Saofaileta v Arthur Tzaneros Discretionary Trust & Luke Webber Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saofaileta v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2021] NSWPIC 520
APPLICANT:	Fred Saofaileta
RESPONDENT:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of bariatric surgery by worker with an accepted back injury; worker had long history of back complaints prior to his injury which was not disclosed in his statement evidence or included in the medical histories of treating and qualified medical practitioners; absence of medical opinion based on an accurate history of the development of the workers back condition; absence of reliable evidence from the worker of the development of his back condition; Held -worker failed to establish that the treatment of his back condition including the need for bariatric surgery was reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Fred Saofaileta (the applicant) has a long history of back pain. On 11 March 2019, he was struck by a forklift in the course of his employment with the Arthur Tzaneros Discretionary Trust & Luke Webber Trust (the respondent) and sustained injury to his back and neck and a psychological injury.
The respondent has accepted liability to pay compensation in respect of the injury and the applicant is in receipt of an award pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
Several treating medical practitioners, including his general practitioner, Dr Chesterfield-Evans, his treating orthopaedic surgeon, Dr Papantoniou and his gastrointestinal surgeon, Dr Cosman, have recommended that the applicant undergo bariatric surgery to facilitate further treatment of his spinal condition.
The respondent’s insurer disputes that the need for bariatric surgery is reasonably necessary as a result of the injury of 11 March 2019. The denial of liability for bariatric surgery is based upon the opinion of Dr Sethi, a gastroenterologist, who saw the applicant on 16 February 2021 and expressed the opinion that the applicant would have required bariatric surgery irrespective of injury. The need for surgery was “entirely unrelated to his employment and to the work injury”.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims the cost of bariatric surgery proposed by Dr Cosman. The respondent does not dispute that bariatric surgery is reasonably necessary. However, it contends that it does not result from the injury.
When this matter came on for conciliation and arbitration on 15 October 2021, Mr Baran of counsel represented the applicant and Mr Parker, of counsel, represented the respondent. The conciliation conference and arbitration hearing were heard over the telephone.
I was informed by counsel that the parties were unable to reach any mutually satisfactory resolution of the question of whether the need for bariatric surgery resulted from the injury of 11 March 2019. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to consider settlement of the claim.

EVIDENCE

The documents before the Commission are as follows:
(a)    the Application to Resolve a Dispute and the documents attached;
(b)    the Reply and the documents attached; and
(c)    the Applications to Admit Late Documents dated 28 September 2021 and 12 October 2021.
While there was debate as to whether the contents of the Application to Admit Late Documents dated 28 September 2021 had been properly served, it was ultimately conceded that they had been served on the respondent’s insurer. Accordingly, there was no objection to any of the material referred to above. There was no application to adduce further written or oral evidence.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of those submissions in these short reasons. Mr Baran took the Commission to several aspects of his medical case which undoubtedly support the proposition that the need for bariatric surgery results from the subject injury. He also referred to the reasoning in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 and the cases referred to therein and to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Mr Parker launched a comprehensive and, at times, impassioned attack upon the reliability of the applicant. He submitted that much of what the applicant said about his weight or about his back symptoms could not readily be accepted by the Commission. He also submitted that much of the applicant’s medical case was based upon an inaccurate account by the applicant of the development of his symptoms.
It will be necessary to return to the submissions of counsel in dealing with the issues in dispute. In the meantime, I propose to set out the evidence of the applicant and the respective opinions of Dr Sethi and Dr Papantoniou.

THE APPLICANT

The applicant’s evidence is contained in written statements bearing date 19 April 2019, 12 September 2019 and 14 September 2021. There was no application to cross-examine the applicant on his evidence at the arbitration hearing. By his initial statement, the applicant states that he underwent a total knee reconstruction of his left knee some eight months previously and that he suffered from “arthritis in my knees”. He denies suffering injury to his low back or shoulders at sport or in a previous accident. He states:
“I do not suffer from any pre-existing lower back, neck or shoulder medical conditions nor have I ever undergone surgery to any of these body parts.”
In respect of his psychological injury, the applicant says that he did not suffer from any pre-existing “psychological or mental health conditions”.
The applicant states that the respondent, a labour hire agency, dispatched him to a number of businesses, mainly in the warehousing sector, where he carried out forklift driving duties. One of these sites was Schenker Logistics at its Yennora site. He was instructed to conduct labouring duties in the containers. In the course of this work he says that he was “bullied” by a forklift driver named Michael. He describes the injury on 11 March 2019 as follows:
“At around 10am that morning, whilst conducting my duties, “Michael” the Forklift driver drove into the container and suddenly hit me with his “grab” forklift tynes in my lower back area.
When he hit me I immediately felt pain and discomfort in my lower back and turned around and told “Michael” who said, “Are you serious?”
Michael then said, “Sorry I didn’t see you”.
My pain and discomfort worsened and I started experiencing shooting pains down my lower left leg and pains to my lower stomach.
As far as I am concerned he did it intentionally and on purpose. There is no reason for him to intentionally hit me.”
The applicant recounts that he stopped working and reported the incident to his supervisor. He was told to wait in the lunchroom. Ultimately, he was transported to a doctor at Eastern Creek, who referred him for further treatment at Fairfield Hospital where he was treated for lower back pain and prescribed pain relief medication.
On 12 March 2019, the applicant attended Dr Hameed where he states he was “treated and diagnosed with a soft tissue injury to my lower back and issued with a WorkCover medical certificate”.
The applicant states that between 12 March 2019 and 25 March 2019, the pain and discomfort in his lower back, neck and shoulders worsened and he stayed at home and rested. He also began to experience “stress and anxiety thinking how I was intentionally hit by the forklift driver”.
On 26 March 2019, he attended the surgery of Dr Chesterfield-Evans at Hurlstone Park who issued him with a “revised Workcover medical certificate” certifying that he had back pain radiating to his legs and pain radiating to both shoulders. He says that he was not comfortable dealing with Dr Hameed who was “not helping me”.
By his supplementary statement, the applicant elaborates on some of the circumstances following the accident. He says that he is being treated by Dr Papantoniou and that he has not been able to work since the day of the accident. He continues:
“I have constant pain in my lower back that radiates down the legs. The pain is there constantly, when I am sitting, walking or sleeping. I also struggle to move my neck like I used to be able to. Sometimes I even get headaches from it. I can’t do anything at home like I used to be able to do. I have put on a lot of weight. I used to be a rugby coach, play tennis and ride my bike, but all I can do now is to stay at home and watch TV. I also have significant pain in both my left and right shoulders that impact me significantly, cause me pain and restrict my movement. I have numbness in my arms and locking in my fingers. Sometimes my legs even become numb all of a sudden.”
By his final statement the applicant elaborates on his treatment. He says that he has been treated by Dr Selwyn Smith, a psychiatrist, who has referred him to two psychologists. He has also been referred to Professor Murrell for “consideration of surgery for my left shoulder”.
The applicant says that he has also been recommended for bariatric surgery by Professor Papantoniou and has been referred to a Dr Cosman for consideration of this procedure. In respect of his weight, the applicant says:
“I have had longstanding issues with my weight that existed before my injury on 11 March 2019. However, my weight never prevented me from playing and coaching sports, including rugby, tennis, boxing and kick-boxing. As compensation, I received such as gift cards from individuals who I coached. Please see attached annexure A and annexure B.
In 2018 I had surgery to my knee in the form of a total knee replacement. I experienced pain and discomfort with this prior to the surgery and it did impact on my ability to be active. After the total knee replacement my weight went up to 156kgs.
Prior to my injury on 11 March 2019 there is no doubt that I was overweight, but I was active and I hadn’t received any medical advice that I required weight loss surgery.
I had discussed my weight with my prior nominated treating doctor, Dr Hameed in the past. Dr Hameed had spoken to me about making lifestyle changes to do with undertaking more physical exercise and my diet.”
The applicant says that immediately prior to the injury he weighed approximately 145 kg. The applicant then recounts the increase in his weight over the two years following the incident so that at the consultation with Dr Lee, an orthopaedic surgeon retained by the insurer, on 8 June 2021, he weighed 160 kg.
The applicant says that he has attempted to lose weight through exercise and diet. He found, however, that he was in pain with exercising and he experienced aggravations of his various orthopaedic complaints. He also says that since the injury he has “eaten more junk food due to depression, stress and not being able to sleep”.
The applicant says that he continues to have nightmares about the incident that caused him injury. He asserts that he experiences suicidal ideation. He also experiences back, neck, leg and shoulder pain which he describes as being constant and describes as being “about 9 out of 10”. The pain makes it “very hard to be active” and his motivation “is very low”.

DISCUSSION & FINDINGS

There is considerable force in Mr Parker’s submission that the applicant is an unreliable witness. The notes of the Haldon Street Medical Centre record that the applicant was diagnosed with a lumbar disc prolapse with radiculopathy in 2013. A note of Dr Yehia of 1 July 2011 refers to a lumbosacral CT scan which demonstrated central canal stenosis at L2/3 & L5/L1 with impingement of the left L5 nerve and the right L4 nerve root.
On 14 December 2011, the Dr Yehia recorded that the applicant reported low back pain radiating to the buttock which was increased with bending.
On 3 October 2012, Dr Hameed reported that the applicant was known to have lumbar canal stenosis with spondylosis. He underwent a CT-guided epidural injection apparently with some diminution of his low back pain.
On 19 November 2012, Dr Hameed recorded that the applicant had “back pain again” and a repeat epidural injection was recommended by the doctor. On 28 November 2012, Dr Hameed recorded that the applicant had ongoing back pain and that the epidural injection “did not help”. On 3 May 2013, Dr Hameed recorded that the applicant had “recurrent back pain”.
On 11 September 2013, Dr Hameed recorded the following:
“Back pain is still no better.
Pain down both LL.
Unable to work.”
The doctor recorded that physiotherapy and injections were “not helping”. He wrote a referral to an orthopaedic surgeon.
On 3 December 2013, Dr Hameed recorded that the applicant suffered back pain with radiculopathy and that he requested “symptomatic treatment”.
On 26 August 2014, Dr Hameed recorded that the applicant suffered from chronic back and right knee pain.
On 13 January 2016, Dr Hameed recorded that the applicant suffered from severe back pain.
On 19 April 2017, Dr Hameed recorded that the applicant suffered from back pain. He recorded the following:
“Getting worsed. [sic]
Radiating down LL.
Numbness”
The doctor diagnosed a lumbar disc prolapse with radiculopathy although he found that the applicant had a full range of spinal movements and was neurologically intact.
On 30 June 2018, Dr Hameed recorded that the applicant suffered from:
“Depression with anxiety.
Multiple physical illnesses.
Getting moody and angry.”
On 12 March 2019, the day after the subject injury, Dr Hameed recorded that the applicant experienced back pain and limping after being hit by a forklift. He recorded that the applicant did not experience pain in the lower limbs or numbness.
On 16 March 2019, Dr Hameed recorded that the applicant experienced:
“Low back pain
Unable to sit or lie down for long
Numbness in both buttocks
Pain and numbness radiating to lower abdomen.”
There is no reference to any of the long history of back pain recorded in the applicant’s written evidence. On the contrary, he states that he did not suffer from “any pre-existing lower back” condition. Dr Soo and Professor Papantoniou, the orthopaedic surgeons who have seen the applicant for treatment, and Dr Lee, who saw the applicant at the request of the respondent, do not record an accurate history of the applicant’s lower back pain.
Dr Soo records that before the injury on 11 March 2019 the applicant “had a history of low back pain which was very mild and never enough to warrant any medical attention or treatment.”
Professor Papantoniou records the following history:
“I note he has never had such a traumatic injury before and prior to the injury he used to coach rugby. He has had to stop coaching as well as work. I note he has put on more than10kg in weight since the work injury.”
Dr Lee recorded that the applicant suffered from cholecystitis prior to the injury. Under the heading “Past Medical History” he records that the applicant has been diagnosed with diabetes “after the injury” and that he takes medication for hypertension. Dr Lee records that the applicant was 140 kg at the time of the injury and is now 160 kg. Seemingly, he was not given a history of back pain before the subject injury.
Mr Parker also attacked the reliability of the applicant’s evidence in respect of weight gain. It is true that the applicant weighed 155 kg on 30 April 2018 less than 12 months prior to the injury. At that time, Dr Hameed described him as “morbidly obese”. The documentary record, however, does establish that the applicant lost weight over the next 12 months as the applicant states his weight at the time of the injury was 145 kg. This is consistent with the hospital record which stated that his weight was greater than 140 kg at the time of his attendance at Fairfield Hospital.
Thus, there is some independent corroboration for the applicant’s evidence that he has been able to lose weight before the injury but has been unable to lose weight in accordance with his doctor’s advice since the injury. On the contrary, his weight has increased.
Dr Sethi who saw the applicant on 16 February 2021 expressed the opinion that the applicant’s weight gain was unrelated to the injury. He said this:
“Mr Saofaileta has pre-existing severe morbid obesity which has resulted in several complications including osteoarthritis requiring knee replacement, hypertension, impaired glucose tolerance, fatty liver and GORD. He has been obese for several years and weighed 145kg pre-injury. He has since gained 12kg in weight since the injury but this is not of clinical significance in the context of his severe pre-existing obesity.”
He also states:
“I consider that the proposed bariatric surgery is reasonably necessary to reduce his severe obesity but it is entirely unrelated to his employment and his work-related injury. Given that he has developed chronic pain, it is likely that this would significantly change after undergoing bariatric surgery.”
I accept Dr Sethi’s account of the applicant’s preinjury condition. It is consistent with the clinical record. In my opinion, however, Dr Sethi misconceives the test for establishing that the need for bariatric surgery results from injury. He assumes that it is necessary for the applicant to establish that his weight gain was caused by the injury. While it is generally the case that a worker seeking an order for bariatric surgery will lead evidence to prove that his weight increased after the injury as a result of a reduction in vigorous physical activity such proof is not a prerequisite for obtaining an order that bariatric surgery is reasonably necessary.
Assume an injured worker was obese before a compensable injury and that his weight remained static after it. If a medical practitioner recommended that he undergo treatment for weight loss as a necessary prerequisite for either conservative or operative treatment to address a work caused back injury, the weight loss treatment must also be compensable. Without that treatment the applicant is unable to undergo the treatment that might cure or ameliorate symptoms resulting from injury. The weight loss treatment is incidental to treatment of the worker’s back condition. It is, therefore, reasonably necessary as a result of the injury although the weight gain was not caused by the injury.
In Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) Burke CCJ stated a number of principles underlying the application of s 60. These principles have, of course, been modified by the different construction placed on the phrase “reasonably necessary” by the Court of Appeal in Clampett v WorkCover Authority (NSW) 2003 25 NSWCCR 99. Nonetheless, they remain persuasive. Among those principles the following appear:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of the injury.
It is reasonably necessary that such treatment be afforded to a worker if this Court concludes, exercising prudence, sound judgement 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.”
In Diab, Roche DP noted that the word “reasonably” in the phrase “reasonably necessary” was intended to “moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone.
I refer to Rose, however, for the purpose of demonstrating that any relevant treatment which has “the potential effect” to alleviate the consequence of the injury may be reasonably necessary. Bariatric surgery can have that effect.
It is the common experience of Commission members that medical practitioners prescribe weight loss as a means of treating back pain. In his report dated 22 September 2021 Dr Greenberg, a gastrointestinal surgeon addresses bariatric surgery as follows:
“It has been my experience this is commonly recommended by spinal surgeons to avoid the excessive weight being placed on the lumbar spine and also if necessary make surgical access a lot easier and prospects of a good outcome are improved.”

While I accept this reasoning, it is more difficult to accept Dr Dr Greenberg’s opinion that there is a causal nexus between the applicant’s injury and the need for treatment of his back condition. He also records an erroneous history of the applicant’s past medical treatment. Under that heading, he records that the applicant was “known to be positive for Chronic Hepatitis B” and underwent a total knee replacement in 2004. There is no history recorded by the doctor of the applicant’s back condition prior to the subject injury. There is no history recorded of the multiple medical conditions noted in the clinical record of the Haldon Street Medical Centre in the several years prior to the applicant’s work injury.
I also do not accept Dr Greenberg’s assertion that the applicant weighed 130 kg immediately prior to his injury. It is inconsistent with the applicant’s own evidence and with the history contained in the clinical records of the Haldon Street Medical Centre. I suspect he has been misled or misunderstood the applicant’s account of his weight before the injury. It is true that he was provided with photographs depicting the applicant before and after the injury. But it is not known precisely when those photographs were taken. They do not cure the defects in the applicant’s history.
The inadequacy of Dr Greenberg’s history is a microcosm of the applicant’s medical case. None of the medical practitioners have any real history of the applicant’s pre-injury health or back pain. Absent such a history, it is not possible to give weight to their opinion of a causal relationship between the applicant’s injury and his present back pain. It is evident that the applicant had some of the same symptoms and signs and required medical treatment for his back prior to the injury. Whether the injury has caused increased pathology in the lumbar spine or caused an increase in the applicant’s symptomatology are questions that can only be answered on the basis of a reasonably accurate history. This is not a case where the applicant had desultory attendances on a medical practitioner for a back condition prior to his injury. He was diagnosed with a lumbar disc prolapse, complained of symptoms in his legs and underwent physiotherapy cortisone injections over a period of some seven years.
To reach a conclusion that the applicant currently experiences more severe symptoms in his lumbar spine than he would have but for injury, it would be necessary for the applicant to address his pre-injury lumbar pain in his statement. As I indicated above, the applicant makes no mention of his preinjury back pain in his evidence. On the contrary, he states that he did not suffer back pain prior to the injury. Plainly, that evidence is untrue. The applicant’s evidence is unreliable.
I appreciate that the applicant has an award of the former Commission. The Application to Resolve a Dispute (the Application) recites that in matter 5267 of 2018 the Commission determined that the applicant suffered a psychological injury as a result of the accident on 11 March 2019. An award was apparently made pursuant to section 60 which may also encompass the applicant’s orthopaedic injuries. In my opinion that would make no difference to the outcome of this case.
It is necessary the applicant to prove that the need for treatment of his lumbar spine that renders necessary the bariatric surgery results from injury. In the absence of medical evidence based upon a reasonably accurate history and in the absence of any reliable evidence from the applicant as to the progression of his lumbar pain, I am not persuaded that the applicant’s present need for treatment of his lumbar spine results from the subject injury. The need for bariatric surgery is intimately connected with the need for treatment of the applicant’s lumbar spine. That is the way his case was put. In the absence of an accepted causal nexus between the injury and the condition of the lumbar spine, the cost of the proposed bariatric surgery cannot be said to result from the subject injury.
I make an award for the respondent.

[2021] NSWPIC 520

10 December 2021