Guide to claiming compensation for total knee replacement

If you have suffered a serious knee injury, whether at work or in a car accident, your doctor may have told you that you require a total knee replacement surgery. In this case, you may be entitled to significant compensation if you bring a personal injury claim in Queensland. In this article we explain some of the key issues if you consider seeking a compensation claim.

Our clients’ stories – can you relate?

We have acted for several clients who suffered an injury and they have ended up needing total knee replacement surgery. You may find that your situation is similar.

Robert’s story

Robert (we have changed the name to protect our client’s identity) was involved in a slip and fall accident at work. Immediately after the accident, he felt pain in his knee. An MRI was done a couple of days later, and then an arthroscopy confirmed that Robert suffered a medial meniscal tear.

He then underwent a partial meniscectomy followed by physiotherapy, hydrotherapy and strengthening exercises.

Despite some initial progress, the knee did not recover. Robert went to see a specialist who advised that the knee will get progressively worse, with osteoarthritis to continue. The specialist told our client that he will need a total knee replacement in about 7 – 10 years.

As a result of this injury, our client was unable to return to his previous work, despite still being many years away from retirement.

Andrew’s story

Another client of ours, Andrew (name changed again to protect our client’s identity) suffered a traumatic injury to his knee in a trip and fall. The accident occurred in a public place.

He immediately experienced bruising, swelling and instability. He was initially put in a knee brace but eventually had to undergo surgery.

Andrew underwent a medial closing wedge osteotomy and a femoral plate was also fixed into his knee.

Andrews’ specialist said that even though the osteotomy was successful, Andrew had long standing asymptomatic degenerative osteoarthritis in the knee, which will continue to degenerate and eventually he will require a total knee replacement surgery.

Again, just like with Robert, Andrew was unable to return to work after his accident, even though total knee replacement surgery would not be performed for another 10 years or so.

Do you have a pre-existing degeneration in the knee?

With knee injuries, it is quite common that when you go see a specialist, they tell you that even before your incident, you had degeneration in the knee.

If it was a work injury, WorkCover might say that the injury is nothing more than an “aggravation of a pre-existing degeneration”.

It is really important to understand that in many cases, just because you have had a pre-existing degeneration in the knee does not mean that you are not entitled to compensation. In fact, in many cases there would be no reduction in your compensation amount even if you had a pre-existing degeneration.

First of all, even if there is a pre-existing degeneration, it is often not symptomatic prior to the accident. In other words, until your accident, the degeneration which is happening in your knee is not causing you any problems.

Secondly, in many cases we are able to prove by way of specialist medical evidence that if your accident had not occurred, then your pre-existing degeneration would not have caused you any problems in the future. Or at least, it would not have caused problems until your late 60’s or early 70’s.

This is critical because, this means you would have been able to continue to remain in the workforce until your planned retirement age, and you would not have lost any income.

Total knee replacement – only in the future?

If your specialist says that you require a total knee replacement surgery, one common scenario is that they tell you that you can’t have this surgery for another 7 to 10 years.

Doctors are generally very reluctant to undertake this surgery until after your late 50’s or early 60’s. The reason is that once you have a total knee replacement surgery, the knew knee is supposed to last, but if you get the surgery done too early, it is likely that you will need a second knee replacement later down the track. For this reason, doctors try to push out the first total knee replacement surgery as far into the future as possible.

The problem is that if you are in your 40’s now and you need a total knee replacement but can’t get it for another 10 to 15 years, then most likely you will not be able to return to work. Even if you can change careers and find alternative employment, it is likely that this will come with significant income loss.

In addition, if your surgery is going to be many years down the track, then you will need pain medication for several years. Depending on the level of pain which you experience, the cost of the medication can be very significant.

How much compensation can I get for total knee replacement surgery?

The most important point is that if you suffer income loss (including past and future income loss) then you can recover this as part of your compensation claim. For example, if you are 45 and you can’t return to work because you can’t get a total knee replacement surgery, then you can potentially recover income loss for the next 22 years (i.e. until you are 67).

You would also recover compensation for loss of superannuation contributions, which is an extra 12% of your income loss.

In addition, you can recover all future surgery costs now, without having to wait until the actual surgery.

If you want to find out more about the compensation which you can recover, click here.

If your accident happened at work in a remote location, you may be interested in this article.

How does this work in practice?

Firstly, we obtain specialist medical evidence about the likely cost of the future total knee replacement surgery. We recover the present value of that surgery now as part of your compensation claim. We include the costs of rehabilitation and necessary medications.

Secondly, we also assess, again by specialist medical evidence, whether there is any preliminary surgery needed before the actual knee replacement surgery can take place. For example, if you had a femoral plate fixed into your knee after your accident, then before the total knee replacement can take place, it is likely that this plate needs to be removed. This is an additional surgery, with additional costs, which can also be recovered.

We also obtain medical evidence about how long you will have to wait for the surgery to be performed. We then assess what will be your needs in terms of medication, aids etc. between now and the surgery. For example, if the knee replacement surgery is 10 years away and you need pain medication between now and then, then we assess the costs of this pain medication and this is also recovered as part of your claim.

I want to proceed with a claim – what are the next steps?

We have handled many Queensland knee injury compensation claims. We are experienced in this area, and we have good relationships with specialists who can accurately assess your situation to ensure that we maximise the value of your claim.

As a first step, call us on 07 3063 2268 and we will book you in for a consultation with Oszkar Denes, our Principal Solicitor, who will then advise you about the claim process.

25% Cap on legal costs

In all of our personal injury compensation matters, we act on a  No Win – No Fee basis. What that means is, there’s no upfront cost to you.

In Queensland, most compensation firms will charge you 50% of your compensation amount – the maximum allowed at law. This is very expensive. Our fee is different. We will cap our fee at 25% . Remember also, these are the maximum fees we will charge. If our fee in your claim is less, then we charge the lesser amount.

Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice.  And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.