Guide to the Assessment of the Degree of Permanent Impairment - Second edition

Comcare

Acknowledgements

Comcare gratefully acknowledges the valuable contribution to this Guide by:

• Dr Dwight Dowda

• Mr John Trungove

• Sparke Helmore, solicitors

• The Australian Government Solicitor

• All the medical specialists and associations who have provided input and assistance in the compiling of this document over a number of years

Introduction to second edition of the Guide

Contents

1. Authority
2. Structure of this Guide
3. Application of this Guide
4. Whole Person Impairment (WPI)
5. Entitlements under the SRC Act
6. Non-economic loss
7. Compensation Payable
8. Interim and Final Assessments
9. Increase in Degree of Whole Person Impairment

Part 1 - Claims For Permanent Impairment Other Than Defence-Related Claims

Part 2 - Defence-related Claims For Permanent Impairment

 

1. Authority

Division 4 of Part II (sections 24 to 28) of the Commonwealth's Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides for payment of lump sum compensation for permanent impairment and non-economic loss resulting from a work related injury.

The amount of compensation payable (if any) is to be assessed by reference to the degree of permanent impairment or the degree of non-economic loss determined by Comcare under the provisions of the approved Guide:

"approved Guide" is defined by section 4 of the SRC Act as meaning:

Authority for this document rests therefore in subsections 28(1), 28(2) and 28(3) of the SRC Act, which provide that:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c) methods by which the degree of permanent impairment and the degree of non economic loss, as determined under those criteria, shall be expressed as a percentage.

This document is the new Guide to the Assessment of the Degree of Permanent Impairment. It may be referred to as 'this Guide' or 'second edition of the Guide'). This Guide is binding on Comcare, licensed authorities and corporations, and the Administrative Appeals Tribunal (subsection 29 (4).

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2. Structure of this Guide

This Guide is divided into two Parts:

Part 1 of the Guide has three divisions:

The Principles of Assessment (see page 11) and Glossary (see page 15) in Part 1 of this Guide contain information relevant to the interpretation and application of Part 1, Divisions 1 & 2.

Part 2 of this Guide has two divisions:

The Principles of Assessment and Glossary in Part 2 of this Guide contain information relevant to the interpretation and application of Part 2, Divisions 1 and 2.

3. Application of this Guide

The Guide to the Assessment of the Degree of Permanent Impairment prepared by the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees under subsection 28 (1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 and approved by the Minister of State for Industrial Relations by notice in writing dated 27 July 1989 is referred to as the "first edition of the Guide".

Except as provided below, the first edition of the Guide is revoked in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of claims under those sections received by the relevant authority after 28 February 2006. Claims under those sections received on or before 28 February 2006 will be determined under the provisions of the first edition of the Guide.

Part 1 of this Guide will apply on and from 1 March 2006 in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of claims under those sections, other than defence-related claims, received by the relevant authority after 28 February 2006.

Part 2 of this Guide will apply on and from 1 March 2006 in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of defence-related claims under those sections received by the relevant authority after 28 February 2006.

Where a request by an employee pursuant to subsection 25 (1) of the SRC Act is received by the relevant authority after the revocation date but relates to a claim under section 24 that was received by the authority on or before the revocation date, that request will be determined under the provisions of the first edition of the Guide.

Where a claim for compensation pursuant to subsections 25(4) or 25 (5) of the SRC Act (in respect of a subsequent increase in the degree of permanent impairment) is received by the relevant authority after the revocation date, that claim will be determined under the provisions of this Guide, notwithstanding that the initial claim for compensation for permanent impairment may have been determined under the provisions of the first edition of the Guide.

However, where the initial claim for compensation for permanent impairment was determined under the provisions of the first edition of the Guide, in determining whether or not there has been any subsequent increase in the degree of permanent impairment, the degree of permanent impairment or the degree of non-economic loss shall not be less than the degree of permanent impairment or degree of non-economic loss determined under the provisions of the first edition of the Guide unless that determination would not have been made but for a false statement or misrepresentation of a person.

In this Guide, "relevant authority" and "defence-related claims" have the same meaning as defined in section 4 and Part XI of the SRC Act and "revocation date" means 28 February 2006.

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4. Whole Person Impairment (WPI)

Prior to 1988, the Compensation (Commonwealth Government Employees) Act 1971 (repealed with the coming into effect of the SRC Act) provided for the payment of lump sum compensation where an employee suffered the loss of, or loss of efficient use of, a part of the body or faculty, as specified in a table of maims. The range of conditions compensated was exclusive and did not reflect the broad range of work-related injuries and diseases.

This Guide, like the first edition, is based on the concept of 'whole person impairment'. Subsection 24(5) of the SRC Act provides for the determination of the degree of permanent impairment of the employee, that is, the employee as a whole person. The whole person impairment concept, therefore, provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person.

Whole person impairment is assessed under Division 1 of Parts 1 and 2 of this Guide.

5. Entitlements under the SRC Act

Where the degree of permanent impairment of the employee (other than a hearing loss) determined under subsection 24(5) of the SRC Act is less than 10 per cent, paragraph 24(7) (b) of the Act provides that compensation is not payable to the employee under section 24 of that Act.

Subsection 24(8) of the Act excludes the operation of subsection 24(7) in relation to impairment resulting from the loss, or the loss of the use, of a finger or toe, or the loss of the sense of taste or smell.

For injuries suffered by employees after 1 October 2001, subsection 24(7A) of the Act provides that, if the injury results in a permanent impairment that is a hearing loss, the 10% threshold does not apply. In those cases, subsection 24(7A) provides that there is no compensation payable if the permanent impairment that is binaural hearing loss is less than 5%.

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6. Non-economic loss

Subsection 27(1) of the SRC Act provides that where there is liability to pay compensation in respect of a permanent impairment, additional compensation for non-economic loss is payable in accordance with section 27.

Non-economic loss is assessed under Division 2 of Parts 1 and 2 of this Guide.

7. Compensation Payable

The maximum level of payment is prescribed in the legislation and indexed annually on 1 July in accordance with the Consumer Price Index. Compensation is calculated at the rate applicable at the time of the assessment (In Part 1 of this Guide, see Division 3 for calculation of total entitlement).

8. Interim and Final Assessments

On the written request of the employee under subsection 25 (1) of the SRC Act, an interim determination must be made of the degree of permanent impairment suffered and an assessment made of an amount of compensation payable to the employee, where:

• a determination has been made that an employee has suffered a permanent impairment as a result of an injury;
• the degree of that impairment is equal to or more than 10%; and
• a final determination of the degree of permanent impairment has not been made.

When a final determination of the degree of permanent impairment is made, there is payable to the employee, under subsection 25 (3) of the SRC Act, an amount equal to the difference, if any, between the final determination and the interim assessment.

9. Increase in Degree of Whole Person Impairment

Where a final assessment of the degree of permanent impairment has been made and the level of whole person permanent impairment subsequently increases by 10% or more, the employee may request, pursuant to subsection 25 (4) of the SRC Act, another assessment for compensation for permanent impairment and non-economic loss. Additional compensation is payable for the increased level of impairment only.

For injuries suffered by employees after 1 October 2001, pursuant to subsection 25 (5) of the SRC Act, if the injury results in a permanent impairment that is a hearing loss, there may be a further amount of compensation payable if there is a subsequent increase in the binaural hearing loss of 5% or more.

See section 3 above (Application of this Guide) as to assessments of the degree of permanent impairment made under the first edition of the Guide.

 

 

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Page last updated:November 14, 2007