Conte v Farsaci Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Conte v Farsaci Pty Ltd [2023] NSWPIC 518
APPLICANT:	Chelsea Licia Conte
RESPONDENT:	Farsaci Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	29 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for replacement breast implant surgery following weight fluctuations post-injury; the applicant suffered accepted injuries in a serious fall in the course of her employment; the respondent paid for two rounds of surgery, the need for which was brought about by significant weight gain post-injury; the surgery was successful and the applicant then lost a significant amount of weight, leading to alteration in the appearance of her pre-injury breast implants; the respondent disputed the surgery was reasonably necessary as a result of the injury; Held – the applicant need only prove the injury made a material contribution to the need for surgery in order to satisfy the “as a result of” test, and the presence of other, non-work-related factors which are also causative of the requirement for surgery does not mean the need for surgery lacks the requisite causal connection to employment; Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman followed; the respondent having paid for gastric sleeve and gastric bypass surgery, it has effectively conceded the applicant’s weight gain was causally linked to the injury at issue; the subsequent large loss of weight by the applicant is, adopting a common sense approach to the causal chain, therefore said to be linked to the injury; that fluctuation in weight is, on balance, accepted by the medical experts in the case as a causative factor in the change in shape of the applicant’s breasts post-injury; that being so, the requirement for the proposed surgery can be said to have arisen “as a result of” the injury at issue; Kooragang Cement Pty Ltd v Bates applied; applying the criteria set out in Diab v NRMA Ltd, the proposed surgery is also reasonably necessary; respondent ordered to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury in the course of her employment with the respondent on 14 December 2018. 2. As a result of her injury, the applicant required laparoscopic gastric sleeve resection in July 2021 and a gastric bypass in October 2022. 3. The breast implant exchange surgery proposed by Dr Dona is reasonably necessary as a result of the applicant’s weight fluctuation caused by her injury and subsequent surgeries. 4. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

On 14 December 2018, the applicant (Chelsea Licia Conte) was in the course of her employment with the respondent, Farsaci Pty Ltd when she walked outside her workplace to collect the mail. In the course of carrying out this duty, the applicant tripped over a broken barrier height which was on the road, falling heavily on her left side and sustaining injuries to a number of body systems.
At the time of the fall, the applicant was 21 weeks pregnant. She attended Blacktown Hospital where she was diagnosed with a presumptive left scaphoid fracture, however, as she was pregnant, she was unable to undergo a CT scan to confirm the fracture.
The applicant was discharged into the care of her general practitioner; however, she states pain in her lumbar spine became worse over the ensuing weeks and months, radiating into both buttocks and down the back of her legs. She underwent two steroid injections into her lumbar spine in 2019 which provided her with some temporary pain relief followed by an L4/5 nucleoplasty carried out by A/Prof Papantoniou. Liability in respect of the lumbar spine injury was accepted.
On 10 July 2021, the applicant underwent a sleeve gastrectomy performed by Dr Charbel Sandroussi. The purpose of the surgery was to reduce the applicant’s weight in order to relieve some pressure on her back and other injured body parts. She states the procedure did not assist the management of her pain or her symptoms in any way. The respondent paid for this surgery.
As the applicant’s lumbar spine symptoms were not improving despite significant conservative treatment, she was recommended to undergo an L4-S1 fusion by A/Prof Papantoniou.
Following the laparoscopic sleeve gastrectomy in July 2021, the applicant’s weight decreased to 58kg from somewhere between 83 and 102kg. However, as a result of the gastrectomy, the applicant experienced significant and severe reflux, resulting in her undergoing the gastric bypass in October 2022, the cost of which was also met by the respondent.
In approximately 2017, the applicant had undergone cosmetic breast augmentation. She was pleased with the outcome of that surgery and did not experience any stretch marks. The applicant states that prior to her second pregnancy, she weighed 55kg and at the time of the injury at issue was 58kg. She states that as a result of her injuries, she was unable to exercise and look after herself, resulting in her weight increasing to over 90kg. Her weight continued to increase over time to, she alleges, the highest point of 102kg before she underwent the two rounds of gastric surgery.
The applicant states that as a result of her weight gain and subsequent loss, there has been a significant impact on her body. She states that a large amount of loose skin has developed and there has also been damage sustained to her implants, which have now rippled because of the movement and physical changes from losing and gaining weight.
The applicant brings a claim seeking payment of the cost of and incidental to breast implant replacement.

ISSUES FOR DETERMINATION

The parties agree the only issue in dispute is whether the proposed surgery is reasonably necessary as a result of the applicant’s injury.

PROCEDURE BEFORE THE PERSONAL INJURY 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 30 August 2023. At the hearing, the applicant was represented by Mr de Meyrick of counsel instructed by Ms Ireland. The respondent was represented by Mr Stiles of counsel instructed by Ms Whiting.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (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 proposed surgery is reasonably necessary as a result of the applicant’s injury

By Dispute Notice dated 30 November 2022, the respondent denied liability for the proposed surgery. That notice disputed both the reasonable necessity of the proposed surgery and also whether there was any causal link between the applicant’s injury and the requirement for the proposed procedure.
The declinature of liability was confirmed in a s 287A notice issued on 28 April 2023. That notice confirmed the respondent’s insurer had accepted liability for the applicant’s sleeve gastrectomy performed by Dr Sandroussi on 10 July 2021 as being reasonably necessary as a result of weight gain caused by the work injury. The insurer also paid for the October 2022 gastric bypass surgery, and there is no evidence to contradict the contention that surgery was necessary as a result of a complication from the accepted gastrectomy, namely severe and ongoing reflux.
The applicant carries the onus of proving the proposed surgery is reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Relevantly, treatment will be considered reasonably necessary if the Commission finds that it is preferable the worker should have the treatment than it be forborne.
There are other considerations which are relevant to deciding whether treatment is reasonably necessary. These include, but are not limited to, the appropriateness of the treatment; the availability of alternative treatment and the potential effectiveness of the alternative; the cost of the proposed treatment; the actual potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP also noted that the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary.
The test for the approval of claimed medical treatment under s 60 of the Workers Compensation Act 1987 (the 1987 Act) is a two-step one. Not only must the treatment fall within the indicia of reasonable necessity as set out in Diab, it must also be reasonably necessary “as a result of” the injury at issue. In determining whether the requirement for treatment arises as a result of an injury, regard must be had to the test enunciated by Burke CCJ in Rose v Health Commission(NSW) [1986] 2 NSWCCR 2 (Rose), where his Honour said:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of the injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgement 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.”
The requirement to establish treatment being necessary “as a result of” an injury is not overly onerous. For example, the presence of a pre-existing condition does not prevent the need for treatment being “as a result of an injury” under s 60: see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18. The fact that non-work related conditions may have been factors in the need for treatment does not mean the proposed treatment is not as a result of the injury: see Murphy v Allity Management Services Pty Ltd [2015] NSWCCPD 49. At [58] in Murphy, Deputy President Roche said:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), that the treatment is reasonably necessary ‘as a result of’ the injury. That is, she has to establish that the injury materially contributed to the need for surgery (see the discussion of the test of causation in Sutherland Shire Counsel v Baltica General Insurance Company Limited (1996) 12 NSWCCR 716).”
It is therefore apparent the applicant must demonstrate that her injury made a material contribution to the need for her proposed surgery. She does not need to establish that the injury was either a substantial contributing factor to the requirement for surgery or indeed the main contributing factor.
In relation to causation, I find the need for the proposed surgery has been brought about as a result of the injury at issue. There can be no realistic issue that the applicant’s significant weight gain was at least in part caused by the injury, and that must have been accepted by the respondent in circumstances where it paid for the gastric sleeve surgery and subsequent gastric bypass. Such payment for that surgery is, in my view, an admission the applicant’s weight gain was causally connected to her injury and a consequence of it. The respondent’s own independent medical examiner (IME) Dr Pennington stated in his report dated 28 November 2022:
“There is no direct relationship between the alleged injury and her current breast appearance. The fluctuating weight may have contributed to some degree to the development of some breast ptosis, but other factors are also involved, including two further pregnancies after the date of the injury.”
In a supplemental report dated 21 August 2023, Dr Pennington was again asked whether, on the balance of probabilities, it was the applicant’s previous pregnancies and resulting fluctuating weight which have contributed to her current breast condition and the proposed surgery. The doctor replied:
“In my opinion, and on the balance of probabilities, there were several reasons for the weight fluctuations, unrelated to her injury. These include excessive weight gain from pregnancy and the taking of antidepressant medications, known to commonly increase weight as a side effect.”
Mr de Meyrick submitted, and I accept, that the manner in which Dr Pennington expressed his view does not rule out the requirement for surgery being as a result of the injury at issue. That is because, the test for “as a result of” is a less stringent requirement than either substantial contributing factor or main contributing factor. I accept Mr Stiles’ submission that the clinical records show there had been changes in the applicant’s weight over time, however, it is apparent from the respondent having paid for the gastric surgery that it accepts a causal link between the injury at issue and the applicant’s weight fluctuations post-injury.
The respondent questioned the amount of weight gained by the applicant as recorded in the clinical records. However, even if the respondent’s submissions are correct, it is apparent the applicant had a very significant weight gain after the accident and even following her pregnancy. Even if the respondent’s contention is correct and the applicant has lost in the vicinity of 20kg rather than over 30 kg, there has still been a significant amount of weight loss. Moreover, the respondent paid for the surgical procedures which led to the weight loss, and in my view that is clearly an acceptance of a causal link between the injury for which it was liable, and the weight gained by the applicant.
For the applicant, Dr Lai, plastic and reconstructive surgeon, provided an independent medical report. Dr Lai noted that as a result of her weight loss, the applicant has been left with redundant skin and bilateral droopy breasts from loss of volume.
Treating surgeon, Dr Dona, provided a report dated 10 October 2022. He noted the applicant had good results from the previous breast augmentation, however, “with the passage of time and the significant weight fluctuations that had been caused due to underlying medical issues, her breast tissue envelope has stretched and as such, her breasts have dropped”.
In his second report, Dr Pennington stated, “In my opinion, Ms Conte has a degree of breast ptosis, which can be attributed to considerably more factors than just her weight fluctuation.” (my emphasis)
In my view, that comment does not rule out the weight gain and subsequent loss being causative of the requirement for the surgery. When specifically asked whether the surgical intervention proposed by Dr Dona is reasonably necessary, Dr Pennington replied:
“In my opinion, there is no direct causal relationship between Ms Conte’s work-related condition. Her weight fluctuation has been accepted as a secondary result of her alleged work injury, which has allowed gastric surgery to control weight gain. Via that, there is a very weak chain of causal relationship to her current breast shape.
I opine that the surgery recommended by Dr Dona is purely cosmetic. It will not enhance her ability to return to work as a barista.” (my emphasis)
Firstly, that opinion by Dr Pennington does not apply the accepted commonsense test for causation which is adopted in workers compensation matters. In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P (as he then was) specifically commented that notions of proximate cause are now not accepted, and what is required is a commonsense evaluation of the causal chain. In this matter, that examination has at least in part been ceded by the respondent, which implicitly acknowledged the causal connection between the applicant’s weight fluctuations by paying for her gastric sleeve surgery once she gained weight, which in turn led to her losing a significant amount of weight thereafter.
In my view, a commonsense evaluation of the evidence confirms the presence of a causal link between the workplace injury, the weight loss and the current shape of the applicant’s breasts. Secondly, the fact that the proposed surgery is purely cosmetic in nature does not mean it lacks the quality of reasonable necessity. In my view, Dr Pennington’s opinion does not sufficiently challenge the contention either that the proposed surgery is reasonably necessary or that the need for it has been brought about as a result of the injury at issue.
In my view, the proposed surgery is reasonably necessary, and is reasonably necessary as a result of the injury at issue. The respondent having accepted liability for weight loss surgery has effectively admitted a causal connection between the injury and the applicant’s weight gain. The respondent’s own IME concedes the applicant’s weight fluctuations are a factor in the current shape of her breasts. As such, I am comfortably satisfied on the balance of probabilities that the respondent should pay for the costs of and incidental to the reasonably necessary surgery, the requirement for which is as a result of the injury at issue.

SUMMARY

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

[2023] NSWPIC 518

29 September 2023