Menzies Property Services Pty Ltd v Murialdo
[2009] NSWWCCPD 162
•22 December 2009
| 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
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.
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.
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.
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.
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.
Menzies’ workers compensation insurer, GIO General Limited (‘GIO’), paid voluntary weekly compensation from 6 September 2008 until 28 November 2008. The insurer disputed liability in a section 74 notice dated 11 December 2008 on the grounds that Mr Murialdo suffered no injury and had not given notice of injury or notice of his claim for compensation within the time limits provided in the relevant legislation.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 26 June 2009, Mr Murialdo claimed weekly compensation from 25 August 2008 to 5 September 2008 and from 29 November 2008 to date and continuing on the basis of total or, in the alternative, partial incapacity. He also claimed hospital and medical expenses.
The Commission listed the matter for conciliation and arbitration before Arbitrator McManamey on 19 August 2009. On that day, counsel for Menzies cross-examined Mr Murialdo on several issues and the Arbitrator heard lengthy submissions. In a reserved decision delivered on 1 September 2009, the Arbitrator found in favour of Mr Murialdo and the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1.Respondent to pat [sic] $336.40 per week from 25 August 2008 to 4 September 2008 pursuant to section 40.
2.Respondent to pay $672.80 per week from 5 September 2008 to 7 March 2009 and thereafter to date and continuing at the statutory rate for a worker with no dependants pursuant to sections 36 and 37.
3.Respondent to pay section 60 expenses.
4.Respondent to pay the Applicant’s costs as agreed or assessed. I certify that the matter is complex and that the parties are entitled to a 20 percent uplift.”
In an appeal filed on 29 September 2009, Menzies seeks leave to challenge the Arbitrator’s determination on injury, substantial contributing factor and causation.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2)(a) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
THE EVIDENCE
Mr Murialdo’s evidence
Mr Murialdo’s evidence is set out in two statements. An insurance investigator took the first statement on 27 October 2008. The second is dated 18 May 2009 and appears to have been taken by Mr Murialdo’s solicitor.
Mr Murialdo was born in 1976 and is currently 33 years of age. After leaving the police force in March 2005, he returned to work for Menzies as a full-time cleaner working two four hour shifts per day. Though he denies having previously suffered any injury or made any claim for workers compensation benefits, he concedes that he has suffered “muscular strains” in his lower back during his past employment. He attended on Dr Chatterjee for the pain and was diagnosed with muscular spasms or strains. The symptoms and pain occurred about once a year, but there was “nothing like the sharp pain” that he now gets when bending down (Mr Murialdo’s statement 27 October 2008, paragraph u). He would recover “100%” after some Panadol and a couple of days rest.
When he recommenced with Menzies in 2005, he worked at Narellan Vale Public School, where he worked with two other cleaners, Ana Quintana and his father, Huber. His usual duties required him to vacuum, dust, clean toilets, mop, and empty rubbish bins.
At about 7.00 am on Friday 14 September 2007, Mr Murialdo lifted a trolley full of rubbish into a skip bin when he suddenly felt a sharp pain in his lower back. He dropped the trolley and yelled out. His father, who had been picking up rubbish about five metres away, heard Mr Murialdo drop the trolley and yell out. Huber said he would empty the trolley.
Mr Murialdo then walked to the cleaners’ room, about 50 metres away, on his way he spoke to Ms Quintana. She asked him what was wrong and he replied that he had hurt his back emptying the “LART” into the skip. He did no further work on the morning shift and went home at about 8.00 am. He does not recall how he got home or if he returned to work the afternoon shift.
He drove to Dr Chatterjee’s surgery on the day of the incident and told him what had happened. The doctor asked if he wanted to make a workers compensation claim, but Mr Murialdo declined because he did not think the injury was “going to be so bad” and he “didn’t want to have a workers comp claim on [his] name” (Mr Murialdo’s statement 27 October 2008, paragraph xx).
Dr Chatterjee certified Mr Murialdo unfit until 21 September 2007 and advised him to use difflam gel on his back, take Panadol, and use cold packs. He followed that advice and the pain subsided, but never fully resolved.
Mr Murialdo claims that he reported his injury to his manager, Matthew Snelson, by telephone. He told Mr Snelson that he hurt his back whilst emptying rubbish. Mr Snelson told him to write the injury in the injury book. Mr Murialdo responded that there was no injury book.
Dr Chatterjee referred Mr Murialdo for physiotherapy, which he attended on several occasions between November and 6 December 2007.
After about a week off work, Mr Murialdo returned and performed his normal duties, though he continued to have pain in his back. He travelled to Asia with his girlfriend in January 2008. On his return from holidays he started playing indoor soccer and played five games between January and March 2008, eventually ceasing because his back was too painful.
In around May 2008, his pain got worse and spread to include his groin and left buttock area, as well as a weakening of his left leg. As a result, he attended on Dr Chatterjee on 7 May 2008 and was referred to a spinal specialist, Dr Etherington, who referred him for further radiological investigations. Dr Etherington gave the worker steroid injections which provided relief for a day or two.
On 16 July 2008, Dr Etherington discussed the option of spinal surgery and referred Mr Murialdo to Dr Diwan. Mr Murialdo decided to proceed with surgery on 17 September 2008. However, this booking was ultimately cancelled.
Mr Murialdo reduced his hours to four per day from 25 August until 2 September 2008 when he ceased work. He completed a claim form on 30 September 2008 in which he described the incident on 14 September 2007 as follows:
“I was lifting a trolley full of rubbish into the skip bin when I suddenly felt sharp pain in my lower back. The trolley was faulty as the lifters not functioning.”
Mr Murialdo added in his first statement that he has basically had no “real recovery at all since 14 September 2007” and that he has always been in pain. He said that he was now claiming compensation due to the severity of his injury.
In his second statement, Mr Murialdo added that he did not wish to make a workers compensation claim because he believed such a claim would affect his chances of obtaining employment in the future. At the time he gave his statements, he was studying full-time at the University of Western Sydney, Hawkesbury, to be an animal scientist. He commenced that course in March 2007. A further reason he did not claim compensation was because he thought his injury would eventually “settle down”, but that did not happen. Though he continued working in his normal duties, he “had a large amount of pain in [his] lower back.”
After referring to Dr Etherington’s patient information sheet, Mr Murialdo added (at paragraph 28 of his second statement):
“Even though I had stated that I felt pain whilst driving to university, this was not the first time that I had felt pain. The way I had injured myself is the way I have described it in my Statement dated 27 October 2008.”
He then added that when he saw Dr Etherington it was not his intention to make a claim for compensation, he just wanted to get better so he could carry on with his life normally. In any event, he added that he did feel a lot of pain while driving to university after he injured his back. To get to university he drove from Campbelltown to Richmond, a trip he would make about four times each week. It was a long drive in his condition and it caused a lot of pain. Mr Murialdo denied having injured his back in any way other than at work on 14 September 2007.
At the time of his second statement (May 2009) Mr Murialdo was on a waiting list for disc replacement surgery. He continued to have pain in his lower back, left buttock, groin, and weakness in his left leg. He found it difficult to sit for long periods. He was no longer able to do any exercises or walk long distances. He attempted swimming but that did not give him any relief. Though he was on mobic medication, he found it was not helping and he ceased taking it. His studies were due to conclude in approximately December 2009.
Huber also provided a statement to the insurer’s investigators on 27 October 2008. He started work with Menzies as a cleaner in April 2006. His duties mainly involved cleaning the demountable classrooms at Narellan Vale Public School. Though it was not specifically part of his duties, he would help his son to pick up rubbish around the school grounds.
Huber has no knowledge of any injury or incident reporting policy at Menzies. If an accident occurred, he would call Mr Sneslon and inform him straight away. Though he was aware of a “Communication Book” used for complaints or instructions about work issues, he was not aware of an injury book.
Huber recalls his son hurting his back on 14 September 2007 at work. Though Huber did not see the incident, he was about five to ten metres away picking up papers on the other side of the skip. He heard a crash and, when he looked around, he saw that his son had dropped a trolley and was in a “bending position”. He had his hand on his back and his face was “grimaced”. On enquiring what had happened, his son said that he “had tried to lift the trolley when he felt a big pain in his lower back.” Huber then helped his son to straighten and told him to go to the cleaners’ room and he would finish the rubbish. He saw his son walk very slowly “like an old man.” His son did no more work that morning and did not return to perform his afternoon shift because he was in too much pain.
Huber believes that his son telephoned Mr Snelson on the day of the injury, but he does not know what time that occurred. He does not know if his son wrote anything down about the incident. Huber drove Mr Murialdo home.
After his son returned to work, Huber heard him complain of being in pain “a hundred times”. His son would say things like “my back is sore” or “it’s not so good today”. Huber tried to help him a lot because of his pain, which got progressively worse.
Ms Quintana provided the insurance investigators with a statement on 29 October 2008. She started work as a cleaner with Menzies in 2002 and was working at Narellan Vale Public School in September 2007. She recalled a “GIO book” at another site at which she worked, but had never seen anything like that at Narellan Public. She recalled the communication book, which was used to record a fault or injury. In respect of the alleged injury, Ms Quintana said:
“v. I could not comment on the exact day or date of Gonzalo’s alleged back injury, but I do recall a time when I saw him to be in pain. This was late last year some time.
w. I remember I was in the Cleaners’ Room and it was in the middle of our morning shift, but I cannot recall the time. I saw Gonzalo walking back from the skip bin area. This is where the trolley bins are emptied.
x. Gonzalo was holding his hand to his back and walking in a funny way. I asked him: ‘what’s wrong with you?’ to which he replied: ‘my back. I hurt my back. My back.’ I remember he also said: ‘my back. I’ve f#!*ing hurt my back!’ I think he was talking more to himself than to me actually.
y. Gonzalo did not say how he hurt his back or where, and I did not ask. To be honest, I didn’t take much notice of him.
z. I recall Huber was around in the back area with him at this time, but Gonzalo did not tell me if anyone saw the accident happen. I did not see the actual incident.”
Ms Quintana recalls Mr Murialdo complaining that his back was killing him in June of 2008. At about the time Mr Murialdo was scheduled to have back surgery, Huber asked Ms Quintana to write a note stating what she had seen on the day of the accident. That note is in evidence and reads as follows:
“12 September 2008
To whom it may concern
This letter is to certify that in September last year 2007 – Gonz did tell me Ana Quintana about rubbish trolley accident;
When I ask him, what was wrong”
Menzies’ evidence
Menzies relies on a statement from Mr Snelson dated 11 October 2008. Mr Snelson is Menzies’ contract manager for the Camden District and part of the Southern Highlands Region. He is responsible for approximately 120 cleaners who work over 30 different sites. He states that Menzies has a “GIO Book” which was supposed to be kept with the communication and attendance book, though at the time he gave his statement he was unable to find it or provide any explanation as to where it could be. If the GIO book was not available, employees should record issues in the communication book.
Mr Snelson dealt with Mr Murialdo’s complaints of pain at paragraph x of his statement where he said:
“x. I am unaware if Gonzalo has had any prior injuries, but I do recall that he has always complained of a bad back. I remember this as far back as a few years ago but am not sure of him telling me how he did it or when.”
Mr Snelson found Mr Murialdo to be a “relatively reliable employee” who was “an honest and trustworthy person”. He first became aware of Mr Murialdo’s alleged injury when he received a telephone call from him about six weeks before Mr Murialdo went off work. Mr Snelson recalls the conversation in the following terms:
“bb. Gonzalo told me that he needed to have an operation as his back discs were fused. He asked for some light duties work after the operation to assist him with his recovery. I said to him that if his back was that bad, then perhaps he should be having time off now.”
Mr Murialdo asked if he could do four hours per day and if someone else could empty the bins on the morning shift. Mr Snelson asked Mr Murialdo why he had not reported the injury sooner. Mr Murialdo responded that he had told him. Mr Snelson stated that he could not recall that and that Mr Murialdo had only ever said to him that he had a sore back, “not an actual injury”. Mr Snelson did not recall Mr Murialdo telling him what caused his injury. Mr Snelson then added at paragraph kk of his statement:
“kk. Gonzalo never complained to me about a back injury before. I recall he has complained of a sore back some time in 2006, but he never referred to it as an actual injury, or that it happened on site.”
Mr Snelson could not say that he had ever noticed Mr Murialdo in pain. As far as he could recall, Mr Murialdo had been able to perform his normal duties since the date of the alleged accident. On different occasions, Mr Snelson asked Mr Murialdo how his back was and Mr Murialdo responded that it was “a bit sore” but he always said he was okay to continue with his duties.
Mr Snelson concluded that he thinks Mr Murialdo does have a back problem, but he did not believe the back problem or injury occurred at work. He added, “perhaps Gonzalo had an injury before, outside of work, and he aggravated it here.”
Menzies also relies on statements from Ms Shimwell, its operations manager, and Ms Waddell, its facilities services manager. Neither statement adds anything of particular relevance to the present claim.
Medical evidence
Dr Chatterjee’s clinical notes are in evidence. They confirm that Mr Murialdo attended on 8 February 2006 complaining that he hurt his back at work on 6 February 2006 when he lifted a heavy bucket. The doctor provided him with a medical certificate for three days off work. Mr Murialdo attended again for an unrelated matter on 10 April 2006.
The doctor’s notes of 14 September 2007 are difficult to read and were the subject of considerable debate at the arbitration and on appeal. So far as it is possible to decipher them, the notes record:
“14/9/2007 – driving from C town to Richmond attending university – [indecipherable]
Low back ache + cleaning job full time = + MC 14/9 to 21/9 low back aching
Diff gel + ice + 10 mobic 15 gram [indecipherable]”
Dr Chatterjee provided Mr Murialdo with a non-WorkCover certificate on 14 September 2007 declaring him unfit until 21 September 2007 because of “contusion low back”.
Mr Murialdo again attended on Dr Chatterjee on 8 November 2007. The doctor’s notes for that attendance record:
“08/11/2007 – low back ache stretching difflam gel x-ray & [indecipherable] & [indecipherable]”
There is a second entry for what appears to be “8/11/2007” (though it may be 18 November) on a different page in Dr Chatterjee’s notes. It states, “For low back ache referred to a Dr J Dave”.
An entry on 14 November 2007 refers to a referral to John Parcio for physiotherapy.
On 3 December 2007, Dr Chatterjee’s notes record that Mr Murialdo complained of low backache and that tramal was prescribed.
On 7 December 2007, Mr Murialdo underwent a lumbar x-ray that demonstrated mild narrowing at L4/5.
Mr Murialdo saw Dr Chatterjee on 12 February 2008, having returned from overseas on 1 February 2008. The notes record “low back ache restarted”.
The entry for 14 February 2008 states “Tramal helpful CT scan lumbar spine”.
Mr Murialdo attended on Dr Chatterjee for unrelated matters on two occasions in March 2008, but attended again for his back on 7 April 2008. The entry for 7 April 2008 reads:
“7/4/2008 → hurt back again How?? Went to work – too painful
Been to work on 7/4 MC 8/9 to 10/4 – contusion back Advil 3+3 given”
Dr Chatterjee provided Mr Murialdo with a further non-WorkCover medical certificate declaring him unfit from 8 April until 11 April 2008 because of “contusion back”.
Mr Murialdo returned to Dr Chatterjee again on 10 April 2008 when the doctor recorded “→ Advil good fit to work 11/4”.
On 28 April 2008, Dr Chatterjee recorded:
“28/4/2008 → CT & spine Disc Herniation L4 L5 level
Pain getting worse – had physio ref to Dr Etherington”.
Mr Murialdo attended at the St George Hospital’s department of orthopaedic surgery on 7 May 2008. A document of that date from the hospital records that the problem started in “08/07”. Under “please describe how your problem started”, the following is recorded:
“Initially I started feeling the pain whist driving to
uni (1 hr drive) → time …Dec/Jan physio – no change.
Since Jan – gradually ↑’ing. Has missed work.
Some diff [with] uni”
Mr Murialdo agreed that he wrote the first line and the word “uni” on the second line of the note from St George Hospital (T10.45).
Dr Etherington saw Mr Murialdo on 7 May 2008 and reported to GIO on that day. He took the following history:
“Mr Murialdo was reviewed in my spine clinic on the 07/05/08 with regard to his left sided low lumbar and buttock pain.
His history begins in August 2007. He first noticed some aching in this area after he was driving to university was [sic] approximately a one hours’ drive. Despite the passage of several months the pain did not improve, and if anything slightly increased. In December 07/January 08, he was having some physiotherapy. Despite this unfortunately the pain has progressed.”
In May 2008, Mr Murialdo complained of persisting pain in the region of the left upper buttock and the left S1 joint. There was also some radiation of pain down the upper part of the posterior left thigh. The pain was worse when sitting for a prolonged period. As Mr Murialdo had to drive “a fair way to university” and attend a lot of lectures, his pain made it difficult for him. He had also taken time off from his part-time cleaning job.
Dr Etherington examined x-rays and CT’s done earlier in 2008. He noted that the x-rays showed four mobile lumbar vertebrae and the CT scan showed a firm transitional L5 and a possible herniation at the L5 disc.
Mr Murialdo underwent a bone scan on 8 May 2008. The radiologist, Dr Nguyen, noted the reason for referral to be “Ten month history of pain in the left lower back and buttock, no reported injury.” The scan revealed a mild increase in tracer uptake at L4/5.
Mr Murialdo underwent an MRI scan on 29 May 2008, which revealed a moderately large central, and leftwards L4/5 disc prolapse. In light of the MRI scan results, Dr Etherington arranged for a CT guided injection on 5 June 2008. That injection gave relief for about one and a half days. A second injection performed on 26 June 2008 achieved a similar result. Ultimately, Dr Etherington recommended lumbar surgery. As at the date of the arbitration, Mr Murialdo had not undergone surgery.
Dr Chatterjee issued the first WorkCover certificate on 6 September 2008. This certificate describes the injury as having occurred as follows:
“Whilst lifting and tilting the rubbish trolley into the skip bin”
The date of injury is recorded as 14 September 2007 and the diagnosis is “disc lesion L4 L5 level.” Dr Chatterjee certified the worker to be unfit for work and has continued to certify him unfit.
Dr Chatterjee reported to Mr Murialdo’s solicitors on 11 March 2009 enclosing what he described as a full copy of all clinical notes and correspondence received from GIO. In answer to the question “What history were [sic] given to you?” the doctor stated:
“Mr Murialdo gave me a history of low back ache. He had been doing a cleaning job. Fell a few times. He had been driving from Campbelltown to Richmond to attend university. He had a hard seat in his car.”
In answer to the question “In the light of your findings, what do you believe to be the connection between the injuries found on examination and the history?” Dr Chatterjee replied:
“From the history given and the findings the injuries are compatible with repeated bending and carrying heavy weights on the back.”
Dr Chatterjee added that the treatment he provided included difflam gel, ice and anti-inflammatory tablets.
In answer to the question “Would you please express an opinion as to whether this person’s employment was a substantial contributing factor to his injury?” the doctor said:
“Investigations carried out since November 2007 revealed Gonzalo has a disc herniation at L4/5 level. He has had physiotherapy. He has been referred to [a] Spine Surgeon Dr Greg Etherington who he has seen a number of times. According to Gonzalo surgery has been planned.
Gonzalo remains unfit to undertake his original duties.”
Dr Vote, specialist at the department of orthopaedic surgery at St George Hospital, examined and reported on Mr Murialdo on 6 April 2009. He recorded the following history:
“Briefly Mr Murialdo appears to have sustained an injury at work in September 2007. He states that he was lifting a trolley of rubbish in to a bin, and in the process of lifting and twisting and [sic] experienced sharp pain in his back.”
Following that incident he was off work for one week when his back settled down somewhat. He then returned to work but, over a period of time, he became progressively worse. Mr Murialdo told Dr Vote that he did not wish to make an issue of the problem because of his financial situation, but slowly he deteriorated to the point where he ceased work in August 2008. In terms of the worker’s past history, Dr Vote noted that it had been quite good with no major problems in relation to his back, although he had a mild aching back from time to time prior to the incident in September 2007, but never sought medical advice or had any x-rays. Dr Vote believed that there was a direct connection between the onset of Mr Murialdo’s symptoms and the physical findings (in relation to the incident occurring at work in September 2007). He also considered that Mr Murialdo’s employment was “the only substantial contributing factor to his injury.”
Mr Murialdo’s oral evidence at the arbitration
Counsel for Menzies cross-examined Mr Murialdo at the arbitration and Mr Murialdo gave the following evidence:
(a)he did not recall what time he saw Dr Chatterjee on 14 September 2007 (T8.45);
(b)he did not remember if he went to university on the day of the accident (14 September 2007) (T9.20-29);
(c)the first time he felt pain was when he injured himself at work (T9.54-58) and that he also felt pain driving to university (T10.3);
(d)he agreed that he wrote the first line and the first word in the second line in the notes from St George Hospital department of orthopaedic surgery dated 7 May 2008 (T10.45-49) and that someone else wrote the words after the word “uni” (T10.54-57);
(e)he initially agreed that the words “initially I started feeling the pain whilst driving to uni” were true and correct (T11.5-11) but then corrected himself and said that they were not true and correct (T11.18-23) because he didn’t understand the question initially (T11.25);
(f)he did not recall telling Dr Etherington that his back pain started in August 2007 whilst driving to university (T11.36-56);
(g)he did not remember giving a history, when he had the bone scan performed, that he had not reported the injury (T12.24-27);
(h)he was not sure what he told his general practitioner on 14 September 2007 (T13.27-42);
(i)he knew the pain didn’t come on before 14 September 2007 (T14.8-16);
(j)he recalled that Dr Chatterjee asked him if he wanted to put in a workers compensation claim and he said that he did not because he didn’t want to have a claim against his name (T15.41-50), and
(k)the first time he felt pain was when he injured his back. Because he didn’t want to make a workers compensation claim he said, “that it was while driving in” (T16.13-15).
The Arbitrator’s Reasons
In a reserved Statement of Reasons (‘Reasons’), the Arbitrator reviewed the evidence and concluded:
(a)both his father and Ms Quintana corroborated Mr Murialdo’s evidence concerning the accident on 14 September 2007. Ms Quintana was an independent witness who has no connection with Mr Murialdo and has no interest in the outcome of the case. He saw no reason why her evidence should not be accepted (Reasons at [23]);
(b)Dr Chatterjee’s certificate of 14 September 2007 described the injury as “contusion low back”. That description was more consistent with a frank injury to the back as opposed to a gradual onset of back pain (Reasons at [24]);
(c)Mr Murialdo admits that the history recorded in the St George Hospital questionnaire dated 7 May 2008 is incorrect. He says that he was concerned about having a workers compensation history and did not want to disclose that it was a work injury (Reasons at [25]);
(d)considering all of the evidence, he was satisfied that Mr Murialdo suffered an injury lifting a bin on 14 September 2007. Two witnesses who were present corroborated the incident and it was consistent with the fact that Mr Murialdo saw Dr Chatterjee on that day. Whilst Dr Chatterjee recorded Mr Murialdo was driving to university, he did not attribute any of Mr Murialdo’s problems to that activity (Reasons at [26]);
(e)there was no medical evidence attributing Mr Murialdo’s symptoms or the disc protrusion to any other cause (Reasons at [31]);
(f)he was satisfied that employment was a substantial contributing factor to the injury (Reasons at [32]), and
(g)he was satisfied that Mr Murialdo was and is totally unfit for work (Reasons at [34]).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether:
(a)Mr Murialdo sustained an injury to his back in the course of or arising out of his employment with Menzies on 14 September 2007 (‘injury’);
(b)Mr Murialdo’s employment was a substantial contributing factor to his injury (‘substantial contributing factor’), and
(c)the L4/5 disc protrusion was caused by the work incident on 14 September 2007 (‘causation’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Injury
Menzies challenges the Arbitrator’s conclusion that Dr Chatterjee’s notes, when read in conjunction with his report, are “merely history of what he [Mr Murialdo] had been doing” (Reasons at [22]). It argues that, as Mr Murialdo’s attendance on Dr Chatterjee on 14 September 2007 was in relation to low back pain, the proper inference is that the doctor’s notes should be read in the context of “causation of back pain”. Otherwise, so it is argued, the recording of travelling to university has no more significance then any other activity the worker undertook during the week.
Mr Murialdo submits that the meaning of Dr Chatterjee’s entry for 14 September 2007 is not clear. However, the Arbitrator had regard to the whole of the evidence before him, including the evidence from Huber and Ms Quintana, and concluded that Mr Murialdo injured his back whilst lifting a bin on 14 September 2007. Whilst that submission is correct, it fails to deal with Menzies’ challenge to this part of the Arbitrator’s reasoning.
It is true that the note on 14 September 2007 does not expressly attribute Mr Murialdo’s back pain to the driving. However, the reasonable inference is that the back pain complained of by Mr Murialdo on that day was connected in some way to driving to university. But that is not the end of the analysis. Mr Murialdo states that that history (also recorded by St George Hospital and Dr Etherington) was not accurate and, because he did not want to make a workers’ compensation claim, he said, “that it [the pain] was while driving in” (T16.14). That evidence is consistent with his second statement where he said he did not wish to make a workers’ compensation claim because he believed it would affect his chances of obtaining employment in the future and that he thought his injury would eventually settle down. This evidence is plausible and I accept that a young person in Mr Murialdo’s circumstances would not wish to make a compensation claim unless it was necessary. I therefore accept that the history recorded by Dr Chatterjee, St George Hospital, and Dr Etherington of when and how his back symptoms commenced was incorrect for the reason Mr Murialdo gives.
The Arbitrator’s suggestion that the notes refer to “falling whilst doing a cleaning job” (Reasons at [22]) is incorrect. Counsel for the parties both submitted on appeal, and I agree, that the notes say, “cleaning job Full time”. However, that error makes no difference to my analysis or the final outcome.
The Arbitrator’s assertion that Dr Chatterjee “only attributed the injuries to work” (Reasons at [22]) did not properly address Dr Chatterjee’s evidence. In his certificates of 14 September 2007 and 10 April 2008, Dr Chatterjee did not attribute Mr Murialdo’s condition to work. However, it is correct that, apart from the reference to driving to university, Dr Chatterjee’s notes do not refer to any other potential cause of Mr Murialdo’s back symptoms. Dr Chatterjee’s report, however, is unhelpful as it states that Mr Murialdo’s injuries are “compatible with repeated bending and carrying heavy weights on the back”. That is not the basis on which Mr Murialdo presses his case. Therefore, Dr Chatterjee’s evidence does not support the claim pleaded.
Menzies further argues that the reference in Dr Chatterjee’s notes on 14 September 2007 to back pain whilst travelling to university is a reference to pain that occurred prior to that day and prior to any alleged work incident. Mr Murialdo argues that Dr Chatterjee’s notes are unclear and the suggestion that back symptoms arose prior to 14 September 2007 is simply speculation.
Even assuming that Menzies’ submission is correct, and the back symptoms developed while driving before 14 September 2007, that is of limited assistance in determining liability because there is no persuasive evidence, and I do not accept, that Mr Murialdo’s undoubted disc prolapse has resulted from driving. As I accept Mr Murialdo’s evidence that he referred to the driving because he did not want to make a workers’ compensation claim, I do not find Menzies’ submission persuasive on the issue of whether Mr Murialdo injured his back at work on 14 September 2007.
Menzies places great weight on Mr Murialdo’s evidence in cross-examination and invited me to listen to the audio recording of the evidence. I have done that and can state that the transcript is substantially accurate. Menzies relies on the following exchange at T11.5-26 about the St George Hospital notes:
“Q. Thank you. Now, when you saw - when you wrote that, and I’m referring to those words that you’ve identified, on 7 May 2008 that was true and correct?
A. Yes.Q. What you wrote?
A. Yes.Q. And what is true and correct is that the pain is - you initially started feeling the pain in your back whilst driving to university?
A. [Inaudible] correct.Q. So those words are not true and correct?
A. No.Q. To be fair to you, sir, you did say that they were true and correct and then you corrected yourself?
A. I didn’t understand your question initially.Q. You didn’t understand.
A. No.”
Menzies submits that the questions were straightforward and that Mr Murialdo changed his evidence after making a concession against his interests. It is clear that Mr Murialdo did change his evidence. However, even if it is assumed that he first experienced back pain while driving that does not mean that his claim fails. The question for me to determine is whether Mr Murialdo injured his back in the circumstances he claims on 14 September 2007.
Menzies also relies on the history taken by Dr Nguyen on 8 May 2008 of Mr Murialdo having had back pain for 10 months with no reported history of injury. When cross-examined, Mr Murialdo said he did not remember the history he gave to Dr Nguyen (T12.21-27). It is submitted that the inconsistencies in the histories Mr Murialdo gave to the doctors must be seen in the context that he made no “initial claim for compensation” and the witnesses relied on have provided their statements approximately one year after the alleged incident.
It is true that Mr Murialdo did not submit a claim form until 30 September 2008. However, his evidence is that he reported the incident on the day to his manager, Mr Snelson. Mr Snelson does not recall such a report. Given the circumstances of this claim, I consider it significant that he considered Mr Murialdo to be a “relatively reliable employee” who was “an honest and trustworthy person”. It is also significant that Mr Snelson does not dispute that Mr Murialdo has a back problem and that he concedes “perhaps” Mr Murialdo “aggravated” it with Menzies.
Menzies submits that Ms Quintana only corroborates Mr Murialdo’s claim to the extent that she confirms he complained of back pain while at work, but she did not witness the incident. It is true that she did not see Mr Murialdo lifting the rubbish bin when he felt pain. However, her evidence is more significant than Menzies suggests and is entitled to significant weight for several reasons:
(a)she is completely independent and has no interest in the outcome. Given that she described Mr Murialdo as “lazy” and that when she swapped areas with him she found them to be filthy, she could not be described as his close supporter or friend;
(b)she has an apparently definite recollection of seeing Mr Murialdo walking “in a funny way” from the area where he says the accident happened (the skip area) at about the time of the accident (late 2007) with his hand to his back, and of him complaining that he had hurt his back. That is more consistent with Mr Murialdo having injured his back at work than with him having developed back pain while driving;
(c)her evidence that she had never seen an injury book at Narellan Vale tends to confirm Mr Murialdo’s evidence that there was no injury book at that school, and
(d)her hand written statement of 12 September 2008 also confirms that Mr Murialdo complained to her in September 2007 about a “rubbish trolley accident” after she asked him what was wrong. This evidence directly links the complaint of back pain referred to in her October 2008 statement to the emptying of the rubbish bin, as claimed by Mr Murialdo, as opposed to any other potential cause.
In these circumstances, I do not accept Menzies’ submission that Ms Quintana only corroborates Mr Murialdo’s claim to the extent that she confirms a complaint of back pain at work. It is supportive of the claim and I accept it as being plausible and probative. Huber’s evidence is similarly supportive and consistent with Ms Quintana’s evidence as to the time, place and circumstances of the injury. In view of his relationship with Mr Murialdo, Huber’s evidence is not entitled to the same weight as Ms Quintana’s independent evidence, but it nevertheless adds to a consistent picture that supports Mr Murialdo’s claim.
Therefore, notwithstanding the inconsistent histories recorded in the medical evidence, I am satisfied that Mr Murialdo injured his back in the course of his employment whilst lifting a trolley at Narellan Vale Public School on 14 September 2007. The alternative is that Mr Murialdo and Huber have lied about the events on 14 September 2007, and Ms Quintana is mistaken as to the circumstances in which Mr Murialdo complained to her of back pain in 2007. I do not accept that to be the case. A further alternative is that Mr Murialdo injured his back whilst driving to university before 14 September 2007 and at work on 14 September 2007. This scenario raises the question of whether employment was a substantial contributing factor to the injury.
Substantial contributing factor
The insurer’s poorly drafted section 74 notice did not dispute whether employment was a substantial contributing factor to Mr Murialdo’s injury (section 9A of the Workers Compensation Act 1987). At the arbitration, counsel for Menzies unsuccessfully sought leave to dispute that issue. Menzies does not challenge the Arbitrator’s ruling but argues that, even though the insurer did not dispute whether employment was a substantial contributing factor to the injury, Mr Murialdo is still required to establish a prima facie entitlement to compensation. Without deciding if that submission is correct, I am comfortably satisfied that the evidence establishes that Mr Murialdo’s employment was a substantial contributing factor to his back injury on 14 September 2007.
Employment does not have to be the substantial contributing factor to the injury. It is trite law that an injury can have more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). Employment will be a substantial contributing factor to the injury if the causal connection is “real and of substance” (per Davies A-JA in Dayton v Coles Supermarket Pty Ltd (2001) 22 NSWCCR 46, [2001] NSWCA 153, applied by Allsop P, Beazley JA and McColl JA in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 at [83]).
Menzies seems to base its argument on an assumption that Mr Murialdo had a significant back condition prior to 14 September 2007 and/or that he has not established that his employment was a substantial contributing factor to his injury. As it has tendered no medical evidence, Menzies relies on the histories recorded by Dr Chatterjee, St George Hospital and Dr Etherington, and on Mr Murialdo’s evidence in cross-examination. Even if it is accepted that those histories are accurate, they merely establish, at best, that Mr Murialdo experienced back pain whilst driving in August 2007.
There is no persuasive evidence that driving caused Mr Murialdo’s L4/5 disc prolapse or that the contribution from the lifting incident on 14 September 2007 was minor, or that the connection with employment was remote or tenuous. Even if it is accepted that driving caused Mr Murialdo to have back symptoms before 14 September 2007, I am comfortably satisfied that lifting a rubbish bin in the course of Mr Murialdo’s employment was a substantial contributing factor to his injury, namely an L4/5 disc prolapse. His evidence of a sudden development of significant back symptoms on that day, his continuing symptoms since, and his regular attendances on Dr Chatterjee for back pain in the months following, all strongly support this conclusion.
Considering the terms of subsection (2) of section 9A, the injury happened at work while Mr Murialdo performed his usual work duties. There is no persuasive evidence that the injury, or a similar injury, would have happened anyway at about the same time or stage of Mr Murialdo’s life, if he had not been at work or had not worked for Menzies. Accepting Menzies’ argument of the existence of prior back pain does not diminish the significance of the incident on 14 September 2007.
Other than Dr Chatterjee’s notes and Mr Murialdo’s evidence, there is no evidence of the state of Mr Murialdo’s health before 14 September 2007. Dr Chatterjee’s reference to Mr Murialdo complaining of back pain in February 2006 does not diminish the significance of the injury on 14 September 2007. Dr Chatterjee’s note in February 2006 is consistent with Mr Murialdo’s evidence that he had suffered “muscular strains” in his low back before September 2007. Whether those strains were from driving or from other causes is not decisive. Mr Murialdo’s evidence in cross-examination that the first time he felt back pain was when he injured himself (T9.54) is clearly inconsistent with Dr Chatterjee’s notes and with his own statement and suggests a level of confusion on his part, but, for the reasons outlined above, that makes no difference to the outcome. Once it is accepted that Mr Murialdo injured his back while lifting a rubbish bin on 14 September 2007 and that his symptoms continued after that event, the only reasonable conclusion is that his employment was a substantial contributing factor to his injury.
Causation
Menzies argues that Dr Vote’s conclusion is undermined because he had no history that the onset of Mr Murialdo’s symptoms was associated with long periods of driving in the period shortly prior to 14 September 2007.
Though it is true that Dr Vote took no history of Mr Murialdo experiencing pain whilst driving, I do not believe that that omission undermines his conclusion. His history is consistent with the evidence, namely that Mr Murialdo had a mild aching in his back from time to time prior to the incident on 14 September 2007 and that he experienced sharp pain in his back when lifting a rubbish trolley on that day. He concluded that there was a direct connection between the onset of Mr Murialdo’s symptoms and the lifting incident.
I am comfortably satisfied that Dr Vote’s history provides a “fair climate” for the acceptance of his conclusion (Paricv John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510, (1985) 62 ALR 85, [1985] HCA 58). That is especially so where Mr Murialdo’s evidence, which I accept, is of experiencing sharp pain when lifting on 14 September 2007 and of continuing symptoms since that time.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded that, for the reasons given in this decision, the Arbitrator’s decision is correct. There is no challenge to the Arbitrator’s finding on incapacity and that finding is confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 1 September 2009 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal. Those costs are assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
22 December 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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