Harvey v Earth AI Operations Australia Pty Ltd
[2025] NSWPICMP 431
•19 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Harvey v Earth AI Operations Australia Pty Ltd [2025] NSWPICMP 431 |
| APPELLANT: | Harvey |
| RESPONDENT: | Earth Al Operations Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| MEDICAL ASSESSOR: | Dr John Lam-Po-Tang |
| DATE OF DECISION: | 19 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Appeal based upon incorrect assessment of two PIRS categories; Ferguson v State of NSW & Ors [2017] NSWSC 857 (Ferguson) and Parker v Select Civil Pty Ltd [2018] NSWSC 140 applied; no error made out; Held – no error made out; MAC confirmed. |
WORKERS COMPENSATION DIVISION
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
Matter number: | M1-W27388/24 |
Appellant: | Benjamin Maxwell Harvey |
Respondent: | Earth AI Operations Australia Pty Ltd |
Date of decision: | 19 June 2025 |
Appeal Panel: | |
Member: | E Beilby |
Medical Assessor: | Michael Hong |
Medical Assessor: | John Lam-Po-Tang |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 January 2025 Benjamin Harvey lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 January 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was employed as a drilling manager with the respondent. He sustained a psychological injury deemed to have occurred on 23 December 2021.
The appellant sought lump sum compensation in respect of 19% whole person impairment (WPI) arising from his psychological injury.
The matter was referred to Medical Assessor Himanshu Singh for assessment of WPI. Medical Assessor Singh assessed the appellant as having a 9% WPI.
The appellant has appealed the medical assessment on the basis that errors were made in respect of two of the six psychiatric impairment rating scale (PIRS) categories. Those categories are social and recreational activities, and travel.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there had been an appropriate examination of the appellant and the reasons for the Medical Assessor’s findings are clearly articulated.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out below:
(a) Mr Harvey had stated that he does not do much. He would spend time sitting at home, watching TV, or playing games. His drinking has picked up. He may drink 8 to 12 drinks on most days, which includes beer or cider (Page 3);
(b) Mr Harvey has stated that he is not able to enjoy most of the things in his life. He may get some enjoyment with his grandson kids [sic] (Page 3);
(c) Mr Harvey stated that he does not do much in his day. He may go to Devonport to see his daughter and grandchildren on occasions. He would get up in the morning and open the door for the dogs to go out and turn the TV on or play games on the iPad. He may continue to watch TV or go to the supermarket to grab something. He mostly goes out by around 8.00pm so that there are less people around. He may go to his daughter's place once every two months (Page 4);
(d) he currently meets the DSM-5 criteria of a major depressive disorder (Page 5);
(e) social and recreational activities – Class 2 - Mr Harvey will visit his daughter, mom, and sisters. He spends most of the time at home. He does not attend social events. Last year, he went to Speedway Racing few times and went to the last season with his daughters, and he's not been out in this season. He got married a month ago and went away for a night and then came back. It was a very small wedding with only 10 people, mostly attended by family, which included his daughters, his mom, and dad. He is not into his hobbies. He used to do more things such as he was into speedway events, sporting clubs. He would play football. He stated that age is also has been a restrictive factor. He's not going out regularly with his friends (Page 10), and
(f) travel – Class 2 - Mr Harvey does not drive as much because of the alcohol that he takes on all days and may also get a road rage. He drives for his doctor's appointment, which is a 30-minute drive. He very rarely goes out on his own. He may take the dog with him. He's mostly accompanied by his daughter and wife when he goes out. He went to see the dentist in Sydney and had to catch a flight. He was very anxious about it. He goes out and takes the dogs on the beach. He mostly drives short distance, may drive for 15 minutes, and then comes back home (Page 10).
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits in respect of social and recreational activities that the Medical Assessor should have assessed the appellant as a Class 3 for this PIRS category. The appellant observes the Medical Assessor referred to the claimant attending a few Speedway races in the previous season but then goes on to comment that the applicant has been unable to attend any such races for the present season. The Medical Assessor also records that the applicant no longer attends his previous sporting clubs or plays football games as he did prior to his injury.
The appellant observed that there is no comment if the appellant is required to be accompanied by a support person when attending events as he made no inquiry as to if he required a support person when attending events. The appellant asserts, through his submissions on appeal, that he requires his wife or daughter to accompany him when he leaves home and he only visits family members at the insistent prompting of his wife or mother.
In respect of travel, the appellant submits that he should be assessed as a Class 3 for this PIRS category. Once again, the appellant points out that he is unable to leave his home without his wife, or if she is unavailable, his daughter.
The respondent reminds the appeal panel that the descriptors in the guidelines are to be used as a guide and it is matter for the Medical Assessor to apply his or her expert judgement when applying the relevant rating. The respondent points out that the appellant did not report requiring prompting from family members or requiring a support person to attend social events in his statement evidence nor is there like evidence contained in various treating and qualified doctor’s reports.
The respondent submits that a claim in respect of deterioration is inconsistent with the available medical evidence and reports and refers to the reports of Dr Modem on
6 November 2023 and 6 August 2024. The responded points out that Dr Modem assessed a Class 2 in respect of this PIRS category.In respect of travel, the respondent points out that the Medical Assessor noted that the appellant can drive to doctors’ appointments 30 minutes away from home and at other times, is able to drive short distances, he also takes his dogs to the beach. Further it is observed whilst the Medical Assessor recorded that the appellant rarely goes out on his own, this does not mean he is incapable of leaving his residence without a support person as required for a Class 3 assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel has considered the submissions made by both parties in this Appeal.
Paragraph 1.6(a) of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) provides that: “Assessing permanent impairment involves clinical assessment of the respondent worker as they present on the day of the assessment taking into account the respondent worker’s relevant medical history and all available relevant medical information …”
In order to have the MAC revoked, the appellant must demonstrate that the Medical Assessor applied incorrect criteria or that the MAC contains a demonstrable error (1998 Act, ss 327(3)(c)-(d)).
Campbell J in Ferguson v State of NSW & Ors [2017] NSWSC 857 (Ferguson) set out the relevant principles as:
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140, Harrison AJ said, “In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”
In respect of social and recreational activities, the appellant is able to visit his family, though infrequently. The family visits and interactions are often extended, for example staying the night or hosting grandchildren for a weekend. The appellant was able to attend speedway events last year, along with his daughters and partner, in circumstances where there is no evidence of deterioration and this is significant.
It is noted that the appellant was married in late 2024, in a small ceremony involving around 10 persons. Thereafter, the appellant and his new wife went away for a night. The Appeal Panel notes that a wedding is a social event.
The appellant asserts, in his submissions, that he requires his wife or daughter to accompany him when he leaves home and he only visits family members at the insistent prompting of his wife or mother.
The Appeal Panel observes that such evidence is new evidence and no application has been made to adduce same. The Appeal Panel noted Dr Martin Allan provided limited history in the body of his report, and rated 3 in the PIRS, however, this is based on an absence of recreational activities and he did not consider the speedway races, and he provided no evidence the claimant needs a support person in any recreational activities. The Appeal Panel can find no error in a Classification of Class 2, whilst there is clear impairment, the appellant has not established that he cannot go out alone.
In respect of travel, the Appeal Panel observes that whilst the appellant seems to prefer to travel with close family members, he is able to get out himself. This is so even with short distances. Dr Modem and Dr Allan also rated 2 and noted the appellant can travel in familiar places on his own. As the appellant is able to travel without a support person, though not regularly, the Appeal Panel can find no error in the classification of Class 2.
For these reasons, the Appeal Panel has determined that the MAC issued on
13 January 2025 should be confirmed.
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