Fittock and Comcare (Compensation) - [2021] AATA 3628

Fittock and Comcare (Compensation) [2021] AATA 3628 (11 October 2021)
Division:GENERAL DIVISION
File Number:2021/0851
Re:Kylie Fittock
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:11 October 2021
Place:Brisbane

The Tribunal affirms the decision under review.
....................[SGD]..........................
Member D Mitchell

CATCHWORD
COMPENSATION – accepted injury – aggravation of adjustment disorder – claim for medical expenses relating to gastric sleeve surgery – whether medical treatment was obtained in relation to accepted injury – whether medical treatment was reasonable to obtain in the circumstances – no claim for liability for obesity or diabetes or aggravation thereof – relevant treatment not in related to accepted injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Howes v Comcare [2016] FCA 1521
Jorgensen and Commonwealth of Australia [1990] AATA 129; (1990) 23 ALD 321
Lees v Comcare [1999] FCA 753
REASONS FOR DECISION
Member D Mitchell
11 October 2021
INTRODUCTION

Ms Kylie Fittock (the Applicant) is seeking review of a decision of the Respondent dated

8 February 2021.[1]
[1] Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision.
The reviewable decision[2] affirmed a determination dated 10 December 2020[3] to deny liability under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for sleeve gastrectomy surgery (gastric sleeve surgery) and associated expenses on the basis that the medical treatment was found not to be in relation to the accepted injury and was consequently not reasonable to obtain in the circumstances.[4]
[2]     Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision.
[3]     Exhibit 1, T Documents, T23.2, pages 164-165, Determination Decision.
[4]     Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision; T1.2, pages 11-14, Statement of Reasons.
CLAIMS HISTORY
Since 2003, the Applicant has been employed by Services Australia as an APS4 Service Officer.[5]
[5] Exhibit 1, T Documents, T5, page 40, Email – Allianz to Comcare attaching early contact reference sheet; Exhibit 1, T Documents, T5, pages 52-53, Report – Dr Mary Ellen O’Hare (Consultant Psychiatrist).
On 16 July 2018, the Applicant completed and signed a claim for workers’ compensation in relation to a condition described as being a depressive illness.[6]
[6] Exhibit 1, T Documents, T4, pages 33-38, Worker’s Compensation Claim.1.1, pages 6-10, Reviewable Decision.
On 26 September 2018, the Applicant’s claim for workers’ compensation was denied.[7] That determination was affirmed by the Respondent on 1 November 2018.[8]
[7] Exhibit 1, T Documents, T8.2, page 79, Determination: deny liability for adjustment disorder with mixed anxiety and depressed mood under section 14.
[8] Exhibit 1, T Documents, T13, page 114, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.
The Applicant sought review by the Tribunal in relation to that decision. On

16 October 2019, at the request and consent of the parties, the Tribunal set aside the decision of 1 November 2018 and in substitution decided that the Respondent was liable to pay compensation under section 14 of the SRC Act for an aggravation of an adjustment disorder sustained on 21 April 2017 (the accepted condition).[9] It was noted by the Tribunal that the parties agreed that the Respondent was liable to pay compensation to the Applicant under sections 16 and 19 of the SRC Act from 21 April 2017 to 30 September 2019.[10]
[9] Exhibit 1, T Documents, T13, pages 114-115, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.
[10] Exhibit 1, T Documents, T13, pages 114-115, Decision of the Administrative Appeals Tribunal accepting liability for an aggravation of an adjustment disorder.
On 29 October 2019, the Applicant submitted a medical services claim form, in relation to medical expenses relating to gastric sleeve surgery she underwent on 16 March 2018. The Applicant requested reimbursement for the costs (collectively referred to as the claimed medical expenses) relating to the following:[11]
·Anaesthesia administered by Dr James Wong on 16 March 2018.
·Hospital costs associated with her admission to the Cairns Private Hospital on           16 March 2018.
·Consultations with Dr Benjamin Woolven, Bariatric – Obesity Surgeon on                    16 February 2018, 13 March 2018, 9 May 2018 and 5 June 2018.
[11]    Exhibit 1, T Documents, T20.2, page 153, Letter – Allianz to Respondent recommending denial of claims for cost of unrecognised medical treatment.
On 25 June 2020, the Respondent accepted liability for general practitioner and psychological consultations in relation to the Applicant’s accepted condition.[12]
[12] Exhibit 1, T Documents, T16.1, pages 127-128, Determination: acceptance of liability of reasonable and appropriate costs of medical treatment under section 16.
On 10 December 2020, the Respondent denied the Applicant’s claim for compensation pursuant to section 16 of the SRC Act in relation to the claimed medical expenses.[13] The Respondent found that the gastric sleeve surgery was treatment for weight loss and was not considered to be recognised medical treatment for the Applicant’s accepted psychological condition.[14]
[13] Exhibit 1, T Documents, T20, page 149 Email Allianz to Applicant; T20.1, pages 150-151, Email Allianz to Applicant attaching Determination: deny liability for anaesthesia services by Dr Wong on 16 March 2018 hospital costs at Cairns Private on 16 March 2018 and consultation costs with Dr Woolven 16 February 2018 13 March 2018 9 May 2018 and 5 June 2018 under section 16.
[14] Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision; T1.2, pages 11-14, Statement of Reasons.
On 5 January 2021, the Applicant requested a reconsideration of that determination.[15]
[15] Exhibit 1, T Documents, T21, pages 155-157, Request for reconsideration of determination.
On 8 February 2021, the Respondent affirmed the determination, noting that liability had not been accepted for obesity, being the condition for which the Applicant had the gastric sleeve surgery.[16] Based on the medical evidence available to it, the Respondent did not accept the Applicant’s submission that her psychological condition resulted in her blood sugar level rising to a dangerously high level, which in turn meant that she had to have the gastric sleeve surgery.[17]
[16] Exhibit 1, T Documents, T1.1, pages 6-10, Reviewable Decision.
[17] Exhibit 1, T Documents, T1.2, pages 11-14, Statement of Reasons.
On 15 February 2021, the Applicant sought review of the reconsideration decision by way of application to this Tribunal.[18]
[18] Exhibit 1, T Documents, T1, pages 1-5, Application for Review of Decision.
A Hearing was held on 26 July 2021. The Applicant, appeared in person, was self-represented and gave evidence under affirmation. The Respondent was represented by

Mr Matthew Hawker.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation for the claimed medical expenses under section 16 of the SRC Act.
In considering this issue, the Tribunal must consider:
1.Whether the claimed medical expenses meet the definition of medical treatment?
2.If so, whether the medical treatment was obtained in relation to the accepted injury?
3.If so, whether the medical treatment was reasonable for the Applicant to obtain in the circumstances?
THE LAW
Section 16 of the SRC Act provides eligibility requirements for compensation in respect of medical and associated expenses. Relevantly, section 16(1) of the SRC Act provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines Is appropriate to that medical treatment.
Section 4 of the SRC Act defines medical treatment to include medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner and treatment and maintenance as a patient at a hospital.
In Howes v Comcare [2016] FCA 1521, the matter related to medical expenses being claimed for breast reduction surgery where the accepted injury was in respect of what was described as “intervertebral disc disorder – cervical region”, “sprain of shoulder and upper arm (right)”; “subacromial bursitis (right)” and “erosion of teeth” (which was caused by the Applicant grinding her teeth at night in response to her pain).[19] In relation to the interaction between the “in relation to” and “reasonableness of treatment” considerations, Griffiths J at [53]-[55] provided:
53. It is evident from the AAT’s reasons in the proceeding here that, in determining whether or not the breast reduction surgery was “in relation to” the applicant’s compensable injuries, consideration was given inter alia to the evidence of the applicant’s various medical advisors, as well as to the evidence of Dr Maxwell. This is reflected in the AAT’s findings in [23] of its reasons for decision (which are set out in [18] above) and, in particular, in the first dot point of that paragraph where a finding was made that all five of the applicant’s doctors advised her that breast reduction surgery might reduce the pain, as well as the third and fourth dot points, which were based on an acceptance of Dr Maxwell’s evidence. It is not the case that the Senior Member did not consider the applicant’s medical evidence or regard it as being irrelevant to the question whether the surgery was in relation to the compensable injuries. He plainly did view it as relevant, but he preferred to accept Dr Maxwell’s evidence, which was to the effect that breast reduction surgery could not have affected the symptoms of the applicant’s compensable injuries, for the reasons which are summarised in [21] of the AAT’s reasons for decision. Dr Maxwell’s opinion was heavily influenced by the fact that the applicant’s spinal injuries related to her cervical spine and not her thoracic spine and his view that the weight of the applicant’s breasts was borne by her thoracic spine and not the cervical spine. He also explained why her neck pain would not be affected by breast reduction surgery.
54. I do not consider that the applicant has established any appealable error in respect of this aspect of the AAT’s reasoning. The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. I accept Comcare’s submission that, in order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries (see Manns v Comcare [2012] AATA 462 at [22]-[23]). Contrary to the applicant’s contention that Dr Maxwell’s evidence was only relevant to the issue of “reasonableness”, I consider that it was relevant to the prior question whether the surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT’s conclusion that the surgery was not in relation to the injuries is more accurately described as “an evaluative conclusion” based on primary facts (see Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [88] per Robertson J). The subjective views of either the applicant or her medical advisors were not determinative. This is what the AAT apparently had in mind when it stated, later in its reasons at [28], that the surgery was not medical treatment obtained in relation to the compensable injuries, “regardless of whether [the applicant] (or, indeed, any of the doctors that she consulted before the surgery) thought that it was”.
55. It was a matter for the AAT to consider and weigh the conflicting relevant medical evidence (see Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 (Tarrant) at [100(g)] per Rares, Yates and Griffiths JJ and the cases cited therein, as well as Kelly at [54]-[61] per Griffiths J). The AAT’s finding, as stated in [24], that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries was substantially based upon the AAT’s preference of Dr Maxwell’s opinion to those of the applicants’ five medical practitioners. In making that finding, I do not consider that the Senior Member misconstrued s 16 of the SRC Act. On the contrary, he plainly proceeded on the basis that there needed to be an appropriate relationship between the medical treatment and the compensable injuries and, in that context, consideration was given to all the relevant medical evidence before the Senior Member concluded that he preferred that of Dr Maxwell.
[Emphasis added]
[19] Howes v Comcare [2016] FCA 1521 at [5].
In Jorgensen and Commonwealth of Australia [1990] AATA 129; (1990) 23 ALD 321, Presidential Member Gray J, at [12] in relation to the considerations that go to whether treatment is reasonable to obtain in the circumstances provided:
……
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from particular injury The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others.
EVIDENCE AND CONTENTIONS
Medical evidence
The medical evidence before the Tribunal includes general practitioner notes and reports from 2013 up until to at least 2018 and makes reference to the Applicant’s fluctuating weight, the monitoring of blood sugar levels and other health related concerns.[20] None of these points are disputed by the Applicant and as such the Tribunal does not consider it necessary to restate this information here beyond the extent that it is reproduced in the Respondent’s contentions set out at paragraph 35 below.
[20] Exhibit 1, T Documents, T24, pages 169-251, Clinical records – Smart Clinics Woree; T25, pages 252-305, Clinical records – Cairns Doctors; Exhibit 3, Hearing Book, R6, pages 39-308, Abbott Medical Centre records; A4, page 323, Email from the Applicant attachment email from Dr Matthew Warburton dated 18 February 2021; and A5, pages 324-327, Email from the Applicant, attaching letter from Dr Mathew Warburton dated 20 February 2018.
The medical evidence also includes the specialist reports and notes of Dr Woolven,[21] a number of reports by specialists and notes by her general practitioners in relation to the Applicant’s mental health.
[21] Exhibit 2, Supplementary T Documents, ST1, pages 1-53, Clinical notes and records of Dr Ben Woolven.
The psychiatrist reports provided between 2018 and 2021 make various reference to the Applicant’s diabetes, obesity and gastric sleeve surgery, however they are primarily focused on her mental health and the treatment of the subsequent accepted condition.
The reports of Dr Mary-Ellen O’Hare,[22] Dr Luke Murphy,[23] Dr Alexandra Simpson,[24]
[22]    Exhibit 1, T Documents, T6, pages 42-61, Report of Dr Mary-Ellen O’Hare and T12, pages 103-113, Supplementary Report of Dr Mary-Ellen O’Hare.
[23]    Exhibit 1, T Documents, T9, pages 81-90, Report of Dr Luke Murphy.
[24]    Exhibit 1, T Documents, T10, pages 91-94, Report of Dr Alexandra Simpson and Exhibit 3, Hearing Book, R5, pages 17-38, Clinical notes of Dr Alexandra Simpson.
[25]    Exhibit 1, T Documents, T11, pages 95-102, Report of Dr Alistair (Sandy) Macleod.
[26]    Exhibit 1, T Documents, T19, pages 136-148, Report of Dr Derek Lovell; Exhibit 3, Hearing Book, R2, pages 6-11, Report of Dr Derek Lovell; R4, pages 15-16, Report of Dr Derek Lovell.
Dr Alistair Macleod[25] and Dr Derek Lovell,[26] all of whom are psychiatrists made reference to the treatment of the Applicant’s accepted condition including anti-depressant medication, psychological and psychiatric treatment.
In a supplementary report dated 27 May 2021, Dr Lovell in response to questions about evidence-based treatment for an adjustment disorder and whether gastric sleeve surgery would be something he would recommend in order to treat an adjustment disorder provided:[27]
An adjustment disorder is generally treated by addressing the underlying stressor responsible and assisting the individual develop skills to deal with it or encouraging the individual to remove themselves from it.
In this case [the Applicant] is arguing that work stress led to difficulties in controlling her sugars and that because she could not tolerate Metformin and was overweight she required a gastric sleeve procedure to control diabetes. This argument draws a long bow and is an area for comment by an endocrinologist.
Both her weight and her sugars were poorly controlled previously and there were other conservative measures available to the treating practitioner to assist her rather than surgical intervention.
Obesity worsens hypertension, arthritis and diabetes and weight loss surgery assists in the management of these conditions but clearly this is not treatment for the adjustment disorder per se.
[27] Exhibit 3, Hearing Book, R4, pages 15-16, Report of Dr Derek Lovell.
Dr Lovell gave evidence under affirmation at the Hearing and appeared by Microsoft Teams. His evidence was consistent with his earlier reporting.[28]
[28] See Exhibit 1, T Documents, T19, Report of Dr Derek Lovell, pages 136-148; Exhibit 3, Hearing Book, R2, pages 6-11 and R4, pages 15-16, Reports of Dr Derek Lovell and Transcript, pages 21-25.
Evidence and contentions of the Applicant
The Applicant provided a Statement dated 9 July 2021[29] in support of her application. Her evidence at Hearing as outlined below was consistent with that provided in her written submission. In summary, the Applicant disputes the reliability of the medical evidence relied upon by the Respondent, contends that her diabetes worsened as a direct result of the stress she incurred due to the accepted condition and it was for that reason alone that she underwent the gastric sleeve surgery. The Applicant contended that the surgery was not received to treat the accepted condition but was rather received to alleviate her worsening diabetes that she says resulted from the accepted condition.[30]
[29] Exhibit 3, Hearing Book, A6, pages 328-331, Statement of the Applicant.
[30] Transcript, page 8.
At Hearing the Applicant told the Tribunal that she was not arguing that the gastric sleeve surgery is suitable treatment for anxiety and depression, but rather that her medical records show, she had the surgery to control her blood sugar that the stress caused by being bullied in the workplace elevated.[31]
[31] Transcript, page 8.
The Applicant told the Tribunal that she had previously had blood sugar issues at the pre-diabetic level that she had been able to control herself, however her blood sugar level doubled as a result of the stress caused by being bullied. She said that gastric sleeve surgery was her only option.[32]
[32] Transcript, pages 8-9.

The Applicant told the Tribunal that “it’s not just your brain that needs to be treated when you have a mental health condition and that it disturbs the whole body.”[33]
[33] Transcript, page 8.
The Applicant told the Tribunal she did not dispute that her weight had fluctuated since 2003 or that her blood sugar levels were slightly elevated in 2013 and 2015, however she said she was able to quickly control that.[34] She said that it was not until late 2016 when the bullying commenced that the work stress caused her blood sugar to “not slightly elevate but to double and readings that [she had] never experienced previously without that work stress.”[35]
[34] Transcript, page 9.
[35] Transcript, page 9.
The Applicant told the Tribunal she had never wanted to have the gastric sleeve surgery as it is an irreversible procedure. She said she did not have the surgery for obesity, “it was just purely to control [her] blood sugar”.[36]
[36] Transcript, page 9.
On cross examination, the Applicant:[37]
[37] Transcript, pages 11-20.
·Confirmed that her case essentially was that the gastric sleeve surgery was treatment for an aggravation of her diabetes, which was aggravated due to her accepted condition.
·Said that in her view the referral from Dr Warburton to Dr Woolven in January 2018 was purely for her diabetes, despite it stating that it was seeking opinion and management of obesity and diabetes.
·Said Dr Warburton was incorrect to say that at that time she had diabetes for the past 5 years as in 2013 and 2015 she had pre-diabetes.
·Agreed that Dr Warburton’s notes from 7 May 2013 reflect that the identified onset of diabetes was in 2013 and that the notes up until 2018 showed that she continued to attend the medical centre for issues that included diabetes.
·Said that she was not seeing Dr Warburton throughout the whole five years in relation to diabetes, there were periods of a few months in those years where she was unable to control it. She had been able to control it by her diet because she had, had an adverse reaction to the diabetic medication.
·Confirmed that for some periods during the 5 years prior to 2018 she could control her blood sugars without treatment and the 2 times where her readings were high she managed it through lifestyle changes.
·Said before her diabetes became stress-related she was able to control it, she was not on insulin or any medication and that the 2 times she mentions her levels being high they were at the pre-diabetic level.
·Said she accepts that her obesity was identified by 2013, noting that her pre-employment check indicated she was overweight.
·Agreed that the way she sought to address her fluctuating weight issues was through the use of the medication Duromine.
·Said she accepted that the GP notes identified emotional eating that pre-dated the accepted workers compensation claim, however it was not continual and chronic.
·Agreed that her weight had a part to play in being referred for consideration of gastric sleeve surgery.
·Agreed her GP was monitoring her diabetes over the 5 year period however, said he was not treating it, just keeping an eye on it.
·Said she did not attend the dietician that was recommended by Dr Woolven after the surgery as she had the surgery for her diabetes, which resolved immediately the day after the gastric sleeve surgery.
·Agreed that the gastric sleeve surgery is weight loss surgery and that it was treatment directed towards the diabetes with a relevant element in the treatment plan being weight loss.
·Agreed that the post-operative discharge treatment did not include any sort of psychological treatment or counselling.
·Said she accepts that the effect of the surgery in March 2018, was that it had an effect on weight loss.
·Said that her diabetes resolved after the operation until 2020 when she was again stressed at work. Even at the lower weight she said her blood sugar rose to double.
·When put to her that the sleeve gastrectomy did not have an effect in terms of treating the adjustment disorder symptoms, said “As I said, of course it doesn’t”.
Respondent’s Contentions
The Respondent contended that while the claimed medical expenses meet the definition of “medical treatment” as defined in section 4 of the SRC Act, they were not obtained “in relation to” the accepted injury, for the purposes of section 16 of the SRC Act.[38]
[38] Exhibit 3, Hearing Book, R7, page 313, paragraphs 34-35, Amended Statement of Issues, Facts and Contentions of the Respondent.
The Respondent contended that there is insufficient probative medical evidence before the Tribunal to support a finding that the claimed medical expenses were obtained “in relation to” the accepted injury, being a psychiatric injury. The Respondent contended that the absence of any relational connection is highlighted by Dr Lovell’s supplementary report of 6 May 2021. Dr Lovell, as a qualified and experienced psychiatrist, expressed the opinion that commenting on, the appropriateness of the gastric sleeve surgery was outside of his area of speciality.[39]
[39] Exhibit 3, Hearing Book, R7, page 313, paragraph 36, Amended Statement of Issues, Facts and Contentions of the Respondent.
The Respondent provided the following contentions in support of their position:[40]
[40] Exhibit 3, Hearing Book, R7, pages 313-315, paragraphs 37-38, Amended Statement of Issues, Facts and Contentions of the Respondent.
37. Furthermore, it is plain from a review of the available independent psychiatric opinions that none of the psychiatrists identified a sleeve gastrectomy as treatment they recommended the Applicant obtain “in relation to” her accepted psychiatric injury. In support of this contention, the Respondent draws the Tribunal’s attention to the opinions of Drs O’Hare, Murphy, Macleod and Lovell, psychiatrists, all of whom did not recognise the gastric sleeve operation as a medical treatment in relation to the Applicant’s accepted condition, but rather as treatment for the Applicant’s obesity. Specifically:
Dr O’Hare was asked what forms of medical treatment were recommended for the Applicant’s compensable psychological condition (T6 [59-60], 2021/0851). Dr O’Hare’s opinion focused on anti-depressant medication, psychological input psychiatric input. This opinion was provided in September 2018, only some six and months after the sleeve gastrectomy. If the surgical procedure was truly obtained in relation to the accepted injury, one would expect Dr O’Hare to have factored that into her psychiatric opinion on treatment. Rather, Dr O’Hare commented as part of the broader general history that ‘she gained weight and became prediabetic. She went on a sugar restricted diet and her metabolism was controlled by September 2017. She went to see surgeon, Dr Woolven, and had a gastric sleeve operation for obesity and lost 20kg down to 80kg’ (T6 [45], 2021/0851)
Neither Dr Murphy in his report of 18 December 2018 nor Dr Macleod in his Report of 20 March 2019 (T9 and T11, 2021/0851), identified the surgery as being a medical treatment in relation to the Applicant’s accepted psychological condition. Rather, Dr Macleod commented that ‘a recent gastric sleeve was not complicated, though is not proving to be particularly effective with respect to her weight (probably because of her present mental state)’ (T11 [98], 2021/0851) (emphasis added). That is, Dr Macleod did not indicate that the surgery was intended to be effective in relation to the Applicant’s psychological injury.
Dr Lovell noted a history that, ‘she had in the context of an elevated blood sugar level due to weight gain, undergone a gastric sleeve procedure in March 2018’ (emphasis added). He noted that more recently, through a Diabetes Practice Nurse, she had been prescribed Trulicity injections once per week for sugar control. Relevantly, Dr Lovell noted that ‘there have been difficulties with blood sugar control but these likely relate to her weight and diet’ (T19 [141], 2021/0851) (emphasis added). That is, Dr Lovell observed that the surgery was in relation to the Applicant’s obesity.
Dr Lovell in his report of 27 May 2021 noted that, ‘obesity worsens hypertension, arthritis and diabetes and weight loss surgery assists in the management of these conditions but clearly this is not treatment for the adjustment disorder per se’.
38. The Respondent contends, as evidenced by the clinical notes, that the Applicant’s obesity is a pre-existing condition. The Respondent relies upon:
The pre-employment medical assessment report of 12 February 2003, in which the Medical Adviser noted that the Applicant was overweight (T3 [30], 2021/0851).
Dr Warburton’s clinical note of 19 April 2013, in which he diagnosed the Applicant with ‘obesity, mobid’ [sic] on the basis of her BMI of 39.8 (T24 [170], 2021/0851).
Dr Warburton’s clinical note of 29 December 2015, in which he recorded that the Applicant had a BMI of 38 (T24 [181], 2021/0851).
Dr Warburton’s clinical note of 24 February 2017, in which he recorded that the Applicant had a BMI of 39.5 (T24 [179-180], 2021/0851).
The letters between Dr Warburton and Dr Woolven of 25 January 2018 and 16 February 2018, in which the doctors acknowledged that the sleeve gastrectomy was medical treatment in relation to the Applicant’s pre-existing diabetes and obesity (ST [2] and [5], 2021/0851).
Dr Warburton’s report of 17 March 2021, in which he advised that from April 2013 onwards he had been treated the Applicant for ‘physical problems including overweight…and assisted in multiple treatments to aid weight loss culminating in a referral for bariatric surgery’.
The Respondent contended that it relies on the decision of Howes v Comcare [2016] FCA 1521 at [53]-[54], in which the Federal Court held that the relational connection between the medical treatment and the compensable injury must be determined objectively and by reference to the relevant evidence. In this respect, the Respondent contended that there is no such relational connection between the claimed treatment and the Applicant’s accepted psychiatric injury. Contending that rather, the evidence points to a relational connection existing between the claimed treatment and the Applicant’s pre-existing and non-accepted obesity condition.[41]
[41] Exhibit 3, Hearing Book, R7, page 315, paragraph 39, Amended Statement of Issues, Facts and Contentions of the Respondent.
The Respondent contended that the Applicant has not claimed compensation for obesity and accordingly, the Respondent has not accepted liability for obesity pursuant to section 14 of the SRC Act. In relying on the decision in Lees v Comcare [1999] FCA 753 at [39], the Respondent contended that it is beyond the scope of the present Tribunal application to consider section 14 liability for obesity, or any condition other than the accepted psychological condition.[42]
[42] Exhibit 3, Hearing Book, R7, page 315, paragraph 40, Amended Statement of Issues, Facts and Contentions of the Respondent.
The Respondent contended that the reviewable decision should be affirmed on the basis that the Applicant is not entitled to compensation under section 16 of the SRC Act for the claimed medical expenses relating to the gastric sleeve surgery in relation to her accepted psychological condition.[43]
[43] Exhibit 3, Hearing Book, R7, page 315, paragraphs 40-41, Amended Statement of Issues, Facts and Contentions of the Respondent.
CONSIDERATION
The Tribunal notes that the Applicant’s accepted condition is referred to as being an aggravation of an adjustment disorder. There was no dispute that this accepted condition relates to a psychological condition.
The Applicant’s starting position at Hearing was that she acknowledged and accepted that the gastric sleeve surgery was not treatment for the accepted condition but was rather received to alleviate her worsening diabetes. The Applicant made it clear that the gastric sleeve surgery was not treatment provided in relation to depression or anxiety.
The connection that the Applicant is attempting to make is that the accepted condition and the events that led to it are the cause of her worsening diabetes. The Tribunal notes that the Applicant has not made an application seeking compensation in relation to her diabetes condition of which she contended was made worse as a result of her accepted condition.
The jurisdiction of the Tribunal in this matter extends only as far as considering the Applicant’s entitlement to compensation in relation to the accepted condition. The Tribunal is unable to make a decision in relation to liability under section 14 of the SRC Act for the Applicants diabetes or obesity conditions.[44]
[44] As per Lees v Comcare [1999] FCA 753.
In considering whether compensation is payable pursuant to section 16 of the SRC Act in respect of the claimed medical expenses, the Tribunal must consider whether the treatment to which the claimed medical expenses relate constitute medical treatment for the purposes of the SRC Act, if so whether it was obtained in relation to the accepted injury and if so whether it was reasonable for the Applicant to obtain in the circumstances.
The Tribunal finds that the claimed medical expenses constitute medical treatment for the purposes of the SRC Act. This finding is not contentious.
The first point of contention is whether that medical treatment was obtained in relation to the accepted injury.
While the Tribunal acknowledges and accepts the Applicant’s contentions that stress can have many different effects on a person’s physical health as well as their psychological health,[45] there is no medical evidence before the Tribunal that indicates that the obtained gastric sleeve surgery in any way related to the treatment of the Applicant’s accepted condition.
[45] Exhibit 3, Hearing Book, A6, pages 328-331, Statement of the Applicant and Transcript, page 8-9.
Dr Lovell in his report dated 27 May 2021 (as reproduced at paragraph 24 above) outlined the treatment for the accepted condition and expressed the opinion that weight loss surgery assists in the management of obesity that worsens hypertension, arthritis and diabetes, however is not treatment for an adjustment disorder. At Hearing Dr Lovell confirmed that he still held that opinion.
In response to the question of whether the gastric sleeve surgery constituted reasonable treatment, Dr Lovell, provided that based on his area of expertise he is unable to comment on the appropriateness of the sleeve gastrectomy and that this was something that better sat within the expertise of an endocrinologist.[46] What was clear from the evidence of Dr Lovell was that his opinion was that the gastric sleeve surgery was not reasonable treatment for or treatment obtained in relation to the accepted condition. Dr Lovell’s opinion is consistent with the reporting of Dr O’Hare, Dr Murphy, Dr Simpson and Dr Macleod. All of which, while acknowledging the Applicant’s reporting of the gastric sleeve surgery and her diabetes condition did not recommend, comment on or provide the opinion that the gastric sleeve surgery received by the Applicant was in any way considered to be treatment of the accepted condition.[47]
[46] Exhibit 3, Hearing Book, R2, pages 6-11, Report of Dr Derek Lovell and R4, pages 15-16, Report of Dr Derek Lovell.
[47] See the summary provided at paragraph 35 above in relation to the psychiatric reporting.
In objectively considering the relational connection between the medical treatment, being the gastric sleeve surgery and the accepted injury, with reference to all relevant evidence before it,[48] the Tribunal finds that no such relational connection exists.
[48] Consistent with Howes v Comcare [2016] FCA 1521.
The medical evidence before the Tribunal identifies that the gastric sleeve surgery was performed to manage the Applicant’s obesity and diabetes conditions. There is no medical evidence before the Tribunal that contradicts the opinion of Dr Lovell that such treatment is not treatment obtained for the accepted condition. The Tribunal therefore accepts the evidence of Dr Lovell.
The Tribunal understands that the Applicant was not contending that the gastric sleeve surgery is suitable treatment for anxiety and depression and as such was not suitable treatment for the accepted condition, but was surgery obtained to control her blood sugar that she contends was elevated by stress related to the workplace. The problem in this argument however, is that liability has not been accepted pursuant to section 14 of the SRC Act in relation to the Applicant’s diabetes or for that matter, obesity conditions. The Applicant’s own evidence was that the gastric sleeve surgery was not obtained in relation to the accepted condition. The Applicant did not advance any corroborating evidence that would allow the Tribunal to make a finding that the medical treatment was obtained in relation to the accepted condition.
Based on the lack of medical evidence establishing a connection between the medical treatment and accepted condition; the Applicant’s own evidence that the gastric sleeve surgery was not treatment for her accepted condition; and the limitation of the Tribunals jurisdiction which only enables the consideration of whether the treatment relates to the accepted condition, the Tribunal finds that the gastric sleeve surgery was not obtained in relation to the Applicant’s accepted condition. As such for the purposes of section 16 of the SRC Act the Tribunal finds that compensation is not payable for the claimed medical expenses associated with the gastric sleeve surgery.
As the Tribunal has made this finding, it is not necessary to further consider whether the medical treatment was reasonable for the Applicant to obtain in the circumstances.
The Tribunal forms no view in relation to the reasonableness of the gastric sleeve surgery in relation to the Applicant’s diabetes condition in the absence of any evidence from an endocrinologist. However, in making the finding that the gastric sleeve surgery was not medical treatment obtained in relation to the accepted condition, it follows that as a whole the treatment could not be said to be reasonable for the Applicant to obtain in the circumstances of the accepted condition.
CONCLUSION
The Tribunal finds that compensation is not payable pursuant to section 16 of the SRC Act in relation to the Applicant’s claimed medical expenses relating to gastric sleeve surgery on the basis that, that medical treatment was not obtained in relation to the accepted condition.
Accordingly, the decision under review is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

....................[SGD]..........................
Associate
Dated: 11 October 2021

Date of Hearing: 26 July 2021

Applicant:

Solicitor for the Respondent:

In Person

Mr Matthew Hawker

Sparke Helmore Solicitors