NSW Court of Appeal upholds knee replacement ruling that rewrites NSW’s Workers’ Compensation Laws and gives hope to other injured workers
Published on November 26, 2018 by Peter Lleonart
Court of Appeal upholds that ‘knee replacement’ is an ‘artificial aid’
The NSW Court of Appeal has upheld an earlier decision of the Workers Compensation Commission which found in favour of an injured NSW railway worker being able to claim compensation for a knee replacement deemed medically necessary as a result of a workplace injury he suffered 17 years earlier.
Carroll & O’Dea Lawyers ran the landmark case which opens the way for injured workers across the state to claim compensation in similar circumstances.
“The Court of Appeal upheld the interpretation by the Commission of the phrase ‘artificial aid’ so as to include a knee replacement”, said Carroll & O’Dea Lawyers’ Peter Lleonart.
“This decision now means compensation is now possible for injured workers across the state whose injuries worsen over time.
“Any worker who now requires knee replacement surgery as a result of a deteriorating workplace injury, no matter how long ago that injury occurred, could now be eligible.
“Indeed it is now also very likely that any person requiring any other type of joint replacement from an injury, such as for a hip or shoulder, will be compensated, no matter how long ago the injury occurred, assuming, of course, the need for the procedure can be related back to their injury.
The man, now aged in his 60s, was injured when working for Pacific National. He suffered a knee injury that ended his career and that over time became progressively worse.
Unfortunately under 2012 amendments to NSW Workers Compensation laws the capacity to seek compensation for ongoing medical treatment of workplace injuries that subsequently deteriorate over time, were significantly reduced.
Carroll & O’Dea Lawyers helped the man challenge that ruling that he was not entitled to be compensated for a knee replacement despite clinical evidence in 2016 that the deterioration of his knee was directly related to the origin injury in 1999.
The action launched in the NSW Workers Compensation Commission was successful in having knee replacements included in the definitions of ‘artificial aid’ and ‘artificial member’.
Only a very limited number of defined medical treatments are not subject to strict time limits”
In a precedent setting decision that has ramifications for or injured workers across NSW, the Commission found the man’s knee replacement was both necessary as a result of the original injury and that the planned surgery fell within the definition of ‘artificial aid’.
The NSW Court of Appeal has now upheld this decision.
