Chapple v Woolworths Limited - [2021] NSWPIC 66

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chapple v Woolworths Limited [2021] NSWPIC 66
APPLICANT:	Michelle Chapple
RESPONDENT:	Woolworths Limited
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	7 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses for proposed surgery to insert gastric minimizer ring; accepted lumbar spine injury and consequential knee conditions; previous gastric bypass surgery found to be reasonably necessary as a result of lumbar injury in prior proceedings; issue estoppel; subsequent knee surgery and further weight gain; evidence of weight loss on medication; Held- recent weight gain multifactorial; injury materially contributed to present need for surgery; Murphy v Allity Management Services Pty Ltd applied; alternative treatments considered; Diab v NRMA Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service applied; proposed surgery reasonably necessary as a result of lumbar injury.
DETERMINATIONS MADE:	1. The procedure proposed by Dr Brendan Ryan is reasonably necessary as a result of the lumbar spine injury of 31 May 2014 (deemed). 2. The respondent to pay the costs of and ancillary to the procedure proposed by Dr Ryan pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Michelle Chapple (the applicant) was employed by Woolworths Limited (the respondent) when she sustained an injury to her lumbar spine. Liability for the lumbar spine injury and a consequential knee condition is not in dispute.
The applicant claimed that as a result of the injury she had gained a significant amount of weight. On 1 August 2016, the applicant underwent gastric bypass surgery performed by Dr Brendan Ryan. On 27 March 2019, the Workers Compensation Commission determined that the surgery was reasonably necessary as a result of the injury and ordered the respondent to pay the costs of and ancillary to the surgery.
On 24 November 2020, Dr Ryan provided an Estimation of Fees for a further procedure to insert a gastric MiniMizer ring.
On 15 December 2020, the respondent disputed liability for pay for the further surgical procedure in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 15 January 2021. The ARD sought compensation under s 60 of the Workers Compensation Act 1987 for the costs of the proposed surgery. The ARD was amended at conciliation conference on 16 March 2021 to include a claim for the costs ancillary to the proposed surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a)whether the surgery to insert a gastric MiniMizer ring proposed by Dr Ryan is reasonably necessary as a result of the lumbar spine injury of 31 May 2014 (deemed).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 March 2021. The applicant was represented by Mr Ross Stanton of counsel, instructed by Ms Silva Ishac. The respondent was represented by Mr Larry Brazel of counsel, instructed by Mr Sean Patterson.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    document attached to an Application to Admit Late Documents lodged by the applicant on 23 February 2021, and

(d) document attached to an Application to Admit Late Documents lodged by the respondent on 10 March 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements dated 13 January 2021 and 23 February 2021.
In her first statement, the applicant gave a history of an injury to her back in a motor vehicle accident in 2002. The applicant required a fusion surgery in 2006 but felt she had recovered well. Following the fusion surgery, the applicant was off work for five years, receiving income protection payments.
The applicant’s son was born in 2004. In the same year, she underwent a gastric band procedure performed by Dr Roy Brancatisano. The applicant experienced some complications with the procedure and had to have it reversed. The applicant gained some weight after this.
The applicant said she lost a lot of weight through diet and exercise and in around 2010/11, was down to 70 kg. The applicant was able to maintain her weight and weighed about 72 kg immediately prior to her injury. In the years prior to the injury, the applicant’s weight fluctuated between 70 and 75 kg.
The applicant’s work for the respondent required her to pack and unpack stock and serve customers. There was a lot of heavy lifting. The applicant noticed back pain in April 2014 and underwent cortisone injection on or around 23 May 2014.
On 31 May 2014, the applicant worked a 17.5 hour day with no breaks. The applicant had to stack 450 kg of bacon and four tonnes of chicken on her own and her back pain became severe.
The applicant took time off work and consulted her general practitioner and a sports physician who recommended a lumbar block. The applicant’s pain decreased slightly after the lumbar block and she returned to work. The applicant performed light duties at her normal hours but found her pain gradually got worse. The applicant had injections to treat her pain. The applicant resumed her normal duties in September 2014.
In December 2014, the applicant asked to change to a checkout operator position/bakery as her pain was unbearable. The work still involved some lifting and a lot of squatting. The applicant was in severe pain and began experiencing pain down her left leg.
In 2015, the applicant was referred to orthopaedic surgeon, Dr Brian Hsu. The applicant made a claim for compensation on 21 April 2015.
The applicant underwent lumbar fusion surgery performed by Dr Hsu on 28 November 2015. A further surgery was performed on 1 December 2015.
The applicant had two significant falls in June and July 2016 in which she hurt her right knee.
The applicant said she gained considerable weight after her injury. By early 2016, she weighed around 119 kg. The applicant said she could not do the exercise needed to maintain her healthy weight and it gradually increased. The increased weight put more pressure on her back and knees.
In May 2016, bariatric surgeon, Dr Brendan Ryan recommended the applicant undergo a gastric bypass procedure. The respondent’s insurer declined to pay for the procedure. The applicant eventually paid for the procedure herself and it was performed on 1 August 2016. Following the procedure, the applicant lost about 32 kg.
The applicant underwent arthroscopies of both knees on 19 August 2019, performed by Dr Ali Gursel.
On 22 January 2020, Dr Ryan recommended the applicant undergo a revision of her bypass surgery to insert a MinimMizer ring to decrease the size of the applicant’s gastric pouch. The applicant said her other doctors had advised that she would benefit from further weight loss.
In her supplementary statement, the applicant confirmed that she had started Saxenda therapy in around January 2020. The applicant said:
“This therapy was effective at first but then I would find that my body would build up tolerance to it quickly and I did not find it was working. That is, I would lose the weight quickly at the beginning and then my weight would stop going down any further. My appetite would also increase, whilst still on the medication.
I would stop this medication, reset by having a break from it and then would restart the medication again. This seemed to be effective to start with.
This medication was not something that would continue to work for me otherwise I would not have considered the minimizer ring surgery if this medication had continued to work for me.
The most I could lose from this medication is 4kg which is not enough.”
The applicant expressed concern about the long-term effects of Saxenda if it were continued. The applicant also noted that it was expensive:
“…this medication costs $360 a month, if taken on an ongoing basis for long periods, it could very well exceed the cost of the minimizer ring procedure which is more affective and a permanent solution to losing the weight.”

Treating medical evidence

Clinical notes prepared by bariatric medical practitioner, Dr Anthony Brancatisano, dated 15 January 2020 record the history of the applicant’s previous bariatric surgeries. It was noted that “pre bypass” the applicant weighed 136 kg. The applicant was currently 89 kg. The applicant had undergone knee surgery in August 2019 and gained 10 kg. The applicant was trying to stick to a diet, eating entrée size portions. Dr Brancatisano noted “snks; some rubbish foods, not hungry, some boredom eating.”

Dr Brancatisano prepared a report for the applicant’s general practitioner on 21 January 2020. Dr Brancatisano noted that the applicant had been able to lose 40 kg in weight following her gastric bypass surgery but had gained almost 9 kg since a knee surgery in August 2019. The applicant weighed 93.2 kg at the date of Dr Brancatisano’s report. Dr Brancatisano stated:
“We discussed the use of contrave or saxenda as adjuvant drug therapy. Since Michelle takes opioids for her analgesia contrave is contraindicated so I wrote her a script for saxenda. We discussed dose escalation, side effects and expected weight loss.”
Bariatric surgeon, Dr Brendan Ryan, prepared a report dated 22 January 2020 for the applicant’s general practitioner. Dr Ryan noted that in the last year the applicant had undergone surgery for chronic knee pain and in the setting of her immobilisation and use of strong painkillers and psychotropic medication, had gained weight from a lowest of 78 kg to 93 kg currently. This had affected the applicant’s quality of life significantly with exacerbation of her pain, swelling of ankles and reduced mobility. In the setting of adequate diet, daily Saxenda injections had commenced under the supervision of Dr Brancatisano.
Dr Ryan reported that a barium swallow and CT fizz study showed evidence of fairly rapid transit through the gastric pouch into the small bowel which was now acting as a neo-stomach and increasing the relative reservoir effect corresponding to increase portion size. Dr Ryan stated:
“I believe that in helping Michelle battle her weight regain, the option is to revise her gastric bypass with simple placement of a silicone band around the gastric pouch called a MiniMizer Ring. This would be able to be performed laparoscopically and would entail a 1-hour operation with division of adhesions and an overnight stay in the hospital. The role of the MiniMizer Ring would be to reduce gastric emptying and increase the volume restriction of her meals which will help her lose further weight. Therefore, we would request for this to be considered as a surgical option and we will provide the costing by our rooms.”
On 14 February 2020, Dr Brancatisano reported that the applicant had been prescribed Saxenda 4 weeks ago and had so far lost 4 kg. The applicant was delighted with her progress. The applicant was at the maximum dose with no side effects. The applicant’s weight at that date was 86 kg. The applicant wished to continue with Saxenda.
On 5 March 2020, Dr Ryan reported that the applicant had lost 7 kg since commencing Saxenda therapy. The applicant’s weight was 86 kg. Dr Ryan again discussed revising the gastric bypass with a MiniMizer ring to help with further weight loss.
On 17 March 2020, exercise physiologist Mr Luke Bowen reported:
“Michelle has been less consistent with attendance over the past two months, mainly due to work commitments. I have not been able to steadily build her exercise tolerance due to this reason, but Michelle is tolerating her current work duties well otherwise.”
In a further report dated 8 September 2020, Dr Ryan set out a history of the applicant’s treatment for weight gain. Dr Ryan said when he first saw the applicant in May 2016 she weighed 119 kg. The applicant had a gastric band inserted 2004. The applicant had chronic back pain relating to an injury at work and underwent lumbar fusion in November 2015. The applicant went on to have removal of her gastric band and conversion to a mega loop gastric bypass on 1 August 2016. The applicant initially had a good response to the surgery and reduced her weight to 76 kg. That had gradually increased 89 kg when Dr Ryan saw her in December 2019.
Dr Ryan stated:
“She unfortunately had ongoing need for strong painkillers and psychotropic medication including Seroquel, nortriptyline, and Lyrica which unfortunately may be the trigger for weight gain as these medications are associated with this and she also had further surgery on her knees which reduced her mobility and ability to exercise.”
Dr Ryan noted that these issues had led to weight gain which caused the applicant to see Dr Brancatisano and trial a course of Saxenda. By this stage, the applicant’s weight was 93.2 kg mainly due to mobility and knee surgery in August 2019. Dr Ryan stated:
“She had some response to the Saxenda treatment losing 4kg. However, in Michelle’s case, it is vitally important for her to get her weight down as low as possible as her overall health is closely linked to her weight. She is confined by the mobility issues as mentioned and the next surgical step is to offer a MiniMizer Ring, a silicone band that can be placed around the gastric bypass to reduce portion sizes and level of restriction further.”

Dr Berry

The applicant relies on a medicolegal report prepared by general surgeon, Dr Neil Berry, dated 9 October 2020. Dr Berry noted that he had previously seen the applicant on 22 September 2016 at which point she weighed 102 kg, down from 119 kg following Dr Ryan’s gastric bypass surgery.
Over the previous 12 months, the applicant reported that her weight, which she had reduced to 72 kg after the gastric bypass, had gradually increased. This was attributed to decreased mobility after arthroscopic surgery on both knees. It was also thought that her bypass surgery may not now be as effective as it was originally.
Dr Berry noted that Dr Ryan wanted to revise her bypass surgery and insert a MiniMizer ring to decrease the size of her gastric pouch.
Dr Berry gave an opinion as follows:
“I would be of the opinion that as a result of her work she sustained an injury to her back in 2014 which required an L3/4 fusion. The lack of mobility resulted in her weight increasing from 72kgs to 119kgs and therefore she required gastric bypass surgery in order to control her weight.
On the basis of the claimant’s history and physical examination, I would consider that her chronic back pain has interfered with her mobility and that her previous bypass surgery is now not as effective, and I would consider it reasonable for this to be revised with the insertion of a minimizer ring. I would consider that this requirement is a consequential condition arising from her back injury in 2014.”

Dr Smith

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Anthony Smith, dated 5 February 2020.
Dr Smith took a history of the injury and subsequent treatment as well as a history of the applicant’s bariatric surgeries that was broadly consistent with the other evidence. Dr Smith noted that the applicant continued with low back pain and bilateral knee problems.
Asked to comment on the prescription of Saxenda, Dr Smith commented:
“I am an orthopaedic surgeon and do not deal with weight loss problems. However, Contrave is a weight loss medication that is contraindicated with opiates and Saxenda is also a weight loss medication. I would have thought that if one goes to the trouble of having bariatric surgery to reduce weight, one would not need to take weight loss medication.”
Asked whether the surgery proposed by Dr Ryan was reasonably necessary as a result of the applicant’s injury, Dr Smith commented:
“There is, in my opinion, no relationship between her overweight condition, her spinal degenerative disease and her knee osteoarthritis. Being overweight is not uncommon and occurs in the absence of spinal and knee pathology.”

Dr Sethi

The respondent also relies on a medicolegal report prepared by gastroenterologist, Dr Siddarth Sethi, dated 9 March 2021.
Dr Sethi took a history that was broadly consistent with the other evidence and gave an opinion as follows:
“Ms. Chapple has obesity which is mainly related to excess calorie intake over a prolonged period of time. It is not related to her work injury and would almost certainly have developed regardless of whether the work injury occurred or not. I shall outline my reasoning below.

Ms. Chapple had a pre-existing history of severe obesity several years before the work injury in 2014. She had undergone a gastric band operation for obesity in 2004 which is 10 years before her work injury. It is unreasonable to blame her work injury for her obesity when she had a documented past history of obesity which was severe enough to require surgery.
Ms. Chapple was taking Saxenda which is a proven and established method for achieving weight loss. She lost 7kg after commencing this. There was no valid or reasonable reason to cease this given that she lost weight and did not experience any side effects. It would be more reasonable for Ms. Chapple to recommence Saxenda rather than undergo surgery.
Ms. Chapple’s obesity is likely related to excess calorie intake. Dr. Brancatisano noted in a consultation on 15/1/20 that she had been ‘eating some rubbish foods with boredom eating’. This very likely significantly contributed to her obesity.
Ms. Chapple has reduced physical activity likely related to low motivation to exercise. I note that her exercise physiologist commented that she had been inconsistent with her attendance over the last two months.”

Dr Sethi concluded that there was no relationship between spinal and knee surgery and the applicant’s obesity.
Asked whether the procedure proposed by Dr Ryan was reasonably necessary as a result of the injury, Dr Sethi responded:
“In my opinion, the gastric minimiser surgery is not reasonably necessary as a result of the team member’s work injury sustained on 30 May 2014. There are more effective alternative treatments such as recommencing Saxenda, restricting calorie intake and increasing physical activity. This would be much more cost effective and successful than the proposed gastric minimiser surgery.”

Workers Compensation Commission proceedings 6745/18

On 27 March 2019, the Workers Compensation Commission determined that the gastric bypass surgery performed by Dr Ryan on 1 August 2016 was reasonably necessary as a result of the applicant’s lumbar injury.
Arbitrator Wynyard found that there was a causal link between the back injury and the consequential weight gain between December 2015 and 1 August 2016:
“Whilst I accept that Ms Chapple has experienced a problem with weight gain in her life, she demonstrated that she was able to control it. Indeed, the evidence shows that she was determined to stay on top of it after the failure of the gastric band surgery with Dr Brancatisano in 2004. I accept that once the band was removed that Ms Chapple then initially regained the weight that she had lost. I accept that prior to the 2004 gastric banding surgery, following the birth of her son, her weight increased to 115-120 kg. The evidence is not clear as to how much weight she gained after the failure of the 2004 surgery, but the evidence is clear that by the time of the 2014 subject back injury her weight was around 70 kg. She achieved that weight control through dieting, and the use of a personal trainer.
I accept her evidence that back surgery of December 2015 dramatically reduced her ability to continue that control. As noted by Dr Ehrlich on 21 July 2017 her weight which had by then ballooned to 120 kg together with the condition of Ms Chapple’s back placed obvious barriers on her mobility. Such was and is Ms Chapple’s determination that when the insurer delayed in its response to her request to have that surgery funded, she went ahead and pay for it herself.
The effectiveness of that surgery was plain in the appearance of Ms Chapple at the hearing.”

Arbitrator Wynyard also found that proposed bilateral knee arthroscopies as recommended by Dr Ali Gursel were reasonably necessary as result of the injury.

Applicant’s submissions

Mr Stanton referred to the determination of Arbitrator Wynyard and his finding of a causal link between the back injury and the consequential weight gain between December 2015 and 1 August 2016. It was found that prior to the back injury, the applicant’s weight was around 70 kg which had been achieved through dieting and use of a personal trainer. The applicant’s previous problem with weight gain had very successfully been dealt with. Arbitrator Wynyard accepted that the back surgery dramatically reduced the applicant’s ability to control her weight and her immobility lead to a significant increase in weight. This caused the need for the bariatric surgery for which the respondent was required to pay.
Mr Stanton submitted that Arbitrator Wynyard’s determination created an issue estoppel consistently with Feltham v St Vincent’s Hospital[1]. No findings inconsistent with Arbitrator Wynyard’s findings could be made. The respondent was seeking to assert that the applicant’s weight gain related to excess calorie intake over a long period of time in the words of Dr Sethi. The respondent’s defence was premised on a proposition that the weight gain was not related to the work injury. That defence was said to be inconsistent with Arbitrator Wynyard’s determination.
[1] [1993] 9 NSWCCR 547.
Mr Stanton submitted that it was incumbent on the Commission to ensure that its findings and conclusions in this matter were legally consistent with the findings of Arbitrator Wynyard.
Mr Stanton noted that Arbitrator Wynyard also dealt with proposed bilateral knee arthroscopies in his determination. The respondent was ordered to pay for the knee arthroscopies as the knee conditions were causally related to the back injury. Mr Stanton submitted that that was a matter which the respondent also could not cavil with due to issue estoppel.
Mr Stanton observed that the factual situation had developed since Arbitrator Wynyard’s orders. The applicant had gone on to have the knee surgery. The applicant gave evidence that her knees had improved since the surgery but she still had difficulties with long walking distances and crouching or kneeling.
Dr Brancatisano recorded that the applicant had managed to lose 40 kg in weight following Dr Ryan’s surgery and was delighted with her progress. However, the applicant had gained almost 9 kg since her knee surgery in August 2019. Mr Stanton submitted that this was a contemporaneous account of a significant weight gain since the knee surgery.
Mr Stanton submitted that the applicant’s back condition had also remained symptomatic and has been requiring the intake of strong painkillers. The applicant’s mobility was also affected by those symptoms.
Mr Stanton referred to Dr Ryan’s report of 22 January 2020. Dr Ryan confirmed that in the last year, the applicant had surgery for chronic knee pain and in the setting of her immobilisation and also in the setting of her strong painkillers and psychotropic medication, she had had regained weight from a lowest of 78 kg to 93 kg.
Mr Stanton submitted that Dr Ryan described weight gain which was multifactorial but causally related to the 2014 injury due to the need for surgery to the back, the persistence of symptoms following surgery and problems with weakness and balance leading to falls and consequential knee conditions requiring surgical treatment. The applicant had persisting problems with her back and knees and was taking strong drugs which had been associated with weight gain.
Mr Stanton submitted that the respondent’s defence, in part, was that the continued use of Saxenda was a better approach. Dr Ryan was aware of the applicant’s weight loss since using Saxenda but had explained that the MiniMizer ring would assist with further weight loss which was critical for the applicant in the context of her chronic back and knee pain.
Dr Ryan had particularised the costs of the surgery plus additional costs. There was nothing outrageous or unreasonable about the costs. The surgery involved a laparoscopic procedure and was not a major procedure requiring significant post-surgery care.
Dr Ryan described this as a relatively new procedure but one which had been around long enough for there to be large studies of patients. It was within Dr Ryan’s area of expertise to give the opinion that this was an accepted form of surgery. Medication alone was not sufficient. The applicant required the additional benefit of the surgery to bring about the much needed weight loss.
Mr Stanton referred to the applicant’s evidence as to her use of Saxenda. The applicant had lost 4 kg but this was not enough. The applicant said Saxenda was an expensive medication at $360 per month. If required to take it for an extended period it would be more costly than the surgery for the MiniMizer ring. Mr Stanton described this as a sound submission which illustrated why the surgery was reasonable and should not be foregone for the minimally effective Saxenda medication.
Mr Stanton noted that an opinion from surgeon Dr Berry had been provided. On the basis of the applicant’s history and physical examination, Dr Berry considered that her chronic back pain had interfered with the applicant’s mobility. The previous bypass surgery was now not as effective. Dr Berry considered it reasonable for this to be revised with the insertion of a MiniMizer ring. Dr Berry considered that this was a consequential condition arising from the back injury in 2014.
Mr Stanton noted that alternative opinions had been given by Dr Smith and Dr Sethi. Dr Smith was an orthopaedic surgeon and did not deal with weight loss problems. Dr Smith gave an opinion that there was no relationship between the applicant’s overweight condition, her spinal degenerative disease and her knee osteoarthritis. This opinion was, however, inconsistent with findings of Arbitrator Wynyard who had already found a causal connection between the weight gain and the back injury and also the knee condition and the back injury. Mr Stanton said Dr Smith’s opinion was of no assistance to the respondent.
Mr Stanton noted that as a gastroenterologist, Dr Sethi was in a better position to comment on the weight gain. Dr Sethi gave an opinion that the weight gain was related to excess calorie intake. This was also inconsistent with Arbitrator Wynyard’s previous findings. Mr Stanton said it would be erroneous for the Commission to make an inconsistent finding.
Mr Stanton submitted that the Commission would accept the opinions of Dr Ryan and Dr Berry. The Commission would accept that the current weight gain reasonably required treatment by the further procedure. The reasonable necessity for the procedure arose from the back injury, which set in train a series of events. The costs of the procedure were reasonable and the procedure was appropriate and accepted treatment for the applicant’s condition. The Commission would accept that the proposed procedure satisfied the factors considered in Diab v NRMA Ltd[2].
[2] [2014] NSWWCCPD 72.
Mr Stanton submitted that the respondent should be ordered to pay costs of and incidental to the proposed surgery.

Respondent’s submissions

Mr Brazel said that the respondent acknowledged the determination of Arbitrator Wynyard that the gastric bypass surgery was reasonably necessary and that weight gain up until time of Arbitrator Wynyard’s determination was causally related to injury.
The applicant was required to demonstrate that subsequent weight gain was connected to the injury. The respondent also said that the proposed surgery was not reasonably necessary.
Mr Brazel said the respondent did not seek to cavil with Arbitrator Wynyard’s determination. It was, however, appropriate to consider the chronology.
In 2002 the applicant injured her back in a motor vehicle accident. The applicant underwent weight loss surgery in 2004. In 2006, the applicant underwent fusion surgery. In 2008, the applicant’s gastric band was deflated. The applicant returned to work for the respondent in 2011 and suffered a back injury at work in 2014. A further fusion procedure and revision procedure were subsequently performed. The applicant suffered falls and lost mobility and put on weight. There was no record of the applicant’s weight in 2014. On 1 August 2016 the applicant underwent bariatric surgery to convert the gastric band to a bypass. The applicant lost a considerable amount of weight. On 19 August 2019, the applicant underwent bilateral knee arthroscopies and went to physiotherapy.
Mr Brazel noted that Dr Brancatisano had been consulted in relation to the more recent weight gain and had noted lifestyle factors were relevant.
Dr Ryan had recommended further surgery. Mr Brazel submitted, however, that Dr Ryan was not in a fair position to assess the success of alternative treatments. The applicant was not complying with her exercises. The applicant had a 7 kg weight loss in less than two calendar months on Saxenda. Mr Brazel said it was difficult to reconcile Dr Ryan’s reports with the applicant’s supplementary statement that the most she could lose on Saxenda was 4 kg.
Mr Brazel observed that the report from the applicant’s exercise physiologist Mr Bowen made no reference to immobility issues but did identify sporadic attendance due to work commitments. Mr Brazel noted that the applicant’s current weight was considerably less than when she had the 2016 surgery.
Mr Brazel referred me to Dr Sethi’s opinion that the treatment was not reasonably necessary as a result of the work injury.
Mr Brazel submitted that it was the applicant’s burden to establish that the surgery was reasonably necessary as a result of the injury. Little information had been provided regarding her use of alternative therapies.
Although the cost of the procedure was modest, 12 months of Saxenda would still cost a lot less than the surgery. It was suggested that if the applicant had continued on the Saxenda she would have lost the necessary weight. No evidence had been provided as to the period of use of Saxenda. The applicant had not discharged her burden

Applicant’s submissions in reply

Mr Stanton submitted that the evidence did not suggest any alternative treatment was available other than Saxenda. There was no medical evidence that some other more economical or appropriate treatment was available. The opinion evidence dealt with the available options and they were surgery or Saxenda.
Mr Stanton observed that the applicant’s weight had been recorded at 93 kg on 22 January 2020. The applicant commenced Saxenda around that time. On 14 February 2020 the applicant was recorded to weigh 86 kg. On 5 March 2020, the applicant’s weight was again recorded at 86 kg. It appeared therefore that there was a fairly rapid loss of about 7 kg following the commencement of Saxenda but that subsequently stalled and the applicant’s weight increased again.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

84. In Diab v NRMA Ltd[3] Roche DP, referring to the decision in Rose v Health Commission (NSW)[4], set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:

[3] [2014] NSWWCCPD 72.

[4] [1986] NSWCC 2; (1986) 2 NSWCCR 32.

“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
…
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’”

The Deputy President also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service[5]:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1; 14 NSWCCR 233.

Deputy President Roche found:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The applicant in this case previously brought proceedings in the Commission in which Arbitrator Wynyard found there was a causal relationship between the lumbar spine injury deemed to have occurred on 31 May 2014 and the applicant’s weight gain during the period December 2015 (when the applicant underwent lumbar surgeries) and 1 August 2016.
In reaching this conclusion, Arbitrator Wynyard reasoned that although the applicant had struggled with weight previously, at the time of the 2014 back injury her weight was around 70 kg. The applicant had achieved that weight through dieting and the use of a personal trainer. The spinal surgeries in late 2015 dramatically reduced the applicant’s ability to continue that control. Arbitrator Wynyard concluded that Dr Ryan’s 1 August 2016 surgery was reasonably necessary as a result of the lumbar spine injury.

Arbitrator Wynyard also accepted that proposed arthroscopies to the applicant’s knees were reasonably necessary as a result of the lumbar spine injury.
Neither party has, in their submissions, sought to cavil with the findings of Arbitrator Wynyard. In Feltham v St Vincent’s Hospital[6] Sheller JA stated at [566]-[567] (Kirby P at [549] and Priestley JA at [555] agreeing):
“Issue estoppel operates to treat an issue of fact or law judicially determined between the parties by a tribunal having jurisdiction as settled once and for all between them if the issue has been distinctly raised and found and if the judgment pronounced necessarily implies its determination as a matter of law. Once that is done, so long as the findings stand, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of the parties against the other: Mraz v The Queen (No 2) (1956) 96 CLR 62 at 69 and 70. The application of the principle of estoppel is not confined to the final legal conclusion expressed in the decision but extends to issues necessarily determined or facts necessarily established as the legal foundation or justification of the conclusion, those legally indispensable to the conclusion: Blair v Curran (1939) 62 CLR 464 at 531-2. At 532 Dixon J, as he then was, said:
‘…Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.’
A party’s inability to re-agitate a particular finding of fact or reopen the determination of a particular issue depends upon the other party’s proving the ingredients of the estoppel….
In Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 the Full Court held that there was an issue estoppel on the question whether the plaintiff had received the particular injury, even though that issue did not go to the whole cause of action; see Lombardo’s case per Jacobs JA at 165.”

[6] [1993] 9 NSWCCR 547.

I have therefore proceeded on the basis that the findings of Arbitrator Wynyard stand.
There has, however, been a change in the applicant’s circumstances since the determination of Arbitrator Wynyard. The applicant underwent the knee arthroscopy procedures in August 2019. By 15 January 2020, the applicant had returned to Dr Brancatisano. The applicant indicated that although she had been able to reduce her weight from a high of 136 kg immediately prior to the 1 August 2016 gastric bypass, she had regained 10 kg following the August 2019 knee surgeries. The applicant at that stage weighed 89 kg. By the time of Dr Brancatisano’s 21 January 2020 report, the applicant’s weight was 93.2 kg. On 22 January 2020, Dr Ryan recorded that the applicant’s weight had increased from a low of 78 kg to 93 kg currently.
The increase in the applicant’s weight between the knee surgeries in August 2019 and January 2020 has been attributed by Dr Ryan to a combination of factors. These included the need for strong painkillers and psychotropic medication such as Seroquel, nortriptyline, and Lyrica, which Dr Ryan said were associated with weight gain, and the surgery on the applicant’s knees, which reduced her mobility and ability to exercise. Dr Ryan also suggested that the gastric bypass had become less effective, explaining that investigations had revealed fairly rapid transit through the gastric pouch into the small bowel which was now acting as a neo-stomach and increasing the relative reservoir effect, corresponding to increase portion size.
Other causative factors have been suggested by the evidence. Dr Brancatisano’s clinical notes made reference to snacking, some rubbish foods and boredom eating, although he also noted that the applicant had been trying to stick to a diet and was eating entrée size portions.
Dr Sethi has given the opinion that the applicant’s excess weight was “mainly” caused by excess calorie intake over a prolonged period. Dr Sethi considered the condition was not related to her work injury and would almost certainly have developed regardless of whether the work injury occurred or not. Dr Sethi reasoned that the applicant had a pre-existing history of severe obesity several years before the work injury in 2014 and had undergone a gastric band operation for obesity in 2004. Dr Sethi also referred to the applicant having reduced physical activity, which he considered was likely related to low motivation to exercise. Reference was made to Mr Bowen’s report that the applicant had been inconsistent with her attendance due to work commitments.

Dr Sethi’s reasoning does not, however, engage with the history as found by Arbitrator Wynyard of the applicant’s weight reducing through diet and exercise to approximately 70 kg prior to the work injury. Dr Sethi also does not deal with the increase in weight following the lumbar surgeries or the knee arthroscopies and the resulting inability to exercise. Dr Sethi does not engage with the applicant’s ongoing physical symptoms or her prescription medication intake. Nor does he engage with the investigations by Dr Ryan indicating that the gastric bypass may not now be as effective.
Dr Smith similarly failed to address these factors in giving his opinion that being overweight is not uncommon and occurs in the absence of spinal and knee pathology.
It is uncontroversial that there can be multiple causes of a condition and need for treatment. In Murphy v Allity Management Services Pty Ltd[7] Roche DP stated:
“[57] …That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[7] [2015] NSWWCCPD 49.
Factors such as calorific intake and constitutional tendency toward obesity may well be significant contributing factors to the applicant’s recent weight gain. The opinions of Dr Sethi and Dr Smith do not, however, cause me to doubt the opinion of Dr Ryan that the need for strong painkillers and psychotropic medication, surgery on the applicant’s knees and consequent reduced mobility, and reduced effectiveness of the gastric bypass, are also significant factors. The factors identified by Dr Ryan are all causally related to the work injury. Dr Berry has given an opinion which is consistent with that given by Dr Ryan.
Weighing the evidence as a whole, I am satisfied that the work injury has materially contributed to the applicant’s recent weight gain for the reasons identified by Dr Ryan and Dr Berry.
What remains is to determine whether the procedure proposed by Dr Ryan is “reasonably necessary”.
The respondent argues, consistently with Dr Sethi’s opinion that the applicant has failed to discharge her onus in relation to this issue. Having regard to the evidence of rapid weight loss following the commencement of Saxenda in January 2020, Dr Sethi considered that recommencing Saxenda, restricting calorie intake and increasing physical activity would be more effective treatments.
As noted above, however, in giving his opinions, Dr Sethi has not adequately engaged with the impact of the applicant’s work injury including her reduced mobility, physical symptoms and ongoing need for strong painkillers and psychotropic medication.
The contemporaneous medical evidence does suggest that the applicant lost around 7 kg, reducing her weight to 86 kg on 5 March 2020, down from 93 kg recorded by Dr Ryan on 22 January 2020 when the Saxenda was commenced. This is a more significant weight loss than was identified in the applicant’s supplementary written statement and Dr Ryan’s most recent report.
The applicant does, however, give evidence that her weight loss plateaued on Saxenda. The applicant said that she lost weight quickly in the beginning but then her weight would stop going down any further. The applicant’s appetite would also increase whilst still on the medication. The applicant said she had tried stopping the medication and restarting after a break but did not find this effective.
I accept that the applicant has not indicated how long she continued on Saxenda or provided medical evidence as to its impact on her weight after March 2020. The applicant’s evidence is, however, consistent with contemporaneous reports in evidence from Dr Brancatisano and Dr Ryan, who recorded that the applicant’s weight remained at 86 kg at their reviews on 14 February 2020 and 5 March 2020 respectively.
Dr Ryan has proposed the surgery notwithstanding the short-term results on Saxenda. Dr Ryan’s most recent report noted that due to the applicant’s lumbar and knee conditions it was vitally important for her to get her weight down as low as possible as her overall health was closely linked to her weight. Dr Ryan noted that the applicant was also confined by her mobility issues.
Dr Ryan has given a detailed explanation as to how the MiniMizer ring would improve the effectiveness of the previous gastric bypass. Dr Ryan said many large studies had shown that patients who had undergone gastric bypass with the ring lost more weight than patients who underwent gastric bypass without the ring.
The applicant has also expressed concern about the costs and effects of long term use of the Saxenda medication. The procedure proposed by Dr Ryan is relatively cost effective and minimally invasive. Both Dr Ryan and Dr Berry have given evidence that it is reasonably necessary.
Having regard to the particular circumstances of the applicant and weighing the evidence as a whole, I am satisfied that the procedure proposed by Dr Ryan is appropriate. I am not satisfied that resuming Saxenda, diet and attempting an increase physical exercise are any more likely to be effective in bringing about a significant reduction in the applicant’s weight. Nor am I satisfied that that the Saxenda treatment is, in the long term, any more cost effective that the proposed procedure. The cost of the procedure is reasonable and I am satisfied on Dr Ryan’s and Dr Berry’s evidence that it is likely to be effective.
For these reasons, I am satisfied that the surgery to insert a gastric MiniMizer ring proposed by Dr Ryan is reasonably necessary as a result of the lumbar spine injury of 31 May 2014 (deemed).
There will be an order that the respondent pay the costs of and ancillary to the procedure pursuant to s 60 of the 1987 Act.

Rachel Homan
MEMBER

7 April 2021