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  • Unreported Judgment

Ribeiro v Workers' Compensation Regulator

 

[2019] QIRC 203

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

PARTIES: 

Ribeiro, Israel

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/53

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

23 December 2019

HEARING DATES:

DATES OF WRITTEN

SUBMISSIONS:

18 March 2019 and 19 March 2019

Respondent's submissions, 16 May 2019

Appellant's submissions, 6 June 2019

Respondent's submissions in reply, 12 June 2019

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

  1. The decision appealed against is confirmed.
  1. The Appellant pays the Respondent's costs of the appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - PHYSICAL INJURY - worker employed as a slicer at an abattoir - suffered from umbilical and para-umbilical hernias - whether umbilical hernia arose out of or in the course of employment - whether work performed as a slicer aggravated umbilical hernia and whether employment a significant contributing  factor to the aggravation

LEGISLATION:

Evidence Act 1995 (Cth), s 191

Industrial Relations (Tribunals) Rules 2011,r 49(2)

Veterans' Entitlement Act 1986 (Cth), s 196B(2)

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 and s 32

CASES:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Blatch v Archer (1774) 1 Cowp 63, 65; (1774) 98 ER 969

Church v Workers' Compensation Regulator [2015] ICQ 031

Commissioner of Police v David Rea [2008] NSWCA 199

Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492

Davidson v Blackwood [2014] ICQ 008

Downer EDI Rail Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 106

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Heald v Q-Comp [2004] QIC 74; (2004) 177 QGIG 769

Holtman v Sampson [1985] Qd. R 472

JBS Australia Pty Ltd (C2012/35) http://www.qirc.qld.gov.au

Jones v Dunkel [1959] HCA8; (1959) 109 CLR 298

Kavanagh v Commonwealth [1960] HCA 25; (1960) CLR 547

Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16

Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd.R 519

Nilsson v Q-Comp [2008] QIC 74; (2008) 189 QGIG 523

Nutley v Workers' Compensation Regulator [2019] ICQ 002

Omanski v Q-Comp (C/2012/24) http://www.qirc.qld.gov.au

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643

Rossmuller AND Q-COMP (C/2009/36) http://www.qirc.qld.gov.au

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Theiss Pty Ltd v Q-Comp (C/2010/11) http://www.qirc.qld.gov.au

Toll Holdings Limited v Q-COMP (WC/2010/96) http://www.qirc.qld.gov.au

Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr H. Trotter instructed by Mr Jonathan Whiting of Jonathan C Whiting & Associates for Mr Ribeiro.

Ms D. Callaghan of Counsel directly instructed by Ms S Young for the Workers' Compensation Regulator.

Reasons for Decision

Introduction

  1. [1]
    Mr Israel Ribeiro was born in Brazil and migrated to Australia in 2006. Mr Ribeiro's first language is Portuguese.  Mr Ribeiro gave his evidence through a translator.
  1. [2]
    Mr Ribeiro commenced employment with JBS Australia Pty Ltd ('JBS') in March 2008. JBS operates an abattoir at Dinmore. Mr Ribeiro was and is employed as a slicer by JBS. JBS is a self-insurer within the meaning of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
  1. [3]
    On 21 September 2017, Mr Ribeiro made an application for workers' compensation for an umbilical hernia injury said to be sustained over a period of time as a result of his employment as a slicer. JBS rejected Mr Ribeiro's application. On review, the Worker's Compensation Regulator confirmed JBS' decision ('the decision').  Mr Ribeiro appeals against the decision.
  1. [4]
    The Regulator submits that:
  • Mr Ribeiro had the injury of an umbilical hernia which was present before he commenced employment with JBS;[1] and
  • Mr Ribeiro did not aggravate his umbilical hernia during his employment;[2] or, in the alternative
  • if Mr Ribeiro sustained or aggravated his umbilical hernia which arose out of his employment, Mr Ribeiro's employment was not a significant contributing factor to the sustaining or aggravation of his umbilical hernia.[3]
  1. [5]
    Mr Ribeiro submits that:
  • he suffered the injuries of an umbilical hernia and a para-umbilical hernia;[4]
  • those two injuries arose out of or in the course of his employment and his employment was a significant contributing factor to those injuries;[5]
  • his employment aggravated his hernias and his employment was a significant contributing factor to that aggravation;[6] and
  • the causal connection between his employment and the development or aggravation of his hernias was intra-abdominal pressure caused by the work he performed for JBS.[7]
  1. [6]
    There is no dispute between the parties that:
  • Mr Ribeiro was a worker within the meaning of s 11 of the Act; and
  • Mr Ribeiro suffered the injuries of an umbilical hernia and a para-umbilical hernia.[8]
  1. [7]
    The issues are:
  • did Mr Ribeiro's hernias arise out of or in the course of his employment and, if so, was his employment a significant contributing factor to that injury?[9]; or
  • did Mr Ribeiro suffer an aggravation of his hernias which arose out of or in the course of his employment and, if so, was his employment a significant contributing factor to that aggravation?[10]
  1. [8]
    In my view:
  • Mr Ribeiro's hernias did not arise out of his employment; and
  • Mr Ribeiro did not suffer an aggravation of his hernias which arose out of his employment or in the course of his employment.
  1. [9]
    My reasons follow.

Were Mr Ribeiro's hernias sustained or aggravated arising out of or in the course of his employment and, if so, was his employment a significant contributing factor to such injury or aggravation?

  1. [10]
    Exhibit 1 was a Notice to Admit Facts served by the Regulator on Mr Ribeiro's lawyers on 31 August 2018 ('NTAF').  Mr Ribeiro did not respond to the NTAF. Accordingly, pursuant to r 49(2) of the Industrial Relations (Tribunals) Rules 2011,Mr Ribeiro is taken to admit, for the proceeding only, the stated facts in the NTAF.
  1. [11]
    The Regulator contended that Mr Ribeiro's hernias are degenerative in nature and his work duties were not a significant contributing factor to the development of his hernias.[11]
  2. [12]
    The Regulator submitted[12] that Mr Ribeiro's umbilical hernia did not arise out of or in the course of his employment because:
  • on the agreed facts and the evidence Mr Ribeiro provided to his own general practitioner, which was not disputed or contradicted at trial, the hernia was present from February 2008, prior to his employment by JBS;[13] and
  • in his statement of facts and contentions, Mr Ribeiro referred to work duties between 2012 and 2017[14] and on presentation and diagnosis of the hernia to Dr Tiongco in 2012, Mr Ribeiro advised he had had the hernia for around two years.[15]
  1. [13]
    The Regulator further submitted that:
  • even if Mr Ribeiro had sustained an umbilical hernia which arose in the course of his employment, his employment was not a significant contributing factor;[16] and
  • there was no evidence of any aggravation of Mr Ribeiro's umbilical hernia[17] and that the Commission cannot be satisfied, on the balance of probabilities, that Mr Ribeiro's employment was a significant contributing factor to any aggravation of his umbilical hernia on the basis that the expert evidence of Professor Michael O'Rourke AM, General Surgeon should be preferred to that of Dr Michael Fish, General Surgeon and Breast and Endocrine Surgeon.[18]
  1. [14]
    Mr Ribeiro submits that:
  • his umbilical hernia and para-umbilical hernia were first discovered in December 2012 and at that time he was working for JBS;
  • umbilical hernias are either congenital or degenerative in nature and the hernia Mr Ribeiro has is degenerative and the usual cause for that type of hernia is raised intra-abdominal pressure;
  • Dr Fish and Mr Justin O'Sullivan, Ergonomist, both opine that the duties Mr Ribeiro undertook for JBS would cause raised intra-abdominal pressure and are very likely to be a significant contributing factor to his hernias;
  • there are fairly settled circumstances that might cause raised intra-abdominal pressure and these include heavy lifting and chronic coughing; and
  • if the Regulator is to be successful in defending Mr Ribeiro's claim, then it must show, on the balance of probabilities, that the hernia arose from something else, and that while Professor O'Rourke suggests it might be because of obesity, that argument must fail for want of evidence because the hernia appeared in 2012 and in order for the Regulator to argue that, it must lead evidence of obesity at that time and there is no such evidence.[19]
  1. [15]
    Mr Ribeiro also submits that the aggravation of his umbilical hernia occurred on a number of occasions over a period of time between April 2016 and August 2017 and, in this regard, Dr Fish's opinion should be preferred over that of Professor O'Rourke's.[20]
  1. [16]
    Having regard to contentions and submissions made by the parties, the answer to the competing claims comes down to resolution of the following questions.
  1. [17]
    First, is it an uncontested fact that Mr Ribeiro had an umbilical hernia prior to him commencing employment with JBS in 2008?
  1. [18]
    Secondly, does heavy lifting work cause an increase in intra-abdominal pressure?
  1. [19]
    Thirdly, does an increase in intra-abdominal pressure caused by heavy lifting have a causal connection with the development or aggravation of an umbilical hernia?
  1. [20]
    Fourthly, did Mr Ribeiro's umbilical hernia arise out of or in the course of his employment?
  1. [21]
    Finally, did Mr Ribeiro suffer an aggravation of his umbilical hernia which arose out of or in the course of his employment and, if so, was Mr Ribeiro's employment a significant contributing factor to the aggravation?

Is it an uncontested fact that Mr Ribeiro had a hernia prior to commencing employment with JBS in 2008?

  1. [22]
    The Regulator submits that Mr Ribeiro had an umbilical hernia prior to commencing work with JBS in 2008.  The evidence relied upon for this submission is paragraphs 23 and 24 of the NTAF.  Those paragraphs provide:

23. The Appellant then consulted with another general practitioner, Dr Francisco at Everton Hills Medical on 18 September 2017, advising that he had the first episode of umbilical pain on 1 February 2008 (which was prior to commencement of employment with the employer).

24. Dr Francisco provided a workers' compensation certificate stating that the Appellant had felt a sudden onset of umbilical pain on 1 February 2008 whilst lifting a heavy box from the floor causing 'chronic pain and reducible m…' (mass).

  1. [23]
    Mr Ribeiro submits that the NTAF makes it clear that in 2011 no hernia was found and the hernias were not discovered until 2012. 
  1. [24]
    The NTAF, at paragraphs 2 to 5, in respect of this issue, provides:
  • Mr Ribeiro attended Dr Briones at Collingwood Park Family Medical Centre on 25 March 2011 with pain in the umbilicus but no hernia was found on examination;
  • Mr Ribeiro complained to the first-aid officer at JBS on 12 December 2012 that he was sore 'on the belly' and questioned the presence of a hernia, which he had first noticed two years before, saying it was 'very painful today' and that he wished to see his general practitioner the next day on his rostered day off;
  • Mr Ribeiro then consulted with Dr Tiongco at Goodna Medical Centre on 13 December 2012, describing a two-year history of intermittent bulging masses in the umbilical/periumbilical areas which were very tender at times and he managed to push them back in; and Dr Tiongco could not palpate a mass but referred Mr Ribeiro for an ultrasound scan; and
  • Mr Ribeiro underwent an ultrasound scan on 13 December 2012, which was reported as showing an umbilical hernia with a neck of 17 mm and two smaller para-umbilical hernias above the umbilicus measuring 4 and 5 mm and they were not entirely reducible.
  1. [25]
    A question arises as to whether paragraphs 23 and 24 of the NTAF means that there is an admission by Mr Ribeiro that he had an umbilical hernia prior to commencing work with JBS in 2008.
  1. [26]
    A court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.[21] However, while courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness, courts will be reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.[22] Even where facts are expressly agreed and the effect of a statute, such as s 191 of the Evidence Act 1995 (Cth), is that such facts are admitted as evidence, it still remains for a court to determine whether the facts are to be accepted as true and determine what weight to attribute to the evidence.[23] 
  1. [27]
    Dr Fish was cross-examined about paragraphs 23 and 24 of the NTAF.  Dr Fish gave his evidence over the telephone and did not have the NTAF in front of him.[24] In crossexamination, it was put to Dr Fish that Mr Ribeiro had the hernia, which had caused pain, prior to his commencement at JBS, to which Dr Fish stated he would have to review the notes, but '… I'm happy to accept that if you say it's so.'[25] No objection was taken to that aspect of the cross-examination of Dr Fish.
  1. [28]
    However, later in the cross-examination of Dr Fish by the Regulator, the issue of the hernia appearing in 2008 was raised again.[26] At that point, objection was taken on the basis that the NTAF did not say a hernia appeared in 2008, that in 2011 there was a medical assessment that said no hernia was found, and that it was not until 2012 that a hernia was found.[27] To this extent, Mr Ribeiro did dispute that his hernia was present prior to his employment with JBS.
  1. [29]
    Paragraphs 23 and 24 of the NTAF are not in terms that there was a diagnosis by a medical practitioner on or about 1 February 2008 that Mr Ribeiro had an umbilical hernia on that date.  Dr Francisco did not examine Mr Ribeiro on 1 February 2008.  The examination by Dr Francisco was on 18 September 2017 - some 9 ½ years later.  This alleged undisputed fact relies upon Mr Ribeiro's reporting about an event that occurred 9 ½ years earlier.  Paragraph 24 of the NTAF in fact only provides that the workers' compensation certificate stated that Mr Ribeiro had felt a sudden onset of umbilical pain on 1 February 2008 whilst lifting a heavy box from the floor causing 'chronic pain and reducible m …(mass).'
  1. [30]
    For these reasons, I do not accept that there was an admission that Mr Ribeiro had an umbilical hernia, on 1 February 2008, prior to commencing work with JBS.

Does heavy lifting work cause an increase in intra-abdominal pressure?

Mr O'Sullivan's evidence

  1. [31]
    Mr O'Sullivan's evidence went to whether Mr Ribeiro was performing heavy lifting work and whether that work would cause an increase in Mr Ribeiro's intra-abdominal pressure.
  1. [32]
    In his first report dated 16 March 2018, Mr O'Sullivan stated:
  • Mr Ribeiro described being assigned to chuck slicing for about half of his shifts;[28]
  • chucks are the largest cuts of meat and would require the most effort in handling and processing by slicers and Mr Ribeiro described the largest cuts as being some 40 kg while 'the Defendant's representative' described the chucks weighing up to 25 kg';[29]
  • in working at the chuck table, Mr Ribeiro was likely to be exposed to the heaviest work performed by slicers and having to apply the greatest efforts to pull, move, flip and toss chucks or significant parts thereof;[30]
  • slicing, being primarily in a side to side direction, will incur increased abdominal pressure due to the need to stabilise the trunk via co-contraction of oblique abdominal muscles;[31]
  • tossing large cuts to one side and partially behind the body will require trunk stabilisation and probably active trunk twisting, the latter more so with twohanded tossing and oblique abdominals will play a key role in this action and increase abdominal pressure;[32] and
  • activation of the opposing oblique internal and external muscles will also place tension on the connective tissue including the linea alba and, in essence, repetitive effort of moderate or greater magnitude, as in pulling, pushing and lifting, and actual trunk twisting or twisting force to stabilise a sideways action in pulling, pushing or tossing, will involve oblique abdominals and cocontraction of trunk muscles which will increase both intra-abdominal pressure and possibly place direct tension on the subject area.[33]
  1. [33]
    In his supplementary report dated 18 March 2019, Mr O'Sullivan opined;
  • the lifting and handling of 20-27 kg boxes of meat is a strenuous activity;
  • with high exertion and the moments of force found in the above task, '…as are likely to have existed in the carton handling performed by Mr Ribeiro,' there will be a correlated and significant intra-abdominal pressure and stress on the abdominal wall and the effects will be great if cartons were transferred to pallets sitting on the floor; and
  • in handling 20-23 kg chucks from their landing position to a slicing position, Mr Ribeiro will have slid or lifted the chucks to get them close or performed a combination of lifting and sliding and that Mr Ribeiro described sliding from right to left across the front of his body, that is, from some distance from his right shoulder back towards his left side to a point in front of his body.[34]
  1. [34]
    Mr O'Sullivan's evidence about heavy lifting work causing an increase in intra-abdominal pressure was challenged in cross-examination. In cross-examination, Mr O'Sullivan:
  • stated that the four graphs he referred to on page 8 of his first report, purportedly showing that intra-abdominal pressure rises with trunk and abdominal muscle activation, were in error;[35]
  • stated that the four articles he attached to his supplementary report are primarily concerned with the forces on the spine with lifting in the position of the spine with some mention intra-abdominal pressure as a corollary;[36] and
  • agreed that he could not state on the balance of probabilities that Mr Ribeiro's intra-abdominal pressure was raised if Mr Ribeiro lifted an item of unknown weight in a way that Mr O'Sullivan had never seen.[37]

Dr Fish's evidence

  1. [35]
    In his report, Dr Fish stated that repetitive straining increases one's abdominal pressure.[38]
  1. [36]
    In his oral evidence in chief, Dr Fish said:
  • lifting boxes of 20 kg would raise intra-abdominal pressure if lifted off a conveyor belt about belly height because most people would have to stint their abdomen and raise their intra-abdominal pressure to lift a 20 kg box off a conveyor belt[39] and, if that task was done repetitively for several hours, that would amount to sustained raising of intra-abdominal pressure;[40] and
  • the repetitive (every 2 ½ to 3 minutes) delivery of 11 kg of meat to the right or left, if a person was having to hold the meat out in front of them and twist, would raise their intra-abdominal pressure.[41]
  1. [37]
    Dr Fish's oral evidence about the weights of the cuts meat delivered by Mr Ribeiro as a slicer was closer to Mr  Ribeiro's oral evidence of the weights he lifted and to the weights referred to in the NTAF.  

Professor O'Rourke's evidence

  1. [38]
    In cross-examination, Professor O'Rourke said that intermittent heavy lifting did not increase intra-abdominal pressure[42] and that sustained heavy lifting over a long period of time would increase intra-abdominal pressure.[43]
  1. [39]
    The Regulator submitted that in cross-examination, Dr Fish agreed that in order to surmise that there was a persistent raised intra-abdominal pressure,  one would have to know the weights, frequency and manner of the lifts.[44] Dr Fish did state that the weights lifted, the frequency and the manner in which the weights were lifted was important because it went to show how much strain someone was putting on the abdominal wall.[45]  However, it seems to me when Dr Fish gave his oral evidence in chief about Mr Ribeiro's work at the slicing table, he gave that evidence on the basis of the known weight, the manner in which the weights were lifted and the frequency.[46]
  1. [40]
    Professor O'Rourke's evidence on this point, was that sustained heavy lifting over a long period of time would increase intra-abdominal pressure.
  1. [41]
    Given Dr Fish's evidence and Professor O'Rourke's evidence on this issue, I accept that if I find that Mr Ribeiro was doing sustained heavy lifting work, that could increase his intra-abdominal pressure.

Does an increase in intra-abdominal pressure caused by heavy lifting have a causal connection with the development or aggravation of an umbilical hernia? 

  1. [42]
    The resolution of this question comes down to an assessment of the competing expert evidence.

The relevant principles

  1. [43]
    The primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[47]
  1. [44]
    A qualified medical practitioner may, as an expert, express an opinion as to the nature and cause,  or probable cause of an injury,  but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence;  however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.[48]
  1. [45]
    A medical doctor's appreciation of the legal aspects of a case, if relevant, is of no probative value.[49] 
  1. [46]
    Whether a worker has suffered an injury within the meaning of the Act is a question of fact which is not necessarily resolved by acceptance or rejection of medical testimony.[50] Thus, the tribunal may consider the medical evidence and by a course of reasoning which, combined with common sense and the application of logic to physiological facts infer, on the balance of probabilities, a causal connection with an injury.[51]
  1. [47]
    A finding of a causal connection may be open even if there is no medical evidence to support it.[52]
  1. [48]
    Where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection.[53]
  1. [49]
    It is only where the medical evidence denies any causal connection between an event and an injury, that a tribunal cannot act on its own intuitive reasoning as if there was such a connection.[54]
  1. [50]
    In resolving disputes between experts, it is simply not a matter of adding up the witnesses on each side[55] or by the mere perusal of a variety of documentary medical reports.[56]
  1. [51]
    When faced with competing opinions, which are both supported by sound reasoning, the tribunal's function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other, and in doing so the tribunal would not normally substitute its opinion on the medical diagnosis for that of the experts and give scientific medical reasons for doing so; the tribunal's persuasion to prefer one opinion over another may well be based on factors such as that the expert's opinion was tested under crossexamination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations.[57]
  1. [52]
    Other guiding considerations include the expert's qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem.[58]
  1. [53]
    If the factual underpinning of the report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning, then it follows that the report itself is weakened to that extent.[59]
  1. [54]
    Questions of credit and credibility are applicable in the evaluation of an expert's evidence in that, sometimes, expert witnesses display signs of partisanship in the witness box or lack objectivity or refuse to make proper concessions to the viewpoint of the other side.[60]
  1. [55]
    Finally, demeanour in the witness box is usually of little importance in resolving conflicts between well-qualified medical experts.[61]

Mr O'Sullivan

  1. [56]
    Mr O'Sullivan's evidence also went to whether an increase in intra-abdominal pressure is a cause of or would aggravate an umbilical hernia.
  1. [57]
    In his first report dated 16 March 2018, Mr O'Sullivan stated:
  • in adults, a hernia in the vicinity of the umbilicus is called an umbilical hernia arising from weakening or over stressing of the linea alba and may be caused by conditions that increase intra-abdominal pressure including heavy lifting and that information is generally available 'on the internet';[62] and
  • by reference to an article by Velasco, M et al 'Current concepts on adult umbilical hernia' ('the Velasco article'), adult umbilical hernias have an 'acquired origin' as a consequence of increases in pressure (pregnancy, ascites, etc.), the pull of the abdominal muscles and/or the deterioration of connective tissue; and only 10% of adult sufferers had the hernia in childhood;[63]
  1. [58]
    In that report, Mr O'Sullivan seemed to conclude that because of the work Mr Ribeiro performed, there was a strain caused in his abdominal area which caused his abdominal hernia. In this regard, Mr O'Sullivan stated :

Analysis of the work performed by Mr Ribeiro indicated the potential for repetitive and significant efforts particularly in the handling of chucks which are known as the heaviest cut of meat and form the largest proportion of a carcass.  As indicated by Mr Ribeiro these cuts of meat can be up to a significant weight in the order of 25-40 kg which would require some moderate to significant efforts involving the trunk muscles and the likelihood of strain across the abdominal area.  Trunk twisting or rotational efforts are likely to have been common in the work and involve the activation of oblique abdominal muscles which attach to the soft tissue relevant to the onset of umbilical hernia.  The work appears to have been poorly organised in terms of assigning Mr Ribeiro to the heavier slicing task on a very frequent basis and with the recognition of him suffering an abdominal hernia.  [64]

  1. [59]
    Mr O'Sullivan, in his supplementary report, after being provided the information of Mr Ribeiro lifting boxes at work, that the weights of the chuck retrieved by him weighed up to 23 kg, that he passed meat to packers that weighed between 8 kg and 11 kg and that he performed that function 150 times per shift, concluded that the work performed by Mr Ribeiro raised his intra-abdominal pressure and again seemed to suggest that increased intra-abdominal pressure had a causal connection with the onset of his hernia in 2012 and the aggravation of his hernia during 2016 and 2017.  In this regard, Mr O'Sullivan stated:

This supplementary report has examined the handling of chucks of meat and other cuts by Mr Ribeiro at his slicing workstations where he described having to lift and/or slide heavy chucks towards himself for slicing and repetitively turn and toss cuts of meat to a packer around behind his left shoulder.  He had suffered an onset of umbilical hernia in or about 2012; the hernia increased in size during 2016 and 2017 while he continued his work as a slicer, often being assigned to the chuck table where he found the chucks very heavy to handle.[65]

  1. [60]
    I do not accept that Mr O'Sullivan's evidence to the extent he linked raised intra-abdominal pressure as having a causal connection with the development of umbilical hernia.  In cross-examination, Mr O'Sullivan:
  • seemed to accept that the Velasco article he referred to did not mention raised intra-abdominal pressure caused by lifting as having a significant etiological factor in umbilical hernias;[66] and
  • said that there is not really much research at all on intra-abdominal pressure as a measured direct risk for hernias and it is 'common knowledge' that hernias related to heavy lifting.[67]
  1. [61]
    At the end of the cross-examination of Mr O'Sullivan, the following exchange occurred:

But you're not a person – you're not in a position to state from your own expertise that hernias are caused by raised intra-abdominal pressure, are you-or heavy lifting?---Well, I'm sure that's something for the medical evidence too.[68]

  1. [62]
    Mr O'Sullivan is not a medical practitioner and his professional expertise and training is not in the area of the causes of umbilical or para-umbilical hernias.
  1. [63]
    In my view, the resolution of the question, whether raised intra-abdominal pressure has a causal connection with umbilical hernias or whether raised intra-abdominal pressure will aggravate an umbilical hernia, should be undertaken by considering the expert medical evidence.

Dr Fish

  1. [64]
    In his report dated 7 December 2017, Dr Fish stated:
  • he reviewed Mr Ribeiro on 1 December 2017;
  • Mr Ribeiro:
  1. had a hernia for nearly 8 years which had recently been repaired; and
  2. he was otherwise a healthy 49-year-old male who was overweight, who was not on any medications, who did not smoke or drink (which Dr Fish stated was an important part of the history) and who did not have any chronic cough;
  • his job entailed lifting anywhere between 10 to 25 kg in a lifting episode and that 'this is obviously repetitious', he has no other heavy exercise outside of work and his strenuous activities are all confined to the workplace;
  • the natural history of abdominal wall hernias can be a subtle development over time, it is well recognised that raised intra-abdominal pressure is the leading cause for the development of hernias, and while other biological issues can come into play, repetitive straining increases one's intra-abdominal pressure and is well recognised for causing hernias and making them increase in time over many years;
  • after referring to his rereading of s 32 of the Act, which had been supplied to him, he found it '… hard for anyone to deny that ongoing increase in intraabdominal pressure over many years is not a significant contributing factor to the disease or to its aggravation.'; and
  • at present, the most powerful medical search engine was likely to be 'UpToDate' and in the overview of abdominal wall hernias, that publication  clearly stated that raised intra-abdominal pressure is a causative factor in the development of hernias, that the author of that section was David C Brooks, Professor of Surgery at Harvard Medical School, and that the literature review was current through to November 2017, which was then peerreviewed by multiple other prominent surgeons.[69]
  1. [65]
    In summary, Dr Fish opined that:
  • Mr Ribeiro's injury was likely acquired at work and may have been subclinical at the point when the injury began;
  • over time, work is the ultimate major contributing factor to the aggravation of the injury; and
  • in a worker with no other risk factors, other than repetitive straining to lift moderate weight at work over many years for the same company, '… you would have to conclude on the balance of probabilities that work is the major contributing factor to the ongoing development of the hernia which has now been repaired.'[70]
  1. [66]
    In his oral evidence in chief, Dr Fish stated that:
  • the Royal Australasian College of Surgeons website contained a textbook entitled 'Core Topics in General and Emergency Surgery' and in the area on umbilical hernias it confirmed that while the development of hernias was multifactorial, repetitive raised intra-abdominal pressure is a cause for the development of hernias in general and specifically umbilical hernias;[71]
  • once you have a defect in your abdominal wall, continued raised intraabdominal pressure, such as lifting or repetitive lifting, is likely to make the defect on the abdominal wall larger and/or especially the hernial sac larger over time;[72]
  • lifting boxes of 20 kg would raise intra-abdominal pressure if lifted off a conveyor belt about belly height because most people would have to stint their abdomen and raise their intra-abdominal pressure to lift a 20 kg box off a conveyor belt[73] and if that task was done repetitively for several hours, that would amount to sustained raising of intra-abdominal pressure;[74] and
  • the repetitive delivery of 11 kg of meat to the right or left, if a person was having to hold the meat out in front of them and twist, would raise intraabdominal pressure and is one of the causes for the worsening of hernias.[75]

Professor O'Rourke

  1. [67]
    Three reports from Professor O'Rourke about Mr Ribeiro were tendered with the third report being an amended version of his supplementary report.  In his amended supplementary report dated 15 March 2019 (Exhibit 9), Professor O'Rourke stated:
  • the universal opinion is that there are two causes of umbilical hernias in adults, congenital and degenerative, and that the factors that may promote an umbilical hernia and degeneration are:
  1. massive fluid increase in the abdominal cavity, called ascites, which occurs mainly in liver failure and is of slow progression;
  2. obesity;
  3. tumours causing ascites; and
  4. chronic obstructive airway disease; and
  • histological studies say the genesis of the hernia is degeneration of either the scar of the umbilicus or the degeneration of the local tendinous tissue, and biochemical studies suggest there is a defect in collagen metabolism which is the basis of fibrous tissue.[76]
  1. [68]
    Professor O'Rourke was resolute in his opinion that increased intra-abdominal pressure was not a cause of umbilical hernias.  In this respect, Professor O'Rourke opined:

This long held view is no longer tenable.  There are no prospective studies that support this view in the modern literature and today it is very easy to measure intra-abdominal pressure.

When one lies down and contracts the abdomen, one would consider there is an increase of pressure because there is no further room.  Actually, what happens is that the diaphragm rises, the pelvic floor falls as the abdominal muscles contract and there is no increase in intra-abdominal pressure.

Supporting this is the fact that every day probably two hundred and fifty thousand people go to a gymnasium to increase the strength and tone of their abdominal muscles.  They increase the strength and tone of the abdominal muscles by lifting weights or by doing exercises such as push ups.

There is no evidence that there is any increase in umbilical hernia formation in this group of people.[77]

  1. [69]
    In support of his opinion, Professor O'Rourke referred to and attached to his supplementary report[78] the second edition of the American Medical Association Guides to the Evaluation of Disease and Injury Causation ('the AMA Guides'), ch 18, page 537.  That part of the AMA Guides stated that:
  • genetic and developmental factors are the primary etiologic factors for hernias, although conditions that lead to chronically increased abdominal pressure such as obesity, ascites and pregnancy are associated with hernia formation;
  • smoking is also a risk factor for hernia formation and incisional hernias;
  • it is not clear that increased intra-abdominal pressure, such as occurs with lifting, is sufficient to cause hernias and the growing evidence in the literature suggests that hernias develop in patients with predisposing weaknesses of connective tissue and that hernia formation is not generally the result of a single strenuous event; and
  • there are no good studies showing an increased risk of hernia formation in labourers but that nevertheless traumatic events involving severe abdominal blows necessitating hospitalisation and exploratory surgery have been associated with hernia formation.
  1. [70]
    In his evidence in cross-examination, Professor O'Rourke stated that he did not think that an umbilical hernia would not be made any worse if a person did heavy lifting.[79]
  1. [71]
    Both Dr Fish and Professor O'Rourke, in cross-examination, were challenged about their opinions and their evidence was the subject of submissions made by both parties.
  1. [72]
    In cross-examination, Dr Fish, in relation to the article in the search engine 'UpToDate' he referred to in his report, when asked if he had looked at the references behind the article, stated that he could not recollect if he did.[80] 
  1. [73]
    Dr Fish was then referred to one of the references in that article namely 'Repair of Umbilical and Epigastric Hernias' by Earle D and McLennan J contained in the Journal Surgical Clinics of North America.[81] Dr Fish agreed it was a reputable journal[82] and was taken to a paragraph in that reference that stated in the past it was thought that the transient extreme increase in intra-abdominal pressure caused the hernia, that more recent studies have shown that it is probably not the case and that there was research to suggest that patients with hernias have less type 1 collagen and more elastin in their linea alba than patients without hernias.[83] It was then suggested to Dr Fish that the article did not support his opinion.[84]
  1. [74]
    Dr Fish stated that if you have a person who is predisposed to getting a hernia because of a variation in their collagen and they are put in a position of repetitive raising for abdominal pressure, he could not see how the workplace cannot, in certain circumstances, be a contributing factor to the development of a hernia.[85] Dr Fish went on to state that that ascites, pregnancy and abdominal tumours all raise intra-abdominal pressure which is a contributing factor to the development of a hernia.[86] Dr Fish also conceded that there is a dispute in the scientific world about whether intra-abdominal pressure is raised when lifting, but said lifting any weights causes a person to splint their abdomen, hold their breath and raise intra-abdominal pressure on a repetitive basis, and for that reason, he thought it was fair to assume that work is a significant contributing factor to the worsening if not the development of a hernia.[87]
  1. [75]
    Dr Fish was then cross-examined about the American Medical Association, agreeing that it was a reputable association, but said that he was not an expert in the AMA Guides.[88]
  1. [76]
    Dr Fish then stated that he had not read the section in the AMA Guides about hernias.[89] Dr Fish was then asked if he would be surprised if the AMA Guides stated the risk factors for hernias are obesity, ascites, pregnancy, smoking and incisional hernias and that it was not clear that increased intra-abdominal pressure, such as occurs with lifting, was sufficient to cause hernias.  Dr Fish stated it would not surprise him but it was a variation of the theme by stating that if the AMA Guides were quoting smoking it is obviously a chronic cough raising intra-abdominal pressure.[90]
  1. [77]
    In his submissions,[91] Mr Ribeiro attacked Professor O'Rourke's opinion because it was based on information contrary to the facts namely:
  • the meat sliding from the boner weighed no more than 4 kg;[92]
  • slicing is not a heavy task;[93]
  • there is virtually no lifting and if there was, it was performed by the arms and shoulders and only in weights of 10 kg or less;[94]
  • the hernia was present from 2008;[95]
  • the hernia gradually increased in size since then;[96]
  • Mr Ribeiro's Body Mass Index is 33 and not 34;[97]
  • given Professor O'Rourke's evidence that Mr Ribeiro reported tenderness when his belly bumped into the bench[98] it was wrong to diagnose Mr Ribeiro's umbilical and para-umbilical hernia as asymptomatic;[99] and
  • it was wrong to say Mr Ribeiro's hernia is almost certainly degenerative in nature, and that there is no work-related condition, and the long-standing degeneration is probably associated with obesity without any aggravating factors[100] because:
  1. the hernia did not significantly change in size for the first four years after the original diagnosis;
  2. Mr Ribeiro was doing much heavier work than Professor O'Rourke was led to believe; and
  3. the hernia increased in size by 55% between early 2016 in late 2017,  after  showing virtually no degeneration for the first four years, at a time when Mr Ribeiro reduced his weight from 102 kg to 95 kg in September 2017 (when he was examined by Professor O'Rourke).
  1. [78]
    Professor O'Rourke's opinion was also criticised because:
  • when asked if his evidence would change if the pieces of meat, instead of weighing 4 kg, weighed 11 kg, Professor O'Rourke's response was that he never saw that on the video and that Mr Ribeiro did not pick up a big hunk of meat[101] which was in contrast to the evidence that Mr Ribeiro was '… lifting things greater than 10 kilograms, it was rather common that he would have to lift and throw whole silverside with weight as much as 15-16 kilograms - further there were two days lifting boxes that caused him pain around the hernia.'[102]
  • a serious question to be asked is why Professor O'Rourke stated in his first report that there was no possibility that slicing would cause strain on the abdominal muscles[103] and opined that there was no scientific data that showed that heavy lifting caused injuries to abdominal hernia nor causes a hernia,[104] with the answer being on Professor O'Rourke's evidence, no amount of exertion causes a hernia, the Act was a political Act made by people who know nothing about hernias and Mr Ribeiro did not have an incident at work;[105]
  • Professor O'Rourke's evidence of the need for an incident must be considered in light of:
  1. his evidence that heavy lifting will not cause raised intra-abdominal pressure nor worsen an umbilical hernia and that the link between raised intra-abdominal pressure and aggravation of a hernia is for 'the unions and for politics;[106]
  2. the language barrier between Professor O'Rourke and Mr Ribeiro; and
  3. Mr Ribeiro giving evidence of three incidents at work;[107] and
  • Professor O'Rourke refused to consider the activities that Mr Ribeiro had to undertake at work because those activities were not shown  on the video.[108] 
  1. [79]
    Mr Ribeiro also submits that there is a problem with Professor O'Rourke's reliance on the AMA Guides for his opinion that umbilical hernias cannot be caused by raised intraabdominal pressure, because the AMA Guides suggest that such relationship 'is not clear.'  Furthermore, Mr Ribeiro submits that Professor O'Rourke's opinion that his hernias could not arise out of Mr Ribeiro's work, because the work performed by Mr Ribeiro was not heavy enough, should not be accepted because:
  • such a conclusion was beyond Professor O'Rourke's qualifications;
  • Professor O'Rourke did not change his opinion after being informed that Mr Ribeiro was lifting 11 kg loads which was contrary to the 4 kgs or less loads he thought Mr Ribeiro was lifting and which was contrary to the implication in Professor O'Rourke's first report that lifting must be more than 10 kg to be causative of a hernia; and
  • Professor O'Rourke's evidence that no amount of heavy lifting will raise intraabdominal pressure which was contrary to Professor O'Rourke's discussion in his reports about the amount of weight being lifted at work.[109]
  1. [80]
    Mr Ribeiro further submits that Dr Fish stated, unequivocally, that raised intra-abdominal pressure will aggravate an umbilical hernia and that Dr Fish's opinion should be accepted because he reported that opinion 'with citation'.  Mr Ribeiro then submitted that Professor O'Rourke is actually the author of that fact, despite his oral evidence, that the proposition has been specifically mentioned and endorsed in a Commonwealth statute and has been accepted by this Commission in the past.
  1. [81]
    The authorship to which Mr Ribeiro refers is an article which Professor O'Rourke coauthored entitled 'Inguinal hernia: aetiology, diagnosis, post-repair pain and compensation' found in the ANZ Journal of Surgery.[110] Mr Ribeiro also referred to Professor O'Rourke's evidence in Downer EDI Rail Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[111]where Professor O'Rourke's attention was drawn to paragraph [203] of the above article which stated that '… the workscene is possibly an aggravating factor, but not a prime aetiological factor', had listed '… heavy lifting or straining… ' as a commonly accepted stressor or potential aggravating factor and that '…an incident in the workplace can be a significant aggravating factor.'
  1. [82]
    Professor O'Rourke was not cross-examined, in the present proceedings, about that article in respect of work aggravating an umbilical hernia.  Further, in Downer,Professor O'Rourke stated that the article was outdated and that the current thought was there was no evidence at all in the literature which says heavy lifting causes of hernia.[112]
  1. [83]
    The Commonwealth statute to which Mr Ribeiro refers is the Veterans' Entitlement Act 1986 (Cth). Pursuant to s 196B(2) of that Act, the Commonwealth Repatriation Medical Authority ('the Authority') produced a document entitled Statement of Principles concerning umbilical hernia (Reasonable Hypothesis) (No.93 of 2016) ('the Statement').  Section 8(5) of the Statement provides that a factor that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting  umbilical hernias with the circumstances of a veteran's relevant service is '… having increased intra-abdominal pressure specified at the time of the clinical worsening of umbilical hernia.'  The Schedule to the Statement defines the phrase 'increased intraabdominal pressure as specified' to mean acute or chronic (intermittent or continuous) elevation of pressure within the abdominal cavity due to, amongst other circumstances, 'lifting heavy weights.' 
  1. [84]
    Simply because the Statement sets out that the above factors must exist as a minimum before it can be said a reasonable hypothesis has been raised connecting umbilical hernia with a veteran's relevant service, does not mean that I must accept that increased intraabdominal pressure caused by heavy lifting at work in fact causes or aggravates an umbilical hernia.  I can only determine this question on the basis of the tested expert medical evidence led before the Commission.
  1. [85]
    The previous case of the Commission to which Mr Ribeiro refers was Toll Holdings Limited v Q-COMP.[113] In that case, the question was whether a truck driver's umbilical hernia was aggravated by prolonged heavy lifting performed by him in the course of his employment in the absence of a specific identifiable event or incident and that issue, to a great extent, was dependent upon the medical evidence before the Commission.[114]  Vice President Linnane found that the prolonged heavy lifting undertaken by the worker was a significant contributing factor to the aggravation of his hernia.[115] In coming to that conclusion, her Honour preferred the evidence of a Dr Jason Boldery, General, Breast and Endocrine Surgeon, over the evidence of Professor O'Rourke given the particular facts of that case and the way the expert evidence was adduced.[116]
  1. [86]
    I am not bound by the decision in Toll.  That case was decided on its particular facts and on the particular reasons why Dr Boldery's evidence was accepted over that of Professor O'Rourke's. It is a matter for me, on the basis of the evidence presently before me, as to whether Mr Ribeiro suffered an injury within the meaning of the Act.[117]
  1. [87]
    I prefer the evidence of Dr Fish over that of Professor O'Rourke as to whether an increase in intra-abdominal pressure caused by heavy lifting has a causal connection with the development or aggravation of an umbilical hernia. There are a number of reasons for this.
  1. [88]
    First,  the  AMA Guides relied upon by Professor O'Rourke, for his opinion, are not in terms that increased intra-abdominal pressure, such as occurs with heavy lifting, is not a cause of hernias.  The AMA Guides say that it 'is not clear' that increased intraabdominal pressure, such as occurs with lifting,  is sufficient to cause hernias.
  1. [89]
    Secondly,  the reference to which Dr Fish was taken to in cross-examination, which was contained in the 'UpToDate' search engine he consulted for his opinion, was that in the past it was thought that the transient extreme increase in intra-abdominal pressure caused hernias, but more recent studies have shown that it is probably not the case.  That reference does not totally discount any connection between increased intra-abdominal pressure and the development or aggravation of hernias and to the extent it did, it was focussed on transient extreme increases in intra-abdominal pressure.
  1. [90]
    Thirdly, Professor O'Rourke's opinion that there is no connection between raised intraabdominal pressure caused by lifting and the development or aggravation of hernias was based on the AMA Guides.  Yet, in his first report, Professor O'Rourke stated that watching the video he was provided, '… there was no possibility that slicing would cause strain on the abdominal muscles and that this is a long-standing degenerative condition.'[118] It seems to me that there is an internal inconsistency in Professor O'Rourke's opinion, namely, if heavy lifting did not increase intra-abdominal pressure and had no connection with the development of a hernia, then there would not have been any need to base his opinion on whether there was any strain on the abdominal muscles caused by the work performed by Mr Ribeiro.
  1. [91]
    Fourthly, Dr Fish conceded that while there was a dispute in the scientific world about whether intra-abdominal pressure was raised when lifting, he went on to say said that lifting any weights causes a person to splint their abdomen, hold their breath and raise intra-abdominal pressure on a repetitive basis.[119]
  1. [92]
    Finally, Professor O'Rourke, when pressed about a link between increased intraabdominal pressure and the worsening of an umbilical hernia, his evidence in crossexamination was:

--- we're talking about is the link between increased intra-abdominal pressure and the worsening of an umbilical hernia?--- The-what-what- I've got to say this very slowly.  If you have an increase in the amount of content of the abdominal cavity, such as fluid or pregnancy or a slowly increasing mass of tumour, you could - by slowly, slowly putting pressure over a period of time, you can get a hernia.  But not by lifting or intermittent lifting.[120]

  1. [93]
    Applying logic and common sense, it seems to me that if increased intra-abdominal pressure, caused by ascites, pregnancy, abdominal tumours or obesity, has a causal connection with the development or aggravation of umbilical hernia, a proposition which is accepted by Dr Fish and Professor O'Rourke, and sustained heavy lifting increases intra-abdominal pressure, again something agreed as between Dr Fish and Professor O'Rourke, then that can have a causal connection with the development or aggravation of an umbilical hernia.
  1. [94]
    For these reasons, I prefer Dr Fish's opinion that sustained heavy lifting increases intraabdominal pressure which can cause an umbilical hernia or aggravate an existing umbilical hernia.

Did Mr Ribeiro's hernias arise out of or in the course of his employment?

  1. [95]
    An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[121] Although the phrase 'arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury.[122]
  1. [96]
    An injury 'in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[123]
  1. [97]
    In addition to an injury having to arise out of or in the course of employment, the requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.[124] 
  1. [98]
    An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[125]  The onus is on Mr Ribeiro to prove, on the balance of probabilities, that he had an injury within the meaning of the Act.[126]
  1. [99]
    The common law test of balance of probabilities is not satisfied by evidence which fails to do more than just establish possibility.[127] In Seltsam Pty Ltd v McGuiness, Spigelman CJ relevantly stated:

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.[128]

  1. [100]
    In the same case, Spigelman CJ stated that it is often difficult to distinguish between permissible inference and conjecture,[129] and in this regard further stated, by reference to authority:
  • a conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess, whereas an inference, in the legal sense, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof;[130]
  • the existence of the 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;[131]
  • there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish;[132]
  • the test is whether, on the basis of the primary facts, it is reasonable to draw the inference;[133]
  • proof on the balance of probabilities may be established on the basis of circumstantial evidence;[134]
  • causation, like any other fact, can be established by process of inference which combines primary facts like 'strands in a cable' rather than 'links in a chain';[135] and
  • the courts must determine the existence of the causal relationship on the balance of probabilities, however, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece which does not of itself rise above the level of possibility.[136]
  1. [101]
    The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[137]
  1. [102]
    The next question is whether the evidence, as a whole, establishes as more than just a possibility, that Mr Ribeiro's umbilical hernia arose out of or in the course of his employment and, if so, whether his employment was a significant contributing factor to that injury.

Mr Ribeiro's duties

  1. [103]
    The evidence was that Mr Ribeiro had spent most of his time working as a slicer in what is known as the production room at JBS' premises at Dinmore.

The NTAF

  1. [104]
    The following facts are not disputed by Mr Ribeiro:
  • he was employed by JBS as a slicer on the production floor;
  • his work duties included slicing primal cuts such as chuck, topside, rump, silverside and loin;
  • the primal cuts were passed to the slicer from the boner who worked on a raised platform above the slicers;
  • the maximum weight of the primal cuts depended on the cut - with chuck being around 20 kg and silverside being around 11 kg;
  • the primal cuts did not need to be lifted but were pulled closer by the slicer, if need be;
  • the maximum weight of the cuts passed from the slicer to the packer was around 11 kg when occasionally whole silversides were required, however, most of the cuts were less than 8 kg; and
  • slicers, such as Mr Ribeiro, were not required to lift the trimming tubs or the packed cartons of meat as that work was done by packers.[138]

Mr Ribeiro's hours of work

  1. [105]
    Mr Ribeiro's evidence was that:
  • he worked between the hours of 3.00 p.m. and 1.00 a.m., four days per week, which included a half-hour meal break around 7.10 p.m. and a further break of about 20 minutes around 10.50 p.m;[139] and
  • those breaks were in addition to a dozen or more of what were known as 'lapper breaks' taken during the shift of around five minutes to have a drink, go to the toilet or have a cigarette.[140]

Mr Ribeiro's work as a slicer

  1. [106]
    The oral and video evidence established that in terms of Mr Ribeiro's work as a slicer, his operation of work was:
  • the boner threw the cut of meat onto the table where Mr Ribeiro was working;
  • Mr Ribeiro then pulled that cut of meat towards him with his hands;
  • Mr Ribeiro would then clean that cut of meat; and
  • Mr Ribeiro would then throw or push the meat to the packer who worked on the end of the table.
  1. [107]
    The evidence was that the primary cuts of meat Mr Ribeiro sliced in 2016 and 2017 were chuck and silverside.[141]
  1. [108]
    Mr Ribeiro's evidence was that there were two processes of preparing silverside.
  1. [109]
    In respect of the first process, Mr Ribeiro estimated that the weight of the silverside, when it came to him from the boner, could weigh anywhere from 6 kg, 8 kg, 10 or 15 kg, and after the silverside was cut down, the weight of the meat was either 6 kg or 7 kg and up to 8 kg depending upon the size of the animal.  Mr Ribeiro stated that after he cut the meat down, he would throw it to the packer on the table.[142]
  1. [110]
    The second process involved preparing halal silverside.  Mr Ribeiro stated that in respect of this process, which he did once per day, the silverside, depending on the size of the animal, could weigh 8 kg, 10 kg, 12 kg or even 15 kg. Mr Ribeiro stated that after removing the gland, fat and bone (weighing 300 grams) he threw the silverside to the packer.  Mr Ribeiro stated that the halal silverside, after being sliced, could weigh 14 kg or 15 kg.[143] However, Mr Ribeiro's evidence in cross-examination was that in 2016 and 2017 he did not always work on halal meat on a shift.[144]
  1. [111]
    Mr Ribeiro stated the heaviest slice of silverside he had to pass to a packer was between 15 to 16 kg.[145] 
  1. [112]
    Mr Ribeiro also stated that he worked on chuck meat and that a primal cut of chuck when it came from the boner could weigh between 10 kg to 15 kg[146] and that after the chuck had been sliced and at the time it was passed to the packer, it typically weighed 6, 7 or 8 kg.[147] There was no evidence of the frequency Mr Ribeiro worked on silverside compared to chuck.

The video evidence

  1. [113]
    Exhibits 4 and 5 were videos of slicers (not including Mr Ribeiro) working on silverside.
  1. [114]
    Exhibit 4 depicted two slicers and three fresh silversides sliding down on an incline from the boner.  It then depicted one of the slicers, for the three separate silversides, sliding each of the silversides towards him with his left hand, slicing off parts of the silverside and then throwing what was remaining to the right with his left hand.  There did not appear to me to be any significant twisting of the slicer's body when he was sliding the primal cuts towards him or throwing the remaining cuts of silverside to the packer.  At no stage did the slicer pick up the primal cut of meat, slid to him by the boner, with two hands. Nor did the slicer pick up the silverside with two hands after it had been sliced.  The manual handling of the cuts of silverside, before and after they were sliced, did not appear to me to involve heavy lifting, but more sliding and throwing the cuts of meat with the left hand.
  1. [115]
    For the first silverside, Mr Ribeiro stated that the slice thrown to the right weighed about 3 kg and the next piece of meat thrown to the right weighed about 5 kg and the uncut silverside in front of the slicer weighed about 8 kg to 10 kg.[148] A little later in the video, when the slicer is cutting another silverside and then threw another piece to the right, Mr Ribeiro stated the piece thrown weighed 3 kg.[149]
  1. [116]
    Mr Joshua Rolls, HR Officer at JBS, gave evidence that the packer (to whom the meat was thrown by the slicer) would have been less than about a metre away from the slicer.[150]
  1. [117]
    Mr Ribeiro stated Exhibit 4 fairly reflected the duties he performed at work.[151]
  1. [118]
    Exhibit 5 depicted a slicer, from a different angle, slicing a silverside and throwing the two pieces that remained to the right to a packer who was not depicted. The first piece was thrown to the packer with the slicer's left hand and the second piece with both hands.
  1. [119]
    Again, there did not appear to me to be any twisting of the slicer's body when he slid a part of the cut of meat to him or when he threw the remaining cuts of silverside to the packer. The work did not appear to me to involve heavy lifting. It was not suggested that what was depicted in Exhibit 5 did not fairly reflect Mr Ribeiro's duties.
  1. [120]
    None of the videos depicted a slicer working on chuck meat.
  1. [121]
    A question arises as to whether I should accept, as accurate, the estimates of the weights of meat Mr Ribeiro referred to in his oral evidence as set out above.
  1. [122]
    The Regulator submits that Mr Ribeiro's evidence about how he knew or estimated weights of cuts of meat was quite vague and unconvincing. 
  1. [123]
    It was submitted for Mr Ribeiro that because he had worked as a slicer for many years, that career qualified him to estimate the weight of pieces of meat by sight better than anyone else and there was no reason to question his estimates of the weight of pieces of meat.  In addition, it was submitted on behalf of Mr Ribeiro that the NTAF was not in terms that a particular cut of meat was exactly a certain number of kilograms or no more than a certain number of kilograms. 
  1. [124]
    It was also submitted on behalf of Mr Ribeiro, relying upon the decision in Blatch v Archer,[152] that to the extent Exhibits 4 and 5 were tendered by the Regulator and were created by JBS,if there was better evidence than Mr Ribeiro's evidence, then that evidence was in the sole possession of the Regulator '… and the onus is on the Regulator to produce that evidence.'[153]  Mr Ribeiro went on to submit that because the Regulator called no rebuttal evidence from either of the two JBS supervisors the Regulator had originally listed to call (being a Mr Jeffs and a Mr Jenkins), it cannot rebut Mr Ribeiro's unchallenged evidence.
  1. [125]
    In response, the Regulator submitted that the principle in Blatch v Archer is that evidence is to be weighed according to the capacity of a party to adduce it, and that because the Regulator is not the employer or the agent of the employer of Mr Ribeiro, it was in no better position to call evidence about the weights of meat than Mr Ribeiro; and that in view of paragraphs 27-32 of the NTAF, there was no requirement for either party to call evidence about the weight of meat handled by Mr Ribeiro. 
  1. [126]
    In Blatch v Archer, Lord Mansfield stated:

…[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.[154]

  1. [127]
    The principle in Blatch v Archer (and inJones v Dunkel[155]) was referred to in Australian Securities and Investments Commission v Hellicar[156]where French CJ, Gummow, Hayne, Kiefel and Bell JJ stated:
  • disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led;
  • principles governing the onus and standard of proof must be faithfully applied;
  • there are cases where demonstration that other evidence could have been, but was not called, may properly be taken into account in determining whether a party has proved its case to the requisite standard, but both the circumstances in which that may be done and the way in which the absence of evidence may be taken into account are confined by well-known and acceptable principles; and
  • Blatch v Archer is not to be understood as countenancing any departure from any of those rules.[157]
  1. [128]
    The onus is on Mr Ribeiro to prove that he has suffered an injury within the meaning of the Act on the balance of probabilities, and relevantly to his case, to prove the weights of meat he says he lifted.  The principle in Blatch v Archer does not change that. 
  1. [129]
    However, Mr Ribeiro gave more precise evidence about the relevant weights of meat and his evidence was not significantly inconsistent with most of the estimates referred to with the NTAF. The NTAF provides that primal cuts of chuck meat weighed 'around 20 kg' and primal cuts of silverside weighed 'around 11 kg.' Mr Ribeiro stated the primal cuts of chuck weighed between 10 kg to 15 kg and in respect of primal cuts of non-halal and halal silverside, they could weigh anywhere from 6 kg to 15 kg. 
  1. [130]
    The NTAF provides that the maximum weight of silverside passed from a slicer to a packer was 'around 11 kg' when whole silversides were required, but most cuts were less than 8 kg.  Mr Ribeiro also stated that after non-halal meat was cut down, it could weigh 6 kg to 8 kg, after he cut halal meat it could weigh 14 kg or 15 kg and after he had sliced chuck meat it typically weighed 6 kg to 8 kg.
  1. [131]
    Given his experience as a slicer, I accept his evidence of those estimates.  They are not significantly inconsistent with the NTAF. 
  1. [132]
    The Regulator, which was able to call evidence from one employee of JBS (Mr Rolls), called no other evidence that challenged Mr Ribeiro's estimates.

Lifting and moving boxes in the cold store

  1. [133]
    In his evidence in chief, Mr Ribeiro stated that when he worked in the cold store, he had to lift and move boxes of meat weighing around 27.6 kg from a treadmill onto a pallet.[158]  Mr Ribeiro stated that he would move approximately 150 boxes over six to seven hours but that he only performed that task on two days since 2016.[159]
  1. [134]
    Mr Ribeiro, in his evidence in chief was asked if, in 2016 and 2017, he had any problems with his hernia whilst at work and his answer was it caused him pain three times and that from what he remembers, it was when he was picking up the boxes of silverside and chuck and that on one occasion, he reported his pain to someone at work.[160]
  1. [135]
    There was no fact in the NTAF that Mr Ribeiro was required to lift or move boxes of meat as part of his duties.  However, in Mr Ribeiro's Statement of Facts and Contentions filed on 25 May 2018, he stated that for about the five years until 18 August 2017, when his hernia became significantly painful and prevented him from continuing work, his duties during that time included to '… occasionally lift and carry boxes'.[161] 
  1. [136]
    Further, Mr Ribeiro contended that in the decision, there was an incorrect determination that he did not lift boxes in his work duties.[162]
  1. [137]
    The Regulator, in reliance on the decision of the Industrial Court of Queensland in Yousif v Workers' Compensation Regulator[163] submits that it and the Commission are entitled to rely upon Mr Ribeiro's Statement of Facts and Contentions as a complete statement of Mr Ribeiro's case and, subject to the Commission allowing appropriate amendments, a party will be bound by its statement of facts and contentions and may not lead evidence which is not relevant to the identified issues. As such, the Regulator submits that had Mr Ribeiro performed these tasks, and suffered an exacerbation of his hernias and symptoms, those facts would be in detail with some precision in his  Statement of Facts and Contentions and that the Commission should disregard or, at best, put very little weight on Mr Ribeiro's evidence about the two days of lifting boxes as a recent invention.[164] 
  1. [138]
    The Regulator then went on to make submissions about the weight to be given to Mr Ribeiro's evidence about lifting and moving boxes in the cold store[165] and whether that work should be accepted by the Commission as a significant contributing factor to any aggravation of Mr Ribeiro's umbilical hernia.[166]
  1. [139]
    As general propositions, the issues raised by the Regulator about Mr Ribeiro's Statement of Facts and Contentions are valid. 
  1. [140]
    As Martin J, President stated in Yousif v Workers' Compensation Regulator,a statement of facts and contentions is not attended with the same level of formality as pleadings in the traditional sense and by s 531 of the Industrial Relations Act 2016,the Commission is relieved of many of the strict rules which apply in the civil courts, but the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases.[167]
  1. [141]
    His Honour went on to relevantly state:
  • this was particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal;
  • for those reasons, the Commission is entitled to rely on the statement of facts and contentions as a complete statement of a party's case; and
  • such a statement of facts and contentions alerts the other party to the case it will have to deal with and identifies the issues which exist, which in turn, allow for a confinement of the matters in dispute.[168]
  1. [142]
    In courts bound by the rules of pleadings, at trial, a party is entitled to have the opposing party confined to that party's pleadings because the first party is entitled to come to trial to meet only the issues raised in the pleadings.  However, even in such courts, if the first party does not seek to so confine the opposing party but allows the other party to raise other material facts and issues for the determination of the court, then the court is permitted, and possibly obliged, to decide proceeding on the further material facts and issues raised and addressed at trial.[169]
  1. [143]
    In my view, having regard to the above-mentioned paragraphs of Mr Ribeiro's Statement of Facts and Contentions, the Regulator was given some reasonable notice about Mr Ribeiro's claim that there may be a causal connection between Mr Ribeiro lifting and moving boxes, at least in respect of a claim that such work aggravated his hernias.
  1. [144]
    In any event:
  • there was no objection taken to the oral evidence given by Mr Ribeiro about him lifting and moving boxes in the cold-store;[170]
  • while the Regulator (fairly and properly) raised the issue that the supplementary report of Mr  O'Sullivan dated 18 March 2019 and served on  the Regulator on the first day of the hearing (Exhibit 3), went beyond the details that were provided in Mr Ribeiro's Statement of Facts and Contentions in relation to lifting of boxes and (very reasonably) requested an adjournment to consider that supplementary report,[171] the Regulator did not object to it being tendered;[172]
  • Mr O'Sullivan was cross-examined about those aspects of his supplementary report;[173] and
  • the Regulator has dealt with the issue in its written submissions.
  1. [145]
    For these reasons, I will not disregard Mr Ribeiro's evidence about lifting and moving boxes in the cold store.
  1. [146]
    I am not persuaded that Mr Ribeiro's hernias arose out of or in the course of his employment as a slicer at JBS. There are three reasons for this.
  1. [147]
    First, Dr Fish[174] and Professor O'Rourke[175] expressed the view that obesity can lead to increased abdominal pressure which is associated with hernia formation.  On 1 September 2015, when Mr Ribeiro consulted Dr Naqvi at Everton Hills Medical with an umbilical hernia present for three years but getting bigger over time, he was recommended to attend a surgical appointment at the hospital and to lose weight.[176] In January 2016, when Mr Ribeiro attended surgical outpatients' clinic at the Ipswich Hospital, he weighed 102 kg with a BMI of 35 and was advised to lose weight.[177]  By September 2017, Mr Ribeiro still had a BMI of at least 33 which is obese.[178]  There was no evidence led by Mr Ribeiro that from 2008, when he started with JBS, he was not obese.
  1. [148]
    Professor O'Rourke was of the opinion that Mr Ribeiro had long-standing degeneration probably associated with obesity.[179] Dr Fish agreed that Mr Ribeiro's hernia was degenerative.[180]
  1. [149]
    Secondly, it was not until 12 January 2016, when Mr Ribeiro attended surgical outpatients clinic at the Ipswich Hospital, that he gave a history of an umbilical hernia for about five years, slowly increasing in size, '… associated with "frequent heavy lifting in job at meat works" with occasional pain of the hernia site.'[181] On the admitted facts, this was the first time Mr Ribeiro associated his employment at JBS with his hernia.
  1. [150]
    Finally, while I do not accept that there was an admission by Mr Ribeiro that he had an umbilical hernia in February 2008, it was not disputed by Mr Ribeiro that in September 2017 he reported to Dr Francisco that he had his first episode of umbilical pain on 1 February 2008 which is before he started work at JBS.[182]
  1. [151]
    While it is possible that there was a causal connection between the development of Mr Ribeiro's hernia and his employment at JBS, for the reasons given above, I am not  satisfied that it was probable.

Did Mr Ribeiro suffer an aggravation of his umbilical hernia which arose out of or in the course of his employment and was Mr Ribeiro's employment a significant contributing factor to the aggravation?

  1. [152]
    An aggravation of a physical injury is compensable if the aggravation arises out of or in the course of employment and the employment is a significant contributing factor to the injury.[183]
  1. [153]
    For an aggravation to occur, the employment must significantly contribute to the occurrence of the injury and it is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence.[184] There is no requirement for a claimant to show that the aggravation is a significant aggravation.[185]
  1. [154]
    There is no distinction between an 'exacerbation' and 'aggravation' of an injury.[186]
  1. [155]
    A degenerative condition may be aggravated in the sense that it may be made worse; that is, after the aggravation, the degenerative disorder is worse than it was before.[187]  There can also be an aggravation of the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its preaggravation state.[188]  An aggravation, in both these senses, is compensable.[189]

Is there any evidence Mr Ribeiro's hernias became worse?

  1. [156]
    The Regulator submitted that:
  • Mr Ribeiro did not give any evidence about an aggravation of his umbilical hernia;
  • Mr Ribeiro's complaints of pain and/or tenderness were not consistent between 2012 and 2016;
  • in August 2017 Mr Ribeiro informed Dr Dey his hernia was not painful; and
  • when Professor O'Rourke saw Mr Ribeiro in September 2017, the hernia was asymptomatic.[190]
  1. [157]
    The Regulator also submitted that:
  • both Dr Fish and Professor O'Rourke agreed that, because of the different modes of assessing the size of the hernia defect, the relative inaccuracy of ultrasound and the difficulty of palpating a defect in an obese patient, they could not say on the balance of probabilities that the hernia had 'grown' or the defect had increased appreciably in size during that time;[191] and
  • Professor O'Rourke's evidence was that the hernia defect did not grow, rather the connective tissue further degenerated with age.[192]
  1. [158]
    Mr Ribeiro's submission is that the aggravation occurred on a number of occasions over a period of time between April 2016 and August 2017,[193] that the hernia had shown very little degeneration in the four years prior to April 2016 and that, on Professor O'Rourke's evidence in cross-examination,[194] the rate of degeneration between April 2016 and September 2017 was not gradual.[195]
  1. [159]
    Mr Ribeiro also submitted that it was wrong for Professor O'Rourke to opine that his hernia was asymptomatic when Professor O'Rourke reported that Mr Ribeiro reported tenderness when his belly bumped into the bench.[196]
  2. [160]
    Professor O'Rourke's evidence was that, compared to what is found during surgery, a clinical examination and ultrasound was a difficult way to accurately measure hernial defects.[197] Furthermore, Professor O'Rourke's evidence in cross-examination, when the measurements of the size and defect of the hernia referred to in the NTAF was put to him, was that hernias do not grow but they degenerate[198] and that the enlargement of Mr Ribeiro's hernia, as measured, was not unusual.[199]
  1. [161]
    I accept Professor O'Rourke's evidence that hernias do not grow but they degenerate and that the enlargement of Mr Ribeiro's hernia, as measured, was not unusual.  Dr Fish's evidence was that having regard to paragraphs [5], [13], [14], [25] and [26] of Exhibit 1 (the NTAF), that evidence suggests that the hernia may have enlarged over time, not necessarily the neck of the hernia, but the protrusion or the sac.[200] However, Dr Fish gave no evidence about the distinction between the hernia growing as opposed to it degenerating.  In any event, Dr Fish stated it would be a question for the patient to say that the hernia increased in size and that he could not say that Mr Ribeiro's hernia had increased in size.[201]
  1. [162]
    On undisputed facts as contained in the NTAF:
  • between 13 December 2012 and 28 April 2016, Mr Ribeiro had, on a reasonably regular basis, consulted medical practitioners about pain associated with his hernia and the increasing size of his hernia;[202]
  • on 4 October 2016, Mr Ribeiro advised at the Ipswich Hospital surgical outpatients that he had no new symptoms but was happy to proceed with surgery to repair his hernias;[203]
  • on 17 August 2017, Mr Ribeiro was asked to do work in the hides room to which Mr Ribeiro advised he had a hernia and was unable to do that work as it involved heavy lifting, with the result that JBS sent him to see general practitioner;[204] 
  • on 22 August 2017, Mr Ribeiro advised Dr Dey that he had no pain in his abdomen and wanted to do normal work;[205]
  • on 29 August 2017, Mr Ribeiro attended Dr Podder at Main Street Medical Clinic, Beenleigh and sought and obtained a clearance that he was fit for work;[206] and
  • on 29 September 2017, when he was assessed by Professor O'Rourke, he was found to be asymptomatic.[207]
  1. [163]
    There is no evidence from Mr Ribeiro of his hernias becoming more painful or increasing in size after April 2016 up to August 2017, which is the period of time Mr Ribeiro claims that he suffered an aggravation to his hernias.[208]
  1. [164]
    The last time Mr Ribeiro made a complaint to a medical practitioner that his hernia was causing pain or enlarging was on 28 April 2016. On 4 October 2016, he advised that he has no new symptoms.
  1. [165]
    On the basis of that evidence, his umbilical hernia only become worse between December 2012 and April 2016.

Does the evidence prove that the aggravation of Mr Ribeiro's umbilical hernia arose out of or in the course of his employment and that his employment was a significant contributing factor to the aggravation?

  1. [166]
    While I prefer Dr Fish's opinion that sustained heavy lifting increases intraabdominal pressure which can cause an umbilical hernia or aggravate an existing umbilical hernia, I must consider all the evidence before me, including the evidence given by Mr Ribeiro, in determining whether the aggravation of Mr Ribeiro's hernia arose out of or in the course of his employment and whether his employment was a significant contributing factor to the aggravation.
  1. [167]
    I am not satisfied, on the evidence, that the worsening of Mr Ribeiro's hernia arose out of or in the course of his employment as a slicer at JBS or that his employment was a significant contributing factor to the aggravation that did occur.
  1. [168]
    There are three reasons for this.
  1. [169]
    First, Mr O'Sullivan's evidence was that Mr Ribeiro's work '…indicated the potential for repetitive and significant efforts in the handling of chucks which are known as the heaviest cut of meat and form the largest proportion of carcass.  As indicated by Mr Ribeiro these cuts of meat can be up to a significant weight in the order of 25-40 kg which could require some moderate to significant efforts involving the trunk muscles and the likelihood of strain across the abdominal area.'[209]   In his supplementary report, Mr O'Sullivan stated: 'In handling 20-23 kg chucks from their landing position to a slicing position Mr Ribeiro will have slid or lifted the chucks to get them close or performed a combination of lifting and sliding.  He describes sliding from right to left across the front of his body, that is, from some distance in front of his right shoulder back towards his left side to a point in front of his body.'[210]
  1. [170]
    Dr Fish, in his report, stated that Mr Ribeiro's job entailed '… lifting anywhere between 10 to 25 kg in a lifting episode and this is obviously repetitious'[211] and in his oral evidence stated that the repetitive (every 2 ½ to 3 minutes) delivery of 11 kg of meat to the right or left, if a person was having to hold the meat out in front of them and twist, would raise their intra-abdominal pressure.[212]
  1. [171]
    However, Mr Ribeiro stated Exhibit 4 fairly reflected the duties he performed at work and he did not dispute that Exhibit 5 also fairly reflected his duties as a slicer. From Exhibits 4 and 5, there did not appear to me to be any significant twisting of the slicer's body when sliding the primal cuts towards the slicer or when throwing the remaining cuts of silverside to the packer. The work did not appear to me to involve heavy lifting using both hands (although I acknowledge that on the last occasion in Exhibit 5, when meat was thrown, the slicer used two hands).
  1. [172]
    The work primarily involved sliding cuts of fresh silverside, on the stainless steel slicing table, towards the slicer using the slicer's left hand and throwing the remaining cuts of meat with the left hand.  The videos did not depict the slicer sliding cuts of meat from some distance in front of his right shoulder, back towards his left side, to a point in front of his body.
  1. [173]
    In addition, while acknowledging the videos were a snapshot of the work for the length of time depicted, the work, as depicted in the videos, did not involve:
  • 'frequent heavy lifting' as referred to in paragraph [13] of Exhibit 1;
  • sustained or repeated heavy lifting; or
  • the delivery of meat by the repetitive holding out of the meat in front of the slicer and twisting.
  1. [174]
    Further, while I acknowledge, on the evidence, that the weights of some cuts of meat Mr Ribeiro would have handled on the slicing table may have been larger than those depicted in Exhibits 4 and 5:
  • no evidence was given by Mr Ribeiro that he had to handle cuts of meat in the order of 20-23 kg or 25-40 kg and there was no admitted fact by Mr Ribeiro that he had to handle cuts of meat of around those weight ranges;[213]
  • there was no evidence of the frequency Mr Ribeiro worked on silverside compared to the heavier chuck meat;
  • Mr Ribeiro's evidence was that he only prepared the heavier halal meat once per day and that in 2016 and 2017 he did not always work on the heavier halal meat on a shift; and
  • Mr Ribeiro gave no evidence himself about his hernia becoming more painful after performing the work on the slicing table, namely dragging or throwing the cuts of meat.
  1. [175]
    Secondly, the only evidence Mr Ribeiro gave about him having any problems with his hernia at work was that it caused him pain only three times. He gave vague evidence of only one of those occasions when he was picking up boxes of silverside and chucks and that he had made an oral report of that to an unidentified female.[214] There was no incident report tendered to support that allegation. Mr Ribeiro's evidence was he performed the task of lifting boxes only on two days since 2016.[215]
  1. [176]
    Thirdly, on the undisputed facts, his hernia was getting painful from December 2012 which is well before he attributed his work to the worsening of his hernia which first occurred in January 2016.[216]
  1. [177]
    For these reasons, I am not satisfied, on the balance of probabilities, that the aggravation of Mr Ribeiro's hernia arose out of or in the course of his employment. For the same reasons, I am not satisfied that Mr Ribeiro's employment as a slicer contributed in some significant way to the aggravation that did occur.

Conclusion

  1. [178]
    Mr Ribeiro suffered from the personal injury of an umbilical hernia and para-umbilical hernia.
  1. [179]
    For his personal injury to be a compensable injury under the Act, the onus was on Mr Ribeiro to prove, on the balance of probabilities, that there was a causal connection between his employment and the development of his umbilical hernia or that he suffered an aggravation of his umbilical hernia, that the aggravation arose out of or in the course of his employment and that his employment was a significant contributing factor to the aggravation.
  1. [180]
    For the reasons given, Mr Ribeiro has not discharged the onus on him.
  1. [181]
    I confirm the decision appealed against.
  1. [182]
    Mr Ribeiro must pay the Regulator's costs of the appeal.

Footnotes

[1] The Regulator's written submissions dated 16 May 2019 ('the Regulator's submission'), [89]. 

[2] The Regulator's submissions, [91]-[101].

[3] The Regulator's submissions, [103]-[135].

[4] Mr Ribeiro's written submissions dated 6 June 2019 ('Mr Ribeiro's submissions'), [83].

[5] Mr Ribeiro's submissions, [97]-[101].

[6] Mr Ribeiro's submissions, [83], [102]-[108].

[7] Mr Ribeiro's submissions, [97]-[108].

[8] The Regulator's Statement of Facts and Contentions filed on 6 July 2018, [16(a)] ('the Regulator's contentions').

[9]Workers' Compensation and Rehabilitation Act 2003 s 32(1)(a).

[10]Workers' Compensation and Rehabilitation Act 2003 s 32(3)(a).

[11] The Regulator's contentions, [16(e)].

[12] The Regulator's submissions, [89] and [90].

[13] Exhibit 1, [23]-[24].

[14] Mr Ribeiro's Statement of Facts and Contentions filed on 25 May 2018, [6] and [7] ('Mr Ribeiro's contentions').

[15] Exhibit 1, [4].

[16] The Regulator's submissions, [102]-[103].

[17] The Regulator's submissions, [92]-[101].

[18] The Regulator's submissions, [116]-[135].

[19] Mr Ribeiro's submissions, [97]-[101].

[20] Mr Ribeiro's submissions, [102]-[108].

[21]Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492, [157] (Heydon JA, Spigelman CJ at [1] and Sheller JA at [2] agreeing).

[22] Ibid [160].

[23]Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10, [35] (Stone J).

[24] T 2-7, ll 15-23.

[25] T 2-8, ll 24-25.

[26] T 2-12, l 12.

[27] T 2-12, ll 16-22.

[28] Exhibit 2, page 7.

[29] Exhibit 2, page 7.

[30] Exhibit 2, page 8.

[31] Exhibit 2, page 9.

[32] Exhibit 2, page 9.

[33] Exhibit 2, page 9.

[34] Exhibit 3, page 3.

[35] T 1-53, l 45 to T 1-54, l 2.

[36] T 1-62, ll 1-15.

[37] T 1-61, ll 1-9.

[38] Exhibit 6, page 2.

[39] T 2-5, ll 1-16.

[40] T 2-5, ll 28-34.

[41] T 2-6, ll 1-14.

[42] T 2-37, ll 1-19.

[43] T 2-38, ll 1-9.

[44] The Regulator's submissions, [73] referring to Dr Fish's evidence in cross-examination at T 2-10.

[45] T 2-10, ll 14-23.

[46] T 2-6, ll 1-5.

[47]Holtman v Sampson [1985] Qd.R 472, 474 (D.M Campbell, Macrossan and Thomas JJ) ('Holtman').

[48]Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[49]Davidson v Blackwood [2014] ICQ 008, [17] (Martin J, President) ('Davidson').

[50]Nilsson v Q- Comp [2008] QIC 74; (2008) 189 QGIG 523, 526 (Hall P).

[51]Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, 563, (Rich ACJ) ('Adelaide').

[52]Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, 194 (Reynolds JA).

[53]Commissioner of Police v David Rea [2008] NSWCA 199, [8] (Handley AJA, Allsop P at [10] and Johnson J at [11] agreeing).

[54]Adelaide (n 51) 564 (Rich ACJ), 569 (Dixon J)

[55]Davidson (n 49) [19].

[56]Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203, 208 (Olsson J, Bray CJ, 204 and Mullighan J, 212 agreeing) ('Weichmann')

[57]Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229, [95] (Robson AJA).

[58]Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16, 27 (Bollen J, Doyle CJ at 17 and Debelle J at 30 agreeing).

[59]Nutley v Workers' Compensation Regulator [2019] ICQ 002, [22] (Martin J, President).

[60]Holtman (n 47), 474.

[61]Wiechmann (n 56), 204 (Bray CJ).

[62] Exhibit 2, page 5.

[63] Exhibit 2, page 5.

[64] Exhibit 2, page 13.

[65] Exhibit 3, page 7.

[66] T 1-51, l 20 to T 1-52, l 5.

[67] T 1-63, ll 1-5.

[68] T 1-63, ll 19-21.

[69] Exhibit 6, pages 1 and 2.

[70] Exhibit 6, page 2.

[71] T 2-4, ll 1-10.

[72] T 2-4, ll 22-27.

[73] T 2-5, ll 1-6.

[74] T 2-5, ll 28-34.

[75] T 2-6, ll 1-14.

[76] Exhibit 9, pages 5-6.

[77] Exhibit 9, pages 6-7.

[78] Exhibit 8.

[79] T 2-42, ll 15-20.

[80] T 2-15, ll 3-24.

[81] T 2-16, ll 10-13.

[82] T 2-16, ll 7-8.

[83] T 2-16, l 40 to T 2-17, l 3.

[84] T 2-17, l 31.

[85] T 2-17, ll 16-29

[86] T 2-17, ll 31-36.

[87] T 2-17, l 46 to T 2-18 l 12.

[88] T 2-18, ll 14-22.

[89] T 2-18, l 46.

[90] T 2-19, ll 1-6.

[91] Mr Ribeiro's submissions, [56]-[65].

[92] Exhibit 7, page 5.

[93] Exhibit 7, page 5.

[94] Exhibit 7, page 5.

[95] Exhibit 7, page 7.

[96] Exhibit 7, page 7.

[97] Exhibit 7, page 6.

[98] Exhibit 7, page 6.

[99] Exhibit 7, page 7.

[100] Exhibit 7, page 9.

[101] T 2-41, ll 1-5.

[102] Mr Ribeiro's submissions, [69].

[103] Exhibit 7, page 10.

[104] T 2-43, ll 22-23.

[105] T 2-42, l 45 to T 2-43, l 11. This submission is at [70] of Mr Ribeiro's submissions.

[106] T 2-46, ll 31-32.

[107] Mr Ribeiro's submissions, [72].

[108] Mr Ribeiro's submissions, [75].

[109] Mr Ribeiro's submissions, [100].

[110] 82 (2012) 201.

[111] [2015] QIRC 106, [48] ('Downer') (Industrial Commissioner Knight).

[112]Downer (n 111), [49].

[113]Toll Holdings Limited v Q-COMP (WC/2010/96) http://www.qirc.qld.gov.au ('Toll').

[114] Ibid, [2] (Vice President Linnane).

[115]Toll (n 113) [50].

[116] Ibid [42]-[48].

[117]Davidson (n 49) [17].

[118] Exhibit 7, page 10.

[119] T 2-18, ll 3–6.

[120] T 2-46, ll 24-29.

[121]Kavanagh v Commonwealth [1960] HCA 25; (1960) CLR 547, 558 – 559 (Fullagar J).

[122]Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (Hall P).

[123]Theiss Pty Ltd v Q-Comp (C/2010/11) http://www.qirc.qld.gov.au, [3] (Hall P).

[124]Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd.R 519, [27] (Keane JA, de Jersey CJ at [1] and Muir J at [49] agreeing).

[125]Church v Workers' Compensation Regulator [2015] ICQ 031, [27] (Martin J, President).

[126]Rossmuller AND Q-COMP (C/2009/36) http://www.qirc.qld.gov.au, [2] (Hall P).

[127]Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, [80] (Spigleman CJ) (Seltsman).

[128] Ibid 79.

[129]Seltsman (n 127), [84].

[130]Ibid [85].

[131]Ibid [86].

[132] Ibid [87].

[133] Ibid [88].

[134] Ibid [90].

[135] Ibid [91].

[136] Ibid [98].

[137] Ibid [136].

[138] Exhibit 1, [27]-[33].

[139] T 1-8, l 36 and T 1-29, l 36 to 1-30, l 8.

[140] T 1-30, ll 12-16.

[141] T 1-10, ll 11-15

[142] T 1-12, l 39 to T 1-13, l 18.

[143] T 1-13, l 39 to T 1-14, l 34 and T 1-15, ll 31-34. 

[144] T 1-32, ll 17-20

[145] T 1-16, l 30.

[146] T 1-17, ll 43-47.

[147] T 1-17, l 37-41.

[148] T 1-20, l 1 to T 1-21, l 33.

[149] T 1-22, ll 1-12.

[150] T 1-67, ll 1-6. 

[151] T 1-22, ll 20-23.

[152] (1774) 1 Cowp 63; (1774) 98 ER 969 ('Blatch').

[153] Mr Ribeiro's submissions, [19.d]. 

[154]Blatch (n 152), 970.

[155] [1959] HCA 8;(1959) 109 CLR 298, 308 (Kitto J).

[156] [2012] HCA17; (2012) 247 CLR 345.

[157] Ibid [165]-[166] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

[158] T 1-24, l 33 to T 1-25, l 6.

[159] T 1-26, ll 9-24.

[160] T 1-27, ll 5-12.

[161] Mr Ribeiro's contentions, [7a.ii].

[162] Mr Ribeiro's contentions, the second paragraph [8].

[163] [2017] ICQ 004, [13]-[15] (Martin J, President) ('Yousif').

[164] The Regulator's submissions, [104]-[114].

[165] The Regulator's submissions, [115].

[166] The Regulator's submissions, [116]-[136].

[167]Yousif (n 163) [13].

[168] Ibid [13] and [15].

[169]Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356, [51] (Keane CJ and Lander and Buchanan JJ).

[170] T 1-24 to 1-26.

[171] T 1-39.

[172] T 1-42, l 1.

[173] T 1-55, l 39 to T 1-56, 11.

[174] T 2-4, ll 12-20.

[175] T 2-55, ll 6-19.

[176] Exhibit 1, [11].

[177] Exhibit 1, [13].

[178] T 2-55, l 45 to T 2-56, l 9. 

[179] Exhibit 7, page 9.

[180] T 2-4, ll 29-36.

[181] Exhibit 1, [13].

[182] Exhibit 1, [23].

[183]Workers' Compensation and Rehabilitation Act 2003, s 32(3)(a).

[184]JBS Australia Pty Ltd (C2012/35) http://www.qirc.qld.gov.au, [3] (Hall P) ('JBS').

[185] Ibid [5] (Hall P).

[186]Omanski v Q-Comp (C/2012/24) http://www.qirc.qld.gov.au, [11] (Hall P).

[187]Heald v Q-Comp [2004] QIC 74; (2004) 177 QGIG 769, 771 (Hall P).

[188] Ibid.

[189]JBS (n 184), [4].

[190] The Regulator's submissions, [93]-[96].

[191] The Regulator's submissions, [98].

[192] The Regulator's submissions, [99].

[193] Mr Ribeiro's submissions, [102].

[194] T 2-52, ll 10-14.

[195] Mr Ribeiro's submissions, [106].

[196] Mr Ribeiro's submissions, [60], referring to Exhibit 7, page 6.

[197] T 2-58, ll 4-20.

[198] T 2-49, l 39 to T2-50, l 11.

[199] T 2-51, ll 5-14.

[200] T 2-13, ll 18-41.

[201] T 2-14, ll 5-13.

[202] Exhibit 1, [4]-[15].

[203] Exhibit 1, [17].

[204] Exhibit 1, [18].

[205] Exhibit 1, [21].

[206] Exhibit1, [22].

[207] Exhibit 1, [25].

[208] Mr Ribeiro's submissions, [102].

[209] Exhibit 2, page 13.

[210] Exhibit 3, page 3.

[211] Exhibit 6, page 2.

[212] T 2-6, ll 1-14.

[213] Apart from primal cuts of chuck '…being around 20 kg…' – Exhibit1, [30].

[214] T 1-27, ll 5-20.

[215] T 1-26, ll 21-24.

[216] Exhibit 1, [13].

Close

Editorial Notes

  • Published Case Name:

    Ribeiro v Workers' Compensation Regulator

  • Shortened Case Name:

    Ribeiro v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 203

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    23 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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