June 2018

Is a knee replacement an artificial aid?

The meaning of ‘artificial aid’ was discussed in a recent presidential decision in the Workers Compensation Commission. 

The case, Pacific National Pty Ltd v Baldacchino [2018] NSWWCCPD 12, found the meaning of ‘artificial aid’ had to be interpreted generally and more broadly.  

The Commission found the intention of Parliament when introducing s59(6) was to widen the potential benefits and medical and related expenses available to workers beyond the expiry period specified in s59A(1) of the Workers Compensation Act, 1987 (“the 1987 Act”).  

The term ‘artificial aid’ is to be interpreted as anything which is specifically constructed for the worker to enable the effects of the injury to be overcome.

Facts

  • On 27 October 1999, Saviour Baldacchino (Baldacchino) sustained an injury to his left knee while working for Pacific National Pty Ltd. The injury was not in dispute.

  • On 1 December 1999, Baldacchino underwent an arthroscopic medial meniscectomy on his left knee.

  • He subsequently sought approval from the employer/insurer to proceed with left total knee replacement surgery.

  • The employer/insurer denied liability on the basis the treatment was not reasonably necessary and did not result from the employment injury.

  • Baldacchino argued the employer was liable to pay for the left total knee replacement pursuant to s 60 (5) of the 1987 Act.

Relevant Law

Section 59A(1) states compensation, such as any treatment, service or assistance, is not payable to an injured worker after the expiry of the compensation period.

However, s59A(1) does not apply to certain kinds of medical or related treatment listed in s 59(6).

Section 59A(1) does not apply to:

  • The provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),

  • The modification of a worker’s home or vehicle, and

  • Secondary surgery

If the total knee replacement was found to be an artificial aid, it would fall within the exemption of    s 59A(6).  Therefore, the employer would be liable to compensate the worker for the total knee replacement.

Arbitrator’s decision

  • The arbitrator found the total left knee replacement was reasonably necessary as a result of the work injury.

  • The arbitrator determined the worker would not be entitled to the cost of the total left knee replacement, unless the proposed surgery fell within the meaning of ‘artificial members’ or ‘artificial aids’ in s 59A of the 1987 Act.

  • The arbitrator noted the terms ‘artificial members’ and ‘other artificial aids’ were previously contained in ss 10 and 10A of the Workers Compensation Act 1926 (“the 1926 Act”). He said these same terms were inserted into the definition of ‘medical or related treatment’ under s 59 (definitions section) of the 1987 Act.

  • The arbitrator referred to the Court of Appeal decision in Thomas v Ferguson Transformers Pty Ltd (‘Thomas’) which considered the meaning of the term ‘artificial aid’ in s 10 (2) (b) of the 1926 Act, and concluded an artificial aid was anything which was specifically constructed to enable the worker to overcome the effects of the disability.

  • The arbitrator thought there was a presumption certain words which have had their meaning determined by a Superior Court would have the same meaning when inserted in a subsequent statute. Accordingly, the arbitrator adopted the same meaning of ‘artificial aid’ which was applied in Thomas and found the surgery fell within the meaning of ‘artificial aid’ in s 59A(6).

  • The arbitrator ordered the employer pay for the costs of the total left knee replacement.

  • The employer appealed the decision.

Presidential decision

On appeal, the employer submitted:

  • The arbitrator made an error of law in failing to construe s 59A (6)(a) by reference to its text, context and purpose. This caused the arbitrator to err in finding the total left knee replacement was an ‘artificial aid’ within the meaning of s 59A(6)(a) in accordance with the case of Thomas.

Deputy President Snell upheld the arbitrator’s decision and made the following findings:

  • Sections 59 and 59A(6)(a) use the same wording when dealing with compensation for medical, hospital and rehabilitation expenses. Therefore, he felt it was appropriate the term ‘artificial aids’ be given the same meaning in ss 59 and 59A(6)(a).

  • Previously, the definition of medical treatment in s 10 (2) of the 1926 Act, which made reference to the term ‘artificial aids’, was very similar to the current s 59 definition of medical or related treatment in the 1987 Act. He also noted the definition was identical to s 59A (6)(a).

  • He agreed with the Arbitrator’s opinion the repeated use of almost identical terms in these provisions with very little change being made was consistent with an intention that ‘artificial aids’ should be given the same meaning construed in Thomas.

Deputy President Snell found the arbitrator did not err in relying on the decision in Thomas when determining the meaning of ‘artificial aids’.  He found all grounds of the appeal failed and confirmed the arbitrator’s decision.

Lessons learned

  • An artificial aid is something which assists the worker in overcoming the effects of his or her injury.

  • Artificial aids are not necessarily limited to the items listed in s 59A(6)(a) such as crutches, artificial members, eyes or teeth.

Authors: Judith Edwards & Clemance Semaan