Fenech v Aldi Stores (A Limited Partnership)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fenech v Aldi Stores (A Limited Partnership) [2025] NSWPIC 503
APPLICANT:	Eric Fenech
RESPONDENT:	Aldi Stores (A Limited Partnership)
MEMBER:	John Turner
DATE OF DECISION:	24 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; consequential condition; material contribution; State of New South Wales v Bishop, and Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited cited and applied; Held – the accepted work injury has not made a material contribution to the applicant’s weight gain; the applicant has not sustained a consequential condition in the form of weight gain; there is an award for the respondent in respect to the consequential condition of weight gain; there is an award for the respondent in respect to the claim pursuant to section 60 for the costs of and incidental to the claimed bariatric surgery in the form of gastric bypass.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. That the accepted work injury has not made a material contribution to the applicant’s weight gain. 2. That the applicant has not sustained a consequential condition in the form of weight gain. 3. There is an award for the respondent in respect to the consequential condition of weight gain. 4. There is an award for the respondent in respect to the claim pursuant to s 60 of the Workers Compensation Act 1987 for the costs of and incidental to the claimed bariatric surgery in the form of gastric bypass. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Eric Fenech, the applicant, has brought proceedings in the Personal Injury Commission (Commission). He pleads that on 5 October 2015 whilst in the course of his employment with Aldi Stores (A Limited Partnership), the respondent, he was carrying a box of chips to load into a freezer when he saw a family approaching and suddenly twisted out of their way sustaining twisting injuries to his cervical spine and right shoulder.
In addition to the injuries to the cervical spine and right shoulder the applicant alleges that as a result of the injuries sustained, he has suffered a consequential left elbow condition as well as a consequential psychological condition. The applicant also alleges that he gained weight as a result of long-term inactivity due to pain and psychological symptoms.
The applicant brings the proceedings seeking pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of the costs of and incidental to gastric bypass surgery.
The applicant commenced employment with the respondent as an Assistant Manager in
April 2008.
Following the incident at work on 5 October 2015 the applicant was diagnosed with a C5/6 disc lesion with C6 dermatomal numbness as well as right C7 radiculopathy. His treatment has included a nerve root injection at C6 with reported marginal relief, C5/6 disc replacement surgery on 12 February 2018 at the hands of Associate Professor Seex with reported marginal improvement, revision C5/6 arthroplasty and arthrodesis (fusion) surgery at the hands of Dr Tait on 8 July 2020 which reportedly gave temporary relief.
The applicant was also diagnosed in respect to his right shoulder with acromioclavicular pathology as well as a SLAP lesion. The treatment of the right shoulder has included a reportedly failed steroid injection, an arthroscopic acromioplasty and excision of the distal clavicle and bicipital tenodesis at the hands of Dr Gupta with reported marginal relief, a further arthroscopy on 10 May 2023 to perform a rotator cuff repair which was not technically feasible as well as open rotator cuff repair performed by Dr Gupta on 17 July 2025 with reported minimal benefit.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) as to whether the applicant has sustained a consequential condition in the form of weight gain, and
(b) as to whether the proposed gastric bypass surgery is reasonably necessary as a result of the accepted injuries: s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
22 August 2025. Mr Craig Tanner, counsel, instructed by Ms Jessica Grant-Nilon, appeared for the applicant, who was present. Mr Daniel Stiles, counsel, instructed by Mr Scott Murray, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents; and
(c)    documents attached to Application to Lodge Additional Documents lodged on behalf of the respondent dated 8 August 2025 (RALAD).
The following is a brief summary of the evidence.
The applicant has put into evidence a statement made by him dated 21 May 2025. I will not provide a summary of the applicant’s statement evidence but rather refer to his statement evidence in the findings and reasons where relevant.
Dr Fadil Khaleal, reported to the applicant’s general practitioner (GP), Dr Sabahat Mahood, on 22 October 2024 reporting that the applicant was a “solid” 85kg and quite active before the subject work injury walking around 10,000 to 12,000 steps a day. That following the work injury, he was off work with very limited physical activity and on top of that there was a divorce and associated depression. That the applicant tried to lose weight over the years since the injury including take Ozempic.
In the doctor’s opinion it is “quite obvious” that the events following the work injury led to significant decrease in physical activity and depression leading to significant weight gain. In the doctor’s opinion the applicant would benefit from weight loss and bariatric surgery, especially gastric bypass would provide him with the best aid to lose weight.
On 11 December 2024 Dr Mahmood reported that in his opinion the applicant’s workplace injury significantly contributed to the applicant’s weight gain noting that the applicant had undergone several surgeries and “been in constant pain on and off which had affected his ability to exercise.” The doctor observed that weight gain occurs for multiple reasons and that he could not be fully certain to what extent genetics and dietary factors have played a role however the applicant did claim to be eating well.
The doctor also noted that the applicant’s weight was around 80kg in 2015. The doctor observed that “[u]nfortunately, the only weight record I have is from 10/11/2021.” The doctor noted that as of 10 November 2021 the applicant weighed 125kg and then noted the applicant’s weight to 4 December 2024 at which time he weighed 136kg. The doctor noted that the applicant had been referred to a dietician in the past and that he had been trying to exercise as much as possible at home but stated that pain is a limiting factor. The doctor also noted that the applicant had seen a physiotherapist many times and that he had tried Ozempic which he stopped due to nausea and that he had also tried meal replacements.

In support of his case the applicant relies on a forensic report of Dr Anthony Greenberg, general and gastrointestinal surgeon, dated 3 February 2025. In the opinion of Dr Greenberg, the proposed gastric bypass surgery is a reasonable option to treat the applicants weight gain.
Dr Greenberg took a history that the applicant prior to his injury weighed on average
85kg to 87kg which would have been considered overweight. That since the subject work injury the applicant had experienced significant weight gain, weighing 136kg at the time of examination. The doctor observed that whilst the applicant was overweight prior to injury he was now morbidly obese.
Dr Greenberg observed that there are three factors to obesity being firstly energy in (food consumed); secondly energy out (exercise, general activity, or essential bodily activities such as heart activity, breathing etc) and thirdly genetic propensity.
Dr Greenberg observed that the most common cause of obesity is eating too much food and doing too little physical activity.
The applicant reported to Dr Greenberg that prior to the work injury he was able to do around 12,000 steps a day undertaking his work duties with the respondent as well as taking care of his home and two young children. The applicant also reported to the doctor that his diet was healthy, and he had no issues with what he was eating or the quantity of food that he was consuming.
Dr Greenberg took a history that after the subject work injury the applicant was unable to exercise due to the surgeries and pain. The surgeries caused the applicant to have a lack of strength and reduced his ability to move and engage in physical activities and exercise.
The applicant reported he has been unable to do many of the things which he used to do prior to sustaining injury. Things such as mowing the lawn, weeding the garden, taking the dog for a walk, play with his children, cooking and cleaning. He also reported that he was going through a lot of stress, anxiety and depression due to the injuries where he was “losing self control” because he couldn’t do the everyday routine that he had prior to sustaining the injuries or look after himself or his children.
Dr Greenberg made the general observation that morbid obesity is a multifactorial and complex disease and not just simply the result of overeating. In the doctor’s experience excessive weight gain is not an uncommon outcome in injured patients.
The respondent relies on the opinion of Dr Phil Truskett, surgeon, who has provided a forensic report to the respondent dated 17 March 2025.
The applicant reported to Dr Truskett that in around 2014 he weighed in the order of 84kg whilst at the time of the doctor’s examination the applicant weighed 140.2kg.
Similarly to Dr Greenberg, Dr Truskett took a history from the applicant that he was very active prior to sustaining the work injuries completing in excess of 11,000 steps per day. That he was assessed by a dietician who said that his eating habits were good and that he was advised that diet would not help his weight.
The doctor recorded as a typical diet for the applicant:
(a)    breakfast – two Weet-Bix with milk, a glass of apple juice and a slice of bread;
(b)    morning tea – handful of unsalted nuts and a muesli bar;
(c)    lunch – small bowel of brown rice and tinned tuna or salad;
(d)    afternoon tea – an apple or a banana, and
(e)    dinner – chicken breast, broccoli, carrots and peas and a small roast potato.
He drank two litres of water and one glass of Coke per day. The applicant denied having any other snacks.
Dr Truskett questioned the accuracy of the applicant’s reported pre-injury weight of 84kg noting that Dr Charles New, orthopaedic surgeon, had reported on 25 May 2016 (seven months after the subject work injury) that the applicant weighed 110kg. Dr Truskett observed that this would represent a “26kg weight gain over the space of 5 months”. The doctor observed that a 30% weight gain over a five month period would be an “extraordinary effort” and in the doctors view it is more likely that that applicant’s weight was far greater than 84kg particularly in view of the relatively slow progression of weight described by Dr Mahmood from 10 November 2021 to 4 December 2024 when the applicant gained only 11kg.
Dr Truskett observed that the “claimed” factors relating to weight gain is lack of activity and the ingestion of Lyrica which is said to have an appetite stimulatory effect.
Dr Truskett states that there is a significant body of research that indicates that exercise has a relatively low impact on weight maintenance/weight control. Dr Truskett did however note that over recording of active exercise and inaccurate reporting of food intake affected the studies. However, it was estimated that exercise has little more than approximately 5% impact on weight maintenance the predominant impact being caloric intake.
In the opinion of Dr Truskett, the applicant’s weight gain could not be attributed to the ingestion of Lyrica (Pregabalin) which a study had shown to cause a little over 1.3kg in weight gain.
In the opinion of Dr Truskett, it is likely that the applicant was at the time of injury in obesity class 2 and he has progressed to obesity class 3. In the doctor’s opinion the predominant factor in the progression may be genetic, lifestyle and dietary sources. In the doctor’s view the impact of exercise and medication would be “less than minimal.” The doctor felt that the diet described to him by the applicant would be an under-estimate.
Whilst Dr Truskett is of the opinion that bariatric surgery is a successful method of losing weight, he did not believe that the weight gain was work related.
The clinical records of the applicant’s GP’s are in evidence. The records record that on
11 April 2012 the applicant weighed 100kg,[1] 103.7kg on 28 September 2013, 100kg on
10 April 2016, 110.2kg on 24 April 2016, 116.5kg on 27 June 2016, 125kg on
7 December 2017, 130kg on 26 April 2018, 120kg on 1 October 2018, 123kg on
22 August 2019, 119kg on 12 September 2019, 115kg on 6 November 2019, 127kg on
1 October 2020, 124kg on 8 October 2020, 125kg on 10 November 2021, 128kg on
14 March 2022, 141kg on 4 April 2022, 139.9kg on 21 September 2022, 134kg on
[1] RALAD p. 30.
23 September 2024 and 136kg on 4 December 2024.²
Whilst the recording of the applicant’s actual weight in the GP records do not commence until 11 April 2012 Dr Akbar Khan recorded on 26 March 2012 that the applicant was “grossly overweight”, on 29 March 2012 “obesity ++ counselling”, on 11 April 2012 that the applicant was obese at 100kg and was advised “seriously” to lose weight and on 25 July 2012 that the applicant was advised to lose weight and was referred to a dietician as well as being prescribed the weight loss medication Duromine.
The GP clinical records further record on 28 September 2013 that the applicant was advised in respect to diet and exercise and a plan was made for the applicant to see a dietician.[2]
[2] RALAD pp. 39-40.
Shortly after the subject work injury the GP, Dr Joseph Yang, recorded on 29 October 2015 in respect to the applicant’s social history (Shx) “work at ALDI as a manager, no regular exercise.”[3]
[3] RALAD p. 46.
The first record of the applicant’s weight post injury appears in the GP records on
[4] RALAD p. 63.
10 April 2016 when, Dr Mahmood, records the applicant’s weight as 100kg. The noting of the applicant’s weight was not accompanied by any comment as to whether the applicant had experienced any recent weight gain.[4] However there is also no comment in the clinical notes two weeks later when the applicant is weighed at 110.2kg which from a lay perspective seems to be an extraordinary amount of weight gain in a two-week period.
On 27 April 2016 Dr Mahmood did however advise the applicant on weight loss, healthy diet and exercise.⁶
On 23 May 2016 the applicant attending on Dr Charles New, orthopaedic and spinal surgeon, who reported to the applicant’s solicitors on 25 May 2016. Dr New records that at that time the applicant weighed 110kg and that prior to the work injury he enjoyed bike riding, kicking a ball with his children and playing PlayStation. Since the injury he had been very limited in what he could do.
On 27 June 2016 when the applicant was weighed at 116.5kg Dr Mahmood recorded in respect to the applicant’s weight gain that the applicant had “stopped fizzy drinks and chocolates a few weeks ago” and that the applicant was advised in respect to healthy diet and exercise.[5] On 7 December 2017 when the applicant was weighed at 125kg Dr Mahmood again advised the applicant in respect to a healthy diet and exercise and referred the applicant to a dietician.[6] The following day on 8 December 2017 the applicant was weighed at 129.3kg and Mr Tuo Tao (possibly a dietician) in an initial consultation provided dietary advice to the applicant to choose “WG” bread, reduced fat cheese, add more vegetable and extra lean mince when having pasta as well as advising on the quantity, to try Stevia in coffee and Paddle pop minis if craving sweets.
[5] RALAD pp. 68-69.
[6] RALAD p. 87.
On 29 December 2017 Mr Tao reviewed the applicant providing dietary advice which included recommending that the applicant stop “Zuppa Doppa”, that he has Kebab “less often”, that he BBQ more vegetables and that he avoid fat and fatty juice when roasting a leg of pork.[7]
[7] RALAD p. 88.
On 12 March 2018 Dr Mahmood again provided advice to the applicant in respect to healthy diet and exercise.[8]
[8] RALAD p. 93.
On 6 April 2018 Mr Tao noted the applicant’s weight at 131kg and that the applicant had been diagnosed with Type 2 diabetes. Mr Tao provided the applicant with dietary advice including providing a low GL food list. On 9 April 2018 Dr Mahmood noted that the applicant had seen the dietician and that he was “not very happy” with the dietary advice that he had received. The doctor noted that the applicant had an appointment with the diabetic clinic.[9]
[9] RALAD p. 99.
On 16 August 2018 Dr Mahmood noted that the applicant had lost some weight with diet and exercise.[10] On 1 October 2018 Dr Mahmood recorded that the applicant weighed 120kg[11] and on 22 November 2018 Dr Mahmood recorded that the applicant was trying to lose weight and a weight plan was discussed – healthy diet and exercise with referral to exercise physiotherapist.[12]
[10] RALAD p. 112.
[11] RALAD p. 115.
[12] RALAD p. 117.
The GP clinical records record that the applicant attended Mr Hassan Qureshi, who appears to be an exercise physiologist, on 1 December 2018 in respect to his Type 2 diabetes and weigh loss. The applicant reported that since stopping work he had gained 40kg and that he wanted to lose weight and that he had “started making diet changes”, continued to walk
[13] RALAD p. 118.
20-40 minutes daily, that he used to go to the gym but no longer did so and that he was struggling with activities of daily living such as mowing the lawn due to shoulder pain.[13]
On 12 September 2019 Dr Mahmood recorded the applicant’s weight at 119kg noting that the applicant was trying to lose weight and that he had lost a few kilograms.[14] On
[14] RALAD p. 141.
[15] RALAD pp. 145-146.
16 November 2019 Dr Mahmood noted that the applicant was trying to lose weight “eating healthy and exercising.” The applicant at that point had again managed to lose weight, weighing 115kg.[15]
On 25 June 2020 Dr Mahmood noted that the applicant had “lost wt – healthy diet and exercise.”[16]
[16] ARD p. 264.
On 29 July 2021 Dr Sushama Deshpande reported to Dr Mahmood that the applicant had gained 25kg since the injury.[17]
[17] ARD p. 181.
On 4 April 2022 Dr Mahmood recorded that the applicant’s weight had increased to 140kg noting that the applicant could not exercise due to neck and shoulder conditions.[18]
[18] ARD p. 290.
On 21 September 2022 Dr Mahmood recorded that the applicant weighed 138.9kg. At that time the applicant was again referred to a dietician.[19]
[19] ARD pp. 297-298.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Consequential condition - weight gain

There is no controversy on the evidence that the applicant has experienced weight gain following 5 October 2015. However, it is not sufficient for the applicant to simply point to that weight gain and say that part or all of that weight gain is as a result of the work injury.

The applicant bears the onus of proof on the balance of probabilities. The question of whether a consequential condition has been sustained is a question of fact.[20] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[21] For the applicant to establish a consequential condition he does not have to prove “injury” within the meaning of s 4 of the 1987 Act.[22] All the applicant needs to establish is that the accepted work injury has made a material contribution to his weight gain.
[20] State of New South Wales v Bishop [2014] NSWCA 354.
[21] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[22] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
There is a controversy as to what the applicant’s weight was at the time that injury was sustained on 5 October 2015.
There is no contemporaneous record of the applicant’s weight at the time that injury was sustained. The applicant in his statement provides no evidence as to his actual weight at or prior to 5 October 2015.
Dr Khaleal, the surgeon who has recommended the weight loss surgery, reported to
Dr Mahmood, on 22 October 2024 that the applicant was a “solid” 85kg prior to injury.
Dr Mahmood on 11 December 2024 noted that the applicant’s weight was around 80kg in 2015. Dr Greenberg in his report of 3 February 2025 took a history that the applicant weighed on average, 85kg to 87kg prior to injury. Dr Truskett in his report dated
17 March 2025 records that the applicant reported that in around 2014 he weighed in the order of 84kg.
The clinical records of the Bringelly Road Medical and Fitness Centre record that prior to sustaining injury the applicant weighed 100kg on 11 April 2012 and 103.7kg on
28 September 2013. The first record of the applicant’s weight following the injury is recorded on 10 April 2016 when the applicant weighed 100kg.
Mr Tanner submitted on behalf of the applicant that a weight of 100kg on 10 April 2016, some six months after the subject work injury was sustained, is consistent with the applicant weighing in the region of 85kg at the time of injury and experiencing weight gain following the injury.
In support of his submission Mr Tanner referred to the GP clinical records which recorded the applicant’s weight at 100kg on 10 April 2016 and 110.2kg on 24 April 2016. Mr Tanner submitted that if such an “extraordinary” increase of 10kg in two weeks is acknowledged then an increase of approximately 15kgs in weight from 5 October 2015 to 10 April 2016 should be accepted.
I do not accept that the applicant weighed approximately 85kg at the time of the injury on
5 October 2015.
The applicant in his statement provides no evidence as to his weight as at or about
5 October 2015. The applicant also does not in his statement provide any evidence as to any variations in his weight prior to 5 October 2015 and what may have contributed to any weight changes. Nor does he provide any meaningful evidence as to any weight gain which he experienced directly following the subject work injury. Rather the applicant provides histories to Dr Khaleal and Dr Greenberg that prior to his work injury he was physically active walking 10,000 to 12,000 steps per day. The applicant also reported to Dr Greenberg that his diet was healthy and that he had no issues with what he was eating or the quantity of food that he was consuming.
The contemporaneous medical records however evidence that the applicant did have issues with his weight prior to sustaining injury, and significantly after commencing work with the respondent in April 2008, which in his evidence involved physically active duties.
The GP clinical records note on 26 March 2012 that the applicant was “grossly overweight”, on 29 March 2012 “obesity ++ counselling”, on 11 April 2012 that the applicant was obese at 100kg and was advised “seriously” to lose weight and on 25 July 2012 that the applicant was advised to lose weight, was referred to a dietician as well as being prescribed the weight loss medication Duromine.
On 28 September 2013, over a year after being prescribed Duromine, the applicant’s weight had not decreased weighing 103.7kg. At this time the applicant was advised in respect to diet and exercise and a plan was made for the applicant to see a dietician.
The evidence overwhelmingly supports that the applicant had a weight problem prior to
5 October 2015, that he had been counselled to lose weight and that the applicant’s efforts to lose weight, at least between April 2012 and September 2013, had been unsuccessful. As previously noted, the applicant does not in his statement provide any direct evidence as to what his weight was at the time of his injury or how he allegedly managed to lose weight prior to 5 October 2015 having weighed 103.7kg on 28 September 2013 and having attempted and failed to lose weight previously.
I agree with the opinion of Dr Truskett and the submission made by Mr Stiles on behalf of the respondent that the applicant’s weight was likely far greater at the time of injury. In my view, based on the evidence, the applicant most likely weighed in the region of 100kg at the time the injury was sustained. Such a weight is consistent with the contemporaneous evidence that the applicant weighed approximately 100kg on 11 April 2012 and 103.7kg on
28 September 2013 prior to injury, and 100kg on 10 April 2016 when the applicant’s weight is recorded for the first time following the work injury.
Whilst the applicant did experience a dramatic increase in weight between 10 April 2016 and 24 April 2016, gaining some 10kg in two weeks, there is no evidence as to the cause for what I agree with Mr Tanner is “extraordinary” weight gain. From a lay perspective such dramatic weight gain merely due to inactivity seems highly implausible and I accept Mr Stiles submission on behalf of the respondent that such a weight gain is unlikely to be simply due to a lack of mobility. I am of the view that no inference as to the applicant’s weight at the time of injury can be drawn from the applicant’s weight gain between 10 April 2016 and
24 April 2016.
It is the applicant’s case that he has experienced weight gain as a result of long term inactivity due to pain and psychological symptoms.
Dr Greenberg observed that morbid obesity is a multifactorial and complex disease and not just simply the result of overeating. Dr Greenberg observed that there are three factors to obesity being firstly energy in (food consumed); secondly energy out (exercise, general activity, or essential bodily activities such as heart activity, breathing etc) and thirdly genetic propensity.
In respect to the applicant’s diet Dr Mahmood in his report of 11 December 2024 recorded that the applicant reported eating well. As previously noted, the applicant reported to
Dr Greenberg that his diet was healthy. The applicant did report to Dr Greenberg that his injuries had affected his ability to perform activities including cooking and that due to stress, anxiety and depression due to his injuries he was “losing self control” but here is no evidence as to what that meant in respect to his dietary habits.
Dr Truskett took a more detailed history of the applicant’s diet recording that the applicant reported that he had been assessed by a dietician who said that his eating habits were good and that he was advised that diet would not help his weight. Dr Truskett recorded that the applicant reported the following as a typical diet:
(a)    breakfast – two Weet-Bix with milk, a glass of apple juice and a slice of bread;
(b)    morning tea – handful of unsalted nuts and a muesli bar;
(c)    lunch – small bowel of brown rice and tinned tuna or salad;
(d)    afternoon tea – an apple or a banana, and
(e)    dinner – chicken breast, broccoli, carrots and peas and a small roast potato.
Dr Truskett also recorded that the applicant reported that he drank two litres of water and one glass of Coke per day and that he denied having any other snacks.
Dr Truskett felt that the diet described to him by the applicant was an under-estimate.
In my view the evidence does not support the dietary histories provided to Dr Truskett,
Dr Mahmood and Dr Greenberg.
The applicant in his statement does not deal with his diet to any great degree. He does acknowledge that he was referred to a dietician and did receive dietary advice however he provides no evidence as to his actual diet. The applicant does state that on
6 November 2019 Dr Mahmood recommended that he “continue with a healthy diet and exercise.” The GP clinical records provide evidence that prior to 6 November 2019 the applicant had been able to reduce his weight, weighing on 6 November 2019 115kg down from a peak of 130kg on 26 April 2018.
This reduction in weight also coincides with Mr Hassan Qureshi, who appears to be an exercise physiologist, recording on 1 December 2018 that the applicant wanted to lose weight and that he had “started making diet changes” and continued to walk 20-40 minutes daily.
It is also the applicant’s evidence at [150] of his statement that he experienced additional weight gain which appears to have occurred around March/April/May 2022 without an increase in his eating and at [194] that he had attended on Dr Mahmood on 31 January 2024 at a time when he had experienced weight gain whilst his “diet remained the same” and at that time Dr Mahmood assessed his diabetes and advised that he needed to make changes to his diet.
It is the applicant’s evidence at [218] that he had made a number of attempts over the years since sustaining the injury at work to manage and reduce his weight. It is also his evidence that he has continued to follow a strict diet and been very compliant with his diet.
The GP clinical notes record on 28 September 2013, prior to the date of the subject work injury, that the applicant was advised in respect to his diet and was to see a dietician. The applicant following the injury again received advice in respect to a healthy diet on
27 April 2016, on 27 June 2016 Dr Mahmood recorded in respect to the applicant’s weight gain that the applicant had “stopped fizzy drinks and chocolates a few weeks ago” and that the applicant was again advised in respect to healthy diet and exercise. The applicant was again advised in respect to a healthy diet and again referred to a dietician on 7 December 2017.
On 8 December 2017 the applicant attended an initial consultation with Mr Tuo Tao, who appears to be a dietician, who provided dietary advice to the applicant to choose “WG” bread, reduced fat cheese, to add more vegetable and extra lean mince when having pasta as well as advising on the quantity, to try Stevia in coffee and Paddle pop minis if craving sweets. On 29 December 2017 Mr Tao reviewed the applicant providing dietary advice which included recommending that the applicant stop “Zuppa Doppa”, that he has Kebab “less often”, that he BBQ more vegetables and that he avoid fat and fatty juice when roasting a leg of pork.
On 12 March 2018 the applicant was again provided with dietary advice by Dr Mahmood. By 6 April 2018 the applicant had been diagnosed with Type 2 diabetes and on that day, Mr Tao provided further dietary advice including a low GL food list. On 9 April 2018 Dr Mahmood noted that the applicant had seen the dietician and that he was “not very happy” with the dietary advice that he had received.
Dr Mahmood noted on 16 August 2018 that with a healthy diet and exercise the applicant had lost some weight. On 22 November 2018 Dr Mahmood again discussed a healthy diet with the applicant.
On 16 November 2019 Dr Mahmood noted that the applicant was trying to lose weight “eating healthy and exercising.” The applicant at that point had again managed to lose weight, weighing 115kg. On 25 June 2020 Dr Mahmood noted that the applicant had “lost wt – healthy diet and exercise.”[23]
[23] ARD p. 264.
The clinical records show that the applicant was repeatedly provided with dietary advice. Where details of that advice are recorded it indicates that the applicant was given significant advice as to changes to be made to his diet and is inconsistent with the diet described to
Dr Truskett. The clinical records also evidence that at times the applicant was not happy with the dietary advice that he was receiving which again indicates that the changes to be made were significant. The clinical records also indicate that when the applicant did adopt the dietary advice, he experienced weight reduction.
Turning to the contribution, if any, of the applicant’s inactivity due to injury to the applicant’s weight gain.
In the opinion of Dr Khaleal, it is “quite obvious” that the events following the work injury led to significant decrease in physical activity and depression leading to significant weight gain.
I accept the submission by Mr Stiles on behalf of the respondent that Dr Greenberg does not provide an opinion as to the cause(s) of the applicant’s weight gain. Rather Dr Greenberg provides some general observations in response to question 5 in his report including that in his experience with injured patients excessive weight gain is not an uncommon outcome.
In the opinion of Dr Truskett, the impact of exercise on the applicant’s weight gain would be “less than minimal”. The doctor observed that there is a significant body of research that indicates that exercise has a relatively low impact on weight maintenance/weight control.
Dr Truskett did however note that over recording of active exercise and inaccurate reporting of food intake affected the studies. However, it was estimated that exercise has little more than approximately 5% impact on weight maintenance the predominant impact being caloric intake.
I prefer the opinion of Dr Truskett. In my view the opinion of Dr Truskett is based on a more accurate estimate of the applicant’s weight at the time of injury as well as making a closer assessment as to the nature of the applicant’s diet. The doctor provides a reasoned opinion as to his views in respect to the contribution which lack of physical activity would have played in the applicant’s weight gain.
Dr Greenberg provides no opinion as to the cause of the applicant’s weight increase based on the facts in this matter but rather simply provides general observations which are of no assistance. Dr Khaleal provides no reasoning for his opinion which is a mere assertion which has been made without a proper understanding of the applicant’s history. Both Dr Greenberg and Dr Khaleal rely on an incorrect understanding of the applicant’s weight at the time of injury and Dr Greenberg does not in my view have a correct understanding of the applicant’s diet.
Whilst Mr Tanner submitted that it is well understood that a proper exercise program has a significant role in ensuring weight loss there is no evidence in this matter, apart from that of Dr Truskett as to the effect of exercise alone on weight gain.
Whilst there is no controversy that the applicant has experienced a significant increase in his weight following the work injury on 5 October 2015. There is no opinion from any of the medical experts, except for Dr Truskett, as to the effects of exercise on the applicant’s weight. Dr Khaleal provides a bare assertion with no reasoning.
What is also not explained is why the applicant’s weight at times increased very rapidly. In the two weeks from 10 April 2016 to 24 April 2016 the applicant’s weight increased by approximately 10kg from 100kg to 110.2kg and from 14 March 2022 to 4 April 2022 by 13kg from 128kg to 141kg. It seems implausible from a lay perspective, when the applicant claims to have been strict in respect to his diet, that such increases in weight could be solely or even significantly due to lack of activity and exercise.
Dr Khaleal and Dr Greenberg also does not explain the applicant’s ability to reduce weight between 26 April 2018 and at least 6 November 2019 when he lost 15kg whilst suffering the effects of his work injury.
Dr Mahmood in his report of 11 December 2024 expressed the opinion the applicant’s workplace injury significantly contributed to his weight gain noting that he had undergone several surgeries and “been in constant pain on and off which had affected his ability to exercise.”
I give the opinion of Dr Mahmood little weight. The report is, unfortunately, conspicuous for what it does not say. Whilst the doctor had repeatedly provided dietary advice to the applicant the doctor simply reports that the applicant “claimed” to be eating well. I have previously given my views in respect to the applicant’s diet. The doctor also recorded that the applicant weighed around 80kg in 2015 observing that he only had weight records for the applicant from 10 November 2021. The doctor does not explain why he only had weight records from 10 November 2021 when the applicant had been attending the doctors practice from 25 February 2012 and on Dr Mahmood in particular since 14 October 2015. I have previously discussed my views in respect to the applicant’s weight at the time of the injury.
I accept the opinion of Dr Truskett that the impact of exercise on the applicant’s weight gain has been “less than minimal”. I therefore find that the work injury has not made a material contribution to the applicant’s weight gain.
For the above reasons I find that the applicant has not discharged his onus and find that the applicant has not suffered a consequential condition in the form of weight gain.
I therefore also find that the proposed bariatric surgery in the form of gastric bypass is not reasonably necessary as a result of an injury.

[2025] NSWPIC 503

24 September 2025