Background

The appellant was employed by WorkPac, a labour hire company, at the BMA Mine at Blackwater as a bulldozer push/dragline assist operator. The appellant had worked in this role at the mine since 2018.

Typically, the appellant operated bulldozer 523 and had done so for a number of years. However, towards the end of 2020 this bulldozer went through pre-maintenance, rendering it out of action for a prolonged period. Accordingly, the appellant was assigned bulldozer 145, a new Caterpillar Fusion type bulldozer.

The appellant contended that he sustained a number of injuries through the course of his employment between 7 and 9 February 2021 when he was exposed to fumes whilst operating bulldozer 145 at the mine. Specifically, the appellant alleged that he suffered from headaches, bouts of nausea, and pain and pins and needles in both legs. He attributed these symptoms directly to the time spent operating the new bulldozer, which he said emitted fumes into the cabin through the air-conditioning vents.

On 16 February 2021, the appellant made an application for compensation, which was rejected by WorkCover Queensland. The decision was affirmed by the Workers’ Compensation Regulator (“the Regulator”) on 12 October 2021.
The Regulator’s decision was the subject of the appeal, brought by the appellant pursuant to s 550 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD).

Issue

The issue for determination by the Commission was whether the appellant had sustained an “injury” within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD).

Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) relevantly provides that: –

Section 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.

Whilst the Regulator conceded that the appellant had sustained the injuries as alleged by the appellant, it contended that the injury did not arise out of or in the course of his employment. Instead, in its view the temporal connection between the symptoms and the alleged exposure to fumes was mere coincidence, with their being no scientific or medical evidence to confirm a causal link between them. The Regulator further contended that the appellant had failed to establish that his employment was a significant contributing factor to his injuries, as he had failed to establish that he was in fact exposed to fumes in such a quantity to be capable of causing the alleged injuries.

Decision

The Commission noted that resolution of the key issue in dispute required a determination as to whether the appellant had demonstrated that it was more probable than not that his injuries had occurred as a result of being exposed to fumes in the subject bulldozer.

The Commission was satisfied that the appellant had, in fact, been exposed to and inhaled fumes in the bulldozer and that this was causative of his injuries, with there being no organic cause for same. As opined by the Commission, “[t]o draw on the words of Hall P in Groos v WorkCover Queensland, 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.” The Commission relied upon the opinions of Associated Professor Herkes and Dr Richard White. In its decision, the Commission noted that this evidence was “unchallenged” and referred to evidence given by Professor Herkes at trial who, after reviewing the written opinion of Dr White, opined that he was “in no doubt” that the Applicant had been exposed to fumes and that this was related to the appellant’s headaches.

The Regulator relied upon the evidence of Dr O’Toole, who had not established a link between the alleged exposure and the appellant’s symptoms. The Commissioner was not swayed by Dr O’Toole’s evidence, noting that it had failed to engage with the application as progressed by the appellant, relying instead on an alternate factual matrix. Additionally, the Commission made note of the fact that Dr O’Toole had not physically assessed, nor spoken with, the applicant prior to commissioning his report. Taken together, this undermined the veracity of Dr Toole’s evidence in the eyes of the Commission.

Of significance to the Commission’s decision was lay evidence provided by colleagues, who attested to the presence of fumes when they were in or around the subject bulldozer. The Regulator had submitted that this evidence should be given little weight, given the inconsistencies insofar as the location and frequency of the alleged fumes. The Commission noted, however, that whilst there were some inconsistencies as submitted by the Regulator, the common theme throughout them all was that fumes were present. In this regard, the Commission noted that other operators had reported similar symptomology following their use of the subject bulldozer, including numbing of the lips and tongue, nausea, and eye irritation. This pattern of symptoms among multiple workers suggested a broader issue with the bulldozer itself, rather than isolated or unrelated illnesses, bolstering the appellant’s application.

Strikingly, the similarity of symptoms experienced by the workers that had worked in bulldozer 145 had been acknowledged by the mine operator around the time of the subject incident, with a “BMA Health Specialist” writing in an email that “…health have been made aware that Gregory Stratford and Nathan Bennedick are very unwell.”

The Commission therefore concluded that the appellant had discharged the requisite onus and established that he had sustained an injury for the purposes of s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD). The Commission opined that there was “no evidence to the contrary” to this conclusion, and that “[t]he 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.”

The Commission ordered that the respondent’s decision be set aside and another decision substituted, namely, that the appellant’s application for compensation was one for acceptance. Pursuant to the Industrial Relations (Tribunals) Rules 2011 (QLD), the Commission further ordered that the parties exchange submissions on the costs of the hearing, with the decision on costs to be determined on the papers.

Conclusion

The decision highlights the importance of credible, consistent evidence, both medical and lay, in establishing work-related injury. Whilst not explored widely by the Commission, it also emphasises for legal practitioners the value in physical assessments of Claimants, rather than briefing experts on the papers, given the assistance that a full and thorough assessment may provide to an expert from the perspective of their understanding of the circumstances of an alleged incident. Together, the medical and lay evidence formed a compelling an unified narrative that the Commission found most persuasive.

This article was written by WILL DEICKE of Littles Lawyers. If you have any queries regarding the article, please contact via Free Claim Checker or email us.