A 45 year old worker who injured her knee at work has been successful in claiming nearly $18,000.00 as part of her workers compensation claim for the cost of gastric bypass surgery after arguing that she needed to lose weight to reduce the pressure on her knees.

Young female doctor measuring waist of overweight woman with centimeter in clinic

Injured At Work

The woman, who described herself as a ‘comfort eater’, had already considered lap-band surgery before she was injured at work, but after she injured her knee at work her orthopaedic surgeon recommended weight loss to assist with the management of her injury.  She had tried other means to lose weight which had been unsuccessful.

The South Australian Employment Tribunal had to determine whether the cost of the surgery was ‘reasonably incurred in consequence of the accepted injuries to her knees’.  The workers compensation insurer argued that the surgery was not incurred in consequence of a work injury and that in any event the cost would not be a reasonable expense.


The woman had started to gain weight after the birth of her first child and this increased following the birth of her second child.  She described herself as a ‘comfort eater’.  In August 2008 (over two years before she was injured at work) the woman, who weighed 107kg at that time, began speaking with her doctor about the option of lap band surgery.  A year later her weight had increased to 115kg.  She then began to steadily reduce her weight using an eating programme and exercise to the point that by mid 2010 her weight had been reduced to 96.5kg, although she put on more weight before suffering the injury at work.

In March 2011 the woman was injured at work when she tripped and fell heavily onto her left knee.  The injury prevented her from continuing her walking exercise and within two months her weight was up to 110kg.  Her orthopaedic surgeon advised the woman to perform exercises to strengthen the muscles around her knee and to lose weight so as to reduce pressure on her knees.  Although by September 2011 her weight was still 110kg, by February 2013 it had increased to 116kg.  Her doctor recommended a trial of medication intended to reduce the amount of food eaten and WorkCover paid for the cost of that medication.  By August 2013 her weight had reduced to 94.8kg.

As the woman lost weight, her left knee condition improved and she was able to resume walking, however in August 2013 she suffered an aggravation of her knee injury while doing the washing at home.  When hanging out the washing her shoe stuck onto the floorboards and she twisted and jarred her knee.  This caused her to stop her walking exercise and her weight steadily increased from then on.  She also stopped taking the medication because she said it caused unbearable headaches.

By October 2014 the woman was experiencing pain in her right knee due to ‘overcompensating’ for her left knee.  It was recommended that she undergo an exercise programme at a gym along with an eating plan.  She started this but the exercises aggravated her left knee condition.

The Overweight Workers Compensation Claim

In July 2015 the woman had to undergo surgery to her left knee and as a result she was in a wheelchair for three months.  Since then her weight increased, peaking at 119kg by the time she had the gastric bypass surgery in April 2017.

The woman’s case was that this procedure was a last resort after trying other methods to lose weight.  The workers compensation insurer refused to pay for the surgery in advance.  The procedure was apparently successful because by the time her case went to trial her weight was down to 75kg.  She gave evidence that her weight loss contributed to an improvement in her overall level of functioning, so that she no longer had problems standing for long periods and her walking has improved.  She had also been able to stop taking prescription pain relief medication.

Despite her weight loss, the woman’s right knee pain resulted in the need for surgery however her recovery from that procedure was much quicker.

No doubt there are a lot of injured workers who experience weight gain as a result of being unable to remain as active as they were before being injured at work.  It is interesting that one of the specialists who gave evidence in this case said that the evidence is against non-surgical weight loss, and that, “[W]eight loss in completion of a weight loss program was only between two and three kilos, which makes it almost pointless.”  He gave evidence that between the three surgical options available, being gastric bypass, lap band surgery and stomach sleeve, gastric bypass was the best and most effective as well as the longest lasting.

In cases like this the Tribunal is required to take a ‘common sense evaluation’ of the evidence to determine any link between the original work injury and the proposed expense.  The Tribunal found that that diet and exercise programmes would not solve the woman’s weight problem and the gastric bypass surgery was the most reasonable weight loss option for her taking into account the amount of weight she needed to lose to reduce pressure on her knees.

The Tribunal Findings

In concluding that it was reasonable for the woman to have undergone the gastric bypass surgery, one important thing that the Tribunal noted was that an injured worker is not obliged to choose the cheapest treatment available, or the most conventional, but must be allowed reasonable freedom of choice.  If a worker acts on apparently reputable medical advice they will be taken to have acted reasonably even if the advice turns out to be wrong.

Many people who have been injured at work are unaware of their rights regarding treatment options, or of what other costs they might be entitled to claim as a result of their work injury.  If you have been injured at work why not arrange a free initial consultation with a workers compensation lawyer at Websters Lawyers to find out what options are available to you?  Call us on 8231 1363 or submit an enquiry on line at our Contact Us page.

Schmidt v Department of Premier and Cabinet [2018] SAET 182





call now

*Conditions Apply


Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner


Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.


West Ryde NSW

Helpful, explained fully, patient, excellent service.



Patient and helpful in explaining the process.



Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.



Making my will was effortless on my part, with everything explained clearly. Well done to all.



Great service, professional, explains things clearly, definitely recommend Websters Lawyers.


Upper Hermitage

Patient, professional, good communication about procedures and probable outcomes.



Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.


Christie Downs

All in all my experience was great. Thank you for your time and expertise.


Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.



Practical and very helpful. Reasons and explanations given where needed



I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.



The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.



[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.


Golden Grove


I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.



It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.


Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.


Wynn Vale

[My lawyer] was excellent. 



Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!


Ingle Farm

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].



[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.



[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.



Professional. Smooth Transaction. 


Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.



This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.


Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair


With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park


Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys


I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

Dianne, Lynton

Solid, to the point, no hustle. Highly recommend.

George, Windsor Gardens

Contact us

Adelaide Office :
T: ( 08 ) 8231 1363
F: ( 08 ) 8231 5529

Ridgehaven Office :
T: ( 08 ) 8395 8000
F: ( 08 ) 8395 8222

Smithfield Office :
T: ( 08 ) 8487 0150
F: ( 08 ) 8395 8222

© Copyright WebstersLawyers.com 2017 All Rights Reserved
Website By A to Z Marketing