Bideratan v Malek Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Bideratan v Malek Group Pty Ltd [2024] NSWPIC 5

APPLICANT:

Belgin Bideratan

RESPONDENT:

Malek Group Pty Ltd

MEMBER:

Cameron Burge

DATE OF DECISION:

8 January 2024

CATCHWORDS:

WORKERS COMPENSATION - Permanent impairment compensation; alleged injury by way of aggravation to lumbar spine and consequential condition to gastrointestinal (GI) system by virtue of long-term prescription of pain killing and anti-inflammatory medication; Held – the applicant suffered injury by way of aggravation to her pre-existing lumbar pathology; the absence of reporting of the work-related incident was explained by the applicant in her statement evidence; although the pathology in the applicant’s spine was pre-existing, the evidence discloses contemporaneous and persistent deterioration in her symptoms since the workplace incidents at issue; that worsening of symptomology, against a background of the applicant having worked for many years after the prior MVA which gave rise to her lumbar pathology, is sufficient to ground a finding of injury to the lumbar spine; the applicant has not discharged the onus of proof in relation to the alleged gastrointestinal condition; there is no evidence as to the dosage and length of time for which the applicant has been prescribed the medication which she alleges caused her condition; although her IME Dr Berry attributes her condition to that medication, the tests undertaken by the applicant’s treating specialist reveal the presence of pathology which is, contrary to Dr Berry’s assertion, at least suggestive of matters other than the prescription of medication as being the cause of the applicant’s GI issues; claim for lumbar spine impairment remitted to the President for referral to a Medical Assessor; award for the respondent on the claim for GI injury/consequential condition.

DETERMINATIONS MADE:

The findings and reasons are as follows:

1.     The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent with a deemed date of injury of 8 March 2019.

2.     Award for the respondent on the claim for injury/consequential condition to the gastrointestinal tract.

3.     The claim for permanent impairment compensation to the lumbar spine is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:

Date of injury: 8 March 2019 (deemed)

Body system referred: lumbar spine

Method of assessment: whole person impairment.

4.     The documents to be referred to the Medical Assessor to assist with their determination are to include the following:

(a)     this Certificate of Determination and Statement of Reasons;

(b)     Application to Resolve a Dispute and attachments, and

(c)     Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Belgin Bigeratan, was employed as a childcare worker with Malek Group Pty Ltd (the respondent). She commenced employment in that capacity in or around 2000 for an entity known as Raelene Corp Pty Ltd, which business name was later changed in 2015 or 2016 to that of the respondent.

2. The applicant alleges that on 8 March 2019, she was leaning over a cot in the childcare nursery…