Weight Gain and Compensable Weight Loss Surgery

A Review of Recent WCC Decisions

Weight loss surgery is being increasingly recommended in workers compensation matters. Careful consideration needs to be given to any application for weight loss surgery.

Weight loss surgery, like any surgery, can have complications. It may also result in increased WPI or the need for ongoing medical treatment. It is for those reasons that insurers need to properly examine whether weight loss surgery is compensable.

When is weight gain attributable to a work injury?

Weight gain/obesity can be considered to be a consequential condition where a worker has sustained an accepted physical or psychological injury. The principles relevant to a claim for consequential condition were described in Moon v Conmah Pty Ltd [2009] NSWWCCPD 134, in which DP Roche determined that, in a claim for consequential loss to another part of the body, a worker is not required to prove “injury” within the meaning of Section 4 of the Workers Compensation Act 1987. The worker need only establish that, based upon the common-sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), the weight gain resulted from an accepted work injury.

We have considered some recent cases in which Arbitrators in the Workers Compensation Commission have been tasked with determining whether weight gain was consequential upon an accepted work injury, and we note the following:

In Behnampour v Shein Painting Pty Ltd [2020] NSWWCC 191 the worker alleged that he had gained weight as a result of injury to his knee and lumbar spine as well as a psychological injury. The Respondent obtained reports from Dr Breit, Orthopaedic Surgeon, who expressed that weight gain came down to ‘calories in vs calories out’ and made reference to a ‘lack of self control’ as a causative factor. Arbitrator Bamber was critical of Dr Breit’s opinion. She considered that Dr Breit had failed to take into account that exercise is a fundamental aspect of ‘calories out’ and she found his explanation to be simplistic. She noted that other doctors had referred to loss of mobility and reduction in activity as a cause for weight gain. Further, she noted that it was broadly considered that the worker did not have a good result from his knee surgeries and he had developed a depressive condition which caused him to binge eat. The Arbitrator preferred the opinion of the worker’s treating specialist, who said that weight gain was multifactorial and that the compensable knee injury had been the precipitating event to the weight gain but a cycle had developed where various symptoms, including psychological, were interrelated and breaking that cycle could be very difficult. Arbitrator Bamber found that opinion to be more thoroughly reasoned and well balanced.

Arbitrator Bamber applied the test from Kooragang, which she cited as follows:

“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

The Arbitrator accepted that the Applicant’s injury and subsequent surgeries set in train a series of events. He sustained injury, could not work, he put on weight and developed psychological symptoms. She ultimately attributed weight gain to both being inactive and psychological symptoms.

In Corton v Nariment Pty Limited t/as The Oakes Bakery [2020] NSWWCC 3 Arbitrator Burge determined that the worker had suffered a consequential condition by way of substantial weight gain as result of an accepted injury to his thoracic spine. It was not in dispute that the worker had gained at least 90kg since the injury, which he attributed to being sedentary following the back injury. The worker had been overweight prior to the injury and the Respondent asserted that the weight gain was related to pre-morbid obesity. Arbitrator Burge accepted that the worker had consulted his GP prior to the injury for assistance with weight loss. However, there was irrefutable evidence supporting that the worker’s weight had increased enormously since the work injury and this was sufficient to establish causation.

In Grima v Bursons Automotive Pty Ltd [2019] NSWWCC 418 Arbitrator Isaksen accepted that the worker had suffered a consequential condition in the form of morbid obesity as a result of an accepted lumbar spine injury. It was accepted that back and radiating leg pain had prevented the worker from exercising and had placed significant limitations on daily activities. The Arbitrator preferred the evidence of the worker’s IME, who had taken note of the impact that the back injury had on his lifestyle, to that of the Respondent’s IME who had apparently failed to consider the impact that a sedentary lifestyle had had on weight gain. Arbitrator Isaksen also took note of the opinion of the treating bariatric surgeon, who considered that the work injury had contributed to weight gain.

Taking the above decisions together, in determining whether weight gain resulted from an accepted work injury an Arbitrator is likely to attach significant weight to the opinions of treating practitioners. Consideration is likely to be given to the extent of the impact of symptoms upon lifestyle, whether the workers has had a good result from previous surgeries and whether there are psychological symptoms at play. It seems that arguments about the contribution of dietary choices to the weight gain are unlikely to succeed.

Causation will be established if the Arbitrator is satisfied that the work injury set in train a series of events which resulted in weight gain. This does not, of course, automatically establish entitlement to weight loss treatment, which must be proven to be reasonably necessary in order to be compensable.

When is weight loss surgery reasonably necessary?

A worker claiming the cost of weight loss surgery will need to prove that the surgery is reasonably necessary as a result of the consequential weight gain.

In Behnampour the proposed gastric bypass surgery was considered to be reasonably necessary. The Respondent had suggested that the worker could diet, swim and continue to take Duromine. However, the Arbitrator noted that the combination of such measures has not resulted in sustained weight loss and also that treating specialists supported the proposed surgery. Therefore, she concluded that a surgical approach was reasonable.

In Corton, Arbitrator Burge found the proposed gastric sleeve surgery to be reasonably necessary as a result of the consequential condition. Treating specialists had expressed that weight loss would be essential to improve the worker’s condition. The Respondent argued that the surgery was not necessary as one of the treating surgeons had refused to perform the surgery until the worker had lost weight. The Arbitrator noted that the worker had found a surgeon wiling to operate at his current weight, which overcame that argument.

In Grima, Arbitrator Isaksen found the proposed sleeve gastrectomy surgery was reasonably necessary because it aimed to alleviate the consequences of the worker’s injury by reducing weight that had been gained by him as a result of the work injury. There was also thought to be a chance that it would reduce pain in his lower back and perhaps prevent the need for major spinal surgery. Arbitrator placed great weight on the opinion of the treating Neurosurgeon, who he said was in the best position to comment on the need for surgery.

Overall, it appears that (as is often the case) Arbitrators are likely to place significant weight upon the opinions of treating practitioners regarding the need for weight loss surgery.

It will be relevant to consider whether non-surgical treatment, such as diet, exercise and medication, has been effective. It will also be relevant to consider whether weight loss is likely to reduce symptoms such as pain and/or reduce the likelihood of the worker needing further surgeries for example to the knees or spine.

Before making a decision, insurers should gather evidence from the treating professionals, and consider the need for an IME. It will be important to consider the worker’s pre-injury weight and health, as well as any other factors which may have caused the weight gain. By considering all available evidence, you will be in a better position to determine whether the proposed surgery is compensable.

Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either 4929 9333 or 8297 5900.