Taylor v M L Ellston & R J Ellston

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Taylor v M L Ellston & R J Ellston [2023] NSWPIC 339
APPLICANT:	Brian Taylor
RESPONDENT:	M L Ellston and R J Ellston
Member:	Christopher Wood
DATE OF DECISION:	12 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60 expenses; whether laparoscopic sleeve gastrectomy surgery was reasonably necessary as a consequence of an accepted workplace injury; pre-existing obesity; causation; and whether there were different lower cost treatments available to the accident; absence of detail concerning alternative treatments and cost of same; applicant had battled to maintain weight loss before and after accepted workplace accident; consideration of common sense causation principles; Kooragang Cement Pty Limited v Bates considered Held – applying common sense causation principles and accepting as a witness of credit; the cost of surgery was reasonably necessary as a consequence of the accepted workplace accident; award for the applicant; the respondent is ordered to pay for the costs of surgery pursuant to section 60; Kooragang Cement Pty Limited v Bates, Casey v New South Wales Police Department; Briginshaw v Briginshaw [1938] HCA 34, Rose v Health Commission and Diab v NRMA Limited mentioned.
determinations made:	The Commission determines: 1. The applicant’s laparoscopic sleeve gastrectomy surgery was reasonably necessary as a consequence of an accepted work placed injury on 28 February 2020. 2. The respondent is to pay the applicant’s costs of the surgery, being $25,850, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Brian Taylor, worked as a driver/crane operator with the respondent from approximately 2015.
It was common ground between the parties, and certainly the applicant has not shied away from it in his various statements, that he was a man of larger stature weighing up to and on occasions, in excess of 160kg.
He says that on 28 February 2020 he was climbing into his truck when he fell backwards, landing on his left knee. His weight had not previously bothered him.
He ceased working thereafter and his injury was accepted as compensable by the respondent.
The applicant was referred to various medical practitioners for advice in relation to ongoing knee pain. Because of his size and other co-morbidities it was suggested he needed to undergo a “laparoscopic sleeve gastrectomy”, otherwise known as gastric banding surgery (banding surgery) before undertaking recommended knee surgery.
The respondent declined to pay for the costs of such surgery which the applicant eventually funded out of his own superannuation fund.
Since that time the applicant has returned to full time employment and has not yet undergone proposed left knee surgery.
The applicant contends that the banding surgery was reasonably necessary as a consequence of his accepted work-related left knee injury. The respondent disputes this and says that he was pre-disposed to such procedure and the accepted work place injury did not materially contribute to the necessity for surgery.

ISSUES FOR DETERMINATION

The parties are agreed that the only issue for determination by the Personal Injury Commission (Commission) is whether the costs of the banding performed by Dr Ahmed on 22 April 2021 were reasonably necessary as a result of the injury sustained to the applicant’s left knee on 28 February 2020.[1]
[1] See direction in Commission proceedings W1225/22 p22 of ARD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant had previously sought to recover the costs of a proposed left knee surgery in matter number W1225/22. That application was withdrawn on 9 July 2022 and fresh proceedings in respect of the agreed matter in dispute were listed before me for teleconference on 6 April 2023.
Ms Guittari of Turner Freeman appeared on that occasion for the applicant and
Mr Maakasa of McCabes appeared for the respondent.
The respondent at that stage wished to conduct further investigations with the question in dispute remained open. Orders were made referring the matter to conciliation/arbitration on 23 May 2023 at which time counsel, Mr Horan, appeared for the applicant. Ms Oliver, solicitor, appeared for the respondent with a representative of the respondent’s insurer.
Ms Oliver advised me that counsel, Mr Grimes, had been briefed to appear but due to what was described as an “administrative error” in Mr Grimes’ chambers, he was not aware of the listing. Whilst it was not ideal and consideration was given to having Ms Oliver argue the respondent’s case, in the interest of procedural fairness to both parties and with the applicant’s counsel’s not opposing, it was agreed that Mr Horan would address for the applicant and Mr Grimes would be granted the opportunity to make written submissions with the right of reply being extended to Mr Horan.
Unfortunately, although being activated, Mr Horan’s oral submissions were not audible on the Commission’s Microsoft Teams IT platform. As a result, I issued a fresh direction for written submissions by each party. These have been received and are on the Commission’s file. The applicant did not avail itself of the opportunity to make any further submissions in reply to those of the respondent.
For the sake of completeness, I note I am satisfied that the parties were not able to achieve resolution of their differences and they understood the matters upon which the Commission has been asked to decide.

EVIDENCE

There is voluminous material before the Commission, much of which is irrelevant to the question under consideration.
No application was made to lead oral evidence.

Applicant’s evidence

Four statements have been provided by the applicant, variously dated 25 May 2021,
[2] ARD pages 1, 5, 6 and 10 respectively.
15 June 2022, 12 September 2022 and 27 February 2023.[2]
The applicant left school in year 10 and while completing a trade certification as a plumber, he has worked for a truck driver most of his working life. He was employed by the respondent from approximately 2015 and drove tabletop trucks which carried a crane on the back of them.
He says that on 28 February 2020 he was climbing the stairs into the cabin of his 12-tonne truck when he fell approximately 2m to the ground landing on his left knee. He made a claim for workers compensation on that day which has been accepted by the respondent.
The applicant who describes himself as being a hardworking, faithful employee said he continued to work but in July 2020 while walking over uneven ground during the course of his employment, he rolled his left ankle. He says he was unable to work following that injury.
The applicant sought treatment from his general practitioner, Dr Senthil Govindarajan, who referred him for scans with the applicant subsequently coming under the treatment of
Dr Michael Stenning, an orthopaedic surgeon, with a preliminary diagnosis of a tear to his left meniscus.
The applicant wore a moon boot on his left ankle and used crutches because he was unable to fully weight bear.
On 6 July 2020 Dr Stenning confirmed a medial meniscal root attachment tear and recommended arthroscopic repair. As at that date, the applicant said he weighed approximately 160kg and had put on 15kg since his accident.
Dr Stenning recommended weight loss prior to undergoing the arthroscopic procedure. The applicant said that he was struggling to lose weight because of the restrictions on his movement because of his left knee and ankle injuries.
Dr Stenning, in consultation with Dr Govindarajan, advised the applicant that it was critical for him to lose weight before undergoing any orthopaedic procedures.
The applicant was referred to Dr Sulman Ahmed who recommended he undergo banding surgery. Around that time the applicant also received a second opinion in relation to his knee and ankle injuries from Associate Professor Sol Qurashi who like Dr Stenning recommended an arthroscopic procedure.
In addition to the three preceding specialists, the applicant has also been seen by Dr Todd Gothelf for medico legal purposes.
The applicant notes that following referral to two specialists on behalf of the respondent’s insurance company, Drs Wallace and Edwards, he was advised that the insurer would not pay for the banding surgery proposed by Dr Ahmed. After obtaining input from Dr Charles New at the request of his solicitors, the applicant decided to proceed with the surgery which took place on 22 April 2021. Since having that surgery, the applicant has lost significant amounts of weight, some 70kg, and has not had to undergo knee surgery.
The second statement provided by the applicant on 15 June 2022 records that he has lost approximately 63kg and had been able to obtain employment as a warehouse person/driver as of March 2022. He works full time despite having ongoing knee pain.
The applicant’s third statement dated 15 September 2022 addresses some of the controversy in relation to the extent of his weight gains and losses. It sets out in chronological form over several pages his consultations with various treating doctors from 2000 to the present and does not avoid reference to his other medical conditions.
On 7 June 2000 the applicant weighed 120kg; by 27 August 2012 he weighed 150kg and by 29 April 2019 he weighed 163kg. Shortly after that time he consulted with
Dr Govindarajan who discussed with him issues going to diet, exercise and weight loss and was also referred to a cardiologist. By 6 July 2019 the applicant had lost about 25kg by dieting and some lifestyle modifications.
He continued to attempt to lose weight and was consulting with a cardiologist.
As at 24 December 2019 his weight had increased again to 158.4kg and the applicant says he was struggling to maintain a diet with small portion sizes.
By 6 July 2020 when he saw Dr Stenning following the workplace accidents referred to, the applicant weighed 160kg. His weight reached its maximum level around January 2021 when he underwent a transthoracic eco cardiography at Blacktown Hospital and weighed 170kg. He was told he needed to lose weight prior to the laparoscopic sleeve gastrectomy procedure by Dr Ahmed and his weight was down to 158kg just before surgery.
In the time since the surgery the applicant’s weight has progressively dropped to the point that he records that since surgery he now weighed 110kg.
A final statement dated 27 February 2023 records the fact that whilst the applicant may require knee surgery in the future, it is now nearly two years since he had the banding surgery and he feels at present there is no need for him to consider surgery to the left knee. The applicant is able to manage his symptoms by stretching and with pain relief mediation.

Applicant’s medical evidence

The medical evidence appearing in the Applicant for Review of Decision (ARD) is largely corroborative of the applicant’s statement. There are several reports from the applicant’s treating specialists and his treating practitioners, some of it is not relevant to the matters under consideration.

Dr Senthil Govindarajan

Dr Govindarajan is the applicant’s treating general practitioner. He has provided two reports to the applicant’s solicitors in evidence as well as his clinical notes, including some diagnostic reports.[3]
[3] ARD pages 50, 51 and 52 – 90 respectively.
The first report confirms the fact of the applicant presenting to Dr Govindarajan with left knee and ankle pain following a twisting injury at work. The report records the applicant as having been in constant pain with restricted mobility. The applicant’s movement and carrying capacity were restricted.
Dr Govindarajan noted that the work injury was a major contributing factor to the applicant’s symptoms and at that stage he was waiting on surgery to his knee and ankle, being unlikely to get better without it.
The second report responds to specific questions put to Dr Govindarajan. Although those questions are not in evidence, the report is largely self-explanatory, focusing on the applicant’s weight and body mass index (BMI). Dr Govindarajan records the applicant’s pain was so bad that he needed surgery for his left knee, but this could not occur until he lost a significant amount of weight in short duration. Banding surgery was the option for him to lose weight quickly and the applicant chose to have the surgery done.
Dr Govindarajan goes on to record at the time of writing that the applicant had lost approximately 50kg, reducing the strain on his left knee.

Dr Michael Stenning

Dr Stenning wrote a short report to Dr Govindarajan in the form of a letter dated
[4] ARD page 29.
6 July 2020, which is in evidence.[4] Dr Stenning took a consistent history and records that the applicant “is of large stature weighing 160kg and 180cm tall”.
Dr Stenning reports that an MRI demonstrated a tear through the posterior horn of the medial meniscus. He records that the proposed treatment would be arthroscopic repair but there is serious risk associated with such surgery due the applicant’s weight and indeed possible failure of the repair when the applicant resumed weight bearing.

Dr Sulman Ahmed

Dr Ahmed saw the applicant in relation to potential surgery for weight loss. He reported back to Dr Govindarajan by way of letter dated 20 October 2020.[5] It records the fact of the applicant struggling with his weight for a long period but not being too bothered by it until he had his fall.
[5] ARD page 30.
Dr Ahmed notes that the applicant was certainly morbidly obese. The “ins and outs” of surgery were discussed; further tests were required before Dr Ahmed would proceed with surgery.
The next report from Dr Ahmed to Dr Govindarajan[6] notes the necessity for further cardiologist involvement prior to surgery which by that stage the applicant had apparently indicated he was keen to undergo. Dr Ahmed notes that the applicant was aware of his weight impacting upon his health and was keen to do something about this.
[6] ARD page 31.
Dr Ahmed’s report of 1 April 2021 to Dr Govindarajan[7] was written after the applicant had been cleared for surgery by Professor Tan, a treating cardiologist. Dr Ahmed said he required at least a 10kg weight loss over a three week period before proceeding to surgery and Optifast was prescribed.
[7] ARD page 32.
A follow up report by Dr Ahmed two weeks later[8] again addresses some of the complicating factors in the applicant’s presentation.
[8] ARD page 34.
The next relevant document from Dr Ahmed is an operation report on 22 April 2021, confirming a successful procedure. There are then several other reports by way of follow up to Dr Govindarajan monitoring the applicant’s progress and recording a demonstrable weight loss which by 16 August 2021 was down to 133kg from his pre-operative weight.
Dr Ahmed also provided a report to the applicant’s solicitors dated 18 August 2022.[9] This report specifically addresses the necessity for having surgery consequent upon the injury to the applicant’s left knee and ankle. The doctor notes the applicant had struggled with his weight for some time and there is a direct connection with the work accident and a significant increase in weight.
[9] ARD page 38.
In response to the question ‘Did our client’s left knee materially contribute to the need for the gastric sleeve surgery?’ the doctor notes that patients with the applicant’s level of obesity would find it extremely difficult to lose weight through diet and exercise or other medical therapies. Dr Ahmed noted that the other conditions which the applicant suffered would also make it difficult to lose weight without surgery.
In response to the question ‘Would our client have required gastric sleeve surgery regardless of his left knee surgery in 2020?’ Dr Ahmed notes it would be important to know what the applicant’s weight was prior to the accident and what amount of weight gain he had at that time. He said that from what he had been told there had been significant weight gain and it would be reasonable to assume he had decreased mobility as a result of his orthopaedic injuries. Dr Ahmed also comments upon how beneficial the surgery had been and perhaps unsurprising Dr Ahmed says there is no doubt the applicant losing weight attributed to hopefully less stress on his joints and, depending on the state of the joint, improve joint health.

Associate Professor Sol Qurashi

Associate Professor Qurashi has provided three reports, the first being dated
[10] ARD page 41.
22 October 2020[10] which is a report to Dr Govindarajan concerning his first consultation with the applicant on that day. He confirmed, by reference to a MRI scan, that the applicant had suffered a medial meniscus tear and there was some defuncting of his meniscus as a result of his work related injury. Associate Professor Qurashi went on to say “inevitability he is going to wear this knee out very quickly considering his size”.
The risks and benefits and rehabilitation expectations associated with arthroscopic surgery were discussed.
Associate Professor Qurashi saw the applicant again on 22 January 2022[11] and a repeat MRI scan showed significant deterioration and chondral loss compared to the previous year. The doctor links this as being causally related to his work injury and goes on to indicate that he held discussions with the applicant about arthroscopic surgery but it would not be worthwhile given the applicant is ultimately heading towards knee replacement.
[11] ARD page 43.
Non operative treatment was proposed and Associate Professor Qurashi recorded, amongst other things, that the applicant had commenced physiotherapy having “already lost a significant amount of weight in the last year as well”.
Associate Professor Qurashi’s final report is directed to the applicant’s solicitors and responds to a number of questions put by them. The report dated 16 January 2023[12] obtains a number of relevant comments. Associate Professor Qurashi records the fact the applicant had lost approximately 50kg after having the bariatric surgery “which was a big plus”.
[12] ARD page 45.
Associate Professor Qurashi was unequivocal in stating the applicant’s “major incapacity was a result of the injury at work because he had been working satisfactory prior to the injury and was unable to continue to work after the injury”.
The applicant’s solicitors directed the doctor’s attention to him undergoing surgery and asks how beneficial such surgery was. Associate Professor Qurashi notes the loss of 50kg was not just a benefit to his knee but his whole system.

Respondent’s medical evidence

The respondent, apart from putting into evidence clinical records from the applicant’s cardiologist Associate Professor Tan, otherwise relies on reports of Drs Raymond Wallace and Kim Edwards.

Dr Raymond Wallace

Dr Wallace has provided one report to iCare dated 30 November 2020.[13] The histories set out therein are consistent with that previously set out.
[13] Reply page 2.
At the time he says the applicant weighed 165kg with a BMI of 51. The applicant was wearing a boot on his left ankle.
Consistent with other practitioners, Dr Wallace diagnosed a medial meniscus tear to the left knee with a subsequent ligament strain to the left ankle. Dr Wallace accepted that the applicant had been injured during the course of his employment on 28 February 2020. He went on to say that his employment with the respondent was a substantial contributing factor to his current left knee and left ankle conditions and at that time his prognosis was good for a full recovery with conservative treatment.

Dr Kim Edwards

Dr Edwards’ first report is dated 7 December 2020.[14] It addresses a letter sent to him by the respondent’s solicitors advising of the proposed bariatric surgery. Dr Edwards’ report repeats much of the history taken by other doctors and records the same weight as
[14] ARD page 10.
Dr Wallace, i.e. 165kg. Dr Edwards says that the applicant was suffering from a constitutional problem as far as his weight is concerned. He says that the applicant’s weight gain was not a consequence of the applicant’s knee injury. He did not feel the applicant required banding surgery to treat his knee injury however, did regard arthroscopic knee surgery as reasonable.

The next report of Dr Edwards is dated 22 July 2020.[15] This is clearly an error and should read 22 July 2022. The report to the respondent’s solicitors responds to further questions dealing with whether or not the gastric band surgery was reasonably necessary.
[15] ARD page 15
Dr Edwards on this occasion had the benefit of Dr Ahmed’s report dated 17 November 2020.
Dr Edwards had regard to the applicant’s weight loss having fallen following his surgery. He responds saying the additional information did not give him any reason to change his opinion. He saw the surgery as only being necessary as “a possible life saving measure”.
The respondent’s solicitors obtained a further report from Dr Edwards after they came into possession of additional clinical records and medical reports, including those dealing with the applicant’s co-morbidities, such as clinical records of his cardiologist. Dr Edwards notes that he reviewed 272 pages of notes. There is again a recitation of the medical history and the fluctuations in the applicant’s weight. Dr Edwards again says that his opinion is unchanged.
In a short pithy report of 21 September 2022, having access to additional reports of
Dr Ahmed and Associate Professor Qurashi, Dr Edwards records the following:
“This report does not cause me to change my opinion… I considered the bariatric surgery (he had a laparoscopic sleeve gastrectomy on 22 April 2021) reasonably necessary because of his morbid obesity. His morbid obesity is a constitutional problem and is not related to his employment.”[16]
[16] Reply page 22.

SUBMISSIONS

The applicant has made submissions and those have been replied to by the respondent. No additional submissions are made in reply by the applicant.

Applicant’s submissions

The applicant’s counsel notes that the applicant had been told he would need to lose weight before he underwent arthroscopy surgery for the repair of his left knee and between the time of the accident and such advise being given, the applicant had gained 15kg to a weight of 170kg when weighed by Associate Professor Qurashi on 22 October 2020. The applicant’s counsel notes that the weight loss consequent upon the gastric sleeve surgery has improved the applicant’s mobility and reduced his symptoms. He has been able to return to work and no longer claims payment in compensation from the respondent. Nor has he come to surgery at this time with the progression of his left knee injury slowed.
The applicant’s counsel points to various highlighted portions of the applicant’s treating doctor’s reports.
In respect of Dr Govindarajan, the applicant quotes the following:
“Mr Taylor’s pain was so bad that he had to get surgery for the left knee but he could not get the surgery unless he lost a significant amount of weight in short duration. Gastric sleeve surgery was the option for him to lose that weight so quickly…”[17]
[17] Submissions paragraph 11, ARD page 51.
The submissions go on to draw attention to aspects of Associate Professor Qurashi’s reports, the relevant sections the applicant highlights are as follows:
“The loss of 50kgs as a result of his bariatric surgery is an immense benefit not just to his knee but to his whole system… he will still progressively worsen but one would say that if he weighed 170kgs the progression would be a lot quicker than if he weighs 120kgs.”[18]
[18] ARD page 46.
The applicant submits that the medical evidence which outlines the speed of the progression of his knee condition and the applicant’s perception of his ability to control his symptoms are set out in his supplementary statement. When combined with his improvements in immobility and symptoms and the delay in future knee surgery, it is highly probative evidence in support of his claim that the operation was reasonably necessary as a result of the work injury.
The applicant’s submissions then deal with Dr Ahmed’s advice and highlights the following:
“Weight loss surgery is beneficial for a number of reasons not just physical health but also mental health. There is no doubt that Brian is losing weight that will contribute hopefully less stress to the joint…”[19]
[19] Submissions paragraph 16, ARD page 39 – 40.
Dr Ahmed did say that whilst he did not know the applicant’s weight at the time of his injury, from what he was told he had put on a significant amount since the accident.
The submissions go on to contend that Dr Ahmed’s evidence is important because it confirms that he was not too bothered by his weight until his knee injury and only sought out advice in relation to gastric banding when he had been told he had to lose weight to manage his condition.
The applicant says that as a matter of common sense applying principles in accordance with Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452, there is casual nexus between his left knee injury and the necessity for gastric banding surgery. The submissions go on to note that a medical treatment is reasonably necessary if it maintains a worker’s health or slows or prevents deterioration.[20]
[20] Casey v New South Wales Police Department [1999] 18 NSWCCR 592.
The applicant concludes by contending that Dr Edwards’ reports are of limited probative value and particularly the case that given their narrow focus on his views that as the applicant was morbidly obese before his accident, the surgery was not casually related to the left knee injury.

Respondent’s submissions

Contending that the laparoscopic sleeve gastrectomy procedure was not reasonably necessary as a result of the injuries sustained on 28 February 2020, the respondent makes several points.
The respondent draws attention to Briginshaw principles[21] and after addressing relevant tests by reference to Rose v Health Commission[22] and clarification of that decision by DP Roach in Diab v NRMA Limited,[23] says that it accepts that condition can have multiple causes but the applicant must establish that the injury materially contributed to the need for surgery.
[21] Briginshaw v Briginshaw [1938] HCA 34.
[22] (NSW) (1986) 2 NSWCCR 32.
[23] [2014] NSWWCCPD 72.
The submissions go on to take issue with the allegation that the applicant weighed 170 kg as at 22 October 2020. The respondent refers at length to various entries in the medical evidence, the applicant’s statements and the medico legal reports of Dr Edwards to cast doubt on the extent of or of the applicant’s weight gain and also its fluctuation over the years. In respect of the proposition that the applicant was unable to lose weight due to the restrictions with his left knee from the date of the incident, the respondent draws attention to the applicant then losing weight prior to undergoing his surgery.[24]
[24] He was down to 158.5kg at the time.
The respondent disputes Dr Govindarajan’s history that the applicant gained significant weight following his accident by pointing to the weight gain prior to the accident.
It suggests that it is not a fair climate for the acceptance of Dr Ahmed’s opinion because of the variation between what was asserted in the applicant’s statements and the medical evidence. It goes on to suggest that Dr Ahmed’s opinion cannot be accepted because he does not have a complete history and he does not know the applicant’s weight prior to consulting with him.
The respondent disputes the applicant’s reliance upon Dr Ahmed’s opinion to the extent he indicates that patients with significant obesity find it difficult to lose weight through diet and exercise with surgery being indicated because he was not able to lose weight in April 2021 but had previously been able to lose weight in 2019 with diet.
The respondent says that the surgery was not reasonably necessary as the applicant has not provided any evidence of attempting any alternative treatment which is likely to have been cheaper; for example dieting, Optifast shakes or low impact exercise such as water aerobics.

REASONS FOR DECISION

It is common ground that the applicant was morbidly obese prior to the gastro banding surgery. Indeed he is still obese but now back in the workforce, suffering no loss of income and has otherwise been able to defer knee surgery for now.
On any view of it, leaving aside the questions that need to be resolved for the purposes of this decision, the surgery has been a benefit both to the applicant and the respondent. In the case of the applicant significant weight loss and a return to work and the latter (putting aside exposure to the costs of surgery) not having to make ongoing payments of weekly compensation and a deferral of left knee surgery costs.
Section 60 of the 1987 Act relevantly provides:
“(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).”
I note the submissions from both parties correctly refer to Diab v NRMA Limited. In Diab Roche DP, referring to the decision in Rose v Health Commission (NSW), 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[25] (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.
[25] (NSW) (1986) 2 NSWCCR 32.
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 its place in the usual medical armoury of treatments for the particular condition.’”
The Deputy President also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:
“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.”
Deputy President Roche 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.”
There is no serious dispute that the applicant has struggled with his weight over a long period. He was however, able to work and I accept his statement that he was not troubled by his weight in that context. He has also been open about pre-injury weight loss by diet and exercise but struggled to maintain this. This, it is common knowledge, is the lot of many obese people.
The applicant’s weight during the period between the accident and surgery did fluctuate but it always remained at critical level and certainly did not decrease to the pre-injury levels. He was not able to mobilise as he had before.
The only time his weight did drop was immediately before the surgery when put under pressure by his doctor to do so; I note Dr Ahmed’s reports in this regard. Not only was the applicant unable to undergo knee surgery, he was not even able to undergo the banding surgery until he lost weight. He was able to achieve some weight loss in a short period in the lead up to his surgery because he went on a program of Optifast getting his weight down to a point where Dr Ahmed was prepared to proceed (with the surgery). To the extent that the respondent says that this is indicative of the applicant being able to lose weight by other less expensive means (for which it offers no costings) ignores both his uncontested pre-injury difficulties and the “level of necessity” by this stage. The applicant had struggled on from his accident until that time and the only solution proposed by his treating doctors which would ultimately if not relieve his knee symptoms, allow him to undergo the knee surgery accepted by doctors for both parties, was the banding surgery.
The respondent contends that the Commission cannot make a decision on the question of whether the surgery was reasonable in a “fair climate” because Dr Ahmed did not have the complete history and the evidence as it is suggests that the applicant did not undergo significant weight gain following the accident. While Dr Ahmed may not have had the details of the applicant’s precise weight at the time of his accident, the applicant has been candid in relation to his pre-existing and post-accident situation. His weight had in fact gone up and he was certainly well above his weight at the time of his pre-injury attempts to lose weight. I accept him as a witness of credit who always struggled to lose weight and even though obese, he was able to cope with a normal working life and go about his daily activities, albeit with some restrictions.
The accident changed the situation and applying Kooragang Cement principles, the work place accident was at least a substantial contributing factor to a necessity for banding surgery.
I again note the successful outcome and the significant savings for the respondent. While this of itself is not be determinative it is instructive that it achieved a result which with the benefit of hindsight was reasonably necessary.

Alternative treatments

The respondent has proposed that that applicant ought to have pursued cheaper treatments such as dieting, Optifast shakes and low impact exercise such as water aerobics. It is true the applicant had achieved pre-injury weight loss on at least one occasion by such means; diet and exercise but importantly as I have said he was not able to maintain the loss. The accident introduced another variable with further weight gain through an inability to exercise. Optifast shakes had an immediate short term benefit to permit the banding surgery.
In the face of the applicant’s uncontested evidence of his post accident struggles with weight loss which did fluctuate there is no evidence from the respondent as to the costs and potential health risks of an extended weight loss regime of the type for which it contends. Whether the applicant was a suitable candidate to become involved in low impact exercise classes like aerobics given his knee injury is not seriously addressed by the respondent in its submissions of one paragraph on point.
Dr Edwards’ reports do not address the question of alternate treatments for the purposes of weight loss in steadfastly adhering to his initial opinion. This is perhaps surprising as he was prepared to comment on the question of necessity for knee surgery. It would have been possible for the respondent to at least put hypothetical lower cost weight loss treatments to him for comment.
The applicant’s weight loss in April 2021 was a function of the necessity to achieve an immediate weight loss to undergo banding surgery. It was not proposed as a medium or long term solution, rather a condition precedent to the surgery Dr Ahmed had recommended.
The applicant has had a good outcome from the process and again, applying Kooragang Cement principles, I find the treatment was reasonably necessary as a result of his injuries in the course of his employment with the respondent.
There will be an award for the applicant; I find the costs of the banding surgery were reasonably necessary as a result of the accepted workplace injury on 28 February 2020.
The respondent is to pay the applicant’s s 60 expenses of $25,850.

[2023] NSWPIC 339

12 July 2023