Menzies Property Services Pty Ltd v Murialdo

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Menzies Property Services Pty Ltd v Murialdo [2009] NSWWCCPD 162
APPELLANT:			Menzies Property Services Pty Ltd
RESPONDENT:			Gonzalo Rodrigo Murialdo
INSURER:			GIO General Limited
FILE NUMBER:			A1-4978/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:			1 September 2009
DATE OF APPEAL HEARING:		16 December 2009
DATE OF APPEAL DECISION:			22 December 2009
SUBJECT MATTER OF DECISION:			Injury; substantial contributing factor; causation
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr J Harris, instructed by TurksLegal
Respondent:	Mr B Batchelor, instructed by Frisina Lawyers
ORDERS MADE ON APPEAL:			For the reasons given in this decision, the Arbitrator’s determination of 1 September 2009 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.  Those costs are assessed at $2,200.00 plus GST.

BACKGROUND

1. The worker, Mr Murialdo, worked as a cleaner for the appellant, Menzies Property Services Pty Ltd (‘Menzies’), during two separate periods.  The first was from July 2002 until April 2004 when he left to attend the New South Wales Police Academy.  Having graduated from the Academy in December 2004, Mr Murialdo worked as a probationary constable until he left the police force in about March 2005.  In or about April 2005, Mr Murialdo returned to work with Menzies as a cleaner working two shifts per day.  The first shift was from 5.00 am to 9.00 am and the second was from 2.30 pm until 6.30 pm.

1. Mr Murialdo alleges that he injured his back on the morning of Friday 14 September 2007 when he lifted a trolley full of rubbish into a skip and felt a sharp pain in his lower back.  His father, Huber Murialdo, who also worked as a cleaner with Menzies, and who was working about five metres away from his son, offered to empty the trolley.

1. Mr Murialdo alleges that he then walked to the cleaners’ room where he spoke with another cleaner, Ana Quintana, and mentioned his back pain.  Later that day he attended on his usual doctor, Dr Chatterjee, general practitioner at Leumeah.  Dr Chatterjee’s notes are in evidence, however, the exact content of the notes is the subject of dispute that is discussed in detail later in this decision.

1. Dr Chatterjee provided Mr Murialdo with a non-WorkCover certificate declaring him unfit until 21 September 2007 because of “contusion low back”.  Mr Murialdo returned to work and continued his normal duties.

1. In May 2008, Mr Murialdo’s pain increased and spread to his groin and left buttock.  Dr Chatterjee referred him to a spinal specialist, Dr Etherington, who gave him steroid injections.  He continued his normal duties until 25 August 2008 when he reduced his hours to four per day on modified duties.  That work continued until he ceased work on 2 September 2008 and he has not returned to work since.  Subsequent investigations revealed Mr Murialdo to have an L4/5 disc protrusion.

1. Menzies’ workers compensation insurer, GIO General Limited (‘GIO’),…