Article Category - Compensation Law By Angus Edwards 06 December 2018

The Court of Appeal has confirmed that a total knee replacement comes within the definition of an artificial aid under s.59A of the Workers Compensation Act.

Generally you can claim medical expenses for treatment that is reasonable and necessary, arising from the work injury. In 2015 time limits were introduced in s.59A of the Workers Compensation Act, restricting when medical expenses could be claimed, for a worker whose level of whole person impairment does not exceed 20%.

For example, workers with a whole person impairment of between 11% and 20% can claim medical and treatment expenses for five years from when weekly payments stop, or from the date of claim if no weekly payments have been made.

The good news is that under s.59(6) of the Act the time limits do not apply to:

  1.  the provision of crutches, artificial members eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries)
  2. The modification of a worker's home or vehicle
  3. Secondary surgery

In the Court of Appeal decision of Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281, the Court held that the Workers Compensation Commission Arbitrator was correct in finding that a total knee replacement was an artificial aid. This meant that the worker was able to claim the cost of the surgery, even though he was outside the time limits under s.59A of the Act.

The insurer argued that a total knee replacement was "interference with part of a human body and the insertion of objects which come together as part of an overall [or unified] operation. The insurer argued that the aid must be complete in itself.  However, these arguments were rejected by the Court.

The Court reasoned that there was no difference between a knee replacement and the other types of aids referred to in s.59A(6), in that they all alleviate the injury e.g. a hearing aid alleviates the effects of industrial deafness. The Court found that the surgery for the insertion of the artificial aid formed part of the "provision" of that device.

This is good news for workers who would otherwise be outside the time limits for surgery such as knee or hip replacements. If you have had a claim for such treatment rejected or are not sure of your rights, give our experienced compensation team a call on 1800 650 656 or make an appointment to see us in Bathurst, Lithgow or Oberon. We're here to help!

Angus Edwards | Principal