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 1. HIS HONOUR: By his summons filed on 28 November 2019, Samir Batshon seeks the following orders: 1. 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. 2. 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 1. 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. 2. 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. 3. 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. 4. 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 Certificate contained demonstrable errors. 5. On 8 August 2019, the Delegate of the Registrar of the Workers Compensation Commission issued a Decision pursuant to s 327(4) of the Act. Among other things, that decision included the following paragraph: "5. Upon examination of the MAC and on the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) is made out on the basis of the AMS's assessment of permanent impairment." 1. Section 327 of the Act makes provision for an appeal to be lodged against the decision of an Approved Medical Specialist, but the grounds of appeal are limited by the terms of s 327(3) as follows: (3) The grounds for appeal under this section are any of the following grounds-- (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. 1. Section 328 of the Act deals with appeals of the type instituted by Mr Batshon. It provides as follows: 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) 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. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel. 1. The Medical Appeal Panel considered Mr Batshon's appeal and concluded that the Medical Assessment Certificate issued by Dr Hong on 12 June 2019 should be confirmed. The panel issued a Statement of Reasons dated 30 August 2019. That decision is the subject of Mr Batshon's appeal to this Court. 2. Mr Batshon appeared before me without the benefit of legal assistance. However, Mr Batshon is a highly educated person who was able to articulate his concerns in a clear and logical fashion. In essence, Mr Batshon raised two principal concerns. First, he complains that he was not examined by the Medical Appeal Panel notwithstanding his written indication that he wanted that to occur. Secondly, Mr Batshon takes issue with what might in summary be characterised as the accuracy and authenticity of the diagnosis of his condition at which the Medical Appeal Panel appears to have arrived. 3. An application to appeal against the decision of an Approved Medical Specialist is made on an approved form. Mr Batshon's then solicitor completed one of these forms on 2 July 2019. As already noted, the grounds of appeal were limited to the matters listed in s 327(3)(c) and (d) of the Act. In response to the question, "4.3 Do you request that the Worker be re-examined by an AMS who is a member of the Appeal Panel," Mr Batshon's solicitor ticked the box "Yes". Immediately following that part of the form, the following words appear: "If yes, attach submissions addressing why the Worker should be re-examined by an AMS who is a member of the Appeal Panel. Failure to attach submissions may result in the application being rejected." 1. Mr Batshon's solicitor attached submissions in support of his request to be examined by the Medical Appeal Panel. 2. Mr Batshon's form went on to indicate that he did not request an opportunity to present oral submissions to the Appeal Panel and that he did not seek leave to rely on evidence that was not available before the medical assessment that could not reasonably have been obtained beforehand. 3. However, in response to paragraph 4.2 of the form, Mr Batshon's solicitor attached written submissions. It is necessary to include those submissions in these reasons. They were as follows: "GROUND 1 1.1 It is submitted that the Approved Medical Specialist (AMS) fell into demonstrable error in failing to comply with Item 11.4 of the WorkCover Guidelines for the evaluation of Permanent Impairment (4th edition) (Guidelines). 1.2 This states – 'The impairment rating must be based on a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based'. 1.3 In relation to the diagnosis the AMS at p5 of the Medical Assessment Certificate (MAC) bottom paragraph states – 'A number of psychiatric diagnoses were offered, including adjustment disorder and major depressive disorder. Overall I consider an adjustment disorder to be a reasonable diagnosis, and I accept the differential diagnosis of a major depressive disorder to be equally valid'. At p11 of the MAC the AMS states that the diagnosis is 'Adjustment disorder with anxiety and depressive symptoms'. 1.4 It is submitted that the AMS has fallen into demonstrable error for 2 reasons – (1) He has filed to provide any reasons for preferring Adjustment Disorder over Major Depressive Disorder as the diagnosis. (2) He has failed to specify the diagnostic criteria upon which the diagnosis is based. 1.5 Pursuant to s 325(2)(c) of the 1998 Act the MAC must set out the AMS's reasons for that assessment. 1.6 Furthermore in the decision of Campbelltown City Council v Vegan (2006) 67 NSWLR 372 it was held by Basten JA at para 122 – 'On the other hand, to fulfil a minimum legal requirement, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemizis (at 273-274) (Mahoney JA) and at (281-282) McHugh JA). At least that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.' 1.7 It is submitted that as there are consequences which flow from which diagnosis is preferred it is incumbent on the AMS to provide an explanation for preferring the diagnosis of adjustment disorder. GROUND 2 2.1 The AMS carried out a cognitive assessment of the Applicant as set out at p 5 of the MAC. 2.2 It is submitted that the AMS fell into error by carrying out these tests as pursuant to Item 11.6 of the Guidelines only appropriate psychometric testing performed by a qualified psychologist should be used in assessing the impairment rating. 2.3 Accordingly it is submitted the AMS has not complied with the Guidelines in assessing impairment rating for 'Concentration, persistence or pace' and had he done so his assessment for that rating may have been different. ITEM 4.3 – SUBMISSIONS IN SUPPORT GROUND 1 3.1 Pursuant to Item 11.6 of the Guidelines diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment. 3.2 Accordingly it is submitted that if the Applicant's impairment was assessed on the basis of an incorrect diagnosis he should be re-assessed by an AMS who is a member of the Medical Appeal Panel." 1. Mr Batshon's summons contained a large number of grounds upon which he challenges the decision of the Medical Appeal Panel. Some of those grounds in terms appear to take issue not with the decision of the Medical Appeal Panel but with the decision of the Approved Medical Specialist, Dr Hong. Even though Dr Hong's decision is not the subject of the present proceedings, Mr Batshon's grounds of appeal are included below in full: "GROUNDS 1. That the Approved Medical Specialist (AMS) and the Medical Appeal Panel (MAP) have committed jurisdictional error in reaching the erroneous conclusion that the AMS has complied with his obligation under Clause 11.4 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition, 1/4/16. 2. That the MAP has reached an erroneous conclusion in determining that a Psychiatrist is permitted to carry out psychometric testing and that this complies with Clause 11.6 of the Guidelines. 3. That the MAP has reached an erroneous conclusion in determining that any error in diagnosis by the AMS has not influenced the assessment of WPI by the AMS. 4. That the plaintiff was denied procedural fairness due to the AMS failing to take sufficiently into account the views of the plaintiff's Treating Specialist, Dr Selwyn Smith, particularly in relation to his whole person assessment of the plaintiff. 5. That the plaintiff was denied procedural fairness due to the AMS failing to consider the whole of the documentation submitted for his review. 6. That the plaintiff was denied procedural fairness due to the AMS reaching a conclusion inconsistent with his detailed assessment and failing to recognise that the various categories are intertwined. 7. That the plaintiff was denied procedural fairness due to the AMS producing a generic report with omissions, inconsistency and with selective approach to the whole of the assessment. 8. That the plaintiff was denied natural fairness due to the MAP failing to sufficiently review the AMS decision considering the whole of the submitted documents with its omissions, inconsistencies, and with the selective approach to the whole assessment. 9. That the AMS fell into error of law by considering material namely the opinion of Dr Stephen Allnutt whose report is dated 10/11/15. 10. That the plaintiff was denied natural justice due to the MAP reaching a decision without allowing the plaintiff to provide an alternative challenge to the AMS assessment by the treating Doctor, Dr Smith. 11. That there was significant deterioration to the appellant conditions following the AMS assessment of the 12 June 2019. 12. That there was additional evidence related to the health of the appellant which existed prior to the AMS assessment but worsened and discovered after the AMS assessment of the 12 June 2019. 13. That the MAP fell into error and the plaintiff was denied natural justice due to the MAP failing to follow the Social Security Guidelines to Table 5 where the person's presentation on the day of assessment should not solely be relied upon." 1. The Medical Appeal Panel did not examine Mr Batshon. It will be apparent that none of these grounds in terms raises the question of the Medical Appeal Panel's failure to examine, or decision not to examine, Mr Batshon as requested, or whether it even gave consideration to his request. Ground 5 could on one view be considered to be wide enough to encompass his complaint that he was not examined notwithstanding that he wanted to be. Mr Batshon's submissions in support of his request to be medically examined by the Medical Appeal Panel could also probably be described as being part of "the documentation submitted for his review". 2. The Workers Compensation Medical Dispute Assessment Guidelines deal, among other things, with the procedure to be adopted by the Medical Appeal Panel. Clauses 5.17 to 5.20 are in these terms: "5.17 The MAP may adopt any of the following procedures in accordance with the needs of the individual case: 5.17.1 'on the papers' review 5.17.2 further medical examination by an approved medical specialist on the appeal panel 5.17.3 assessment hearing 5.18 The MAP decides which of the procedures is to be adopted. 5.19 The decision of the appeal panel is to be informed by its assessment of the needs of the particular case. 5.20 Where a further medical examination is required, the Registrar will advise the worker of the time and place of the examination." 1. The Medical Appeal Panel would appear uncontroversially to be entitled in accordance with these guidelines to determine the procedure that it will adopt. In the present case, it obviously decided that it would not examine Mr Batshon. Subject to one matter, notwithstanding his request that it do so, the Medical Appeal Panel's decision was one that is arguably beyond challenge in the present proceedings. However, there is no indication in the Medical Appeal Panel's 30 August 2019 Statement of Reasons for Decision either why it did not examine Mr Batshon despite his request or, perhaps more significantly, whether his request to be examined was even considered. 2. In the nature of things, this issue was neither formulated as a ground of appeal nor correspondingly was it argued before me. It seems apparent that Mr Batshon may well have wished to promote this circumstance as an additional ground of appeal if he had been so advised. However, it is not currently an issue that I could properly decide for a number of reasons, not the least of which is that Mr Batshon's opponents have neither been given notice of the point nor an appropriate opportunity to confront it. 3. In these circumstances, I consider that the preferable course is to list this matter before me for further directions. This can be done at a time convenient to the parties to be arranged in consultation with my Associate. I will then hear submissions on the question of whether or not Mr Batshon wishes to seek leave to amend his summons and expand his grounds of appeal and whether or not he should be granted such leave if he does. Other issues may well also arise for consideration. In approaching the matter in this way I should indicate that I have formed no final view about the disposition of Mr Batshon's appeal as presently framed or about his prospects of success in the event that he is permitted to argue some further ground or grounds of appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2020