A case decided on 28 March 2018 [1] on appeal in the Workers Compensation Commission provides guidance on this controversial topic. Sam Baldacchino (“Sam”) suffered an injury to his left knee in 1999 whilst working for Pacific National Pty Ltd then known as Freight Corp. Sam underwent an arthroscopic medial meniscectomy the same year.
On 12 April 2013 Sam accepted a lump sum compensation payment for 15% loss of use of the left leg at or above the knee and another sum for pain and suffering (now no longer available to most workers). Sam continued to work for the employer until 2014.
Shortly after, Sam attended an orthopaedic surgeon and was diagnosed with post traumatic arthritis as a result of his previous knee injury. The surgeon sought approval for the cost to perform left total knee replacement surgery from the employer. The employer declined to pay for the surgery as they were not convinced Sam had suffered injury arising out of, or in the course of his employment, or that the surgery was reasonably necessary as a result of the previous injury, and that his entitlement to medical expenses had ceased many years ago especially since he had reached retirement age.
Sam maintained that the surgery was reasonable and necessary and resulted from the injury in 1999. He further claimed that a total knee replacement is an “artificial member/aid” and his employer was still liable to pay for this treatment. He filed an application to resolve the dispute in the Workers Compensation Commission (“the Commission”).
On 31 July 2017, the matter came before an Arbitrator for hearing and a Certificate of Determination was issued on 2 August 2017, which confirmed that the total left knee replacement was reasonably necessary as a result of the injury sustained in 1999. However, the issues as to whether the employer was liable to pay for the surgery was listed for hearing on 11 September 2017.
In order for the Arbitrator to find in Sam’s favour, Sam had to prove that the total knee replacement surgery falls under either an ‘artificial member’ or an ‘artificial aid’ in accordance with Section 59A(6) of the Workers Compensation Act 1987 Act AND that he was not excluded because he had reached retirement age.
The Arbitrator found in Sam’s favour, finding:
- Sam’s total left knee replacement was reasonably necessary resulting from the 1999 injury.
- The proposed surgery falls within the meaning of ‘other artificial aid’ in s 59A(6) of the 1987 Act
- Sam’s claim was not an existing claim as his lump sum claim was made after 1 October 2012, meaning he retained an entitled to artificial aids for life, not just until retirement age
- The employer is to pay for the costs of the total knee replacement.
The employer appealed this decision to the Commission arguing that the Arbitrator was wrong to conclude that a knee replacement was an ‘artificial aid’. The State Insurance Regulatory Agency (“SIRA”) was invited by the Commission to provide submissions on this issue. SIRA provided submissions in support of Sam’s claim.
Deputy president Snell, after providing lengthy reasons decided that the original Arbitrator’s interpretation of s59A(6)(a) was correct, stating “If a worker required an artificial foot, or leg below the knee, the prosthesis would be an artificial member” and therefore part of a leg that can’t be considered a whole member “must be an artificial aid of a similar kind.” He accepted SIRA’s submission that “a total knee replacement involves exactly that step, except that it happens below the flesh.” He confirmed that a total knee replacement is an artificial aid.
Sam’s story highlights how important it is to obtain advice from an experienced workers compensation solicitor if an injury subsequently results in the need for surgery such as a total knee replacement, artificial member, eyes or teeth many years later.
Your livelihood is important, so if you have been injured at work you should get timely advice from an experienced lawyer about your rights and entitlements. Our friendly team has many years of experience in workers compensation and other personal injury claims.
[1] Pacific National Pty Ltd v Baldacchino [2018] NSWWCCPD 12
