1. Mr Ronil Kumar (the applicant) was employed by Campbelltown City Council (the respondent).
2. The applicant claims that he sustained a psychological injury in the course of his employment with the respondent as a result of bullying and harassment at work from July 2023 until he ceased work on 30 May 2024.
3. The applicant first made a claim for compensation in respect of a psychological injury on

13 December 2023. Liability to pay compensation was disputed by the respondent in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 19 December 2023 on the ground that the injury was wholly or predominantly due to reasonable action with respect to discipline and dismissal pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). 4. A further claim for compensation in respect of a psychological injury was made and disputed on multiple grounds on 11 March 2025. The applicant sought internal review of that decision on 30 April 2025. On 7 May 2025, the applicant was notified that liability for the claim remained disputed. 5. The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 8 September 2025 seeking weekly compensation. 6. The respondent issued a further notice maintaining the decision to decline liability for the claim on 2 October 2025.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties appeared for conciliation conference and arbitration hearing on

11 December 2025 in Sydney. The applicant was represented by Ms Hannah Cohley of counsel, instructed by Mr Sher Afghan. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Ms Laura Beattie. 2. 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.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained a psychological injury pursuant to s 4(b) of the 1987 Act;

(b) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal pursuant to s 11A(1) of the 1987 Act;

(c) whether the injury is solely attributable to the serious and wilful misconduct of the applicant pursuant to s 14(2) of the 1987 Act;

(d) the extent and quantification of incapacity resulting from the injury in the period from

30 May 2024 and continuing, and

(e) whether the applicant is barred from recovering compensation pursuant to ss 254 and/or 261 of the 1998 Act.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and attached documents, and

(c) documents attached to an Application to Lodge Additional Documents lodged by the respondent on 5 December 2025.

1. Neither party applied to adduce oral evidence or cross-examine any witness.

1. The applicant's evidence is set out in a written statement made by him on 23 May 2025.
2. The applicant described a number of difficult interactions at work with a colleague, Mr Robert Taylor. The applicant said that Mr Taylor started making racial remarks towards him and calling him inappropriate words, linking him with food and other things.
3. The applicant started to experience panic attacks and felt low after hearing the remarks and started to lose weight and avoid eating food. The applicant said Mr Taylor started taking photos of him in his car. He told the applicant that he would share the photos with other co-workers and they also began calling the applicant names such as "curry" or "slash".
4. The applicant said he reported these difficulties to the Human Resources department and they moved the applicant to the arborist section whilst an investigation was underway. Mr Taylor was given a warning.
5. The applicant became a permanent member of the arborist section in late 2023 and commenced further education in tree studies after being told by the respondent that they would pay for his course fees. Later, after starting the course, the respondent did not reimburse the applicant.
6. Around the same time, the applicant was being continuously called in to meetings about Mr Taylor. The applicant was very intimidated because Mr Taylor counter-accused the applicant of various things such as slashing the tyres of his car in November 2023. The applicant said this was completely untrue. The applicant said he explained this to Human Resources after they sent him a show cause notice.
7. In July 2023, the applicant had attempted suicide due to the continuous bullying by his co-workers. The applicant was taken to his general practitioner and prescribed medication. Once the applicant commenced in the arborist section, things were fine, until Mr Taylor started targeting the applicant again. Mr Taylor would make sarcastic remarks about the applicant and harass him on a daily basis.
8. The applicant's wife approached the general manager about the harassment, and he assured the applicant's wife that this would not happen again. The applicant's wife perceived that Human Resources and Mr Taylor were working together to make the applicant feel uncomfortable so that he would leave the workplace.
9. The applicant said that he heard from other workers that Mr Taylor was returning to work on 31 May 2024. The applicant started panicking and his symptoms of stress escalated. The applicant went to a friend's house and started drinking alcohol. The applicant said he blacked out and returned home where he assaulted his wife. The police attended and took the applicant away. The applicant's employment was terminated a month later. The applicant was in gaol for a few months, during which time, he was abused, assaulted and touched inappropriately.
10. The applicant said his psychological symptoms started in June 2023. The applicant started to see the Employee Assistance Prgogram (EAP) counsellor at work in July 2023 and then a psychologist. The applicant had been taking sertraline.
11. The applicant described symptoms including nightmares, forgetfulness, anxiety and nervousness. The applicant had withdrawn socially and had difficulty concentrating. The applicant felt depressed almost every day and struggled to enjoy anything. The applicant also described difficulties with sleep.

1. Attached to the Application to Resolve a Dispute are a series of emails between the applicant's spouse and the respondent referring to a complaint made on 12 July 2023 regarding bullying and harassment which was said to be taking a mental and physical toll on the applicant.
2. A letter addressed to the applicant from the respondent, dated 9 August 2023, advised that an investigation relating to the grievance lodged on 12 July 2023 had been completed and various claims were substantiated or substantiated on the basis of probability. The details of any disciplinary actions were unable to be disclosed due to privacy reasons. The letter acknowledged the applicant's request to no longer work on the same truck as Mr Taylor and confirmed that an alternative team would be found for either the applicant or Mr Taylor.
3. In a letter dated 29 November 2023, the respondent invited the applicant to attend a meeting to respond to allegations that the applicant had vandalised a vehicle at the respondent's operations site on 16 November 2023.
4. A further letter dated 7 December 2023 referred to a meeting held on 30 November 2023. The letter informed the applicant that, based on evidence collected during the investigation, including electronic data such as CCTV and swipe card entry and exit reports, the applicant's statement and witness statements, the allegation was found to be substantiated. The applicant was advised that the respondent had formed the preliminary view that it would be appropriate to terminate the applicant's employment. The applicant was invited to provide a response prior to a final determination being made.
5. A letter addressed to the respondent from the United Services Union, dated 12 December 2023, referred to the show cause letter issued to the applicant. The letter alleged that the evidence presented by the respondent was circumstantial at best. It was noted that there was a history of animosity between the applicant and Mr Taylor and, on the morning of the alleged incident, Mr Taylor made an offensive gesture to the applicant. Mr Taylor had also commenced parking next to or adjacent to the applicant's car. The letter asserted that the respondent was aware of the strained relationship, including strong racist comments and offensive actions made by Mr Taylor. It was noted that, as the victim of these actions, the applicant had changed jobs, undertaken further study without reimbursement and was seeking psychological assistance through the EAP.
6. On 14 December 2023, the respondent wrote to the applicant indicating that it had been determined that the applicant's behaviour constituted a breach of the respondent's code of conduct and values. The applicant was issued with a first and final warning. It was acknowledged that there was ongoing animosity between the applicant and Mr Taylor.
7. A letter addressed to the applicant from the respondent, dated 20 December 2023, indicated that an application for study assistance to complete a Certificate III in Arboriculture had been successful.

1. Various character references prepared in connection with criminal proceedings are also in evidence. A letter from the applicant's wife referred to her belief that the trauma of bullying and harassment in the applicant's workplace contributed to the applicant's stress in the lead up to the incident. After lodging a complaint to Human Resources in July 2023, the applicant began taking antidepressants and working with a psychologist. The applicant eventually gained a better role but remained anxious as a result of the year he had been through.
2. A letter from Vikash Mishra also referred to issues of racism and bullying at work which appeared to cause the applicant a lot of mental stress.

1. A file note recorded by the insurer on 7 March 2025 referred to an initial contact with the applicant and his wife in which the applicant indicated he wished to make a claim for weekly benefits and medical expenses.
2. It was noted that there were issues between the applicant and Mr Taylor, whose employment was subsequently terminated in January 2024. The applicant claimed that Mr Taylor kept lodging grievances against him that were false as he was trying to get the applicant terminated.
3. The applicant alleged that his colleagues would mock the food he ate and say that it stank. Eventually, the applicant refused to take any food with him to work and lost weight as a result. Mr Taylor's employment was terminated due to his behaviour in general around January 2024. After this, things started to get better.
4. Then, on 30 May 2024, the applicant's colleagues started talking at a 7am toolbox meeting that Mr Taylor was coming back to work again after going to court or some sort of commission. The applicant alleged that his colleagues made jokes stating that they hoped the applicant would not slash their tyres too.
5. The applicant said he became so distressed about the thought of Mr Taylor coming back that he went out and got blind drunk, came home completely intoxicated and assaulted his wife. The police were called and he was taken away and had been incarcerated from that day until 28 February 2025. Now that the applicant had been released, he wished to pursue a claim for compensation.

1. Clinical records from Eagle Vale Medical Centre are in evidence.
2. On 10 August 2005, the applicant was seen in relation to depression in the context of immigration issues, relationship strain and financial stress. The applicant was prescribed Cipramil.
3. On 13 April 2006, it was noted after a drug screening test that the applicant was found to have marijuana in his urine. Marital problems due to the applicant's ill temper and lack of communication were noted.
4. On 31 October 2007, the applicant reported mood swings and becoming easily frustrated. The applicant was prescribed Lexapro. Previous use of marijuana was noted.
5. In December 2007, the applicant was seen in relation to a headache after drinking Kava.
6. In December 2008, the applicant was seen for depression and noted to have ceased marijuana use. The applicant was prescribed Lexapro.
7. On 27 February 2009, the applicant attended a consultation after binge drinking with a friend the previous night.
8. On 9 November 2009, a drug screen test was requested in the context of "erratic behaviour".
9. On 1 November 2010, it was noted that the applicant was smoking cannabis twice a week, had anger outbursts and a depressed mood. The applicant was prescribed Lexapro.
10. On 1 August 2011, it was noted that the applicant had consumed one to two bottles of whisky with a friend. The applicant reported that he rarely binge drank.
11. At a consultation on 12 December 2015, it was noted that the applicant had quit smoking marijuana eight months earlier. The applicant had been prescribed Largactil and Epilim by a psychiatrist "to keep him calm from anger".
12. On 14 January 2016, the applicant was noted to be upset over an amphetamine result on a drug screening test. The applicant had been using marijuana without his wife's knowledge for several years and she recently found out.
13. On 5 March 2016, the applicant was noted to be drinking Kava like beer. A urine test had identified amphetamines two weeks earlier. The applicant denied taking amphetamines, speed, ecstasy or ice.
14. On 11 December 2019, it was noted that the applicant was drinking Kava daily.
15. On 24 March 2023, it was noted that the applicant was feeling stressed in the context of his father-in-law passing away.
16. Clinical records from Dr Quang Khai Tran are also in evidence and include a consultation on 12 May 2023 in which the applicant requested a urine drug test due to his wife's concern that he was smoking illicit drugs or marijuana. The applicant conceded last drinking Kava three days earlier.
17. On 13 July 2023, Dr Tran recorded a consultation referring to a colleague at work calling the applicant racist names. The applicant was feeling very upset at home and isolating, not eating well and losing weight. The applicant was finding it difficult to switch off and relax and was drinking Kava to relax.
18. At a consultation on 19 July 2023, the applicant again reported feeling depressed and anxious.
19. On 2 August 2023, it was noted that the applicant was currently working in another section with a more supportive colleague away from the person who discriminated against him.
20. A record made by a counsellor at the respondent's Employee Assistance Program, Sally Sapkovska, dated 1 August 2023, noted that the applicant had attended a session with his wife. The applicant reported no previous psychological intervention and no previous diagnoses. The applicant reported drinking Kava on the weekends as a relaxant. The applicant's wife reported that the applicant's Kava intake had increased of late. The applicant reported persisting bullying and harassment by his co-worker. The applicant said that the co-worker would take photos of the applicant eating and mock him. The applicant was accused of stealing Australians' jobs. The applicant lodged a complaint with Human Resources with the support of his union representative. The applicant had since been transferred to a different area of the workplace. The applicant reported feelings of unfairness and injustice and distress leading to anger outbursts.
21. On 8 September 2023, Dr Tran recorded that the applicant's mood was improving and he had less anxiety. Work had been supportive.
22. On 20 November 2023, Dr Tran noted that the applicant's mood was better now.
23. On 6 December 2023, Dr Tran recorded that the applicant reported feeling stressed at home. The applicant's colleague had accused of puncturing his tyre which the applicant did not do. When stressed, the applicant got angry at home and his wife accused him of taking drugs. The applicant requested a urine drug test.
24. On 8 December 2023, the applicant reported that work had video of the applicant walking into a car park on the day the car tyre was punctured. The union was involved. A letter from Dr Tran, of the same date recorded:

"This patient presented to our surgery on 6 Dec 2023 for treatment of his mental health. He has more emotional distress after a recent allegation by a colleague accusing him of puncturing a car tyre which he declared he did not involve."

1. On 12 December 2023, Dr Tran noted that the applicant had been threatened with termination. The applicant was feeling more depressed and stressed. It was noted that the applicant was taking Zoloft.
2. Dr Tran issued a SIRA certificate of capacity on 12 December 2023 which noted the applicant was fit for pre-injury duties but described an injury diagnosed as depression due to a work colleague harassing and making racist comments to the applicant and accusing him of slashing his car tyre.
3. The applicant's mood was noted to be improving with less stress after the accusation was cleared by Human Resources at a consultation with Dr Tran on 15 January 2024.
4. The applicant was prescribed Zoloft at a consultation on 9 February 2024.
5. On 7 March 2024, Dr Tran recorded that the applicant was feeling stressed after Mr Taylor made a complaint to Human Resources that the applicant went home with a work truck. The applicant was having difficulty sleeping and eating. The applicant's Zoloft prescription was increased to 100 mg.
6. On 11 May 2024 Dr Tran referred the applicant to a psychologist, Mr Nick Graspias. A GP mental health care plan was prepared on the same date noting.

"work issues few months ago, experiencing some racism at work from another worker, who has since left the company became anxious and low mood addictive personality: was smoking cannabis , but reported he has since ceased."

1. On 16 May 2024, Dr Tran recorded that the applicant was feeling stressed and anxious after hearing a rumour at work that his former colleague had won his case and was going to return to the workplace. The applicant was feeling very worried. The applicant was given supportive counselling and his Zoloft prescription increased to 150 mg.
2. A record made by a counsellor employed by the respondent's EAP, George Wang, dated 22 May 2024 referred to the applicant experiencing anxiety after hearing that the person who made racial comments was coming back to work. It was noted that these were just rumours. The applicant could not pinpoint when the colleague would come back. Otherwise, all was going well and no major issues were reported. It was agreed to reconvene for one more session in three months' time unless a session was required sooner.
3. On 23 May 2024, another GP mental health care plan was prepared by Dr Tran describing depression, anxiety, difficulty with sleep and lost pleasure and appetite. A relevant history involving a colleague at work harassing and making racist comments and false allegations was noted. The applicant was referred to psychologist, Poobal Naidoo.
4. Dr Tran saw the applicant again on 7 March 2025 on which occasion it was reported that on 30 May 2024 the applicant heard that a colleague who had harassed him was going to return back at work. The applicant got stressed and drank alcohol on that day, then had an argument with his wife and he seriously assaulted her at home. The applicant was sent to gaol and had multiple assaults from inmates. The applicant was experiencing memory difficulty after a head injury. The applicant did not want to go back to work after the harassment.
5. On 25 March 2025, the applicant asked for a new referral for a psychologist.
6. A SIRA Certificate of Capacity signed by a new general practitioner, Dr Muhammed Awais, dated 11 April 2025, set out a detailed history in relation to the injury. The applicant reported bullying and harassment commencing in July 2023, as a result of which a complaint was made to Human Resources. The applicant began taking antidepressants and lost 13.5 kg. The applicant commenced weekly then fortnightly appointments with a psychologist and counsellor. In July 2023, police were called for mental health issues after the applicant became suicidal.
7. The certificate noted that on 16 November 2023, Mr Taylor falsely accused the applicant of slashing his tyres. An investigation was finalised in January 2024 and cleared the applicant. In approximately February 2024, Mr Taylor was terminated from his job. The applicant became a permanent arborist in April 2024 and was happy but still anxious due to the year he had been through. The applicant commenced an arborist course on the understanding that the respondent had promised to pay the fees but it did not. The applicant was worried about this. An incident then occurred on 30 May 2024 where the applicant assaulted his wife.
8. The applicant was certified has having no current work capacity.
9. Dr Awais prepared a report for the applicant's solicitor on 18 August 2025.
10. Dr Awais said the applicant reported experiencing severe, persistent workplace bullying and racial harassment from a co-worker beginning in 2023. The applicant described racial slurs, derogatory remarks about his ethnicity and appearance and daily humiliation. The applicant said he was made to feel anxious, nervous and very small and worthless. The applicant lost approximately 13.5 kg and stopped eating at work.
11. Despite the applicant's complaints to Human Resources, little meaningful action was taken. The applicant reported escalating psychological distress including suicidal ideation, anxiety, flashbacks, nightmares and depressive symptoms.
12. Dr Awais said the applicant's last day at work was 30 May 2024 after an escalation of bullying, counter accusations and further deterioration in his mental state.
13. Dr Awais referred to a worsening of the applicant's mental health following the domestic violence incident, incarceration and ultimately termination of his employment.
14. Dr Awais described the applicant's current symptoms and noted that the applicant was prescribed 50 mg sertraline and was attending ongoing psychological therapy.
15. Dr Awais diagnosed post-traumatic stress disorder due to both workplace bullying and harassment and prison trauma, major depressive disorder and generalised anxiety disorder with panic attacks. Dr Awais said these conditions were caused by severe workplace bullying, racism and harassment, repeated institutional trauma, loss of employment and financial security and relationship strain on family separation.
16. Dr Awais said the applicant was presently incapacitated for his pre-injury duties or any role requiring teamwork, resilience to stress or concentration on safety sensitive tasks.
17. In response to specific questions posed by the applicant's solicitor, Dr Awais said the applicant's primary psychological injury originated from his workplace experiences, beginning in mid-2023 and culminating in May 2024. The applicant's subsequent time in gaol exacerbated and compounded the pre-existing psychological injury.
18. The applicant's ongoing incapacity was the result of both factors, with workplace bullying as "the primary initiating cause". Dr Awais reasoned that without the initial work-related bullying, it was unlikely the applicant would have "entered the cascade" of mental health decline, domestic incident and incarceration.
19. Dr Awais elaborated:

"The domestic violence incident must be seen in the context of Mr Kumar's deteriorating mental health caused by workplace bullying and harassment. His psychological injury contributed to emotional dysregulation, increased irritability, impaired impulse control and alcohol misuse, which culminated in the DV incident. While the behaviour cannot be excused, it is directly linked to his injury related deterioration in mental state."

1. On 1 July 2025, Dr Tran noted that the applicant was still having flashbacks of incidents at work in gaol. The applicant was stressed and anxious about returning to work and was on a disability support pension. The applicant was noted to be seeing a psychologist and taking Zoloft.

1. The applicant relies on medicolegal reports prepared by consultant psychiatrist, Dr Yu-Tang Shen, dated 16 April 2025 and 27 August 2025.
2. In his first report, Dr Shen took a history of injury that was broadly consistent with the applicant's statement evidence. Dr Shen recorded that the applicant heard his colleague was returning to work on 31 May 2024. The applicant returned home after work to cut grass and then went to a friend's house. He started to drink alcohol, blacked out and returned home where he severely assaulted his wife. The police attended and the applicant's wife was admitted to Campbelltown Hospital for eight days.
3. Dr Shen noted that the applicant was in gaol for nine months between 1 June 2024 and

28 February 2025. Dr Shen noted that, while in gaol, the applicant was sexually assaulted and moved to Junee Prison for his own protection. This experience has had worsened the applicant's anxiety. 4. The applicant's symptoms included intrusive re-experiencing of his time in gaol including flashbacks and nightmares. The applicant also had intrusive memories of the bullying and harassment at Council. The applicant tried to avoid anything that reminded him of Council, such as the Council depot. 5. The applicant denied any pre-existing psychiatric condition or requirement for psychiatric treatment. The applicant denied any previous alcohol use apart from occasional kava use. The applicant denied any substance use. After August 2023, the applicant's kava use increased to two to three days a week up to a one litre bowl. The applicant found this calmed him down. 6. Dr Shen recorded that the applicant was seeing his general practitioner and psychologist every fortnight and attended a domestic violence group every week. There was a plan to refer the applicant to a psychiatrist. The applicant was taking sertraline 50 mg daily. 7. Dr Shen diagnosed a major depressive disorder and post-traumatic stress disorder. With regard to causation, Dr Shen commented:

"The subject injury is a result of the alleged bullying and harassment as the precipitating cause, and the perceived lack of support from his employers, which perpetuated his ongoing psychological distress, leading to escalating symptoms of depression and anxiety."

1. Dr Shen said the post-traumatic stress disorder arose from the applicant's traumatic experiences while in gaol. Dr Shen regarded this as a separate injury.
2. With regard to the applicant's capacity for work, Dr Shen commented:

"He is not fit to resume his normal pre-injury duties, or any other duties. His fitness to return to work is predicated on further improvement in his mental state, which may require an escalation of treatment beyond what he is currently receiving."

1. Dr Shen was asked to comment on the respondent's decision to dispute liability and responded:

"The examinee has sustained a psychological injury, specifically a major depressive disorder, which has arisen as a result of the alleged bullying and harassment at work, along with the lack of support from his employer, though I agree there is a degree of aggravation from his arrest, which led the employer to have reason to terminate him. However, the progression of events link his depressive mood and psychological distress to the escalation of his drinking, which in turn led to the assault, resulting in his arrest. Hence, it may stand to reason that the alleged bullying and harassment at work, and lack of support from his employer has indirectly been causally related to his arrest and subsequent injury."

1. In his supplementary report of 27 August 2025, Dr Shen was asked specifically whether the applicant's current psychological symptoms were the result of his time in gaol or the work-related injury. Dr Shen responded:

"His current psychological symptoms are broad, and include some elements from both the time in jail and also from the work-related injury. The psychological symptoms related to his jail experiences include the re-experiencing symptoms specific to his time in jail, such as flashbacks and nightmares of being assaulted and abused, and the associated negative affect, avoidance and hyperarousal symptoms. These have exacerbated his work-related injury. The psychological symptoms related to his work-related injury include his re-experiencing symptoms related to his work experiences, such as his hypervigilance against racial slurs, or people slashing his tyres or laughing at him. His depressive symptoms are a combination of his jail-related, work-related and current predicament of his social circumstances. He had pre-existing depressive symptoms prior to being in jail, which would be attributable to his work-related injury, whereas the worsening severity since then would be attributable to the exacerbation from his jail experience."

1. Dr Shen said the applicant's ongoing incapacity resulted both from the work-related injury which had predisposed the applicant to an exacerbation from the gaol-related injury.
2. Asked whether the domestic violence incident was related to the work injury, Dr Shen said:

"It is plausible that the subject incident caused a significant degree of distress leading to his alcohol intoxication that led to the assault of his wife, resulting in his arrest. This would result in a nexus between the work-related injury escalating to the arrest, with the jail-related injuries being a secondary injury to his work-related injury. Hence, the domestic violence orders arising from the assault could be causally linked to the injury."

1. The respondent relies on medicolegal reports prepared by psychiatrist, Dr John Albert Roberts, dated 7 July 2025 and 24 October 2025.
2. In his first report, Dr Roberts noted a history provided to him by the respondent that was broadly consistent with the other evidence before the Commission.
3. Asked about his mental health, the applicant asserted the presence of flashbacks, hearing voices and the presence of "shadow people", being images of people with whom he used to work and who would bully him. Dr Roberts referred to an article on whether the use of kava caused hallucinations in aboriginal populations in Eastern Arnhem Land and commented that the potential of kava to produce mental illness was a matter for consideration.
4. The applicant gave a history of difficulties with Mr Taylor which was broadly consistent with the other evidence. Dr Roberts recorded:

"Mr Kumar stated that he had hoped that there would be no more issues with Robert Taylor but there were; that in March 2024 he heard that Robert Taylor was returning to work. Mr Kumar stated that eventually he didn't but then he, namely Mr Kumar became nervous and that he drank markedly to excess; that he bashed his wife."

1. The applicant told Dr Roberts that his alcohol use had ceased some 25 years earlier but started again when he feared Mr Taylor was going to return to work. The applicant denied any history of drug use. With regard to any past psychiatric history, Dr Roberts noted:

"When questioned as to whether had ever attended upon a psychologist, psychiatrist, counsellor, or general practitioner for the treatment of any nervous condition and if so when for the first time, prior to this matter, Mr Kumar replied in the negative."

1. Dr Roberts concluded that the applicant's experiences in gaol would potentially give rise to a diagnosis of post-traumatic stress disorder independent of the work situation. In relation to the workplace, there was a potential diagnosis of an adjustment disorder with anxiety and depression, however, Dr Roberts concluded that the substantial cause of the applicant's behaviour appeared to relate to a substance use disorder.
2. Asked to comment on Dr Shen's opinion that the applicant had a major depressive disorder directly related to events in the workplace, Dr Roberts stated:

"While I agree with my colleague that a depressive state may have arisen as a result of what occurred in the workplace, depression is also associated with POST TRAUMATIC STRESS DISORDER and that while independent unrelated conditions may be assumed to exist, it would be in my opinion incorrect to assume that in terms of current functioning that the depression could be deemed to be totally related to the circumstances and conditions of employment and ignore depression arising as a result of POST TRAUMATIC STRESS DISORDER."

"In addition, I would disagree with Dr Shen that it can be stated on reasonable psychiatric grounds that even if it is assumed that Mr Kumar was bullied in the workplace, that that would provide some rationale - excuse for Mr Kumar assaulting his wife with such force that she required eight days of hospitalisation.

• I note that in regard to Mr Kumar's incarceration that such could be indirectly the result of bullying and harassment, is untenable on reasonable psychiatric grounds and that it is an attempt to rationalise his assault upon his wife, in the context of him being less liable for the consequences of such an assault because of his being allegedly bullied in the workplace.

• Until it is established that Mr Kumar is or is not psychotic, his ability to give an account of matters of fact can not be assessed.

• The fact that he clearly indicates that "the shadows", i.e. people that he sees are really there, is substantive evidence of psychotically determined perceptions.

• I reiterate that until that is ascertained, he is not capable of instructing his solicitors."

1. In his supplementary report of 24 October 2025, Dr Roberts was asked to comment on clinical material suggesting a history of long-standing, pre-existing polysubstance use including marijuana, amphetamines and alcohol excess. Dr Roberts commented:

"It is my impression that Mr Kumar's substance use both in relation to

Kava and non-prescription substances did not abate. The impact of such behaviours on sexual capacity and fertility have been commented upon.

• I note that in point (8.30)(t), reference is made to the date of 1.8.2011 in which

the applicant reported nausea after binge drinking with a friend, and drinking 1

• I note that in point (8.30)(ff), reference is made to the applicant taking Epilim

200mgms and Largactil, an antipsychotic agent, to keep him calm from anger,

• I note that in (8.30)(gg) reference is made to 14 April 2016, of the applicant

being upset because of an amphetamine result on blood screening, of him

reporting that he had used marijuana for several years without his wife's know

ledge who recently found out. I note that he was informed that his erectile

• I note that in (8.30)(ii) reference is made to the applicant's wife believing that

his excessive use of Kava is affecting their personal and sexual life.

• In point (8.30)(jj), reference is made to the applicant reporting starting smoking

cannabis again two months prior and of taking Sertraline for the last three

1. Dr Roberts said there was clear evidence of pre-existing psychopathology involving anger outbursts in association with substance abuse.
2. Dr Roberts also noted the character reference prepared by the applicant's wife and Dr Shen's supplementary report and commented:

"With respect to my colleague, this statement cannot be made, it may well be that Dr Shen was unaware that Mr Kumar's history of drug use, which has been a significant factor extending over years. I would strongly disagree that it could be stated, having regard to his pre-employment substance use that it could be stated on reasonable psychiatric grounds that there was a nexus between the work related injury escalating to the arrest with jail related injuries being a secondary injury to his work related injury. Mr Kumar has a history of years of ongoing substance use, and of such substance use continuing...."

1. Dr Roberts also noted the report of Dr Awais and responded:

"I note that in point (8.2.1) Dr Awais opined that the domestic violence incident must be seen in the context of the applicant's deteriorating mental health caused by workplace bullying and harassment, is untenable on reasonable psychiatric grounds and would not be accepted as justification for such behaviour by the majority of my peers."

"I note that in excess of a decade prior to the deemed date of injury Mr Kumar was engaged in activities involving substance use, which have the potential to give rise to a wide range of pathology, which he demonstrated.

It is clear therefore from the history described that Mr Kumar's psycho pathology predated the deemed date of injury 30 May 2024 by years. It is therefore untenable to attribute his psychopathology to the circumstances and conditions of employment."

1. The applicant submitted that the medical evidence before the Commission did not demonstrate a pre-existing psychological condition which affected the applicant's capacity to work. There was a history of "intermittent" use of marijuana, kava and alcohol between approximately 2005 and 2016.
2. The evidence demonstrated that racism, bullying and harassment perpetrated by Mr Taylor had a significant effect on the applicant's psychological well-being. When the applicant reported the behaviour, an investigation occurred. It was unclear how the applicant was supported through that process although letters were in evidence. There appeared to be six allegations which were substantiated.
3. The applicant was placed in a different role away from Mr Taylor but there but continued to be periods of interaction. The applicant received a letter informing him of an allegation that he had vandalised or slashed a tyre. The applicant was invited to a meeting on

30 November 2023. The letter inviting the applicant to the meeting did not set out specifics of the allegation. Five days later, the applicant was sent a letter saying the allegation had been substantiated despite the applicant's denials. The applicant was issued with a show cause letter as to why his employment should not be terminated. Although the applicant continued to deny the allegation, the respondent concluded that it was more likely than not that it was substantiated despite there being no direct evidence. The applicant did not feel supported by Council at the time and a major depressive disorder occurred as a result. 4. To his credit, the applicant continued working. The applicant was moved into the arborist section which was a step up from his previous role. Then on 30 May 2024, the applicant said he observed or overheard a rumour about Mr Taylor returning to work. The applicant's colleagues made comments that they hoped the applicant would not slash their tyres. The applicant left work and became intoxicated and assaulted his wife, leading to a period of incarceration. 5. The applicant submitted that there was no evidence that the applicant was suffering from a major depressive disorder before the bullying, harassment and racism or the incident on

30 May 2024. 6. The applicant relied on the reports from Dr Shen who confirmed the diagnosis of major depressive disorder as a result of bullying, harassment and a perceived lack of support. Dr Shen made a secondary diagnosis of post-dramatic stress disorder. In his supplementary report, Dr Shen expressed the opinion that the applicant's symptoms related to work were different to those related to his period in gaol. The major depressive disorder was caused by the bullying and harassment. The applicant was suffering from depressive symptoms before he was incarcerated and these were attributable to his workplace experience. The applicant submitted that there was no other explanation for the major depressive disorder in the evidence. 7. The applicant submitted that Dr Roberts conceded that a depressive state might have arisen as a result of the work issues. Both Dr Shen and Dr Roberts agreed there had been a work injury. In Dr Roberts' second report, he placed significant emphasis on the clinical records referring to intermittent substance use. The applicant submitted that those records showed only sporadic use of kava and marijuana over a long period of time. 8. While focusing on the evidence of substance use, Dr Roberts did not address in any detail whether there was an injury attributable to the workplace. Dr Roberts was also focused on the applicant's ability to have a family. Dr Roberts appeared to be unaware that the applicant had a child born in 2017. This raised questions around the reliability of Dr Roberts' history and his opinion. 9. On the question of incapacity, the applicant submitted that the lack of SIRA certificates of capacity could be explained by the fact that the applicant could not afford to continue attending his general practitioner. Dr Awais had given an opinion in August 2025 that the applicant had no capacity for work in the previous six months. 10. The applicant submitted that the clinical notes contained a contemporaneous records of the applicant reporting workplace incidents to Dr Tran in July 2023. A mental health care plan was prepared in May 2024 in the context of racism at work. Dr Shen had also given an opinion that the applicant could not resume pre-injury duties. The applicant said he saw the EAP counsellors because he could not afford to attend his own psychologist. The applicant submitted that the histories, character references and medical evidence consistently referred to issues at work. 11. Referring to the decision in Attorney General's Department v K[1], the applicant submitted that he found the comments made by Mr Taylor offensive and hostile. It was open to the Commission to find that causation had been established. There were no inconsistencies in the medical evidence. 12. The applicant submitted that there was no evidence of any other incapacity or underlying pathology before the workplace incidents. Although the applicant had previously been prescribed antidepressants, the workplace events could be seen to have aggravated the applicant's condition. 13. The applicant submitted that the opinions of Dr Shen closely aligned with the applicant's own evidence. The Commission would be satisfied that the applicant sustained an injury as a result of workplace bullying and was incapacitated as a result of that injury. 14. The applicant observed that he had been operating a chainsaw and chipper at work, suggesting drug use was not a factor. This was inconsistent with the opinions expressed by Dr Roberts.

1. The respondent observed that the injury described in the Application to Resolve a Dispute was caused by bullying and harassment between July 2023 and May 2024. The only compensation sought was weekly payments from the deemed date of injury onwards. As a result, the applicant had to establish that he sustained an injury to which employment was the main contributing factor and that incapacity from the deemed date of injury resulted from that injury.
2. The respondent submitted the starting point was the applicant's statement evidence which was observed to be difficult to follow as it was not in a chronological sequence. The applicant referred to being suicidal in July 2023. There were events in the latter part of 2023 involving an allegation that the applicant had slashed the tyre of a co-worker's car. The applicant asserted that other co-workers, who remained unidentified, told the applicant that Mr Taylor was going to return to work and his condition escalated. The applicant said that he then went to a friend's house, blacked out and assaulted his wife, as a result of which he was in gaol for a few months. While incarcerated, various traumatic events occurred.
3. The respondent submitted that the applicant's statement evidence was light on detail, particularly in regard to the events on or around 30 May 2024. The Commission had not been told who suggested that Mr Taylor was returning to work, where the applicant went after work or with whom. There was no indication as to why things escalated with his wife. No information was provided about the nature of the charges laid or the conviction. No evidence was available as to whether the applicant was being treated for psychological symptoms during the period of his incarceration.
4. The respondent also observed that the history recorded by Dr Shen was light in regard to events on around 30 May 2024. Dr Shen also took a deficient previous psychological and drug and alcohol history. The applicant denied any previous psychological condition or alcohol use other than occasional kava use, which the applicant said had increased from August 2023 onwards. It appeared that Dr Shen may have reviewed clinical notes dating from mid 2023 onwards but nothing pre-dating that period. Dr Shen concluded that bullying and harassment had resulted in a depressive condition with a separate post-traumatic stress condition due to the applicant's traumatic experiences in gaol.
5. The respondent noted that in his supplementary file review report, Dr Shen was asked whether the applicant's current symptoms were due to gaol or a work injury and concluded that there were elements from both. The applicant was said to have had symptoms prior to gaol which had worsened in severity due to the gaol experience.
6. The respondent noted Dr Awais's report dated 18 August 2025. The respondent noted it was unclear how long Dr Awais had been treating the applicant. A certificate of capacity was first issued by Dr Awais on 24 March 2025. It appeared Dr Awais only treated the applicant after he was released from gaol. In those circumstances, the respondent queried what value could be placed on Dr Awais's opinion. Dr Awais made a similar diagnosis to Dr Shen.
7. The respondent submitted that the medical evidence suggested that any depressive symptoms the applicant was suffering as a result of a work injury were not causing incapacity until after he was incarcerated.
8. The respondent noted that there were inconsistencies in the applicant's statement evidence and the histories provided to his doctors. The respondent noted that the applicant denied a history of drug use to Dr Shen but the clinical records dating to 2005 showed a lengthy history of substance use as well as periods of psychological or psychiatric symptoms and treatment for such.
9. In 2005, the applicant was seen for depression in the context of a series of stressors including immigration, relationship and financial difficulties, the applicant was referred to a Professor Inglis for treatment.
10. In 2007 and 2008 the applicant returned positive drug tests in the context of the applicant's wife being suspicious of the applicant using marijuana. The applicant was prescribed Lexapro. The clinical records in 2009 referred to binge drinking episodes and erratic behaviour. In 2010, the applicant tested positive for opioids and cannabinoids and conceded he was using cannabis twice a week. Anger issues were identified. In 2015, Dr Tran noted that the applicant had been prescribed medication from a psychiatrist for anger related issues. In 2016, the applicant returned positive screening tests for amphetamines and was noted to be drinking kava. Records in 2023 referred to marijuana and kava use.
11. The respondent submitted that none of that history was given to Dr Shen although Dr Roberts did have that history and gave an opinion on causation on the basis of the more accurate history.
12. The respondent acknowledged that incidents of bullying and harassment were described in the factual material, including the correspondence between the applicant's wife and the Council. Around this time, the applicant started to see EAP counsellors over the phone. The applicant denied any substance use or prior psychological interventions in the history provided to the EAP counsellors.
13. By around September 2023, it appeared the applicant's grievance had been dealt with that he was happier in his new role. In late 2023, there was a new allegation that the applicant had caused damage to a vehicle. Although Dr Tran issued a certificate of capacity in the context of that allegation, the applicant was certified as fit to perform his pre-injury duties although not in the same area as Mr Taylor.
14. The respondent observed that the applicant continued to work throughout this period and no incapacity was demonstrated.
15. The respondent observed that in December 2023, the respondent had approved the applicant's application for study assistance.
16. In April 2024, the applicant reported that he was doing well and returned a DASS score of 0/0/1. There was no suggestion of any incapacity.
17. The respondent observed that a mental health care plan was prepared in May 2024.
18. The respondent noted that a clinical note, recorded on 16 May 2024, referred to the applicant hearing a rumour that Mr Taylor was going to return to work. The respondent observed that this timeline was contrary to the applicant's evidence that he heard this on 30 May 2024. Two weeks prior to 30 May 2024, the applicant had heard this rumour and had gone to his general practitioner. Despite this, the applicant continued to work.
19. On 22 May 2024, a week before the incident, the applicant told the EAP counsellor, Mr Wang about Mr Taylor returning to work. There was discussion about this just being speculation. Mr Wang suggested that they reconvene in three months' time.
20. The respondent submitted that the evidence therefore showed that the applicant knew about the rumour but still described things as "good". There was no need to see Mr Wang for another three months. This evidence was said to be far removed from the applicant's statement evidence that he began to panic and was spiralling out of control after hearing the rumour.
21. The respondent observed that the applicant had presented no other evidence about the events on 30 May 2024. There were no psychiatrist's or psychological reports as to what happened and no statement from the friend he was with. There was no evidence to suggest the drinking was related to work. The applicant did not say what happened. No information was provided about the assault, police intervention, conviction or court proceedings. All that was known was that the applicant spent a period of time incarcerated and had traumatic experiences in gaol leading to a post-traumatic stress disorder diagnosis.
22. The respondent noted that the next evidence was the file note from the insurer, almost a year after the event. In the intervening period, there was no information about the applicant's condition or any treatment. Although the applicant had submitted that he could not afford to obtain certificates of capacity, this was not set out in the applicant's statement evidence. It was apparent that the applicant continued to see Dr Tran in May 2025. No other treating evidence had been provided other than the report from Dr Awais, who did not start to treat the applicant until March 2025.
23. The respondent noted that Dr Roberts took a history referring to hallucinations suggestive of psychosis. The respondent submitted that it was improbable that these symptoms were associated with work events given that the applicant had been able to continue working until the assault. The applicant's experiences in gaol would potentially be consistent with the applicant's experiences in gaol and his post-traumatic stress disorder diagnosis or drug use.
24. Dr Roberts said it was impossible to demarcate the symptoms arising from a major depressive disorder and depressive symptoms resulting from post-traumatic stress disorder. Dr Roberts disagreed with Dr Shen that being bullied at work would provide rationale for the assault.
25. In his supplementary report, Dr Roberts noted that Dr Shen appeared to be unaware of the applicant's prior history of drug use. Dr Roberts strongly disagreed that there was a nexus between any work-related injury and the events resulting in the applicant's arrest, given the years of substance abuse. Dr Roberts also noted that Dr Awais did not have a history of substance abuse.
26. Dr Roberts ultimately concluded that the applicant's psychopathology pre-dated his employment with the respondent. The applicant was able to continue working until

30 May 2024. Dr Roberts strongly disagreed that there was any link between work and the applicant's current presentation. 27. In summary, the respondent submitted that there was a period in which the applicant was exposed to bullying and harassment in 2023. The applicant did not require any time off work although he did present to treating practitioners with psychological symptoms. It was unclear whether the applicant was given a diagnosis at the time. In any event, the symptoms were not incapacitating. There was nothing in the contemporaneous medical evidence to confirm a suicide attempt. 28. There was no evidence of what happened to prompt the applicant's actions after work on

30 May 2024. It was clear the applicant already knew about the rumour of Mr Taylor returning to work but this had not caused a significant reaction at the time. The EAP counsellor said everything was fine and he could see the applicant in three months. There was no evidence to enable the Commission to accept a causal link between the knowledge of the rumour, drinking, coming home and getting arrested. 29. The respondent submitted that any incapacity the applicant now experienced was the consequence of the applicant's actions after work on 30 May 2024. Those events constituted a novus actus interveniens, breaking the causal chain. The applicant referred to the decisions in Sydney South West Area Health Service v Dyer,[2] Kooragang Cement Pty Ltd v Bates[3] and March v Stramare (E& MH) Pty Ltd.[4] 30. The evidence from Dr Tran in May and July 2025 referred to the applicant experiencing flashbacks and gaol as causing need for treatment. 31. The respondent submitted that the applicant had no incapacity until after 30 May 2024. He engaged in behaviour after work, as a result of which, police were involved. Not much was known about those events other than that they were significant and resulted in incarceration and post-traumatic stress disorder. This was consistent with Dr Roberts' opinion. 32. The respondent submitted that any incapacity the applicant now experienced did not result from a workplace injury but resulted from the consequences of the applicant's own actions on 30 May 2024. 33. The respondent asked the Commission to enter an award for the respondent in respect of the claim for weekly compensation.

1. The applicant submitted that the references in the EAP notes to the applicant feeling better were a normal reaction to the change in circumstances and the perpetrator being removed.
2. The applicant submitted that Dr Roberts referred to irrelevant matters including reports on whether kava caused hallucinations in aboriginal populations in Eastern Arnhem Land.
3. Dr Roberts linked a possible psychosis to substance use. Dr Roberts' report was said to be illogical and the Commission would not place weight upon it.

1. Section 9 of the 1987 Act provides that a worker who has received an 'injury' shall receive compensation from the worker's employer in accordance with the Act. The term 'injury' is relevantly defined in s 4 as it applies to this case as:

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."

1. "Psychological injury" is further defined in s 11A(3) of the 1987 Act:

"(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system."

1. In Attorney General's Department v K[5] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:

"The following conclusions can be drawn from the above authorities:

(a) employers take their employees as they find them. There is an 'egg-shell psyche' principle which is the equivalent of the 'egg-shell skull' principle (Spigelman CJ in Chemler at [40]);

(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);

(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);

(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker's psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);

(e) there is no requirement at law that the worker's perception of the events must have been one that passed some qualitative test based on an 'objective measure of reasonableness' (Von Doussa J in Wiegand at [31]), and

(f) it is not necessary that the worker's reaction to the events must have been 'rational, reasonable and proportionate' before compensation can be recovered."

1. The general practitioner's notes in evidence before the Commission demonstrate a history of presentations for psychological symptoms, possible treatment by a psychiatrist and the prescription of medication for psychiatric symptoms, well prior to the workplace events relied on in this claim.
2. Whether those symptoms were persisting at the time of the relevant workplace events is unclear. I note that, contrary to the clinical records, the applicant denied any prior psychological or psychiatric interventions in the histories provided to the medicolegal experts as well as his treatment providers under the EAP.
3. There is, however, clear and uncontradicted evidence that from mid-2023 onwards the applicant began to experience new or more intense psychological symptoms arising from interactions in the workplace with his colleague Mr Taylor.
4. There is contemporaneous evidence of a complaint being made to the respondent about racist remarks and harassing behaviour on the part of Mr Taylor which was investigated. The allegations against Mr Taylor were found to be substantiated or substantiated on the balance of probabilities.
5. Although there is no documentary evidence of the applicant seeking treatment for suicidal ideation around this time, as he has claimed, I do accept that the applicant began to seek treatment through his EAP and Dr Tran for symptoms including social isolation, loss of appetite, anxiety and depression. The EAP counsellor at the time, Ms Sapkovska, also noted feelings of injustice and distress leading to anger outbursts.
6. By September 2023, the applicant's mood was noted to be improving in the context of being moved to a different work area away from Mr Taylor.
7. There was, however, a discernible deterioration in the applicant's symptoms in

December 2023 when the applicant was accused of puncturing Mr Taylor's tyre. In the context of the investigation that followed, and the applicant being issued with a show cause notice, the applicant approached his usual general practitioner, Dr Tran reporting that he was feeling more depressed and stressed. A SIRA Certificate of Capacity was issued and a worker's compensation claim lodged. 8. It is notable, however, that the applicant continued to work during this period. The certificate of capacity issued by Dr Tran certified the applicant as fit to perform his pre-injury duties provided they were away from Mr Taylor. The applicant was being prescribed antidepressant medication. 9. The applicant's symptoms appeared to improve after the disciplinary action against him was resolved. 10. The evidence suggests that Mr Taylor's employment was terminated in around February 2024 although there was a further complaint about the applicant going home with a work truck which resulted in an increase in the applicant's Zoloft prescription. 11. The applicant continued to be treated through the EAP and Dr Tran into May 2024. A mental health care plan was prepared and the applicant was referred to a psychologist. 12. On 16 May 2024, Dr Tran recorded that the applicant was feeling more stressed and anxious after hearing a rumour at work that Mr Taylor was going to return to the workplace. The applicant's Zoloft prescription was increased. 13. The applicant was seen by an EAP counsellor, Mr Wang on 22 May 2024 and described the same rumour. It was discussed that this was just a rumour and all else was going well. The applicant reported no major issues, and it was agreed that they would reconvene for one more session in three months' time. 14. On the basis of history provided to him, the applicant's medicolegal expert, Dr Shen diagnosed a major depressive disorder. The respondent's medicolegal expert, Dr Roberts also took a history of the difficulties with Mr Taylor and agreed that these incidents could potentially give rise to a diagnosis of an adjustment disorder with anxiety and depression. 15. Considering the statement evidence, treating evidence and medicolegal opinions, I am satisfied that the applicant sustained a diagnosable psychological injury as a result of his interactions with Mr Taylor. I am further satisfied that employment was the main contributing factor to the contraction of the psychological condition or an aggravation of any pre-existing psychological condition. I am satisfied that the applicant sustained a workplace injury which satisfied the definitions in s 4(b) and s 11A(3) of the 1987 Act. 16. I note that the respondent's dispute notices raised defences pursuant to s 11A(1) of the 1987 Act and s 14(2) of the 1987 Act. These defences were not actively pursued in the submissions before the Commission and I do not accept that there is sufficient evidence before me to satisfy either provision. 17. I accept, therefore, that the applicant sustained a compensable psychological injury. 18. The only compensation claimed by the applicant in these proceedings is weekly compensation from 30 May 2024 to date and continuing. 19. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the Act to the injured worker shall include a weekly payment during the period of incapacity. 20. A common-sense approach is required to determine whether incapacity resulted from the work injury. In Kooragang Cement Pty Ltd v Bates,[6] where Kirby P said at [461] (Sheller and Powell JJA agreeing):

"From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate...

Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act."

"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

1. In considering the question of whether incapacity for work resulted from the accepted injury in the period from 30 May 2024 onwards it is significant that the applicant continued to work up until that date notwithstanding his ongoing psychological symptoms. There is no evidence before the Commission to suggest that the applicant's injury was at any time, up until that point, incapacitating. To the contrary, the only direct evidence regarding capacity was the certificate of capacity issued by Dr Tran in December 2023 which certified the applicant as fit to perform his pre-injury duties, provided they were performed away from Mr Taylor.
2. The evidence before me indicates that the cessation of work was tied to the applicant's arrest following an assault on his wife which occurred after the conclusion of work on 30 May 2024. The applicant was subsequently incarcerated until February 2025.
3. The applicant's statement evidence suggests that the assault on his wife occurred because he had heard his co-workers talking about Mr Taylor returning to work at a toolbox meeting that morning. The applicant said he started panicking and his symptoms of stress escalated. The applicant said he then went to a friend's house and started drinking alcohol. The applicant said he blacked out and returned home where he assaulted his wife.
4. A similar account was provided to the insurer and recorded in a first contact file note on

7 March 2025. The applicant said he became so distressed about the thought of Mr Taylor coming back to work that he went out and got blind drunk. A similar account was given to Dr Tran on the same day and later repeated to Dr Awais. 5. The respondent has noted that there are no contemporaneous accounts of what occurred on 30 May 2024. The applicant has not put before the Commission any documentary evidence pertaining to his arrest, conviction or period of incarceration. There is no medical evidence from the period after the applicant's arrest until he was released from gaol. The statement evidence from the applicant and his wife provides limited detail as to what happened after the applicant ceased work on 30 May 2024, including who he was with, the circumstances in which he became intoxicated and what occurred after he returned home. 6. The retrospective account of hearing a rumour at a toolbox meeting on 30 May 2024, panicking and the applicant's stress escalating out of control is difficult to reconcile with the contemporaneous records of Dr Tran and the EAP provider earlier in May 2024. Those records indicate that the applicant was already aware of a rumour that Mr Taylor might be returning to work as early as 16 May 2024. Although this resulted in an increase in the applicant's Zoloft prescription and a referral to a psychologist, the applicant continued to work for a further two weeks. One week prior to the event, the rumour was discussed with the EAP provider, Mr Wang. Mr Wang apparently formed the view on that occasion that things were generally going well and the applicant might require only one further session in approximately three months' time. 7. As noted above, the applicant provided inaccurate or incorrect information regarding his prior psychological history and drug and alcohol history to the medicolegal experts involved in this case and the EAP provider. His reliability as a historian is in question. 8. The clinical records before me document prior incidents of binge drinking, drug and alcohol use and relationship difficulties independent of and well prior to the incidents giving rise to the workplace injury. None of this treating material was addressed by Dr Shen or Dr Awais. 9. Dr Shen found a causal link between the applicant's psychological distress and an escalation of drinking, in turn leading to the assault. Dr Shen said it stood to reason that the bullying and harassment at work and lack of support from his employer were causally related to the applicant's arrest and subsequent aggravation of his depressive symptoms and new post-traumatic stress disorder diagnosis. 10. Dr Awais expressed a similar opinion. Dr Awais said the domestic violence incident had to be seen in the context of the applicant's deteriorating mental health which contributed to emotional dysregulation, increased irritability, impaired impulse control and alcohol misuse, culminating in the assault. 11. As the respondent's submissions observed, Dr Awais appears to have first treated the applicant after he was released from goal. I am not satisfied that either his opinion or the opinion of Dr Shen are consistent with the contemporaneous records. Rather they are based on the retrospective account of events provided to them by the applicant. 12. After careful analysis of the evidence, I am not satisfied that the account provided by the applicant of what happened on 30 May 2024 is reliable. It follows that I am not satisfied that the opinions of Dr Shen and Dr Awais, that there is a causal link between the work injury, the applicant's assault on his wife and his subsequent incarceration, are themselves reliable. 13. The respondent's expert, Dr Roberts, did consider the earlier treating evidence and was not satisfied that there was a causal relationship between the bullying and harassment at work and the applicant's incarceration. Dr Roberts gave the opinion that this proposition was untenable on reasonable psychiatric grounds and was an attempt to rationalise the applicant's assault upon his wife. Dr Roberts attributed the applicant's current condition to an un-abated substance use disorder. 14. While aspects of Dr Roberts' reports were criticised by the applicant as irrelevant or illogical, his ultimate conclusion on the causal nexus between the bullying and harassment at work and the assault on the applicant's wife appears to align more closely to the contemporaneous evidence than the opinions given by Dr Shen and Dr Awais. 15. As noted, there is no evidence that the compensable psychological injury found by me above was incapacitating prior to 30 May 2024. Although there is evidence before me that the applicant was incapacitated for work after his release from prison in the certificate and report from Dr Awais and the opinion from Dr Shen, I am not satisfied that such incapacity results from the compensable work injury. 16. The evidence before me indicates that events experienced by the applicant during the period of his incarceration have given rise to a new psychiatric diagnosis. As noted by Dr Roberts, it is difficult to distinguish between any depressive symptoms arising from the work injury and those arising from the gaol-related post-traumatic stress disorder. 17. Although both Dr Shen and Dr Awais have given an opinion that the applicant's current incapacity is multifactorial, deriving from both the work injury and the post-traumatic stress disorder, those opinions are underpinned by their conclusions on the causal nexus between the work injury and the applicant's incarceration. 18. It follows from the above, that I am not satisfied that the applicant has discharged his onus of demonstrating that any incapacity in the period after 30 May 2024 resulted from the compensable work injury. 19. There will be an award in favour of the respondent in respect of the claim for weekly compensation. 20. It is unnecessary, in these circumstances, for me to consider whether ss 254 and/or 261 of the 1998 prevent the applicant from recovering compensation.

[1] [2010] NSWWCCPD 76.

[2] [2012] NSWWCCPD 46.

[3] (1994) 10 NSWCCR 796.

[4] [1991] HCA 12.

[5] [2010] NSWWCCPD 76.

[6] (1994) 10 NSWCCR 796 at [810].