Couch v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Couch v State of New South Wales (NSW Police Force) [2025] NSWPIC 579
APPLICANT:	Rebecca Jane Couch
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Karen Garner
DATE OF DECISION:	28 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses pursuant to section 60 for sleeve gastrectomy, and future ablations to the L4/5 and L5/S1 facet joints; applicant had accepted psychological injury and injury to the lumbar spine; whether the sleeve gastrectomy and future ablations to the L4/5 and L5/S1 facet joints was reasonably necessary as a result of the accepted injury; Held – the sleeve gastrectomy and future ablations to the L4/5 and L5/S1 facet joints was reasonably necessary as a result of the accepted injury; the respondent to pay the applicant’s medical expenses in respect of the surgery and treatment pursuant to section 60.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The sleeve gastrectomy was reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). 2. The future ablations to the L4/5 and L5/S1 facet joints as recommended by Professor Laurence McEntee is reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the 1987 Act. The Commission orders: 3. The respondent to pay the costs of and incidental to the sleeve gastrectomy, pursuant to s 60 of the 1987 Act. 4. The respondent to pay the costs of and incidental to the future ablations to the L4/5 and L5/S1 facet joints as recommended by Professor Laurence McEntee, pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

BACKGROUND

It is not in dispute that, in the course of her employment with the State of New South Wales (NSW Police Force) (the respondent), Rebecca Jane Couch (the applicant), currently aged 55 years, sustained a psychological injury with a date of injury of 6 September 2012 (the psychological injury) and a lumbar spine injury with a date of injury of 20 January 2019 (the lumbar spine injury).
The applicant has claimed the cost of the following medical and related treatment:
(a) past laparoscopic sleeve gastrectomy surgery which was performed by
Dr Gratian Punch on 22 May 2023 (the sleeve gastrectomy), and
(b) future ablations to the L4/5 and L5/S1 facet joints as recommended by Professor Laurence McEntee (the lumbar spine procedure).
The respondent’s insurer declined the requests on the ground that it disputed that the sleeve gastrectomy surgery and the lumbar spine procedure is reasonably necessary as a result of the injury as required by ss 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute filed on 14 July 2025, which sought an order pursuant to
s 60 of the 1987 Act for the cost of medical and related treatment in relation to the sleeve gastrectomy and the lumbar spine procedure.
At a conciliation and arbitration hearing on 25 September 2025, the applicant was represented by Mr Misha Hammond, counsel, instructed Stacks Lawyers. The respondent was represented by Mr John Gaitanis, counsel, instructed by SMK Legal.
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.

ISSUES FOR DETERMINATION

There is no dispute that the applicant sustained the psychological injury and the lumbar spine injury in the course of her employment with the respondent.
The parties agree that the following issues remain in dispute:
(a) whether the sleeve gastrectomy was reasonably necessary as a result of the injury as required by s 60 of the 1987 Act, and
(b) whether the lumbar spine procedure is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to ARD and attached documents;
(c)    Application to Lodge Additional Documents (ALAD) by the worker;
(d)    ALAD by the insurer, and
(e)    ALAD by the insurer which contains a report of Dr Cochrane dated
21 September 2025.

Oral evidence

No oral evidence was called and no application was made for leave to cross-examine.

Applicant’s evidence

The applicant gave evidence by way of several written statements respectively dated
1 September 2022, 29 January 2025 and 10 July 2025. In summary, the applicant gave a detailed medical history which included:
(a)    the applicant had a history of depression and treatment for depression from time to time since about 2004;
(b)    on or about 6 September 2012, the applicant sustained the psychological injury and subsequently underwent various treatment of that injury;
(c)    in or about 20 January 2019, the applicant sustained the lumbar spine injury and she was diagnosed with an L4/5 disc bulge and L4 left nerve impingement, and she underwent steroid injection for her back pain and rested her back;
(d)    after a flare up of back pain, on or about 30 April 2019, the applicant received treatment for her back at Robina Hospital and was referred to a specialist and prescribed pain medication including Targin and Endone;
(e)    the applicant ceased work in 2019 and was medically retired from the respondent, on medical grounds, on or about 18 February 2021;
(f)    she is presently totally unfit for any work;
(g)    the applicant gained excess weight through inability for activity and medication that she was prescribed for treatment of her injuries. She was treated for weight loss over a 12-month period by Dr Jindabhai and then she attended Dr Punch on 16 February 2023. “At that time, [she] weighed around 135kg and [she]was using a walking stick by this stage. [She] weighed 149kgs when [she] commenced”;
(h)    the applicant’s “weight had fluctuated a little bit prior to my injuries but [she] was usually around 100kgs in 2011 up until around 2015 when [her] weight fluctuated between 105 – 120kgs”;
(i)    the applicant was advised by Dr Punch to have laparoscopic division of adhesions, hiatus hernia repair and sleeve gastrectomy and she underwent the surgery on 22 May 2023;
(j)    the applicant has been consulting Dr Laurence McEntee, orthopaedic spine surgeon, since 12 August 2021;
(k)    since that time she continued to undergo various treatment consisting of physiotherapy, exercise and weight loss, including sleeve gastrectomy;
(l)    following the sleeve gastrectomy, on 19 December 2023, the applicant was reviewed by Professor McEntee and she had lost around 35kg;
(m)     she felt that she had more movement in her low back, but she did not feel that her pain had reduced;
(n)    on or about 13 May 2024, Professor McEntee told the applicant that recent MRI showed ongoing disc degeneration at L3/4 and L4/5;
(o)    Professor McEntee recommends treatment in the nature of radiofrequency ablations of her L4/5 and L5/S1 facet joints, which involves thermal denervation of the medial branch nerves supplying the L4/5 and L5/S1 facet joints, and which she has been told can be an effective treatment for facet joint mediated low back pain, and
(p)    the applicant wishes to undergo that treatment as she understands that it is likely to lead to a significant reduction in her back pain.

Treating medical evidence

There is a large volume of treating medical evidence in relation to the psychological injury and the lumbar spine injury, including referrals, reports, radiological investigations and clinical records, and counsel referred me to various parts of that evidence.
The treating medical evidence includes evidence of the following matters which are of particular relevance:
(a)    various clinical records note the applicant’s weight and treatment with weight loss medication from time to time, prior and subsequent to the psychological injury and the physical injury;
(b)    a report of Dr Jindabhai dated 21 September 2012 noted that the applicant was prescribed Pristiq to treat the psychological injury;
(c)    reports of Dr Ng, treating psychiatrist, dated in 2012 and 2013 recorded that the applicant was prescribed Pristiq medication;
(d)    on 1 February 2019, the applicant reported to her treating general practitioner that she had gained weight and had bodily aches, that she had dealt with difficult cases in the Police Force recently, and that she denied depression, however that would be considered if there were no adverse test results;
(e)    on 15 February 2019, a CT lumbar spine was reported to show: at the L4/5 disc, mild posterior and left lateral disc bulge, foraminal stenosis on the left side and obliteration of the fat plane around the exiting left L4 nerve root consistent with nerve root impingement; and at the L5/S1 disc, mild broad based disc bulge, with mild degenerative arthritic changes noted in the S1 joints bilaterally;
(f)    on 20 February 2019, the applicant underwent a CT-guided steroid injection of the left L4 nerve root to treat the L4/5 disc bulge and left L4 nerve root impingement;
(g)    on 3 May 2019, an MRI of the lumbar spine, in the context of worsening low back pain, showed moderate reduction in disc height at L3/4 and L4/5 with minimal reduction in height and disc fluid signal at L5/S1, being mild lower lumbar/lumbosacral disc degenerative change without focal protrusion nor neurocompressive complication;
(h)    on 7 May 2019, the applicant attended the Emergency Department at the Gold Coast University Hospital and was diagnosed with chronic lower back pain. The applicant was referred for treatment of the lumbar spine injury under a Chronic Disease Management Plan;
(i)    on 21 May 2019, Dr Chris Schwindack, neurosurgeon, reported that the applicant complained of ongoing lower back pain. He recommended ongoing physiotherapy and hydrotherapy. Dr Schwindack recorded that the applicant weighed 119kg with a BMI of 42.7 kg/m2. Dr Schwindack expressed his concern at the large amounts of significant pain medication that the applicant was prescribed and counselled the applicant that it was not in her best interests to continue taking those. Dr Schwindack stated that “I would suggest she starts weaning off the Lyrica as it’s particularly detrimental to her weight, which she needs to get down”;
(j)    on 14 August 2019, an MRI lumbar spine, in the context of a history of low back pain with intermittent flare up, showed: mild degenerative disc disease at L4/5 and L3/4; a small disc osteophyte complex in the left posterolateral aspect of L4/5 contributing to mild to moderate left neural foraminal narrowing; but no evidence of significant compression of the cauda equina or exiting nerve roots;
(k)    on 31 October 2019, Dr Jenan Abdulwahed, medicine review specialist pharmacist, reported on the various medications that the applicant had been prescribed to treat chronic back pain and depression;
(l)    on 11 November 2019, the applicant underwent inpatient psychological treatment at Currumbin Clinic, which included her antidepressant, Fluoxetine, being switched to an alternative antidepressant;
(m)     on 16 December 2019, Dr Brook Burchgart, psychiatrist, of Currumbin Clinic, reported that in her opinion the applicant met criteria for a DSM-V diagnosis of: chronic pain secondary to musculoskeletal injury; and depressive disorder due to chronic pain. Dr Burchgart reported that Lyrica had been ceased, and Gabapentin was commenced, and that Fluoxetine was ceased, and Duloxetine was commenced;
(n)    on 20 February 2020, Dr Tim McDonald, psychiatrist, reported that the applicant was compliant with medication;
(o)    on 6 March 2020, Dr Liam Ring, pain medicine specialist reported that the applicant was currently taking medication including Duloxetine;
(p)    on 3 September 2020, Dr Liam Ring, pain medicine specialist, reported that the applicant was currently taking medication including Duloxetine;
(q)    on 16 June 2021, Dr Brook Burchgart, psychiatrist, reported that due to an insuffient symptom response over an 18-month period, the applicant had recently been changed from Duloxetine to Venlafaxine. Dr Burchgart also reported that other medication changes included Thyroxine being ceased and replaced with Lisdexamphetamine (Vyvanse) as an augmenting agent as well as for weight reduction;
(r)    on 4 August 2021, an MRI lumbar spine showed: at L3/4 and L4/5 levels, reduced T2 hyperintensity in the nucleus pulposus with mild diffuse disc bulges which were suggestive of early degenerative changes; and at L1/2 level, a small focal disc protrusion, which was new compared to the previous MRI lumbar spine on 14 August 2019;
(s)    on 11 August 2021, Dr Brook Burchgart, psychiatrist, reported that the applicant was “recently changed from Duloxetine 120mg to Venlafaxine (Effexor WR) due to weight gain and mental clouding”;
(t)    on 25 November 2021, Dr Brook Burchgart, psychiatrist, reported on the applicant’s progress;
(u)    on 25 July 2022, Dr Brook Burchgart, psychiatrist, reported on the applicant’s psychological conditions and treatment, including medications;
(v)    on 18 August 2022, Dr Brook Burchgart, psychiatrist, reported that the applicant had trialled Sertraline (2012), Fluoxetine (2019), Duloxetine (2019 – 2021) and now Venlafaxine since mid-2021, and all doses had been maximal;
(w)   on 29 November 2022, Dr Brook Burchgart, psychiatrist, wrote a letter in support of the applicant receiving financial assistance for a CPAP machine for the management of sleep apnoea, “which is a condition I suspect she had developed because weight gain secondary to chronic pain from her workplace injury”;
(x)    also on 29 November 2022, Dr Burchgart, referred the applicant to Dr Andrew Slack of John Flynn Private Hospital, “for your opinion and management of suspected severe obstructive sleep apnoea, on a background of obesity secondary to chronic pain and major depression… a physical injury sustained in January 2019 which has been the primary cause of her pain and weight gain…”. Dr Burchgart stated that over time the applicant was treated with various antidepressants including Duloxetine which was effective clinically and for pain but, which caused weight gain of around 20kg, and in late 2021 Duloxetine was changed to venlafaxine with good effect for depression but not for anxiety.
Dr Burchgart stated that adjunct treatment with lis-dexamphetamine for weight suppression and to augment the applicant’s antidepressant was started in 2020, with some benefit. Dr Burchgart noted that the applicant was due to have bariatric surgery under the care of Dr Jordaan in early 2023;
(y)    on 26 January 2023, Dr Burchgart reported that the applicant’s diagnoses included major depressive disorder secondary to medical condition (chronic pain), post-traumatic stress disorder. Dr Burchgart stated that the major complicating issue now is the applicant’s obesity and her day-time somnolence (falling asleep suddenly) – likely related to obstructive sleep apnoea, which has yet to be definitively diagnosed and managed. Dr Burchgard noted that the applicant was keen to have bariatric surgery as she felt it would improve her overall function;
(z)    reports of Dr Bradley Ng, consultant psychiatrist, dated 22 March 2023,
23 August 2023 and 25 October 2023, noted that the applicant was prescribed Pristiq and Murelax to treat the psychological injury;
(aa)    on 20 November 2023, Dr Gratian Punch, treating specialist:
(i)reported that the applicant reported a history of gradual increases in her weight following her ongoing back pain and deteriorated mental health;
(ii)reported that, on examination, the applicant walked with the aid of a stick and was in a Class III morbidly obese state – with a weight of 135kg, with a BMI of 48.4 kg/m2, and an excess weight of 65.28kg above the upper limit normal BMI of 25 kg/m2;
(iii)expressed the opinion that the applicant’s need for bariatric surgery arose from a combination of her post-traumatic stress disorder documented from 6 September 2012 as well as the back injury from 20 January 2019, noting that both of those issues are known to be a causal relationship with morbid obesity. Dr Punch referred to research in relation to post-traumatic stress disorder and obesity;
(iv)reported that on 22 May 2023, the applicant underwent laparoscopic division of adhesions, hiatus hernia repair and sleeve gastrectomy;
(v)expressed the opinion that the applicant needed a metabolic/bariatric surgery to assist with the mobid obesity state that occurred after her injuries sustained in the course of her employment: in order to access sustainable weightless as surgery results in greater improvement in weight loss outcomes and weight associated comorbidities compared with non-surgical interventions; in order to produce significant and quantifiable reductions in back pain, noting this would reduce the axial load and potentially improve quality of life; and the applicant should not be precluded metabolic care based on co-existing post-traumatic stress disorder and psychological care as this is not seen as a contraindication to surgery for morbid obesity;
(vi)stated that during the course of metabolic care he discussed with the applicant the potential use of injectable medication for weight loss as a non-surgical option, which approach had some limitations and expenses;
(vii)stated that on review of the applicant on 29 September 2023, the applicant weighed 106.5kg, and she sleeve gastrectomy has already resulted in significant weight loss of 28.5kg, which is a 21% total body weight loss, which is a better outcome than all the reported medical treatments, the sleeve gastrectomy has been effective and the applicant’s weight loss is tracking in line with all the expected outcomes;
(viii)stated that the applicant reported that the weight loss from the sleeve gastrectomy has allowed her to recommence hydrotherapy with a goal of building muscle and balance;
(ix)expressed the opinion that the applicant suffered weight gain due to immobility from her back injury, and also as a result from medication she has taken from her psychiatric condition, which is a known side effect;
(bb)    on 22 January 2024, an MRI lumbar spine was reported to show: mild multi-level degenerative changes and disc desiccation, most marked at L3/4 and L4/5, with no nerve compression;
(cc)     on 13 May 2024, Professor McEntee requested approval to proceed to the lumbar spine procedure, being bilateral L4/5 and L5/S1 facet joint radiofrequency ablations as a day stay procedure at Pindara Private Hospital, noting that the applicant presented with ongoing low back pain after a work-related low back injury and her pain appears to be facet-mediated;
(dd)    on 16 May 2024, an MRI lumbar spine was taken;
(ee)    on 27 May 2025, Dr Brook Burchgart, psychiatrist:
(i)expressed the opinion that the applicant’s weight gain is partially attributable to psychotropic medication, noting that the applicant was overweight at the commencement anti-depressant treatment in late 2019, and she gained a considerable amount of weight in the months after she was stabilised on Duloxetine. Dr Burchgart stated that Duloxetine does have the potential to cause weight gain in some people, although that is not a universal effect;
(ii)stated that weight gain can certainly occur from physical injury associated with pain or from post-traumatic stress disorder, and the existence of both conditions at the same time simply increases the likelihood of these outcomes but not to the extent that it is predictive of this outcome.
Dr Burchgart stated that individual and treatment factors contribute to weight gain as well and noted that individual factors relevant to the applicant include age at onset of injuries, gender and presence of perimenopause/menopause, reduced access to usual support networks, independent temperament and internalised coping mechanisms, and ongoing exposure to precipitating or perpetuating factors, for example perceived exposure to threat from her community and need to avoid being on Country due to this fear. Dr Burchgart stated that treatment factors include medication side effects such as weight gain, sedation or lethargy as well as the illness itself and whether there are residual symptoms impacting on function such as amotivation and pain. Dr Burchgart stated that treatment factors that are relevant to the applicant includes absence of symptom remission despite multiple attempts to augment her antidepressant treatment across three different psychiatrists and several inpatient admissions: along with augmented medication management of her chronic pain including neuropathic agents, muscle relaxants and high potency opioid medications, noting that residual symptoms have always been present;
(iii)stated that Duloxetine has the propensity to cause weight gain, and Venlafaxine can cause weight gain to a lesser extent. Dr Burchgart stated that Agomelatine is listed as having the least potential for weight gain, but she has certainly met patients who have experienced weight gain from Agomelatine, which simply indicates that the potential for a medication to cause weight gain can be unique to the individual;
(iv)stated:
“I agree with Dr Verma’s opinion in so much that weight gain and the inability or relative difficulty losing that weight is usually multifactorial in origin — for [the applicant] these factors have been previously mentioned but include her age, gender and hormonal factors including peri-menopause, complex PTSD including childhood trauma and adversity and further traumatisation through her employment with police; along with injury and associated complex, chronic pain and the development of depression as a result of these additive factors. The depression and pain impacted all aspects of her life and lifestyle as evidenced by the rapid loss of function within the first 12 months since injury, a trajectory that has continued over the ensuing years. [The applicant] had managed to live and function with her complex PTSD until the physical injury in 2019 rendered her feeling helpless and vulnerable to threat, which she could no longer reasonably escape due to her impairments. This was the turning point when [the applicant] withdrew socially and was unable to return to her usual activity, exercise and work commitments. As such, the solution to the weight gain I believe is also multifactorial. As to his assertions about her Indigenous heritage and genetic factors, I cannot substantiate his comments but would note that [the applicant] resides in a regional town and has not led a traditional rural/remote lifestyle or regularIy consumed a traditional diet in her lifetime.”
(v)concluded:
“I concur that the development of obesity for [the applicant] is multifactorial. While [the applicant] was overweight prior to the onset of her physical and psychological injury, I do not believe [the applicant] would have become obese had these injuries not occurred, as the symptoms of illness and the treatments are both associated with a reduction in activity and changes to usual routine, including diet and exercise.”
(ff)    on 9 June 2025, Dr Laurence McEntee, orthopaedic spine surgeon:
(i)recorded a history that he initially reviewed the applicant in 2021 in relation to her significant ongoing low back pain following the lumbar spine injury, and at that time they agreed that the mainstay treatment should be physiotherapy, exercise and weight loss and he suggested that the applicant be referred to a bariatric surgeon for consideration of bariatric surgery to aid with her weight loss;
(ii)stated that when he reviewed the applicant on 19 December 2023, she had lost 35kg post her bariatric surgery and felt that she had more movement through her low back but no reduction in pain, still struggled with post-traumatic stress disorder and depression for which she was receiving treatment;
(iii)stated that when he reviewed the applicant on 13 May 2024, the MRI showed ongoing disc degeneration L3/4 and L4/5, but not disc protrusions or nerve compression, and the applicant reported ongoing low back pain with what sounded like a significant facet joint contributin with further review of imaging confirming facet arthropathy bilaterally at L4/5 and L5/S1, and he suggested radiofrequency ablations of her L4/5 and L5/S1 facet joints;
(iv)diagnosed chronic low back pain with contributions from disc degeneration and facet arthropathy, with the initial injuries sustained in the course of employment;
(v)stated that the recommended bilateral L4/5 and L5/S1 facet joint radiofrequency ablations is more of a procedure than a surgery involving placement of needles under image guidance into the lumbar spine, and it involves thermal denervation of the medial branch nerves supplying the L4/5 and L5/S1 facet joints and can be an effective treatment for facet joint mediated low back pain;
(vi)stated that the applicant’s work-related injuries were significant initiating factors in the development of the applicant’s chronic low back pain, which has also likely been contributed to by the facet joint arthropathy, and therefore the need for treatment can be related to the applicant’s work injuries;
(vii)stated that the treatment is appropriate and reasonably necessary treatment for facet joint mediated low back pain;
(viii)stated that other alternatives would include CT guided local anaesthetic and steroid injections into the joints, however radiofrequency ablation treatment tends to give a more prolonged treatment frame;
(ix)stated that if the treatment leads to a significant improvement in the applicant’s back pain then it would be considered cost effective;
(x)stated that radiofrequency ablation of the lumbar facet joints is considered an appropriate treatment for facet mediated low back pain and the aim of the treatment is to reduce the applicant’s low back pain;
(xi)stated that he would expect radiofrequency ablation of the lumbar facet joints to lead to a reduction in the applicant’s back pain, although he would not expect a complete elimination of her pain;
(xii)agreed that the applicant did require metabolic surgery to assist with the morbid obesity state that has occurred after her work injury;
(xiii)agreed that the bariatric surgery was a “very reasonable treatment”, stating that “Whilst the need for the bariatric surgery is not directly related to her work injury, the work injury led to significant reduction in physical activity as well as the use of opiate medications, both of which contributed to significant weight gain and therefore the need for the bariatric surgery”;
(xiv)stated that:
“Whilst [the applicant] may have been overweight prior to her work injuries, it's my understanding she gained a further significant amount of weight post the work injuries. It's my understanding that her obesity prior to the work injuries would not have been at a level that required bariatric surgery, but significant weight gain post the work injuries resulted in her obesity getting to a level where bariatric surgery was appropriate.”
(gg)    on 2 July 2024, Dr Gratian Punch:
(i)detailed various benefits of bariatric surgery;
(ii)stated that he cannot wholly agreed with the opinion of Dr Verma in his report dated 1 November 2024;
(iii)stated that the sleeve gastrectomy was undertaken because it was indicated by the applicant’s BMI, an also in a bid to assist and improve the ability of outcome in back pain and spinal surgery, noting that the lumbar spine injury likely caused the applicant’s back pain, which may have exacerbated a pre-existing obesity state, resulting in an increase up the class of morbid obesity scale;
(iv)stated that the loss of physical activity to reduce obese impacts would be a cause of the increase from class II to class III metabolic state and therefore the highest recorded BMI of the applicant to date;
(v)stated that it is clear from the report by Dr Kim Edwards dated
25 November 2024 that the recorded weight of the applicant fluctuated significantly between 2003 and 2018, however the applicant’s weight stopped fluctuating at the time of the work-related back pain incident on 9 May 2019 and then only steadily increased. Dr Punch noted that the applicant’s highest previous recorded BMI was 44 kg/m2 prior to the injury. He stated that, whilst the obesity may have predated the workplace injury, the scale of the morbid class III obesity severity worsened after injury to a BMI of at least 48 kg/m2 and even potentially BMI 54 kg/m2 in February 2023. Dr Punch stated that the workplace injury with subsequent loss of ability to participate in physical activity would be the causal association for this worsening in class III morbid obesity;
(vi)disagreed with the opinion of Dr Cochrane;
(vii)stated that:
“-       there is a causal relationship between the work related injury of 9 May 2019 and the loss of fluctuation in [the applicant’s] weight. It is clear she could not participate in physical activity to rectify her metabolic challenges.
-        there is a clear worsening of the class II obese state of [the applicant] after the work related to injury of 9 May 2019 to a class III morbidly obese metabolic state and it is likely that EML would be liable for this change.
-       I do not agree with the opinion of Dr Verma with regard to the significant cultural aspects of the case - I struggle with using these multifactorial aspects of weight gain as the main cause as it seems to diminish the impact of back pain on creating sedentary lifestyle based on pain. I am worried there is a chance that [the applicant] is facing Weight stigma prejudice in this setting not only on her BMI, but due to cultural dislocation and dispersion as well.
-       I am concerned for the opinion of Dr Verma and Dr Cochrane with regard to their understandings of the particulars of MBS surgery, as they state their opinion based on Rebecca having a gastric bank surgery. In fact she did not have that operation. Rebecca underwent a laparoscopic Gastric Sleeve surgery.”
(viii)stated that current nonsurgical treatment options for patients with BMI greater than 35 kg/m2 are ineffective in achieving a substantial and sustained weight reduction necessary to significantly improve their health;
(ix)expressed the opinion that it is entirely reasonable for the applicant to undergo weight loss surgery in order to facilitate the procedure recommended by Professor McEntee;
(x)stated that:
“The ability to manage weight issues was present to the work related injury, this was lost after 9 May 2019. As previously stated class I and II obesity was present and this was managed. It was after the work related injury that the Class III morbid obesity occurred and was not able to be managed due to loss of physical activity.”
(hh)    on 14 September 2025, Dr Laurence McEntee, orthopaedic spine surgeon:
(i)in response to Dr Edwards report dated 11 August 2025, stated that the applicant continues to suffer chronic back pain with clinically a facet joint component and imaging confirming changes in the L4/5 and L5/S1 facet joints;
(ii)confirmed his opinion that the applicant would benefit from the lumbar spine procedure, noting that it significantly reduces pain in the short term in the setting of facet joint pathology;
(iii)stated that the lumbar spine procedure would not necessarily be a permanent fix and may not lead to any long-term improvement in the applicant’s symptoms, but that it may well give the applicant significant pain relief for six to twelve months and allow her to rehabilitate more effectively, and the procedure can be repeated multiple times, which would lead to long-term overall improvement in the applicant’s symptoms, and
(iv)expressed the opinion that the lumbar spine injury likely contributed to the applicant’s weight gain, noting that s with chronic low back pain, the applicant had been less able to be active and to exercise and that has almost certainly contributed to her weight gain.
(ii)    on 19 September 2025, Dr Gratian Punch:
(i)expressly disagreed with the Dr Edwards opinion contained in his report dated 11 August 2025;
(ii)stated that the highest BMI occurred after the lumbar spine injury and that it is known that back pain can cause weight gain, in this case, increasing the morbidity and mortality risk to the applicant by increasing the obesity state from Class to II Class III morbid obesity;
(iii)stated that the cause of the worsening increase in the applicant’s obesity is related to the lumbar spine injury in accordance with published literature;
(iv)stated that weight gain may occur because of chronic pain, which is one of the major reasons that obese patients list for their weight gain, noting that frustration associated with functional limitation may lead to overeating, and other adverse effects of chronic pain, such as sedentary lifestyle, poor sleep, and side effects of medication, may also contribute to weight gain in chronic pain patients;
(v)stated that obesity is known to have various adverse impacts on people's functional capacity and quality of life in general, and when obesity co-occurs with chronic pain, obesity may have further health consequences for chronic pain patients. Dr Punch stated that several studies have shown reduced life expectancy for individuals with chronic pain, mostly due to cardiovascular disease. Dr Punch stated that although the exact mechanism underlying the increased mortality in chronic pain patients is not known, it has been suggested that metabolic syndrome is common in chronic pain patients, and that it may lead to compromised cardiac health. Dr Punch stated that overall research suggests that obesity makes chronic pain more problematic in general because obesity is related to greater physical disability and psychological distress in chronic pain patients and, compared to non- obese patients, obese back pain patients appear to be more functionally impaired, have greater comorbid problems, and have more radicular symptoms than non-obese patients, and
(vi)expressed the opinion that the sleeve gastrectomy was reasonably necessary in a bid to assist the applicant with a plan and pathway for return to work as outlined in published literature.

Evidence of costs

The evidence included a Schedule of treatment expenses with receipts and estimated future costs.
Estimated costs of the lumbar spine procedure included: Professor McEntee estimated fees for the lumbar spine procedure of $2,540; Pindara Private Hospital estimated total accommodation and theatre fees of $2,201.17, and Southport Anaesthetists estimated anaesthesia fees of $1,550.

Independent medical evidence

Dr Neil Cochrane, neurosurgeon, independent medical expert qualified by the respondent

Dr Cochrane provided evidence by way of several reports.
In a report dated 19 August 2019, Dr Cochrane:
(a)    reported on his assessment of the applicant on 19 August 2019;
(b)    agreed with Professor McEntee that it is very reasonable to proceed to denervation of the facets at L4/5 and L5/S1 by means of a facet joint radiofrequency neurotomy procedure, noting that it is a reasonable treatment option for aggravated facet arthropathy in the lumbar spine, and particularly for the applicant who suffered non-resolved aggravation lumbar spondylosis in a particular facet arthropathy in the lumbar spine injury;
(c)    agreed with Professor McEntee that such procedure would be highly preferable to surgery with a more predictable outcome, lower morbidity and less of a psychological challenge to a patient who has a significant current psychological injury or condition;
(d)    did not believe that any alternative treatment would be likely to assist the applicant prior to surgery as there is probably no alternative treatment that is applicable, noting that the applicant has already undergone bariatric surgery, undertaken or attempted to undertake a rehabilitation and strengthening programme to the low back and, in his view, is not a candidate for surgery due to her raised body mass index, her substantial psychological injury or condition, his assessment of significant urinary dysfunction greatly in excess of what radiological imaging would suggest or anticipate, and the fact that surgery would, in his opinion, for the greater part, be treating the underlying degenerative condition as opposed to the work-related injury;
(e)    expressed the opinion that the lumbar spine procedure would result in a modest reduction in the applicant’s back pain and improved quality of living, but would be unlikely to result in any substantial functional improvement that would allow the applicant to return to work;
(f)    noted that he is not a bariatric surgeon, but rather a neurosurgeon and it is not appropriate or reasonable for him to provide comment on the intricacies of bariatric surgery;
(g)    stated that after reading the report of Dr Gratian Punch dated 2 July 2025, he understood that there was some notable increase in the applicant’s obesity in the sense of measured BMI after the time of the work injury and that Dr Punch felt that was a reasonable indication for treatment;
(h)    stated that it appears that the applicant’s weight increased after the lumbar spine injury, however he found it difficult to accept that it was causally associated with the lumbar spine injury as opposed to, for example, other lifestyle issues, psychological distress or a psychological condition, and
(i)    expressed the opinion that, whilst bariatric surgery was a very reasonable treatment option to assist the injured worker in her general health and activity levels, it was not clearly causally indicated as a result of the lumbar spine injury given that: significant obesity clearly predated the accident; and, in his view, bariatric surgery was considered of low likelihood to improve the injured worker's spinal condition due to other confounding factors such as underlying degenerative condition and her psychological injury or condition.
In a report dated 26 September 2019, Dr Cochrane:
(a) expressed the opinion that that the applicant is suffering the effects of multi-level lumbar spondylosis and has likely suffered temporary aggravations of the workplace, however any work-related aggravations would likely have been temporary and maximally of two months’ duration.
In a report dated 16 March 2020, Dr Cochrane:
(a) expressed the opinion that there were other non-work-related factors contributing to the applicant’s pain, including but not limited to her mental health and the underlying degenerative disorder in the lumbar spine.
In a report dated 23 February 2023, Dr Cochrane:
(a)    reported on his assessment of the applicant on 23 January 2023;
(b)    recorded a reported history that the applicant took various medication and experiencing ongoing substantial low back pain; and had sustained significant weight gain which she attributed to the lumbar spine injury and consequential lack of mobility; reported her current weight was 122kg which equated to a BMI of 43.7 and falling in the Class III range of obesity;
(c)    reported that, on examination, the applicant demonstrated asymmetrically-restricted lumbar movements without evidence of radiculopathy and a low mood state, which was suggestive of a depressive mood;
(d)    expressed the opinion that, as a result of the nature of activities in the workplace, the applicant has sustained aggravation of lumbar spondylosis, and that there had been minimal recovery since his initial assessment of the applicant in August 2019;
(e)    diagnosed “a non-resolved aggravation of lumbar spondylosis for this significant chronic or central pain phenomenon or central sensitisation syndrome, and apparently significant psychological injury”;
(f)    expressed the opinion that the applicant’s asymmetrically-restricted lumbar movements are attributable to the nature and activity of work events between January 2019 and May 2019, and he assessed 7% whole person impairment on that basis.
In a report dated 30 March 2023, Dr Cochrane:
(a)    expressed the opinion that the applicant suffered a work-related aggravation of pre-existing underlying, degenerative and constitutional condition of lumbar spondylosis at multiple levels of disc degeneration although of a mild degree mainly at L3/4 and L4/5 levels;
(b)    expressed the opinion that there was no significant neural compressive lesion and mild disc height collapse as seen on MRI scan (August 2019), that there is a significant secondary or chronic central pain syndrome that has evolved and what appears to be a significant psychological injury with a low mood state;
(c)    expressed the opinion that there is no role for surgery, because the applicant’s apparent significant secondary psychological injury, pain behaviour and chronic central pain syndrome would represent a barrier and in fact relative contraindication to structural spinal surgery, and
(d)    stated that the applicant would be a candidate for a multidisciplinary pain management program and rehabilitation program and possibly may be a candidate for intervention from a pain specialist including but not limited to spinal cord stimulation.
In a report dated 4 April 2025, Dr Cochrane:
(a)    stated that the applicant reported three types of ongoing low back pain, which ranged in intensity between 2/10 and 8/10: peak pain described as pain around the lumbosacral junction, which was “dull and guttural” pain; muscle contractional spasm episodes, which can be more severe; and “nerve pain,” associated with the lumbosacral junction, which ascended up through the spine towards the neck and skull base, occasionally descended to sciatica bilaterally to the back of both knees;
(b)    stated that the applicant described various functional limitations as a result of the ongoing symptoms;
(c)    reported that on examination, the applicant demonstrated various pain symptoms and limitations in movement involving the lumbar spine;
(d)    reported that the applicant presented with extremely diminished lumbar spinal movements with significant functional restriction, which are grossly in excess of what have been anticipated with modest radiological findings, and what he interpreted to be significant functional overlay, sub-maximal effort and likely symptom magnification;
(e)    queried whether the applicant’s significant psychological disorder was impacting upon the applicant’s presentation;
(f)    stated that it appears that the reported nature and activities at the workplace have resulted in a muscular ligamentous strain to the applicant’s lumbar spine, with an aggravation of previously asymptomatic lumbar spondylosis, admittedly of a mild degree radiologically;
(g)    stated that he suspected that the applicant has, in addition to a non-resolved aggravation of lumbar spondylosis sustained in the workplace described as occurring on 9 May 2019, a significant and disabling chronic pain disorder, noting that there had been negligible recovery and the applicant presented as totally and permanently disabled;
(h)    diagnosed a non-resolved aggravation of lumbar spondylosis and likely resolved muscular ligamentous strain to the lumbar spine, and stated that the applicant also appears to have developed a significant chronic pain disorder or central pain disorder, which is likely impacting upon the presentation;
(i)    expressed the opinion that the lumbar spine injury caused both an aggravation and probable acceleration of underlying degenerative disc disease at the L3/4 and L4/5 levels consistent with radiologic findings, and that it was also a substantial contributing factor to the development of the applicant’s pain, albeit now far in excess of what one would anticipate;
(j)    expressed the opinion that, whilst there was a degree of symptom magnification and disability in excess of what one would predict from the physical injury, he could not conclude that the applicant was exaggerating or feigning her presentation, noting that symptom magnification can be multifactorial and the applicant’s psychological condition or injuries may be impacting upon the physical presentation;
(k)    expressed the opinion that, having assessed the applicant and being unable to determine radiculopathy, and noting absence of convincing neurocompressive lesion on detailed spinal imaging, there is no role for spinal surgical intervention to the applicant;
(l)    stated that the applicant had undergone treatment for the lumbar spinal injury, which included periods of physiotherapy and consumption of medications;
(m)     recorded that the applicant reported that since undergoing bariatric surgery in around May 2023, she had lost an estimated 50kg and presently weighed 101kg, she had ongoing back pain however her mobility and overall personal hygiene had improved as a result of her weight loss;
(n)    stated that gastric band or gastric sleeve surgery was not directly related to the applicant’s reported lumbar spine injury, although it was a very reasonable treatment modality to minimise a significantly raised body mass index to aid her mobility and ability to actively engage in rehabilitation efforts, and minimise the impact of the applicant’s reported lumbar spine injury, although it had not been associated with any functional benefit nor significant reduction in spinal pain overall;
(o)    noted treating medical evidence regarding fluctuations in the applicant’s weight at various times between 2008 and 2018, and expressed the opinion that the applicant had significant weight issues predating the onset of any physical or psychological injury, and
(p)    noting that he is a neurosurgeon, and not an expert in bariatric surgery nor the clear indications for such surgery, agreed with the opinions of Dr Edwards and
Dr Verma that there was no clear causal connection between the lumbar spine injury and the applicant’s obesity and need for laparoscopic sleeve gastrectomy.

Dr Kim Edwards, surgeon, independent medical expert qualified by the respondent

In a report dated 26 April 2023, Dr Edwards:
(a)    recorded a reported history which included that “over the years”, the applicant had put on weight, and she believed that prior to the lumbar spine injury she weighed 97kg, (although elsewhere in the report it recorded that the applicant thought her weight at about the time medication was started in around 2013 may have been 85kg) and that her weight later increased to 146kg about 18 months ago. The applicant reported that she had seen a dietician and was prescribed Saxenda, which the respondent’s insurer had paid for, which resulted in a 10kg weight loss. The applicant reported that a bariatric surgeon suggested she undergo sleeve gastrectomy surgery, which she believed would cause her to lose weight and enable lumbar spine surgery, which would significantly decrease pain;
(b)    expressed the opinion that the applicant’s class 2 obesity was most likely due to her caloric intake, although he noted that some drugs can contribute to weight gain;
(c)    stated that certain medical literature made the following points in relation to the causes of obesity:
(i)obesity develops when excess energy is stored as fat. Most human obesity is associated with increased food intake rather than reduced energy expenditure;
(ii)the fundamental cause is a change in environment with easy availability of energy dense foods and reduced opportunities for physical activity;
(iii)the development of obesity in the modern environment is most likely in those with increased genetic susceptibility;
(iv)single gene defects causing obesity are rare, but demonstrate the importance of appetite-regulating pathways in control of human energy balance. Many genes may contribute to the susceptibility of individuals to obesity;
(v)other causes include drugs that affect appetite and damage to appetite regulating areas of the brain” (my emphasis), and
(d)    stated that if the applicant were to undergo a sleeve gastrectomy, it would be expected that she would lose significant weight.
In a report dated 25 November 2024, Dr Edwards:
(a)    reported that the applicant stated that: she underwent a self-funded sleeve gastrectomy, performed by Dr Punch at Lismore Private Hospital on
22 May 2023, that she thought that she was around 139kg at the time of the operation and that she now weighed 101kg; she was disappointed that her back pain had not diminished and is no better; however, she was pleased that she no longer has sleep apnoea and she is more mobile;
(b)    diagnosed back pain which represented a disease condition of constitutional origin due to underlying degenerative changes in her lumbar spine, and that any symptomatic aggravation which may have been caused by the applicant’s work in 2019 no longer has any effect, and the applicant’s symptoms are attributable to non-work related injury and pre-existing conditions;
(c)    expressed the opinion that the sleeve gastrectomy was not reasonably necessary as a result of any work related injury or any consequential injury, noting that the applicant had tried other treatments for weight loss which were partially successful;
(d)    noted the applicant’s history of weight at various times which were recorded by her treating general practitioner and included:
(i)on 4 December 2003, the applicant enquired about weight loss treatment and exercise and diet were suggested;
(ii)on 24 March 2004, the applicant had lost 10kg;
(iii)on 14 September 2004, the applicant’s weight measured 110kg;
(iv)on 20 October 2010, it was noted that the applicant had lost 40kg as a result of dieting;
(v)on 12 May 2011, the applicant’s weight was 102kg;
(vi)on 2 November 2011, the applicant’s weight was 100kg;
(vii)on 25 May 2012, the applicant enquired whether she could start seeing a dietician and an exercise “scientist”;
(viii)on 20 May 2013, the applicant was worried about weight gain;
(ix)on 25 February 2015, the applicant’s weight measured 123kg, and the applicant stated that she was struggling to lose weight and this affected her daily life;
(x)on 17 June 2015 the applicant’s weight was 109kg;
(xi)on 15 October 2016, the applicant’s weight was down to 96kg;
(xii)on 31 January 2018, the applicant’s weight measured 119kg;
(e)    stated that the above history of the applicant’s weight pre-dating the lumbar spine injury indicates that the applicant’s obesity is not connected to the lumbar spine injury;
(f)    stated that the applicant has demonstrated an ability to lose weight with dietary and medical measures, although she regained the weight on most occasions;
(g)    stated that the applicant’s history indicates that she has long had problems with weight gain, she could lose weight when she undertook various dietary measures, and on occasions aided by medication, and
(h)    expressed the opinion that he “does not consider that it can be definitively stated that [the applicant’s] weight issues are due to her work related psychological or physical injuries” and, further, that he does not consider that the applicant’s need for sleeve gastrectomy is related to the psychological injury nor the lumbar spine injury.
In a report dated 11 August 2025, Dr Edwards:
(a)    stated that the lumbar spine procedure would likely not result in any long term improvement of the applicant’s symptoms, as is a possible temporising treatment, and he did not consider it necessary, but rather a possible source of temporary help;
(b)    suggested that an opinion be obtained from a pain management specialist, and
(c)    expressed the opinion that the applicant’s weight gain had not been accelerated by her injuries as obesity had been a long-term problem.

Dr Surabhi Verma, psychiatrist, independent medical expert, qualified by the respondent

In 2020 and 2021, Dr Surabhi Verma, psychiatrist, provided several reports to the respondent’s insurer, in relation to the applicant’s psychological condition. Dr Verma diagnosed depressive disorder due to another medical condition. Dr Verma expressed the opinion that the applicant’s mental health is intricately linked to her physical health.
On 1 November 2024, Dr Verma:
(a)    recorded a reported history that the applicant initially weighed around 150 kg and that, since bariatric surgery in May 2023, the applicant had lost 52kg, and that she now finds it easier to move but is restricted by back pain;
(b)    stated that:
“I have noted that [the applicant] was overweight even before the onset of her mental health symptoms and had been talking about weight loss treatment and programmes since 2004; however, her weight gradually increased and she said that at its peak, her weight was around 150 kg and had lost about 50 kg after the weight loss surgery. I opined that there is not one factor that could have influenced and caused obesity, as there are multiple overlapping factors that can cause obesity, especially in the Aboriginal population. I believe that the causative factors especially relevant for Ms Couch’s aboriginal background include historical and intergenerational trauma, food insecurity and limited access to traditional foods.
Other factors include:
Sedentary Lifestyle: Shifts from a traditional physically demanding lifestyle towards a more sedentary lifestyle also contributed to lower physical activity, leading to weight gain.
Mental Health and Stress: I believe that mental health and stress is one of the many causative factors for weight gain often leading to emotional eating and coping behaviours that contribute to obesity.
Genetic Factors: Some genetic predisposition within the aboriginal population, along with the Western diet, increases the susceptibility to obesity.
I do not believe that her psychological condition was the only cause for her weight issues; however, like in most other cases, obesity is multifactorial in origin, and the same could be said for [the applicant] as well”, and
(c)    stated:
“I do not believe that it would be reasonable to ascribe [the applicant’s] need for gastric band surgery in relation to her psychological condition. As mentioned above, obesity is multifactorial in origin and as noted from the documentations received, [the applicant] had weight gain even before the onset of her mental health issues.
I agree with Dr Kim Edwards’ report dated 26 April 2023 that:
‘I do not believe it is possible to definitively state there is a causal connection between the workplace injury on 9 May 2019 and her Class 2 obesity, and the need for a laparoscopic sleeve gastrectomy. Therefore, I am unable to say that EML is liable for the requested laparoscopic sleeve gastrectomy and treatment of her obesity.’”

Dr Frank Chow, psychiatrist, independent medical expert qualified by the applicant

Dr Chow gave evidence by way of two reports, respectively dated 11 December 2021 and
26 April 2022. Dr Chow:
(a) recorded a reported history which included various treatments for the psychological injury, including various inpatient and outpatient psychological and psychiatric treatments and psychotropic medications, and also various treatments for the lumbar spine injury, including physiotherapy, hydrotherapy, self-funded acupuncture and treating by a pain specialist and a pain psychologist, and
(b) stated that the applicant has continued to suffer a chronic post-traumatic stress disorder since 2013 and that the whole clinical picture very much relates to her underlying psychiatric condition.

SUBMISSIONS

Counsel made oral submissions which were recorded.
On behalf of the applicant, Mr Hammond:
(a)    submitted that the sleeve gastrectomy was to assist the applicant to lose weight which had been caused by medication she was required to take to treat the psychological injury and also by inactivity caused by the lumbar spine injury;
(b)    any weight issues which the applicant may have had prior to the psychological injury and the lumbar spine injury, became worse because of those injuries;
(c)    the sleeve gastrectomy is to assist the applicant to lose weight, which will also assist management of symptoms of the lumbar spine injury. On that basis, the applicant does not need to prove that obesity is a consequential condition of the psychological injury and the lumbar spine injury;
(d)    referred me to various evidence in support of his submissions that the sleeve gastrectomy and lumbar spine surgery is reasonably necessary as a result of the psychological injury and the lumbar spine injury, and
(e)    submitted that considering the evidence as a whole, the Commission should be satisfied that the sleeve gastrectomy and the lumbar spine procedure is reasonably necessary as a result of the psychological injury and the lumbar spine injury, consistent with accepted case law.
On behalf of the respondent, Mr Gaitanis:
(a)    referred me to various evidence in support of his submissions that the sleeve gastrectomy and lumbar spine surgery is not reasonably necessary as a result of the psychological injury and the lumbar spine injury;
(b)    submitted that the evidence demonstrates that the applicant’s back pain did not diminish following the sleeve gastrectomy and consequently the Commission cannot be satisfied that the sleeve gastrectomy was reasonably necessary as a result of the lumbar spine injury;
(c)    submitted that the lumbar spine injury pathology and symptoms was effectively benign, with the applicant’s presentation being grossly disproportionate to the radiological findings, and did not require the sleeve gastrectomy;
(d)    submitted that prior to the psychological injury and the lumbar spine injury, the applicant had a significant history of obesity and weight loss including with assistance of appetite supressing medication, Duromine, (with her weight varying approximately 35kg, from 94.7kg to 129.3kg) which is evidence that the applicant’s weight gain is not caused by the psychological injury and the lumbar spine injury and also that the applicant had the capacity to lose weight without a sleeve gastrectomy;
(e)    submitted that the applicant paid for elective sleeve gastrectomy, which indicates that her motivations were personal and unrelated to the psychological injury and the lumbar spine injury;
(f)    submitted that Dr Punch’s report of 2 July 2025 was premised on the basis that the applicant’s weight was 150kg, however there is no contemporaneous evidence that the applicant’s weight did reach 150kg;
(g)    submitted that alternative treatments to assist the applicant to achieve weight loss were not considered nor exhausted;
(h)    submitted that alternative treatments to treat the applicant’s lumbar spine injury were not considered nor exhausted, and there was no opinion from a pain management specialist, and
(i)    submitted that considering the evidence as a whole, the Commission should not be satisfied that the sleeve gastrectomy and the lumbar spine procedure is reasonably necessary as a result of the psychological injury and the lumbar spine injury.
In submissions in reply, Mr Hammond:
(a)    referred me to various evidence and case law in support of the applicant’s case;
(b)    submitted that the aim of the sleeve gastrectomy was to reduce the applicant’s lumbar spine pain, and the fact that it was of no or only limited benefit is not conclusive of whether it was reasonably necessary;
(c)    submitted that it is not relevant that there was relatively minor pathology as pain and dysfunction can nevertheless be significant, and
(d)    submitted that the evidence shows that the applicant’s weight was highest post-injury.
I have carefully considered the evidence in the context of those submissions.

THE LAW

Sub-section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).”

Is the proposed treatment medical or related treatment?

Compensation is payable in respect of “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

In Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW),[2] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[3]
“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] NSWCC2; (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 tis place in the usual medical armoury of treatments for the particular condition’.”
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[3] [2014] NSWWCCPD 72, at [76].
Roche DP[4] 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.”
[4] [2014] NSWWCCPD 72, at [78].
[5] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[6]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply ...”
[6] [2014] NSWWCCPD 72, at [86].
Roche DP found:[7]
[7] [2014] NSWWCCPD 72, at [88]-[89].
“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.”

Does the need for the proposed treatment arise as a result of a work injury?

In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated at [57] and [58]:
“… 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 Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [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.
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)”.
[8] [2015] NSWWCCPD 49 at [57].
In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.

FINDINGS AND REASONS

Credibility of the applicant’s evidence

There was no application for leave to cross-examine the applicant and there is no evidence which directly challenges the credibility of the applicant’s evidence.
The applicant’s evidence is generally consistent with the treating medical evidence and history recorded by medical specialists.
Considering the evidence as a whole, I accept that the applicant’s evidence is her honest account of her subjective experiences, given to the best of her ability.

The sleeve gastrectomy

Is the proposed treatment medical or related treatment?

The applicant underwent the sleeve gastrectomy performed by Dr Gratian Punch on
22 May 2023 by way of elective surgery.
The sleeve gastrectomy is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Appropriateness

The applicant’s evidence is that on 16 February 2023, about three months prior to the sleeve gastrectomy being performed on 22 May 2023, she weighed around 135kg.
The treating surgeon, Dr Gratian Punch stated that the applicant reached her highest recorded BMI following the lumbar spine injury, of at least BMI 48 kg/m2, and even potentially BMI 54 kg/m2 in February 2023 and that she reached class III morbid obesity state.
I consider that as the treating surgeon who performed the sleeve gastrectomy in May 2023, I consider that Dr Punch was well placed to have accurate information regarding the applicant’s obesity stated at that time.
For that reason, I accept Dr Punch’s evidence and I accept that the applicant reached morbid obesity state prior to the sleeve gastrectomy.
Dr Punch gave evidence that morbid obesity is known to have various adverse impacts on an individual’s function, capacity and quality of life, and further health consequences for chronic pain patients.
Dr Punch expressed the opinion that the sleeve gastrectomy was reasonably necessary in a bid to assist the applicant’s morbid obesity state.
Considering the applicant’s evidence and the treating medical evidence as a whole, I accept that, particularly since the lumbar spine injury, the applicant reached a morbid obesity state.
Further, I accept that the treating doctors, particularly the treating surgeon, was of the opinion that the sleeve gastrectomy was appropriate to treat the applicant’s morbid obesity state.

Cost of the treatment

The applicant has provided evidence of the costs of and incidental to the sleeve gastrectomy.
The respondent has not raised any issue regarding the quantum of the costs of treatment claimed by the applicant.

Availability of alternative treatment and its effectiveness

The applicant’s evidence and the treating medical evidence demonstrates that on a number of occasions prior to the lumbar spine injury, the applicant did achieve weight loss with the assistance of her treating practitioners, including weight loss medication.
The applicant’s evidence is that, subsequent to the lumbar spine injury and prior to undergoing the sleeve gastrectomy, she achieved weight loss from 149kg to around 135kg over a 12-month period, through treatment by Dr Jindabhai.
It is clear that there is alternative treatment options available to the applicant, which have a history of varied success in terms of weight loss achieved and weight loss sustained.
Dr Edwards acknowledged that, whilst the applicant has demonstrated an ability to lose weight with dietary and medical measures, she regained the weight on most occasions.
The treating surgeon, Dr Gratian Punch, stated that current nonsurgical options for patients with BMI greater than 35 kg/m2 are ineffective in achieving a substantial and sustained weight reduction to significantly improve their health.
Having regard to the evidence as a whole, I am not satisfied that there is any alternative treatment which is demonstrated nor likely to result in enduring weight loss for the applicant.

Actual or potential effectiveness of the treatment and acceptance by medical experts of the treatment

The evidence of the applicant, which is consistent with what was reported by Professor McEntee, is that between the sleeve gastrectomy performed on 22 May 2023 and his review on 19 December 2023, the applicant had lost around 35 kg, she felt that her pain had not reduced however she no longer suffered sleep apnoea and she had more movement in her low back.
Whilst, the evidence demonstrates that the applicant’s back pain did not diminish following the sleeve gastrectomy, I do not accept that that necessitates a finding that the sleeve gastrectomy was not reasonably necessary as a result of the lumbar spine injury.
I accept that the sleeve gastrectomy was effective to enable the applicant to achieve significant weight loss, of around 35kg between May and December 2023. By all accounts, that is the most weight loss that the applicant achieved at any one time.
The treating surgeon, Dr Gratian Punch, explained general benefits to the applicant’s health that result from such significant weight loss, which would work towards ameliorating detrimental general health consequences caused by a state of morbid obesity which, arguably, was caused by the psychological injury and the lumbar spine injury.
I also accept that, whilst it resulted in significant weight loss, the sleeve gastrectomy did not result in pain relief, the applicant has experienced more movement in her low back.

Does the need for the treatment arise as a result of a work injury?

As noted above, it is not in dispute that the applicant sustained the psychological injury and the lumbar spine injury in the course of her employment with the respondent.
The treating evidence consistently demonstrates that the applicant was treated with various medications to treat the psychological injury and the lumbar spine injury.
There is consistent medical evidence that some of those medications have the propensity, in some people, to cause weight gain. As noted by Dr Brook Burchgartd, psychiatrist, these include Duloxetine and Venlafaxine.
There is also consistent evidence that, subsequent to the lumbar spine injury, the applicant was affected by significant ongoing pain and loss of function.
I do not accept the respondent’s submission that, because the applicant self-funded the sleeve gastrectomy, that it should be inferred that the sleeve gastrectomy was undergone because of a personal desire of the applicant rather than because it was reasonably necessary as a result of the psychological injury and the lumbar spine injury. There is considerable medical evidence which deals with the causal relationship between the sleeve gastrectomy and the psychological injury and the lumbar spine injury and the applicant gave consistent evidence, which I accept, that she gained weight through inability for activity and medication that she was prescribed for treatment of the psychological injury and the lumbar spine injury.
There is consistent evidence that, subsequent to the lumbar spine injury, the applicant was affected by significant ongoing pain and loss of function.
Dr Edwards, independent medical expert qualified by the respondent, expressed the opinion that the applicant’s need for sleeve gastrectomy is not related to the psychological injury nor the lumbar spine injury. Dr Edwards opinion seems to have been based, at least in part, on his view that the applicant’s back pain represented an underlying degenerative disease condition of constitutional origin, and that any symptomatic aggravation caused by the lumbar spine injury no longer had effect and the applicant’s symptoms are attributable to non-work related injury and pre-existing conditions.
For reasons that I give elsewhere in these reasons, I do not accept that premise. On that basis, I accept that the applicant had, and continues to have, ongoing pain symptoms and restrictions resulting from the injury.
Dr Verma, independent medical specialist qualified by the applicant, found no causal connection between the sleeve gastrectomy and the psychological injury and the lumbar spine injury. I found Dr Verma’s report dated 1 November 2024, to be somewhat contradictory and confusing. Dr Verma identified multiple causal factors for the applicant’s obesity state which Dr Verma identified included “Mental Health and Stress: I believe that mental health and stress is one of the many causative factors for weight gain often leading to emotional eating and coping behaviours that contribute to obesity” and noted the applicant’s psychological condition as one of multiple causal factors. However, later in the report,
Dr Verma stated that it was not possible to definitively state that there was a causal connection between the applicant’s obesity state and the physical injury.
The applicant’s evidence is that she gained excess weight following the psychological injury and the lumbar spine injury through medication that she was prescribed for treatment of the injuries and inability for activity.

The treating evidence consistently demonstrates that the applicant was treated with various medications to treat the psychological injury and the lumbar spine injury. Notably,
Dr Edwards did include a quote from medical literature which noted that other causes of obesity “include drugs that affect appetite and damage to appetite regulating areas of the brain”.
There is consistent medical evidence that some of those medications have the propensity, in some people, to cause weight gain. As noted by Dr Brook Burchgartd, psychiatrist, these include Duloxetine and Venlafaxine.
Dr Edwards also expressed the opinion that the history of the applicant’s weight gain and weight loss in the years preceding the lumbar spine injury indicates that her obesity was a long-term problem and was not accelerated nor causally connected to the lumbar spine injury.
The applicant stated that her weight had fluctuated a little bit prior to her injuries but she was usually around 100kg in 2011 up until around 2015 when her weight fluctuated between 105 and 120kg.
In his report dated 25 November 2024, Dr Edwards, independent medical expert qualified by the respondent, summarised the treating practitioner’s records regarding the applicant’s weight history between 2003 and 2018, which is generally consistent with the treating medical evidence.
The applicant’s evidence and the treating medical evidence consistently shows, and I accept, that the applicant had a long history of obesity and some significant fluctuating weight loss and weight increases up until she sustained the lumbar spine injury at the commencement of 2019. As noted above, it does not appear from the evidence that the applicant was able to achieve enduring weight loss prior to the lumbar spine injury.
The evidence does seem to consistently show that the applicant’s weight did reach its highest point following the lumbar spine injury.
The applicant stated that her weight had reached about 149kg when she was first treated for weight loss over a 12-month period by Dr Jindabhai, and then, when she subsequently attended Dr Punch on 16 February 2023, she weighed around 135kg and was using a walking stick.
There is no contemporaneous treating evidence which supports the applicant’s evidence that her weight reached a maximum of about 149kg following the psychological injury and the lumbar spine injury, however that appears to have been generally accepted by various medical evidence, including Dr Verma and Dr Punch.
The treating surgeon, Dr Gratian Punch did confirm that the applicant reached her highest recorded BMI following the lumbar spine injury, of at least BMI 48 kg/m2, and even potentially BMI 54 kg/m2 in February 2023. Dr Punch explained that the sleeve gastrectomy was undertaken because it was indicted by the applicant’s BMI and also in a bid to assist and improve the ability and outcome of spinal surgery. Dr Punch opined that it is entirely reasonable for the applicant to undergo the sleeve gastrectomy in order to facilitate the lumbar spine procedure. Dr Punch stated that the applicant had the ability to manage her weight prior to the lumbar spine injury in 2019 when class I obesity and class II obesity was present, however that ability ceased with the effects of the lumbar spine injury. Dr Punch opined that the lumbar spine injury caused the applicant’s back pain, and loss of physical activity to reduce obese impacts, which was the cause of a clear worsening of the increase up the scale from class II obesity to morbid class III obesity. Dr Punch noted that weight gain may occur because of chronic pain and consequential functional limitations and other adverse effects, such as sedentary lifestyle, poor sleep, and side effects of medication.
Dr Punch also noted that overall research indicates that obesity makes chronic pain more problematic because it is related to greater physical disability, psychological distress and other comorbidities. Dr Punch provided a detailed and considered explanation of the basis for his opinions, with various references to medical literature.
Dr Brook Burchgardt, psychiatrist, accepted that the applicant’s weight gain was multifactorial, however she also opined that the lumbar spine injury was the turning point when the applicant was no longer able to engage in her usual activity, exercise and work commitments and a marked reduction of activity, in addition to the symptoms of illness and the treatments, which were the cause of the applicant’s increased obesity.
Considering the evidence as a whole and particularly the matters I have set out above, I prefer and accept the opinion of the applicant’s treating surgeon, Dr Gratian Punch, which I consider provides a carefully considered, sound, logical and likely explanation for the sleeve gastrectomy and its causal relationship with both the psychological injury and the lumbar spine injury.
On that basis, having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the sleeve gastrectomy was reasonably necessary as a result of the psychological injury and the lumbar spine injury.

The lumbar spine procedure

Is the proposed treatment medical or related treatment?

The lumbar spine procedure is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Appropriateness

The applicant’s evidence, which is consistent with treating medical evidence and independent medical evidence, is that subsequent to the lumbar spine injury, she has continued to be affected by significant ongoing back pain and associated loss of function of her lower back.
Between 2019 and 2024, in the context of her worsening low back pain and intermittent flare ups of pain, the applicant underwent numerous imaging of her lumbar spine which consistently showed pathology involving the L4/5 and L5/S1:
(a)    on 15 February 2019, a CT lumbar spine was reported to show: at the L4/5 disc, mild posterior and left lateral disc bulge, foraminal stenosis on the left side and obliteration of the fat plane around the exiting left L4 nerve root consistent with nerve root impingement; and at the L5/S1 disc, mild broad based disc bulge, with mild degenerative arthritic changes noted in the S1 joints bilaterally;
(b)    on 3 May 2019, an MRI of the lumbar spine, was reported to show: moderate reduction in disc height at L3/4 and L4/5 with minimal reduction in height and disc fluid signal at L5/S1, being mild lower lumbar/lumbosacral disc degenerative change without focal protrusion nor neurocompressive complication;
(c)    on 14 August 2019, an MRI lumbar spine, was reported to show: mild degenerative disc disease at L4/5 and L3/4; a small disc osteophyte complex in the left posterolateral aspect of L4/5 contributing to mild to moderate left neural foraminal narrowing; but no evidence of significant compression of the cauda equina or exiting nerve roots;
(d)    on 4 August 2021, an MRI lumbar spine was reported to show: at L3/4 and L4/5 levels, reduced T2 hyperintensity in the nucleus pulposus with mild diffuse disc bulges which were suggestive of early degenerative changes; and at L1/2 level, a small focal disc protrusion, which was new compared to the previous MRI lumbar spine on 14 August 2019; and
(e)    on 22 January 2024, an MRI lumbar spine was reported to show: mild multi-level degenerative changes and disc desiccation, most marked at L3/4 and L4/5, with no nerve compression.
On 9 June 2025, Professor Laurence McEntee, the applicant’s treating orthopaedic spine surgeon stated that when he reviewed the applicant on 13 May 2024, the MRI showed ongoing disc degeneration L3/4 and L4/5, but not disc protrusions or nerve compression, and the applicant reported ongoing low back pain with what sounded like a significant facet joint contribution with further review of imaging confirming facet arthropathy bilaterally at L4/5 and L5/S1, and he suggested radiofrequency ablations of her L4/5 and L5/S1 facet joints. Professor McEntee diagnosed chronic low back pain with contributions from disc degeneration and facet arthropathy, and he requested approval to proceed to the lumbar spine procedure, being bilateral L4/5 and L5/S1 facet joint radiofrequency ablations as a day stay procedure at Pindara Private Hospital.
Professor McEntee explained that the lumbar spine procedure involves the placement of needles under image guidance into the lumbar spine, and it involves thermal denervation of the medial branch nerves supplying the L4/5 and L5/S1 facet joints.
Professor McEntee stated that radiofrequency ablation of the lumbar facet joints is considered an appropriate treatment for facet mediated low back pain and the aim of the treatment is to reduce the applicant’s low back pain.
On that basis, I accept that the lumbar spine procedure is directed to treat the pathology identified in the various imaging and the applicant’s ongoing lumbar spine symptoms.

Cost of the treatment

The applicant has provided evidence of the costs of and incidental to the lumbar spine procedure.
The respondent has not raised any issue regarding the quantum of the costs of treatment claimed by the applicant.

Availability of alternative treatment and its effectiveness

The medical evidence consistently shows that the applicant has undergone various treatments for the lumbar spine injury, including hydrotherapy, self-funded acupuncture, physiotherapy and treatment by pain specialists.
On 20 February 2019, a CT-guided steroid injection of the left L4 nerve root to treat the L4/5 disc bulge and left L4 nerve root impingement.
On 7 May 2019, the applicant was referred for treatment of the lumbar spine injury under a Chronic Disease Management Plan in relation to chronic back pain.
21 May 2019, Dr Chris Schwindack, neurosurgeon, recommended ongoing physiotherapy and hydrotherapy.
However the evidence indicates that those alternative treatments did not provide the applicant with any enduring relief from the pain and restrictions caused by the lumbar spine injury.
Professor McEntee stated that other alternatives to the lumbar spine procedure would include CT guided local anaesthetic and steroid injections into the joints, however radiofrequency ablation treatment tends to give a more prolonged treatment frame.
Dr Cochrane, initially stated that the applicant would be a candidate for a multidisciplinary pain management program and rehabilitation program and possibly may be a candidate for intervention from a pain specialist including but not limited to spinal cord stimulation.
Dr Cochrane agreed with Professor McEntee that the lumbar spine procedure would be highly preferable to surgery with a more predictable outcome, lower morbidity and less of a psychological challenge to a patient who has a significant current psychological injury or condition. Dr Cochrane did not believe that any alternative treatment would be likely to assist the applicant prior to surgery, noting that the applicant has already undergone bariatric surgery, undertaken or attempted to undertake a rehabilitation and strengthening programme to the low back and, in his view, is not a candidate for surgery due to her raised body mass index, her substantial psychological injury or condition, and his assessment of significant urinary dysfunction greatly in excess of what radiological imaging would suggest or anticipate.

Actual or potential effectiveness of the treatment and acceptance by medical experts of the treatment

The medical evidence in relation to the potential effectiveness of the lumbar spine procedure to address the applicant’s lumbar spine symptoms and functional limitations is somewhat difficult to reconcile.
Dr Kim Edwards, surgeon, independent medical expert qualified by the respondent, expressed the opinion that the lumbar spine procedure would likely not result in any long term improvement of the applicant’s symptoms, as is a possible temporising treatment, and he did not consider it necessary, but rather a possible source of temporary help.
Professor Laurence McEntee, the applicant’s treating orthopaedic spine surgeon, stated that he would expect that the applicant would benefit from the lumbar spine procedure, noting that radiofrequency ablation of the lumbar facet joints significantly reduces pain in the short term in the setting of facet joint pathology.
Professor McEntee acknowledged that he would not expect that the lumbar spine procedure would provide a complete elimination of the applicant’s pain and that is would not necessarily be a permanent fix and may not lead to any long-term improvement in the applicant’s symptoms.
However, Professor McEntee stated that the lumbar spine procedure may well give the applicant significant pain relief for six to twelve months and allow her to rehabilitate more effectively. He noted that the procedure can be repeated multiple times, which would likely lead to long-term overall improvement in the applicant’s overall symptoms.
Dr Neil Cochrane, neurosurgeon, independent medical expert qualified by the respondent, agreed with Dr McEntee and expressed the opinion that it is very reasonable to proceed to the lumbar spine procedure, noting that it is a reasonable treatment option for aggravated facet arthropathy in the lumbar spine, and particularly for the applicant who suffered non-resolved aggravation lumbar spondylosis in a particular facet arthropathy in the lumbar spine injury.
Dr Cochrane initially expressed the opinion that the lumbar spine procedure would result in a modest reduction in the applicant’s back pain and improved quality of living, although he acknowledged that it would be unlikely to result in such substantial functional improvement that would allow the applicant to return to work.
However, in a later a report dated 30 March 2023, Dr Cochrane expressed the opinion that there was no significant neural compressive lesion and mild disc height collapse as seen on MRI scan in August 2019 and that there is a significant secondary or chronic central pain syndrome that has evolved and what appears to be a significant psychological injury with a low mood state. On that basis, Dr Cochrane expressed the opinion that there is no role for surgery, because he considered that the applicant’s apparent significant secondary psychological injury, pain behaviour and chronic central pain syndrome would represent a barrier and in fact relative contraindication to structural spinal surgery.
In a later report dated 4 April 2025, Dr Cochrane reported that, on examination, the applicant demonstrated various pain symptoms and extremely diminished lumbar spinal movements with significant functional restriction, which are grossly in excess of what have been anticipated with modest radiological findings, and what he interpreted to be significant functional overlay, sub-maximal effort and likely symptom magnification. Dr Cochrane queried whether the applicant’s significant psychological disorder was impacting upon her presentation. Dr Cochrane expressed the opinion that, having assessed the applicant and being unable to determine radiculopathy, and noting absence of convincing neurocompressive lesion on detailed spinal imaging, there is no role for spinal surgical intervention to the applicant.
I found Dr Cochrane’s reports to be somewhat inconsistent and unclear. Further,
Dr Cochrane did not address in any detail the nature of the lumbar spine procedure and its potential to reduce pain in the short term.
On balance, I prefer and accept the evidence of the applicant’s treating neurosurgeon, Professor McEnree that the applicant would likely benefit from the lumbar spine procedure, noting that radiofrequency ablation of the lumbar facet joints significantly reduces pain in the short term in the setting of facet joint pathology. Professor McEntee provided a carefully considered, sound, logical and likely explanation for the lumbar spine procedure to treat the lumbar spine injury.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the lumbar spine procedure is reasonably necessary to treat the applicant’s lumbar spine condition.

Does the need for the treatment arise as a result of a work injury?

As noted above, it is not in dispute that the applicant sustained the lumbar spine injury in the course of her employment with the respondent.
As noted above, I accept that the applicant has ongoing symptoms and restrictions resulting from the injury.
On 9 June 2025, Professor Laurence McEntee, the applicant’s treating orthopaedic spine surgeon reported that the applicant’s work-related injuries were significant initiating factors in the development of the applicant’s chronic low back pain, which has also likely been contributed to by the facet joint arthropathy, and therefore the need for treatment can be related to the applicant’s work injuries.
Dr Kim Edwards, surgeon, independent medical expert qualified by the respondent, diagnosed back pain which represented a disease condition of constitutional origin due to underlying degenerative changes in her lumbar spine, and that any symptomatic aggravation which may have been caused by the applicant’s work in 2019 no longer has any effect, and the applicant’s symptoms are attributable to non-work related injury and pre-existing conditions.
Dr Cochrane, neurosurgeon, independent medical expert qualified by the applicant, expressed the opinion that that the applicant is suffering the effects of multi-level lumbar spondylosis and has likely suffered temporary aggravations of the workplace, however any work-related aggravations would likely have been temporary and maximally of two months’ duration. Dr Cochrane expressed the opinion that there were other non-work-related factors contributing to the applicant’s pain, including but not limited to her mental health and the underlying degenerative disorder in the lumbar spine.
However, Dr Cochrane later diagnosed a non-resolved aggravation of lumbar spondylosis and likely resolved muscular ligamentous strain to the lumbar spine, and stated that the applicant also appears to have developed a significant chronic pain disorder or central pain disorder, which is likely impacting upon the presentation. Dr Cochrane expressed the opinion that the lumbar spine injury caused both an aggravation and probable acceleration of underlying degenerative disc disease at the L3/4 and L4/5 levels consistent with radiologic findings, and that it was also a substantial contributing factor to the development of the applicant’s pain, albeit now far in excess of what one would anticipate. Dr Cochrane expressed the opinion that, whilst there was a degree of symptom magnification and disability in excess of what one would predict from the physical injury, he could not conclude that the applicant was exaggerating or feigning her presentation, noting that symptom magnification can be multifactorial and the applicant’s psychological condition or injuries may be impacting upon the physical presentation.
I found Dr Cochrane’s opinions to be somewhat inconsistent and unclear in relation to whether the effects of the work-related aggravation and acceleration of the underlying degenerative disc disease at the L3/4 and L4/5 levels had resolved.
For the reasons stated above, on balance, I prefer and accept the evidence of Professor McEntee. Considering the evidence as a whole, I am of the view that his reports provide a reasoned and sensible explanation which is consistent with the applicant’s evidence and the treating evidence. Further, I am of the view that it provides a logical and likely explanation for the applicant’s ongoing symptoms and restrictions caused by the condition which is supported by treating medical evidence, and I accept.
Having regard to my findings in relation to the injury above, I am satisfied that the need for the lumbar spine procedure arises as a result of the lumbar spine injury.

SUMMARY

On that basis, the Commission finds:
(a) the sleeve gastrectomy was reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the 1987 Act, and
(b) the lumbar spine procedure is reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the 1987 Act.

The Commission orders:
(a) the respondent to pay the costs of and incidental to the sleeve gastrectomy, pursuant to s 60 of the 1987 Act, and
(b) the respondent to pay the costs of and incidental to the lumbar spine procedure, pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 579

28 October 2025