INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Ribeiro v Workers’ Compensation Regulator [2020] ICQ 017	
PARTIES:	ISRAEL RIBEIRO
(appellant)
v
WORKERS’ COMPENSATION REGULATOR
(respondent)	
FILE NO:	C/2020/3	
PROCEEDING:	Appeal	
DELIVERED EX TEMPORE ON:	21 April 2020	
HEARING DATE:	21 April 2020	
MEMBER:	Martin J, President	
ORDERS:	The appeal is dismissed.	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant made an application for workers’ compensation for an umbilical hernia injury said to have been sustained over a period of time as a result of his employment – where the application was rejected by his employer, a self-insurer, and, on review, by the Workers’ Compensation Regulator – where the appellant appealed the decision of the Workers’ Compensation Regulator to the QIRC – where the issues before the Deputy President were (a) whether the appellant’s hernias arose out of or in the course of his employment, and, if so, whether his employment was a significant contributing fact to the injury; or (b) whether the appellant suffered an aggravation of his hernias which arose out of or in the course of his employment, and, if so, whether his employment was a significant contributing factor to the aggravation – where the Deputy President answered both questions in the negative – whether the appellant identified an error of law in the Deputy President’s reasons
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the respondent seeks its costs of the appeal – where the Workers’ Compensation and Rehabilitation Act 2003 restricts the availability of a costs order to circumstances where the appeal is vexatious or without reasonable cause – whether the appeal was without reasonable cause
Workers’ Compensation and Rehabilitation Act 2003	
CASES:	Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263, cited
Waterford v The Commonwealth (1987) 163 CLR 54, applied	
APPEARANCES:	C Donnan instructed by Jonathan C Whiting & Associates for the appellant
D Callaghan instructed directly by the Workers’ Compensation Regulator	

[1]	
[1]	Mr Israel Ribeiro commenced employment with JBS Australia Proprietary Limited in March 2008.  JBS operated an abattoir at Dinmore at the relevant time.  JBS is, under the Workers’ Compensation and Rehabilitation Act 2003, a self-insurer.  Mr Ribeiro made an application for workers’ compensation for an umbilical hernia injury said to have been sustained over a period of time as a result of his employment as a slicer.  It was rejected by JBS and, on review, by the Regulator.  
[2]	When the matter came before the Commission, Mr Ribeiro submitted the following:
(a)	that he suffered the injuries of an umbilical hernia and a para-umbilical hernia,  
(b)	that those two injuries arose out of or in the course of his employment, and that his employment was a significant contributing factor to those injuries,  
(c)	his employment aggravated his hernias and his employment was a significant contributing factor to that aggravation,  and
(d)	the causal connection between his employment and the development or aggravation of his hernias was intra-abdominal pressure caused by the work he performed for JBS.
[3]	The Deputy President correctly identified the issues as being:
(a)	Did Mr Ribeiro’s hernias arise out of or in the course of his employment and, if so, was his employment a significant contributing factor to that injury?  or
(b)	Did Mr Ribeiro suffer an aggravation of his hernias which arose out of or in the course of his employment and, if so, was his employment a significant contributing factor to that aggravation?
[4]	The Deputy President’s answer to each of those questions was “no”.
[5]	An appeal to this court may only be made on the grounds of error of law or excess or want of jurisdiction.  Leave has not been sought to appeal on any other ground.  I have dealt with the distinction between errors of law and errors of fact in many decisions, and I will not repeat that analysis here.  But for the reasons which follow, I merely observe that the examination of the difference between the two types of error by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs, assists in the understanding of the determination of this appeal.  Further, I bear in mind the statement of the High Court in Waterford v The Commonwealth:
“There is no error of law simply in making a wrong finding of fact.”
[6]	At the hearing today, counsel for the appellant said that the appellant was only pursuing grounds 1(a) and (b) and grounds 2(b) and (c) set out in the notice of appeal.  The grounds in the notice of appeal, although describing themselves as demonstrating errors of law, are more criticisms of findings of fact.  The appellant says that the three reasons given by the Deputy President for the finding that the injury did not arise out of or in the course of employment were “attended with multiple errors of reasoning”.  Part of the inadequacy of the argument advanced is that it is based upon a misreading of various paragraphs in the reasons of the Deputy President.  
[7]	For example, in paragraph 147 of his reasons, the Deputy President refers to evidence of the appellant’s obesity at various times.  The evidence given by Dr Fish, Professor O’Rourke, Dr Naqvi and various measurements taken, concerning the relationship between actual obesity and hernia was unchallenged.  And the fact that it was unchallenged was noted by the Deputy President in the last sentence of that paragraph where he said:
“There was no evidence led by Mr Ribeiro that from 2008, when he started with JBS, he was not obese.”
[8]	The appellant argues that this, in some way, demonstrated that the Deputy President had reversed the onus of proof.  With respect, it did not.  It merely noted that there was no evidence to the contrary of what was otherwise admissible evidence capable of giving rise to the conclusion which the Deputy President reached.  
[9]	It was also argued that in paragraph 149, the Deputy President recited the history given that it was not until 12 January 2016 that Mr Ribeiro gave a history of an umbilical hernia from about five years, and that this was the first time he had associated his employment at JBS with the hernia.  The contention is that Mr Ribeiro was not qualified to express that view and it should not have been relied upon.  The point though is that the Deputy President had three reasons for not being persuaded that the hernias arose out of or in the course of employment.  
[10]	It is relevant to an assessment of whether or not there is an association between injury and employment that a complaint has or has not been made.  If a person complains at the time of an injury in a way that associates the injury with employment, then it is one basis, and, of course, one basis only, upon which a finding might be made.  What is relevant is that there was no complaint until January 2016.
[11]	In the written submissions, the appellant argues that the second reason, to which I have just referred, emerged from an “erroneous history as to the reporting and diagnosis of the hernia.”
[12]	That argument is an argument about whether or not the Deputy President made an error in his findings of fact.  It is not a question of law.  In any event, the ground involves a misunderstanding of what was said, for example, in paragraph 149.  In the appellant’s written submissions, it is said that:
“To the extent that the reasons, [149], give the impression that there was no reported history of hernia until January 2016, they are inaccurate.”
[13]	Grounds of appeal must relate to errors of law, not to impressions perceived about the manner in which evidence is set out in the reasons given.  I have referred to the argument that Mr Ribeiro was not qualified to make a statement of this nature.  That is not the point upon which the reason given by the Deputy President turns.  He was not seeking to use it as an absence of causation, but merely one part of the reasoning process that divorces the hernia from employment.  
[14]	The second section of the appellant’s argument, that is, with respect to ground 2, is once again based upon what is called in the written submissions a misapprehension of the evidence by the Deputy President.  In other words, it is said that the Deputy President erred in finding facts.  The written submissions do not accurately reflect any argument about an error of law.  
[15]	With respect to paragraph 163 of the reasons, it is said there is an error of law; but the appellant has drawn from a simple statement about there not being evidence of a particular kind, a conclusion that it means that aggravation must involve more pain or an increase in size. It is not said that there is, in any event, an error in fact, because there was no evidence as described.  
[16]	Reliance was sought to be made upon the admissions of the appellant in response to a notice to admit facts served on him by the respondent Regulator.  Those admissions, though, do not relate to the period April 2016 to August 2017.  Even if the Deputy President had been in error at all there, there was no evidence before the Deputy President that there had been an aggravation.  There is also a complaint in the written submissions that paragraph 176 is illogical.  Once again, this is nothing more than a complaint about a finding of facts.  
[17]	On the basis of the grounds advanced today, nothing has been demonstrated to establish that there has been any error of law.  The appeal is dismissed.  
Costs
[18]	The respondent seeks its costs of the appeal.  The legislation restricts the availability of a costs order to circumstances where an appeal is vexatious or without reasonable cause.  It is not said that the appeal is vexatious.  It is said by the respondent that it was made without reasonable cause.  The mere fact that an appeal has been dismissed, of course, does not give rise alone to a costs order.  Although this is a case which borders on the issue of whether there was reasonable cause, I am not satisfied that it trespasses into that area and I make no order as to costs.