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

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.
The applicant alleges that on 8 March 2019, she was leaning over a cot in the childcare nursery room to lift a 14 or 15-month-old child when she felt pain in her lower back as she took the weight of the child whilst picking it up. According to the applicant, she was unable to continue working that day due to her pain and called her husband, who came to pick her up early from work. She states she was off work for two to three weeks but did not make a claim as she thought her pain would remediate with rest.
The applicant returned to work and continued in her normal duties, however, she states she continued to have pain in her lower back but was able to persist by relying on various pain medications, and occasionally taking her leave entitlements when the pain became unbearable.
On 13 March 2020, the applicant alleges she had another incident at work where she felt a sharp pain in her lower back while bending to pick up a child from the ground. She states that since that time, her symptoms did not improve and she has been unable to resume her duties owing to her lumbar spine symptoms.
The applicant also alleges that as a result of the pain medication which she has been taking since her back injury, she has developed a gastrointestinal condition. The applicant brings these proceedings seeking payment of permanent impairment compensation in respect of both her alleged lumbar spine impairment and that of her gastrointestinal system. The applicant claims the injury is by way of aggravation to pre-existing lumbar spine pathology.

ISSUES FOR DETERMINATION

The respondent disputes both the lumbar spine injury and gastrointestinal condition and denies the applicant’s employment was the main contributing factor to either.
The parties agree that if either of the alleged injuries are proven, they will be remitted to the President for referral to a Medical Assessor to determine the applicant’s degree of whole person impairment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 8 November 2023. At the hearing, the applicant was represented by Mr Trainor of counsel instructed by Ms Ang. The respondent was represented by Mr Morgan of counsel instructed by Mr Rago.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a lumbar spine injury

There is no doubt the applicant had pre-existing pathology in her lumbar spine. The findings on radiology make as much clear. Moreover, there is no issue she suffered a low back injury in a motor vehicle accident in or about 2006, at which time she suffered back pain radiating to her right leg.
X-rays taken after the 2006 motor vehicle accident revealed lumbar spondylosis with disc space narrowing at the L5/S1 level.
The applicant has the onus of proving that she suffered a work-related injury. “Injury” is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act). Relevantly, that section provides:
“In this Act: injury means…
(b) includes a ‘disease injury’, which means:
‘…
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…’”
There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12 (Castro). That case makes clear that what is required to constitute injury is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning by way of atrial fibrillation, without pathological change, did not constitute an injury pursuant to s 4.
A worker is able to rely on injury simpliciter despite the existence of a disease, as was highlighted in the High Court decision of Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar). In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. The congenital condition could be characterised as a disease, however, that would not have satisfied the requirements of cl (b) in the definition of s 4 as it then was. The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held the presence of a disease did not preclude reliance upon the event of the rupture as a personal injury.
In this matter, the presence of pre-existing radiological changes in the applicant’s spine is arguably analogous to the aneurysm suffered by Mr Zickar. The question, however, is whether the incident at work on 8 March 2019 could be said to have caused any aggravation of that underlying condition.
Where a worker pleads injury by way of aggravation of an underlying disease process, it is important to remember the injury is the aggravation, not the underlying pathology. As Roche DP pointed out in Kelly v Western Sydney Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly):
“66. An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms”.
The question of “main contributing factor” in claims surrounding injuries involving aggravation of a disease process has been considered in numerous authorities in the Commission. Cases such as Ariton Mitic v Rail Corporation of NSW (Matter number 8497 of 2013) and Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 make clear that for a worker to succeed on a claim of injury by way of aggravation, they must establish their employment was the principal or chief contributing factor to the aggravation, not to the underlying pathology (see also Mylonas v The Star Pty Ltd [2014] NSWWCC 174).
The authorities in the Commission and its predecessors concerning injury by way of aggravation broadly follow the reasoning of the High Court in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch). In Cant v Catholic Schools Office [2000] NSWCC 37 (Cant), Burke CCJ said in relation to Semlitch:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated, there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker” (emphasis added).
His Honour’s reasoning is consistent with that of the Court of Appeal in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha), in which the Court made clear that in cases such as the present where the alleged injury consists of an aggravation of a disease, the effects of the injury are to be confined to those which are entirely caused by the aggravation to the pathology rather than the underlying pathology itself.
It can therefore be said that the proper test is whether the aggravation has impacted the individual concerned.
For the respondent, Mr Morgan relied, inter alia, on an absence of reporting of the alleged work-related injury and a lack of complaint concerning the work incident to the applicant’s general practitioner for a period of approximately one year after the alleged injury took place.
In this matter, the applicant explained her failure to report the incident in her statement. She described the incident and its sequelae as follows:
“8.     On 8 March 2019, I was leaning over into a cot in the childcare nursery room to lift a fairly large 14 or 15-month-old child when I felt pain in my lower back when I bent over and took on the weight of this child.
9.     I was unable to continue working that day due to the severe pain and called my husband, who came to pick me up earlier from work.
10.    I consulted my GP and was referred for scans and physiotherapy treatments. I was also prescribed with analgesic medication.
11.    I was off for two or three weeks from work. I had not made a claim then as I thought the pain would go away with rest.
12.    After I returned to work, I continued to have pain symptoms to my lower back, but I remained working my pre-injury duties and hours, relying on various pain medications. I took sick leave and other accrued leave when the pain was unbearable.
13.    On 13 March 2020, I had another incident at work where I felt a sharp pain in my lower back when bending to pick up a child from the ground. I felt the sharp pain in my lower back which went down my right leg to my right toes.
14.    As my pain symptoms did not improve, I have not been able to resume my duties since then as I could not trust myself with lifting babies or young children for fear of dropping them due to my injuries”.
That evidence by the applicant is uncontested, and I accept it. Whilst I note Mr Morgan’s submission that the motor vehicle accident and degenerative changes account for the presence of the pathology in the applicant’s spine, this injury is pleaded by way of aggravation caused by the frank incident in March 2019. Although there is no reference in the applicant’s initial complaints to her general practitioner of the relevant event at work, I note the usual caution which must be taken when relying upon histories contained in the clinical records of treating practitioners. I also note the applicant has explained why she did not initially make a work injury complaint.
What is, however, consistent is the presence of ongoing symptoms in the applicant’s lumbar spine since the date of injury. Whilst the pathology in the applicant’s lumbar spine was plainly pre-existing, a fact which she readily concedes, what is equally apparent is her symptoms have worsened since the incident at issue. Her complaints since that incident have been consistent and are ongoing. I have no difficulty in accepting the injurious event took place, that the event aggravated the applicant’s pre-existing lumbar spine pathology and that as a result, her experience of the effects of that degenerative pathology in her lumbar spine has worsened.
The only evidence which contradicts the applicant’s complaint is the report of independent medical examiner (IME) for the respondent, Dr Wallace. In his report dated 22 December 2020, Dr Wallace indicates “The opinion provided in this report is based entirely upon the evaluation of objective findings identified on 15 December 2020”. As Mr Trainor noted, a failure by a practitioner to take into account subjective complaints by an injured person is a failure to take into account relevant matters in the forming of their opinion. This is especially the case where the alleged injury is in the nature of an aggravation, as the authorities make it clear the subjective experience of a worsening in a pre-existing condition, regardless of whether there is a worsening of the underlying pathology, is sufficient to form the basis for a finding of injury.
Dr Wallace accepted a diagnosis of the alleged work injury on 8 March 2019 and also pre-existing multilevel degenerative lumbar spondylosis, which is not work-related. Dr Wallace, in assessing the cause of the applicant’s lumbar complaints, then noted:
“There is no objective medical evidence that Ms Bigeratan suffered any injuries at her lumbar spine as a result of the work incidents on 8 March 2019 or 13 March 2020. In particular, I note that she did not report either incident to her employer at the time of her alleged injuries”.
The applicant has, however, explained why she did not report her injury. Additionally, Dr Wallace’s focus on objective medical evidence, presumably either by way of physical examination and/or radiological evidence ignores, in my opinion, the very nature of a work-related aggravation. Dr Wallace stated, “Her current lumbar spinal disability is due to pre‑existing symptomatic multilevel degenerative lumbar spondylosis detailed on MRI investigation carried out on 5 November 2020”.
That comment by Dr Wallace is, as far as it goes, plainly true. The presence of the pathology in the applicant’s spine is the underlying cause of her difficulties. However, as indicated, the incident in March 2019 has caused a persisting aggravation to that underlying pathology such that its symptoms have worsened. In his report, Dr Wallace does not factor in that worsening of symptomology or consider the work incident may have caused the applicant’s symptoms to worsen.
As a matter of practicality, the applicant had carried out her duties working in a childcare centre for many years despite the presence of the underlying lumbar pathology. It was only once these work-related incidents occurred that the applicant’s condition got to the point where she required the taking of leave and thereafter an increase in analgesic medication.
I therefore have no difficulty in accepting on the balance of probabilities that the preponderance of the medical evidence supports a finding the applicant suffered an injury by way of aggravation to her lumbar spine in the course of her employment with the respondent on 8 March 2019, and her employment was the main contributing factor to that aggravation. I also accept the applicant suffered a later recurrence in the course of her employment, however, the deemed date of injury of 8 March 2019 is, in my view, appropriate given it was that point in time when the applicant’s symptoms worsened. In any event, no issue was taken with the pleaded deemed date of injury.
Given these findings, the injury to the applicant’s lumbar spine will be remitted to the President for referral to a Medical Assessor to determine the applicant’s permanent impairment arising from the injury on 8 March 2019.

Whether the applicant suffered a gastrointestinal condition as a result of her work-related injury

The applicant also bears the onus demonstrating that her gastrointestinal problems are caused by her work-related injury. In this instance, she alleges that her taking prescription painkillers and nonsteroidal anti-inflammatories (NSAIDs) is the cause of her ongoing symptoms. I have no difficulty accepting the applicant’s alleged gastrointestinal symptoms are real and cause her difficulty.
However, the applicant has the evidentiary onus of establishing it is the medication she began taking and continues to take as a result of her back injury which is causing her problems. For the following reasons, I am not satisfied on the balance of probabilities that the applicant has satisfied her onus of proof in this regard.
Mr Trainor noted the respondent has not relied on an IME report in relation to the alleged gastrointestinal condition. That much is true; however, that absence does not preclude a finding against the applicant. The applicant’s own evidence must reach the requisite standard of proof.
In this matter, the applicant’s IME, Dr Berry, states that the applicant’s painkilling medication is the cause of her issues, noting there were no other irregularities in her gastrointestinal system found in a colonoscopy carried out by treating specialist Dr Almeida on 9 August 2022.
However, Dr Berry’s comments in relation to that examination are incorrect. Dr Almeida’s report to the applicant’s general practitioner, Dr Emin, notes the applicant’s gastroscopy revealed the presence of Helicobacter pylori-related gastritis but otherwise the colonoscopy was essentially normal. In terms of the applicant’s further treatment, Dr Almeida said:
“I have discussed the results with [the applicant] but unfortunately due to her severe allergic reaction to amoxicillin, standard therapy is not possible. In light of the fact that the second line therapy requires multiple medications which are likely to interact with her other drugs, I have opted to keep her on regular pantoprazole and do gastric surveillance every two years.
In addition, I have kept her on a combination of psyllium husk and OsmoLax to improve her bowel habits.”
In her statement, the applicant noted:
“17.   I have been prescribed with various analgesic medication and antidepressants including Voltaren EC, Nurofen Plus, Endone, Lyrica and Endep.
18.    I started developing gastrointestinal symptoms including reflux and constipation.
19.    I consulted my treating doctors for these symptoms and was advised these were most likely due to my long-term intake of analgesic medication. I was prescribed with Somac EC which provided some relief of my gastrointestinal symptoms.”

That statement by the applicant must be given limited weight, regardless of my accepting her as a witness of truth. It is plainly hearsay and, if not, is lay opinion of a matter which ought to be the provenance of appropriately qualified experts.
There is no evidence in the applicant’s case as to the dosage of painkilling medication which the applicant has been taking, and for how long she has been taking it. Certainly, Dr Berry does not provide any such details in establishing a basis for his opinion. An expert’s opinion can only carry the weight afforded to it by the assumptions upon which it is based.
In this matter, there is no evidence, either by the applicant or her IME, Dr Berry, which satisfies me her intake of prescription painkilling medication brought about by the injury to her lumbar spine is causative of her gastrointestinal issues. Likewise, the treating material does not reveal the dosage of such medication and the length of time for which the applicant has taken it.
Dr Almeida certainly provides no comment as to the cause of the applicant’s gastrointestinal issues, nor would one expect him to, given he provided a report to the applicant’s general practitioner and was not asked to comment on causation.
Nevertheless, Dr Almeida’s finding of the presence of Helicobacter pylori-related gastritis is contrary to the expert opinion upon which the applicant relies, being that of Dr Berry. Essential to Dr Berry’s opinion is the assertion that there were no irregularities found in the applicant’s gastrointestinal symptoms which would lead to an explanation for her issues, other than them being caused by her prolonged taking of painkilling medication. However, Helicobacter pylori was found to be present in the procedure undertaken by Dr Almeida, and in my view the presence of such bacteria militates against a finding in support of Dr Berry’s contention that there were no pre-existing irregularities in the applicant’s gastrointestinal system.
This being the case, I am of the view the applicant has not proven on the balance of probabilities that her gastrointestinal symptoms, though very real and troubling to her, have been caused by the injury at issue.
For these reasons, there will be an award for the respondent on the claim for gastrointestinal condition/injury.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 5

8 January 2024