1. The respondent is to pay the applicant's reasonably necessary medical expenses in accordance with s 60 of the 1987 Act.

A brief statement is attached setting out the Commission's reasons for the determination.

1. The applicant alleges he sustained a significant brain injury in the course of his employment with the respondent as a truck driver however due to post-traumatic amnesia has no recollection of how the injury occurred.
2. The respondent's insurer denied liability for the injury.
3. For the reasons that follow I am satisfied that the applicant fell from the cab of his truck striking his head on the ground and sustained a traumatic brain injury.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained a traumatic bring injury in the course of his employment with the respondent, and

(b) whether the applicant's employment was a substantial contributing factor to that injury (if established)

1. The parties agree that if injury is established then the applicant will be entitled to an award of weekly compensation on the basis of total incapacity from 16 November 2024 to date and continuing.
2. The applicant was also granted leave to amend the pleadings to make a claim for medical expenses and the parties agreed that if injury is established then a general order pursuant to s 60 of the 1987 Act would be appropriate.
3. The respondent did not consent to the pre-injury average weekly earnings (PIAWE) figure relied on by the applicant but conceded there was no other figure before the Personal Injury Commission (Commission) and that no competing wages schedule had been filed on behalf of the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference and arbitration hearing on 16 December 2025 in Sydney. The applicant was in attendance represented by Mr McManamey of counsel instructed by Ms Thompson. Mr Hart of counsel appeared for the respondent instructed by Mr White. A representative of the respondent's insurer was also in attendance.
2. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply and attachments;

(c) Application to Lodge Additional Documents filed by the respondent dated

5 December 2025, and

(d) Application to Lodge additional Documents filed by the respondent dated

17 December 2025 attaching report of Dr Waller dated 5 September 2025 and filed in accordance with an order made during the arbitration hearing on

16 December 2025.

1. In order to overcome any prejudice to the applicant caused by the late service of the further report of Dr Waller I allowed the applicant's application to adduce brief oral evidence with respect to the week prior to the injury occurring.
2. The evidence of the applicant is recorded and available to the parties. In summary, the applicant gave evidence that he has a memory of the week prior to the injury and during that time he did not sustain any trauma to his head.

Did the applicant sustain a traumatic brain injury in the course of his employment on

16 November 2024 and was his employment a substantial contributing factor

1. The applicant carries the onus of establishing injury in accordance with s 4 and 9A of the 1987 Act on the balance of probabilities.
2. To establish injury, the applicant must establish to the required standard firstly that he sustained an injury arising out of or in the course of his employment and secondly that his employment was a substantial contributing factor to that injury.
3. The difficulty which the applicant must overcome is that as he has no recollection of the events leading to the injury, there is no direct evidence before the Commission as to how the injury occurred.
4. Despite the lack of direct evidence, the applicant submits that based on the available medical and factual evidence I would be satisfied that the traumatic brain injury occurred after he returned to the depot on the evening of 15 November or early morning of 16 November 2024 and when he was found by Mr Wensley who, sufficiently concerned for the applicant, drove him home. During this period the applicant was in the course of his employment and thus s 4 would be satisfied. It was not submitted by the respondent that the applicant was not in the course of his employment during this time.
5. The respondent's primary submission was that the applicant carried the onus of proof in establishing injury and that the Commission ought be satisfied that the onus had not been made out on the limited evidence and there should be an award for the respondent.
6. It is not necessary for these matters to be determine with scientific certainty. What I must feel is actual persuasion of the occurrence or existence of the fact in issue before it can be found: NOM v DPP [2012] VSCA 198 at [124]; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw), Dixon J.
7. The approached was summarised by the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) as follows:

" (1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non- existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue." (at 55)

1. The applicant gave oral evidence that in the week prior to the injury he had not sustained any trauma to his head.
2. In his statement of 15 May 2025 the applicant states that he recalled returning to the depot from Sydney on 16 November 2024, unloading his truck and parking at the bottom of the yard after it was unloaded. He had no recollection following that point in time.
3. There is evidence available in differing forms from a number of the applicant's colleagues including an unsigned statement of Mr Glenn Smith, a record of conversation between an investigator and Mr Tony Sly and a signed statement from Stephen Wensley. I raised with counsel during submissions the possible issues with the form of the evidence of Mr Smtih and Mr Sly. No issue was taken by counsel and it was submitted that they record at least what was said by these men to the investigator with counsel for the applicant noting that the rules of evidence do not apply to proceedings before the Commission. While the rules of evidence do not apply, evidence before the Commission must still be probative. I accept however, in the present case where the applicant's ability to give evidence is limited, that the evidence, particularly of Dr Wensley (who provided a signed statement) is of value and it is a matter of weight to be placed on this material in relying upon it to reach conclusions of fact.
4. The investigator records that Mr Smith told them he found the applicant asleep in his truck with the truck still running, the light on and the applicant still wearing his glasses. The applicant told him he was waiting to move his truck. Mr Smith went back to unload his truck and 40 minutes later the applicant was still in the same spot. He tried to call him to wake him up but the applicant's phone was off. He called Stephen Wensley to alert him to the applicant.
5. The investigator provided a record of conversation with Mr Sly. Mr Sly became aware that the applicant had been in his idling truck for an hour and went and checked on him. The applicant was leaning over the steering wheel as though asleep. He called his name and asked if he was okay. He told the applicant to move his truck or turn it off. When Mr Sly drove out of the yard the applicant was out of the truck leaning against the step appearing to be sleeping standing up.
6. Mr Wensley provided a signed statement. He noted that the applicant backed his truck in a difficult manoeuvre demonstrating there was nothing wrong with him at that time. He got out of his truck laughing and chatting. Mr Wensley states he unloaded another truck and after 45 minutes the applicant was still there. Mr Smith checked on him and Mr Wensley said

Mr Smith told him "You want to check on Dennis. He isn't well". Mr Wensley checked on the applicant who was lethargic. He was laid back in the seat and his glasses were on the ground outside of the truck but weren't broken. He offered to call an ambulance and ultimately drove him home at about 2.00am. When they arrived at the applicant's home he was dry retching. 7. The applicant's daughter, who was staying in a campervan parked at the bottom of the driveway of the house where the applicant lived. She was awoken between 2.00 and 2.30 am as her dogs had stated barking at a car pulling up. After walking up the driveway she saw the applicant leaning against a ute. He was dry reaching and looked unwell and she thought he might have been intoxicated. She helped the applicant inside and noticed he had blood on his elbow. She offered to call an ambulance but the applicant said he just wanted to go to bed. She helped him to bed. She checked on him a number of times the following day but the applicant groaned and she left him alone each time. 8. On the Sunday morning (17 November 2024), her brothers went to check on the applicant and saw blood around and in his eyes at which point an ambulance was called. 9. Dr Sophie Waller, neurologist, provides the only qualified expert evidence before the Commission. The first report of 3 May 2025 is premised on the history that the applicant suffered a head injury at work on 15 November 2024 and he was found unconscious in his truck by a colleague. Dr Waller noted from documentation provided the applicant had sustained a skull fracture, bifrontal contusions and a subdural haemorrhage. 10. Dr Waller noted that the applicant was seen by a cardiologist, Dr Brassil, in January 2025 who expressed the opinion that even if he had suffered a cardiac syncope, there is no suggestion he fell from a height and his significant head injury could not be explained by a cardiac syncope occurring in the truck alone. It was also noted a stress echocardiogram on 18 February 2025 was normal. I was not taken to Dr Brassil's report during submissions and no submission was advanced that a cardiac event may have been responsible for the traumatic brain injury. Dr Waller also concurred that a cardiac syncope whilst in his truck would have been unlikely to lead to the traumatic injury to his head. 11. Dr Waller expressed the opinion that such injuries to the head are more commonly due to direct trauma to the head such as from an assault, fall from height striking the head or falling from standing onto a hard surface. 12. Dr Waller expressed the opinion that the applicant sustained a traumatic brain injury and that his only symptoms are consistent with this. 13. In a further report of 5 September 2025 Dr Waller expressed the opinion that symptoms of fatigue, gait unsteadiness requiring assistance to talk, nausea and vomiting and can occur without obvious external injuries to the head or face. 14. The applicant had a history of a prior transient ischaemic attach (TIA) (commonly referred to as a stroke) and Dr Waller was asked whether the applicant's symptoms were consistent with a further TIA. Dr Waller acknowledged that the applicant's symptoms were not specific to a brain injury however clinically an alternative diagnosis was unlikely. 15. Dr Waller discounted a further TIA noting that if symptoms lasted for more than 60 minutes as the applicant's did then it is expected that a stroke would be evident on a brain MRI scan. There is no evidence of this in the scans undertaken once the applicant presented to hospital. Dr Waller considered it was extremely unlikely that a TIA or stroke was responsible for his initial symptoms. 16. Dr Waller gave evidence that the symptoms from the traumatic brain injury can take minutes to sometimes days to develop and it is possible the traumatic injury to the head occurred prior to 12.30am. The applicant however gave uncontested evidence that he retains memory of the week prior and up to the point he parked his truck and he had no trauma to his head at that time. 17. Dr Waller was asked whether there was a correlation between the symptoms on admission to hospital and those at the end of his shift and expressed the following opinion:

"In my opinion, yes. Mr Blake had early signs of a traumatic brain injury on the morning of 16 November 2024. According to the provided information, by 5:12 PM on 17 November 2024 he had a fluctuating Glascow Coma Score and periorbital bruising.

The progression of symptoms and signs between 2:00 AM on 16 November and 5:12 PM on 17 November could reflect an evolving traumatic brain injury. It is common for symptoms to progress over several days after a traumatic brain injury due to extension of bleeding and development of oedema.

Whilst an additional injury occurring between 2:00 AM 16 November and 5:12 PM 17 November cannot be excluded, this would leave his initial symptoms unexplained. On the balance of probabilities, in my opinion Mr Blake is likely to have suffered a traumatic brain injury before 2:00 AM on 16 November 2024 that evolved over a 1-2 day period, resulting in the symptoms present at the time of his hospital presentation on 17 November 2024."

"In my opinion, the most likely scenario is a traumatic brain injury occurring on or before 2:00 AM 16 November 2024 that evolved over a 24-48 hour period, resulting in the symptoms recorded on Mr Blake's admission to Wollongong Hospital on 17 November 2024."

1. Dr Waller provides the following further opinions:

"The progression of symptoms over a 40-hour period is typical of an evolving brain injury after a traumatic injury to the head. The symptoms reported and documented are entirely consistent with Mr Blake having sustained a direct trauma to the head on or prior to 2:00 AM on 16 November 2024."

"I cannot accurately estimate a time when the worker may have sustained a direct trauma to the head. However, he was noted to have periorbital ecchymoses ("raccoon eyes") on presentation to Wollongong Hospital on 17 November 2024. Periorbital ecchymoses, which suggest a basilar skull fracture or anterior or middle fossa facial trauma, are typically not present immediately following a traumatic injury, but most commonly appear one to three days later, as it takes time for blood to dissect through tissue planes to the periorbital area.1 This makes it more likely that Mr Blake's head injury was sustained >24 hours prior to his hospital presentation."

"The progression of symptoms over a 40-hour period is typical of an evolving brain injury after a traumatic injury to the head. The symptoms reported and documented are entirely consistent with Mr Blake having sustained a direct trauma to the head on or prior to 2:00 AM on 16 November 2024.

Whilst a more recent trauma in the hours prior to admission to hospital cannot be excluded, there are several factors that in my opinion make this less likely:

• The initial symptoms (gait unsteadiness, nausea, vomiting) are typical early symptoms of traumatic brain injury

• Mr Blake's symptoms slowly progressed over a 40-hour period, as is typical of such an injury

• Mr Blake was noted to have periorbital ecchymoses ("raccoon eyes") on presentation to Wollongong Hospital on 17 November 2024. Periorbital ecchymoses typically appear one to three days following a traumatic head injury, rather than immediately."

1. Dr Waller's evidence is uncontested, well reasoned and is based on a review of contemporaneous records and a history consistent with what is known from the applicant's colleagues and daughter.
2. While counsel for the respondent made reference to other speculative causes for the applicant's head trauma these submissions were not developed nor pressed. I accept the applicant's uncontested evidence that he had not sustained a head trauma prior to parking his truck on 16 November 2024. I accept the evidence of Mr Wensley that when the applicant arrived at the depot there was nothing outwardly wrong with him and that he was laughing and chatting as he got out his truck.
3. While Dr Waller accepted that the effects of the head trauma could take time to develop, having accepted the applicant's evidence of no earlier head trauma, a fact not available to

Dr Waller, I have discounted the possibility of the applicant sustaining head trauma prior to arriving back at the depot. 4. On this basis, the only reasonable inference available to me in the context of the available evidence is that the head trauma occurred after the applicant arrived back at the depot. 5. Mr Wensley and the applicant's daughter have both provided consistent evidence as to the applicant's state at the time he was found by Mr Wensley and arriving home to his daughter, including that he was lethargic, dry retching and had difficulty walking. 6. I accept the uncontested evidence of Dr Waller that these are symptoms consistent with a traumatic brain injury. I further accept the evidence of Dr Waller that if the applicant had sustained a further stroke where the symptoms lasted more than 60 minutes that this would have been identified on brain MRI which it was not. 7. Again, the only inference available to me is that the head trauma occurred prior to the applicant being found by Mr Wensley. 8. I have considered the evidence of Mr Smith and Mr Sly as reported to the investigator. They each told the investigator that they saw the applicant at various points in time. There evidence is largely consistent with the evidence of Mr Wensley which has been provided by way of a signed statement. I have relied on the evidence of Mr Smith and Mr Sly in so far as it supports the evidence of Mr Wensley however in reaching the findings that I have relied on the evidence of Mr Wensley. 9. I have found that the head trauma occurred after the applicant arrived back at the dept and before the applicant was found by Mr Wensley. It was accepted by the parties that the applicant was in the course of his employment during this intervening period. 10. As I have set out above in discussing what was said by the Court of Appeal in Nguyen, what is required is actual persuasion. It is not necessary, as was submitted by the respondent, that all other reasonable possible hypotheses consistent with the existence or non-existence of a fact be excluded. 11. For these reasons I am satisfied that the applicant sustained the traumatic brain injury in the course of his employment with the respondent in the early hours of 16 November 2024. 12. In order to be entitled to compensation, the applicant must also establish that his employment as a truck driver was a substantial contributing factor to his injury in accordance with s 9A of the 1987 Act. 13. Sub-section (2) of s 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:

(a) the time and place of the injury;

(b) the nature of the work performed and the particular tasks of that work;

(c) the duration of the employment;

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment;

(e) the worker's state of health before the injury and the existence of any hereditary risks, and

(f) the worker's lifestyle and his or her activities outside the workplace.

1. A finding that employment was a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29] (Dayton); McMahon v Lagana [2004] NSWCA 164 (McMahon) at [32]) to be decided after a consideration of all the evidence. See also Workcover Authority of NSW v Walsh [2004] NSWCA 186.
2. Further, employment must be a substantial contributing factor to the injury, not to the incapacity, need for treatment or loss. In Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48; (2002) 23 NSWCCR 725 Neilson CCJ stated "employment must be a substantial contributing factor to the event causing the injury; that is, to the receipt of the injury, rather than to be a substantial contributing factor to the ongoing incapacity" (at [19]).
3. In order to conduct any kind of analysis with respect to the application of s 9A to the present matter, it is necessary to ascertain the factual foundation to which that analysis is to be applied.
4. The applicant submitted that the most likely cause of the injury was the applicant falling while getting out of the cab of his prime mover. The respondent accepted that if I was satisfied that this was the cause of the applicant's injury then s 9A would be satisfied.
5. The respondent again submitted that the Commission would not be satisfied the applicant had discharged his onus in that regard and that there were other possible circumstances, such as the applicant tripping while walking in the yard which the respondent said would not meet the requirements of s 9A.
6. Without direct evidence it is again necessary to infer what happened from the evidence that is available.
7. The applicant gives evidence about his duties generally and that doing night work he would drive a 600km route between Nowra, Sydney, Batemans Bay and back to Nowra. The applicant's daughter gives evidence that he left for work at around 3.00pm or 4.00pm.
8. When Mr Smith first found the applicant asleep in his truck, his truck was still running, the lights were on and importantly to the factual matrix the applicant was wearing his glasses.
9. Having regard to the applicant's work schedule and what the investigator has recorded as being said to him by Mr Smith, I am satisfied that the applicant had fallen asleep in his cab, while still wearing his glasses when he was seen by Mr Smith.
10. Mr Sly checked on him and he was leaning against his steering wheel. When Mr Sly drove out, he saw the applicant was outside the cab of truck leaning against the step and appeared to be asleep.
11. When Mr Wensley finally found the applicant he was back in his truck laid back in the seat. His glasses however were now on the ground outside of the truck but were not broken.

Dr Waller's history taken from the applicant records that the applicant was also told that the earpiece of his phone was smashed on the ground beside the truck although there is no direct evidence of this from any of the applicant's colleagues. 12. Having regard to what the investigator recorded being said by Mr Sly in the record of conversation, together with the evidence of Mr Wensley, I find that after Mr Sly checked on the applicant and when Mr Sly was driving out and Mr Wensley found the applicant that the applicant had fallen from the cab of his truck, sustaining trauma to his head, his glasses falling to the ground, before climbing back into the cab to be found by Mr Wensley. 13. As accepted by the respondent, falling while climbing out of the cab, which is a necessary part of the applicant's employment duties each day, satisfies s 9A of the 1987 Act. 14. I reach a feeling of actual persuasion that the applicant fell from the cab of his truck striking his head for a number of reasons. 15. Firstly, having found that the applicant sustained head trauma between arriving at the depot and being found in the truck by Dr Wensley there are only a limited number of possible ways this could have occurred. 16. Secondly, the fact that the applicant's glasses were found by Mr Wensley on the ground in the vicinity of the applicant's truck supports a finding that any fall must have occurred in that area. While I put limited weight on the history recorded by Dr Waller about the applicant's earpiece was found crushed in the same vicinity given there is no direct evidence to support this, it remains consistent with the applicant falling from the truck. 17. Thirdly, the applicant sustained a significant head injury. Dr Waller considered the possible external forces that may have resulted in his injury. She reviewed a CT scan of the brain from 17 November 2024 which reported:

"A very extensive extracranial haematoma is present at the vertex. There is a sagittal fracture extending from just above the frontal sinuses through the midline of the frontal bone to the sagittal suture, extending through the sagittal suture, extinguishing just above the lambdoid suture."

"This description suggests a likely mechanism of a direct traumatic force applied to the vertex (top) of the head, as might occur after being struck by an object, or the top of the head striking the ground."

1. While it was not particularly useful in that it didn't depict the cab of the applicant's truck at the relevant time, CCTV footage of trucks in the respondent's yard demonstrate that the cabs of the prime movers were about shoulder height above the ground.
2. There is no evidence, including in the CCTV footage to which I was referred but not taken, to support a finding that the applicant was struck by an object. The more rational explanation, having regard to the factual context, is that the applicant fell from the truck while disembarking and struck the top of his head on the ground. This is more likely given the height of the cab above the ground.
3. If the applicant had fallen from a standing position when tripping, as proffered by the respondent, it is difficult to appreciate how he would have fallen onto the top of his head rather than his face.
4. For these reasons I am satisfied that the applicant fell from the cab of his truck, sustaining injury to his head. Given the findings I have made and the concession by the respondent it follows that the applicant's employment with the respondent was a substantial contributing factor to his injury.
5. The applicant makes a claim for weekly compensation from 16 November 2024 to date and continuing. I also granted the applicant leave, without objection, to amend the claim to claim a general order for medical expenses in accordance with s 60 of the 1987 Act.
6. The applicant pleads a PIAWE of $1,474.37. This mirrors the wages schedule in the respondent's Reply. While the respondent in submissions did not concede PIAWE it did not proffer an alternative figure nor make any submissions with respect to it.
7. On this basis, I find that the applicant's PIAWE to be $1,474.37 and subject to the following indexation (in accordance with s 82A of the 1987 Act and rounded to nearest $10):

(a) from 1 April 2025 (index factor 1.0043) $1,480, and

(b) from 1 October 2025 (index factor 1.0150) $1,500.

1. The respondent conceded that if injury was established, as it has been, then the applicant would be entitled to an award on the basis of total incapacity.
2. The applicant has not received any payments of weekly compensation to date.
3. As such, I find the applicant entitled to weekly compensation as follows:

(a) from 16 November 2024 to 15 February 2025 at the rate of $1,400.65 per week in accordance with s 36 of the 1987 Act;

(b) from 16 February 2025 to 30 March 2025 at the rate of $1,179.50 per week in accordance with s 37 of the 1987 Act;

(c) from 1 April 2025 to 30 September 2025 at the rate of $1,184 per week in accordance with s 37 of the 1987 Act, and

(d) from 1 October 2025 to date and continuing at the rate of $1,200 per week in accordance with s 37 of the 1987 of the Act.

1. The respondent is to pay the applicant's reasonably necessary medical expenses in accordance with s 60 of the 1987 Act.

1. In accordance with the above reasons, the Commission makes the orders in the attached Certificate of Determination.