Baldacchino – A win for injured workers

A recent decision of the Workers Compensation Commission in the case of Baldacchino v Pacific National Pty Ltd [2017] NSWWCC 239 is being heralded as a win for injured workers as it has rewritten the previously strict five year limit for ongoing medical expenses under the NSW workers compensation scheme.

On 19 June 2012 significant reforms were made to the Workers Compensation Act.  The reforms, on the face of it, were introduced to rein in a scheme described as ‘not financially sustainable’.  Amongst other things, the Act was amended to restrict access to lump sum compensation to those with whole person impairment of 11% or greater only and removed an entitlement to compensation for pain and suffering.  The 2012 reforms greatly reduced the rights of injured workers.

In 2015 the Act was again amended and s59A introduced.  That section limited the time periods for which insurers were liable to pay an injured worker’s medical expenses – down to either two or five years, depending on the level of a worker’s whole person impairment.

In the present case, the insurer argued Mr Baldacchino, a retired railway worker was not entitled to compensation for knee replacement surgery due to the time limits imposed under s59A.  This was despite medical evidence showing the deterioration in his knee was directly related to an injury he had sustained at work in 1999.

The Workers Compensation Commission decision increased the rights of injured workers by allowing those who were injured more than five years ago, including those who have retired, to seek compensation for deterioration of a workplace injury where an ‘artificial aid’ is required.  The Commission interpreted the definition of an ‘artificial aid’ to include “anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome”, such as a knee replacement for Mr Baldacchino.

Future decisions in this area will be watched with interest.  It is thought, applying the above logic, the Commission will now allow for other types of joint replacement surgeries arising from a workplace injury, such as for a hip or shoulder, to be compensated.