Bowne v State of New South Wales (NSW Police Force) [2026] NSWPICMP 701
Key takeaways
A successful appeal against a Medical Assessment Certificate (MAC) requires evidence of inadequate or inaccurate reasoning applied by the Medical Assessor (MA) as opposed to a difference in medical opinion between the MA and the medical evidence relied upon by the parties. Inaccurate reasoning can, however, include as little as a statement by the MA that their opinion is consistent with other specialists when the MAC does not strictly support this.
Brief facts
The worker was employed by the NSW Police Force as an unsworn (civilian) customer service operative. She was required to take 000 calls as part of her duties. Following vicarious exposure to traumatic events, the worker suffered a psychological injury.
The worker made a claim for lump sum compensation pursuant to section 66 of the 1987 Act. The claim was referred to a MA who ultimately assessed 7% WPI.
The worker lodged an appeal against the decision of a MA on the basis that the MA did not properly apply the Psychiatric Impairment Rating Scale (PIRS) or correctly assess the categories of concentration; persistence and pace and employability. The worker pointed to her statement and both Independent Medical Examination (IME) reports as supporting evidence.
Decision
The worker’s appeal was referred to a Medical Appeal Panel (MAP).
In considering the PIRS class descriptors the MAP referred to the case of NSW Police Force v Daniel Wark [2012] NSWWCC MA 36 where it was stated:
The pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.
The MAP considered that the above established that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
This was affirmed with reference to further caselaw, including Glenn William Parker v Select Civil Pty Ltd which referred to error only being established in a statutory sense if there was more than a difference of opinion on a subject where reasonable minds may differ.
The MAP described the function of a MA by reference to the case of Wingfoot Australia Partners Pty Ltd v Kocak (2013) HCA 437 noting that:
The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
The MAP also confirmed that:
A Medical Assessor is neither an arbitrator nor a judge, and he is not obliged to decide between competing arguments or competing medical opinions. There is no obligation on a Medical Assessor to refer to every document before him, but rather his function is to give his own opinion on the medical question referred by applying his own medical experience and expertise.
The above was however subject to adequate reasons being provided. It was on this basis that the MAP held reservations in the present matter as in both categories the MA’s opinion differed from the unanimous opinion of the medicolegal experts on either side. Similarly, the MA had commented that his opinion was consistent with that of other specialists which was not viewed as entirely accurate.
Ultimately the worker was re-examined by MAP member Dr Takyar who similarly found 7% WPI providing the same PIRS ratings in the disputed categories of concentration; persistence, pace and employability, and therefore the MAC originally issued was confirmed.
Implications
An appeal against a MAC should not proceed if the opinion of the MA is clearly based on their assessment and clinical judgment as opposed to a difference of opinion with the medical evidence provided by the parties.
Evidence of inadequate or inaccurate reasoning provided by the MA is required for a potential successful appeal. However, this can include as little as a sentence in the MAC indicating that the MA agrees with the other specialists when in fact their report suggests otherwise.