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18.104.22.168 When should an old Act injury be assessed under the 1988 Act?
The decision of the AAT in Maida and Comcare (2004) sets out the rules for deciding when an old Act injury should be assessed for permanent impairment under sections 24 and 27 of the SRCA. In summary:
- The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment to be assessed under the 1988 Act
- If there is no change to the underlying pathology of a condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment to be assessed under the 1988 Act
- A significant worsening of an impairment will only constitute a new or distinct impairment where there has been a change to the underlying pathology resulting in the development of a new impairment.
A former serving member suffered a right knee medical meniscus tear in a sporting injury in 1984 during the currency of the 1971 Act. In 2005 the person was diagnosed with osteoarthritis in the right knee as a result of the medical meniscus tear in 1984. Specialist medical evidence indicates that the osteoarthritis had been present since shortly after the initial injury in 1987 and was permanent at that time, albeit that the condition had deteriorated over a period of 21 years when the former member sought treatment and was diagnosed with Osteoarthritis. In this instance the Osteoarthritis must be assessed for loss of efficient use under the 1971 Act.
A former member suffered chrondromalacia patella of the right knee as a result a fall during a field exercise. The fall occurred in March 1986 and chrondromalacia patella was diagnosed later that year. In 1997 the client was diagnosed with osteoarthritis of the right knee. Specialist medical evidence in this case indicated that the osteoarthritis was not present until approximately 1993 when the former member first reported symptoms of the osteoarthritis. In this instance the Osteoarthritis should be assessed under the 1988 Act and compensated under sections 24 and 27.
In both of the above examples the key questions the delegate must consider are:
- When did the person first suffer from osteoarthritis?
- When did any impairment resulting from that condition become permanent?
If the answer to either of these questions is a date after 1 December 1988 then the 1988 Act provisions apply.
If the answer to either of the above questions is a date prior to 1 December 1988, then there must be a pathological change to the condition, and not merely a worsening or progression of the condition, for the 1988 Act provision to apply.