Is an Arbitrator in the Workers Compensation Commission entitled to discredit the GP's contemporaneous records in determining that a frank injury was not sustained as alleged? What are the Arbitrator's obligations, before such a finding is made, when there may be cause to question the validity of the records? The Presidential Decision of Hancock v Holman Industries Pty Ltd [2019] NSWWCCPD 16 addresses these issues.

Date of Decision: 24 April 2019

Citation: Hancock v Holman Industries Pty Ltd [2019] NSWWCCPD 16

Jurisdiction: Workers Compensation Commission (NSW)


  • Where the GP's consultation notes are not reliable or incomplete in respect of whether a frank workplace injury occurred, as alleged, it is not open to the Arbitrator to question the validity of the records (if the issue was not expressly raised by the parties). Nor should the Arbitrator determine that the worker's onus of proof has not been discharged without giving the worker the opportunity to address this evidentiary deficiency.
  • A hasty decision in favour of the Insurer under such circumstances amounts to a lack of procedural fairness and will cause the matter to be remitted back to another Arbitrator for re-determination, so that the fact-finding process can be undertaken afresh.


Mr. Hancock (the worker) made a Workers Compensation claim against Holman Industries for frank injuries to his lumbar spine and left knee allegedly sustained in the course of his employment on 18 May 2015.

The Insurer denied that the worker's medical conditions arose out of, or in the course of, employment such that they attracted the definition of 'injury' within the meaning of Section 4 of the Workers Compensation Act 1987. It appears this denial was based predominantly on the consultation notes of the worker's GP, Dr Ong, which showed pre-existing medical conditions of a similar nature in those body parts arising from a prior accident. The merits of the worker's statutory entitlements arising from his obvious incapacity and need for treatment were otherwise not in dispute.

The matter proceeded to the Workers Compensation Commission where the Arbitrator in the first instance found in the Insurer's favour. In doing so, the Arbitrator noted that Dr Ong's consultation records referenced '"W/C" in the margins in the days following the alleged workplace accident; however, the GP had provided no further explanation. The Arbitrator hypothesised that these notations may have been added at a later date and were not contemporaneous (although this was not expressly the assertion of the Insurer).

While the Arbitrator accepted that an incident "of some kind" occurred on 18 May 2015, she was ultimately not satisfied that the worker sustained the alleged injuries in that incident given the various inconsistencies in the history he subsequently gave, and given the ambiguity of his GP's records.

The worker appealed.

Presidential Appeal

Deputy President Snell said at paragraph 41 of the Decision:

'If a court or tribunal proposes deciding a case by reference to matters outside the parties’ submissions and how they have conducted the matter, that prospect should be raised with the parties. It follows that there was a breach of the rules of procedural fairness, in how the [GP's] notations were dealt with….'

In other words, it was the Arbitrator's duty under the circumstances, having suspected that further explanation was required from the GP as to the accuracy and/or the validity of his contemporaneous records, to allow the worker to make submissions on that issue before the matter was decided.

Deputy President Snell also formed a different opinion to that of the Arbitrator when it came to the consistency of the history given by the worker. The Deputy President instead found that the bulk of the medical evidence consistently suggested that the worker had two separate accidents, the latter being the subject accident, but that his pre-existing medical conditions had been asymptomatic prior to the subject accident. It was noted that the Insurer had no medical evidence to the contrary. It followed that the Arbitrator's failure to provide adequate reasons as to her rejection of the worker's evidence, in light of the above, was criticised.

There was also criticism of the Arbitrator's comments in her decision that the worker had not offered any explanation as to the questions she perceived had been raised by the evidence and her errors in:

  1. firstly, not clarifying the scope of the explanation required; and
  2. secondly, and more importantly, allowing the worker the opportunity to provide the desired explanation.

It was held that the matter ought to be re-determined by a different Arbitrator.

Why this case is important

This case is a reminder that GP's contemporaneous consultation notes are not the 'be all and end all' when it comes to establishing that a frank injury was sustained from a factual point of view. In cases where the GP records are lacking or incomplete, it is incumbent on the Insurer to proactively seek clarification from the GP before denying liability (if the denial is solely based on that issue) and before proceeding to litigation in the Commission.

That is not to say that the onus of proof ought to be reversed, but merely that the Insurer should proactively explore all potential counter-arguments and evidence to come before making a decision as to liability, so as to avoid an appealable error if those GP records are erroneously interpreted in the Commission.

Though this particular issue did not need to be ventilated in this Decision, one must also remember the definition of 'injury' under Section 4 of the 1987 Act. Namely, that it also includes the aggravation, acceleration or exacerbation of a pre-existing condition. The mere occurrence of a prior accident of a similar nature or the existence of prior symptomology at some point is not (without additional evidence from the Insurer) a bar to the recovery of compensation.