Have you suffered a work injury and need medical treatment, but the insurer has told you that you are out of time to claim it?
This is a scenario many injured workers face every year, but don’t be alarmed as there may be a way around it.
The section of the Workers Compensation Act that sets a time limit on how long you can claim medical treatment is Section 59A. Section 59A limits the entitlement to paid medical treatment as follows:
- A person with a whole person impairment (WPI) of 10% or less- has 2 years to claim medicals from their last weekly payment or date of claim, whichever is later;
- A person with a WPI of between 11% and 20%- has 5 years to claim from their last weekly payment or date of claim, whichever is later; and
- A person with a WPI of 21% or above- can claim medical expenses for life.
However, please note the insurer still needs to determine that the treatment requested is reasonably necessary as a result of the work injury in order to agree to pay for it, even during the above timeframes.
So what does this mean if your injury worsens and you need treatment outside of the above time limits?
Well, if your injury has worsened you may be entitled to claim further weekly benefits due to your reduced capacity for work. If you can get back onto weekly benefits, then your entitlement to medical expenses is also enlivened. However, it is important to know that these medical expenses are only claimable whilst the additional weekly benefits are being paid. Once the weekly benefits cease, so do your medical expenses. Therefore, we always recommend our clients make the most of any extra time they receive to claim medical expenses and ensure they are seeking any referrals or procedures etc. they need from the insurer, so they are not left to pay for these expenses themselves.
There are also a few types of medical related expenses that are not subject to the above time limits and can be claimed for life. Those include:
- 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,
- secondary surgery.
But what is classed as an artificial aid/member?
One important thing we would like to flag in this article is in relation to “artificial members and aids.” The Personal Injury Commission has decided several cases over the past few years which have determined that any surgery where foreign material such as a prosthetic knee or an artificial disc/cage, are being inserted into the body have no time limit to claim. This means that a person can request the insurer to pay for surgeries such as a total knee replacement and lumbar disc replacement surgery numerous years after their injury and the insurer cannot argue that they are “out of time” and rely on Section 59A of the Act.
One of our client Mr M, suffered a lower back injury in May 2000 whilst working as a Tradie. His injury gradually deteriorated over the next 20 years and by 2020 he consulted a Spinal Surgeon who advised he needed a double disc replacement. A claim was made on EML for the surgery costs however, the claim was declined on multiple grounds, one of those being that Mr M was out of time to claim the cost of the surgery due to Section 59A of the Act.
We obtained evidence from his Treating Surgeon regarding the surgery, including specific details of the artificial discs that were going to replace Mr M’s injured discs. We lodged the claim in the Personal Injury Commission and argued that as the surgery requested involved an “artificial member/aid” being inserted into Mr M’s spine, there was no time limit and the insurer could not rely on Section 59A. The Commission ultimately agreed and ordered that EML pay for Mr M’s extensive lumbar spine surgery some 20 years after his workplace injury occurred.
If this scenario sounds similar to yours, please contact us at Bourke Legal to discuss whether the cost of the treatment that has been recommended can still be claimed from your workers compensation insurer.