The recent decision of Member Michael Wright in Gardiner v Leigh Stoddart and Company [2025] NSWPIC 556 deals with a scenario where the weight of an injured person at the time of the injury was a factor preventing recovering from the significant back injury that had occurred.
Was the insurer liable for the costs of bariatric surgery in these circumstances?
The claim
Mr. Gardiner injured his lower back on 11 August 2020. It was understood that at the time of the injury Mr Gardiner was overweight. (para 13)
In 2022 Mr Gardiner attended on a specialist who made the following recommendations about treatment summarized in paragraph 18:
“Dr Singh in his report of 24 September 2022 was of the view that treatment options for the aggravation of previously asymptomatic L5-S1 disc signal changes, and progressive deterioration, included ongoing pain management, chronic pain management, physiotherapy, weight loss and bariatric surgery and surgical fusion at L5-S1. That is, he contemplated weight loss and bariatric surgery as part of the treatment for the L5-S1 disc injury.”
Mr. Gardiner was advised he would likely need spinal surgery to assist him with recovering from his injury but the specialist also “recommended bariatric surgery and further weight loss, to decrease the risk of complications and improve the outcome following surgery.” (para 18)
Following the spinal specialist’s recommendation, Mr Gardiner consulted with Associate Professor “Sandroussi, who recommended weight loss surgery, being “Sleeve gastrectomy + hiatus hernia repair + diagnostic laparoscopy + gastroscopy”, prior to lumbar spinal surgery.” (para 3)
The dispute
The insurer disputed liability for the proposed weight loss surgery for “reasons relating to disputed consequential weight gain and to pre-existing weight.” (para 4)
The insurers’ dispute seems primarily focused on not being satisfied that Mr. Gardiner had a consequential weight gain condition that “resulted from” the accepted lumbar spine injury.
Their analysis of Mr. Gardiner’s pre-injury weight compared to his weight at the time of the decision did not convince them he had gained a sufficient amount of weight to justifying acceptance of this consequential weight gain condition and paying for the weight loss surgery.
The decision
The Member considered the medical evidence and noted that it was not in dispute that Mr Gardiner would likely need to have spinal surgery in the future. (para 19)
Whilst noting that the condition of weight gain was pleaded as a consequential condition (para 16), the Member also noted that the weight of medical evidence indicated bariatric surgery was needed to assist in facilitating the treatment of Mr Gardiner’s back injury stating at para 17:
“In my view, the correct approach is that the proposed surgery is for treatment of the subject lumbar spine injury, for reasons given below. None of the respondent’s dispute notices, nor the respondent’s submissions at the hearing, nor the respondent’s medical opinion in its case, dealt with this issue.”
Ultimately the Member was satisfied the bariatric surgery was to treat the lumbar spine symptoms and allow the spinal surgery in the future, stating in para 19-20:
19.I find that the proposed bariatric surgery is for the purpose of treating the applicant’s lumbar spine symptoms by way of weight loss and also to enable the proposed lumbar spine surgery to proceed. There was no case from the respondent to address this finding. Dr Sethi did not address this issue.
20.It has been observed that “...employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle...”.[1] In my view, an obese worker who suffers a lumbar spine injury, such as the applicant, is entitled to treatment for that lumbar spine injury in the circumstances of these proceedings.
The Member still did turn to considering whether the consequential condition of weight gain was made out?
The Member agreed that there was evidence of weight gain with an increase from pre-injury of 134.5 kgs increasing to 144 kgs. The Member accepted this was a “significant weight increase of 9.5kg.” (para 23)
Why this case matters?
Disputes about bariatric surgery (and indeed weight loss medication too) are quite common in our industry at the moment.
When weight loss treatment of any kind is recommended by a treating practitioner, the insurer generally will do what occurred in this case and seek to be satisfied there’s evidence of weight gain present before they agree to covering the treatment.
This valuable decision by Member Wright indicates that when appropriate, proving the gaining of weight after injury is not necessarily always going to be necessary.
Treatment to address the weight of an injured person may be appropriate when in circumstances like Mr. Gardiner’s, the weight of the injured person is needing to be addressed to allow for the recovery of a significant injury sustained at work.
If you have had treatment disputed on your workers compensation claim and need advice please don’t hesitate to reach out to our office.
