.
·        5. Client being refused access to the internal investigation conducted by ACU.
·        6. The release of the ACU statement in relation to the ABC article.
·        7. The claimant’s interactions with the ACU prior to the publication of the ABC article.”
As I have said above, I do not believe the applicant’s impending redundancy was causative of his psychological condition. In relation to the other six causative factors relied on by
Dr Nagesh, I have no trouble accepting that these factors were causative of the applicant’s psychological condition however, contrary to the respondent’s submission, I find that they arose out of and/or during the applicant’s employment with the respondent.
The respondent has also challenged the applicant’s credit. The respondent submits that the applicant failed to complain to the respondent about how he perceived he was being treated. I reject this submission. The respondent did not communicate with the applicant after
6 July 2023 until he received an email from Ms Barker, general counsel, on 15 September 2023, in relation to the external inquiry into the allegations. This was well after the applicant’s date of separation from the respondent. The applicant was not advised if the respondent intended to communicate the applicant’s draft response to the questionnaire he received from the ABC to the ABC journalist prior to the ABC publishing the article on 13 July 2023. The applicant had been effectively shut out of the respondent’s premises on 6 July 2023. It was not until after his employment ceased with the respondent on 28 July 2023 that the respondent contacted him on 15 September 2023 seeking assistance with their internal investigation. Mr Tracey, in his statement dated 12 February 2024 states that “During the period of the investigation that went into the second half of the year, I didn't consider it appropriate to speak with Jye as our relationship was professional not personal.”
The applicant had lost faith in his relationship with the respondent. He had never previously made a claim for workers compensation. This is supported by the record of interview with
Dr Weller dated 5 February 2024 (page 82 of the reply) where Dr Weller stated, “I am relatively confident that in his ten-year time there was no workers compensation claim nor was there any extended period of leave due to work or other matter.” The applicant confirms this in paragraph 15 of his statement dated 18 January 2024 (page 4 of the ARD). The applicant also deposes that since the events of July 2023 he,
“deliberately and purposely sabotage(s) contact or communication with anyone I meet. I take extraordinary steps to avoid people and make it difficult for them to learn anything about myself, what I have previously done, what I am doing, where I'm going and what I like or dislike… I am paranoid, fearful (petrified) that anybody I meet will weaponize the information I provide them and try to assassinate my character again as I don't trust anyone and find it challenging to have a conversation or build/maintain a relationship with people.”
In light of this evidence I accept that the applicant did not communicate with the respondent about his psychological condition after 6 July 2023 until 2 January 2024 apart from advising Ms Barker by email that the ABC article still caused him distress in September 2023 however I find that this lack of communication should not reflect poorly on the applicant’s credit but rather is a consequence of how he was treated by the respondent.
The respondent further challenged the applicant’s credit in that he failed to communicate with Dianne Barker who was the general counsel for the respondent who contacted the applicant on 15 September 2023 advising the applicant of the appointment of an independent, external investigator to investigate the allegations raised in the ABC report. The respondent notes this would have provided the applicant the opportunity to report his psychological injury.
By 15 September 2023, the applicant was no longer employed by the respondent. Furthermore, he did respond to the emails he received from Ms Barker on 15 September 2023 and advised he continued to experience distress as a result of the publication of the ABC article. He sent a further email to Ms Barker on 8 December 2023 and on
14 December 2023 with no response received to his last email and an email from Ms Barker advising that she was unable to respond to his email of 8 December 2023.
I fail to see how the applicant’s failure to report his psychological injury to Ms Barker provides the respondent with an opportunity to attack his credit. He advised Ms Barker that he was distressed and after the first emails were exchanged in September 2023, the applicant received no further information from the respondent nor an enquiry into his level of distress.
The respondent challenged the applicant’s credit in that he did not seek medical treatment during the period 3 July 2023 to 1 January 2024. I have already dealt with this submission in relation to notice however I repeat that I accept that the applicant attempted to self-manage his psychological condition during this period and I reject the respondent’s submission that this failure to seek medical treatment cast a doubt over his credit. I note in the first report from Dr Nagesh dated 18 March 2024, completed two months after the applicant submitted his claim form, Dr Nagesh has recorded “These symptoms have developed within the first three months of the alleged stressor.” This is consistent with the applicant’s evidence that by December 2023, his wife had intervened and instructed the applicant to seek mainstream medical help (page 44 of the ARD). I also note the clinical notes from the applicant’s treating general practitioner, Dr Khan, support the applicant’s use of medicinal cannabis. At an attendance on 19 May 2023, the applicant advised Dr Khan that he was using “cannibus [sic] oil” and “loves it” (page 214 of the ARD). I also note Mr Di Prinzio, the applicant’s treating psychologist recorded at a consultation on 18 January 2024 that the applicant was “using cannabis to manage and avoid” (page 222 of the ARD). This is consistent with the applicant’s statement evidence.
The respondent next challenged the applicant’s credit based on his failure to advise
Dr Nagesh that he had travelled overseas and that he had completed his PhD.
I do not accept this submission. In his first report dated 18 March 2024, Dr Nagesh stated that “he cannot travel to far away and unfamiliar places on his own” (my emphasis) (page 15 of the reply). The applicant admitted to pre-arranged travel in his claim form (page 4 of the reply). Dr Nagesh had been provided with the claim form (page 14 of the reply). Dr Nagesh also had the Huxley Hill Investigation Report dated 14 February 2024 (page 69 of the reply). In that report the investigator has recorded the following: “when asked by our Investigator (“why did it take so long to make a claim for workers compensation following disengaging from the insured”) only to reply (“I went overseas on a holiday with my wife to celebrate our ten-year wedding anniversary”) (page 71 of the reply).
The respondent took me to the applicant’s banking records that predate the applicant’s appointment with Dr Nagesh on 12 March 2024 (page 174 to page 193 of the ALAD filed by the respondent). The bank records appear to disclose some overseas travel in the bank statements for the periods 23 June 2023 up to the date of the appointment with Dr Nagesh on 12 March 2024 which appears to be consistent with the information given to the investigator by the applicant and in his claim form. It is also consistent with the history that the applicant gave to Dr Nagesh that he could not travel to unfamiliar places on his own. The applicant had advised the investigator from the Huxley Hill Group that he travelled with his wife. Dr Nagesh had this report from the Huxley Hill Group dated 14 February 2024 (page 14 of the reply). The bank statements covering the period 31 December 2023 to 30 June 2024 do however appear to disclose overseas travel in April 2024 (page 196 of the ALAD filed by the respondent). I do not believe that this evidence is at odds with the information provided to Dr Nagesh by the applicant on 12 March 2024 as the appointment was before the overseas travel and the overseas travel was disclosed in the information provided to Dr Nagesh by the respondent’s legal representatives.
The report from Dr Nagesh dated 29 April 2024 is a file review and does not address the applicant’s ability to travel or complete his PhD (page 23 of the reply).
The report from Dr Nagesh dated 29 October 2024 (page 26 of the reply) is more problematic for the applicant. The applicant saw Dr Nagesh on 25 October 2024. In that report, Dr Nagesh states that this report should be read in conjunction with his previous two reports. He notes that the applicant has had “no significant improvement in his symptoms and he alleged that he is feeling worse…. his concentration remains diminished…He describes his memory as poor” he “describes his attention and concentration as poor. He was able to write technical manuals in the past which he cannot do anymore…. He cannot concentrate for more than 10 to 15 minutes” “He states that he has not made any overseas or interstate travel” Dr Nagesh opines a class 2 in respect of travel with the following reason “the claimant states that he has stopped driving. He is able to attend his GP and his psychologist on his own by taking an Uber. Since he is able to travel local and familiar places independently, I have assessed him as Class 2 mild impairment.”
Dr Nagesh does not elaborate on what he considers “familiar places”. During submissions, the respondent took me to the applicant’s banking records for the period that post-dated
Dr Nagesh’s first report of 18 March 2024 and were prior to his further report dated
29 October 2024 (page 194 to page 204 of the ALAD filed by respondent). In the bank statements it would appear that there may have been overseas travel in April 2024 and again in November 2024 after the appointment with Dr Nagesh however the bank records are not conclusive that the applicant travelled overseas during these periods. I do not have a copy of the applicant’s passport and I am not aware if the countries that are mentioned in the bank statements are “familiar places” to the applicant. The overseas travel that appeared to take place in April 2024 was one month after the applicant’s first assessment with Dr Nagesh and six months before the second review by Dr Nagesh. Dr Nagesh has taken a history that the applicant has a poor memory and diminished concentration. The applicant suffers from a major depressive disorder with anxious distress.
As I have stated above the history recorded by Dr Nagesh in his report dated 29 October 2024 that he has not travelled overseas or interstate is problematic for the applicant but in my opinion, it is not fatal to his claim. I am prepared to accept the applicant as a witness of truth.
In support of this finding I note that the applicant advised his general practitioner at an attendance with Dr Khan on 29 October 2024, only four days after the appointment with
Dr Nagesh that the appointment with Dr Nagesh was “rushed through” and “only took 15 minutes” (page 212 of the ALAD filed by the respondent). I do note Dr Nagesh has recorded on his report that the appointment took 45 minutes (page 26 of the reply) but, in any event, the applicant felt the appointment with Dr Nagesh was “rushed”. I have also taken into consideration that the applicant has a psychiatric condition and his memory and concentration is poor.
The applicant’s statement evidence in this matter is entirely consistent and supported by documentary evidence where necessary. As the applicant’s counsel pointed out, the applicant has made concessions in his statements when appropriate. (transcript page 14 line 35). Dr Nagesh stated that “I did not consider the claimant to display or exhibit any behaviours which might be inconsistent or exaggerated having regard to the history taken” (page 31 of the reply).
In his report dated 24 June 2024 Dr Pothala makes no reference to overseas or interstate travel. He rates the applicant as Class 2 in relation to travel in his whole person impairment PIRS assessment stating “he can drive on his own in familiar areas but avoidant. He gets anxious and panicky whilst he is outside of his home” (page 153 of the ARD).
I also note that in the clinical notes from Myhealth medical practice, the applicant advised
Dr Khan at a consultation on 11 September 2023 that he was travelling to South America and the USA in two weeks (page 215 of the ARD).
In relation to the respondent’s submission that the applicant’s credit can be further challenged on the basis that he did not advise Dr Nagesh that he had completed his PhD studies I have already noted the applicant’s medical condition and the consequences of the medical condition on his memory and concentration. It is not clear if Dr Nagesh asked the applicant about his further studies. In his report dated 29 October 2024 Dr Nagesh acknowledges that he had a clinical note from Dr Stewart for an attendance on 28 April 2023. In that clinical note, Dr Stewart records the applicant is undertaking his PhD studies (page 36 of the reply). In his report dated 29 October 2024 Dr Nagesh also acknowledges that he had the clinical records of the applicant’s treating psychologist, Fulvio Di Prinzio. The applicant attended his psychologist on 20 August 2024 and Mr Di Prinzio records that the applicant was continuing to work on his academic papers (page 224 of the ARD). The applicant has provided evidence in his statement dated 10 April 2024 in relation to his further studies. (page 23 and page 45 of the ARD). The applicant states,
“my psychologist encourages me to continue reading journals and undertake training courses to keep my brain active. I can only read a few paragraphs before having to take notes or disregard the article; otherwise, I forget the topic. It takes me four or five times longer to formulate summaries, build a document and perform the tasks I used to blitz through.”
It is not clear if Dr Nagesh had this statement. The applicant has provided further evidence in his statement dated 25 March 2025 (page 45 of the ARD), that he was encouraged by his psychologist to continue his studies,
“in a Doctor of Engineering course at the Engineering Institute of Technology Perth, which I have been doing since July 2021, as this distraction took my focus away from the issues with ACU… However this was a struggle. I found that I could only read a few paragraphs before having to take notes or disregard the article; otherwise, I forgot the topic. It took me four or five times longer to formulate summaries, build a document, and perform the tasks I used to blitz through… Preparing three journal documents took me almost twelve months. It required constant and repetitive reading and reviewing, as I often found myself confused if I did not take notes every half a page. I struggled with my concentration and focus, and comprehending information was complex. The prepared journal submissions were rejected multiple times because of poor quality and insufficient novelty or innovation.”
In this respect, the respondent also relies on four articles co-authored by the applicant and published between June 2024 and December 2024. In light of the applicant’s evidence in his statements dated 10 April 2024 and 25 March 2025 and the fact that Dr Nagesh had available to him evidence that the applicant was completing his PhD studies in October 2024 these articles do not cause me to alter my finding that I accept the applicant as a witness of truth. The respondent also submits that the applicant did not advise Dr Nagesh that he had completed his PhD. In this respect I note the Huxley Hill Group Desktop Surveillance search dated 30 June 2025 (page 72 of the ALAD filed by the respondent), the investigator has attached a copy of the applicant’s LinkedIn profile which states that the applicant was “currently completing the final semester of his Doctorate in Engineering (June 2025).” At the time of the appointment with Dr Nagesh in October 2024, the applicant had not completed his PhD. Furthermore, in the clinical notes from My health medical practice, Dr Khan has recorded in an attendance on 31 March 2025 that the applicant had submitted his PhD thesis six months ago (page 213 of the ALAD file by the respondent). The clinical note does not record that the applicant had received his PhD.
It may well be that the issues that the respondent has raised in relation to travel and further education are relevant to the applicant’s claim pursuant to s 66 of the 1987 Act and to the question of capacity however I am not convinced that these issues affect my decision in relation to injury and causation.

Section 11A – Reasonable action by the respondent

The respondent relies on s 11A of the 1987 Act in respect of discipline and/or provision of employment benefits.
The respondent has the onus of establishing a defence under s 11A of the 1987 Act.
I note in the applicant’s submissions in reply, the applicant submits that the respondent’s proposition that it is the retrospective perception of the applicant that enlivens the defence is a novel proposition. The applicant further submits that is not a proposition that arises out of the legislation nor one that has appeared in any of the many considerations of s 11A (1) in the Commission or its predecessors or in any appellate decisions.
In the respondent’s final written submissions dated 17 July 2025, the respondent confirms that the respondent’s actions were not disciplinary and the respondent did not consider that they were withholding (provision of) employment benefits. The respondent claims it was the applicant who perceived the actions to be with respect to discipline or the provision (withholding) of employment benefits and it is this retrospective perception of the applicant that enlivens the defence. I do not accept that this is the correct application of s 11A and I reject this submission. The applicant submits that the actions taken by Mr Tracey and
Dr Weller were not actions with regards to discipline nor were they actions with respect to the provision of employment benefits. The ability of an employee to attend work to perform employment duties could not be classed as an employment benefit but rather an employment obligation.

I accept the applicant’s submission that although the actions and omissions of the respondent’s officers, (Mr Tracey and Dr Weller) in advising the applicant that he was no longer allowed on campus and he should destroy his security card caused great harm to the applicant, they were neither the whole nor the predominant cause of the injury. The injury was to a significant extent caused by the ABC's inquiry and by the ABC's publication of its report. The respondent’s failure to acknowledge the material provided to it by the applicant and keep the applicant apprised of the respondent’s actions on his behalf in relation to the ABC inquiry must also be considered causative of the applicant’s injury. It was a combination of all of the events from 3 July 2023 which arose out of the applicant’s employment during that period that caused the applicant’s psychological injury. There has been no suggestion that the applicant’s psychological injury has resulted from any external cause apart from the work-related events in July 2023.
I agree with the applicant’s submission that the actions of Mr Tracey and Dr Weller were not actions with regard to discipline or the provision of employment benefits. In light of this, I do not need to consider whether these actions were reasonable.
However, for the sake of completeness, in the event that the applicant’s psychological injury was wholly or predominantly caused by action taken by the respondent in respect of discipline and/or withholding (provision of) employment benefits, I find that the actions were not reasonable. The respondent has not followed its own procedures with respect to discipline or its own procedures with respect to the withdrawal (provision of) employment benefits. In this respect I rely on and accept the statement of the applicant dated
25 March 2025 (page 41 and 46 of the ARD) where he sets out the contractual obligations of the respondent in this regard.
For these reasons, I find that the respondent has failed to establish pursuant to s 11A of the 1987 Act that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or the provision of employment benefits.

Section 66 claim for whole person impairment

I have considered the submissions made by the parties in relation to this aspect of the applicant’s claim and I am not convinced in the circumstances of this case that I should exercise the power to determine the dispute in relation to whole person impairment.
The respondent’s first s 78 Notice in respect of the applicant’s claim pursuant to s 66 is dated 5 September 2024 (page 80 of the ARD). The claim pursuant to s 66 was denied on the basis of injury and worker. The respondent also relied on s 11A and the applicant’s failure to give notice of his claim within time. In summary, the respondent states, “As you have not sustained an injury you do not have permanent impairment as a result of an injury for the purposes of section 66 of the 1987 Act.” (page 81 of the ARD). In a further s 78 Notice dated 17 December 2024 (page 84 of the ARD), following receipt of the report from Dr Nagesh dated 29 October 2024, the respondent maintained the denial of liability for the claim pursuant to s 66 of the 1987 Act. In that s 78 notice the respondent states “we do not consider that: you were a worker at the time you contacted your disease; you suffered an injury as defined in section 4 of the 1987 Act; if you did suffer an injury you would (not) be entitled to compensation given the operation of section 11A(1) of the1987 Act and section 254 of the 1998 Act”.
During oral submissions, the applicant’s counsel indicated that in the event that the applicant was successful in his claim in respect of injury, the applicant was prepared to accept the assessment of whole person impairment of 19% as assessed by Dr Nagesh. The applicant relied on the decision of Kendall v Woollahra Municipal Council [2024] NSWPIC 411 (Kendall) and the decision of Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call [2019] NSWWCC 127 (Boga). The applicant submits that on the basis of these decisions I could make a determination of whole person impairment.
I am not persuaded that this is an appropriate case to determine the dispute in relation to whole person impairment. This is despite my findings in relation to injury, causation and s 11A. The respondent has declined liability for the s 66 claim in two s 78 notices. At no stage did the respondent offer to resolve the claim pursuant to s 66 for 19% whole person impairment as assessed by Dr Nagesh. The claim is in respect of a psychological condition. The claim is for weekly benefits, treatment expenses and lump sum entitlements. The decisions relied on by the applicant are both in respect of physical injuries. The two decisions relied on by the applicant (Kendall and Boga), were only in respect of s 66 claims. Injury and causation were not in dispute. The two decisions did not involve claims for weekly benefits and/or treatment expenses. The assessments provided by Dr Nagesh and Dr Pothala differ. Dr Nagesh assessing 19% whole person impairment and Dr Pothala assessing 20% whole person impairment. Dr Pothala’s assessment is now over 12 months old (date of report
24 June 2024) and Dr Nagesh’s assessment is now over nine months old (date of report |
29 October 2024).
Taking all of this into consideration, I intend to refer this aspect of the applicant’s claim to a Medical Assessor. Furthermore, consistent with the Deputy President’s comments in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), I consider the appropriate course of action in this matter is to remit the claim for permanent impairment compensation to the President for referral to a Medical Assessor on terms consistent with my findings, and to stand over the claim for weekly compensation to a date after the issuing of a Medical Assessment Certificate.

Section 60 medical expenses

The applicant claims past medical expenses in the sum of $3,800.20 as detailed in a medical expense schedule dated 6 February 2025 (page 111 of the ARD). The expenses are attendances with the applicant’s general practitioner, Dr Khan and attendances with the applicant’s treating psychologist Mr Di Prinzio. No submissions were made by either party in relation to the s 60 treatment expenses. I note Dr Pothala and Dr Nagesh support that the treatment the applicant has received for his psychological condition has been reasonably necessary (page 152 of the ARD) and (page 21 of the reply). In light of my findings in relation to injury, causation and my rejection of the s 11A defence and considering the medical evidence, I find that the past s 60 expenses in the sum of $3,800.20, as claimed, are reasonably necessary expenses and arise out of the applicant’s psychological injury sustained during the course of his employment between 3 July 2023 and 28 July 2023.

SUMMARY

Having addressed the submissions and considered the evidence I summarise the applicant’s claim.
The applicant's evidence in relation to the genesis of his psychological injury can be summarised as follows.
The applicant had worked with the respondent since 22 January 2014.
According to the applicant and Mr Tracey, in mid-2022 the applicant was aware that the respondent was planning a restructure which may impact his job (page 17 of the ARD).
In early 2023 the applicant had been advised by the respondent that his contract would not be renewed past January 2024.
On 26 May 2023, the applicant received an email from Mr Tracey offering the applicant a redundancy package.
The applicant accepted the offer of redundancy.
On 30 May 2023 the respondent confirmed that the applicant’s position had been declared redundant and outlined the terms of his redundancy.
In this respect the applicant was given six months’ notice from 25 July 2023 (page 96 of the ARD) “a separation date of 28 July 2023 had been agreed… and you will be entitled to any remaining notice to be paid out in lieu, plus eligible leave requirements (which may include annual leave loading, annual and/or long service leave”.
In his statement dated 25 March 2025 (page 31 of the ARD) the applicant states that he had been preparing for his redundancy (page 43 of the ARD). He had several federal government licences, permits and operating authorizations for the import and distribution of medicinal cannabis.
On 3 July 2023 the applicant was contacted by an ABC journalist who then forwarded to him a questionnaire in relation to his work with the respondent and his association with a man called John Zeitoune and a security and cleaning company known as AGS who held security and cleaning contracts with the respondent.
On 4 July 2023 the applicant advised the respondent had been contacted by the ABC journalist and had been provided with a questionnaire. On the same day, the applicant provided the respondent with a copy of the questionnaire together with a copy of his draft reply and supporting documents addressing the allegations contained in the questionnaire.
It would appear from the statement made by Mr Tracey dated 28 May 2025 that the respondent had also been contacted by the ABC journalist on or around 3 July 2023 and had been provided a questionnaire largely addressing the same allegations that had been put to the applicant (Page 6 of the respondent’s ALAD).
It is not clear from Mr Tracey’s statement if the draft response and documents that the applicant had prepared and provided to Mr Tracey were provided to the ABC journalist on the applicant’s behalf, however in light of the fact that Mr Tracy neither confirms or denies that the draft response prepared by the applicant had been provided to the ABC journalist I conclude that the information provided by the applicant to Mr Tracey was not provided to the ABC journalist (see paragraph 3 of Mr Tracey’s statement dated 28 May 2025) (page one of the ALAD filed by the respondent).
The applicant heard nothing from the respondent between 4 July 2023 and 6 July 2023.
On 6 July 2023, the applicant was contacted by Mr Tracey and the previously agreed terms of the applicant’s employment leading up to the applicant’s separation date of 28 July 2023 were varied.
The applicant was no longer required to attend the university campus two days per week. His access to university property was withdrawn. He was asked to surrender his university equipment and he was asked to cut up his security ID card. The telephone call with
Mr Tracey was confirmed in writing by Dr Weller on 6 July 2023.
On 7 July 2023 the respondent issued a media statement in relation to the security contract with AGS.
On 13 July 2023 the ABC published the article naming the applicant.
On 13 July 2023 the respondent issued a response to the ABC article which also named the applicant and identified the applicant as a “former employee”.
On 28 July 2023 the applicant’s employment with the respondent came to an end.
On 15 September 2023, the applicant received an email from the respondent asking for his assistance with the respondent’s external investigation into the ABC allegations (page 57 of the reply).
On 15 September 2023 the applicant agrees to assist the respondent with the external independent enquiry and also advises the respondent that the ABC article continues to be extremely distressing to him (page 57 of the reply).
On 26 October 2023 the external independent investigator for the respondent makes contact with the applicant.
On 9 November 2023 the applicant receives a series of questions from the external independent investigator.
On 24 November 2023 the applicant responds to the series of questions he had received from the independent external investigator.
On 8 December 2023 the applicant sends an email to the respondent requesting a copy of the external investigation report and requests the respondent to approach the ABC to have his name, photo and title removed from the ABC article (page 55 of the reply).
On 8 December 2023, the applicant receives a response from the respondent stating that the respondent was unable to respond to the applicant’s questions (page 54 of the reply).
On 14 December 2023 the applicant sent a further email to the respondent seeking an update. The applicant did not receive a response to this email (page 53 of the reply).
On 2 January 2024 the applicant attended his general practitioner, Dr Khan and reports his injury. He advises respondent on 2 January 2024 and lodges his workers compensation claim form on 14 January 2024. Doctor Khan certifies the applicant totally unfit for work in a certificate of capacity dated 2 January 2024 (page 18 of the ARD).
On 8 January 2024 the respondent issues a statement advising that senior executives of the respondent’s employ acted appropriately. The statement made no mention of the applicant.
This is the chronology of events in this matter.
In light of the events that occurred whilst the applicant was still in the employ of the respondent in July 2023, I accept that the applicant's psychological injury developed during the course of his employment between 3 July 2023 and 28 July 2023, which was his date of separation with the respondent and I make the following findings.
I accept the statements of evidence provided by the applicant.
I accept the applicant as a witness of truth.
I find that the events which occurred between 3 July 2023 to 28 July 2023 were during the course of the applicant’s employment with the respondent and were causative of the applicant’s psychological condition.
I find that the applicant has developed a psychiatric condition in the form of a major depressive disorder with anxious distress as a result of the events between 3 July 2023 to
28 July 2023 during the course of his employment with the respondent. I accept that these events, that I have set out in the above reasons, arise directly out of the applicant’s employment with the respondent.
I find that the applicant did not suffer from a pre-existing condition. This is supported by the reports from Dr Nagesh and Dr Pothala.
I find that the applicant’s employment to be a substantial contributing factor to his injury. This is supported by Dr Nagesh and Dr Pothala.
I find that the applicant’s employment and the work-related events in July 2023 to be the main contributing factor to his injury. This is supported by Dr Nagesh and Dr Pothala and I accept the medical opinions in this regard.
I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline and/or the provision of employment benefits.
I find that the applicant’s PIAWE is agreed at $4,335.40.
I find that the applicant is entitled to have his reasonably necessary treatment expenses in relation to the psychological injury in the sum of $3,800.20 as claimed paid by the respondent, pursuant to s 60 of the 1987 Act. There will be an award in his favour in this regard.
I do not accept the applicant’s submission that I should determine the applicant’s entitlements to lump sum compensation pursuant to s 66 of the 1987 Act.
I accept the respondent’s submission that the applicant’s claim pursuant to s 66 of the 1987 Act should be remitted to the President for referral to medical assessment.
The Medical Assessor will be directed to assess the level of the applicant’s whole person impairment arising from his psychological injury. The Medical Assessor will be sent this Certificate of Determination and Reasons, as well as the documentary evidence referred to at paragraph 21 above.
The Medical Assessor will be advised that the deemed date of the applicant’s injury for the purpose of his claim pursuant to s 66 of the 1987 Act is 2 January 2024 that being the applicant’s first date of incapacity. This is consistent with the decision of Haddad.
Consistent with DP Roche’s comments in Jaffarie, I consider the appropriate action in relation to the claim for weekly compensation is to stand over the claim for weekly compensation to a date after the issuing of a Medical Assessment Certificate or any appeal therefrom for a further preliminary conference.

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[2025] NSWPIC 381

6 August 2025