Taking the bite out of section 59A

Key Points

• Just because section 59A has been applied to a claim does not automatically mean that a worker is not entitled to any medical and related treatment into the future.

• If medical orrelated treatment comes within the meaning of “artificial aid”, section 59A(6) operates to entitle the worker to that treatment (provided it is reasonably necessary, of course).

• An “artificial aid” is anything internal or external to the body which has been specially constructed to enable the effects of the disability to be overcome.

Section 59A of the Workers Compensation Act 1987 disentitles workers to ongoing medical or related treatment after they cease to be entitled to weekly payments. However, the recent Presidential decision in Pacific National Pty Limited v Baldacchino [2018] NSWWCCPD 12 puts the operation of that section in a spin with Deputy President Snell determining that a knee replacement is exempt.

Since the 2012 amendments those of us in the workers compensation world have come to know section 59A as a disentitling provision. It limits the payment of medical and related treatment to workers who have ceased to be entitled to weekly benefits.
 
However, section 59A(6) provides for an exemption to the operation of this limit for the following kinds of medical treatment:

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.

A wide interpretation of “artificial aid” has been applied in the recent Baldacchino decision for the purposes of section 59A(6).

Sam Baldacchino sustained an injury to his left knee. Liability for his injury was accepted by his employer’s workers compensation insurer. However, as time went on his entitlement to medical and related treatment was limited by section 59A.

Mr Baldacchino’s doctors recommended a total knee replacement as a result of his work related injury.  His lawyers argued that a total knee replacement came within the meaning of “artificial aid” and therefore he was still entitled to have that treatment paid for by his workers compensation insurer.

Snell DP accepted that the following comments of Hutley JA in Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 were still relevant in determining whether treatment would come within the meaning of “artificial aid”:

“An artificial aid, in my opinion, is anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome…”

Snell DP held that these comments encompassed a total knee replacement.

So what does this mean for the rest of us?

This decision confirms a wide interpretation of “artificial aid” for the purposes of section 59A(6).

There will likely be a number of different types of medical or related treatment which will come within this definition and will be exempt from the limit imposed by section 59A.

*Hicksons can confirm that Pacific National Pty Limited's appeal against this decision has been set for 31 October 2018. To follow the story, please watch this space. 

Post by Casey Bray and Najeh Marhaba