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Member’s discretion when considering medical evidence

  • Newsletter Article
  • Published 17.08.2021

Stanshall v The Urban Fringe Kings Langley Pty Ltd (NSWPICPD 2021)

Key Takeaways

Members (formerly Arbitrators) in the PIC, as first instance decision makers, have the discretion to determine what weight should be given to the medical evidence before them. In exercising this discretion, Members must consider the evidence as a whole and then accept, reject, or give greater preference to some evidence over others.

Brief Facts

The worker in this matter brought a claim for lump sum compensation for injuries to both upper extremities and an alleged consequential neck injury. Liability for consequential neck injury was in dispute.

The evidence before the Commission included clinical notes from the worker’s treating GP which recorded a history of neck complaints which pre-dated the subject injury by two years. The worker’s qualified doctors did not address the pre-existing conditions, and accordingly the Arbitrator (as he then was) preferred the opinion of Dr Panjratan (qualified by the insurer) who determined that her neck symptoms did not result from the accepted bilateral injuries to her shoulders.

The decision was appealed by the worker on the following grounds:

  • the Arbitrator erred in law when determining the claim by reference to histories given to doctors, namely by failing to apply the principle as articulated in Mason v Demasi (NSWCA 2009) (‘Demasi’), and
  • the Arbitrator erred in determining, contrary to the evidence, that the worker had failed to discharge the onus of proof to prove that she had a consequential condition of her cervical spine


On appeal, President Judge Phillips considered that the Arbitrator did not contravene the principles arising from Demasi as the circumstances of the subject matter could be distinguished from Demasi. 

In Demasi the NSWCA warned against using inconsistencies in medical records to make adverse findings against a claimant’s credit.  

The President held that in the present matter the Arbitrator did not make adverse finding as to the worker’s credit, rather the President described the approach taken by the Arbitrator as follows:

‘The task that was undertaken by the Arbitrator was to consider the evidence, weigh it and then decide whether it is to be accepted, rejected, or that some evidence is to be preferred over another. The weight to be afforded to particular evidence is a matter for the Arbitrator, the first instance decision maker, and is a finding of fact. Such findings of fact are not disturbed on appeal if there is support for those findings within the evidence.'

Accordingly, the President found that the Arbitrator did not err in preferring the medical opinion of Dr Panjratan, who was the only doctor that engaged with the worker’s pre-existing complaints of neck pain.

He concluded that the Arbitrator was ‘entirely within his discretion as a first instance decision maker to weigh the evidence and to arrive at the conclusions that he did.’ Therefore, the worker’s appeal failed on both grounds and the certificate of determination was confirmed.


Members have the discretion to weigh the competing expert medical opinions in contested proceedings, and give preference to the opinion that engages with the complete history of the worker’s injury. This case therefore highlights the importance of ensuring that qualified doctors take a complete history of a worker’s injury including relevant pre-existing conditions in their reports.