Batshon v Sydney Trains - [2020] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation: Batshon v Sydney Trains [2020] NSWSC 831
Hearing dates: 12 June 2020
Date of orders: 30 June 2020
Decision date: 30 June 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
Matter to be listed for further directions

Catchwords:
CIVIL PROCEDURE — judicial review — administrative decision of medical appeal panel — where plaintiff suffered psychological injury at work — where dispute as to degree of whole person impairment — where request by plaintiff for re-examination — where no re-examination by medical appeal panel — where no reasons or consideration given

Legislation Cited:
Work Injury Management and Workers Compensation Act 1998 (NSW)

Category: Principal judgment
Parties: Samir Batshon (Plaintiff)
Sydney Trains (First Defendant)
Medical Appeal Panel of the Workers Compensation Commission (Second Defendant)
Registrar of the Workers Compensation Commission (Third Defendant)
Representation:
Counsel:
J W Dodd (First Defendant)
Solicitors:
Graham Kenneth White (First Defendant)

File Number(s): 2019/375163
Publication restriction: Nil

Judgment

HIS HONOUR: By his summons filed on 28 November 2019, Samir Batshon seeks the following orders:

That the decision of the second defendant issued on 30 August 2019 in matter number M1-671/19 in the Workers Compensation Commission of NSW and the Determination made in the Certificate of Determination issued by the Registrar of the Workers Compensation Commission of NSW on 6 November 2019 be set aside.

That the matter be remitted to the third defendant for referral to a Medical Appeal Panel differently constituted under s 328 of the Work Injury Management and Workers Compensation Act 1998 for re-determination according to law.

Background

Mr Batshon suffered a primary psychological injury as the result of his employment as a construction manager with Sydney Trains prior to 17 December 2015. He was initially diagnosed by his treating psychiatrist Dr Selwyn Smith as suffering from an adjustment disorder. Dr Smith expressed the opinion that this condition was resistant to treatment and it deteriorated. By 17 May 2018, Dr Smith diagnosed a major depressive disorder. At that time he assessed Mr Batshon as suffering from 24% whole person impairment.
Mr Batshon was also examined, at the request of his former solicitor, on 10 November 2015 by Dr Allnutt. He provided a report and arrived at a markedly different assessment. Dr Allnutt expressed the opinion that Mr Batshon suffered from 4% whole person impairment.
These differing views as to the extent of Mr Batshon’s permanent impairment as a result of his injury gave rise to a medical dispute as defined by s 319 of the Act.
Dr Hong examined Mr Batshon on 31 May 2019 and produced a Medical Assessment Certificate dated 12 June 2019. Dr Hong concluded that Mr Batshon suffered from a whole person impairment of 8%. Mr Batshon was dissatisfied with Dr Hong’s determination, and on 2 July 2019 he lodged an Application to Appeal against the Decision of the Approved Medical Specialist. Mr Batshon maintained that Dr Hong’s assessment was made upon the basis of incorrect criteria and that the Medical Assessment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batshon v Sydney Trains

Details

AGLC: Batshon v Sydney Trains [2020] NSWSC 831
Case: [2020] NSWSC 831
Decision Date: 30 June 2020

CaseChat Overview and Summary

In Batshon v Sydney Trains, the plaintiff, Batshon, sought judicial review of a decision made by a medical appeal panel. The panel was convened to assess Batshon's claim for compensation following a psychological injury sustained during his employment with Sydney Trains. The primary issue at hand was the degree of whole person impairment that Batshon had suffered, which was disputed between the parties. Batshon had requested a re-examination by a medical expert to substantiate his claim, but the panel declined this request without providing any reasons or demonstrating any consideration of the matter. The court was tasked with determining whether the panel's decision was legally sound and if it had adequately addressed Batshon's request for a re-examination.

The court examined whether the medical appeal panel was required to consider Batshon's request for a re-examination and if their failure to do so constituted an error of law. It was established that the panel had a duty to ensure that all relevant evidence was considered, and this included evaluating the merits of Batshon's request for a re-examination. The court further considered whether the absence of reasons or any indication that the panel had considered Batshon's request amounted to a procedural unfairness. Ultimately, the court found that the panel's failure to consider the request and provide reasons constituted a significant procedural error, undermining the fairness of the decision-making process.

The court concluded that the medical appeal panel's decision was flawed due to the procedural irregularities identified. The court granted Batshon's application for judicial review and quashed the decision of the panel. The matter was remitted back to the panel for reconsideration, with explicit instructions to consider Batshon's request for a re-examination and to provide clear reasons for their decision. This ruling emphasised the importance of procedural fairness and the necessity for administrative bodies to properly consider all relevant submissions and evidence in their decision-making processes.

Orders