Gardiner v Leigh Stoddart and Company

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gardiner v Leigh Stoddart and Company [2025] NSWPIC 556
APPLICANT:	Mark Andrew Gardiner
RESPONDENT:	Leigh Stoddart and Company
MEMBER:	Michael Wright
DATE OF DECISION:	16 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; worker sustained accepted injury to lumbar spine in 2020; claim for bariatric weight loss surgery for treatment of lumbar spine symptoms and for subsequent lumbar spine surgery; Diab v NRMA Ltd, and Rose v Health Commission (NSW) considered; Held – weight loss surgery reasonably necessary for treatment of lumbar spine injury; award for applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed by A/Prof Sandroussi, being sleeve gastrectomy, diagnostic laparoscopy and gastroscopy (the proposed surgery) is reasonably necessary as a result of the injury on 11 August 2020. 2. Pursuant to s 60 of the Workers Compensation Act 1987, respondent is to pay for the costs of, and associated with, the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mark Andrew Gardiner, the applicant, suffered injury on 11 August 2020 to his lumbar spine in the course of his employment with Leigh Stoddart and Company, the respondent.
The applicant in 2022 consulted Dr Singh, who recommended bariatric surgery for weight loss and lumbar spinal surgery.
The applicant consulted A/Prof Sandroussi, who recommended weight loss surgery, being “Sleeve gastrectomy + hiatus hernia repair + diagnostic laparoscopy + gastroscopy”, prior to lumbar spinal surgery.
By way of dispute notices, including those dated 8 June 2023, 5 November 2024,
10 April 2025 and 30 June 2025, the workers compensation insurer, EML, disputed liability for the proposed bariatric surgery for reasons relating to disputed consequential weight gain and to pre-existing weight.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing of this matter on 8 October 2025, the applicant was represented by Mr Stockley of counsel, instructed by Ms Limbaco, solicitor, and the respondent by Mr Necovski of counsel, instructed by Ms Doyle, solicitor.
At the hearing of this matter, the applicant deleted reference to hiatus hernia repair in the claim for the surgery recommended by A/Prof Sandroussi.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents dated 2 October 2025, and attached documents.

Oral evidence

There was no oral evidence.

Documents

Applicant’s statement

The applicant provided statements dated 12 November 2024 and 30 June 2025. He related weight gain to injury to his lumbar spine on 11 August 2020 and resulting pain and reduced activity. He outlined his continuing severe levels of lower back pain, and his wish to proceed with lumbar spine surgery proposed by Dr Singh, preceded by bariatric surgery and weight loss to decrease the risk of complications and improve the outcome of the proposed lumbar surgery.

Treatment provider documents

Mid Coast Integrative Health provided clinical records. These are noted and discussed below.

Medical reports

Medical reports noted and discussed in reasons below were as follows:
(a)    Dr Singh, orthopaedic and spine surgeon, treating report dated
24 September 2022, to the applicant’s general practitioner (GP), Dr Lim;
(b)    A/Prof Sandroussi, upper gastrointestinal, hepatobiliary and transplant surgeon, treating report and surgery request dated 24 March 2025, to Dr Lim and EML respectively;
(c)    A/Prof Waller, orthopaedic surgeon, medico legal report dated
14 November 2022, to the workers compensation insurer, EML;
(d)    Dr Frommer, gastroenterologist and hepatologist, medico legal reports dated
4 October 2024 and 30 July 2025, to the applicant’s solicitors;
(e)    Dr Thornley, endocrinologist, medico legal reports dated 10 May 2025 and
6 June 2025, to EML, and
(f)    Dr Sethi, gastroenterologist and hepatologist, medico legal reports dated
19 September 2025 and 30 September 2025, to the respondent’s solicitors.

Reasons

There was no dispute that the applicant suffered injury to his lumbar spine in the course of his employment on 11 August 2020 (the subject injury). There was no dispute that at the time of the subject injury the applicant was obese.
The parties’ submissions were in general:
(a) the applicant submitted that the proposed bariatric surgery with the intention to effect significant weight loss is reasonably necessary treatment for the applicant’s back condition, either to address the applicant’s back symptoms, or to permit lumbar surgery proposed by Dr Singh. There was also a proposition put by the applicant that while weight gain was established post injury in a smaller amount than recorded in histories, this did not result in change of opinion in the applicant’s case, and
(b) the respondent submitted that weight gain was not consequential to the subject injury, the proposed bariatric surgery was not the result of weight gain consequential to his lumbar spine injury on 11 August 2020, and hence the proposed surgery was not compensable.
The issue then arises as to whether the proposed bariatric surgery can be characterised as treatment of the subject injury to the lumbar spine, that is for treatment of lumbar spine symptoms, or whether it can be characterised as treatment of the consequential condition of weight gain.
I note that, although the ARD did plead weight gain as consequential to the subject lumbar spine injury, the ARD did not specify this as the reason for the claim for the proposed surgery. The applicant’s case at the conciliation/arbitration hearing did not rely upon a claim for consequential weight gain as the basis for the claim for the proposed surgery.
In my view, the correct approach is that the proposed surgery is for treatment of the subject lumbar spine injury, for reasons given below. None of the respondent’s dispute notices, nor the respondent’s submissions at the hearing, nor the respondent’s medical opinion in its case, dealt with this issue.
As submitted by the applicant, the following matters support the conclusion that the proposed bariatric surgery should be regarded as treatment for the subject lumbar spine injury:
(a)    Dr Singh in his report of 24 September 2022 was of the view that treatment options for the aggravation of previously asymptomatic L5-S1 disc signal changes, and progressive deterioration, included ongoing pain management, chronic pain management, physiotherapy, weight loss and bariatric surgery and surgical fusion at L5-S1. That is, he contemplated weight loss and bariatric surgery as part of the treatment for the L5-S1 disc injury. Dr Singh also recommended bariatric surgery and further weight loss, to decrease the risk of complications and improve the outcome following surgery. Dr Singh recommended surgical fusion at L5-S1. There was no medical evidence contrary to the opinion of Dr Singh;
(b)    A/Prof Waller in his report to the insurer dated 14 November 2022, did not disagree with the proposed lumbar spinal surgery, but he also noted the possibility of bariatric surgery and substantial weight loss. He was of the view that if there is bariatric surgery and substantial weight loss then there should be re-assessment before lumbar surgery because the applicant’s symptoms may improve with substantial weight loss.
In my view A/Prof Waller, and Dr Singh, are qualified to comment on the effect of weight loss on lumbar spine symptoms, contrary to the respondent’s submissions as to his qualifications to comment on bariatric surgery per se. The opinion of A/Prof Waller in my view supports the conclusion that the proposed bariatric surgery is for treatment of the applicant’s lumbar symptoms and for proposed lumbar surgery for treatment of those symptoms;
(c)    A/Prof Sandroussi was of the opinion that the applicant should proceed to weight loss surgery, as it is unlikely he is going to lose weight on his own and he will not be able to have back surgery. A/Prof Sandroussi was of the view that if the applicant does not get his weight down he will never be able to rehabilitate from his back injury;
(d)    Dr Frommer in his reports was of the view that the bariatric surgery is required because of lumbar spine pain caused by the subject lumbar injury which it is hoped will be improved by the proposed lumbar spine surgery. He was of the opinion that the results of the lumbar spine surgery will be jeopardized if the applicant does not lose significant weight, and the bariatric surgery is the best way to do this, and
(e)    Dr Thornley in his reports to the insurer considered that the lumbar spine injury was the subject cause of the applicant’s weight gain to 144kg from 128kg, and that weight loss surgery in the form of a laparoscopic gastric sleeve is the preferred option. When asked in his latter report to consider that initial pre lumbar spine weight was 134.5kg, Dr Thornley noted this aspect and did not change his opinion.
I find that the proposed bariatric surgery is for the purpose of treating the applicant’s lumbar spine symptoms by way of weight loss and also to enable the proposed lumbar spine surgery to proceed. There was no case from the respondent to address this finding. Dr Sethi did not address this issue.
It has been observed that “…employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle…”.[1] In my view, an obese worker who suffers a lumbar spine injury, such as the applicant, is entitled to treatment for that lumbar spine injury in the circumstances of these proceedings.
[1] State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [40].
If I am wrong, then I turn to matters raised by the respondent.
The respondent in its submissions and dispute notices focussed on weight gain and measurements pre-injury to submit that it could not be established that weight gain post injury resulted from the lumbar spine injury.
In particular, from the clinical records of Mid Coast Integrative Health the trend of weight gain in the 12 months prior to subject injury was upwards to 5.5kg (the trend argument), and his weight shortly before injury was 134.5kg, not 128kg as he stated. I do not accept these submissions as:
(a)    there was no medical evidence to support the trend argument, nor that this had any effect on the conclusions of medical experts, nor on the applicant’s own evidence;
(b)    Dr Thornley did not change his opinion when provided with a pre-injury weight of 134.5kg. This is in the context of Dr Thornley recording a weight of 144kg, which in any event represents in my view a significant weight increase of 9.5kg, and
(c)    there was in my view a fair climate for the medical experts noted above to provide their opinions.
Dr Sethi was of the opinion that the applicant’s history as to his weight, and pre-injury activities could not be accepted. However, this is affected by the above matters. I do not prefer the opinion of Dr Sethi as to the applicant’s evidence and as to the constitutional basis of the applicant’s weight gain because:
(a)    the applicant was said to be obese at the time of his injury, thus excluding any causative role of the work injury. This was not regarded by Dr Frommer and
Dr Thornley as affecting their assessments, and both medical experts took a different view;
(b)    the post injury increase in weight was regarded by Dr Sethi as modest, whereas Dr Thornley and Dr Frommer were of the view that this was a significant consideration;
(c)    Dr Sethi thought the applicant displayed signs of exaggeration and embellishment, in that the claimed exercise routine was unrealistic and improbable given severe obesity, and that claimed pre-injury weight was 5kg lower than recorded weight. However, there was no other evidence to assert the former assertion, which in general terms was not questioned by other medical experts. The comment regarding recorded pre-injury weight was not a cause for a change of opinion by Dr Thornley, and
(d)    his comment on the use of Gabapentin in the context of weight gain, which was noted by Dr Thornley, was somewhat circular, referring back to diet and prior obesity, without addressing the reason why such medication was not a factor.
The respondent also submitted that the deletion of the claim for hernia repair is significant, because should that pathology be detected at the time of the proposed surgery then A/Prof Sandroussi would not be willing to proceed with the bariatric surgery and that situation would not be covered by the order sought by the applicant in these proceedings.
I do not accept this submission. A/Prof Sandroussi simply noted that there had been some past reflux, and if there was any hernia or defect then this would be needed to be fixed at the time of the operation. He did not say that he would not proceed with the bariatric surgery.
Dr Sethi did not think that the proposed bariatric surgery was required or necessary. I do not prefer the view of Dr Sethi because:
(a)    he was of the view it is unlikely to be effective unless accompanied by lifestyle changes such as eating healthy nutritious food, and that obesity is a chronic condition and it is very challenging to achieve sustained weight loss. However, the opinions of A/Prof Sandroussi, Dr Frommer and Dr Thornley were effectively to the contrary. I prefer the balance of expert medical evidence in this regard;
(b)    Dr Sethi noted the history of adverse reaction to the prescribed injectable medication for weight loss, Saxenda, and he also noted a resulting weight loss of 9kg, but he otherwise did not further comment. A/Prof Sandroussi noted adverse reaction to injectable medication such as Semaglutide, but there was weight loss which was a good sign for longer term management and weight loss with surgery. There was no comment as to these matters by Dr Sethi. Dr Thornley was of the view that other drugs in the same therapeutic class were contraindicated given the adverse reaction, and
(c)    Dr Frommer was of the opinion that bariatric operations are usually successful in causing a significant loss of weight in a relatively short time and lasting for years and the main alternative treatment such as Saxenda has been tried. He was of the view that bariatric surgery was required, as noted above.
Both parties referred to the decisions of Diab v NRMA Ltd[2] and Rose v Health Commission (NSW)[3] as to reasonable necessity. These are useful matters for consideration, but the essential question remains as to whether the treatment is reasonably necessary.[4] Other than the opinion of Dr Sethi, all the medical experts noted above accepted or did not disagree with the appropriateness of the proposed surgery, and considered the alternatives and effectiveness. Dr Frommer provided detailed reasoning in relation reasonable necessity of the proposed bariatric surgery, which I accept.
[2] [2014] NSWWCCPD 72.
[3] (1986) 2 NSWCCR 32.
[4] Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204, per Campbell CJ at 208.
I am satisfied that the essential question as to whether the proposed treatment is reasonably necessary should be answered in the applicant’s favour.
Applying a common sense view of causation[5], the surgery proposed by A/Prof Sandroussi has resulted from the subject injury. Other than Dr Sethi, whose view I have not accepted, the medical specialist opinion in this matter, discussed above, all support this conclusion.
[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
I find that the surgery proposed by A/Prof Sandroussi is reasonably necessary as a result of injury to the applicant’s lumbar spine on 11 August 2020.

[2025] NSWPIC 556

16 October 2025