Chattin v WorkCover Queensland [1999] ICQ 47 (1999) 161 QGIG 531

530 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 August, 1999 6 August, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE QlJ"EENSLAND INDUSTRIAL COURT WORKCOVER QUEENSLAND ACT 1996 Workplace Relations Act 1997 - s. 360(3) - appeal from decision of industrial m agistrate John Chattin AND WorkCover Queensland (�o. C24 of 1999) JUSTICE WILLIAMS, PRESJDENT 53] 30 July 1999 Industrial Law - Workers' Compensation - tanker driver exposed 10 Benzene - suffering aplastic anaemia due to mye lodysplasia - conflict of medical opinion as to causation - held 1hat in the circumstances Magislfate correct in concluding that causa1ion not proved - Adelaide Stevedori11g Co. lld v. Forst (1940) 64 CLR 538 and Fernandez v. fobemakers ofAustra/i,;1 Lid. (1975) 2 NSWLR 190 and (1976) 50 ALJR 720 considered . JUDGMENT This 1s an appeal from a decision of an lnduslfia l Ma gistra te dismissing an appeal from the respondent's cdusal lO hol d tha t the appellam was entitled lo workers ' compensation. The Industrial Magistrate concluded that he was ..not sa tisfie d on the balance of probabilitie s that the illnes s wa� comraeted in the course of the relevant period of employment" and further that --employment was 001 a significant contributing factor to the co ntractio n of the disease". It will be necessary to return to the reasoning of the Industr ial Magistrat e later. The proceedings m the court below an d in this court fall to he resolved within the followin g hroad parameters: I. The plaintiff is suffering from aplastic anaemia due to myelodysplasia, an early form of malignancy affeeting the bone marrow; 2. Be nwne is a toxic ;uhstance the exposure to which in certam quantllies has be en demonstrated to cause myelodysplasia; 3. All people in the community are exposed to some extent 10 Benzene: it is found in, for examp le, motor vehicle exhaust emissions an d tobacco smoke: 4. StudiC-1 have shown tha t workers in the pe troleum industry ar.; not generally mor e susc eptible to developing myelodysplasia unless e xposure to Benzene is above certain levels (though no level of e xposure can be regarded as absolutely safe); 5. Th.e appella nt was e xposed in his employment with the respondent to a higher l evel of Benzene than ordin ary members of the community because he was a tanker drive r delivering products containing Benzene and because he was expose d to diesel fumes from his truck: 6. Prior occupation in the Army for a consider able period of time a lso exposed the appellant to higher levels of Benze ne than would apply t0 ordinary members of lhe community: 7. It is impossible to assess or quantify susceptibility of an individual person who has rea cted adversely to Benzene on any objeetive basis: S. MyeJodysplasia occurs al t he rate of two or three cases per million of population; on that basis the re would normally be from six to nine cases a year in Queen sland. With the majority of cases it is not possible to esta blish causation . Cases in Queensland where Ben zene could be considered as a possible cause would constitute a small, or minme, percentage of tota l cases. Dr Durrant, a highly qualifie d clinical ha ematologist, who has been t reating the appellant for so me time, gave evidence in which he expressed the opinion that the appellant's myelodysplasia was .. associated" with his e xposure to Benzene in the course of his e mploymen t with the respondent. His reaso n.ing can be summarised as follows: (a) .'Vlyelodysplasia is kn own to he more com mon following occupational exposure to c hemicals (of which Benzene is the most studied) and following treatmen t with C}totoxic drugs and radiation ; (b) The appellant was exposed to Benzene in the course of his employmen t: (c) Therefore the probability is that there is an "association" between the exposure of the appellant to Benzene an d his di�ca.se. (I have used the word ··association" because that is the expression regularly used by the doctor in his evidence and report e xhibit 1). The respondent led evidence from Dr P. A. Carroll, a physi cian and toxicologist. In add itio n 10 me dical degrees he wa s a Bachelor of Chemical En gineering. His opinion was that the appellan1's exposure to Benzene was a l a minute le vel, well below the level suggested by controlled studies as being the level above which the re was a greate r suscep<ibility of developing myelodysplasia or associated conditions. He recognised the problem of individual susceptibility but e xpre.<sed the opinion that the medical research on the topic strongly suggested that a higher level of exposure than was experience d by the appellant was required before one could say with an y degree of medical cerc.aincy that the disease was caused by the exposure . (H e tended 10 use e xpres sions such as --related to" or "linked t0'· ra1her than ··cause d" or "c ontributed significantly to"). It was in 1ho se broad circumstances that the Industrial Magistrate was called upon to deternune the appeal to tha1 court. He commence d his analysis of the evidence by saying: --since the appeal will be resolved by the acceptance or rejeetion of either medical opinion I have taken the time to carefully read the transcript. medical reports and the numerous articles produced hy both speci alists:·. After reviewing aspects of the evidence, he went on: ..After carefully considering all of the e vide1ice I cannot prefer the opinion of Dr Durrani to that of Dr Carroll, whatever sympathy I might foe! for the appellant. l am not satisfied oo the balance of probabilities that the illness was contrac1ed in the course of the relevant penod of employment as a delivery driver. Earlier proceedings had rejected Army service as a cause of the appellant's condition. I further find employment was not a significant contribu1ing factor to the conu-acuon of the diseaso0.". ::ODMA\GRPWISE\QLRC-DOM.IRO-PO I .GENERAL I :29253.1QGIG 6/8/99 -- 1 of 3 -- 5 32 QUEENSLAND GOVERNMENT INDUSTR I AL GAZETTE 6 August, 1 999 The principal attack o n the Magv,trate' s d eciswn asserted that th e statement that he cou l d not prefer t he _e vidence of Dr Durrant t o that of Dr Carroll was no t cteterminative of the issue of cau sation. It was su b mitt ed that the propa approach reqmred a d etermination 1,1.h c:ther or not ill th e light of h is fi ndmgs (includ ing preference for the opinion of Dr Carroll) the evidence as a whule sansfie d hi m on th e b al an ce o f probab 1ht1es that the e xposure to B enzene 111 the coUis e of employment with t he r espondent was a significant contnbut111g factor to the contract1011 ol tht: d1.,e,1.se. In support of the argu ment cou nse l referred to the reasonin g of Co nnolly J in Obstuj v ~ Van de J:>us _{W203 of i 9 8�, 1 3 Apr�! I 9 8_7, u meported) cit�d with approval hy Lee J as a mc:mber of th e Court of Appeal i n Pacific Coal Pty Ltd v 0audry (CA No . . 268 of 1 99-:i, 2� Dece mber 1 996, u meport�d ). _In Obstoj th e pl amtiff claimed that she was su ffering from ,,,mporal lobe epilepsy but there wa, a co.nf11ct of me di cal te:-.tJmo.�y as t(� whether or ,no, it h�d heen caused b y th e motor vehi cl e accid ent in whi ch she had b een dazed h ut not rend ered u n conscious. S he had no pm'.1 h1:-.tor y ot epilepsy. Con n�_ll) J poi nted out that, whilst expert medi ca l evidence was of assi sta nce_ to a court i n attempti n g to r es ol.ve such _a qu ,,st1 �n _ot causat1011, �t �vas n�t �ecessanly to he res olved b y acceptance or reje ction of medi cal testi mo ny; " fh e fu nct10n of a court of law I l l a .-;1tu at1011 su ch as th is 1 s to d e,h..rmrnc "'h et��r, for whatever reason, it is more prohahl e than not that th ere is a causal relationshi p b etwee n the accid ent and the pl atnt1ffs po.,t-acc1d ent cond 1l 10n. Tt�e pl aintiff succeed ed . The position was much the s ame in Panfic Coal. The court wa� th ere concerned with t he qu e_st1 011 whether or not the plamt1tt s hack condition as at th e date of tri al was caused b y a rdauvdy mi nor 111Jury he had sustarne d at work som<c'lime pre viou sly. Aga111, th e1e was a marke� confli ct of med i cal testimo ny. A;:. Lee J observe d 11 was .. not th e functio n of a court cf law to resol ve quest10ns ot med ical or 111?<:'cd a ny other s�1e nce. The appellate cou rt then: u pheld th e fi nd ing of the trial judge that the hc1ck condition was cau.,ed by th e ac ci d ent III the course ot employment. (See also Wrigley v TI!e State Government Insurance Office (Qld) ( 1 966) W.C. R. 1 5 1 ) . Those cases could h e seen a s further illu strations o f the approach exe mpl ified by the d ecision o f the High Court i n Adf'!aide Stevedoring Co Ltd v Forst ( 1 940) 64 CLR 5 3 8 . That ca se concerne d a worker who died as a resuil of coronar y thromb osis after �rforming at work a tas k w�1ch mvolved exertion unusual in k i nd and d egree. H e had reached the age when, as Rich AC.f ob served , "arteno-scleros1s a n d atheroma att11ct mankmd . That learne d Ju dge went on at 5 63 : ••1 d o not see wh y a court s h ou ld not h egin its investigation, i . e. , before h earing any med i cal testimony, from th e standpoi nt o f the presumr,tive inference which thi s se quence of events woul d naturally i nspire in th e mind of any commonsen.se perso n u n mstructcd 111 patho logy. When he hnds that a workman of the not-so-young sta ndin g attempts in a posture cal cu lated b y rea son of the pressure on the stomach to d1 .stu rb or arrest the rhyth m of th e h eart a very strenuous ta sk not for ming part of h i s ordi nary work and th en collapses almos t i mmed iately and d ies from a heart cond1t1011, why should nut a court say that th ere i s a strong grou nd for a preliminary pre sumption of fan in favour of th e vie w that the work matenal l y contnbutcd to th e cau se of death7" . The majority of the Cou rt agreed with that , though a powerful d i ssent from D ixon J shows th e l i mitations on the approach . Similar reasoning e nabled the worker to su cceed rn Fnnandez v Tubemaken ofA.ustraha L td ( 1 975) 2 NSW L R 1 90 C ourt of Appeal ; ( 1 976) 50 AIJR 7 20 High Court . It is i nstru ctive to qu otto a reasonahl y l e ng th y passagt: from the ju dgmcnt of Mahoney J A at I ()9 200 111 th e Court ot Appeal : "The question remains whether , accepting t hat the trau ma was a pos.<:ibk cau s e of the co nd ition, it was open to the.., jury to i n for th at,_ i_n thi s case, it was the actual cause of it. . . . b efore th e possible cau se , the trauma. c;1n 111 th1.s μarti cular ca se b e i n ferred t o he the cause of the cond1 t1011, the cause must h e rel at ed to th e conditiun, not merel y temporally, but ' su fficientl y closely' . I f the conditio n appeared t he da y after the occurrence o f _ the possibl e cause, then, though that appearanc,, mir;ht he a coincidence, ic would nor mal ly be open t o th.: tnbunal ot fact to conclu de that t�e possi b l e was the actu al cause ; i f the co nd i ti on appeared only .mme month., aftc:r the possibl e cau se then I t may well b e no t open t,o draw that _�o nclus_1011. In this k i nd of contc�xt , there must, i n my opinion, he afford ed to the jury some scope of i nductive co nclu �1o n. 1l1e state ot medi cal skul ma y Ot: .,ucb that it can be said b y an expert that, it the co ndi t ion occurs after .•mch and such a period , the n t he possihle cau se is to be 0xclud ed as th <: actu al cause i n the particul ar case. B ut where , as in the pre s ent case, thi;; cannot be d,.)lle , then. 1f a po ssihlr-, ca11sr occurs suff;c1ently closely related to the conditio n, the Jury may dra w th e inferi:'.nce of causal connexion. [ Quoting from an earl i er decision. j . • . it is not i n cumbent UJJOl1 the app l i cant, upon whom the CHIU� re,t,, t o produc.e cvide1�ce �ron_1 the medi cdi witnesse s whi ch proves to d e monstration that the applica nt ' s contentJo n 15 correct. :Mcd 1cal SChonce may say I ll rnd1v1dual cas es that th ere" JS 11('. poss ib l e connexi on b etween th e eve nts and the d eath , Ill whi ch case, ot cours.e, 1f th e facts sLm<l outs i d e the area 1 11 which cummo n expene!lCL ':a n be the touch stone, th en the jud ge cannot act as i f th ere were a conne .,;.101L But if medi cal s..::icnce i s pre pared to sa y that 1s a poss1h l e new, then, m my opi nion, the ju dge after e xamining the lay evid ence may decid e that 1t i, probahle. It I S only w he n medtcal evid ence d em�s that t hc,re J S any_su c_� connexio n that th e jud ge is n ot entitled in ,mch a case to act on his own r ntu1t 1ve reasom ng. It may be, and prohahl y 1s. the case that med i ca l science will fi nd a possibi ii ty not good enou gh on which to hase a sci<'ntific deduction. but court., a1e always concerned t o reach a dec1s10n Oil probah 1 h t y and it is no answer, it se e ms to me th,tt no medical w it ness states with certam l y the very is su e which the JWlge himself has to try. I n such a cas e as the present, the question woul d be� whether the evide nce showed the, conne xion betwee n the pos:,;ible cause a nd the . co nd it ion which occurred was sufficie ntly c lose'. to warrant a reasonabl e mind, faced with th e prob lem of d cterrrunrng the: questi on upon the e vid ence before It, conclu ding that the possib l e was the actual cau se.". That reasonmg was approved of b y a maJ 0nty whe n the case went 011 appeal to the High Court and also h y the Full Court _of Victoria i n Dahl V Gnce (l 9 8 I ) VR 5 1 3. M a.,on J (with whom B arwick CJ :rnd G ibbs J agr-:ed) appro ved and applie d the rc'a.sonm3 proce ss ot the n1aJonty 1 11 Forst, and held that a causal con ne ction may appe ar fro m a signi ficant seque nce of ewnts. He went on at 7 2 5 to recognise that a sequ,,_nce ot events can b e call ed rn aid of drawing an inference wh ich, ac cord i ng to expert evide nce , is open. Agarn the strong disse nt of Step he n J (broad l y tollow111g the approach of Dixon J m Fors:) shows that there are l i mitations on this approach. The reasoning in those cases d oes not, i n my view, avail the appell ant here. He had heen exposed to some �xknt to Be n zene'. a nd other toxica nts over a nu mb er of ye:rs. As alread y noted h e had be e n 111 the Army and seen service in Viet nam . I n about April 1 996 the disease wa.s diagnos ed . In about Ju ly l 996 his fint cl aim was l od ged wi1h Veterans Affairs a llegmg that his cond ition was a result ot exp,Jsure to toxic che mi cal s an d solve nt.:- duu ng his period i n th<: Army. particu l�ly wlulst i n Vietna m. That was rejected . Then he l odged the claim for Workers· Co mpensation hased on his empl oyment as a tanker d ri ver duri n g the peri ods J 983 to J 989 and agarn from 1 99 l to 1 996. Particu larly 111 view of the L\ct that all per.slms m society are -:.xposcd to B e nune to some ext�nt this i s not the t y pe of case i n which ·'tlie mind of any commonse nse pers on u n i nstructed 1 11 pathology" woul d be ah l e to_ draw the " pre su mptive i nfere nce" that there was some causal connection bet ween his exposu re to B en1,ene i n t he course o f his employme nt �nd the dis ease from which the appel l a nt was suffer i ng. There wou l d have to b e , in the clfcumstance.< ot th1.s case, some accepLthk me di cal or sc1enuflc _ev1d enc:e on which the trihu nal of fact could base a tmdll1g that expo,ure to B enzene i n the, course of employment was a s1g111ficant contnb utmg tact,x to t he contractio n of the di se a.<,e. Further, the e vidence here does not estahhsh a "s1gmfi ca nt s scquence of ev,�nts" lead mg to the d 1:-.e ase , Also 1t 1.s d i fficult to speak here of a meanrngfu l "temporal" co nnection. It seem., to me that, gi ven the conflict be t ween Dr Durrant and Dr Carroll, the necessary basi., for a findi ng i n favour ot the appellaat would. �nl y exist if the opinion ol the former was accepted in pre ference to that of the latter. If Dr Carrol i' s op1mon was ;icceptcd t he n the necessary tnundauon for the 6 August, 1 999 QUEENSLAN D GOVERNMENT INDUS TRIAL G AZETTE 5 3 3 appel lant ' s cas e was m1s.smg: such acceptance necessari l y i mplies a reJ ection of D r Durrant' s thesis. Th e preferred medi cal opinion d enies the necessary con nection b etween the prove n l e vel of exposure in th e course of employment and the d isease. Even if the tribunal of fact concluded that, give n th e co nfli ct of medical te stimony. i t was not poss ib l e t o n,ake a posit ive findi n g accepting D r Durrant' s evid ence (that is, the opin ions carried equal weight), then the appellant would fail b ecau.<:e th e onus was on h i m. That wou ld be an i ll us tratio n of th ere being i nadequate material concerning the circumstances of thi ." parti cular ca se such that the court coul d not arri ve at a conclu sio n on th e balance of probabi lities in favour of th e appell a nt. That is a matt er wh ich is th e suhj .: ct of erudite c onsid eration b y Ju stice H odg.mn i n his article .. The S cale s of Justice; Prob ab i l it y an d Proof in L e gal Fact Findi ng" 1 99 5 (69 ALJ 7 3 1 ). I f the e vi d ence of Dr Durrant was not pos itive l y accepte d the n there was no hasis for the court drawing an i nference in favour of the appel lant. At he st for th e appel la nt th e cause of hi s condition remai n ed in doub t and there was no Justification for drawing an mference on the bala nce of the prohab ilities that th e exposure was in some wa y the cause (c( Rhesa Shipping SA. v Edmunds ( 1 9 85) l W . L . R 948). It i s true that o n occasion., in hi s evidence Dr Carroll appeared to b.., concerned with scie nti fic or d e monstrah le proo f of a co nnection betwee n th e exposure to B e 1uene in the cours e of employment and the appellant ' s conditi on. Bu t when hi s evide nce i s carefull y anal ysed, i t is cl ear that he re co g nised h e coul d do no more than say that the l o w level of exposure whi ch the appellant e xperienced was n ot , i n hi s opinion, suffi ci ent to esta hl i sh a conn ection b etween the exposure and the disease such as woul d l ead to a con clusion that the fo1 mer wa s a cause of the l atter. On a number of occasions he mad e it clear that it was not for h i m to decide w het her th e appellant wa..s entitled to compe nsation - that was a matter for \VorkCover. The \.fagistrate was entitl ed to find that the opinion of Dr Carrol l was that ther e was no caus ative l ink between th e proven l evel of exposure i n the course of empl o yment and the disease and the n prder t hat to thcc oth er medi ca l e videnec� Ult imately th e su h mission of cou nsel for the appell a nt came d ow n to th e propos ition that the Magistrale shoul d h ave concluded that the appellant ' s su scept ibi lity expla ine d and was th e cause of th e appe l l an t contra cti ng t h e d iseas e given exposure to such a small extent. That i s not a conclusion whi ch , rn my vie w, could be reached by a "reasonab l e mi nd , faced with th e prob le m of determining the question upon the evidence b efore it" in the absence of medi cal evid ence. As was auth oritativel y pointed out b y the High Court i n Ram.wy v Watson (I 9 6 1 ) l 08 CLR 642 at 644-5 qu estions such as th ose which are critical for determinat10n in thi s cas e are not to be answered purel y b y reference to a med i cal opim on . The mere fact that a medi cal witness has expressed an opinion that somethi ng is more probable than not doe s not concl ud e that issue . It is st il l for th e tribu nal of fact lo weigh and determine the prohah i lities. But otten where th ere 1s confl ictmg med i cal evid ence on a cnti ca l issu e prefere nce for the opm10n of on e over that of another wil l have a signifi cant i mpact upon th e tribu nal of facts, delib erations a nd conclus ions, IIere, as alread y noted, Ill order to pro vid e th e reasonab le mind or mind of a commonsense person with the basis for m,1king the necessary findi ngs of fact in favour of the appellant it would b e necessary to give greater weight to the evidence ot Dr Durrc1nt than that of Dr Carrol l . Counsel for the appel lant ma de a stro ng attack on the reaso ns for j ud gment of the I ndu strial Magistrate. H e submi tted that i n t h e circumstances they were entirel y inadequ ate in that they faile d to analy se the medi cal evide nce and resol ve the confl i cting me di cal opi n io ns, that they fail ed to anal ys e the l egal isle s rnvol ved, and that the y fail ed to give an y comid eration to the suh m1ssions of th e appell ant Oil the i s sues of conflictrng medical evid ence. The appeal at first i nstance ra ise d i ssues of confl i ct i ng med i cal evi(knc,, of critical importan ce to th e resolution of the ultimat e question rais ed h y the appeal. Each of the doctors referred to extracts from medi c:al J<mrnals i n his reports (so me extracts were anne x ed) and i t was necessary for th e Magistrate to have re gard to th e state of medi cal knowled ge as to th e relat10nsh1p h etween B enzene a nd myelodysplas1a 111 ord er t o arrive at an ans wer. In th e c!fcu mstance it must be sai d that the reasons given by the Magistrat e were brief h ut he ad dressed the critical i ssue. I f the fi nd ing that the e vid ence of Dr Carroll is to b e preferred to that of Dr Durrant stands then it i s mevitahle that the appeal to this court must fail for the reasons I have articu lated ahove. Whi lst I am not prepared to h old that the I ndustrial Magi;;trate fai l ed to discharge th e dut y on him of de l i vering proper reaso ns , give n the issues raised b y this appeal this court ought to l ook carefull y at the evid ence and satisfy it.self th<1t the con cl usion on the competing me di cal e vidence reache d b y tl1e I ndustrial Magistrate was a proper one in the circumstances. I f thi s court was not so persuaded then there may w ell b e a basis tor setting asid e t hat finding. I t is true that the extent of t he <1ppellant' s e xposure' t o B en Zene in the course of his employment as detail ed by Dr Carroll Il l hi s flfst re port of 2 0 January ! 997 was no t supporte d b y the evid ence. E vi d ence g i v en by the appell.1nt, includ ing evid ence of checking r ecords sub sequent to Dr Carrol l ' s report, estah l i shed a greater level of ex1xJsur<.0. B ecause of that 1l was i mportant for the I ndustrial Magistrate to make specifi c findmgs with respect to the relevant le ve l of exposure a nd he d id so. That is �d out with parti cu l arity in his rea...-;ons. That expo.sure was put to Dr Carrol l in the course of hi s oral evid en ce , and his opinio n was unal t ered b y i t. Even g iv en the highe1 le vel uf exposure established b y the oral evid ence it was still Dr Carroll ' s opinio n that the le vel was well b el ow that at whi ch there would be a s1g111ficant n sk. He said towards the end of his evidence t hat even given the changed information a.., to l evel of exposure he cou l d still "u nequi vocall y and reliabl y exclu de'' that level of exposure as a cause of the ap�llant' s mye lod yspl iL,ia. Earlier he said t hat th e i ncreased leve l of exposure was st i l l a "trivial l evel of B enzen e exposure". It is al so true to say that t he opinions expre ss ed b y Dr Carroll in his r.:ports of 20 January I 997 and 9 O ct oh er I 9 9 7 were expres s ed without the advantage of kno wing, as was establ i shed b y pathology testing later, that t he aplastic ana0mia was due to myelo d yspla<;ia. But, as he poinkd out in his mal evide n ce, that did not alter the opinions whi ch he e xpressed, I have had regard to a nu mb er of the medi cal authorities rcfcm:d to by each of the; doctors . I t was a situ atio n where i:ach quite cand id l y con ced ed that th e opinion bein8 expres sed was infl ue nced to a large extent b y reported co ntrolled r es earch studies puhlished i n repu tah !e medi cal j ournals. I n broad terms I am sati sfied that the ge neral thrust of th ose articles supports the vie w e xpr ess ed b y Dr Carrol l . In th e final resu l t t h e op1mon e xpressed by Dr Durrant that there was an ''associa t100" between the appe l lant' s e xposur e to B enzene and the onset of the disease was a "presu mptive i nfere nce" on his part whi ch could be neither proved nor disproved s ci e ntifically. A gai nst that th ere was the op i ni on of Dr Carrol l , supported by a hody of me di cal research authority, t o the e ffect that a higher level of exposure th an that found by the court would h e required before an 1 11ference c ould he dra wn that the exposure in th e course of employment caus ed the disease . In the circu mstances I c a n find no hasis for conclu dmg that t he opinion of Dr Durrant shou l d have been accepted r,tther than that of Dr Carroll. I f the evid e nce of Dr Durrant was not accepted a nd acted on then, as n oted ab ove, there was no rational basis for a reasonab le mind dra wing th e conclusio n that th e d iseas e was caus ed b y the l evel of B en ze ne exposure in the course of e mployment. The Magistrate was dearly entitl ed to make the fi nding whi ch he did . (Cf. Tenadii v Workers ' Compensation Board of Queemland [ 1 997] 1 55 QGIG 9 3 8) . Essentrnll y the appellant has faile d to prove hi s case. To date I have not dwe lt on t h e test which must be appli ed i n thi s ca s e i f the appellant i s to be successful. Section 6 of lhe Workers ' Compensation A ct ! 990 applie d and it was necessary for the appellant to prove that exposure to B en zene i n the course of his employment wa.., "a significant contributin g factor·· t(, the onset of the disease. Whi lst it was not necessary for him to pro ve that th e exposure was the sol e cause, more was re qu ired than fo1 the appellc1nt to estab l i sh some "association" b etween the exposure and the d isease. The doctors were not dire cted to t he t est requ ire d b y t he legisl ation and their u.<:e of e xpressions su ch as .. associatio n", "relate d t o" a nd ,.linked to" were not of real assista nce to the court on the critical issue . It is not necessary rn the circumstances to take that matter further. : :ODMA\GRPWISE\QIRC-DOM . I RO -PO I .GENERAL I :29 2 5 3 . ! QGIG 6/8/99 -- 2 of 3 -- 534 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 August, 1999 II follows that upon a consideration of all the material before this court there is insufficient evidence to justify a conclusion that the appellant's proven exposure to BenzeM was a significant contributing factor 10 his contracting myelodysplas1a. Particularly given the fact that the lnduStrial MagiStrate could not reject the evidence of Dr Cat'T'oll, and indeed expressed a preference for it over that of Dr Durrant, there was no basis upon which a rational finding could be made such as would enable the appellant to succeed. The case does highlight difficulties of proof faced by a claimant who has suffered a rare disease in circumstances where medical opinion is still in a state of Oux as to issues of causauon. In all these circumstances the appeal should be dismissed. Dated this thirtieth day of July, 1999. G. WJLLIA:vl:S, Presid.:nt Released: 30 July 1999 Appearances:- Mr G. Mullins (instructed by Maurice Blackburn Cashman) for the Appellant. ll-1r B. Thomas, rnstructed by and on behalf of Worl<Cover Queensland. ################################################-########################################################################### 6 August, 1 999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 535 ' -- 3 of 3 --