Ghiyas Vand v Workers' Compensation Regulator
[2017] QIRC 55
•5 June 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Ghiyas Vand v Workers' Compensation Regulator [2017] QIRC 055 |
PARTIES: | Vali Mohammad Ghiyas Vand v Workers' Compensation Regulator |
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) |
HEARD AT: | Brisbane (1, 2, 3, 4, and 14 November 2016) |
MEMBER: | Deputy President Swan |
| ORDERS | 1. The Appeal is granted. 2. 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 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. |
Decision
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.
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.
The Appellant now appeals the Regulator's decision pursuant to s 550 of the Workers' Compensation & Rehabilitation Act 2003 (the Act).
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
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
Section 32 of the Act defines "injury" as:
"32 Meaning 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
The Appeal is by way of hearing de novo and the Appellant bears the onus of proof.
WITNESSES
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].
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
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.
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.
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.
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.
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.
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.
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;
(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.
(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;
(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;
(v) the hides then proceed through an area where they are graded;
(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
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".
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
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.
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.
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]
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.
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]
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.
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.
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.
Mr McGrath said he did not accept that workers handling these hides would know the weight of the hides.
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]
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]
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.
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.
The consensus was that the weights of hides could vary given the seasonal nature of the industry.
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.
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.
It is reasonable, taking into account all estimates and evidence, to accept that the average weight of hides would be around 35 to 50kg.
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.
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.
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
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.
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.
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.
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.
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)]
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.
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
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.
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]
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.
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]
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.
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.
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.
Mr McGrath agreed that the work was of a repetitive nature. [T5-47]
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]
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]
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.
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]
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.
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]
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.
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.
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.
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]
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.
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]
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
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]
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
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
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]
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]
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
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
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]
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]
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].
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.
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
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.
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]
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.]
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
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".
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".
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]
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]
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]
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.
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.
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.
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.
Counsel for the Appellant said this approach failed to recognise a basic factor i.e. that the work was heavy, continuous and repetitive.
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.
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]
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]
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]
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
The hours of work and set breaks taken at the workplace are not in dispute.
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.
[100]If overtime or two hours was to be worked, there would be a break of 5 minutes between 3.55pm and 4pm.
[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".
[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."
[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]
[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]
[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.
[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.
[107]The Appellant asserted that the above reinforced his evidence when he said that on multiple occasions he could work in the same area.
[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.
[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]
[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.
[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
[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.
[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
[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.
[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
[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
[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.
[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]
[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.
[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]
[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]
[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:
[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. YeahMr 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]
[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.
[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"
[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:
oThat the injury observed by her was identified as "Soreness/tenderness to both shoulders and neck";
oThat the Appellant "… was booked into the Soft Tissue Clinic after he had the following day off (17 June 2015) due to sore neck";
oAlso noted on the form was that "Vali states that every Monday there are heavy hides so he gets a bit sore"; and
oMs 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".
[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".
[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.
[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
[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]
[131]On 17 June 2015, at a further consultation with Dr Davarnia, the medical notes refer to "Left sided neck pain yesterday. No radiculopathy".
[132]Dr Davarnia observed, at that time, that the symptoms complained of by the Appellant were more akin to simple muscle strain.
[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".
[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".
[135]After the above visits, Dr Davarnia issued non-workers' compensation medical certificates.
[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".
[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".
[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."
[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.
[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].
[7] Waugh v Simon Blackwood (Workers' Compensation Regulator) & Anor (2015) ICQ 028
[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.
[297]The Regulator is to pay the Appellant's costs of, and incidental to the Appeal.
[298]Order accordingly.
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