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Gordon v State of New South Wales (NSW Police Force) (NSWPIC 2025)

Key Takeaways

Clear and thorough contemporaneous clinical records from a medical practitioner may be preferred to the statement of a worker in situations where those records provide sufficient and sustained detail and the history of the worker appears to be a poor recollection of events.

Brief Facts

The worker was employed as a police officer and claimed lump sum compensation in respect of injuries to the lumbar and cervical spines, bilateral upper and lower limbs and the right thumb arising out of the course of his employment with the NSW Police Force.

Liability remained in issue in relation to the bilateral upper limbs and right knee and the matter proceeded to an arbitration hearing.

As a police officer, the worker performed primarily general duties which involved arrests using varying degrees of physical force. He sustained injuries including bumps and knocks that were not reported.

The claim in relation to the upper limbs and the right knee was disputed based on a report of Dr Machart, Independent Medical Examiner, who considered the worker a poor historian and commented that due to the absence of documentation (including contemporaneous clinical records) of a work related injury to either shoulder or knees it was difficult to connect the injuries to employment.

Decision

The clinical records from the worker’s general practitioner were carefully analysed by Member Diana Benk who noted that an injury to the right shoulder was recorded in those records as having occurred after bowling in cricket (on 31 May 2010).

The Member advised that in assessing whether an injury has occurred the relevant authorities demonstrated that there must be evidence of a sudden or identifiable pathological change, and in the case of a disease of any abnormal physical or mental condition that is not purely transient. Further, the issue of causation must be determined based on facts and the worker bears the onus of establishing injury on the balance of probabilities.

Following examination of the available evidence the Member noted that while authorities indicated that care should be taken not to place too much weight on clinical records of treating doctors, as their primary concern was with treatment and this could result in a lack of recorded complaints, this was not the case in this matter. The Member found the treating records of the GP to be thorough and the applicant worker had regularly attended the practice.

The Member commented “it beggars belief that the doctor would not record any contemporaneous symptoms of shoulder or knee pains or treatment suggestions in the context of employment circumstances over the years, especially when they had no hesitation in doing so with regard to the right thumb injury, back and psychological complaints”.

The clinical records were therefore found to be an accurate reflection of the complaints made by the worker prior to litigation. While there had been investigations of the shoulders in 2010 and right knee in 2018, these were unconnected to employment and arose out of personal circumstances (playing cricket and a popliteal cyst).

In relation to the worker’s statement, the Member found that the well-established case law on fallibility of memory could not be ignored and appeared to be the situation with the worker’s recollection in this matter.

The Member accordingly preferred the contemporaneous clinical records of the treating doctor to the statement of the worker.

A finding in favour of the respondent in respect of injury to the bilateral shoulders and right knee was made.

Implications

If contemporaneous medical evidence shows the evidence of a worker to be unreliable, then medical evidence may be preferred by a Member. Greater weight may be placed on clinical records if those records are consistently thorough with regular attendances and practitioners carefully recording work and non-work related injuries, taking necessary treatment action as required.