Batshon v Sydney Trains [2020] NSWSC 1266

Batshon v Sydney Trains [2020] NSWSC 1266

Because the plaintiff's form and submissions included a request to be re-examined or re-assessed by an AMS who was a member of the Medical Appeal Panel, and because the opportunity for such re-examination was specifically contemplated by the appeal procedure under the Work Injury Management and Workers Compensation Act 1998 and the Workers Compensation Guidelines, the request was a mandatory relevant consideration. The Medical Appeal Panel's reasons made no reference to the request, giving rise to a strong inference that it was not considered at all. That failure was jurisdictional error, warranting leave to amend, allowing the appeal, setting aside the Panel's decision, and remitting the...

Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Appeal Concerning Decision of the Medical Appeal Panel of the Workers Compensation Commission / Application for Leave to Amend Summons and Determination of Appeal
Outcome
Leave to amend granted; appeal allowed; Medical Appeal Panel decision set aside; matter remitted for re-determination; no order as to costs.
Legal Topics
['leave to Amend Summons' 'jurisdictional Error' 'mandatory Relevant Consideration' 'medical Appeal Panel Re Examination Request']
['civil Procedure' 'administrative Law' 'workers Compensation'] ['leave to Amend Summons' 'jurisdictional Error' 'mandatory Relevant Consideration' 'medical Appeal Panel Re Examination Request']

Case Brief

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Procedural Posture

Appeal Concerning Decision of the Medical Appeal Panel of the Workers Compensation Commission / Application for Leave to Amend Summons and Determination of Appeal

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend the summons to add a ground alleging jurisdictional error by the Medical Appeal Panel.' 'Whether the plaintiff made a submission requesting re-examination by an Authorised Medical Specialist who is a member of the Medical Appeal Panel.' "Whether the Medical Appeal Panel failed to consider the plaintiff's request for re-examination and thereby failed to take into account a mandatory consideration." 'Whether that failure constituted jurisdictional error requiring relief.']

Ratio Decidendi

Because the plaintiff's form and submissions included a request to be re-examined or re-assessed by an AMS who was a member of the Medical Appeal Panel, and because the opportunity for such re-examination was specifically contemplated by the appeal procedure under the Work Injury Management and Workers Compensation Act 1998 and the Workers Compensation Guidelines, the request was a mandatory relevant consideration. The Medical Appeal Panel's reasons made no reference to the request, giving rise to a strong inference that it was not considered at all. That failure was jurisdictional error, warranting leave to amend, allowing the appeal, setting aside the Panel's decision, and remitting the...

Court Disposition

Leave to amend granted; appeal allowed; Medical Appeal Panel decision set aside; matter remitted for re-determination; no order as to costs.

Orders

  • ['Grant leave to the plaintiff to amend the summons filed on 28 November 2019 by the addition of the following ground of appeal: "14 That the Medical Appeal Panel committed jurisdictional error by failing to consider Samir Batshon\'s request to be re-examined by an Authorised Medical Specialist who is a member of...