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Ghiyas Vand v Workers' Compensation Regulator[2017] QIRC 55

Ghiyas Vand v Workers' Compensation Regulator[2017] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ghiyas Vand v Workers' Compensation Regulator [2017] QIRC 055

PARTIES:

Vali Mohammad Ghiyas Vand

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/61

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

5 June 2017

HEARING DATES:

1, 2, 3, 4, and 14 November 2016 (Hearing)

30 January 2017 (Regulator's Submissions)

27 February 2017 (Appellant's Submissions)

HEARD AT:

Brisbane (1, 2, 3, 4, and 14 November 2016)

MEMBER:

Deputy President Swan

ORDERS:

  1. The Appeal is granted.
  1. The Regulator is to pay the Appellant's costs of, and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - Appellant worked as a hide plant operator in an abattoir for two years - sustained number of minor injuries over that time - June 2015 reported an injury relating to his neck and shoulders - medical evidence largely accepted that his work was causative of his injury - ergonomic evidence provided that the type of work performed had a likelihood to cause musculoskeletal injuries - work was repetitive, required heavy lifting, twisting of body, bending of the back, head and neck strain, standing in one place for some time - first aid centre and soft tissue clinic on site to deal with injuries incurred by workers - Appeal granted.

CASES:

Workers' Compensation and Rehabilitation Act 2003

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

March v E & MH Stramare Pty Ltd (1990) 171 CLR 506

Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor (2015) ICQ 028

JBS Australia Pty Ltd AND Q-COMP (C/2012/35) Decision

Groos v WorkCover Queensland 165 QGIG 106

APPEARANCES:

Mr B. Munro of Counsel, instructed by Mr D. Mulligan of Turner Freeman Lawyers, for the Appellant.

Mr P.B. O'Neill of Counsel, directly instructed by Ms L. Hedges of the Workers' Compensation Regulator.

Decision

  1. [1]
    Mr Vali Ghiyas Vand (the Appellant), lodged an Application for Workers' Compensation with JBS Australia Pty Ltd (JBS/the Self-Insurer) on 5 August 2015.  In its decision of 25 September 2015, the Self-Insurer rejected the Appellant's Application for Workers' Compensation.
  1. [2]
    The Appellant, on 17 December 2015, lodged an Application for Review of that decision with the Review Unit of the Workers' Compensation Regulator (the Regulator).  On 9 March 2016, the Regulator confirmed the decision of the Self-Insurer to reject the Appellant's Application for Workers' Compensation.
  1. [3]
    The Appellant now appeals the Regulator's decision pursuant to s 550 of the Workers' Compensation & Rehabilitation Act 2003 (the Act).
  1. [4]
    That the Appellant is a "worker" for the purposes of s 11 of the Act, is not contested by the Regulator.  The Appellant worked at the Dinmore Hide Plant of JBS.

MATTERS FOR DETERMINATION

  1. [5]
    The issue for determination is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act, "arising out of the course of employment and the employment is a significant contributing factor to the injury".  The injury claimed is that of a "disc protrusion at C5/6 within his cervical spine" as diagnosed by Consultant Neurosurgeon, Dr David Walker in his Report of 17 August 2015.  [Exhibit 3] 

LEGISLATION AND MEANING OF INJURY

  1. [6]
    Section 32 of the Act defines "injury" as:

  "32Meaning of injury

  (1) An injury is personal injury arising out of, or in the course of, employment if -

   (a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or

  …

  (3) Injury includes the following -

   (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

   (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -

    (i) a personal injury other than a psychiatric or psychological disorder;

    (ii) a disease;

    (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

  …

  (4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."

NATURE OF APPEAL

  1. [7]
    The Appeal is by way of hearing de novo and the Appellant bears the onus of proof.

WITNESSES

  1. [8]
    Witnesses for the Appellant were:
  • Mr Vali Mohammad Ghiyas Vand, the Appellant [Interpreter Service Provided];
  • Dr David Walker, Neurosurgeon;
  • Mr Ben Handcock, Chiropractor, the Soft Tissue Centre, Optimum Corporate Health;
  • Dr Justin Ludcke, Medical Engineering qualifications, PhD in Investigation Biomechanics, General Manager & Specialist Engineering Consultant, InterSafe, Advanced Diploma in Occupational Health and Safety, Australasian College of Health and Safety.
  • Dr Sharooz Davarnia, General Practitioner, Redbank Plaza Medical Centre;
  • Dr Greg Gillett, Orthopaedic Surgeon;
  • Ms Ton Harrison, First Aid Officer, JBS (qualifications in first aid and CPR);
  • Mr Long Lual, Co-worker of Appellant at JBS Hide Plant Dinmore; and
  • Mr Hossein Bozorgmehr, Co-worker of Appellant at JBS Hide Plant Dinmore [Interpreter Service Provided].
  1. [9]
    Witnesses for the Regulator were:
  • Dr Michael Coroneos, Consultant Neurosurgeon;
  • Mr Peter McGrath, Manager, JBS Hide Plant Dinmore; and
  • Mr Nigel Gibbons, Foreman, JBS Hide Plant Dinmore.

 BACKGROUND TO THE CLAIM

  1. [10]
    The Appellant was born in March 1970.  He emigrated to Australia in 2013 from Iran, on a refugee bridging visa.  He does not speak or understand English well.  His first language is Farsi and he was assisted in the hearing of this Appeal by an accredited Translator.
  1. [11]
    There were occasions during the course of giving his evidence that the Appellant, through his interpreter, could not with any degree of clarity adequately explain his evidence.  A specific example occurred when it took some considerable period of time for the Appellant to explain how he participated in a soccer match.  For reasons later mentioned, this evidence was relevant.  The evidence was eventually conveyed to the Commission and the Parties by the Appellant leaving the witness box and physically re‑enacting his actions and by pointing around the courtroom to describe the parameters and the environment in which this event had occurred.  Similarly, for Appellant witnesses Mr Lual and Mr Bozorgmehr, English was not their first language.  Mr Bozorgmehr also utilised the services of the Interpreter.
  1. [12]
    The Appellant had undertaken and passed a pre-employment medical with a labour-hire business, Labour Solutions and was placed for work at JBS Dinmore.
  1. [13]
    The Appellant commenced employment with JBS in October 2013, working as a Hide Plant Operator.  The Hide Plant operated two shifts on a continuous basis.  These shifts consisted of a day shift and a night shift.  The Appellant worked only on the day shift.
  1. [14]
    At the time of the events relevant to this claim, workers could volunteer for as much overtime as they wished.  This included a further two hours per shift and work also on the weekends.  Cleaning work could be undertaken on a Sunday.  This overtime was frequently performed by the Appellant.
  1. [15]
    The Hide Plant had two areas in which work was performed, which was generally described as the Fleshing side and the Folding and Packing side.
  1. [16]
    Counsel for the Appellant provided an outline of how hides were conveyed through the Hide Plant as follows:

"(i)the hides arrive at the Hide Plant and are placed by a forklift onto a conveyor belt which feeds them into a freshwater tank/bath.  At this location, workers hang hides on hooks travelling above the water;

  1. (ii)
    from here, the hides are transported, via the hooks to the fleshing station, where workers feed the hides into a series of fleshing machines to remove flesh and fat.  There is some additional trimming at this location.
  1. (iii)
    once fleshed, the hides then are hung again and continue along the conveyor to the trim section, where any additional flesh or fat is removed;
  1. (iv)
    from here, the hides then proceed to another tank, known as the Brine Tank where they are deposited.  Workers at this location again retrieve the hides from the water and hang them so that they may be conveyed to another section;
  1. (v)
    the hides then proceed through an area where they are graded;
  1. (vi)
    once graded, the hides are delivered on the conveyor to the Folding and Packing section, where they fall onto tables to be folded before being conveyed to pallets ready for collection and dispatch."  [Appellant's submissions, point 68]

 ISSUES IN CONTENTION

  1. [17]
    Counsel for the Appellant detailed what it believed to be the issues in this Appeal relating to the type of work undertaken by the Appellant:
  • The average weight of the hides;
  • The physical parameters and the difficulty associated with each of the tasks;
  • The speed of the process at various points;
  • The system of rotation;
  • The impact to the system of work, if any, caused by staff absences and levels of competency;
  • The type of injuries seen at the workplace;
  • Overtime; and
  • The "soccer game".
  1. [18]
    This list is not exhaustive and, as it is a list nominated by the Appellant, other issues raised by the Regulator will be identified and considered accordingly.

MATTERS IN CONTENTION

Weight of Hides

  1. [19]
    The Regulator held the view that if there was any doubt about the weight of the hides, then the case for the Appellant must fail.
  1. [20]
    I am unable to accept that proposition.  There was differing evidence given regarding the weight of the hides from all witnesses for the Appellant and the Regulator.  The workplace was an abattoir and it was clear from the evidence that the weight of hides varied on a continual basis dependent upon a range of factors later described in this decision.
  1. [21]
    The Appellant's evidence was that the lightest hide handled in the abattoir was 20kg [T1-32] and the heaviest might be around 140 to 150kg [T1-32].  The Appellant claimed that the average weight would be around 50 to 60kg.  [T1-32]
  1. [22]
    Mr McGrath's evidence was that records were kept by JBS of weights of hides, but no documentary evidence was produced, either in discovery or during the hearing of these recordings.
  1. [23]
    Mr McGrath's estimate of weights was that:
  • 20 per cent of hides weighed under 30kg;
  • 50 per cent of hides weighed between 30 and 40kg;
  • 20 per cent of hides weighed between 40 and 50kg; and
  • 10 per cent of hides weighed more than 60kg.  [T5-37]
  1. [24]
    Mr Gibbons said that the average weight of hides would be 35kg and added that 90 per cent of hides would be less than 60kg.
  1. [25]
    These statistics were best guesses on the part of both Mr McGrath and Mr Gibbons, given that, other than their evidence, there was no documented data to support those contentions.
  1. [26]
    Examples of different opinions concerning weights of hides was seen when Mr McGrath said that one might see a 100kg hide a couple of times a month [T5-210].  Whereas Mr Gibbons thought that a hide over 100kg might be seen once a year.
  1. [27]
    Mr McGrath said he did not accept that workers handling these hides would know the weight of the hides.
  1. [28]
    Mr Lual thought that the average weight of a hide was between 26 to 50kg [T3-35].  In his view, that accounted for about 80 per cent of the hides, leaving the remaining 20 per cent weighing above 50kg [T3-36].  Those heavier hides could be from 60, 65 to 70kg. [T3-36]
  1. [29]
    The Regulator, in submissions, believed that Mr Lual's evidence was about the same as that of Mr McGrath (i.e. that 93 per cent of hides weighed less than 50kg).  This was disputed by Counsel for the Appellant who referred the Commission to the Transcript where the following responses to questions concerning hide weights from Counsel for the Regulator were put to Mr Lual:

"Mr O'Neill:  … that would make the hide less than 50kg, 93 per cent.  Would you agree with that?

Mr Lual: Probably yeah, because you have underweight, which is under - under 20 [indistinct].

Mr O'Neill:  And finally, the last two, 50 to 60 kilograms, so getting a little bit heavier, about 5 per cent?  

Mr Lual: Probably five to 10 per cent.

Mr O'Neill:  All right.   And 60 kilograms plus, 2 per cent?

Mr Lual: It's getting confused here.  It's too hard for me to get it.

Mr O'Neill:  Sorry?

Mr Lual: Breaking down the percentage."  [T3-62]

  1. [30]
    At that point, the Commission requested that the question be formulated in a manner which was clearer for the witness.  The question was then put within the context of looking at 100 hides and estimating the number of occurrences of a particular weight from those 100 hides.
  1. [31]
    When asked by the Regulator whether the number of hides within that 100 hides would only contain two which were more than 60kg, Mr Lual disagreed and said that this would not be enough to represent the heavier hides.  The heaviest hide he had worked with was 130kg, but this occurred only once.   Mr Lual said difference in weights also occurred when hides came from Beef City as those hides were clearly heavier than the average weight usually worked with at JBS [T3-63].  Mr Gibbons agreed with this. 
  1. [32]
    The consensus was that the weights of hides could vary given the seasonal nature of the industry.
  1. [33]
    Considering this matter of hide weights, and given the nature of this Appeal, I have found it somewhat unusual that Regulator witnesses did not provide documentation to support their claims concerning the weight of hides.  Had that documentation, which it said it had, been provided it may have obviated the need to make a decision based on the various estimates of the witnesses.
  1. [34]
    The evidence shows that estimates of weights by witnesses varied between 20 and 26kg for the lightest hides to 130kg and above for the heaviest hides.  It is clear that these two estimates are at the extreme end of the range of weights.
  1. [35]
    It is reasonable, taking into account all estimates and evidence, to accept that the average weight of hides would be around 35 to 50kg. 
  1. [36]
    In forming this view, I have taken into account all evidence, but have been more persuaded by the evidence from the Appellant and Mr Lual.  While I accept that both Mr McGrath and Mr Gibbons had worked at times in jobs similar to those of the Appellant, neither had worked currently in those positions, except on sporadic occasions when a worker might be absent for a short while, for example.
  1. [37]
    Both the Appellant and Mr Lual did not give identical evidence but evidence which was sufficiently similar and I accepted that both gave their best estimate of the weights of the hides.  What has influenced my view is that both were the workers most currently working at JBS around the time of the Appellant's claim in October 2015 and given that they were the workers handling and lifting the hides, I hold the view that their evidence would be more contemporary and therefore more accurate than that of Regulator witnesses.
  1. [38]
    The claim of the Regulator that if any doubt regarding the weight of hides occurred then the Appellant's claim must fail, is not sustainable on the evidence.  In the absence of documentary evidence to the contrary, it was always going to be the case that there would be differing views as to weights of hides.

Speed of the Process at Various Points

  1. [39]
    By way of an introduction, in the workplace there are three discrete chains which are set on different speeds depending on the job in question; the number and size of the hides; and absences by employees from work.  The chains can be slowed down or stopped if necessary.
  1. [40]
    The evidence relayed below highlights the fact that the chains did vary at different work sections and at best, what was given in evidence were best guesses.
  1. [41]
    For example, it was submitted by the Appellant that at the first hanging section, the rate of the chain conveying one hide every six seconds.  However, Counsel for the Appellant says that upon viewing video 709, it appeared that the hides were passing approximately every eight seconds.
  1. [42]
    The Regulator contends that in evidence given by Mr McGrath, having being shown the video 709, Mr McGrath stated that the video appeared to be at the normal speed i.e. at every eight seconds.
  1. [43]
    The Appellant estimated the speed of the chain in the fleshing station as conveying one hide every six seconds. [Appellant's submissions, point 98(i)]
  1. [44]
    The Appellant gave evidence that the hooks travelling above the brine pool were travelling faster at this location estimated at one hook travelling past a worker every five seconds.
  1. [45]
    The Appellant submitted that the speed of the chain at the packing and folding station was dependent on the number of people at the table [T3-18]. 

 The physical parameters and the difficult association with each of the tasks

 The First Hanging Section

  1. [46]
    This particular job required the Appellant to stand beside a pool where he worked with another employee.  The pool was around hip height.  The pool was aeriated and would hold between 100 to 150 hides.  The aeriation was for the purpose of assisting the hides to the surface.
  1. [47]
    The Appellant said that at times the hides could become entangled and force was required to pull them apart.  This view was corroborated by Mr Gibbons.  As well, hides became slippery and difficult to handle and this view was also supported by Mr Gibbons.  [T5-110]
  1. [48]
    The Appellant submitted that if there were less hides in the pool then he would be required to stretch his arm out as far as he could to retrieve those hides.
  1. [49]
    This work involved activity which caused the worker's elbows to be out to the side of his body [T5-49, 61].  The job also involving holding the head and neck of the hide in a position which required bending forward, backwards and sideways [T5-49].  The work also involved workers continuously standing in the one spot without walking (unless they were required to walk around each other to perform a particular task).  [T5-50]
  1. [50]
    Each hide had a hole in the neck for the purpose of retrieval by a pole with a hook on the end.  When a hide was retrieved, the Appellant would lift the hide above the water (about 20cm) and the hide was placed upon a hook on the conveyor system.
  1. [51]
    Each half hour, the two workers would change jobs.  The first worker needed to hook all the hides he could with the second worker doing the catch-up work.
  1. [52]
    Mr McGrath's evidence was that the time interval involved one hook passing at the rate of about every 10 seconds.  The second worker was dealing with every other hide once every 20 seconds.  The Appellant said that the passing rate was about every 6 seconds.  When one observed the video 709 (Exhibit [20]) it showed that the workers were performing those movements at the passing rate of approximately 8 seconds.
  1. [53]
    Mr McGrath agreed that the work was of a repetitive nature. [T5-47]
  1. [54]
    Upon extrapolation, Mr McGrath accepted that this would mean 180 hooking processes per minute and 450 of the same hooking process within a 2 and a-half hour rotation.  [T5-46 to 47]
  1. [55]
    The Appellant said that the first worker was required to work at a faster rate than the second.  This was disputed by Mr McGrath but accepted by Mr Gibbons as accurate.  [T5-10]
  1. [56]
    The Appellant said the level of exertion was 6 out of 10 ("0" is no effort and ten "10" is full exertion) and that this type of work was heavy work.
  1. [57]
    Mr Lual did not find this work particularly hard, but the Appellant believed that this was because Mr Lual was considerably taller than him.  Mr Gibbons agreed that the shorter the worker, the greater the reaching required.  [T5-115]
  1. [58]
    Mr McGrath estimated that the actual weight being lifted by the Appellant for an average hide was between 6 to 8kg with a maximum weight of 10kg [T5-14].  Mr McGrath said there had been no testing of ergonomic assessment of this type of work.   His opinion was his best estimate.
  1. [59]
    Mr McGrath said he agreed that there was a degree of twisting and workers' backs being bent backwards when retrieving hides [T5-61] and also that elbows were held out to the sides and beyond the forearm length in front of the body.  [T5-61]
  1. [60]
    Counsel for the Appellant claimed that Mr McGrath's evidence concerning the exertion scale required in this job was similar to that of the Appellant's and more than the scale provided by Mr Lual.
  1. [61]
    Mr McGrath said that workers determined how they worked in this particular area.  They could swap jobs or choose to continue with the same job for the duration of the rotation.
  1. [62]
    It is relevant at this point to identify a safety standard checklist (provided by Dr Ludcke) for the purpose of explaining the Appellant's reference to various manual tasks performed by the Appellant in the course of his work vis a vis, the type of work referenced in that checklist. 
  1. [63]
    The Manual Tasks Advisory Standard 2000 is a standard which:

"… requires duty holders to assess the risk of any hazardous manual tasks found in the workplace and put effective measures in place to prevent injury by eliminating the risk and where elimination is not reasonably practicable, reduce the risk of injury as far as is reasonably practicable". [Department of Employment Training and Industrial Relations, February 2000]

  1. [64]
    The Manual Tasks Advisory Standard Checklist - Working Postures (the Advisory Standard Checklist) contained within the standard at Table 6, provides checklists to demonstrate the risk factors associated with particular forms of work.
  1. [65]
    In summarising this evidence, Counsel for the Appellant listed the following factors to be considered within the context of the Advisory Standard Checklist:
  • This was repetitive work.  On Mr McGraths evidence, if the chain was passing at the rate approximately 10 seconds per hook, and a worker dealt only with every second hide, that is, once every 20 seconds, this would involve 180 of the same hooking processes per hour and 450 of the same hooking process within a 2 and a-half hour rotation assuming no breakdowns. 
  • The work involved dealing with awkward shapes which could be moved suddenly. 
  • The work involved, at various times, a worker's back to be bent, twisted or a combination of bending and twisting.
  • The work involved holding the head and neck in a position which was bent forward and backwards and sideways.
  • The work involved activity with the elbows out to the sides.
  • That as long as workers were not walking around each other to perform the task, the work involved standing continuously without walking.
  • The work involved repeating the work cycle at least greater than every 30 seconds.
  • The work required repetitive holding the arms out from the body with the elbows at or above mid trunk height".  [Appellant's submissions, point 94 and T5-46 to 51]
  1. [66]
    I have accepted this summary as accurately identifying the evidence given regarding this area of work and I have accepted the evidence given by Appellant witnesses (and in the main accepted by Regulator witnesses), as being a truthful account of the manner in which work at this particular section was performed.

Fleshing

  1. [67]
    In this area, there are two fleshing machines.  The first is manned by two workers and the second is manned by one worker.  [T1-45]
  1. [68]
    The Appellant's evidence around this particular job was described as follows:
  • The hides arrive on a chain and the workers on either side of the first machine grab the hide manually while it drops onto the conveyor and is fed into the machine.  [T1-45 to 46]
  • The third worker oversees the second fleshing machine.  [T1-45]
  • The two workers are required to pull on the hide to stretch it out before it enters the first fleshing machine.  [T1-46]
  • The force involved is felt through the shoulders, the back and the neck.  [T1-47, L1-6; L42-43]
  • The degree of force involved depends on the size of the hide.  [T1-47]
  • The degree of exertion to undertake the role if manually handling the average hide was between 7 and 8 out of 10.  [T1-47, 48]
  • "Occasionally, a larger hide coming into the first fleshing machine would impede the workers when manually handling a hide leaving the machine, and this made it a more difficult task because a worker would be required to use one hand to hold up the arriving hide in order to clear the impediment".
  • The Appellant estimated that the hides arrived and passed the fleshing machine at one every six seconds. [T3-18]
  • The rotational practice was to move each of the three positions every 15 minutes so that half an hour would be spent on the first fleshing machine and 15 minutes would be spent working at the second fleshing machine.  That system continued for two and a half hours.  [T3-19]
  • On 31 March 2015, the Appellant had signed off as working in the fleshing area and he did not work in that area for some time until the commencement of his symptoms.  [T3-22]
  • After the hide went through the first fleshing machine, the back half of the hide was being supported by a machine for a period of time.  [T4-67]
  • Concerning the degree of exertion required in this part of the abattoir Mr Lual thought it was "fifty-fifty" in terms of physical difficulty.
  • Much of Mr Lual's evidence corroborated that of the Appellant as to the manner in which work was performed in this area.  He had said that the exertion rate was 3 out of 10.
  • Mr Lual when asked if there was a part of one's body that moved again and again in that job he responded:

"Yeah absolutely.  You have to look up and down.  Look up, make sure the hide is straight.  And then drop it.  And then you have to look down.  Mostly up and down."  [T3-48]

  • Mr Lual also added that dependent upon which side of the fleshing machine one was placed, there was a need to hold one arm higher than the other when retrieving and stretching the hides [T3-48].  Mr Lual said that at the end of the day he observed that he had "sore arms, sore back, shoulders.  Little bit of neck".  [T3-49]
  • Initially Mr McGrath refuted some of this evidence, save for the identification of the machine and the fact that three persons worked around that machine on any one rotation.
  • He stated that the hides dropped off the hook without having to be pulled by a worker.
  • He thought that the task of pulling the hides into shape was "quite easy" and did not require much effort.  [T5-19]
  • A worker would only be lifting between 8 and 10kg when the hide was partially in the machine and partially being carried by the worker.  [T5-19]
  • He did not accept that there was a need for two workers to have to look up when performing this duty.  [T5-20]
  • Rotation of workers in this area occurred every 20 minutes.  He said that workers could swap their roles but that some workers had a particular preference for a specific role [T5-171].  Mr McGrath stated however, that JBS would not permit a worker performing the one task for too long.  [T5‑51]
  • That there was a bit of effort required when performing the work of spreading the hide.  [T5-51]
  • In terms of the type of force required for spreading the hides, this was dependent upon the size of the hide and the skill level of the worker [T5-51].  This evidence was corroborated by Mr Gibbons.  [T5-111]
  • He agreed that fatigue was a factor for workers performing these duties [T5-52] as did Mr Gibbons [T5-111].  Mr Gibbons said that the fatigue was felt through the whole body.  [T5-111]
  • Mr McGrath agreed that there was some imbalance between the height of shoulders, depending upon which side of the machine one was on.  However, he said that workers could swap places.  Notwithstanding prior statements concerning whether workers looked up and down when working in this station, Mr McGrath conceded that some of the workers might look up.  When viewing the video, he agreed that it showed that workers did not keep their heads in a neutral position all the time. [T5-55]
  • Upon nominating the weight of 10kg, he said this was an estimate and that there had been no expert testing of weights involved in this area of work [T5-56].  Mr Gibbons supported this estimate.  [T5-111]
  • Mr McGrath was asked about the Advisory Standard checklists and he accepted that work performed in this area involved requirements for the head and neck to be repetitively bent forward, backward or twisted sideways [T5-56].  Workers also performed work with elbows out to the side [T5-56]; work beyond forearm length in front of the body [T5-56]; work requiring the maintenance of pinch grip [T5-56] and a work cycle repeated at least every 30 seconds or more. [T5-56]
  • Mr Gibbons agreed that the workers' heads did not remain in a fixed position all the time when performing these duties, adding to Mr MGrath's evidence that workers might look up and down, every time a hide came past [T5-111].  He added that regardless of the rotations in this area, this did not alter the requirement for a worker to look up and down.  [T5-113]

 Trimming

  1. [69]
    It was conceded by the Appellant that work in this area was not onerous.  It was generally a place where injured workers were placed.

 The Second Hanging Section and the Brine Pool

  1. [70]
    The Appellant's evidence was that:
  • It was noted in the Regulator's evidence that workers could incur infections from working in this area.  Mr McGrath said that those incidents were reported to the first aid section and those affected workers would be given other work to perform.  [T5-36]
  • The brine pool was larger than the first tank in the fleshing section.  [T1‑53]
  • The hooks on the chain travelling above the brine pool were about 20 centimetres above the surface of the water.  [T1-53, 54]
  • The task involved the worker grabbing the hide with one hand, locating the hook with the other and then lifting the hide onto the hook.  [T1-54]
  • The chain was faster at this location.  The estimate was that one hook travelled towards a worker every five seconds.  [T1-54]
  • The hides were not easy to grab because of the rotating current.  Failure to hold a hide firmly would result in the hide being lost.  [T1-55]
  • The last few hides would be retrieved by the use of a hook and this occurred during the last 10 minutes of a two and a half hour rotation at that location.  [T1-55]  Positions were not rotated at this location and workers were in the same position for two and a half hours.  [T1-55]
  • The Appellant estimated the exertion rate a being 6 out of 10 for the average sized hides (50 to 60kg) and for the larger hides (up to 140kg) 8 out of 10.  [T1-54]
  • The Appellant believed that if the hides stayed in the brine pool for an extended period over the weekend they were heavier [T1-53].  This assertion was corroborated by Mr Lual.  He believed that the situation had improved with the introduction of a wringer [T3-65].  When commenting upon the introduction of the wringer, Mr McGrath said it had been removed for some time as it was in the wrong location.  He thought that the wringer had been back on the production line for three or four years, but was not certain [T5-57]. 
  • Mr McGrath disagreed that the hides had increased in weight when left in the brine pool over a weekend.  He said the average weight of the hides was the same as before and after the process.  He said hides gave off liquid as well as absorbing salt [T5-26].  However, in Cross-Examination Mr McGrath said that the hides would be carrying some extra weight because salt is heavier than water.  [T5-56]
  1. [71]
    In its summary of Mr McGrath's evidence the Appellant stated:
  • That the hides do become greasy without question after being in the brine solution [T5-58];
  • Despite the aeriation within the brine pool, the hides would become occasionally entangled [T5-58];
  • There would be circumstances where a bundle of hides would not float to the surface as readily as a singular hide [T5-58];
  • There was reaching involved in retrieving the hides and they were not always just presented at the surface of the water [T5-58]; and
  • Mr McGrath said the lifting of hides weighing 5 or 10kg were at best his estimate and that the use of the hooks could be for 10 minutes, but could also extend to half an hour.  [T5-60]
  1. [72]
    Counsel for the Appellant questioned Mr McGrath about the Advisory Standard checklists and his responses were as follows:
  • The task involved a load which was difficult to grasp because it was smooth, slippery, greasy or wet [T5-61];
  • Work was performed with a load supported with the back bent forward from time to time [5-61];
  • Work which involved a degree of twisting [T5-61];
  • Work which was performed when the head or neck was bent forward, bent backwards or twisted sideways [T5-61];
  • Work which was undertaken with the elbows out to the side and beyond the forearm length of the body, but not at all times  [T5-61];
  • A work cycle which was repeated more frequently than every 30 seconds [T5-62] and to stand, on occasions, continuously without walking for a long period [T5-62]; and
  • Mr McGrath estimated that the exertion rate for a worker in this station was about 4 or 5 out of 10, while the Appellant had estimated it to be 6 out of 10 [T5-62].

 Grading

  1. [73]
    The Appellant did not view work in this area as particularly onerous and it was also used as an area into which injured workers were placed.

 Folding and Packing 

  1. [74]
    The Appellant's evidence was as follows:
  • A team of eight workers usually worked in this area.  The work occurred on two tables.
  • At each table 2 persons undertook folding activities and two undertook carrying and packing duties.
  • When folding, a worker was required to use both hands continuously.
  • Some larger hides fell over the sides of the tables.  The worker would be required to lift and put those hides onto the workbench in the folding process.
  • The folding activity placed pressure on workers' back and neck.
  • At least two people were required to carry the hides to the adjacent tables where pallets were waiting.
  • The closest pallet was roughly half a-metre from the workbenches and the furthest pallet was about six metres away.
  • The Appellant said it was hard to lift the hides.
  • Roughly between 32 and 40 hides were placed on the pallets, depending on the weight of the hides.
  • The pallets were at ground level.
  • When the first hides were taken to the pallets, bending and twisting was involved in the course of placing the hides down on the pallet.
  • When the pallet was fully stacked, the hides would be roughly one and a‑half metres above ground level.  To get hides onto this pallet, workers would be required to twist and throw the hides to the top of the stack.
  • The Appellant said that JBS rarely supplied extra workers and trolleys to assist with the carrying and packing process.
  • If a trolley was provided, it was only provided for the first half of the day.
  • Even with a trolley, there was still a requirement to lift the hide on and off the trolley. 
  • A hide could be retrieved every five to six seconds as they were delivered to the folding section.
  • The exertion level for folding an average hide was between 7 and 8 out of 10.   For carrying and packing an average sized hide, the rate was estimated to be 7 out of 10.
  • Mr Lual agreed that the folding and carrying task was difficult work [T3‑35].  While optimally there would be ten workers in this area, he said this was not always the case as some workers didn't turn up for work [T3‑38].   If a trolley person was not present, then the workers had to carry the hides from the folding position.  While having a trolley man available did not do away with the need to carry hides, it did make the work easier.  [T3-40]
  • Mr Lual could not recall how many times a trolley man would not be available but he believed that 2015 was better than 2014 in this regard.  Sometimes the trolley man would not be available for a number of reasons; e.g. short absences; absenteeism; performing other duties and raking the pit.  [T3-41]
  • Mr Lual found the work physically demanding.  He said the exertion rate as 7 out of 10 for an average hide.  For those hides above 80kg, he said the rate would have been 8 out of 10.  [T3-45]
  • Mr Lual claimed that after working in this area for two and a half hours, his body felt sore and this was particularly so in his arms and neck by reason of the requirement to look up and down.  [T3-46]
  1. [75]
    In relation to the design and type of work performed in this area, Mr McGrath's evidence was relatively similar.   His evidence was that:
  • There was a system of rotation between folding and carrying.
  • Carrying larger hides was awkward.  [T5-31]
  • JBS provided extra labour if it was available to assist in this work.
  • Hides were stacked at about 30 per pallet.
  • When stacked, the hides would be at approximately waist height for the average sized worker.  [T5-31]
  • On the question of the availability of the trolley man, the initial evidence from Mr McGrath in Evidence In-Chief differed from that of the Appellant and Mr Lual. 
  • However, in Cross-Examination, Counsel for the Appellant said Mr McGrath conceded that the trolley would only be available if staffing levels permitted.  His comment was that "it comes back to our labour that turns up on any given day that they - when we have the labour we - we use the trolleys". [T5-28]
  • Mr McGrath agreed that if numbers were low on a particular day the trolley men might have to assist in other areas such as raking the pit.  His comments in this instance are similar to those given by Mr Lual.
  • Mr McGrath said some workers were resistant to using trolleys because they thought it slowed the process down.
  • Mr McGrath said that trolleys may have been running 60 to 70 per cent of the time and it was a "luxury" that was only available to workers when staffing permitted and it was not every day.  [T5-67]
  1. [76]
    Concerning the work involved in packing vis a vis the Advisory Standard checklists, Mr McGrath accepted:
  • The work was repetitive and awkward [T5-67];
  • It would be difficult to weigh exactly the hide being transferred [T5-67];
  • Packing was the most physical part of the entire job of a hides processor;
  • The work involved twisting to some degree;
  • The packing work involved transferring loads which were heavy and bulky at times;
  • The work involved distribution of loads which could be uneven, with no ready identification of a heavy side;
  • The load was difficult to grasp;
  • The load was awkward;
  • The work required the back to be bent forward, twisted or with a combination of both;
  • The work required the neck to be bent forward or bent and twisted; and
  • The work required the elbows to be out of the side and beyond a forearm length in front of the body [T5-43 to 73].
  1. [77]
    With regard to the exertion level required without a trolley, Mr McGrath had estimated that the exertion rate was around 6 out of 10 and with a trolley 5 out of 10.
  1. [78]
    The exertion rate nominated for folding and packing was, in the Appellant's view, not much different from that provided by the Regulator witnesses. 

Trolleys in the Folding and Packing area

 Preamble

  1. [79]
    Trolleys in this area were used for the purposes of transporting hides after folding.  It was accepted by all witnesses that the use of these trolleys was beneficial to the workers in this area.
  1. [80]
    Mr McGrath said he believed that the trolleys were running 60 to 70 per cent of the time.  It was a "luxury" which was not available every day and he agreed that without the trolley, the work was more onerous, repetitive and awkward, particularly on the packing side.  [T5-67]
  1. [81]
    He agreed that the worker's neck, and head were not kept in a fixed position.  He agreed that there was a degree of craning of the neck up and down as the worker folded hides.  [T5-67]
  1. [82]
    The concessions made by Mr McGrath and Mr Gibbons in giving their evidence did not alter significantly from the evidence given by the Appellant and other witnesses.

 Types of injuries seen at this workplace

  1. [83]
    Mr McGrath said the type of injuries incurred included "aches/shoulder elbow pain/ infections and reactions to brine.  Scratches; scarring of hands/shoulder and arms complaints, cute and muscle and joint pain.  Injuries could last one to two weeks". 
  1. [84]
    Mr McGrath was aware that there were Government guidelines (but those were not identified), that provide checklists to allow an employer to rate systems and to rate prospects of musculoskeletal injuries of workers.   However he was not aware of the Manual Tasks Advisory Standard 2000.  This Standard "requires duty holders to assess the risk of any hazardous manual tasks found in the workplace and put effective measures in place to prevent injury by eliminating the risk and where elimination is not reasonably practicable, reduce the risk of injury as far as is reasonably practicable". 
  1. [85]
    Mr Gibbons agreed that with workers who might not be able to work for a period of time because of injuries, he would never have enough workers with the right skills to fill every position.  [T5-123]
  1. [86]
    Mr Gibbons did not record how long employees worked in particular areas and what their rotations might be, but added that he would take a mental note of what was occurring at the workplace vis a vis rotations.  [T5-141]
  1. [87]
    When Ms Harrison (from the First Aid Centre) was asked by the Regulator:

"Are you able to make any observation as to whether Mr Ghiyas Vand was somebody that was reticent or shy about reporting injuries, or was he a typical employee, or did he report more?"

Ms Harrison responded:

"To look at the amount of times he's come up and for what he's come up for - the symptoms - that would be regular for that particular area."  [T3-6]

  1. [88]
    There is little question that injuries generally are associated with this type of work.  The evidence from Ms Harrison is telling in that the frequency of complaints made by the Appellant were not abnormal for the particular area in which he was working.
  1. [89]
    Mr McGrath's evidence was that while he was aware of Government guidelines (unidentified) he said that JBS had not conducted any ergonomic testing of the type of work performed by its workers. 
  1. [90]
    The provision of a First Aid Centre and a Soft Tissue Centre at the workplace made it clear that injuries occurred at this workplace with reasonable frequency.  "Reasonable frequency" was clear from the evidence of the Regulator and Appellant witnesses and referenced throughout this decision.
  1. [91]
    The Regulator claimed that the Appellant's evidence had concentrated on providing individual examples based upon production records for a "finite period in order to attempt to demonstrate that the work could not possibly have been of sufficient force to cause injury to the Appellant".  The Regulator said what needed to be considered was that on particular days production might have been low and overtime may not have been undertaken.
  1. [92]
    Counsel for the Appellant said this approach failed to recognise a basic factor i.e. that the work was heavy, continuous and repetitive.
  1. [93]
    Mr McGrath had conceded that getting "aches and pains" was a part of the work involved [T5-90] and that the reason for the existence of the First Aid Centre and the Soft Tissue Centre was that workers commonly incurred these symptoms because of the work they were doing.  He said that injuries continued to occur notwithstanding JBS's rotation system.
  1. [94]
    Mr Gibbons agreed that the work undertaken in this industry was difficult work and workers did suffer pains and aches.  He had previously sustained a lower back injury when he had worked in the hide plant.  [T5-128]
  1. [95]
    Mr Handcock (Chiropractor from the Soft Tissue center) confirmed from his experience that working in abattoirs could produce musculoskeletal injuries to the neck or shoulders and that this was a common experience.  [T2-16]
  1. [96]
    The Appellant submitted that there had been ample evidence provided to the Commission to support the proposition that work in this environment was one "which inherently posed a risk of injury of the kind which was ultimately suffered by the Appellant."  [Appellant's submissions, point 144]
  1. [97]
    The Appellant believed that the work involved an element of attrition across time.  Rather than concentrating upon one particular incident on one particular day, the overall tenor or effect of the evidence must be put in proper context.

The System of Rotation

  1. [98]
    The hours of work and set breaks taken at the workplace are not in dispute.
  1. [99]
    Day shift work commenced at 6.00am and a 15 minute break occurred at 8.30am, a 30 minute break at 11.30am and then a 10 minute break at 1.50pm.  Work finished at 3.55pm.
  1. [100]
    If overtime or two hours was to be worked, there would be a break of 5 minutes between 3.55pm and 4pm.
  1. [101]
    Counsel for the Appellant raised two issues for consideration.  Firstly, whether the rotation system was regimented and recorded or whether workers were at liberty to choose what they wished to do.  The second issue relates to the impact upon employees of staff absences and "deficiencies in training on the ability to maintain the rotation system".
  1. [102]
    The Appellant says that the evidence showed that the roster system was not set and this was evidenced in Mr McGrath's response to this question from Counsel for the Regulator:

 "Mr O'Neill:  OK, Is there system of rotation of staff through the various roles in place of the hide plant during a day shift?

 Mr McGrath: Yes.  We do have but we - we move.  We don't have a set rotation system, no, but we move - we move guys around, you know, throughout the day, to give them - particularly if they're - we have experienced people, we move them around."

  1. [103]
    In Cross-Examination, Mr McGrath stated that the process of rotation was a matter of safety more than simply giving workers variety in their jobs [T5-73].  He agreed that a reasonable rotation system would involve the reduction of the forces involved to the body in performing the work.  [T5-73]
  1. [104]
    Mr McGrath agreed that a better rotation design would take into consideration whether one worker was going from one work station similar to that worked by the worker immediately prior and whether that be on a day to-day or hour by-hour basis.  Exhibit [6] (viz. JBS Manning Sheets), did not identify where a worker moved to following the first rotation.  [T5-81]
  1. [105]
    Through Mr McGrath, he said that JBS faced the challenge of whether they had sufficient staff who were competent at each task sufficient to enable them to implement a different rotation system.   To effect this change, employees would have to have some basic understanding of all of the roles in the plant. 
  1. [106]
    Mr McGrath said that on any day, 60 per cent of employees would be able to work in each section of the plant.  But factored into that was the inability to estimate how many employees might be away from work on that day.
  1. [107]
    The Appellant asserted that the above reinforced his evidence when he said that on multiple occasions he could work in the same area.
  1. [108]
    Mr McGrath agreed that the changing nature of staffing levels had an effect on the business and particularly so in the area of skill levels.  He said the loss of employees was largely with newer employees and that JBS had retained a core group of experienced workers since the Hide Plant had opened.
  1. [109]
    The Appellant identified the added complexity to this issue was the injured workers who had to be placed on light duties. When this occurred, this left other workers with less opportunity to perform some easier jobs during the course of a day's work.  Mr Gibbons agreed with that assessment.  [T5-126]
  1. [110]
    Mr Lual's evidence was that it was often his choice as to where he worked during the day dependent upon his level of competency.  He said, for example, that if he could, he would avoid the folding and packing table if he was feeling some pain.  He said that if a worker was experienced and competent in a particular area, it was likely that they would be asked to continue in that area.  He said that on typical day he would work on the fleshing machine more than once [T3-51].  He added that if a worker wished to work overtime it was not uncommon to return to the same station which had been occupied prior to the overtime shift [T3-56].   I have found Mr Lual to be an honest witness and I have accepted his evidence on this matter.
  1. [111]
    From the evidence regarding rotation, it appeared that JBS did not officially monitor the rotation of work being performed by a particular worker and that most uninjured workers performed the more difficult work.

Overtime

  1. [112]
    The Appellant had worked overtime during the period leading up to the appearance of his symptoms.  Documents produced show that this work occurred on 5, 9, 10, 11, 12, 15 and 16 June 2015.  On 16 June 2015, the Appellant reported his symptoms to the First Aid Centre in the morning. 
  1. [113]
    While Mr McGrath did not agree that the overtime worked could have any relevance to the Appellant's injury, Mr Gibbons agreed that the more work performed, the greater the chance of injury [T5-118].  The evidence from Mr Gibbons is accepted. 

 The Soccer Game

  1. [114]
    Reference had been made previously to the Appellant having played soccer on a day leading up to his alleged injury at work.  This reference was found in Dr Davarnia's medical notes of 9 July 2015 [Exhibit 10].  The Regulator said that the playing of soccer might have been related to the Appellant's injury.
  1. [115]
    However, when the evidence around that issue was eventually conveyed through the interpreter to the Commission, it is accepted that the Appellant was not playing soccer in the traditional sense.  The Appellant said he was the "goalie", but there was no normal enclosure where a goalie would stand (i.e. a goal box), but rather two sticks some metres apart and nothing else.  The Appellant said he did no more than move his legs to stop a ball going between those sticks, and there was no reaching for balls as that was not how this particular soccer game with friends occurred.  Having seen the Appellant physically describe this event, I have accepted that evidence.  It would be difficult to accept that there could be a correlation between that type of activity and the symptoms of which he had complained.

 Did the Appellant suffer a personal injury?

 Preamble 

  1. [116]
    The Regulator's claim that the Appellant was not a witness of credit was responded to by Counsel for the Appellant as follows:
  • It was conceded that the Appellant was not an ideal witness and that he was experiencing obvious physical pain whilst giving his evidence.
  • That the Appellant was very keen to defend his position but at times his recollection of specific events was fading as the events claimed had occurred approximately 18 months previously.
  • The type of work performed in the abattoir occurred within a dynamic work environment.
  • It has been accepted by both Parties that there were a multiplicity of variables.  These included, the weights of hides; the speed of the chain; the number of workers available and the placement of workers at any one particular time.
  • Contrary to the Regulator's views of the Appellant, Counsel for the Appellant contended that there was a certain amount of guesswork in the evidence of JBS witnesses.  An example was where Mr McGrath gave evidence that hides were individually weighed, but no records of that were produced in the hearing.  [T5-39]
  • The Appellant's evidence should be accepted as in many respects it was either completely or at least partially corroborated by documentary evidence or witness testimony.

The Appellant's Claims relating to Injury Symptoms

  1. [117]
    Counsel for the Appellant says that there was no evidence (either given orally or in documentary form) that showed that the Appellant had previously experienced symptoms in his cervical spine before commencing work with JBS.
  1. [118]
    The Appellant's evidence was that he first experienced symptoms between two and seven days before first raising those issues with his work colleagues and attending the First Aid section at the workplace at 4.58am on 16 June 2015.  [T2-3]
  1. [119]
    There was no acute event with the onset of the injury, and the claim related to symptoms that appeared incrementally over time.  Against that background, the Regulator's criticism that the Appellant could not properly identify the timing of his injury is misplaced.
  1. [120]
    Complaints about symptoms by the Appellant were corroborated in evidence given by co-workers Mr Bozorgmehr and Mr Lual.  Mr Lual recalled the Appellant advising him, on a couple of occasions, of neck symptoms while working at the table in the fleshing station.  [T3-34]
  1. [121]
    Mr Bozorgmehr's evidence was that the Appellant had spoken of his symptoms when working in the fleshing section [T3-75].  He said the Appellant had frequently complained of pain.  [T3-75]  The Appellant said these symptoms had been caused due to his working in the fleshing and folding areas and the symptoms complained of related to his neck and shoulder area.  [T3-74]
  1. [122]
    The Regulator queried Mr Bozorgmehr's evidence as it related to the time period in which he had heard these complaints.  Reference was made to the Transcript where the following interchange occurred:
  1. [123]
    Counsel for the Appellant asked Mr Bozorgmehr if he had recalled the date upon which the Appellant had advised him of his symptoms and he responded he didn't know the date.  He was then asked:

 "Mr Munro:  No.  Well, was it in 2015?

 Mr Bozorgmehr:  Yeah.  It was in 2015.

 Mr Munro:  Do you remember the month?

 Mr Bozorgmehr:  Not sure but I think maybe June or March - yeah.  Maybe June, March.  Yeah

 Mr Munro:  Alright.  See …?

 Mr Bozorgmehr:  I'm not sure about that.

Mr Munro:  You said June or March.  Is one making - is one being recalled more accurately               than the other?  Is it March or is it June?

Mr Bozorgmehr:  I'm thinking - I'm thinking is was maybe March." [T3-74]

  1. [124]
    From that evidence, I have accepted that the witness had heard the Appellant complain of painful symptoms, but it is accepted that his memory of the actual date is unreliable.
  1. [125]
    I have accepted Mr Lual's evidence that he was told of the symptoms being suffered by the Appellant around the time of his reporting of his injury to the First Aid Centre. 

Medical and Other Supporting Evidence relating to "Injury"

  1. [126]
    The relevant opinions contained within the various medical documents and reports included:

The First Aid Centre at JBS

  • The "Pre-employment medical" (a document of JBS) completed by the Appellant on 6 October 2013 shows that he did not record any negative health condition (under the heading "Specific Medical History" which related to current or previous matters) or negative behaviours (e.g. Psychological/behavioural counselling or alcohol/drug rehabilitation) on his part.  [Exhibit 1]
  • Ms Harrison's evidence was that the Appellant had not referenced any prior injury to his neck or shoulder prior to 16 June.
  • Ms Harrison said that her notes from that meeting show that the Appellant claimed to have been suffering from soreness in his shoulders [T3-3].  Also noted was that the Appellant said that the hides he had been handling on Mondays were very heavy.
  • The Appellant told Ms Harrison that his symptoms had occurred the day before.
  • On 18 June 2015 the Appellant again attended the First Aid Centre where the record shows that he presented a Medical Certificate saying that he had a sore neck.
  • Reference was made to an Injury incident Investigation Form signed by Ms Harrison which, inter alia, states:
  • That the injury observed by her was identified as "Soreness/tenderness to both shoulders and neck";
  • That the Appellant "… was booked into the Soft Tissue Clinic after he had the following day off (17 June 2015) due to sore neck";
  • Also noted on the form was that "Vali states that every Monday there are heavy hides so he gets a bit sore"; and
  • Ms Harrison responded to the question on the form which was "Do you believe the injury is consistent with the description stated in Item 9 taking into consideration the time the incident is stated to have occurred?", by filling out "Yes" and that she "… had no reason to doubt the incident as stated had occurred".
  1. [127]
    In Cross-Examination, Ms Harrison was referred to entries in her records immediately prior to the Appellant's s visit to the Centre on 16 June 2015.  Reference was made to entries on 2, 9, 10 and 11 June 2015, where Ms Harrison agreed that the Appellant had not referred to neck or shoulder pain during those visits.  The records show that the visits related to incidents such as "minor scratches".
  1. [128]
    Mr Harrison confirmed that on 16 June 2015, the Appellant had not referred to neck pain but had done so on 18 June 2015 [T3-8].  Ms Harrison said that she had not heard other workers complain specifically about heavier hides being in the plant on a Monday. 
  1. [129]
    Ms Harrison made it clear that the Appellant regularly attended the First Aid Centre and in her view that was not abnormal for one performing that type of work.

Dr Davarnia, General Practitioner

  1. [130]
    Dr Davarnia, who practices as a General Practitioner at the Redbank Plaza Medical Centre, saw the Appellant on 1 March 2015.  The Appellant advised him that he was experiencing "tenderness over shoulders and thoracic spine".  The Medical records also refer to the Appellant having painful range of movement.  [Exhibit 10]
  1. [131]
    On 17 June 2015, at a further consultation with Dr Davarnia, the medical notes refer to "Left sided neck pain yesterday.  No radiculopathy".
  1. [132]
    Dr Davarnia observed, at that time, that the symptoms complained of by the Appellant were more akin to simple muscle strain.
  1. [133]
    On 6 July 2015, the Appellant again saw Dr Davarnia and the medical notes state "left sided neck pain a week ago after massage pain was too bad, no radiculopathy".
  1. [134]
    On 9 July 2015, the Appellant saw Dr Davarnia and the medical records show that "neck pain wasn't too bad 2 days ago, played football on Tuesday and returned to work on Wednesday, pain started again on left side of neck, prefers to have two days off, no radiculopathy". 
  1. [135]
    After the above visits, Dr Davarnia issued non-workers' compensation medical certificates.
  1. [136]
    On 13 July 2015, the Appellant consulted Dr Davarnia and the medical records show "neck pain and pain radiates to left shoulder, he worked 8 hours on 4/07/15 and since then neck pain is getting worse, doesn't want to claim WC".
  1. [137]
    On 14 July 2015, Dr Davarnia issued a non-workers' compensation medical certificate stating "Didn't attend work, neck pain + left radiculopathy to left shoulder.  Has an app tomorrow for MRI".
  1. [138]
    On 16 July 2015, the medical notes of Dr Davarnia state:

 "Spoke to his employer and he advised him not to return to work until he is completely fit.  He asked me to start him on WC as he had no PH of any neck pain and since a month ago pain started getting worse due to lifting/pulling/pushing and folding heavy cattle hides."

  1. [139]
    The MRI result was "left sided focal disc protrusion".  The Appellant was referred to a Physiotherapist and a consultation to a Neurosurgeon was advised.  Initially the Appellant and the employer agreed to manage the injury "in-house".
  1. [140]
    On 19 July 2015, Dr Davarnia noted that:

 "Employer has changed his mind.  Both agreed to stop WorkCover.  Asked me to refer him to a public Hospital for physio and refused referral to neurosurgeon at this stage."

  1. [141]
    Dr Davarnia provided a letter to the Appellant to attend the Ipswich General Hospital for physiotherapy.
  1. [142]
    On 22 July 2015, Lyrica dosage was increased because of the Appellant's neck pain.
  1. [143]
    On 5 August 2015 the Appellant saw Dr Walker (Neurosurgeon) and he recommended that he start a Workers' Compensation claim.  The Appellant continued to see a Physiotherapist.
  1. [144]
    Dr Davarnia issued a Workers' Compensation Medical Certificate dated 5 August 2015 [Exhibit 13], and recorded a diagnosis "C5/6 disc protrusion" and indicated the injury was consistent with the Appellant's stated cause:

 "Left sided neck pain and left radiculopathy to left shoulder due to frequent folding, pulling, pushing, lifting heavy cattle hides and turning his neck towards the machine at work."

 Dr David Walker, Neurosurgeon

  1. [145]
    Dr Walker saw the Appellant once as a treating Neurosurgeon.  The Appellant had been referred to him by his General Practitioner.
  1. [146]
    Dr Walker was requested by JBS to provide a medical Report relating to the Appellant.  This report was dated 17 August 2015 [Exhibit 3].
  1. [147]
    As earlier stated, Dr Walker concluded:

 "… that the C5/6 left-sided focal disc protrusion demonstrated on the MRI scan was consistent with the clinical picture which he described as having occurred in the context of the Appellant's meat processing factory work when he was doing heavy lifting and twisting."

  1. [148]
    However, in preparation for this Hearing, Dr Walker was forwarded material [Exhibit 5] in September 2016 and he was asked to review those documents which included his own report, that of Dr Coroneos (dated 27 August 2015), three reports from Dr Gillett and two from Dr Ludcke.  Provided also was the video footage and a number of health records pertaining to the Appellant.
  1. [149]
    Having perused that material, Dr Walker said his initial diagnosis had remained unaltered.  He opined that there was a causal link between the Appellant's work and his cervical spine injury.
  1. [150]
    The Regulator had raised an objection to the evidence of Dr Walker on the basis that when he first diagnosed the Appellant's condition, he did not have sufficient material to enable him to make that finding.  This view is countered by the Appellant who said that Dr Walker's first report showed some understanding of the work being performed by the Appellant and, before the production of his second report, he had the medical reports of Dr Coroneos and Dr Gillett and the information contained in paragraph [148].
  1. [151]
    The Appellant says that there was no prohibition placed upon the Regulator in Cross‑Examining Dr Walker regarding his opinions.  The Appellant said that if Exhibits [3] (Dr Walker's Report) and Exhibit [4] (the file note from Turner Freeman's telephone conference with Dr Waker) were to be criticized, the same criticism should not be levelled at Dr Walker's oral evidence which was clearly provided in the hearing.  I have accepted that submission from the Appellant.
  1. [152]
    In Cross-Examination by the Regulator, Dr Walker agreed that the Appellant had advised him of his work involving heavy lifting and twisting, the weights involved and the type of body positions he was required to undertake while performing his work duties.  When questioned as to whether that was the essence of the material before him when forming his view, Dr Walker responded:

  "Well, and also of importance is that how it relates to my experience in what kind of problems can cause this cervical disc pathology.  So I think I had to put that in context so it's not just the history that I took and recorded.  It's just my knowledge of what kind of events, or kind of physical events could have caused the sort of pathology that I thought he had."  [T1-85]

  1. [153]
    Dr Walker confirmed that the Appellant had advised him that he had experienced worsening symptoms over time and that this had occurred about six weeks prior to seeing him.  [T1-85]
  1. [154]
    When considering a question put by the Regulator as to whether there had been signs of degeneration in the C5/6 and 7 and considering that within the context of Dr Coroneos' Report, Dr Walker responded:

 "No, I agree with it.  In fact, both opinions are reasonable, and they can co-exist, right, so - but in my view is that the onset of symptoms came on, to me, described after work as and/or you know, a period of work and therefore it was reasonable to, you know, attribute his symptoms to the changes.  Now, there's no doubt on the imaging he had some pre-existing wear and tear which is normal for a man of his age, as everyone."

 …

 "But he has - but I, you know, in the context of developing pain through the shoulder and arm, I attributed, at least, some of the changes to a more acute change not just pre-existing degenerative change so I think there's a slight just variation on how - interpretation and that was my interpretation of it, and Dr Coroneos had a different one".  [T1-86]

  1. [155]
    When questioned by the Regulator as to previously asymptomatic degenerative change becoming symptomatic because of some sort of "acute event", Dr Walker responded:

 "I wouldn't necessarily agree with that.  It could be a one-off event.  It could be a build up over a period of time."  [T1-87]

  1. [156]
    The Regulator referred to one part of evidence where it says that Dr Walker appeared to be equivocal in his response to the type of work performed by the Appellant:

"Mr O'Neill:  Alright.  You said that you've had the benefit of perusing the video evidence to date?

Dr Walker: Yes.

Mr O'Neill:  Can I put to you that the video evidence that has been shown to the Commission seems to indicate a distinct lack of what I would describe as being heavy work?

Dr Walker:  Well, I - that's your - I guess, I don't know.  I don't know how I'd describe it.  I mean.  I - it's certainly physical work.  I mean the stuff I saw him putting, you know, hides into a machine and pulling them out of a machine, I wouldn't say that's light work.  I mean, but I'm not an occupational physical.  I'll leave - you can have your own opinion, Mr O'Neill about that, I mean, I'm not disagreeing with you though."

  1. [157]
    In my view, on that point, the clear sense of Dr Walker's evidence was that the work being performed by the Appellant was physical work and he would not have described it as light work.  The final commentary does not fit with the views clearly expressed and I have not viewed it as detracting from the general thrust of Dr Walker's evidence.  In my view, it was more of an unfortunate mistake on Dr Walker's part.
  1. [158]
    Dr Walker confirmed that the Appellant had advised him that he was experiencing pain radiating down into his arm.  [T1-88]
  1. [159]
    When advised of commentary found in Dr Coroneos' Reports where he had stated that "the experience of neck and left shoulder pain during the course of his work does not constitute an injury", Dr Walker responded:

 "Well, in isolation, that statement is obviously correct, isn't it, but I mean, for me, the essence of it to me, the man reported pain onset after what was described to me as a work incident, or incidents over a period of time, and I thought the pain in his left arm, albeit with normal power and reflexes, so that there's no overt nerve dysfunction, that they were all - they were still consistent with that diagnosis of a C5/6 disc - focal disc protrusion.  So, yes I agree with Dr Coroneos' statements there but, I think, actually of relevance was the initial report to him compared to mine that the man described to me arm pain and although it wasn't right down the arm, it was still arm pain not just shoulder pain which was described to him by - to Dr Coroneos by the patient.  So I think there was a bit of difference in the history there and that probably, you know, slightly skewed Dr Coroneos' view away from a work injury."

  1. [160]
    In summarising his opinion, Dr Walker reaffirmed his opinion that based upon the history the Appellant provided to him, his arm pain and the results of the MRI, this all provided a reasonable explanation of his symptoms and that on the balance of probabilities he believed that there was a connection between the Appellant's injury and his work.  [T1-91]
  1. [161]
    Dr Walker did not believe that the actual weight of the hides handled by the Appellant was a critical factor for consideration, and said that even handling light weights could be consistent with an injury.  He said that the type of work he saw performed on the videos was consistent with the injury.  He said that a patient completing a pain diagram, as had occurred when the Appellant's visited Dr Coroneos, presented only a starting point and was not a solid basis upon which to rely.  He agreed that this was more so in the case of the Appellant who had limited English and was reliant upon an interpreter.  [T1-93]

Dr Justin Ludcke

InterSafe Report of Dr Ludcke dated 27 November 2015

  1. [162]
    Dr Ludcke, in the formation of his report, referenced a number of Queensland Government documents which included:
  • Code of Practice - Manual Handling;
  • The guide to Manual Handling in the Retail and Wholesale Industry;
  • The Advisory Standard for Work Involving Force, Repetition and Awkward Postures; and
  • The Guidance Note for the Prevention of Occupational Overuse Syndrome in the Manufacturing Industry

 [All of these documents are produced by either the Department of Employment, Vocational Education, Training and Industrial Relations (QLD); the Division of Workplace Health & Safety (QLD) or Australian Government publications.]

  1. [163]
    The Manual Tasks Advisory Standard Checklist - Working Postures (Workplace Health & Safety, Manual Tasks Advisory Standard 2000, Department of Employment Training and Industrial Relations, February 2000) at Table 6 provides checklists to demonstrate the risk factors associated with particular forms of work:
  • Table 5 - Nature of Loads makes reference, amongst other things to dealing with loads which are difficult to grasp (e.g. is it smooth, slippery, greasy, wet?  Is the load an awkward shape?).
  • Table 6 - Manual Tasks Advisory Standard Checklist - Working Postures makes reference to whether the worker's back is bent forward, twisted or a combination of bending and twisting;  whether the worker's head and neck is bent forward, backwards sideways or twisted; whether arms and shoulders are extended above shoulder height, with elbows out to the side, or beyond forearm length in front of the body; whether the worker's hands and fingers are used in a pinch grip and whether a worker is standing continuously without walking.
  • Table 7 - Manual Tasks Advisory Standard Checklist - Repetition and Duration makes reference to whether the work cycle is repeated every 30 seconds or less; does the worker apply force repetitively or continuously; whether repetitive tasks performed by a worker in a working day have similar physical demands; whether it is necessary for highly repetitive work to be done continuously for more than 60 minutes; whether any of the postures sustained for more than a total of 2 hours involve working with the back bent forward; overhead work; working with arms out from the both with elbows at or above mid-trunk height; are long shifts or regular overtime worked where jobs involve repetitive and forceful work involving the hand/arm and whether heavy load handling (lifting, carrying, pushing/pulling) occurs.
  1. [164]
    In forming his opinion in this Report, Dr Ludcke had been provided with copies of medical reports from Dr Walker dated 17 August 2015; Dr Michael Coroneos dated 27 August 2015; the Appellant's history; JBS Australia Claim File dated 18 September 2015; and videos showing the work tasks conducted at JBS Dinmore.
  1. [165]
    The information provided to Dr Ludcke from the Appellant was mostly the same as given in his evidence in this Hearing.  However, there was a question raised by the Regulator concerning the number of days the Appellant had been absent from work over the two years.  This is considered hereunder in paragraphs [189] to [193].
  1. [166]
    Against those claims, the Appellant said that matters involving an analysis of the type of work performed and the ergonomic requirements of that work are matters where expert evidence is required.  This view is similar to that expressed by Dr Gillett.  The Appellant believed that Dr Ludcke's qualifications ensured that he was eminently qualified to assist the Commission in its determinations.
  1. [167]
    Dr Ludcke then considered the information available under the following headings:

 Neck Injuries in lifting

  1. [168]
    Dr Ludcke said that a significant number of the long term neck problems are associated with disc failure and with lifting.
  1. [169]
    From statistical data provided, Dr Ludcke said that the most common mechanism of injury is body stressing (or manual handling).  This accounts for 31per cent of workplace injuries which often results in musculoskeletal injury.
  1. [170]
    The Appellant's Incident Report was very detailed and provided the following claims.  This is not an exhaustive account of the claims (which can be found in Exhibit [8]).
  1. [171]
    The InterSafe Report of Dr Justin Ludcke dated 12 August 2016,  Dr Ludcke considered:

The Weight of Hides

  1. [172]
    Dr Ludcke, from the information provided to him, considered the effect of a hide, from JBS evidence, with a maximum weight of 150kg and an average weight of 40kg.  (The Appellant believed that the maximum weight could be 150kg and the average weight was between 50 to 60kg.)
  1. [173]
    Dr Ludcke conceded that he had not been able to accurately take measurements of the weights being lifted, however, in his final report, he confirmed that even if a lower average hide was considered and the heaviest of hides was less frequent (as per the Regulator's evidence) that would not alter his original Report.  Dr Walker's view was similar to this extent i.e. the actual weight of the hides was not a critical factor for consideration and believed that even if handling light weights could be consistent with an injury.
  1. [174]
    Based upon a Summary provided in the JBS Dinmore Hide Plant Daily Report, it confirmed that a work rate of 300 to 350 hides per hour for fleshing occurred and 300 to 500 hides per hour for packing.
  1. [175]
    Dr Ludcke stated that he had conducted many assessments based upon discussions he had with people while not seeing any videos of the work they had performed and without seeing the actual workplace.  In the circumstances of this case, he had seen a video of the type of work performed by the Appellant albeit that it was only in total a 140 second video. 
  1. [176]
    The video was sufficient for Dr Ludcke to understand the type of work performed and the Appellant noted that no witnesses claimed that the video did not properly identify the type and manner of work performed at the Hide Plant JBS.
  1. [177]
    Regarding expert evidence, the Regulator referred to Makita (Australia) Pty Ltd v Sprowles[1], wherein Heydon JA held that:

"The basal principle is that what an expert gives is an opinion based on facts.  Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.  If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material:  see generally Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846.  One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facto proved".

  1. [178]
    The law does not require that all of the facts contained within Dr Ludcke's reports be proved with absolute precision to give those reports any value. 
  1. [179]
    The fact that repetitive work occurred at the workplace was evident from the video and from the description of witnesses.  The rapidity within which this work occurred was a matter of contention between the Parties.  Counsel for the Appellant said that based on Video 1-705 Exhibit [20], if the rate continued as it had on the video, then a production rate of 5.45 hides per minutes occurs.  Dr Ludcke had anticipated a rate of 5.83 hides per minute.  The difference in the rates were minimal.
  1. [180]
    Dr Ludcke also said that because of lost production time on occasions, the average rates at which workers were moving through production would have to be at a higher rate than that recorded by the Regulator.
  1. [181]
    Dr Ludcke conceded that he had not been able to accurately take measurements of the weights being lifted.  However, in his final report, he confirmed that even if a lower average hide was considered and the heaviest of hides was less frequent (as per the Regulator evidence) that would not alter his original Report.             
  1. [182]
    The matter of perceived exertion required on the part of workers was considered by Dr Ludcke within the context of Perceived Exertion Tables, which had been widely used as a line of enquiry related to physiological assessment.  Counsel for the Appellant said there had been consistency between witnesses that the level of exertion for a worker was between 5 or 6 out of 10.  When that level was spread out over a day of repetitive work, the Appellant said that created a dimension which required consideration.  The Appellant said that concession had been made by both Mr McGrath and Mr Gibbons.
  1. [183]
    Mistakes had been made by the Appellant in his reporting to Dr Ludcke the amount and type of work he had performed on the dates of 13 and 14 June 2015.  One element of difficulty was that the Hide Plant Manning Sheet was unavailable for 13 June 2015 and it may have been the case that the Appellant had been working on fleshing the most of the day.  Counsel for the Appellant rightly says that the Regulator is unable to disprove this contention. 
  1. [184]
    Further, the evidence of Mr McGrath was that he had accepted that the work at various work stations had characteristics which were listed in the checklists within the Advisory Standard and this has been identified under the various work section headings.
  1. [185]
    The evidence before the Commission, which is largely accepted by Regulator witnesses, shows that work performed in most of the work sections at JBS had the following common attributes:
  • Workers' backs being bent performing certain duties;
  • Workers' performing work where the head or neck was bent forward and backwards and twisted sideways;
  • Workers' arms being in front of them with elbows out to the side of the body;
  • Repetition of work;
  • Repetitive abduction of the shoulders;
  • Standing in the one spot on occasions for a long period of time continuously without walking;
  • Having to grasp hides which were smooth, slippery, greasy or wet;
  • On many occasions, when a trolley was not provided in the packing area, workers having to carry with another worker the hide for packing; and
  • Exertion levels (the rate of which was conceded by all witnesses) which varied between a rate of around 5 out of 10, to 8 out of 10.
  1. [186]
    In listing the above, it is noted that not every job in the hide plant attracted this level of difficulty.  However, while there were easier jobs, those jobs were primarily allocated to workers with injuries and not available to those without.
  1. [187]
    The views of Dr Ludcke must also be considered within the strategies that JBS had adopted for the prevention of injury within the hide plant.  Mr McGrath said a major feature of these strategies utilized at this plant for the prevention of injury related to its rotation system.  While Mr McGrath said there was no set rotation system in place, it was the intent to move workers around the plant during the day for the purposed of reducing the forces involved to the body in the performance of work.
  1. [188]
    In all, I have accepted Dr Ludcke's evidence to the extent that from the type of work performed by the Appellant "musculoskeletal injuries are predictable outcomes from manual handling tasks involving forceful and repetitive exertion for long periods of time and a brief analysis of the tasks demonstrated the presence of recognized mechanisms or risk factors associated with musculoskeletal injuries."

 Days taken off by the Appellant

  1. [189]
    The Appellant had provided his history to Dr Ludcke utilising the services of a non‑registered interpreter.  The Regulator referred to the history given to Dr Ludcke by the Appellant where he said he had only about ten days off in the last two years.  The Regulator said that, in fact, the Appellant had about 60 days off work during the period from 19 October 2014 to 16 June 2015.  Dr Ludcke's records report, inter alia, the Appellant's history as follows:

 "In the last 12 months, I have worked a lot of extra days, being on Saturdays and Sundays.   I always work extra days when they are offered.  We are paid more for extra days than days in our normal shift.  I some time cleaning of Sundays [sic].  I could work 80 extra days at least a year or more.  I have had only about 10 days off in the last 2 years.  I even worked in Holidays and have a special key to access the hide room."

  1. [190]
    Given that the Appellant's information was provided to Dr Ludcke by his friend, I am not prepared to accept that he has told an "outright lie" to Dr Ludcke as suggested by the Regulator.  All of the remaining history provided to Dr Ludcke by the Appellant has been replicated in the evidence of all other witnesses to varying degrees.  Further, I have not found the Appellant to be dishonest.
  1. [191]
    Upon closer perusal of Exhibit [6] at Tab 4E, I accept that the Appellant was absent from work on approximately 60 days over this period, and it is clear that the records show that for most of this time this was the result of injury or illness.  Medical Certificates were provided on occasions and on other occasions the Appellant was placed on special or lighter duties.  Significantly, none of these injuries related to symptoms concerning his neck or his shoulder.
  1. [192]
    Neither the Appellant nor Dr Ludcke were questioned by the Regulator about these days absent from work and whether in any way it discredited the Reports given by Dr Ludcke or in fact the Appellant's evidence.  As well, no other evidence was provided identifying the days taken off by other employees, save for Regulator witnesses' comments concerning ongoing problems associated with absenteeism from work through injury and the large turnover of employees.
  1. [193]
    Dr Ludcke, in my view, provided Reports about the type of injuries which might occur in a workplace under certain working conditions.  I have not accepted that his Reports should be dismissed because of the error in the days worked by the Appellant.  Dr Ludcke was clear that he had not expressed an opinion that a particular work event or a particular work action had caused any of the Appellant's work symptoms.  [T2-48]

 Dr Greg Gillett, Orthopaedic Surgeon

  1. [194]
    Dr Gillett provided three reports: 9 October 2015 (Exhibit 15A); 7 December 2015 (Exhibit 15B) and 30 August 2016 (Exhibit 15C).

 Report of 9 October 2015, Exhibit [15A]

  1. [195]
    In the course of his orthopaedic examination of the Appellant, Dr Gillett said he had reviewed material available at the time provided by the Appellant's solicitors together with x-rays in the possession of the Appellant.
  1. [196]
    The history provided by the Appellant was "that he had severe pain in the region of his neck with some pain to the left trapezial area which he relates to work as a meat factory worker".
  1. [197]
    The Appellant had claimed that he performed heavy work which involved working in the hide part of the plant where he was lifting, folding, and pulling hides and on 16 June 2015 he developed significant pain  He claimed that the pain had commenced a week or so beforehand and had increased.  On 16 June 2015 the Appellant advised that he had performed 8 hours of fleshing work.  That evening he encountered severe pain.  He advised Dr Gillett that he usually worked on a rotational basis and not necessarily on the one job.
  1. [198]
    The Appellant had seen his General Practitioner who had advised that he take Panadeine Forte which was taking three to five times per day.
  1. [199]
    Dr Gillett was aware that the Appellant had seen Dr Walker where various forms of treatment had been discussed.  The Appellant was advised to perform only light duties at the workplace but he was unable to continue as his pain had persisted.
  1. [200]
    The Appellant had denied any previous problems with his neck prior to the week before 16 July 2105.
  1. [201]
    The Appellant had described to Dr Gillett the type of heavy work he had performed.  This involved the process of dealing with the hides, fleshing, trimming and then folding the hides.  He had advised Dr Gillett that hides vary in weight from a few kilograms up to about 50kg.
  1. [202]
    Dr Gillett had considered the Report of Dr Coroneos of 27 August 2015.  He was aware that Dr Coroneos noted that there was a C5/6 broad based disc osteophytic complex formation with the disc osteophytic complex at C5/6 more left side but no focal disc herniation was noted.
  1. [203]
    Dr Coroneos said the Appellant had not recalled a specific incident occurring to him.  He stated:

 "I cannot diagnose a work related condition.  He reported experiencing neck and left shoulder pain during the course of his work.  This does not constitute an injury."

  1. [204]
    In forming his opinion, De Gillett stated

 "The nature of the pathology the claimant suffers at this time is a C5/6 disc protrusion in a spine which as [sic. is] asymptomatic before the protrusion but it shows evidence of pre-existing degenerative changes."

  1. [205]
    Concerning causation, Dr Gillett said that he was unable to determine any specific work practice that has caused the Appellant's discal derangement based on the information before him.  He stated that the language barrier played a part in this.  He believed that an analysis of the Appellant's work practice should be considered.
  1. [206]
    He stated that it was possible that the lifting of the hides could cause discal pathology, but thought that if that was the case one would expect an acute event related to the forces applied rather than a cumulative effort.  He further stated that:

 "discal pathology and protrusion can occur without specific event as part of the ageing process and it is noted that he does have degeneration at the C5/6 level."

  1. [207]
    Dr Gillett could not find one clear work event that has caused the problem other than the Appellant being at work but the heavy nature of the work required further investigation.

Report of 7 December 2015, Exhibit [15B]

  1. [208]
    Since the previous report, Dr Gillett had viewed the report from Dr Ludcke of 2 November 2015.
  1. [209]
    Dr Gillett made reference to data which identified the weights of the various hides and also received the videos and further documentation.
  1. [210]
    He noted the dates provided by the Appellant as to his work hours on 13 and 14 June 2015.  He stated that "because of lack of rotators on 13 June 2015, he spent 8 hours fleshing without rotation and made the soreness of the neck worse.  He said that the Appellant advised that on Monday, 15 June 2015 the hides seemed to be heavier".
  1. [211]
    Of particular note to him was a statement from Dr Ludcke that "a brief analysis of the tasks demonstrated the presence of recognized mechanisms or risk factors associated with musculoskeletal injuries".
  1. [212]
    Dr Gillett added that "based on this information it is my view that work would be regarded as a significant contributing factor to his neck pathology.  The InterSafe Report refers to a significant issues associated with the risk of injury involving the neck with the repetitious nature of the tasks and the awkward positioning associated with the tasks and the weights involved".

Report of 30 August 2016, Exhibit [15C]

  1. [213]
    At this time, Dr Gillett said that he had been provided with further information and videos.  In regard to the videos, he stated that:

 "My review of the videos is that the work practices seen on these videos would seem not to be significant in relation to causing a discal injury involving the cervical spine.  These are short videos of each of the work practices."

  1. [214]
    He reiterated that the more detailed opinion of Dr Ludcke indicated issues associated with force and repetition.  He said he had given weight to Dr Ludcke's opinion in relation to the causation of the injury detailed in previous reports. 
  1. [215]
    The Regulator points to the clear change in Dr Gillett's opinion over time as represented in his three Reports.  However, I have not found that detrimental to the ultimate opinion he proffered.  This has been explained by the provision of further information to Dr Gillett. 
  1. [216]
    Dr Gillett made it clear in his initial report that further investigation and information was required in order to consider the Appellant's claim that the work he performed was of a heavy nature.
  1. [217]
    Counsel for the Appellant says that the "further investigation" sought, came through the evidence of Dr Ludcke.
  1. [218]
    Taken into account by Dr Gillett was Dr Ludcke's views upon significant issues associated with risk of injury to one's neck because of the repetitious nature of the work performed and "the awkward positioning associated with the tasks and the weights involved" (Appellant's submissions, point 179).
  1. [219]
    After later viewing the videos of the type of work performed at JBS, Dr Gillett did not alter his views that on the balance of probabilities, the discal pathology was related in part to the aging process and in part to the work practices based upon the opinions of Dr Ludcke.  In the alternative view, he indicated that the discal pathology, if present prior to the work practices, would have been aggravated by the work activities.  (Appellant's submissions, point 179).  He stated that initially when viewing the videos he did not think there was an enormous amount of force being applied, but when he considered Dr Ludcke's report and became aware of his analysis which had taken into account weights, repetition he accepted.
  1. [220]
    Having considered Dr Ludcke's Report, Dr Gillett responded to the following question put by Counsel for the Appellant:

 "Mr Munro:  Yes.  And repetition and duration have a part to play; you agree with               that?

 Dr Gillett:  Yes.  There's a clear link to muscle fatiguing with repetition and continuous work which then a body part loses the protectiveness of the muscles surrounding that body part.  So muscle fatigue which supports say, for example, a neck and then the neck is more vulnerable to absorbing forces and then pathology can occur.  So repetition, frequency and amount of force or weights are all factors."  [T2-112 to 113]

  1. [221]
    Dr Gillett said he accepted Dr Coroneos' opinion concerning degeneration generally, but added "I thought there was an asymmetric bulge to - asymmetric protrusion to the left side and that is also the opinion of the radiologist who looked at the MRI".  In that regard, Dr Gillett disagreed with Dr Coroneos.  [T2-108]
  1. [222]
    Dr Gillett was asked by Counsel for the Appellant "At your consultation with Mr Ghiyas Vand on 9 October 2015, did he report to any radiation of pain or symptoms from the shoulder down into the upper arm to the elbow?", to which Dr Gillett responded that he had done so and that he had recorded this under Current Symptoms in his notes.  [T2-110]
  1. [223]
    I have accepted Dr Gillett's opinion that the Appellant's work was a "significant contributing factor to his neck pathology".

 Dr Michael Coroneos, Consultant Neurosurgeon

  1. [224]
    Dr Coroneos provided two Medical Reports.  The first was dated 27 August 2015 (Exhibit 17B) and second dated 7 October 2016 (Exhibit 18C).

 The Report of 27 August 2015, Exhibit [17B]

  1. [225]
    In the preparation of his first Report, Dr Coroneos had a letter of instruction and documentation from JBS Workers' Compensation Department dated 10 August 2015 (Exhibit 17A).
  1. [226]
    The Medical History provided to Dr Coroneos by the Appellant was that he had no prior medical or surgical history and specifically that he had not had any previous spinal symptoms, complaints or injuries.
  1. [227]
    Concerning his "Presenting History", Dr Coroneos reported that:

 "Mr Ghiyasvand told me that on 16.06.2015 he experienced left-sided trapezius region and left shoulder pain during the course of his work duties.  He explained to me that his work is quite heavy.  He did not report a specific incident or event but told me that he began experiencing left-sided neck and left-sided anterior shoulder pain during the course of the day.  He reported no upper or lower-limb symptoms.  He reported no arm pain.  He reported no headaches, nausea or vomiting.  He reported no bladder or bowel symptoms.  He reported no visual, hearing, smell or taste symptoms.  He reported no fevers or rashes."  [Exhibit 17B]

  1. [228]
    The Appellant said he had worked a further seven to ten days and noticed increased pain in the neck, the left trapezius area and in the anterior left shoulder.  He also complained of numbness in his hands, forearms or arms.
  1. [229]
    Dr Coroneos had viewed the Workers' Compensation Certificate of Dr Davarnia outlining the type of pain as described to Dr Coroneos by the Appellant.  Dr Davarnia had diagnosed a "left radiculopathy to left shoulder" with which Dr Coroneos disagreed.  He stated that there was no evidence of radiculopathy as his neurological examinations of the upper limbs were normal.  He saw no wasting, but normal reflexes.
  1. [230]
    Dr Coroneos stated that:

 "I also note that Mr Ghiyasvand does not report any arm pain whatsoever, with no pain in his arm, forearm and/or scapula and accordingly there is no evidence of brachial neuralgia or radiculopathy under these circumstances." 

  1. [231]
    The changes noted by Dr Coroneos on the imaging were those of cervical spondylosis or degeneration which was seen in 50 per cent of adults. 
  1. [232]
    In considering Dr Walker's Report, Dr Coroneos noted that the Appellant must have advised Dr Walker that he had left shoulder and arm pain.  The arm pain had not been mentioned to Dr Coroneos by the Appellant.  Nor had there been any mention by the Appellant to him of forearm or hand pain and noted that the symptom diagram Medilaw registration form reported no pain in his left arm, left forearm, left hand, right arm, right forearm or right hand.  Upon the question of the pain diagram, Dr Walker said that a pain diagram is only a starting point for consideration of a patient's history and it was not a solid basis on which to proceed and especially so, when information provided by the patient was being translated through an interpreter.
  1. [233]
    Dr Cornoneos disagreed with Dr Walker's diagnosis stating that there was no evidence of left C6 distribution pain and there were no neurological signs in the distribution of the left C6 nerve root.  Dr Coroneos stated "the changes are those of cervical spondylosis which are ubiquitous in the fifth and sixth decades of adult life and all radiological changes must be carefully clinically correlated".  [Exhibit17, page 6]
  1. [234]
    Asked to comment upon his diagnosis of work related conditions, Dr Coroneos stated:

 "I cannot diagnose a work related condition.  He reported experiencing neck and left shoulder pain during the course of his work. This does not constitute an injury.  The reporting of neck and shoulder pain in the absence of any brachial neuralgia, radiculopathy or neurological deficit does not constitute an injury or work related condition.  The reporting of numbness in the tips of the second to fifth fingers of both hands does not constitute a work related injury.   It is not due to any changes on MR of the cervical spine.  The left C5/6 asymmetric disc bulging is part of cervical spondylotic degeneration.  It is not causing any neurological symptoms or signs."  [Exhibit 17]            

  1. [235]
    Dr Coroneos believed that the Appellant could return to work and that there was no indication for surgery.

 Supplementary Report of 7 October 2016, Exhibit [18C]

  1. [236]
    At the time of producing his second report, Dr Coroneos had been provided with three Reports from Dr Gillett, Dr Ludcke's two Reports and the video footage.  It should be noted that radiculopathy i.e. arm pain, was reported by the Appellant to Doctors Davarnia, Walker and Gillett.
  1. [237]
    Dr Coroneos reiterated his opinions from his first Report, adding "Clinicians can make different findings and this is not uncommon and histories given by patients/claimants can be different".
  1. [238]
    Dr Coroneos again referred to the symptom diagram completed by the Appellant specifically in respect to the left trapezius region symptoms with annotation of numbness of the tips of the second to fifth fingers on the symptom diagram.  He stated: 

 "I would advise the reader that this distribution of symptoms is not in a left C6 distribution in contrast to the assessment of Dr David Walker with due respect.  The C6 nerve distribution is different.  I refer the reader to page 377 of AMA5 Guides to the Assessment of Permanent Impairment, Figure 15-2, and you will note the distribution of the C6 nerve root to be in the left lateral forearm, left thumb and left index finger.  This is not the distribution symptoms described by the claimant as per their symptom diagram."  [Exhibit 18, page 3]

  1. [239]
    Dr Coroneos referred to Dr Gillett's Reports and notes that Dr Gillett states that disc pathology and protrusion can occur without a specific event as part of the aging process.  Dr Gillett had noted the degeneration at the C5/6 level and stated "There is no clear work related event that has caused the problem other than him being at work".  Dr Coroneos pointed out that the history provided by the Appellant to Dr Gillett was the same as that provided to him by the Appellant.   I have not accepted that claim, as it was clear that Dr Coroneos said the Appellant had not reported any arm pain to him.
  1. [240]
    Dr Ludcke' Report did not cause Dr Coroneos to alter his opinion.
  1. [241]
    Dr Coroneos stated that "causation does not result from terminology".  Rather, he stated that the appearances that I viewed on imaging were those of cervical spondylosis with circumferential and asymmetric annular bulging.  The use of the terms "protrusion/bulge/herniation etc", does not point directly to causation.  He further added that there had been no evidence of an aggravation and no history of any work related incident or event.
  1. [242]
    Dr Coroneos said: 

 "While the described employment may be a contributing factor in the development of cervical spondylosis in adults, the described work activity is not a main, major, substantial or significant contributing factor in the development of cervical spondylosis.  In the absence of a specific workplace accident, incident, injury or event I cannot diagnose or identify a work related injury.  There is no injury or incident reported by the claimant.  There is not injury or event described by Dr Gillett in the contemporaneous GP records.  He has advised that is no event or injury."

CONSIDERATION OF MEDICAL EVIDENCE

  1. [243]
    Ms Harrison and Mr Handcock's evidence is accepted as an accurate account of the information provided to them by the Appellant.
  1. [244]
    Dr Davarnia's evidence has been accepted as truthful.  His records were sufficiently clear. I have not viewed him as one who was acting as an advocate for the Appellant, but rather as one intent on ensuring that his knowledge of the Appellant's medical condition and consultations with him were appropriately provided to the Commission.
  1. [245]
    The Regulator's submissions concerning Dr Walker were that in these circumstances the principles enunciated in Makita (Australia) Pty Ltd v Sprowles[2] have not been met i.e. that if an expert's report is to be useful it is necessary for it to comply with a prime duty of experts in giving opinion evidence to provide the Commission with criteria enabling evaluation of the validity of the expert's conclusions. 
  1. [246]
    The Appellant believed that Dr Walker's report did reveal that he "at least had some understanding of the work which was being undertaken by the Appellant in the abattoir".  However, the Appellant submitted that after Dr Walker had been provided with all the aforementioned documentary material, the same criticism could not be levelled at him when he determined that his opinion had not changed.  Significantly, the Appellant submitted that the Regulator had every opportunity, knowing the breadth of the documentary material reviewed by Dr Walker, to cross-examine him at that time.
  1. [247]
    Dr Walker said he was able to make his diagnosis on the basis of his experience and the type of problems which can cause cervical disc pathology and not just the history provided to him by the Appellant.  [T1-85]
  1. [248]
    Dr Walker agreed with Dr Coroneos to the extent that the MRI showed signs of a degenerative process affecting C5, C6 and C7.  Dr Walker did not accept that for a previously asymptomatic degenerative change process to become symptomatic, an acute event was required.  His view was that this could occur through a one-off event, of it could build up over time.  [T1-87]
  1. [249]
    Dr Walker said that the Appellant had advised him of pain radiating down into his arm [T1-88].  This evidence was the same as that given by the Appellant, Dr Davarnia and Dr Gillett.
  1. [250]
    In his initial report, Dr Walker had formed a view based upon two factors - the history given to him by the Appellant and his experience in identifying the type of problems which can cause cervical disc pathology.  The fact that Dr Walker at a later point had, for consideration, all the relevant documentation and reports pertaining to the Appellant's injury, only served to reinforce his view that the injury originally identified by him and its causation remained unaltered.  I have accepted Dr Walker's evidence.
  1. [251]
    The evidence provided by Dr Ludcke assisted the Commission in terms of understanding the ergonomics of the Appellant's work.  Dr Gillett's opinion that the further information provided by Dr Ludcke was necessary for him to understand the real nature of the Appellant's work is accepted by me as being well founded.
  1. [252]
    While the Regulator questioned Dr Ludcke's expertise, I have found that the claims levelled against his him are unfounded.  I have found no reason to question Dr Ludcke's professional qualifications. As well, with the type of injury incurred by the Appellant, it was of significant relevance to consider ergonomic opinion at the level provided by Dr Ludcke.
  1. [253]
    While Dr Ludcke had not visited the workplace, he had observed the video footage and had spoken to the Appellant.  I accept that he had undertaken assessments previously based on conversations with persons without the benefit of a video.  Dr Ludcke also had before him JBS Hide Plant Daily Reports and the Task Description documents.
  1. [254]
    I did not find the brevity of the various video footage, inhibited one from appreciating the type of work performed.  After all, it has been accepted that the work was of a very repetitive nature and watching for a longer period may not have enlightened the observer any more.
  1. [255]
    In accepting Dr Ludcke's evidence, I am conscious of the Makita decision and specifically the comments:

 "If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value' even though they may not correspond 'with complete precision', the opinion will be admissible." [Commission Emphasis]

  1. [256]
    Dr Ludcke was not required, in my view, to prove with absolute precision any point made in order to make the report acceptable to the Commission.
  1. [257]
    When comparing results on some matters from Dr Ludcke with those of JBS, on occasions his results were very close to those reported by JBS (e.g. the production rates of hides per minute). 
  1. [258]
    Regarding the Regulator's criticism that Dr Ludcke had not taken measurements of weights, Dr Ludcke confirmed that even if a "lower average hide was considered and the heaviest of hides was less frequently encountered this additional information would not alter his original opinions".  This statement is reasonable given the evidence considered in this decision.
  1. [259]
    Also accepted is Dr Ludcke's evidence concerning the Perceived Exertion Tables.  There was little divergence in the evidence given from all witnesses as to the perceived exertion required for particular tasks.
  1. [260]
    Counsel for the Appellant stated that "the fact that workers were becoming stiff and sore at the end of a work effort allows a very logical conclusion that aspects of the work were heavy and reasonably significant exertion was required to complete them".  The evidence of all witnesses confirmed that perspective.  Further, the usage and need for the First Aid Clinic and the Soft Tissue Centre at JBS bolsters this view.
  1. [261]
    It is acknowledged that part of the Appellant's history given to Dr Ludcke was inaccurate, however, in my view the extent of those errors do little if anything to derogate from the primary thrust of Dr Ludcke's report. 
  1. [262]
    While the Regulator was critical of the Appellant's history provided to Dr Ludcke as it related to his claim that he had worked on two rotations in the fleshing area on 13 June 2015, and 15 June 2015, JBS records have been unavailable to prove otherwise. 
  1. [263]
    What is relevant in considering Dr Ludcke's report was that evidence given by Mr McGrath consistently accepted that the work at the various work stations had characteristics which were listed on the checklists in the Advisory Standard.
  1. [264]
    I have determined that Dr Ludcke's evidence was certainly "sufficiently like" the matters established even though it may not have corresponded with "complete precision" in all aspects.  [Appellant's submissions, point 164]
  1. [265]
    The Appellant says that the conclusions reached by Dr Ludcke in the report of 27 November 2014 should be accepted viz., "that musculoskeletal injuries are predictable outcomes from manual handling tasks involving forceful and repetitive exertion for long periods of time and a brief analysis of the tasks demonstrated the presence of recognised mechanisms or risk factors associated with musculoskeletal injuries".
  1. [266]
    I have accepted the submissions of the Appellant with regard to Dr Ludcke's evidence and reports.
  1. [267]
    After providing three reports over a period of time, Dr Gillett clearly changed his view after his consideration of Dr Ludcke's Reports.
  1. [268]
    Dr Gillett commented upon the degree of evidence he had before he when he made his first diagnosis.  Significantly in that first report, he stated that "the work is heavy and that needs to be investigated further".
  1. [269]
    From that commentary it is clear that Dr Gillett had some reservations about his opinion.  Those reservations were lifted once he had reviewed the evidence of Dr Ludcke.
  1. [270]
    I have not viewed Dr Gillett's change of view after reviewing Dr Ludcke's report as unusual or unprecedented.  Dr Gillett has acknowledged the professionalism of Dr Ludcke as one who is qualified to discuss and inform on the question of ergonomics in the workplace.
  1. [271]
    He further acknowledged that Dr Ludcke's Report had highlighted the significant risks associated with the type of work performed by the Appellant, culminating in the heightened risk of injury to the Appellant.  Specifically, he viewed the InterSafe Report as identifying the significant issues associated with the risk of injury involving the neck with the repetitious nature of the tasks and the awkward positioning associated with the tasks and weights involved.  [Appellants submissions, point 179]
  1. [272]
    Dr Gillett noted that Dr Ludcke had not totally focussed on the weights of the hides but also upon other elements in the workplace which could contribute to the Appellant's injury.
  1. [273]
    In expanding upon his ultimate opinion, Dr Gillett stated:

 "There's a clear link to muscle fatiguing with repetition and continuous work which then a body part loses the protectiveness of the muscles surrounding that body part.  So muscles fatigue which supports say, for example, a neck and then the neck is more vulnerable to absorbing forces and then pathology can occur.  So repetition, frequency and amount of force or weights are all factors."

  1. [274]
    I have accepted Dr Gillett's opinion that the Appellant's work was a significant contributing factor to his neck pathology.  Alternatively, I have accepted Dr Gillett's evidence that even in the presence of pre-existing asymptomatic degeneration, the work which was performed by the Appellant was most likely causative of his injury. 
  1. [275]
    Dr Coroneos provided two reports, 27 August 2015 and another dated 7 October 2016.  The second report was provided after Dr Coroneos had viewed further documentation provided by the Regulator.
  1. [276]
    The Appellant's objection to Dr Coroneos' evidence was that he appeared to have a misapprehension of the legal test for causation as opposed to medical concepts.  It says that these differences have long been recognised at law.  For example, in March v E & MH Stramare Pty Ltd[3], Mason CJ said:

 "It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation.  That is because 'questions of cause and consequence are not the same for law as for philosophy and science', as Windeyer J pointed out National Insurance Co of New Zealand Ltd v Espagne.  In philosophy and science the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences.  In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence."

  1. [277]
    Dr Coroneos was adamant that the Appellant had not referred to any arm pain during the course of his consultation.  He said that any reference to arm pain was not evident on the diagram the Appellant had completed prior to the consultation.
  1. [278]
    The Appellant had previously referred to arm pain (radiculopathy) in his consultations with Dr Davarnia, Dr Gillett and Dr Walker.  He said his interpreter had completed the diagram for him and he was equally adamant that he had raised the issue with Dr Coroneos.  Dr Coroneos conceded that sometimes patients raised different issues with different Doctors.  In the circumstances of this case, I have accepted the Appellant's evidence. 
  1. [279]
    Given that his arm complaint was a significant part of his overall complaint, I find it unusual that he would not have raised this issue with Dr Coroneos as he had done with every other Doctor.  There is no suggestion that Dr Coroneos has been untruthful in giving his evidence, but I am of the view that sometimes in communications (and especially when one is attempting to convey information through the services of an interpreter) the essence of what one wishes to say becomes lost in translation.
  1. [280]
    In relation to causation, Dr Coroneos responded to the following question from Counsel for the Appellant:

 "Mr Munro:  Alright, Doctor.  This Commission has heard some evidence from the Appellant and perhaps others that his symptoms came on whilst undertaking his duties at the plant, that's when they started.  In terms of the causal link, isn't that the best indicator, an analysis of what a worker was doing at the very moment when the symptoms commenced?

 Dr Coroneos:  Now, that's, that's what you guys call a temporal link, in other words, time.  That's not a causal link.  I'm using the Bradford Hill Criteria and the Bradford Hill Criteria are the criteria upon which medical causation, not legal causation, is underpinned.  Now just because you have a heart attack at work, it doesn't mean that the work was the heart attack and that, I'm not being glib, that appears in the text books published by the American Medical Association so that doctors can understand that the legal versus the medical difference between causation.  You guys talk to temperate or temporal relationship, which isn't medical causation.  So just because you experience an epileptic fit whilst you're at work it doesn't mean that the work caused the epileptic fit."

  1. [281]
    In the circumstances of this case, the Appellant suffered a musculoskeletal injury of the type referred to in the Advisory Standards checklist.  The checklist, to a significant degree, mirrored the type of activities required to be undertaken by the Appellant in his work place.
  1. [282]
    In the course of his evidence concerning Dr Ludcke's report, Dr Coroneos recommended that the Dr Ludcke's Report be sent back to Dr Gillett for his further review and comment.  However, that had already occurred.  Dr Gillett had reviewed Dr Ludcke's report and it formed the foundation of his second and third reports.  The Appellant said that this suggested that Dr Coroneos had not considered all of the further material which had been provided to him by the Regulator.  In my view, this appeared to be the case.  Dr Coroneos, in any event, said that he would place greater emphasis on evidence from other persons such as an exercise physiologist, an occupational therapist, a physical therapist or an occupational medicine specialist rather than Dr Ludcke.
  1. [283]
    From those comments, it appeared obvious that Dr Coroneos did not accept anything that Dr Ludcke had to say about the work environment.
  1. [284]
    Dr Ludcke's evidence was clear that he had not expressed an opinion that a particular work event or a particular work action had caused any of the Appellant's work symptoms [T2-48].  Rather, he was commenting upon the type of work performed in the Appellant's workplace and the likelihood of that causing musculoskeletal injury.
  1. [285]
    When asked of his understanding of the type of work undertaken by the Appellant, Dr Coroneos' responded with comments such as:

 "Yes, you did describe that he was a - a hide processor and I - I have seen hide processors before and I - I am aware of the work that they do."

 "I… was aware that with hide processing the hides are - are hung and hosed and whatever they do.  So the answer is I… was generally aware of the scope of duties that the claimant was performing."

  1. [286]
    I am of the view that Dr Coroneos had little knowledge of Dr Ludcke's report and that he had limited understanding of the type of work the Appellant had been performing.
  1. [287]
    I have accepted the Appellant's claim that:

 "The observation to be made is that the overwhelming likelihood is that Dr Coroneos had come to a view purely based upon his concept of medical causation and would not be dissuaded from that view by any additional information provided".

  1. [288]
    I have preferred the evidence of Dr Davarnia, Dr Walker and Dr Gillett over that of Dr Coroneos.
  1. [289]
    The fact that Dr Gillett was influenced by Dr Ludcke's report is in no way surprising in my view.  As a medical specialist, Dr Gillett acknowledged the expertise and contribution made by Dr Ludcke with regard to ergonomic factors which were a relevant feature when considering  the type of work performed by the Appellant.

 CONCLUSION

  1. [290]
    The Appellant has discharged the onus of proof in this matter.
  1. [291]
    In Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor[4], His Honour Martin J, stated:

 "In Comcare v PVYW the High Court revisited and explained its earlier decision in Hatzimanolis v NI Corp Ltd.  Although the principle in Hatzimanolis concerns liability for an injury which occurs when an employee undertakes a particular activity the discussion about the general principles can guide consideration of different types of injuries.  The majority in Comcare said:

 It has earlier been observed that the Hatzimanolis principle, when it is appropriate to be applied, effects a connection between the circumstances to which the employee sustains injury and the employment.  The principle may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee's employment.

 … 

 The connection or association spoken of is not the causal connection which is attributed to the expression "arising out of … the employee's employment" in the definition of "injury" in the … Act.   It is accepted that compensation may be payable in respect of an injury which is suffered "in the course of" the employee's employment notwithstanding that there is no such causal connection.  The connection presently spoken of is by way of an association with the employment.  In Kavanagh v The Commonwealth, Dixon CJ said that "no direct … causal connection … is proposed as an element necessary to satisfy the conception of an injury by accident arising in the course of the employment but only an association".

 Dixon CJ expressed that association in two ways.  In a positive sense it might be said that, had it not been for the employment, the injury would not have been sustained.  Put negatively, and perhaps more useful for present purposes, it requires that 'the injury by accident must not be one which occurred independently of the employment and its incidents'."

  1. [292]
    Primarily, the Appellant's submission was that the evidence in this matter demonstrated the necessary association between the injury and the employment.  It claimed that at worst, "the evidence demonstrated an association between the aggravation of underlying but asymptomatic pre-existing degeneration in the Appellant's cervical spine and the onset of his symptoms which arose as a consequence of his work".  (See JBS Australia Pty Ltd AND Q-COMP[5].)
  1. [293]
    In Groos v WorkCover Queensland[6] Hall P Stated:

 "The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive." 

  1. [294]
    In this case it is accepted that the Appellant's injury occurred at work and that work was a significant contributing factor to the injury and the weight of medical evidence supports that finding. 
  1. [295]
    I have accepted that had it not been for the employment, the Appellant's injury "would not have been sustained", see Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor[7].
  1. [296]
    The Appeal is granted.  The requirements for an "injury" pursuant to s 32 of the Act have been met.  The Commission sets aside the Review Decision of the Workers' Compensation Regulator, dated 9 March 2016.
  1. [297]
    The Regulator is to pay the Appellant's costs of, and incidental to the Appeal.
  1. [298]
    Order accordingly.

Footnotes

[1] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731

[2] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729

[3] March v E & MH Stramare Pty Ltd (1990) 171 CLR 506 at 509

[4] Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor (2015) ICQ 028

[5] JBS Australia Pty Ltd AND Q-COMP (C/2012/35) – Decision

[6] Groos v WorkCover Queensland 165 QGIG 106

[7] Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor (2015) ICQ 028

Close

Editorial Notes

  • Published Case Name:

    Vali Mohammad Ghiyas Vand v Workers' Compensation Regulator

  • Shortened Case Name:

    Ghiyas Vand v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 55

  • Court:

    QIRC

  • Judge(s):

    Swan DP

  • Date:

    05 Jun 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Groos v WorkCover Queensland [2008] 165 QGIG 106
1 citation
Jump To
Cite 1 - [2008] 165 QGIG 106
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
3 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Cite 3 - (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd (1990) 171 CLR 506
2 citations
Jump To
Cite 1 - (1990) 171 CLR 506
Cite 2 - (1990) 171 CLR 506
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
1 citation
Jump To
Cite 1 - [1985] HCA 58
Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505
1 citation
Jump To
Cite 1 - (1984) 2 NSWLR 505
Price v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
1 citation
Jump To
Cite 1 - (1985) 59 ALJR 844
Waugh v Workers' Compensation Regulator [2015] ICQ 28
3 citations
Jump To
Cite 1 - [2015] ICQ 28
Cite 2 - [2015] ICQ 28
Cite 3 - [2015] ICQ 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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