Bennedick v Workers' Compensation Regulator
[2025] QIRC 240
•5 September 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Bennedick v Workers' Compensation Regulator [2025] QIRC 240 |
PARTIES: | Bennedick, Nathan v Workers' Compensation Regulator |
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 Lawyers for the Appellant Dr M.J Brooks, Counsel, directly instructed by the Workers' Compensation Regulator |
Reasons for Decision
Introduction
This is an appeal by Mr Nathan Bennedick ('the Appellant') pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 ('the Act') against a decision of the Review Unit of the Worker's Compensation Regulator ('the Respondent') dated 12 October 2021 which found the Appellant's claim for 'headaches, bouts of nausea, pain and pins and needles in both legs' was not one for acceptance.
On 8 February 2022 the Appellant appealed the decision of the Respondent to the Queensland Industrial Relations Commission ('the Commission'). The hearing before the Commission is a hearing de novo. The Appellant bears the onus to prove, on the balance of probabilities, that he suffered an injury within the meaning of s 32 of the Act.[1]
[1] Church v Simon Blackwood (Workers Compensation Regulator) [2015] ICQ 031.
Legislation
S 32 of the Act provides:
32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
(3)Injury includes the following –
(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i)a personal injury;
(ii)a disease;
(iii)a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
(c)loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
(d)death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e)death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Background
The Appellant was employed by WorkPac at the BMA Mine at Blackwater in the State of Queensland ("the mine") as a bulldozer push/dragline assist operator. The Appellant had worked at the mine since 2018.[2]
[2] Appellants Final submissions filed 22 January 2025, [12].
The Appellant’s duties at the mine involved operating D11 Ts and Rs bulldozers. He ordinarily operated bulldozer 523, and had operated that dozer for about five years.[3]
[3] Ibid [13].
Towards the end of 2020 or in early 2021, bulldozer 523 went through pre-maintenance. It was out of action for some time. As a result of this the Appellant was assigned bulldozer 145, a new Caterpillar Fusion type bulldozer. The difference between the 523 and 145 was that the 145 was an autonomous bulldozer but operated manually.[4]
[4] Ibid [14].
The Appellant worked three days, two nights, four days off; three nights, two days and four days off, the shifts were 12.5-hour shifts, they were both day and night shifts.[5]
[5] Ibid [15].
It is not in dispute that the Appellant is a worker for the purposes of s 11 of the Act.[6]
[6] Respondents Final Submissions filed 1 November 2024, [4].
Contentions
The Appellant contends that, between 7 and 9 February 2021, he suffered an injury that arose out of or in the course of his employment when he was exposed to fumes whilst operating bulldozer 145 at the mine, and that his employment was a significant contributing factor to the injury he sustained.[7]
[7] Appellants Final submissions filed 22 January 2025, [63].
The Respondent concedes that the Appellant has sustained a personal injury of 'headaches, bouts of nausea, pain and pins and needles in both legs', but that injury did not arise out of or in the course of his employment.[8]
[8] Respondents Final Submissions filed 1 November 2024, [4].
The Issues for determination
The issues remaining before the Commission in this matter are, then:
1. Whether the Appellant has demonstrated that, on the balance of probabilities, his injury arose out of or in the course of his employment; and
2. If the Appellant did suffer an injury that arose out of or in the course of his employment, whether the employment was a significant contributing factor to the injury.
The Facts
In early February 2021, the Appellant commenced operating bulldozer 145 at the mine. On 7 February 2021, the Appellant started the day shift. After operating the bulldozer 145 for about four hours, he noticed a smell. He said:
…the smell, it was coming through the air vents. You could smell like melting plastic and something burning – I reported it.[9]
[9] T1-11, L35 to T1-12, L13.
The Appellant stopped the machine and called the mine supervisor Mr Andrew O’Shea. Mr O’Shea contacted Nationals Pit Fitter to check the bulldozer over. The Appellant took an early meal break to allow the Fitters to undertake the checks. The Appellant was told that the bulldozer was "good to run".[10]
[10] Exhibit 1 - Statement of Nathan Bennedick dated 7 February 2021.
The Appellant again operated the bulldozer and after four hours running time the smell returned.
Mr O’Shea was again contacted, and the Fitters called to look at the bulldozer. The bulldozer was said to have been fixed "… by removing the filter cover from the top and using a second hydraulic line to connect the hose to the filter and ziptying the filter cover to the roof."[11] The Appellant tried to operate the bulldozer but "…the hose fell off from the roof". The Appellant parked up the bulldozer and Mr O’Shea was contacted so that repairs could be done during the dayshift.[12]
[11] Ibid.
[12] Ibid.
The Appellant told the Commission his co-workers could also "… smell it on the ground …I'm not even anywhere near"[13] and experienced headaches for the next few days.[14]
[13] T1-33, LL26-39.
[14] T1-34, LL18-19.
The fumes affected the Appellant. He started to experience bad headaches, his eyes went funny, he was left with a funny taste in his mouth and his lips became numb.[15] It was decided that the Appellant would be taken to the mine site paramedic.[16]
[15] T1-12, LL15-23.
[16] T1-33, LL43-44.
On 8 February 2021, the Appellant again operated bulldozer 145. In the statement dated 8 February 2021, the Appellant reported to his employer that when operating bulldozer 145:
… after 4 hrs of operating the bad smell was coming back through the Aircon vents. So I parked up the machine in a safe area and two other operators to park up beside where I told them if they can smell whatever is coming through the Aircon and Tony and Ray said yes there is a bad smell I told them I was getting a bad headache from the smell so I called 15-11 Andrew O’Shea…[17]
[17] Exhibit 2 - Statement of Nathan Bennedick dated 8 February 2021.
The Appellant described the smell "…like something melting and like a burning plastic coming through the cab."[18]
[18] T1-13, LL31-32.
In answer to the question on how the smell affected him, the Appellant said:
I started getting bad headaches. I started getting numbness through me mouth. You could taste it and my eyes were starting to go funny from it. … So I bailed out and went to the go line and parked it up.[19]
[19] T1-13, LL34-38.
In his written statement regarding the events of 8 February 2021 the Appellant said he was asked by 'Big Rob' the Dragline Supervisor to make a statement because "… this was the same machine that made another sick". After completing the statement, the Appellant says that he sat in the crib hut with a bad pressure headache which lasted for a couple of days.[20]
[20] Exhibit 2.
The Appellant was taken to the ERT where he underwent some medical checks and was given painkillers for his headache. [21] In his statement the Appellant recorded that while waiting to be taken to the mine site paramedic, he stood on the deck of the machine and noticed the smell was outside of the machine.[22]
[21] 'Emergency Response Team'.
[22] Exhibit 2.
The bulldozer was tagged out by 'Big Rob' for the balance of the shift.
The Appellant again operated the bulldozer on 9 February 2021. He commenced 'pushing dirt' at 6:40 pm. Around 9:15pm the Appellant reported a smell coming through the air conditioning which he described like "…a burning fume smell mixed with oil" and he experienced a headache from the smell which was "coming outside the cab near the filter for the air con near the service door…".[23] The Appellant said that he reported the problem to Mr O’Shea and the site paramedics.
[23] Exhibit 3 - Statement of Nathan Bennedick dated 9 February 2021.
The Appellant proceeded to park up the bulldozer.
He experienced bad headaches; his lips started to go numb and he started feeling "crook in the stomach".[24]
[24] T1-14, L48 to T1-15, L23.
After completing his shift on 9 February 2021, the Appellant did not return to the mine site for six months.[25] During the Appellant’s absence from work, he continued to experience constant headaches, and pins and needles. He has not again operated bulldozer 145.[26]
[25] T1-15, LL25-26.
[26] T1-22, L40 to T1-23, L9.
Between 9 and 12 February 2021, the Appellant experienced: severe headaches, had numbness in his left hand, was: "… bad. I was crook as anything"[27]; had problems breathing, everything he ate and drank he could not stomach, lost a lot of weight, his headaches were so bad even taking Panadol or painkillers could not get rid of them, he had numbness in his mouth and problems with his vision.
[27] T1-17, LL16-17.
On 12 February 2021, the Appellant attended on Dr Imran Hussain, the employer's general practitioner. He was referred to the Rockhampton Base Hospital.
Dr Hussain provided a report dated 12 February 2021.[28]
[28] Exhibit 4 – Report of Dr Imran Hussain, CQ Medicentre dated 12 February 2021.
The Appellant had never previously experienced symptoms like this; he had previously had headaches but only "… what normal people get".[29]
[29] T1-17, LL10-43.
The Appellant said his headaches were constant pressure type headaches. He tried to relieve the pain with Panadol or Panamax but without success. When the headaches commenced, he had to disappear to a quiet area to try and see if he could calm them down and get them to go away.[30]
[30] T1-17, L45 to T1-18, L29.
The headaches were different from the headaches he had previously experienced in that the taking of Panadol would usually provide relief within an hour, but the headaches he experienced following the exposure to the cabin fumes did not disappear.[31]
[31] T1-18, LL33-38.
The Appellant said he was taken to the Mater Hospital in Rockhampton because his headaches had just completely gone through the roof, and he blacked out and collapsed.[32]
[32] T1-19, LL15-17.
On 16 February 2021, the Appellant made an application for workers' compensation benefits and received a Work capacity medical certificate from Dr Maitland. He said the Work capacity certificate and the Rockhampton Mater Emergency Certificate was sent to his employer, WorkPac.[33]
[33] T1-19, L 31 to T1-20, L20, Exhibit 6 – Work capacity certificate – workers compensation – Dr John Maitland dated 16 February 2021 & Exhibit 7 – WorkCover Queensland – Claim Summary dated 7 April 2021.
At the time of making his application for compensation the Appellant was still experiencing headaches, bouts of nausea,[34] and had started to lose partial feeling in his left hand and left foot.[35]
[34] T1-20, LL39-47.
[35] T1-21, LL1-2.
The Appellant also attended upon the Gracemere Medical Family Practice on 23 March 2021 and received a medical certificate under the hand of Dr Hussain.[36]
[36] Exhibit 9 - Medical Certificate – Dr Husra Hussain, Gracemere Family Practice dated 23 March 2021.
The Appellant attended on Dr Hussain between 9 February and 23 March 2021, at which time he was still experiencing headaches, nausea and pins and needles in his hands and feet. The headaches would not go away no matter what he tried or what medication he took.[37]
[37] T1-22, LL24-29.
The Appellant was referred to Dr Andre Triano, a neurologist, at the Mater Hospital. The Appellant saw Dr Triano only once. When he attended on Dr Triano, the Appellant said that he was still sick, he had pins and needles in his hands and feet, and he still experienced nausea and headaches.[38]
[38] T1-22, LL31-46.
The Appellant was referred to neurologist, Dr Richard White. The Appellant attended on Dr White and was treated with AJOVY autoinjectors which helped to take the edge off the headaches.[39]
[39] T1-23, LL19-28.
He agreed he felt well enough and was keen to return to work on 2 March 2021 but then took a turn for the worse on 3 March 2021when the symptoms in his legs returned and so he did not return to work at that stage.[40] The Appellant’s evidence was:
DR BROOKS: You had a turn, and you went back ---?
MR BENNEDICK: Yeah, I had a turn, and I took a tablet. I woke up later that night with blood coming out of me nose and out of me left ear and out of me left eye. I went to stand up off the bed to go to the toilet. I fell flat on my face.
DR BROOKS: Okay?
MR BENNEDICK: I couldn’t move the left-hand side of me body. I yelled out to my partner. She raced up and our step kids raced up. They rang an ambulance. The ambulance came straight, picked me up and they took me straight into Rocky Base Hospital where I was sat outside, and they stuck an EKG meter on me.[41]
[40] T1-36, LL35-46.
[41] T1-39, LL11-14.
Under cross examination, the Appellant agreed that prior to the injury in February 2021 he had suffered a variety of different medical events and conditions, those being:
1. surgery on his jaw as a young man involving a bone graft and the insertion of titanium plates into his jaw bones and cheeks;
2. being thrown through a windscreen in his 20's in a car accident;
3. an accident in which he was knocked off his motorbike when hit by a car in 2014;
4. surgery on his elbow after a car accident in 2017;
5. hospitalisation from Harley Davidson motorbike falling on him in 2018;
6. a motorbike accident in 2018;
7. a headbutt to his head in 2019;
8. treatment for stage 3 thyroid cancer, including a thyroidectomy, after diagnosis in 2018;
9. a failed coal mining board medical due to breathing and lung problems on a date after 2021;
10. a diagnosis of cardiomyopathy at some stage; and
11. a history of headaches, but of a different type to those he claims as his injury, commencing prior to his driving Dozer 145 in early 2021.[42]
[42] T1-27, L10 to T1-30, L45.
The Appellant reiterated in cross examination that whilst he had previously experienced headaches, they were quite different from the headaches he was now experiencing.[43]
[43] T1-30, LL20-45.
The Appellant returned to work about six months after ceasing work on 9 February 2021.[44] He told the Commission that his employer accommodates his headaches when they occur at work.[45]
[44] T1-36, L46.
[45] T1-24, L49 to T1-25, L6.
The Appellant said that he manages work by being on autoinjectors every month; he has to declare it to BMA and the ERT paramedics. His primary carer now with respect to his issues is Dr White in Brisbane who gave him a clearance to return to work.[46]
[46] T1-24, LL4-28.
At the date of trial, the Appellant was still getting headaches, and he still had numbness in his hands and feet; when his autoinjectors run out the headaches come back in full force; they are the same headaches that he has had since the accident.[47] When his headaches get too bad at work, he lets his supervisor know who then swaps him around and has his work adjusted.
[47] T1-23, LL32-40.
The Appellant remains at work and is driving bulldozer 523.[48]
[48] T1-24, L40 to T1-25, L4.
Mr Greg Stratford was a co-worker of the Appellant. In a written statement dated 29 January 2021 he records that he was operating bulldozer 145, on an unstated date between 7pm and 10pm, when he: "… slowly noticed eye irritation and itching down my neck thinking it was the dozer roof lining insulation so kept the machine operating."[49] After his first break he went back to work when he "felt my lips and tongue start to swell".[50]
[49] Exhibit 10 – Statement of Gregory Stratford dated 29 January 2021.
[50] T1-5, LL48-49.
In his evidence in chief, Mr Stratford told the Commission he did not notice a smell until he got out of the dozer at his second break. His evidence was that there was an "odd smell … you couldn't miss it."[51] His tongue, lips and eyes had swollen up, he didn't feel good and was taken straight to the sick bay.[52] His symptoms as a result of that were quite severe.[53]
[51] T1-45, LL5-6.
[52] T1-45, LL8-10.
[53] T1-47, LL1-15 and Exhibit 10.
When asked to describe the smell he told the Commission that it was not the same as ammonia, but it had the same effect, " … Once you smell it you turn away in a hurry. You don't stand there for a second sniff … If you have a sniff, you don't have another sniff."[54]
[54] T1-45, LL12-15 and T1-46, LL25-32.
Mr Stratford told the Commission he thought the smell was also inside the cab but to a lesser extent.[55] He also told the Commission that he had heard others report a smell like gear oil, but he had not smelt the fumes of any description until the 29 January 2021. He had never experienced that type of smell in a dozer before and likened the smell to plastic burning or a chemical.[56] In his written statement he reports that while he noticed, "… eye irritation and itchiness down my neck", he "couldn’t smell anything at the time but I could after a while … ".[57] He further recorded that "After my first break went back to work until around 1.00am when I felt my lips and tongue start to swell. I parked the dozer then asked another operator if he could smell something in the cab. He said he could smell something but couldn’t recognise the smell."[58]
[55] T1-45, LL17-24.
[56] T1-46, LL34-35.
[57] Exhibit 10.
[58] Exhibit 10.
Mr Stratford had a few days off work and attempted to return to work as he "wasn't too bad" but he was required to attend upon "the ambos before work and it just went backwards from there." An appointment was made at the hospital for him. He has not worked since.[59] He reported that he now has headaches.[60]
[59] T1-46, LL38-47.
[60] T1-47, LL5-12.
Mr Stratford was asked:
MR RASHLEIGH: How’s it affected you? What symptoms do you have or did you have then and what do you have now? ---
MR STRATFORD: Prior to this I was an asthmatic. I was – I was pretty – pretty good for an old bloke. I was doing pretty well. Yeah. I didn’t have no – not too much drama. Yep. Now – but now I’ve – I don’t – – –
MR RASHLEIGH: You said you’re crook. Do you have headaches? ---
MR STRATFORD: I – I’ve got a head right now, like someone’s squeezing my head together.
MR RASHLEIGH: Did you have that before this incident? ---
MR STRATFORD: No. It’s only happened from this on.
MR RASHLEIGH: Okay. What about – and do you feel sick at any time or is there – – –?
MR STRATFORD: I do. My – at different times. At different times I’ll get something, a – me stomach turns over. It’s just like – I don’t know. Something goes. And – but that – that goes away.[61]
[61] T1-46, L49 to T1-47, L12.
Mr Leigth Mavin was also a bulldozer operator who operated bulldozer 145. He recalled that on one occasion while operating the bulldozer 145 he developed a headache from a smell in the cab.[62] He did a 12-hour night shift. Mr Mavin recalled that, "…the smell came on and it started to creep in, probably 45 minutes into the shift."[63] He drove bulldozer 145 until he got into another bulldozer right at the end of his shift.[64] He said he ordinarily did not suffer headaches.[65] Mr Mavin told the Commission that he had made a statement about the incident which he gave to his supervisor. He recalled that Greg Yip, Greg Stratford and Peter Bland experienced similar problems with bulldozer 145.[66] He agreed his driving of the bulldozer was at the same time as the Appellant complained of the same issue.[67]
[62] T3-12, LL32-34, and T3-13, LL1-10.
[63] T3-14, LL13-14.
[64] T3-13, LL12-13 and T3-14, LL29-31.
[65] T3-12, L22 to T3-4, L31.
[66] T3-13, LL15-34.
[67] T3-12, LL41-44.
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:
[t]here are insufficient details on clinical examination to determine the diagnosis and therefore work-relatedness. A formal review by an Occupational Physician, Neurologist, or Neurologist specialising in neurotoxicology is recommended to investigate the potential causes for the workers symptoms.[78]
[77] Exhibit 19
[78] Ibid.
Dr O'Toole agreed "the condition of migraine" was within the field of many physicians, including neurologists, and that he had been provided with the documents listed in his referral report.[79]
[79] T3-22, LL11-23.
Dr Imran Hussain of the CQ MediCentre issued a referral for ongoing care of the Appellant to Dr Richard White, neurologist, on 8 March 2024 who the Appellant had been seeing for his ongoing migraine.
Dr Hussain gave evidence consistent with his clinical records,[80] his referral to Rockhampton Base Hospital [81]and with his clinical letter to Dr White dated 8 March 2024.[82]
[80] Exhibit 12 - Clinical Notes – Dr Imran Hussain, GP dated 10 October 2017 to 18 February 2021.
[81] Exhibit 4.
[82] Exhibit 11 - Referral by Dr Hussain, CQ Medicentre to Dr R White dated 8 March 2024.
The clinical notes of Dr Hussain dated 12 February 2021 note:
Described headache as "10/10" all the time and so far had taken 1 nurofen daily
Reported darkness helps with headache, has past H/O migraine (reported similar frontal headache which normally gets better with Panadol)
…
Frontal PNS tenderness ++
No other neurological signs
Reason for Visit:Headache? tension ….[83][83] Exhibit 12.
Dr Mark Brown of the Mater Rockhampton Emergency Care Centre issued a medical certificate dated 14 February 2021 certifying the Appellant as unfit for duty until 21 February 2021.[84]
[84] Exhibit 5 - Medical Certificate – Dr M Brown, Mater Rockhampton Emergency Care Centre dated 14 February 2021.
Dr John Maitland of the CQ Medicentre who reviewed the Appellant on 16 February 2021 issued a workers' compensation Work capacity certificate certifying that the Appellant had no functional capacity for any type of work until 2 March 2021 due to "headache, bouts nausea, pains and pins needles in legs" noting the Appellant "reports breathing in toxic fumes in cab at work" and the Patient's stated mechanism of injury as "believes he breathed in toxic fumes".[85]
[85] Exhibit 6 - Work capacity certificate – Workers' Compensation – Dr John Maitland dated 16 February 2021.
The clinical notes of Dr Maitland record:
c/o persistent headache and pins and needles in whole of legs, stabbing pain in legs, left calf feels weak, appetite poor, bouts of nausea.
2 other men sick after driving same dozer over past couple of weeks company investigating cause of smell
He was advised to go back to ED Mater if does not settle.
Please would you consider Brain MRI and how to investigate his 'peripheral neuropathy'
…Letter written to emergency Department, Mater Private Hospital …[86][86] Exhibit 12.
Dr Maitland reviewed the Appellant on 18 February 2021 and his clinical notes record:
"Company found odour ban (A quaternary ammonium compound in cab leak in vents an some other chemical.
Headaches not so bad, Come and go, but numbness in legs and feet has not changed
MRI brain chronic microvasc changes advised see GP reduce risk of CVA.
Diagnosis:
?toxic periph neuropathy
…
Actions:
Letter written re Clinical Measurements Rockhampton Base Hosp March 2019.Ix numb legs."[87][87] Exhibit 12.
Dr Maitland again reviewed the Appellant on 2 March 2021 and issued a further workers' compensation Work capacity certificate certifying the injury "does not prevent a return to pre-injury duties" and indicating the Appellant was required to be reviewed again on 6 April 2021.[88]
[88] Exhibit 9 - Medical Certificate – Dr Husra Hussain, Gracemere Family Practice dated 23 March 2021.
A clinical letter of Dr Shaib Nasim, General Practitioner, of the CQ Medicentre dated 8 March 2023 to NeuroSciences Queensland noted the potential chemical exposure. He also noted:
Vision checked by optometrist is normal, some visual effects – blurriness. Some visual deficits with regards to tone of colour.
An MRI has been conducted and that indicates there are some white matter changes in brain and these could possibly by ischaemic (report attached). This is in charge to previous MRI that were no specific changes.
On examination there is no specific neurological deficit with good power and tone, no neurological deficits. ….[89]
[89] Exhibit 12.
The Appellant was referred to Dr Andre Triano, a Consultant Neurologist. Dr Triano wrote to the Appellant’s general practitioner on 1 May 2021 indicating that the MRI was normal, with no significant changes identified to explain the Appellant’s symptoms. He noted that "…possible poisoning at work, something that is difficult to prove clinically."[90] Dr Triano also wrote a letter on 1 May 2021 to the Mater Private Hospital in Rockhampton in which he expressed the opinion that the Appellant was fit to return to work.[91]
[90] Exhibit 17.- Two Reports - Dr Andre Troiano, Consultant Neurologist dated 1 May 2021.
[91] Ibid.
Dr Richard White, consultant neurologist at NeuroSciences Queensland, is the Appellant's treating neurologist.
On 18 April 2023, after reviewing the Appellant, Dr White issued a clinical letter to Dr Nasim. He notes that the Appellant had: reported driving a dozer that "was in a poor state of maintenance and notorious for the fumes and noxious smell in the cabin", been exposed to fumes over a three month period, believed there was subsequently an identification of faults with the transmission and had a suspicion that the smell related to volatile transmission fluids.
Dr White notes in his letter of 18 April 2023 that the Appellant reported developing:
… severe headaches, nausea and vomiting complicated by an incompletely differentiated issue with paraesthesia or tingling in his left hand and leg, non-specific dizziness and disequilibrium, tiredness and fatigue, low appetite and weight loss.[92]
[92] Exhibit 13 – Bundle Documents – Dr R White, Neurologist; letters dated 18 April 2023, 11 July 2023 and 10 January 2024.
Dr White goes on to record:
His symptoms now are dominated by a perception of global weakness, worse on the left-hand side, cognitive issues not out of keeping with functional cognitive disorder, low mood with severe anhedonia and anger. He has low libido and chronic daily headaches which are variable in intensity and sometimes of moderate to severe nature, but without marked sensory sensitivity and nausea.
His clinical examination is characterised by some signs of illness behaviour or functional neurology with a generally collapsing weakness pattern on the left-hand side.
I have reviewed all of the available imaging. Given slight differences in his position in the MRI scanner and the image windowing, I don’t think there is any significant difference between the two sets of brain imaging and the lesions are not suggestive of inflammatory demyelination. Morphologically, they are more in keeping with mild chronic ischaemic and non-specific incidental white matter hyperintensity. I don’t believe there is anything in the spinal cord sequences.
I have no reason to doubt his environmental exposure and it has clearly had an adverse effect on his health. I think it would be best to frame his headaches as chronic migraine complicated by some functional neurology. I would defer in regard to his potential pulmonary pathology for which I have been provided no further information and relationship to any of his other symptoms, particularly those of a cardiovascular nature.[93]
[93] Exhibit 13.
On 11 July 2023, Dr White again wrote to Dr Nasim in the following terms:
There is a lot going on in regard to the workplace incident and they alleged noxious fumes. His overall; neurological status has improved. Headaches in particular seem to have settled well with fremanzumab on which he will continue and he has had no more hemiparesis symptomatology. … There is no significant difference in his prior and most recent imaging.[94]
[94] Exhibit 13.
Dr White again reviewed the Appellant on 10 January 2024 and reported to Dr Nasim that "Fremanezumab (ajoby) is quite efficacious for management of his migrainous headache but there is wearing off after 2 to 3 weeks. …"[95]
[95] Exhibit 13.
Dr White confirmed his assessment that the most likely triggering factor for the onset of the Appellant’s headaches were due to environmental factors such as his exposure to fumes was based on a temporal connection. In re-examination, Dr White was asked:
MR RASHLEIGH: Doctor, I assume, from what you said to his Honour that the – there was nothing in the MRI to account for the – for Mr Bennedick’s headaches and symptoms; is that right?
DR WHITE: Not in my opinion, no. No.
MR RASHLEIGH: And what did you do to come to the conclusion that his headaches – or his migraine – was due to environmental factors, such as his exposure to the fumes?
DR WHITE:Well, you’ll recall this was a clinical consultation, and, you know, one relies on the doctor-patient relationship in order to effectively help people therapeutically. There’s a degree to which you depend on the patient’s report of the timeline and the events in order to advance your diagnosis, particularly when it’s based on symptoms and phenomenology. And he has headaches which had features of – of – of migraine. He has been taking medication to alleviate that, with little benefit. He’s put himself through multiple clinical assessments and scans, and he has presented to a specialist clinic for help with his headaches. And the treatments from that point on become a little bit more challenging, because you start talking about injectable options like the CGRP antagonists and botulinum toxin. And, looking at my follow-up correspondence from January and July, he seemed to be responding to the CGRP antagonists, which are a very specific treatment for chronic migraine, so, you know, he’s – well, the symptoms which fit chronic migraine – he reports a timeline relationship to the environmental exposure that he was under, and he’s shown a response to a migraine-specific treatment.[96]
[96] T2-26, LL19-36.
In his letter to Dr Nasim of 18 April 2023, Dr White opined: [97]
I have no reason to doubt his environmental exposure and it has clearly had an adverse effect on his health. I think it would be best to frame his headaches as chronic migraine complicated by some functional neurology.[98]
[97] Exhibit 13.
[98] Ibid.
Professor Geoffrey Herkes, Consultant Neurologist, provided two reports subsequent to his telehealth consultation with the Appellant. The first was dated 7 June 2022[99] and the second, dated 24 August 2022.[100]
[99] Exhibit 14 – Report – Associate Professor Geoffrey Herkes, Neurologist dated 7 June 2022.
[100] Exhibit 15 – Report – Associate Professor Geoffrey Herkes, Neurologist dated 24 August 2022.
In his first report of 7 June 2022, he sets out the history given by the Appellant regarding his operation of bulldozer 145 and the development of chronic daily headaches, numbness and tingling symptoms in his left hand and feet, and an impact on his memory. He records the clinical investigations undertaken up to that date and concluded, based on the results of MRI studies, that it was possible that the Appellant may had suffered demyelination. He noted demyelination could be due to a range of conditions, including exposure to toxins.
In the same report, Associate Professor Herkes responded to the following question posed by Hall Payne Lawyers:
On the balance of probabilities and in the absence of some other cause for symptom onset, are the injuries sustained by our client consistent with the mechanism described.
It is possible and indeed probable that the chronic headaches are a result of his work-related injury. As stated however, there is still uncertainty as to whether there is any other pathology such as peripheral neuropathy or central nervous system abnormality as described on the second scan. If these are present, then toxic exposure would be one of the putative mechanisms, as well as some others in the differential diagnosis.[101]
[101] Exhibit 14.
Associate Professor Herkes, when asked at trial whether he adhered to his opinions, said:
MR RASHLEIGH: And, Doctor, do you adhere to those opinions?
DR HERKES: ---I think there’s been further clarity about the imaging issues that are raised in the c – report.
MR RASHLEIGH: And what was – what was that clarity, Doctor?
DR HERKES: ---My concern in the first report was that the – Mr Bennedick had lower limb symptoms and a possibility of a thoracic cord lesion.
MR RASHLEIGH: Yes?
DR HERKES: ---Which would explain the lower limb symptoms. And he’d seen another neurologist, a colleague who ordered a third MRI scan of his thoracic spine which was not available to me. There was also some discussion discrepancy about the reporting of the scans. His first scan of the brain and spine, which was dated 17 February 2021, was said to be normal. The second scan a month later, 19 March 2021, was reported as showing cerebral lesions in the T8 region. And at that time, I didn’t have the third scan available. So that was touched upon in my second report as well.
MR RASHLEIGH: And that’s dated the 24th of August 2022?
DR HERKES: ---Yes. That’s correct.
MR RASHLEIGH: Thank you. And the opinions you express in there are your opinions?
DR HERKES: --Yes, they are.
MR RASHLEIGH: You adhere to those opinions? ---
DR HERKES: I think, again, there’s been clarity in the last 12 months. My concern, again, was the MRI reports and the fact that he was a gentleman with a significant severe headache and ongoing neurological symptoms. And subsequently, I believe, he’s been thoroughly assessed by a learned colleague, Dr White, who has personally reviewed all the scans and clinically examined Mr Bennedick. And I think gives better clarity to the issue of the scans.
MR RASHLEIGH: And could you just explain to the – to the court what you mean by that?---
DR HERKES: So in – in the first – sorry, in the second report, there was a suggestion that there was new lesion or sore inflammatory changes in both the brain and the spinal cord. The admission neurologist reviewed that and felt there was nothing there. But I then reassured by the expertise of Dr White, who’s ordered a fourth scan, has compared all the scans and is – in his report, doesn’t believe that there’s been any active ongoing inflammatory process in the brain or the spinal cord.
MR RASHLEIGH: And, Doctor, having had the benefit of that, what’s your view about what Mr Bennedick suffers?
DR HERKES: ---I think Mr Bennedick undoubtedly suffers headache that are significant in – of two types. A chronic daily headache with exacerbations and they have features of migraine. With the benefit of Dr White’s clinical review, there doesn’t appear to be, thankfully, any structural abnormality accounting for Mr Bennedick’s weakness or sensory change.
MR RASHLEIGH: All right. Now, you had – you’ve had the benefit of Dr White’s reports, have you?
DR HERKES: ---Yes.
MR RASHLEIGH: All right. So he suffers from migraine, is that – is that your view? ---
DR HERKES: Yes, it is. With – with a chronic daily headache component as well. And that headache only began from history after the exposure to the fumes as – as stated by Dr Bennedick – Mr – Mr Bennedick.
MR RASHLEIGH: In that case, what’s your view about the cause of the headaches? ---
DR HERKES: Well, he’s never been a headache person prior to that exposure. And I would link the exposure to the onset of the headaches.[102]
[102] T3-3 L29 toT3-4 L36 (emphasis added).
In re-examination, Dr Herkes was asked:
MR RASHLEIGH: Just one question. Following on from that, Doctor, given your – the history and what you’ve – what you’ve seen, is there any doubt that, in your mind, that Mr Bennedick was exposed to some sort of fume or smell in the cabin of the bulldozer?
DR HERKES: No. I agree. So I think there’s no doubt in my mind that he was exposed to some fume.[103]
[103] T3-11, LL14-18.
In his supplementary report dated 24 August 2022, Associate Professor Herkes provides an opinion as to the second and third sets of MRI scans undertaken in March and April 2021. He notes there are 'fresh' white matter changes and reports:
There thus appears to be on the face of it the development of some abnormalities, probably demyelination, between the first and the second scan, and a possible resolution of a thoracic lesion between the second and third scan.
Demyelination could be a cause of this, and this can include inflammatory stats such as multiple sclerosis, or other entities such as neuromyelitis optica. Some toxins have also been reported to cause transient demyelination, s has various types of infections or post-infectious states, and post-vaccination states (Acute disseminated encephalomyelitis).
It would be most interesting to know whether further assessments and investigations have been performed on M Bennedick and about his clinical trajectory. If toxins were felt to be a trigger, this would be slightly outside my clinical area of expertise and a toxicologists report might be of value.
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].
In considering this matter, assistance can be gleaned from the observations of Spigelman CJ in Seltsam Pty Ltd v McGuiness[110] in discussing the legal implications of a matter in which medical science was not able to give clear and direct evidence of a causal relationship. Spiegleman CJ held:
[110] [2000] NSWCA 29; (2002) 49 NSWLR 262.
[79]Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.
…
[83] The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 at 197:
"The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence."
[84]It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.
[85] Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 202):
"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference."
[86]After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR(NSW) 301 at 306 said:
"The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible."
[87] As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:
"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
[89] In my opinion, evidence of possibility, including epidemiological studies, should be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case.
[90] Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage [1875] 1 AC 278 at 279:
"My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel."
Earlier in EMI (Australia) Ltd v Bes [1970] Herron CJ wrote: [111]
Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
[111] 2 NSWR 238 at 242.
In Tubemakers of Australia Ltd v Fernandez,[112] the respondent, while operating a faulty bevelling machine at work, was injured when, a heavy steel tube struck him on the back of the hand. As a result, the hand became increasingly painful. Six months later, in August 1971, the condition was diagnosed by a specialist, Dr Sweeney, as Dupuytren’s contracture. The respondent underwent surgery consisting of the removal of fibrous tissue from the palm of his hand. Three years later, in August 1974, the same specialist found that the Dupuytren’s contracture had recurred. He expressed the opinion, on the issue of causation, that the respondent’s initial injury in February 1971 might have played a part in the development of the Dupuytren’s contracture.[113]
[112] (1976) 10 ALR 303.
[113] Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303, at 309.
The trial judge upheld the respondent’s claim for damages. The Court of Appeal, and the High Court (Stephen J dissenting) dismissed the appeal of the employer against that decision.
In the High Court, Mason J (with whom Barwick CJ and Gibbs J agreed), having noted the evidence of the applicant’s surgeon, to the effect that the Dupuytren’s contracture could have been caused by the original accident, said the following:
In my opinion, this evidence left open to the jury to infer that on the balance of probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard, in addition to the matters referred to by Dr Sweeney [the respondent’s surgeon] in his evidence, to other significant circumstances: (a) that before the accident the respondent had suffered no disability in his right hand; (b) that the condition made its appearance shortly after the accident; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with Dr Sweeney’s evidence, provided in my opinion a sufficient basis from which the jury could draw an inference favourable to the respondent.[114]
[114] Ibid, 310.
In Wolverson v Todman Gotterson, JA (Holmes JA McMeekin J agreeing) wrote; [115]
[115] [2016] 2 Qd R 106, [47] – [55]
[52]From this line of authority, the correctness and applicability was not seriously challenged by the respondents here, one may conclude that an expression of medical opinion as to causation in terms of possibility is not conclusive against a plaintiff. Understood in context that evidence alone or in conjunction with other admissible evidence may be capable of justifying a finding of causation on the balance of probabilities.
…
[54]In my view, the criticisms made of the process by which the learned primary judge reached the conclusion on causal link are valid. It was reached by a process which was defective in that it proceeded on erroneous footings, firstly, that unless there is medical opinion evidence which puts the likelihood of a causal link as probable, a finding of a causal link could not be made, and, secondly, that an expression of possibility of a causal link in a medical opinion would necessarily be insufficient for a finding of a causal link (notwithstanding that the finding of such a link may be open on the totality of the relevant evidence); and it failed to have regard to aspects of the medical opinion evidence in context which are apt to indicate a likelihood of a causal link higher than mere possibility.
[55]The evidence at trial would include the evidence of Ms Wolverson herself as well as the medical evidence. When an approach consistent with Fernandez is taken, the conclusion appropriately reached, in my view, is that there is a sufficiency of evidence available to Ms Wolverson, if led at trial and uncontradicted, from which factual findings as to the cause of her symptoms, the reasonable foreseeability that they might be alleviated by the surgery she underwent in 2009 and the effect of that surgery on her symptoms could be made as would establish the causal link required for a cause of action. Taken with the other matters for which his Honour considered there was sufficient evidence, the causal link would complete the elements of a cause of action for recovery of damages on a basis that Ms Wolverson endured symptoms over a long period of time as a result of a persistent misdiagnosis of her symptoms as those of Multiple Sclerosis and a recurrent failure to diagnose and recommend treatment for the Chiari 1 malformation.
The question whether the Appellant has suffered an 'injury' within the meaning of the Act is a question of mixed fact and law on which medical evidence is often helpful, but not necessarily decisive.[116]
[116] Wolverson v Todman [2016] 2 Qd R, [107]
[100]I do not accept the submissions of the Respondent that it remains conjecture that the Appellant’s employment is linked to the development of his condition. Further, I reject the contention that that the Appellant’s employment was not a significant contributing factor to his personal injury.
[101]The unchallenged evidence before the Commission was that the Appellant was exposed to and inhaled fumes; he immediately experienced symptoms, including headaches, bouts of nausea, pain, and pins and needles in his legs; and there is no organic cause to explain the onset of these symptoms.
[102]It is sufficient to say that every consideration of cause and consequence links the Appellant's condition to the exposure and inhalation of the fumes. The expert evidence of both Dr White and Associate Professor Herkes indicates a likelihood of a causal link higher than mere possibility.
[103]At trial, Associate Professor Herkes, having reviewed Dr White's reports which confirmed that there is no inflammatory process in the spinal cord or brain, or any structural abnormality (such as demyelination) accounting for the Appellants weakness or sensory change, noted that the Appellant suffered from chronic daily headaches with features of migraines. He was in no doubt that the Applicant was exposed to "some fume",[117] and linked the headaches to the history of exposure to fumes given by the Appellant.[118]
[117] T3-11, LL14-18
[118] Exhibit 4.
[104]Dr White did not doubt the Appellant’s environmental exposure had an adverse effect on the Appellant’s health, which Dr White characterised as chronic migraine complicated by some functional neurology.
[105]The Respondent submits that while Dr O'Toole, did not examine the Appellant, in his opinion there is no link between the fumes and the Appellant's symptoms and that the evidence of Dr O'Toole is the only evidence from a medical practitioner with stated expertise in occupational exposures.
[106]The Respondent argues that the Appellant seeks to make something of the failure to have someone inside the cabin when bulldozer 145 was being run during its inspection.[119] The difficulty for the Respondent in my view is that Dr O’Toole’s reports were premised on the basis that someone was sitting in the cab of the bulldozer. Moreover, the submission ignores the nature of the case advanced by the Appellant. What is contended by the Appellant is that whilst operating bulldozer 145 he was exposed to fumes entering the cabin through the air-conditioning vents which resulted in an injury that arose out of or in the course of his employment. As a consequence of the inhalation of the fumes the Appellant experienced 'headaches, bouts of nausea, pain and pins and needles in both legs'.
[119] Appellant's submissions filed on 22 January 2025, [53]
[107]The Respondent submits that the lay witnesses' description of the smell is inconsistent; varying between being mostly outside the cab, to coming in through the air conditioning vents, from not being noticed for many hours to being so pungent or sharp you don't stick around for another sniff and from smelling like engine oil to burning plastic. However, what is consistent in their evidence is the presence of fumes when operating bulldozer 145. Moreover, those who operated the bulldozer reacted to the fumes with symptoms of the same kind as experienced by the Appellant including headaches; numbing of the lips and tongue; nausea; and eye irritation. In an email from the BMA Health Specialist, it was stated that: "…health have been made aware that Gregory Stratford and Nathan Bennedick are very unwell."
[108]The exposure to and inhalation of the fumes was in my view 'a significant contributing factor'.
[109]To draw on the words of Hall P in Groos v WorkCover Queensland,[120] the tendrils of cause and consequence link the Appellant's condition, and the factors influencing his condition, to the exposure and inhalation of the fumes when operating bulldozer 145.
[120] [2000] QIC 52; 165 QGIG 106 (21 September 2000).
[110]This is a case where there is no evidence to the contrary. The inhalation of the fumes was the precipitating act for all that followed. The incident occurred whilst the Appellant was at work and during the course of his employment. His employment was a significant contributing factor.
[111]I am of the view that the Appellant has discharged the requisite onus and established that he has a compensable injury for the purposes of s32 of the WCR Act.
Order
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 paper.
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