Good news regarding work-related knee replacements (and possibly more to follow)
A landmark decision has partly lifted the time limit on workers compensation medical expenses in New South Wales.
The Workers Compensation Commission has confirmed that knee replacements are ‘artificial aids’ exempting them from the time limits under the legislation. Other procedures are very likely to follow.
In 2012, the NSW Liberal government placed a cruel and restrictive time limit on claims for workers compensation medical expenses, leaving workers (or Medicare) to bear the brunt of medical expenses for long-term work injuries – even in cases of serious deterioration, like knee replacements.
The time limit ranged from one to five years from the date of the worker’s last weekly benefit payment, depending on a workers level of permanent impairment.
Deputy President Michael Snell handed down the decision of Pacific National Pty Ltd v Baldacchino in the Workers’ Compensation Commission on 28 March 2018, affirming a previous determination by Arbitrator John Harris.
Sam Baldacchino had been working for what was then known as Freight Corp in 1999 when he injured his left knee in the course of his employment. More recently, his injury had deteriorated so significantly that his surgeon recommended a full knee replacement.
The insurer contested whether the claimed surgery was related his injury at work but this was overturned by the Arbitrator. However, this was not the end of the dispute.
Mr Baldacchino was 67 years of age and was not entitled to further weekly benefits. It had been more than five years since the time limits commenced in 2012. For this reason, the insurer also argued that he was out of time to claim surgery under section 59A of the Workers Compensation Act 1987.
Under subsection 59A(6)(a) of the Act introduced in 2015, the time limits do not apply to “the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles”.
The Arbitrator made the determination, consistent with precedents applied to previous legislation, that the words ‘artificial aids’ included knee replacements. The insurer argued that that ‘artificial aid’ only referred to things ‘external to the body’, but this was rejected -false eyes and teeth are included under the exemption but are clearly not external.
On appeal, the Deputy President agreed with the Arbitrator. The Deputy President agreed that older cases on this issue could be applied to the current legislation and also considered the intent of parliament and the rules regarding interpretation of legislation. He found that the Arbitrator made no error and dismissed the appeal.
Curiously, the government participated in the appeal by sending an ‘intervener’ from the Crown Solicitor’s Office to make submissions who argued in favour of the Arbitrator’s decision that knee replacements were exempt from the time limits.
The decision of the Commission may yet be appealed in the courts and so it is important to keep up to date with the development of this issue into the future.
Assuming however that the decision is not overturned, it will mean relief for many injured workers who have been denied critical surgeries due to the operation of time limits under the Act.
Workers that become candidates for full knee replacements long after their injuries will still need to show that their surgeries are reasonably necessary and related to their work, but will no longer be forced to rush into earlier surgeries or languish on public waiting lists because of arbitrary time limits.
More than just knees
Obviously knee replacements are now exempt, but what else may follow? Hip and other joint replacements will almost certainly also qualify, falling into the same definition of ‘artificial aid’.
But what of other surgical procedures that involve inserting artificial parts under the skin, such as surgical meshes, titanium struts and screws and so on?
These remain exciting questions for future cases – only time will tell exactly how far the ‘artificial aid’ argument will run.
Seek legal advice
If you’ve injured yourself at work, had a claim denied or you need advice about a work-related injury, please contact our experienced workers compensation lawyers at Turner Freeman on 13 43 63.