CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Williams v Secretary, Department of Justice [2024] NSWPIC 185	
		
APPLICANT:	Darren Williams	
		
RESPONDENT:	Secretary, Department of Justice	
		
Member:	John Turner	
		
DATE OF DECISION:	12 April 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; alleged consequential condition of obesity caused by inability to exercise and pursue previous active lifestyle as a result of accepted work injury; claim pursuant to section 60 for costs of and incidental to bariatric weight reduction surgery; dispute as to the consequential condition; respondent did not dispute that the surgery was reasonably necessary for the treatment of the applicant’s obesity; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, and Kooragang Cement Pty Ltd v Bates cited; Held – that the applicant put on weight becoming morbidly obese as a result of the accepted injury sustained on 12 June 2019; that the laparoscopic mini gastric bypass surgery performed by Dr Ulvi Budak on 11 August 2021 was reasonably necessary treatment of the consequential condition of morbid obesity.
 	
determinations made:	The Commission determines:
1.	That the applicant put on weight becoming morbidly obese as a result of the accepted injury sustained on 12 June 2019.
2.	That the laparoscopic mini gastric bypass surgery performed by Dr Ulvi Budak on 11 August 2021 was reasonably necessary treatment of the consequential condition of morbid obesity. 
The Commission orders:
3.	That the respondent pay the costs of and incidental to the laparoscopic mini gastric bypass surgery performed by Dr Ulvi Budak on 11 August 2021.

STATEMENT OF REASONS
BACKGROUND
1.	Mr Darren Williams, the applicant, was at all relevant times employed by the Secretary, Department of Justice, the respondent, as a correctional officer. 
2.	The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injuries to his knees and lumbar spine on 12 June 2019 whilst attempting to restrain an unruly inmate in the course of his employment when his right foot became stuck behind a chair which was bolted to the floor. 
3.	The applicant alleges that due to his injuries he was unable to continue his previous lifestyle and gained weight which resulted in him undergoing bariatric surgery on 11 August 2021. 
4.	The applicant claims pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the expenses related to the bariatric surgery including practitioners and hospital fees.
5.	The respondent disputes that the bariatric surgery was reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
6.	The respondent does not dispute that the applicant sustained injury to his right knee in the course of his employment on 12 June 2019.
7.	It is the applicant’s evidence that on 12 June 2019 he was attempting to restrain an unruly inmate when his right foot became stuck behind a chair that was bolted to the floor. His knee twisted as it remained stuck between the chair and the inmate. On 22 March 2021 the applicant underwent a right total knee replacement at the hands of Dr Leong.
8.	It is the applicant’s evidence that due to the physical restriction and incapacity caused by the injury that he sustained on 12 June 2019 he was unable to pursue his previous active lifestyle which included surfing, playing football, taking long walks and weight training and that as a result he gained a significant amount of weight which resulted in the need for the bariatric surgery after the failure of conservative weight loss efforts.
9.	On 11 August 2021 the applicant underwent laparoscopic mini gastric bypass surgery at the hands of Dr Budak. The applicant achieved weight loss following the surgery with the applicant’s weight being recorded on 1 December 2021 at 109kgs.
ISSUES FOR DETERMINATION
10.	The following issues remain in dispute:
(a)	that the applicant has suffered the alleged consequential condition as a result of the accepted injury to the right knee, and
(b)	that pursuant to s 60 of the 1987 Act the bariatric surgery was reasonably necessary as a result of injury sustained on 12 June 2019.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
11.	The matter was listed for conciliation conference/arbitration hearing before me on 
20 March 2024. Mr Dewashish Adhikary, counsel, instructed by Ms Amelia Frisch, solicitor, appeared for the applicant, who was present. Mr Lachlan Robison, counsel, instructed by Ms Nadia Rahman, solicitor, appeared for the respondent. The proceedings were conducted via MS TEAMS. 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 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. 
EVIDENCE
Documentary evidence
12.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents, and
(b)	Reply and attached documents.
13.	The respondent’s Reply was admitted into evidence by consent, having been filed out of time.
Oral evidence
14.	Neither party sought leave to adduce oral evidence.
SUBMISSIONS
15.	The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.
FINDINGS AND REASONS
Consideration and findings
16.	The applicant alleges that as a result of injuries sustained in the course of his employment with the respondent on 12 June 2019 he suffered weight gain becoming morbidly obese due to his inability to exercise and pursue his previous lifestyle. That his attempts to lose weight through conservative non-surgical weight loss measures were unsuccessful and that the laparoscopic mini gastric bypass surgery which was performed on 11 August 2021 by Dr Ulvi Budak was reasonably necessary.
17.	The applicant bears the onus of proof in respect to the alleged consequential condition of obesity.
18.	It is not necessary for the applicant to establish that the alleged consequential condition of obesity is an ‘injury’ within the meaning of s 4 of the 1987 Act. What the applicant needs to establish is that the condition has resulted from the work related injury on 12 June 2019.
19.	The question of whether a consequential condition has been sustained is a question of fact. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain. 
20.	The respondent does not dispute that the applicant sustained injury to his right knee in the course of his employment on 12 June 2019.
21.	It is the applicant’s evidence that as at 12 June 2019 he weighed approximately 100kgs which the applicant claims is corroborated by his general practitioner (GP), Dr Sudhendra Prabhu.
22.	It is the applicant’s evidence that prior to sustaining injury on 12 June 2019 he was surfing, swimming, playing football, walking seven kilometres a day as well as doing four weight sessions a week. It is the applicant’s evidence that he did a lot of physical training which tended to increase his muscle mass.
23.	It is the applicant’s evidence that following sustaining injury on 12 June 2019 he was constantly limping and towards the end of 2019, he started to notice pain in his left knee and low back. That the constant pain in both his knees prevented him from engaging in physical and sporting activity. That his mobility and capacity were severely impaired and that he was unable to walk, run, play sport, weight train or ride a bike. That he was unable to enjoy his usual recreational activities and that he gained approximately 25kg to 30kg in weight due to his inability to exercise for prolonged periods due to his injury. 
24.	The respondent submits that the applicant’s evidence that he weighed approximately 100kg at the time of sustaining injury on 12 June 2019 is not supported by the contemporaneous medical evidence and should not be accepted. In support of this submission the respondent relies on a clinical note of Dr Prabhu from 2 August 2019. 
25.	On 2 August 2019 the applicant attended on Dr Prabhu. Dr Prabhu in the clinical record of the attendance records the applicant’s weight at 124.5kg which in the respondent’s submission is unambiguous contemporaneous evidence which is inconsistent with the applicant’s claim that he weighed approximately 100kg at the time of injury on 12 June 2019.
26.	Mr Adhikary submitted on behalf of the applicant that the record of the applicant weighing 124.5kg on 2 August 2019 is a typographical error on the part of Dr Prabhu. In support of this submission Mr Adhikary drew attention to correspondence from Dr Prabhu dated 20 March 2022.
27.	Dr Prabhu in correspondence dated 20 March 2022 addressed “To Whom it May Concern” notes that he had the applicant’s weight documented at 124.5kg in 2019 which the doctor records “...may well been a typo error on my part. I have documented reasons shared below which clearly show there was weight gain during this period of recovery.” Dr Prabhu records that he had “reviewed his records and can confirm the error, because the letter from profit rehab (Adam Child – Dietitian) dated march [sic] 4th 2020 states his weight was in fact 97.9 kilos with a BMI of 32 and a waist circumference of 102cms.” 
28.	Mr Robison submitted on behalf of the respondent that the explanation by Dr Prabhu that the record of 2 August 2019 as to the applicant’s weight being 124.5kg was a typographical error should not be accepted as the report of the dietitian on which Dr Prabhu relies as proof of a typographical error does not relate to the applicant.
29.	In evidence there is a report from Mr Adam Child, a dietitian with Fuel Your Life, who reported to Dr Katherine Michelmore on 4 March 2020. This appears to be the report which Dr Prabhu has reviewed as the report records a weight of 97.9kg and BMI of 32, however Dr Prabhu referred to a waist circumference of 102cm whilst the report of Mr Child records a waist circumference of 107cm. The report was not addressed to Dr Prabhu, but as noted by the doctor, has come to him as part of reports from Pro Fit Rehabilitation.
30.	The said report from Mr Child however does not relate to the applicant but to a Joe Wilson. The report did not simply misidentify the applicant as the report refers to the date of birth of Mr Wilson, his lifestyle change of becoming a vegan with details being taken of Mr Wilson’s new diet. The report clearly does not relate to the applicant in these proceedings. 
31.	The respondent submits that the opinion of Dr Prabhu that his recording of the applicant’s weight at 124.5kg on 2 August 2019 is a typographical error is tainted by the fact that the document which Dr Prabhu relies on to establish the typographical error does not relate to the applicant and therefore it should be accepted that the applicant did, contrary to the applicant’s evidence, weigh 124.5kg as at 2 August 2019.
32.	I do not accept the respondent’s submission for the following reasons. Dr Prabhu in his correspondence of 20 March 2022 firstly concedes that a typographical error is possible. Having conceded that a typographical error was possible Dr Prabhu then turns to the documents which the doctor believes evidence that an error had in fact occurred. Whilst Dr Prabhu does rely on the report of Mr Child dated 4 March 2020 as evidencing that an error had occurred, that report was not the only document relied upon by Dr Prabhu. Dr Prabhu also noted that the applicant was referred to Dr Budak, bariatric surgeon, in May 2020 and that a note was made of a 25kg weight gain on a Workcover certificate.
33.	Mr Adhikary submitted on behalf of the applicant that there is no evidence that the applicant required drastic weight loss prior to sustaining injury on 12 June 2019. 
34.	It is the applicant’s evidence that prior to sustaining injury on 12 June 2019 he was not considered obese, and it had not been suggested or recommended that he needed to lose weight or undergo bariatric surgery.
35.	The clinical notes in evidence from the Lakeside Medical Practice commence on 25 October 2017 where the applicant initially attended on Dr Gayal Kumarage. From 8 December 2017 the applicant attended on Dr Andrew Murray and Dr Kumarage. On 19 July 2018 the applicant first attends on Dr Prabhu however Dr Murray continued to treat the applicant until 14 June 2019 when Dr Prabhu becomes the applicant’s regular GP. Despite the applicant’s attendance on three different GP’s prior to the subject injury on 14 June 2019 the clinical records contain no record of there being any concerns or issues in respect to the applicant’s weight and no record of the applicant’s weight until the entry by Dr Prabhu on 2 August 2019.
36.	Mr Robison submitted on behalf of the respondent that the weight recorded on 2 August 2019 is a reasonably precise entry. That it is a direct observation of the examination performed at that time and that a GP would take care in the recording of a patient’s weight due to the obvious relevance that a person’s weight would have particularly if it is in the morbidly obese range to a whole host of health issues that the doctor may need to provide treatment for. It was submitted that it makes sense that weight would have been a particularly relevant consideration as at 2 August 2019 as the applicant was being examined in respect of his knee injury and the greater the applicant’s weight the greater the downward force on the knee and therefore the applicant’s weight was an important part of the medical examination.
37.	Whilst there is force in Mr Robison’s submission one would have thought that if the applicant was clearly significantly overweight, being morbidly obese, at least one of the three GP’s who treated him prior to 12 June 2019 would have made some reference to the applicant’s weight. Furthermore, whilst Dr Prabhu records the applicant’s weight on 2 August 2019, and as the respondent’s submits the applicant’s weight would have been of particular significance due to the knee injury, no action appears to have been taken in respect to the applicant’s weight. There is no indication from the clinical note of 2 August 2019 of any discussions being had in respect to the applicant’s weight or that any treatment or strategies for weight loss were recommended. 
38.	It is not until November 2017, approximately five months after sustaining injury, that the applicant’s weight becomes an issue for the applicant’s treating doctors. 
39.	On 7 November 2019 Dr Anthony Leong, the applicant’s treating knee surgeon, provided recommendations to Dr Prabhu in respect to the applicant maximising his non-operative measures which included weight loss and requested approval for the applicant to attend the Integrated Weight Loss Clinic.
40.	On 8 November 2019 the applicant attended on Dr Prabhu. Dr Prabhu in the clinical record of the attendance records “has adv dietitian and EP”.
41.	Possibly as early as February 2020 the applicant is reporting a weight gain of 25kg. Pro Fit Rehab in an undated document records “125kg was 100kg”. This undated document possibly forms part of an initial assessment performed in February 2020. The respondent submits that it is unclear from the record in the Pro Fit Rehab document as to when the applicant is alleged to have weighed the 100kg. Whilst I accept that the record itself does not record or indicate a date for when the applicant was 100kg it appears in the context of the further medical records which will be discussed below that the time which was being referred to was at and prior to the injury on 12 June 2019, the injury in respect to which the applicant was being treated by Pro Fit Rehab. 
42.	As previously noted Dr Prabhu in his correspondence of 20 March 2022 did not only rely on the report of Mr Child dated 4 March 2020 as evidencing that an error had occurred on 2 August 2019 in respect to the recording of the applicant’s weight but also noted that the applicant was referred to Dr Budak, bariatric surgeon, in May 2020 and that a note was made of a 25kg weight gain on a Workcover certificate.
43.	On 27 May 2020 Dr Prabhu referred the applicant to the bariatric surgeon Dr Ulvi Budak. The referral letter refers to bariatric surgery / gastric banding to help lose weight. Dr Prabhu advised that the applicant was booked in for a right total knee replacement surgery and significantly that since the work injury the applicant had experienced weight gain due to lack of exercise and activity which had led to snoring, SOB, lethargy as well as marital and relationship issues. Dr Prabhu suggested that weight loss by means of bariatric surgery would help to get the applicant back to his pre-injury status.
44.	In the context of there being no record of the applicant being treated for weight related issues prior to 12 June 2019, it is in my view significant, that Dr Prabhu in the referral is not just referring to the applicant having experienced weight gain but is also referring to a number of health and marital issues that have arisen as a result of the weight gain. 
45.	On 2 June 2020 the applicant attended on Dr Prabhu by telephone. The clinical record of the attendance records “has put on 25 kilos since surgery”.
46.	On 10 June 2020 Dr Prabhu provided the applicant with a certificate of capacity dated 10 June 2020 in which the doctor noted that the applicant had been referred to Dr Budak to discuss options in respect to weight loss which would help with his pre and post op recovery. The applicant had also put on 25kg due to which he was snoring which was placing strain on his marital relationship with the applicant sleeping on the lounge, also SOB and feels tired.
47.	On 18 June 2020 Dr Budak measured the applicant’s weight at 124kg.
48.	On 13 July 2020 Dr Budak reported to QBE insurance that the applicant had reported to him that he had put on approximately 25kg post his work injury. The doctor noted that the applicant weighed 124kg at that time which was consistent with morbid obesity. The applicant had tried to lose weight through diet and exercise. Dr Budak was of the opinion that as the weight was putting significant pressure on his back and knees the applicant would benefit significantly from weight loss. 
49.	The evidence of the applicant’s wife, Mrs Allison Williams is consistent with the applicant putting on weight after sustaining injury on 12 June 2019. It is the evidence of Mrs Williams that the applicant’s work injury had a major impact on both his physical and mental health due to his inactivity and “major weight gain post injury.” It is also the evidence of Mrs Williams that the applicant ceased playing any sports and exercising post injury. That prior to the injury he enjoyed football and surfing and used to walk long distances to keep fit. It is also the evidence of Mrs Williams that the applicant became very anxious and depressed as a result of his incapacity and weight gain and that his weight gain impacted on their marriage due to his loss of libido and severe snoring.
50.	For the above reasons I am of the view that the weight of the evidence supports that the weight recorded by Dr Prabhu on 2 August 2019 is incorrect and I accept the applicant’s evidence that as at 12 June 2019 the applicant weighed approximately 100kg and that following the injury on 12 June 2019 he gained approximately 25kg in weight due to being unable to engage in his previous physical activities and to exercise for prolonged periods.
51.	As the respondent correctly submitted what this case is really about is a forensic exercise as to what the applicant’s weight was at various points in time more than the expert medical opinion. 
52.	During submissions the respondent correctly and helpfully conceded that it does not dispute that the claimed bariatric surgery was medically necessary by reason of the condition of obesity or that the applicant had failed to explore conservative measures.
53.	I am of the view and find that the laparoscopic mini gastric bypass surgery performed by Dr Budak on 11 August 2021 was reasonably necessary as a result of the injury sustained 12 June 2019 for the following reasons.
54.	I have previously found that the applicant gained approximately 25kg in weight following sustaining injury on 12 June 2019. Dr Anthony Greenberg, general and gastrointestinal surgeon, provided a forensic medical report to the applicant dated 24 January 2023 in which Dr Greenberg provides an opinion that the bariatric surgery was a reasonable option and that the need for the surgery was as a consequence of the weight gain caused by the knee injury sustained on 12 June 2019. Dr Greenberg in giving his opinion observed that obesity is recognised as causing significant health issues including a higher risk of cardiovascular disease, diabetes, sleep apnoea as well as an increase in orthopaedic injuries.
55.	Dr Siddarth Sethi, gastroenterologist and hepatologist, provided a forensic medical report to the respondent dated 19 October 2021. Dr Sethi agrees with Dr Greenberg that the applicant needed to have the bariatric surgery. Dr Sethi is however of the opinion that the applicant’s employment and work injury did not play any causative role towards the applicant’s obesity and his need for bariatric surgery. Dr Sethi reached this conclusion on the basis that the applicant weighed 124.5kg at or around the time that injury was sustained on 12 June 2019 based on the clinical record of Dr Prabhu of 2 August 2019.
56.	Having previously found that the applicant gained approximately 25kg in weight following the injury on 12 June 2019 I prefer the opinion of Dr Greenberg that the bariatric surgery became necessary due to the injury sustained on 12 June 2019. 
57.	I therefore find that the applicant put on weight becoming morbidly obese as a result of the accepted injury sustained on 12 June 2019 and that the laparoscopic mini gastric bypass surgery performed by Dr Ulvi Budak on 11 August 2021 was reasonably necessary treatment of the consequential condition of morbid obesity.