Prasad v Compass Group B & I Hospitality Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Prasad v Compass Group B & I Hospitality Services Pty Ltd [2023] NSWPIC 108
APPLICANT:	Jitendra Prasad
RESPONDENT:	Compass Group B&I Hospitality Services Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	16 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses; whether applicant suffered a consequential condition by way of excessive weight gain as a result of, and if so, whether gastric sleeve surgery is reasonably necessary as a result of that consequential condition; injuries to neck and shoulder accepted; applicant previously very active and health conscious; applicant’s preinjury weight of 94 kg grew to 116 kg; Held – the applicant suffered a consequential condition by way of weight gain as a result of the accepted injuries; Sidiropoulos v Able Placements Pty Ltd and Kooragang Cement Pty Ltd v Bates followed; the gastric sleeve surgery the subject of the proceedings was reasonably necessary as a result of the consequential condition; Diab v NRMA Limited followed; respondent to pay the costs of and incidental to the gastric sleeve surgery; by consent, the respondent is to pay the applicant’s unpaid physiotherapy as pleaded in the sum of $510.
determinations made:	1. The respondent is to pay the applicant’s unpaid physiotherapy as pleaded in the Application to Resolve a Dispute in the sum of $510. 2. The applicant suffered an injury to his cervical spine and left upper extremity (shoulder) in the course of his employment with the respondent on 27 March 2013. 3. As a result of the injury referred to in [2] above, the applicant suffered a consequential condition by way of weight gain owing to an inability to exercise and live an active lifestyle. 4. The gastric sleeve surgery undertaken by Dr Leibman was reasonably necessary as a result of the consequential condition. 5. The respondent is to pay the costs of and incidental to the surgery.

STATEMENT OF REASONS

BACKGROUND

On 27 March 2013, the applicant suffered injuries to his left shoulder and neck in the course of his employment as a chef with the respondent.
The injuries to the applicant’s shoulder and neck are admitted. The applicant also alleges that as a result of his accepted injuries, he suffered a consequential condition by way of excessive weight gain. He seeks payment of the cost of an incidental to gastric sleeve surgery undertaken in relation to that condition in 2022.
The respondent disputes liability, alleging the applicant did not suffer a consequential condition and that even if he did, the proposed surgery was not reasonably necessary as a result of this.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the applicant suffered a consequential condition by way of weight gain, and if so, whether the proposed surgery was reasonably necessary as a result of it.

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.
The parties attended a hearing on 7 February 2023. At the hearing, the applicant was represented by Mr Adhikary of counsel instructed by Ms Laws. The respondent was represented by Mr Grimes of counsel instructed by Ms Malone.
At the conclusion of submissions, the applicant sought to amend the Application to Resolve a Dispute to plead the weight gain as being caused by a psychological condition suffered as a result of his accepted injuries. After hearing submissions from both counsel, that application was rejected.

EVIDENCE

The documents taken into consideration in making this decision were:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the gastric sleeve surgery was reasonably necessary as a result of a consequential condition

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. As has been noted in numerous decisions such as Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, it is not necessary for an applicant to satisfy the requirements of an injury pursuant to s 4 in order to find a consequential condition.
The question of whether a consequential condition has arisen from an accepted injury is one of causation. In the workers’ compensation context, the test for causation is that set out by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). In that matter, his Honour noted it has been recognised from the earliest days of compensation legislation that causation is not always direct and immediate. The decision in Kooragang makes clear that what is required is a commonsense evaluation of the causal chain, to determine whether there is (in this matter) an unbroken causal chain between the accepted injury and the applicant’s weight gain.
What is necessary in the matter such as the present one is for the applicant to prove in the balance of probabilities his weight gain has resulted from the relevant work injuries: see for example Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123.
The applicant’s evidence surrounding his weight gain is set out in his supplementary statement. The evidence is as follows:
“4     At [the time of his injury], I weighed around 90 kilograms.
5.      Prior to suffering my left shoulder injury, I was a very active person, and I was very mindful of my health and fitness. Nobody in my family ever lived beyond the age of 55, and I was always motivated to take care of myself.
6.      I went to the gym every second day, and on my day off, I went for a walk.
7.      I also used to go cycling regularly, before or after work…
11.    My general practitioner referred me to Dr Daniel Biggs, who gave me a cortisone injection into my shoulder.
12.    Dr Biggs suggested that the problems in my shoulders may in fact be coming from my neck, although this could not be confirmed.
13.    Dr Biggs encouraged me to exhaust conservative treatment to my shoulder, and discharged me from his care.
14.    I was not happy with the advice and assistance I had received from Dr Biggs, and sought a second opinion from Dr Gupta in or around early 2016.
15.    Dr Gupta identified tears in my left shoulder, and recommended surgery.
16.    The insurer denied liability for this surgery, and it took some time to fight with them, and have the surgery accepted.
17.    I stopped going to the gym around 2017 due to the pain and restrictions in my left shoulder.
18.    I continued going for walks every second day, however this was less effective at managing my weight than the gym was. Some days, I was in too much pain to go for a walk, and did no exercise at all.
19.    Eventually, I was able to overturn the insurer’s denial of my surgery, and I proceeded to elective rotator cuff repair in March 2018 under the care of Dr Gupta.
20.    That surgery was not successful in resolving my problems.
21.    It was around this time that I was prescribed Lyrica, which my doctor advised me may cause weight gain. This is certainly consistent with my experience.
22.    The first four to six weeks after surgery, I was not allowed to move my arm, and could not go for any walks at all. Thereafter, I went back to walking every second day also.
23.    Dr Gupta undertook a further repair of my left rotator cuff in September 2018.
24.    My second surgery was beneficial, although it did not completely resolve my symptoms. My symptoms certainly improved.
25.    I was not able to walk immediately after the September 2018 surgery, however I returned to walking once I was cleared by Dr Gupta.
26.    By that time, my weight had been increasing, as I could not go to the gym. Walking was not enough to manage my weight and maintain my health.
27.    I then had a frozen shoulder, which is ongoing.
28.    After my second surgery, I made various attempts to reduce and maintain my weight.
29.    I tried doing fasting and a keto diet.
30.    I tried these diets for quite some time, however they were unsuccessful in substantially reducing my weight.
31.    I also tried taking Duromine, a weight loss prescription. I took this for about one year around 2018, and then ceased. It did not work.…
33.    I came under the care of Dr Kam in 2019, who recommended surgery to my neck. This was denied by the workers’ compensation insurer, and again, I had to fight for the surgery in the Personal Injury Commission.
34.    After a lengthy fight in the Commission, I underwent a C4 to C6 anterior cervical discectomy and fusion on or around 24 June 2020…
38.    The fusion had slightly improved my pain, but not substantially.
39.    After my surgery, my general practitioner sought approval from the insurer for me to see an exercise physiologist.
40.    This was approved and I saw the exercise physiologist for about six months.
41.    I went to the gym with the exercise physiologist, and we did weight training to improve the strength in my muscles. The ultimate aim was for me to return to my gym program.
42.    It was around this time that my ulnar nerve started to thicken, and caused pain into my elbow.
43.    As a result of the problems with my elbow, I had to stop lifting weights again.
44.    I then had surgery to my left elbow in September 2017, which was paid for by the workers’ compensation insurer.
45.    I recently had an ultrasound of my left elbow, which shows the ulnar nerve is still thickened.
46.    After several unsuccessful attempts to reduce my weight, my general practitioner referred me to Dr Krishna, gastric surgeon.
47.    When I saw Dr Krishna in March 2021, he immediately recommended gastric banding surgery.
48.    Dr Krishna put the request to the insurer, which they denied, on the basis that it is my psychological injury which interferes with my capacity for work.
49.    I completely disagree with the insurer’s assertion.”
Mr Adhikary noted a general practitioner (GP) clinical entry on 11 February 2013, just before the applicant’s injury which recorded his weight at 94kg with a body mass index (BMI) of 28.7.
He also submitted the applicant’s accepted injuries are plainly serious, as he has had two surgeries to his left shoulder, another surgery to his left elbow, surgery to his right shoulder and a cervical spine discectomy and fusion.
Mr Adhikary submitted the Personal Injury Commission (the Commission) will accept that the applicant stopped going to the gym in or around 2017, and it was this lack of exercise brought on by the applicant’s injuries which has caused his significant weight gain.
Mr Adhikary noted the applicant was a very active person pre-injury and was extremely health conscious owing to a family history of heart and other health issues including short-life expectancy.
The applicant submitted the treating medical evidence corroborated the applicant’s claims, his weight increased owing to the limitations caused by his physical injuries.
The applicant relied on the report of Dr Ganora, treating pain specialist, who noted as early as March 2015 the applicant had been prescribed Lyrica which provided zero relief and caused significant weight gain. Dr Ganora also referred to the applicant as someone who “described himself as previously a very healthy and fit person who trained intensively with a personal trainer and ran frequently, but has now become markedly overweight and unfit”.
In a further report dated 14 February 2019, Dr Ganora found the applicant:
“He is unfit for any lifting, pushing, pulling or repetitive use of the arms. He is permanently unfit for his original work as a chef. He now become fit for limited employment in administrative duties within the hospitality industry. Chronic pain and loss of left shoulder function will prevent the patient from returning to work.”
It is therefore apparent that as at February 2019, the applicant was still suffering significant impairment.
In a further report dated 14 June 2019, Dr Ganora described the applicant’s ongoing problems as follows:
“He reports ongoing symptoms without improvement. He complains of pain around the left shoulder with loss of shoulder mobility, and the shoulder pain extends to the left lateral aspect of the neck. He has also developed pain at the right shoulder, which he discussed with the surgeon. He exercises the left shoulder at home by using a pulley to elevate the arm. He has required opiate medication to control the pain and he is also taking psychotropic medications prescribed by his treating psychiatrist. He may also have seen a neurosurgeon to assess the neck but I do not have additional information about this at present…
Further treatment options will include pharmacological pain management, advice towards supportive psychological pain-coping therapy and ongoing surgical review.”
Mr Adhikary submitted the applicant’s proposed psychological treatment referred to by Dr Ganora in that report was plainly in relation to pain-coping therapy and was required as a result of the injury at issue.
The applicant also relied on a question-and-answer report of the applicant’s GP Dr Khan, completed on 21 April 2021. When asked what the “natural progression” of the applicant’s weight gain given his lifestyle factors, Dr Khan replied “lack of exercise, depression”. He described other factors leading to the applicant’s condition as “lack of exercise due to exacerbation of pain after walking or exercise. Depression”. The applicant’s treating gastrointestinal surgeon Dr Krishna provided a report dated 26 June 2022. He noted the following:
“He was on medications of Lyrica and Prednisone. Unable to exercise and resulted in weight to a BMI of 35 with hypertension, possible angina. High levels of consumption and lay expenditure post-injury.
I believe that his neck and left shoulder injury was the prime initiating cause for weight gain. After the injury, he could not exercise due to physical restriction and also limitations. One can clearly see the reasoning behind his weight gain.…
Prior to his injury, he has a weight of 85 kgs and now carries a weight of 115 kgs. Loss of activity and exercises have made him put on the weight…
For his BMI and having hypertension, the medical advisable option is gastric sleeve with nutritional and exercise input…
With the surgery, he will lose weight and will be able to exercise and his mobility will improve. With the help of physiotherapy, he will be able to rehabilitate from his injuries better. With allowing with weight gain to happen without the gastric sleeve, his recovery from his injury will be affected.”
The applicant came to have gastric sleeve surgery at the hands of Dr Leibman on 11 February 2022. In a handwritten note found at page 219 of the Application, Dr Leibman noted the applicant’s pre-injury was 85 to 87kg. That history is incorrect, noting the GP record from just before the applicant’s injury listed his weight at 94kg. Dr Leibman’s note listed the complex nature of the applicant’s injuries and his medications taken since they took place.
The applicant’s independent medical examiner (IME) Dr S Khan provided a report dated
14 September 2021. He provided the following history in relation to weight gain:
“Mr Prasad mentioned that he initially used to weigh between 82 to 83 kilograms but gradually started putting on weight due to inactivity and difficulty in carrying out exercises and doing physical work. The weight gradually went up to 116 kg. He could not exercise before due to injuries. Prior to his injuries, he used to ride pushbikes and sports.
He was referred to Dr Gavini Krishna, upper GI surgeon by his GP for his obesity. Dr Krishna advised gastric sleeve surgery. He is awaiting approval for the surgery. In the meantime, he has tried dieting, doing keto diets and took pills including Duromine tablets. He has also tried walking in the morning and afternoon but with no significant weight loss.”
Dr Khan recorded the applicant’s weight at 116kg with a BMI of 35. Dr Khan then recorded the following opinion:
“As a result of his workplace injuries involving his neck, left and right shoulder and arms, Mr Prasad had developed morbid obesity due to his inability to live an active lifestyle and inability to exercise and weight gain due to his use of analgesics and pain medication and his psychological problems.
The above condition was a result as a consequence of his workplace injuries.
He has been tried on conservative management with various diets and medication to reduce weight which have been unsuccessful. He has been referred to an upper GI surgeon, Dr Krishna who has advised that he undergo gastric sleeve surgery.”
Relevantly, Dr Khan is of the view that any psychological condition the applicant is suffering from have been brought about by the applicant’s injury and weight gain, not the other way around.
When asked whether the then proposed gastric sleeve surgery was reasonably necessary as a result of the accepted injury, Dr Khan said:
“The failure of his diet and conservative management is due to his lack of mobility and inability to carry out exercises with intake of food and calories but no means of burning his calories due to his inability to exercise.
The proposed surgery is cost effective compared to long-term conservative management by dietary methods which is notoriously unsuccessful in the long term to reduce weight. The surgery will benefit your client with weight loss between 30 kilos to 40 kilos which will improve his ability to rehabilitate from his injuries and return to any gainful employment.
The proposed treatment by way of gastric sleeve surgery is also considered to be effective and reasonable by fellow medical practitioners to treat your client’s condition of morbid obesity.”
The applicant submitted the Commission would accept the surgery was therefore reasonably necessary as a result of consequential weight gain caused by the accepted injuries. Referring to the criteria set out in the decision in Diab v NRMA Ltd, Mr Adhikary submitted the cost of the surgery should be met by the respondent, as the accepted injury only needs to make a material contribution to the need for the treatment.
Mr Adhikary noted the respondent’s IME Dr Walls placed significant emphasis on psychological factors as the cause of the applicant’s weight gain. He referred to Dr Walls’ opinion, where he said:
“There is an active and quite severe mental health disorder, but this lies outside my area of expertise, nevertheless where it appeared to be a significant factor in Mr Prasad’s life and very likely to be a factor in any post-surgical recovery.
I cannot accept the obesity as a consequence of the physical injuries, it would be of an occupational hazard for a chef and I would of the opinion Mr Prasad’s inability to exercise and manage his dietary intake relates much more to the mental health condition.
I would attribute his relative immobility over this time much more to his mental health condition and as a consequence of his neck and shoulder treatments.
I would not consider Mr Prasad’s to be particularly obese by today’s standards, and will consider a dietary and exercise programme the first step for any management (which I fully accept is necessary for Mr Prasad’s general health).” I do not accept Dr Walls’ opinion. Firstly, he attributed the applicant’s weight gain to a psychological condition, which he then readily admitted lies outside his field of expertise.”
Dr Walls then notes the applicant’s weight gain will be an occupational hazard for a chef, however, that ignores entirely the uncontested severity of the limitations imposed by the accepted injuries and the applicant’s pre-injury healthy weight, lifestyle and exercise regime. There is no evidence the applicant was overweight before the injury additionally, whether as a consequence of the occupational hazards of being a chef or otherwise.

Dr Walls stated he does not consider the applicant to be particularly obese “by today’s standards”, however, accepting the applicant’s weight was 94kg before his injury, he has still gained 22kg between the accident at issue and the time of his surgery. By any measure, that is a large amount of weight.
In relation to reasonable necessity, Dr Walls stated the applicant should first exhaust other treatments. However, it is apparent the applicant had attempted many weight loss regimes before his surgery in 2022 without any effect.
For the respondent, Mr Grimes noted the discrepancies in the applicant’s history regarding his pre-injury weight. He noted the applicant’s IME Dr Khan recorded a weight of 82 to 83kg and Dr Krishna 85kg, however, the pre-injury clinical record revealed that applicant’s weight was actually 94kg.
Mr Grimes noted the applicant’s statement that he stopped attending the gym in 2017 and submitted that if the applicant could attend to his fitness regime between 2013 and 2017, then any weight gain in that period should be disregarded. Likewise, Mr Grimes noted Dr Ganora stated the applicant stopped taking Lyrica in 2015, so it could not be blamed for any weight gain from that point on.
I do not accept these submissions. The applicant’s accepted injuries are plainly very serious and debilitating. He has had no fewer than five operations. His evidence regarding weight gain, even if the starting point is 94kg and not 83 to 85kg is largely uncontested. That weight gain at its lowest figure is 22kg between the injury and the surgery. That is a significant amount of weight.
The respondent also noted there was no corroboration of the applicant’s attempts at dieting, however, I note the authorities make it clear that there is no need for corroboration in a civil matter: see for example Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56.
Mr Grimes noted a number of doctors who have indicated the applicant could increase his level of activity in relation to individually injured body parts, such as his neck and right shoulder, both of which improved somewhat after surgery. He submitted that evidence suggests the applicant can do much more by way of physical activity and that which he has undertaken.
I do not accept that submission, again noting the applicant had serious injuries to multiple body systems. To cherry pick comments regarding certain of these injuries in isolation does not, in my view, give an accurate picture of the plainly complex clinical outlook from a previously active and healthy man who has sustained injuries requiring multiple surgical interventions.
Mr Grimes noted, and I accept, the applicant did not plead the onset of depression as a causative factor of his weight gain. As noted, the applicant sought to amend the pleading to rely on his psychological condition, however, that application was refused, coming as it did after the parties had completed their submissions.
The respondent also submitted the applicant had not specifically pleaded any medication as a cause of his weight gain, however, in my opinion, it is clear from the medical evidence the effects of the applicant’s injuries necessitated the taking of that medication. Therefore, even if the taking of certain medication had been the cause of the applicant’s weight gain, in my view, it would still satisfy the requirement of a consequential condition.
However, the medical evidence is, in my opinion overwhelming. The applicant need only establish his accepted injuries made a material contribution to his weight gain. His treating GP, gastrointestinal surgeon and other specialist all make clear this is the case. Only the respondent’s IME stands against that proposition, and for the reasons set out earlier, I do not prefer his opinion.
As for the reasonable necessity of the surgery, Mr Grimes submitted there is no evidence to corroborate the applicant’s attempts at weight loss alternatives. However, as noted, there is no need for the applicant to be corroborated, and I accept his evidence as to the steps taken by him to lose weight before the surgery.
As Mr Adhikary noted, the surgery need only be reasonably necessary. It does not need to be the only reasonably available treatment.
I note the applicant’s evidence as to the steps taken by him before the surgery to lose weight were not subject to any application to cross-examine him. There is no serious challenge to the proposition that the applicant’s injuries made a material contribution to his weight gain, because they led to the applicant being unable to exercise and lead an active lifestyle.
It is not necessary for the applicant to demonstrate he has undertaken the whole gamut of alternative treatments of the proposed surgery. However, he has undertaken surgery for the accepted injuries, diet, physiotherapy, exercise physiology, Duromine and none of these treatments have led to him losing weight. I have no difficulty in accepting, on the balance of probabilities, the surgery was reasonably necessary as a result of the weight gain which the applicant suffered, which in turn is brought about by the accepted injuries.
Applying the criteria for reasonable necessity set out by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72, I note gastric sleeve surgery is a well-recognised treatment for significant weight gain which, having regard ot the balance of the medical evidence in this matter, will be potentially effective to an applicant who has tried numerous conservative treatments to little or no effect. The surgery is not, in my opinion, overly expensive, particularly when weighed against the potential cost of long term and less effective conservative treatments.
The respondent will therefore be ordered to pay the costs of an incidental to the gastric sleeve surgery.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2023] NSWPIC 108

16 March 2023