Bennedick v Workers' Compensation Regulator

Case [2025] QIRC 240

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bennedick v Workers' Compensation Regulator [2025] QIRC 240

PARTIES:

Bennedick, Nathan
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2021/174

PROCEEDING:

 Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

5 September 2025

HEARING DATES: 

20, 21 and 22 May 2024

MEMBER:

HEARD AT:

O'Connor VP

Yeppoon

ORDERS:

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 12 October 2021 is set aside and another decision substituted, namely, that the Appellant’s application for workers’ compensation, the subject of this proceeding, is one for acceptance.

2.     Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)   the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 19 September 2025; and

(b)  unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION _ APPEAL AGAINST REVIEW DECISION – where appellant was employed as a coal mine operator - where appellant operated as a tipper driver – where appellant inhaled gases while operating bulldozer – where appellant seeks compensation for physical injury – where appellant suffered from headaches, bouts of nausea, pain and pins and needles in both legs – where WorkCover rejected appellant's claim for workers' compensation – where the Workers' Compensation Regulator confirmed the decision of WorkCover - whether appellant sustained a personal injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 – whether the injury arose out of or in the course of employment - whether there was an aggravation of pre-existing conditions - whether employment was a significant contributing factor to the injury

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act (2003) (QLD) ss 558, 550, 32, 11

Industrial Relations (Tribunal) Rules 2011, r 41

Avis v Workcover Queensland [2000] 165 QGIG 788

Bellhaven and Stenton Peerage [1875] 1 AC 278

Carr v Baker (1936) 36 SR(NSW) 301

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Church v Simon Blackwood (Workers Compensation Regulator) [2015] ICQ 031

Cronig v Workers' Compensation Board of Queensland (1994) 110 CLR 626

EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238

Farrell v Q-COMP [2013] QIRC 19

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Groos v WorkCover Queensland [2000] QIC 52

Johnston v Q-COMP [2007] QIRC 50 (2007) 185 QGIG 86

Jones v Dunkel [1959] 101 CLR 298

Jones v Great Western Railway Co (1930) 47 TLR 39

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

State of Qld v Coyne [2003] QIC 118

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Wolverson v Todman [2016] 2 Qd 106
APPEARANCES:

Mr P.B Rashleigh, Counsel, instructed by Hall Payne…

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Details
AGLC
Bennedick v Workers' Compensation Regulator [2025] QIRC 240
Case
[2025] QIRC 240
Decision Date

CaseChat Overview and Summary

The case of Bennedick v Workers' Compensation Regulator involved Nathan Jon Bennedick, an employee of WorkPac who worked as a coal mine operator, specifically as a tipper driver. Bennedick claimed workers' compensation for physical injury he alleged was sustained from inhaling gases while operating a bulldozer. His symptoms included headaches, bouts of nausea, pain, and pins and needles in both legs. WorkCover initially rejected his claim, and this decision was upheld by the Workers' Compensation Regulator. The central legal issues in this case were whether Bennedick sustained a personal injury under section 32 of the Workers' Compensation and Rehabilitation Act 2003 and whether this injury arose out of or in the course of his employment. Additionally, the court had to determine whether the employment was a significant contributing factor to the injury, considering the possibility of an aggravation of pre-existing conditions.

The court examined the evidence presented, including testimonies from co-workers and medical experts. Raymond Fraser, a co-worker, recalled that Bennedick complained about a smell in the bulldozer's cab and that he himself experienced discomfort from the fumes. Medical evidence from Dr Sid O'Toole, an occupational physician, suggested that there was no conclusive evidence linking the exposure to toxic fumes with Bennedick's symptoms. The court also considered the submissions from both parties regarding the significance of the exposure and the likelihood of the claimed injury being work-related. The court concluded that while the Appellant had presented a temporal connection between the alleged exposure and the onset of symptoms, there was insufficient scientific or medical evidence to establish a causal link with the necessary probability.

Based on the evidence and submissions, the court found that Bennedick had not demonstrated on the balance of probabilities that his injury arose out of or in the course of his employment. The court noted that the medical evidence provided was speculative and did not sufficiently establish the mechanism by which the alleged exposure caused the claimed injury. Therefore, the review decision of the Workers' Compensation Regulator was set aside, and the court ordered that Bennedick's application for workers' compensation be accepted. The court also directed the parties to exchange written submissions on the costs of the hearing within specified parameters.

Orders

Orders of the court

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 12 October 2021 is set aside and another decision substituted, namely, that the Appellant’s application for workers’ compensation, the subject of this proceeding, is one for acceptance.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 19 September 2025; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Raymond Fraser was a co-worker of the Appellant. Whilst he could not recall the exact date, he did recall that the Appellant had complained to him about a smell in the cab of bulldozer 145. Mr Fraser said that he operated the bulldozer and after some five to ten minutes noticed a smell which started to burn his lips and the back of his throat. His evidence was that he said to the Appellant, "we’ve got to get this to the workshop, you can’t operate it anymore". Mr Fraser completed an incident report about what had occurred.[68] [68] T1-5, L28 to T1-6, L20. Medical Evidence Dr Sid O'Toole, Occupational Physician, was referred material available as at 8 March 2021 and his opinion sought by WorkCover as a member of the Medical Advisory Panel.[69] He noted there was no current diagnosis at that date, with the Appellant's treating team completing imaging and pathology which had not identified the causes for his symptoms. He wrote: Results have been provided investigating the vehicle in question and did not identify any abnormal exposures. The cleaning agents used for the cab in question can cause a transient acute airway of skin irritation on contact however at present there is no evidence to confirm that exposure to toxic fumes is the cause of this workers' ongoing symptoms.[70][69] Exhibit 18 - Medical Advisory Panel Referral detail dated 8 March 2021.[70] Ibid. Dr O'Toole's reports and opinions were based on the premise that there was someone was sitting in the cabin of bulldozer 145 when the test was carried out on 4 February 2021. However, Dr O’Toole accepted that he was incorrect to conclude in his second panel report: [71]I note that Dr Maitland has queried whether someone had sat in the cab and ran it, and from the information provided it is evident that this has been done a number of times when the vehicle was tested on site.[72][71] T3-21, LL39-44.[72] Exhibit 19 – Supplementary Medical Advisory Panel Referral Detail dated 19 March 202. In cross-examination, Dr O'Toole accepted there was email correspondence from BHP that indicated that there was no one inside the cab when carbon monoxide testing was completed on 24 February 2021, and he couldn’t say "off the top of his head" why he had suggested there was somebody inside the cab during the testing.[73][73] T3-21, LL1-44 and T3-22, LL1-3 Dr O'Toole agreed that the Appellant related the onset of headaches as resulting from using bulldozer 145 on 7,8 and 9 February 2021.[74] Dr O’Toole accepted that he did not have the benefit of speaking to or examining the Appellant or having a telehealth conference with him.[75] He also accepted that he suggested that the Appellant be referred to inter alia, a neurologist and that "the condition of migraine" is within the speciality of a neurologist.[76] [74] T3-22, LL5-9[75] T3-20 LL36-45[76] T3-19, LL43-45 and T3-22, LL22-25. Upon completion of nerve conduction studies, Dr O'Toole was asked to provide a supplementary review.[77] He reported to WorkCover on 19 March 2021:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Associate Professor Herkes confirmed that in forming his opinion, he had been provided with and had recourse to, the MSDSs[104] of Odour Ban and Result, the email correspondence attaching a log of complaints and repairs to Dozer 145, and the Caterpillar Service Report.[105] He said in evidence that while he read the reports, he was not a toxicologist, and those reports would have required a toxicologist's interpretation.[106][104] 'Material Safety Data Sheet'. [105] Exhibit 16 - Bundle of Documents commencing 23 February 2021 re information – query chemical exposure employee – Nathan Jon Bennedick).[106] T3-5, LL27-47 and T3-6, LL1-8. Consideration The Commission is required to consider whether or not the personal injury arose out of or in the course of the Appellant’s employment, and whether or not the employment was a significant contributing factor. These questions depend, to a significant extent, on whether or not the Appellant has demonstrated that it was more probable than not that his injury arose out of the exposure to fumes whilst operating bulldozer 145. What is contended by the Appellant is that the Commission would find as a matter of fact that the Appellant was exposed to toxic fumes in the course of his employment with WorkPac whilst operating bulldozer 145 on 7, 8 and 9 February 2021 and, that as a consequence of that exposure, the Appellant suffered a personal injury described as chronic migraine with some functional neurology. The Appellant must demonstrate that his injury of "headaches, bouts of nausea, pain and pins and needles in legs" arose out of or in the course of his employment at the mine. This denotes a causal or consequential relationship between the employment and injury, but it does not require a direct or proximate relationship which would be necessary if the phrase used in the legislation was "caused by".[107][107] Lackey v WorkCover Queensland (2000) 165 QGIG 22. The Respondent submits that there is insufficient evidence for the Commission to conclude on the balance of probabilities that the Appellant’s injury arose out of or in the course of his employment. The Respondent contends that the Appellant seeks to have the Commission draw the inference based purely on the temporal connection between the Appellant's symptoms and the alleged exposure which is said to have caused his injury. There is no scientific or medical evidence to explain what caused his symptoms to commence, or by what mechanism they became chronic. The possible link made by the medical experts for the Appellant is mere speculation.[108][108] Respondents closing submissions filed 1 November 2024, [88]. Moreover, it is argued by the Respondent that the Appellant has not established that his employment was a significant contributing factor of his personal injury as he has failed to establish on the balance of probabilities that he was exposed to a toxic substance in the workplace at a level of toxicity capable of causing his claimed injury.[109] [109] Ibid, [97].