Fenech v Aldi Stores (A Limited Partnership) - [2025] NSWPIC 503

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fenech v Aldi Stores (A Limited Partnership)

Details

AGLC: Fenech v Aldi Stores (A Limited Partnership) [2025] NSWPIC 503
Case: [2025] NSWPIC 503
Decision Date: 24 September 2025

CaseChat Overview and Summary

In the matter of Fenech v Aldi Stores (A Limited Partnership), the applicant sought compensation for a consequential condition arising from a previously accepted work injury under the Workers Compensation Act 1987. The applicant, Fenech, alleged that the work injury had materially contributed to her weight gain, which necessitated bariatric surgery in the form of a gastric bypass. The respondent, Aldi Stores (A Limited Partnership), contested the claim, arguing that there was no material contribution between the injury and the weight gain.

The central legal issues the court had to address were whether the work injury materially contributed to the applicant’s weight gain, and if the weight gain constituted a consequential condition within the meaning of the Act. The court needed to apply the principles established in cases such as State of New South Wales v Bishop and Kooragang Cement Pty Ltd v Bates, as well as Moon v Conmah Pty Limited, to determine the extent of any causal link between the injury and the consequential condition.

The court found that the applicant’s weight gain did not have its origin in the work injury, as there was insufficient evidence to establish a causal link. The court emphasised that the accepted work injury had not made a material contribution to the weight gain. Consequently, the court concluded that the applicant had not sustained a consequential condition in the form of weight gain. Additionally, the court dismissed the applicant's claim for the costs of the bariatric surgery under section 60 of the Workers Compensation Act. Therefore, the court awarded costs to the respondent in respect of both the consequential condition and the claim for surgery costs.

The final orders of the court included a dismissal of the applicant’s claims for compensation related to the consequential condition of weight gain and the costs of the gastric bypass surgery. The court also directed that the respondent be awarded its costs associated with these claims.

Orders