Reynolds v Edmen Pty Ltd t/as Edmen Community Staffing Solutions - [2021] NSWPIC 79

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reynolds v Edmen Pty Ltd t/as Edmen Community Staffing Solutions [2021] NSWPIC 79
APPLICANT:	Lorraine Reynolds
RESPONDENT:	Edmen Pty Ltd t/as Edmen Community Staffing Solutions
MEMBER:	Ms Karen Garner
DATE OF DECISION:	14 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation for medical treatment pursuant to section 60 of the 1987 Act; applicant had accepted work injury to right knee; whether proposed gastric bypass procedure was reasonably necessary as a result of the work injury; Held- the proposed surgery was reasonably necessary as a result of the work injury.
DETERMINATIONS MADE:	1. The “Roux-en-Y Gastric Bypass Procedure” proposed by Dr Kuzinkovas is reasonably necessary as a result of the injury on 8 April 2005.
ORDERS MADE	2. Respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Lorraine Reynolds (the applicant) is a 59-year-old woman.
The applicant commenced employment with Edmen Pty Ltd t/as Edmen Community Staffing Solutions (the respondent) in about 2003 as a disability support worker, working full-time attending group homes and performing personal care assistance work for disabled people.
On 8 April 2005, the applicant was involved in a motor vehicle accident in the course of her employment with the employer (the accident) whereby she sustained injury to her right knee (the injury).
The respondent accepted liability for the injury and expenses of and related to numerous operations to the applicant’s right knee.
Since the injury, the applicant has been classified as having Grade 3 Obesity Condition and has been diagnosed with Gastroesophageal Reflux.
The applicant sought payment of medical expenses for and related to “Roux-en-Y Gastric Bypass Procedure” surgery proposed by Dr Kuzinkovas in his report dated 25 September 2018 (the surgery), which is designed to achieve weight loss, on the basis that it is medical treatment which is reasonably necessary as a result of the injury.

On 23 October 2018, by a notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent declined liability for the surgery on the basis that the applicant’s Obesity Condition and Gastroesophageal Reflux:
(a) was not an injury arising out of or in the course of her employment with the respondent, and

(b) was not an injury where the applicant’s employment was a substantial contributing factor to the injury.

On 7 January 2021, the applicant sought a review of that decision.
On 20 January 2021, by a notice issued pursuant to s 78 of the 1998 Act, the respondent maintained the decision dated 23 October 2018. The respondent declined liability for the surgery on the basis that:
(a) the applicant’s Obesity Condition and Gastroesophageal Reflux did not arise out of the applicant’s employment with the employer as required by s 4 of the Workers Compensation Act 1987 (the 1987 Act);

(b) the applicant’s employment with the respondent was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act, and

(c) the claimed medical or related treatment was not reasonably necessary for an injury as required by s 60 of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Commission on 27 January 2021. The applicant seeks compensation pursuant to s 60 of the 1987 Act for and related to the surgery.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration hearing on 16 March 2021. The applicant was represented by Mr P Perry, counsel, instructed by Ms E McDonald, solicitor of MCW Lawyers. The respondent was represented by Ms N Compton, counsel, instructed by
Mr N Bennett of GIO.

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.

ISSUES FOR DETERMINATION

I note that liability for the injury remains accepted.
The parties agree that the following issue remains in dispute:

(a) whether the surgery is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

Applicant

The applicant has made a statement dated 19 November 2020.
The applicant is a 59-year-old woman.
The applicant has a family history of Obesity Condition. The applicant’s weight has fluctuated during her life since puberty and has included periods of significant weight gain and significant weight loss. The applicant has made a concerted effort to lose weight and maintain a healthy weight by focusing particularly on exercise more than eating habits.
On 23 March 2004, the applicant’s general practitioner recorded that she had lost 42 kilograms.

Exhibited photographs of the applicant at Christmas of 2004 show her looking of a normal weight and engaged in water-skiing.

Prior to the injury:
(a) the applicant led a healthy and active lifestyle. She enjoyed participating in sports including indoor cricket, indoor netball and indoor soccer. She also regularly enjoyed kayaking and was involved in both her children’s activities including training her daughter’s netball team and training her son’s baseball team. She regularly attended the gum and enjoyed going for walks, and

(b) the applicant’s eating habits were that she ate very little during the daytime, mainly drinking tea or coffee and having small snacks. She had only one main meal which was at dinnertime.

At the time of the injury on 8 April 2005, the applicant was at a healthy weight of about 76 kilograms and was feeling fit and well.
On 8 April 2005, the applicant was driving a motor vehicle accident in the course of her employment with the employer when her vehicle was rear-ended by another vehicle travelling at 120 kilometres per hour. The impact caused the applicant’s right knee to hit the dashboard and go right through the firewall of the car. Her body was thrown forward and her right shoulder was also significantly impacted by the seatbelt.

The applicant was taken to hospital immediately following the accident and was discharged with her knee strapped after x-rays were performed.
On 4 June 2005, the applicant first attended her treating general practitioner after she experienced ongoing problems with her right shoulder and both knees, particularly her right knee.
Since the injury, the applicant has maintained her previous eating pattern, except during periods when she was recovering from the various surgeries when she did not feel like eating and found it difficult to prepare and transport a meal due to her difficulties with walking and the need to use crutches.

Between August 2005 and November 2009, the applicant took Epilim medication which had been prescribed by her general practitioner for suspected epilepsy. She understands that weight gain is a common side effect of Epilim medication.
Between the injury and the end of 2008, the applicant’s weight increased to 129 kilograms.
After the applicant made a concerted effort to lose weight, her weight reduced to 105 kilograms by 15 January 2009.
By December 2009, the applicant achieved her pre-injury healthy weight of 76 kilograms.
The applicant was able to maintain the weight of 76 kilograms for a period of time.
However by 2012, the applicant had experienced further significant weight gain which continued.

On 19 January 2006, Dr Turnbull, Orthopaedic Surgeon, performed arthroscopy, medial and lateral meniscectomy on the applicant’s right knee (first surgery).
By May 2006, the applicant regained full range of movement in her right knee although she continued to experience pain in her right knee.
On 17 July 2007, Dr Turnbull performed knee replacement surgery on the applicant’s right knee (second surgery).
Despite receiving advice that the surgery was successful, the applicant continued to experience pain in her right knee.
In March and April 2008, the applicant attended Dr Tan, Orthopaedic Surgeon for a second opinion due to her ongoing pain. He referred the applicant for an x-ray. That x-ray did not show any problems with the second surgery.
On 1 September 2009, Dr Turnbull performed a second knee replacement surgery on the applicant’s right knee (third surgery).
The applicant continued to experience ongoing pain in her right knee despite undergoing recommended rehabilitation, physiotherapy and gym program.
In March 2013, the applicant attended Dr Turnbull who did not identify an apparent issue despite the applicant’s ongoing pain.
By this time, the applicant had been diagnosed with depression and had contemplated suicide at times as a result of constant and unrelenting pain she had experienced since the injury.
In May 2013, the applicant sought a second opinion from Dr Samuel Macdessi, Orthopaedic Surgeon. In his report dated 24 May 2013, Dr Macdessi noted that the applicant’s weight was ‘approximately 129kg in the past and is now 89kg’. Dr Macdessi noted that the applicant’s right knee pain was broad-based, that some parts of her knee had no sensation and that she sometimes experienced a burning sensation. On that basis, Dr Macdessi suspected that the applicant had complex regional pain syndrome.
On 31 July 2013, Dr Macdessi performed a knee arthroscopy and synovial biopsy (fourth surgery). He was unable to identify any mechanical or bacterial cause for the applicant’s knee pain. On that basis, Dr Macdessi diagnosed that the applicant had complex regional pain syndrome.
The applicant was then referred to Dr James Yu for pain management. As that was ultimately unsuccessful, Dr Yu eventually recommended that the applicant have a spinal cord stimulator. The applicant elected not to undergo that treatment due to identified risks.
As the applicant’s right knee pain continued and she had mechanical problems with her right knee frequently giving way, the applicant then sought a further opinion from Associate Professor Craig Waller, Orthopaedic Surgeon. In contrast to previous medical opinion, Associate Professor Waller found that the applicant had a significant valgus alignment of the right knee in addition to complex regional pain syndrome.
In August 2016, the applicant was diagnosed with Gastrooesophageal Reflux disease by her general practitioner Dr Choueifiati. She understands that was caused by the numerous medications that she has been required to take as a result of the injury.
On 29 May 2017, Associate Professor Waller performed revision total knee replacement with computer assisted navigation on the applicant’s right knee (fifth surgery).
In 2017, the applicant first attended Dr Kuzinkovas. At that time, the applicant was medically classified with Obesity Condition and she felt that she had struggled with weight gain for much of the 12 years since the injury.
By May 2018, the applicant had recovered from the fifth surgery. She was referred to Dr Shari Parker, rehabilitation physician at the Royal North Shore Hospital Pain Management Service.
The respondent accepted liability for the injury and expenses of and related to the five surgeries to the applicant’s right knee.
Between October 2013 and early 2019, the applicant took Lyrica medication which had been prescribed by her general practitioner for constant nerve pain. She understands that weight gain is also a common side effect of Lyrica medication. The applicant also took Endep medication which had been prescribed by her general practitioner for depression as a result of constant right knee pain which had been unrelenting since the injury. She understands that weight gain is also a common side effect of Endep medication.

On 25 September 2018, Dr Kuzinkovas proposed the surgery to assist the applicant to achieve weight loss.

The applicant does not accept that her eating behaviour and family history were the only reasons for her weight gain subsequent to the injury. The applicant maintains that her eating habits have essentially remained the same throughout her life. The applicant achieved a healthy weight prior to the injury.

The applicant attributes her current Obesity Condition to the injury. The effects of the injury on the applicant’s life have been catastrophic her. She can no longer work at all and she requires assistance with many simple daily household tasks. The applicant’s weight did not start to increase out of control until after the injury. Prior to the injury, the applicant was very active and enjoyed sports and physical pursuits. She relied on exercise to achieve and maintain a healthy weight. The injury prevented the applicant from participating in the sports which she had previously enjoyed and which had been a critical element to her achieving a healthy weight. Further, injury caused the applicant constant pain and lack of mobility which in turn caused deterioration of the applicant’s mental health. The combined effects were that the applicant lost the physical and emotional capacity to take steps sufficient to counter the weight gain that she experienced.

The applicant now feels that as a result of the physical and emotional effects of the injury, she is incapable of achieving significant weight loss without the surgery.

Medical and radiological reports

Dr Michael Wunsch, General Practitioner

Dr Wunsch was the applicant’s treating general practitioner.
On 23 March 2004, he noted that the applicant had “lost 42kg”.
On 12 July 2005, he referred the applicant to Dr Alan Turnbull. The referral included a note dated 4 June 2005 which appears to record the applicant’s report of the injury.

Dr Allen Turnbull, Orthopaedic Surgeon

Dr Turnbull’s report dated 18 August 2005 noted the injury and that the applicant reported persistent pain and restricted movement in the knee. Dr Turnbull opined that the applicant “damaged the articular surface of the patellofemoral joint” and noted that she was currently having physiotherapy which was appropriate.
Dr Turnbull’s report dated 6 December 2005 noted that a MRI “shows patellofemoral and medial compartment osteoarthritis along with tears of both medial and lateral menisci”. Dr Turnbull opined that “There is a reasonable chance of improvement with arthroscopic debridement” however it would not deal with an arthritic problem and therefore would not rid the applicant of all her discomfort.
On18 January 2006, Dr Turnbull conducted arthroscopy, medial and lateral meniscectomy of the applicant’s right knee.
Dr Turnbull’s report dated 19 January 2006 noted that the procedure identified that there was a large tear in the medial meniscus and fraying on the edge of the lateral meniscus in addition to some moderate degenerative changes in the applicant’s right knee.
Dr Turnbull’s report dated 1 May 2007 noted that the applicant continued to have problems with her knee and complained of severe constant pain aggravated by activity. Dr Turnbull noted that the applicant wished to proceed with a knee replacement although he had tried to explain that was a “major undertaking and burns many bridges at the age of 44”. He suggested that the applicant should think “a little harder” about the surgery and he requested her to have an x-ray of the knee.
Dr Turnbull’s report dated 8 May 2007 noted that x-rays of the applicant’s knee “show tricompartment osteoarthritis with sublaxa of the tibia femoral joint”. He stated that “the only way to help her problem would be with a knee replacement. I have discussed this… detail because of her young age. Despite the problems with knee replacement she wishes [to] proceed and this is being organised”.
Dr Turnbull’s report dated 18 June 2007 noted that x-ray and MRI of the applicant’s left knee requested by the insurance company “show some early medial compartment osteoarthritis but nothing unexpected given her age. The knee is asymptomatic and nothing needs to be done at present”.
On 17 July 2007, Dr Turnbull conducted a “Total Knee Replacement with tibial grafting, Vanguard component” of the applicant’s right knee.
Dr Turnbull’s report dated 18 July 2007 reported on the surgery.
Dr Turnbull’s report dated 18 February 2008 noted that it was six months since the replacement of the applicant’s right knee and she
“continues to have pain and in fact says the pain is no better than it was pre operatively. Her range of movement is from 0-95 degrees which is slow but reasonable. She does have 10 degrees of valgus. I reviewed x-rays of the knee prosthesis and I could not see any obvious problem. I am not sure what is causing all of her pain and I have suggested that she have a bone scan to see if there is anything that the x-ray is missing. Certainly I do not think that she has an RSD nor an infected prosthesis”.
Dr Turnbull’s report dated 22 June 2009 stated that
“It is about two years now since I replaced her right knee. Despite the time interval and the fact that she has lost more than 50 kilograms in weight she continues to have problems with activity related pain. Her new x-ray today suggests that both the femoral and tibial components are loose and I think that there is a good chance of improvement with revision. With the revision it way also be possible to correct her vulgus deformity…. The need for this operation is related to her original pathology”.
On 1 September 2009, Dr Turnbull conducted a “Right total knee replacement with femoral grafting, Triathlon component” on the applicant’s right knee.
Dr Turnbull’s report dated 16 September 2009 reported on the procedure.
Dr Turnbull’s report dated 15 March 2011 stated that
“It is eighteen months now since her revision knee replacement. She continues to have pain in the knee. Her range of movement is 0 to 110 degrees. Her x-rays are not showing any problems. I think the pain is not coming from the implant but probably from the soft tissue and I don’t think that surgery is likely to improve her predicament… She is getting benefit from the gym programme and she should continue with this”.
Dr Turnbull’s report dated 15 May 2012 stated that the applicant “continues to have some problems with pain in the knee. She has lost a lot of weight and seems to be benefiting highly from her gym program”.
Dr Turnbull’s report dated 20 March 2013 stated that
“It is now four years since her revision. She still has pain but she does report that overall it feels better. She has been fairly diligent with her gym program and has last [sic] 72 kg. She does feel some laxity in the joint. Her range of movement is not 0 to 100 degrees. She does have some medial collateral laxity particularly in flexion. She needs to continue with the gym program. She needs an x-ray of the knee…”.
Dr Turnbull’s report dated 27 March 2013 stated that “On the x-ray there is nothing obviously wrong with the prosthesis. I think that her pain is coming from the soft tissues rather than the implant. On this basis I would not recommend exploration or re operation. At this stage she needs to continue with her exercises”.
Dr Turnbull’s report dated 22 April 2013 stated that the applicant “continues to have problems with pain… Since I saw her last she has continued to work in the gym and has lost a further 2kg and I think she should continue with her gym program…. She does have a permanent disability in the leg due to the knee replacement”.

Dr Turnbull’s report dated 1 May 2013 stated that the applicant’s
“inflammatory markers are normal which almost completely rules out a peri-prosthetic infection. Her bone scan again looks normal and it is very unlikely that the component is loose. I think her pain is from the per-articular soft tissues. I would not recommend any further surgery. She needs to continue with the gym program. She does complain about a lot of pain and I think it would be difficult for her to complete a full week’s work”.

Dr SP Tan, Orthopaedic Surgeon

Dr Tan’s report dated 25 March 2008 noted that following right knee replacement, the applicant continued to experience stiffness and pain in her anterior right knee. A recent bone scan did not show any acute fractures.
Dr Tan’s report dated 1 April 2008 noted that “Her ESR and CRP were normal and her x-rays did not show any loosening”. The applicant was to attend the Pain Clinic and continue routine follow-ups with Dr Turnbull.

Dr Samuel MacDessi, Orthopaedic Surgeon

Dr MacDessi’s report dated 24 May 2013 noted that he was unsure of the cause of the applicant’s painful right total knee prosthesis. He opined that “It is most likely that she has a chronic regional pain syndrome as she has diffuse knee pain with some features of dysesthesia. The burning sensation that she feels with her knee is concerning for this syndrome”. Dr MacDessi recommended further assessments be undertaken.
Dr MacDessi’s report dated 12 July 2013 noted that the applicant “requires exclusion of chronic low grade deep knee infection” and recommended a knee arthroscopy with synovial biopsy.
On 31 July 2013, Dr MacDessi conducted arthroscopic inspection of the knee joint and synovial biopsy.
Dr MacDessi’s report dated 12 August 2013 noted that arthroscopic inspection of the knee joint and synovial biopsy failed to demonstrate any significant abnormalities or findings. He opined that “the major diagnosis [of the applicant’s ongoing pain] is that of a chronic regional pain syndrome and that she is best managing this with ongoing rehabilitation. I have recommended that she continues on with gym based exercises as she is currently doing”.
Dr MacDessi’s report dated 28 August 2013 noted that the applicant was still not ready to return to work and her recovery was progressing quite slowly.

Dr James Yu, Interventional Pain Specialist

Dr Yu’s report dated 12 February 2014 stated his impression of the applicant’s condition which included “Persistent right knee pain secondary to complex regional pain syndrome” and “Psychological issues with stress, anxiety and depression”. He “strongly recommended a multidisciplinary approach in managing her complex pain condition utilising pain pharmacotherapy, injection procedures with physiotherapy and psychology”.
Dr Yu’s report dated 11 March 2014 noted the applicant’s ongoing issues. He noted that the applicant “continues to experience severe right knee pain and right leg pain. It is associated with swelling, colour changes and temperature changes”.

Dr Yu’s report dated 8 April 2014 noted that the applicant had responded well to a right lumbar sympathetic block three weeks ago and noted significant improvement in her right leg pain and less swelling and other symptoms. He encouraged the applicant to increase her exercise regime.
Dr Yu’s report dated 30 April 2014 noted that the applicant’s right leg neuropathic pain had been well controlled with analgesic medication since the lumbar sympathetic block.
Dr Yu’s report dated 9 July 2014 noted that since the lumbar sympathetic block the applicant complained of muscle spasm and cramps although some symptoms had improved.
Dr Yu’s report dated 13 January 2015 noted that the applicant continued to complain of right leg pain associated with swelling, dusky discoloration and warm sensation. The applicant rated her pain at 9/10. He noted that was consistent with the features of chronic regional pain syndrome.
Dr Yu’s report dated 7 July 2015 noted that the applicant “continues to experience right leg pain associated with swelling, pale discolouration and alternating cool and warm sensation. This feature is consistent with a clinical diagnosis of CRPS. She rates her pain at 8-9/10”.
Dr Yu’s report dated 10 November 2015 noted that the applicant’s symptoms were ongoing.
Dr Yu’s report dated 23 February 2017 noted that “Due to her persistent right leg pain secondary to CRPS with secondary psychological issues, I would recommend an intensive and integrated multidisciplinary pain management programme”.
Dr Yu’s report dated 27 April 2017 noted that the applicant “continues to complain of right lower limb pain. It is associated with swelling and discolouration, consistent with a diagnosis of complex regional pain syndrome… She rates her pain at 8-9/10”.

Associate Professor Craig Waller, Orthopaedic Surgeon

Associate Professor Waller’s report dated 20 July 2015 noted that the applicant’s
“weight bearing logogram shows significant valgus alignment of the right knee. The weight bearing line is 80% across to the lateral side with an increase in anatomical and mechanical valgus. To correct the valgus alignment will require a major revision to a hinged replacement”.
Associate Professor Waller’s report dated 22 March 2017 noted that the applicant
“continues to be troubled by her right knee. She feels that the valgus alignment is increasing. The knee frequently gives way… she has a chronic regional pain syndrome. She takes Lyrica, Endep, Panadol Osteo, Mobic, Nexium and Turmeric. She uses Durogesic patches… Despite her mobility problems she still does hydrotherapy and works out in the gum. Clinical examination revealed valgus alignment and instability of the right knee… She will require a stabilised hinged prosthesis to correct the valgus malalignment and instability”.
Associate Professor Waller’s report dated 29 May 2017 confirmed that on that date he performed revision right total knee replacement with computer assisted navigation. Operative findings were that the “previous knee replacement hyperextended. The femoral component was internally rotated There were no signs of infection The implants were not loose”.
Associate Professor Waller’s report dated 19 July 2017noted that the applicant’s knee “looks very satisfactory following the revision replacement in May 2017. The knee is well aligned and stable with a satisfactory range of motion”. The applicant reported pain in her right thigh.
Associate Professor Waller’s report dated 7 August 2017, noted that the applicant’s
“right knee is doing very well following revision surgery… her problem is some pain in the proximal right thigh. She has some tenderness to palpation in this area. Ultrasounds of the relevant area were normal. MRI scans have also shown very little. There is a small amount of fluid between the muscle and the overlying subcutaneous fat but nothing else. X-rays of knee look good. [The applicant’s] rehab should progress despite her right thigh symptoms. I can’t find anything wrong there and expect that her symptoms will improve”.
Associate Professor Waller’s report dated 3 October 2017, noted that the applicant’s “valgus deformity of the knee was corrected” by the right total knee replacement on 29 May 2017.
Associate Professor Waller’s report dated 6 February 2018, noted that the applicant
“has been experiencing neurogenic pain on the lateral aspect of the RIGHT knee. The knee appears to be mechanically sound. Current medications include Durogesic patches, Endep, Lyrica, Panadol Osteo and Mobic. I note that she has been seeing Dr Shari Parker and has been referred to the /royal North Shore Hospital Pain Management Service. I am in favour of her following through on this referral”.
Associate Professor Waller’s report dated 10 May 2018 noted that the applicant’s
“right knee is well aligned, stable and mechanically sound but her function is very poor due to muscle weakness and neurological type symptoms consistent with a chronic regional pain syndrome. [The applicant] is still waiting to gain approval to attend the pain management service at Royal North Shore Hospital. In the meantime she is seeing Shari Parker, rehabilitation physician at St Vincent’s Clinic who has identified a number of relevant physical and psychological issues. [The applicant] reports that she has had a few falls and feels that she needs a walking frame to ambulate. I am in support of this. [The applicant] does not require any further interventional treatment or surgery for her knee which is in good position and good alignment”.
Associate Professor Waller’s report dated 31 July 2020 noted that the applicant

“is a 59 year old woman who has been under my care since 26 May 2015 for right-sided knee problems. At the date of my first consultation with [the applicant] she weighed 93 kgs. As a result of her right knee problems, general inactivity and other dietary issues, her weight has increased to 120kgs. I understand that she has been advised to have a gastric bypass procedure. I am not an expert in the metabolism of weight gain or bariatric surgery but suffice it to say that [the applicant’s] right knee has caused her significant problems with mobility which has contributed to her weight gain. Some of the analgesic and psychotropic medications she has been on over the years have also contributed to her weight gain… I am supportive of [the applicant] proceeding with a gastric bypass procedure as all other measures she has employed to reduce her weight appear to have failed”.

Dr Vytaurus Kuzinkovas, Consultant Surgeon

Dr Kuzinkovas’ report dated 1 February 2017 stated:

[The applicant] is a 55 year old lady with a obesity problem who would like to consider weight loss surgery as a treatment option.
[The applicant] remembers that she started gaining weight during puberty as she started to consume a large amount of carbohydrate based products such as breads, pastas, rice and ice cream. Moreover, [the applicant] has a fairly disorganised eating behaviour whereby she does not eat at all during the daytime then has a big meal in the evening before bed.
Additionally, [the applicant] has a strong family history of obesity as her sisters and brother are also affected by the same condition. [The applicant’s] mother was obese and unfortunately died from a heart attack.
Once her weight started to increase out of control [the applicant] tried various weight loss methods such as Jenny Craig diet, Weight Watchers diet and gym training however none of these methods led to any type of weight loss.
[The applicant’s] past medical history includes efflux and insulin resistance. She is allergic to Sulfur drugs and Morphine.
Today [the applicant’s] height is 156.1cm and her weight is 107.2 making her BMI 44.
I had a long discussion with [the applicant] about the different types of weight loss surgeries covering laparoscopic gastric banding, laparoscopic sleeve gastrectomy and laparoscopic gastric bypass options.
A laparoscopic gastric band is a procedure that can be performed with significant safety in the majority of patients. The in hospital mortality rate is probably in the order of 1:2000 to 1:3000 and a significant complication rate in the order of 1:200. Minor complications, which slow down recover, are about 1:20 and there is a device failure rate associated with the band of 2-3% per year, which therefore requires re-operation to maintain the effect of the procedure. About 85%+ of patients can be expected to achieve and maintain long term significant weight loss, usually losing about 50-60% of the extra weight that they are carrying. The weight loss often takes about 18 months to reach, and is accompanied by a significant change in lifestyle. Probably the most difficult thing about the Lap Band are some of the food intolerances that people encounter, especially with very lumpy foods, but most patients manage these without great difficulty. The band is a common operation in Australia because it is the safest long lasting weight-loss tool that has so far been developed.
A laparoscopic gastric bypass is at the other end of the spectrum. It is a larger and riskier operation that is permanent and not reliant on the function of a prothesis to work. The weight loss is more easily achieved and most people lose between 68-80% of their excess weight within the first year without making serious attempts at dieting or exercise. A gastric bypass also has some long term nutritional effects specifically relating to Vitamin B12 which needs to be supplemented with an injection every 3-6 months and probably also with calcium and iron which needs to be monitored permanently and sometimes needs to be supplemented.
Between these two operations is a sleeve gastroplasty which is effectively the first part of the laparoscopic gastric bypass procedure. It has the advantage of relatively straightforward weight loss with less problems of the malabsorption side effects and less operative risks. The only problem with the sleeve is we do not have as much long term data about the results however if in the future the procedure was inadequate, it could easily be converted to a laparoscopic gastric bypass.
From all these procedures [the applicant] prefers the laparoscopic sleeve gastrectomy and I have further explained this operation to her in detail. Most importantly, I have underlined that in order to be successful in her weight loss journey [the applicant] will be required to follow healthy eating principles and do regular physical exercise.
At the end of our consultation I have consented [the applicant] for the laparoscopic sleeve gastrectomy which is going to be performed at St George Private Hospital after her regime on the Optifast diet”.

Dr Kuzinkovas’ report dated 25 September 2018 repeated much of what was contained in his report dated 1 February 2017. Further, Dr Kuzinkovas noted that the applicant’s weight was then 108.6 kg making her BMI 44.6 and stated:

“In my opinion, the best option for [the applicant] would be Roux-en-Y Gastric Bypass which leads to substantial weight loss as well as significantly reduces or even abolishes, Gastroesophageal Reflux symptoms.
During our consultation, we have discussed the Roux-en-Y Gastric Bypass in detail, covering all of the risks and benefits. I have also explained that in order to be successful during her weight loss journey, [the applicant] will be required to follow healthy eating principles, as well as do regular physical exercise. [The applicant] will also be required to regularly attend follow up appointments at our clinic where we will be able to monitor her weight loss progress.
At the end of our consultation I have consented [the applicant] for the Roux-en-Y Gastric Bypass which will be performed at St George Private Hospital after approval from Workcover.”

Dr Kuzinkovas’ report dated 1 February 2017 stated:

“[The applicant] is affected by Grade 3 Obesity, accompanied with Gastroesophageal Reflux symptoms and Insulin Resistance. In my opinion, weight loss surgery, - in particular the Roux-en-Y Gastric Bypass procedure – would help her to lose weight and improve, or even eliminate, her Reflux symptoms.
…
Whilst I sympathise with the injuries [the applicant] sustained in a car accident tin April 2005, and the multiple operations she had afterwards, I cannot confirm that [the applicant’s] Obesity condition is directly related to the accident itself. Whilst one can make a comment that decreased mobility can lead to weight gain, the total calorie intake with large consumption of carbohydrate based products plays a major role as well.
… Yes, weight loss surgery is reasonable for this patient to address her Obesity, however I cannot say that this condition is arising from the injuries sustained at work on 8 April 2005.
…
If [the applicant] does not undergo weight loss surgery, her Obesity condition is likely to progress. Being at Grade 3 Obesity range now – she is at increased risk of developing metabolic syndrome, which will lead to multiple Obesity-related diseases including, but not limited to, Diabetes, Cancer and Ischaemic Heart Disease. Knowing that [the applicant’s] mother was also Obese and died of a Heart Attack, that reiterates the unfavourable risks and prognosis only further.”

Dr Kuzinkovas’ quote dated 1 February 2017 stated that the clinic fee for the surgery is $6,900 (which does not include any hospital or surgery excess costs, the anaesthetist fees, any pathology, pharmacy and physiotherapy fees and any other health care specialist fees).

Dr Tina Doan, General Practitioner

By referral dated 24 September 2018, Dr Doan referred the applicant to Dr Kuzinkovas for an opinion and management regarding bariatric surgery. Dr Doan noted that the applicant’s history included motor vehicle accident (2005), Obesity (2016), pain (2016), Gastro-oesophageal Reflux (2016), Complex Regional Pain Syndrome (2017), post-traumatic stress disorder (PTSD) (2017) and revision of right total knee replacement (2017). Dr Doan further noted that the applicant’s current medications included Endep and Lyrica.
Dr Doan’s report dated 18 December 2020 stated
“In my opinion, [the applicant’s] obesity does contribute to her knee injury, namely that the increased weight-related stresses on the knee increase pain… I do think her weight does hamper the prospect of success with alternative symptom relief measures, for example her physiotherapy treatment”.
Dr Doan’s report dated 24 January 2020 confirmed her opinion that
“the injuries sustained in the motor vehicle accident at work 8/4/2005 have significantly contributed to her weight gain, both in terms of her ability to mobilise and her mental state… I do agree that bariatric surgery as suggested by Dr Kinhovas [sic] is reasonable and necessary following her workplace injury on 8/04/2005. In particular, it would assist with her leg pain as offloading pressure on this would be beneficial… I last saw her 14/1/20 and… her pain, impaired mobility and mental state remain an ongoing issue… I believe it is unlikely [the applicant] will be able to lose the amount of weight required by non-surgical means”.

Applicant’s other evidence

Ms Liz Monk, Physiotherapist

Ms Monk’s reports dated 10 January 2006, 31 January 2006 and 9 May 2006 reported on the applicant’s ongoing discomfort, surgery and therapy.

Dr Shari Parker, Rehabilitation Physician

By a referral dated 13 July 2018, Dr Parker referred the applicant to Dr Kuzinkovas in relation to possible gastric sleeve surgery. Dr Parker noted the applicant’s history of her knee injury and surgeries and stated that the applicant
“has since developed CRPS. Ongoing R knee pain and leg pain… has improved marginally… but also significant quads weakness and we are… unable to progress her physical rehab due to pain which is exacerbated by wt gain. She’s doubled her weight since the accident in 2005, current wt= 110 kg and height 160cm … BMI = 43… She’s trialled Optifast … without success and has engaged… a dietician and sees a… psychologist regularly for PTSD.”
By report dated 13 September 2018, Dr Parker sought GIO’s approval of gastric sleeve surgery for the applicant.
By report dated 14 November 2018 addressed to GIO, Dr Parker stated:
“I am writing in strong support of weight reduction surgery in the form of ROUX EN Y GASTRIC BY-PASS SURGERY.

The reasons for my support of this surgery under her insurance claim are as follows:

1.Cause of weight gain
[The applicant’s] weight gain can be directly related to the consequences of her accident and it’s [sic] repercussions with: inactivity and inability to exercise following her surgeries and the complication of complex regional pain syndrome.
2.Contribution to weight gain from PTSD… due to her accident, and related … behaviour and probable disruption to HPA axis.
3.Medications which are ongoing that have been commenced for consequences of her accident and which are known to cause weight gain including endep + Lyrica.
4.Post traumatic depression following accident and related inactivity, and poor motivation to access nutritious food and disordered eating/comfort eating.
5.Inability to eat nutritious meals due to reduced exercise tolerance/ standing tolerance/ motivation to cook nutritious meals.
6.She has trialled reasonable weight loss strategies without success.
7.Excess weight (current BMI 44.5 is directly contributing to her ongoing disability and… non-progression of recovery adding extra load to her injured leg...
I hope you will seriously consider these comments in your decision making regarding this weight loss surgery which will directly benefit [the applicant’s] recovery, improved function and achievement of her goals”.

Ms Allie Mackay, Psychologist

Dr Mackay prepared a report dated 23 February 2020. Dr Mackay noted that:

(a)    on 23 October 2019, the applicant was referred to her psychology clinic for treatment of Major Depression and PTSD. Dr Mackay confirmed that those diagnoses were confirmed by standardised testing;

(b)    the applicant
“feels that her excess weight restricts her recovery and makes physical movement such as walking, lifting or reaching more difficult. She reports that she has gained significant weight since the injury, giving a pre-injury weight of 65-70kg and a current weight of 110kg. She reports that her weight has steadily increased since the accident”;

(c)    it was her understanding that the applicant
“has gained approximately 40kg since the accident in 2005. As it has been described to me, due to the injury, Ms Reynolds is in constant pain, movement causes pain and thus now she experiences a limited range of movements. Due to the consequent pain and inactivity brought on by the injury, it is conceivable that Ms Reynolds would gain weight”;

(d)    “My concern is that difficulty moving due to increased weight and increased joint pain has imposed isolation upon her which has deepened her sense of hopelessness, self blame and depression, leading to feelings of no escape and suicidal ideation”;

(e)    “Ms Reynolds reports that since the accident she has gained approximately 40kg above her pre-injury weight. She feels that the strain on her legs and other joints from additional weight is a considerable obstacle to movement. Since Ms Reynolds is injured, she is unlikely to be able to exercise to a level that would reduce this weight. It does appear reasonable to assume that the surgery recommended by Dr Kuzinkovas may give her the opportunity to move more easily, towards attaining a level of fitness and thus be able to live a more engaged and social fulfilling life”;

(f)    “It is outside the scope of my field of competence to project weight gain or loss or the medical implications of [the Surgery]. It does seem reasonable to assume that if she does not have the surgery she will have a very hard time losing approximately 40kg by means such as exercise due to the injury to her right leg cause by the accident in 2005. It seems that it would be quite challenging even without an injury as extensive as hers for a person to exercise to a level that reduced so much weight. It is also clear that the current weight is an obstacle to her physical recovery, which impacts on her emotional and mental recovery”;

(g)    “For that reason in my opinion it is in the interests of Ms Reynolds to have the surgery given the limitations her current weight imposes and the opportunities for greater independence, self efficacy, improved mood, and social connectedness she may gain by having more mobility. There would be increased access to self-resources, such as daily independent self care, ongoing emotional protective factors in reducing the self-blame of depression and social benefits to her in reduced isolation, being able to live a life where she may enjoy greater independence and contribute more fully to the lives of those she loves”.

Diagnostic Imaging

There are numerous reports of diagnostic imaging of the applicant’s right knee.

Clinical Records

Various clinical records are included in the evidence including clinical notes of the applicant’s treating general practitioners.
Clinical notes of Dr Patrick Choueifati, general practitioner:
(a) dated 6 February 2013 and 13 February 2013 which apparently refer to the applicant as a ‘compulsive lier’ [sic], having provided false information in the past and his inability to continue as her treating general practitioner; and
(b) indicate that nevertheless Dr Choueifati did subsequently continue as the applicant’s treating general practitioner on numerous occasions at least to November 2015.

Respondent’s evidence

The respondent also relied on various evidence referred to above, particularly the evidence of Dr Doan and Dr Kuzinkovas.
The respondent also relied upon the following medical investigation reports.

Medical investigation reports

Dr Eddie Price, Injury Management Consultant & Occupational Medicine

Dr Price prepared a report dated 28 October 2013 based on his independent medico-legal examination of the applicant that day.
Dr Price noted that the applicant advised that she then “weighed 93kg which she advised me was a loss of 30kg”.
Dr Price diagnosed that the applicant was
“suffering from chronic right knee pain post-total knee replacement and revision, and it is felt that she has neuralgic pain or part of a complex regional pain syndrome that requires treatment, that is being initiated now including referral to a pain clinic, Lyrica medication and further psychological pain management”.

Dr Thomas Rosenthal, Occupational Physician & Injury Management Consultant

Dr Rosenthal prepared a report dated 23 May 2018 based on his independent medico-legal examination of the applicant on 18 May 2018.
Dr Rosenthal noted that, notwithstanding the various treatment to that time, the applicant “still has severe right leg pain. She does minimal walking now. Her leg remains significantly hypersensitive and occasionally swells. She needs assistance with all facets of her activities of daily living which is provided by her son and family”. He noted that the applicant was then taking medication which included Durogesic, Lyrica, Endep, Mobic and Nexium. At the time, Dr Rosenthal considered that the applicant had reached maximum medical improvement and assessed her for a total knee replacement at 27% WPI.

SUBMISSIONS

Counsel made detailed submissions which were recorded on transcript. A copy of the recording and transcript will be made available on request. I have considered the submissions in full notwithstanding that details are not specifically repeated or referred to in these reasons.
In Summary, Counsel for the applicant submitted that the Commission has jurisdiction to deal with the dispute pursuant to s 60(5) of the 1987 Act which provides that the Commission’s jurisdiction extends to a dispute concerning compensation payable for any proposed treatment or service. He submitted that the proposed surgery satisfies the test prescribed by s 60(1) of the 1987 Act and satisfies each element of the test prescribed by Roche DP in Diab v NRMA Ltd[1]. He submitted that, in the circumstances, the proposed surgery is appropriate and there is no viable alternatives to achieve significant weight loss, Dr Kuzinkovas’ quote of $6,000 for the surgery is not excessive, the surgery is likely to be effective and there is acceptance by medical experts that the surgery is appropriate and likely to be effective. He submitted that the surgery is ‘reasonably necessary’ as a result of the injury because the applicant’s Obesity Condition resulted from immobility and inability to exercise, psychological condition and taking of medications which were caused by the injury. He also submitted that the surgery is ‘reasonably necessary’ as a result of the injury because the injury has caused the applicant to be unable to bear her increased weight on her knee.
[1] [2014] NSWWCCPD 72.
In summary, Counsel for the respondent submitted that the proposed surgery does not satisfy the test prescribed by s 60(1) of the Act. She submitted that the Commission cannot be satisfied that each element of the test prescribed by Roche DP in Diab v NRMA Ltd[2] is met. She submitted that the Commission cannot be satisfied that the proposed surgery is ‘reasonably necessary’ as a result of the injury because the applicant’s weight fluctuated significantly since the time of the injury and the real cause of the applicant’s weight gain was excessive calorie intake rather than factors related to the injury. She submitted that a viable alternative to the proposed surgery was that the applicant undertake a weight loss diet. She submitted that the medical evidence should be afforded less weight due to issues of the applicant’s credit which were raised in notes made by one of the applicant’s general practitioners.
[2] [2014] NSWWCCPD 72.

Both Counsel referred me to the applicant’s medical history, various medical opinions and the provisions of s 60(1) of the 1987 Act.

FINDINGS AND REASONS

The evidence

The respondent submitted that the Commission should give little weight to the evidence of the applicant because her credibility is put in issue by clinical notes made by her treating general practitioner, Dr Choueifiati, to the effect that the applicant previously lied.
However, the respondent did not present any other relevant evidence and nor did the respondent cross-examine the applicant and give her an opportunity to respond to such allegation.
Further, much of the applicant’s evidence is consistent with independent evidence. For example, the applicant’s evidence, that prior to the injury she weighed approximately 65 to 70 kgs and that she was physically active, appears to be consistent with evidence of a photograph said to be of the applicant, in which she presents as relatively slim in a swimsuit whilst she is waterskiing. Further, the various medical reports are largely consistent with the applicant’s evidence in relation to her symptoms, treatment and changes in weight (although I accept that, to an extent, those reports are based on information reported by the applicant).
For those reasons, I accept the applicant’s evidence.
I also accept the evidence of the various medical and treating practitioners.

Findings of fact

On the basis of the evidence, I make the following findings of fact:
(a)    the applicant is a 59-year-old woman;
(b)    the applicant has a family history of Obesity and has experienced periods of significant weight gain and significant weight loss during the course of her life both prior to and subsequent to the injury;
(c)    during her life, the applicant has significantly relied on exercise to achieve and maintain a healthy weight;
(d)    shortly prior to the injury, the applicant weighed approximately 65 to 70 kilograms. The applicant was active and enjoyed sports and physical pursuits. She relied on exercise to achieve and maintain that weight;
(e)    on 8 April 2005, the applicant sustained the injury as a result of the accident in the course of her employment with the employer;
(f)    the respondent accepted liability for the injury and expenses of and related to five surgeries to the applicant’s right knee;
(g)    since the time of the accident, as a result of the injury, the applicant has experienced significant pain and difficulties with mobility;
(h)    currently, as a result of the injury and despite the surgeries, the applicant continues to experience significant right knee pain and difficulties with mobility and is diagnosed with Complex Regional Pain Syndrome in her right knee;
(i)    further as a result of the injury, the applicant can no longer work at all and she requires assistance with many simple daily household tasks. The applicant can no longer participate in sports which she had previously enjoyed and which had been a critical element to her achieving and maintaining a healthy weight;
(j)    in about October 2019, the applicant was diagnosed with Major Depression and PTSD;
(k)    since the injury, the applicant’s weight has fluctuated significantly. The applicant’s weight was over 105 kilograms for most of the time since December 2015. On 31 July 2020, the applicant weighed 120 kilograms;
(l)    currently, the applicant’s weight is classified within the Grade 3 Obesity range, putting her at risk of multiple Obesity-related diseases;
(m)     currently, the applicant is also diagnosed with Gastroesophageal Reflux; and
(n)    the applicant now believes that as a result of the physical and emotional effects of the injury, she is incapable of achieving significant weight gain without the surgery.

The law

Section 60 of the 1987 Act relevantly provides:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:

(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

Is the proposed treatment medical or related treatment?

The applicant seeks compensation for the cost of Roux-en-Y Gastric Bypass Procedure surgery.

The respondent does not dispute that the proposed treatment is medical or related treatment (other than domestic assistance) within the meaning of s 60(1)(a) of the 1987 Act.

I am satisfied that the proposed treatment is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

In Diab v NRMA Ltd[3], Roche DP, referring to the decision in Rose v Health Commission (NSW),[4] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[3] [2014] NSWWCCPD 72.
[4] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]

“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1; 14 NSWCCR 233.

Roche DP found:

“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

I will consider each of those elements separately.

The appropriateness of the proposed treatment

The evidence is largely consistent, and I accept, that the applicant has a long history of right knee pain, incapacity and treatment as a result of the injury. Further, the applicant has now been diagnosed with complex regional pain syndrome in her right knee which is chronic and ongoing.
The evidence is also consistent, and I accept, that the applicant is classified with Grade 3 Obesity and has been diagnosed with Gastroesophageal Reflux (refer to reports of Dr Kuzinkovas dated 1 February 2017 and 25 September 2018).
Dr Kuzinkovas’ reports dated 1 February 2017 and 25 September 2018 state that weight loss surgery, in particular the Roux-en-Y Gastric Bypass Procedure, would help the applicant to improve weight and improve, or eliminate, her Reflux symptoms. Dr Kuzinkovas noted risk and benefits of the surgery but concluded that the surgery is reasonable for the applicant to address her Obesity Condition. Further, he indicated that if the applicant does not undergo the surgery, her Obesity Condition is likely to progress and result in development of Obesity-related conditions and diseases.
Having regard to the above evidence, I am satisfied that the surgery is appropriate to address the applicant’s Obesity Condition and Gastroesophageal Reflux.

The cost of the treatment

Dr Kuzinkovas stated that the clinic fee for the surgery is $6,900 (which does not include any hospital or surgery excess costs, the anaesthetist fees, any pathology, pharmacy and physiotherapy fees and any other health care specialist fees).
There is no evidence which is inconsistent with the estimate of Dr Kuzinkovas and I accept his evidence in relation to the cost of the treatment.

The actual or potential effectiveness of the treatment

Dr Kuzinkovas’ reports dated 1 February 2017 and 25 September 2018 stated that the proposed surgery (in combination with suitable diet and exercise) is likely to result in substantial weight loss as well as significantly reduce, or even abolish, Gastroesophageal Reflux symptoms.
The reports of Associate Professor Waller (dated 31 July 2020) and Dr Doan (dated 24 January 2020) support the opinion that the surgery is likely to be effective to address the applicant’s Obesity Condition and Gastroesophageal Reflux.

The report of psychologist Ms Mackay (dated 20 February 2020) opined that it does appear reasonable to assume the surgery would enable the applicant to achieve her weight loss goals.
There is no evidence that the applicant will not undertake an appropriate diet and exercise regime to ensure that the surgery is effective. In fact, the physiotherapist Ms Monk reported that the applicant stated that she was motivated to get better and was keen to get back to work. Although that evidence was hearsay, it was not challenged.
On that basis, I accept that the surgery is likely to be effective to address the applicant’s Obesity Condition and Gastroesophageal Reflux.

The availability of alternative treatment and its potential effectiveness

The applicant’s evidence is that she has achieved significant weight loss at times in her life and, prior to her injury, exercise was an important element in her achieving her weight loss goals.

There is no dispute that the applicant has ongoing knee pain and significant mobility issues which currently compromise her ability to undertake exercise.
The respondent’s counsel submitted that restricted calorie intake (by non-surgical means) is an appropriate and effective alternative treatment for the applicant to achieve significant weight loss.
However, there is no medical evidence to indicate that restricted calorie intake (by non-surgical means) would be particularly successful in the case of the applicant to achieve sufficient weight loss at this time.

Dr Doan opined (in her report dated 24 January 2020) that the applicant’s pain, impaired mobility and mental state remain an ongoing issue and that it is unlikely that the applicant will be able to lose the amount of weight required by non-surgical means.

The report of psychologist Ms Mackay (dated 20 February 2020) stated that the applicant is currently unlikely to be able to exercise to a level that would reduce her weight and that her current weight is an obstacle to her physical recovery. I note that Ms Mackay properly accepted that it was outside her expertise to opine on the applicant’s weight loss outcomes. However as Ms Mackay was the applicant’s treating psychologist, I have had regard to her views but whilst affording them less weight.

On the basis of the evidence, I am satisfied that there is no alternative treatment which is likely to be effective for the applicant to achieve significant weight loss.

The acceptance by medical experts of the treatment as being appropriate and likely to be effective

Dr Doan’s report dated 24 February 2020 indicated that she agreed that bariatric surgery recommended by Dr Kuzinkovas is “reasonable and necessary”. Dr Done stated that the proposed surgery would “assist the applicant with her leg pain as offloading pressure on this would be beneficial… [as] her pain, impaired mobility and mental state remain an ongoing issue” and she believed that it was “unlikely [the applicant] will be able to lose the amount of weight required by non-surgical means”.
Associate Professor Waller’s report dated 31 July 2020 stated that he is supportive of the applicant proceeding with a gastric bypass procedure as all other measures she had employed to reduce her weight had failed.

Having regard to all the matters set out above, I am satisfied that the proposed treatment is reasonably necessary, in particular for the following reasons:

(a)    the applicant has a long history of right knee pain, incapacity and treatment as a result of the injury. Further, the applicant has complex regional pain syndrome in her right knee which is chronic and ongoing;
(b)    the applicant is classified with Grade 3 Obesity Condition and has been diagnosed with Gastroesophageal Reflux;

(c)    the proposed surgery is appropriate to address the applicant’s Obesity Condition and Gastroesophageal Reflux;

(d)    the cost of surgery quoted by Dr Kuzinkovas has not been challenged;

(e)    the surgery is likely to be effective to address the applicant’s Obesity Condition and Gastroesophageal Reflux;

(f)    there is no alternative treatment which is likely to be effective for the applicant to achieve significant weight loss, and

(g)    there is acceptance by medical experts of the treatment being appropriate and likely to be effective.

Does the need for the proposed treatment arise as a result of a work injury?

A commonsense evaluation of the causal chain is required. In Kooragang Cement Pty Ltd v Bates[6], Kirby P (as His Honour then was) stated:

“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[7]

[6] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[7] (1994) 10 NSWCCR 796 at [810].

In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”.

[8] [2015] NSWWCCPD 49 at [57].

The respondent submitted that the need for the surgery was caused by excessive calorie intake rather than the injury.

I note that Dr Kuzinkovas stated (in his report dated 1 February 2017) that he could not say that the applicant’s Obesity Condition arose from her injury. However, he does not exclude that possibility.
I do not need to be satisfied that the injury was the only, or even a substantial, cause of the need for the surgery.
I am satisfied that the injury materially contributed to the need for the treatment on the basis of the evidence and findings set out above and in particular for the following reasons:

(a)    there is considerable uncontested evidence that the applicant has experienced and continues to experience significant right knee pain, mobility difficulties and psychological effects as a result of the injury;
(b)    further, as a result of the injury, the applicant has been required to take medication which can cause weight gain;
(c)    Dr Shari Parker, Rehabilitation Physician, opined that the applicant’s weight gain can be directly related to the consequences of her accident and its repercussions with inactivity and inability to exercise following her surgeries and the complication of complex regional pain syndrome;
(d)    Associate Professor Waller opined that the applicant’s injury to her right knee has caused her significant problems with mobility which has contributed to her weight gain. He also opined that some of the analgesic and psychotropic medications that the applicant had taken over the years have also contributed to her weight gain. Although Associate Professor Waller properly acknowledged that he is not an expert in the metabolism of weight gain, his views accord with common sense;
(e)    it is also consistent with the applicant’s evidence that exercise was a significant element of her historical management of her weight;
(f)    further, Dr Shari Parker opined that the applicant’s Obesity Condition is directly contributing to her ongoing disability and non-progression of recovery of the injury by adding extra load to her injured leg;
(g)    having regard to the evidence of Dr Parker, I accept the applicant’s submission that the injury has caused the applicant to be unable to bear her increased weight on her injured right knee.

Accordingly, I am satisfied that the need for the proposed treatment arose as a result of a work injury.

CONCLUSION

I am satisfied, having regard to the considerations identified in Diab v NRMA Ltd[9] and Rose v Health Commission (NSW)[10] that the surgery proposed by Dr Kuzinkovas is, therefore, reasonably necessary.
[9] [2014] NSWWCCPD 72.
[10] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
For all the reasons above, I accept that the surgery proposed by Dr Kuzinkovas is reasonably necessary as a result of the injury.

SUMMARY

In summary, the following findings and orders are made:
The Commission determines:
a. The “Roux-en-Y Gastric Bypass Procedure” proposed by Dr Kuzinkovas is reasonably necessary as a result of the injury on 8 April 2005.
The Commission orders:
b. Respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the 1987 Act.

Karen Garner
MEMBER

14 April 2021