3.3.2.1 When should an old Act injury be assessed under the 1988 Act?

The date an injury occurred and the resulting impairment became permanent, is crucial in deciding if an impairment should be assessed under the DRCA or under the predecessor Acts.

Delegates should consider the following questions:

1. When did the injury first occur?
2. When did the impairment become permanent, i.e. likely to continue indefinitely?

In most cases, question 1 will be pre-determined by the liability determination.  The opinion of the medical practitioner should be used to determine question 2.

If the answer to either of these questions is after 1 December 1988, then the delegate should assess the veteran’s degree of permanent impairment under the DRCA. 

For more information about assessments under DRCA, please see chapter 4 and chapter 5.

If the answer to both of the questions above is before 1 December 1988, then the delegate, in most cases, will assess the veteran’s degree of permanent impairment under the relevant predecessor Acts. 

For more information about assessments under the predecessor Acts, please see chapter 7.

For more information about the assessment of Permanent Impairment under:

• the 1971 Act, see Chapter 8
• the 1930 Act, see Chapter 9.

Are there exceptions?

There are very specific scenarios in which an injury resulting in a permanent impairment before 1 December 1988, can be assessed under the DRCA.  These scenarios have been considered by the Federal Court, and set legal precedent for delegates to follow in their decision making.

Full Federal Court decision – Maida [2002] FCA 1284

The Full Federal Court in Maida [2002] FCA 1284 considered when an injury resulting in a permanent impairment before 1 December 1988 should be considered for permanent impairment under the DRCA:

• A significant worsening of an impairment after 1 December 1988 will constitute a new or distinct impairment where there has been a change to the underlying pathology after 1 December 1988 resulting in the development of a new impairment.

The Federal Court also considered when an injury resulting in a permanent impairment before 1 December 1988 should not be considered for permanent impairment under the DRCA:

• The natural 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 DRCA, and
• 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 DRCA.

The Federal Court considered a change in the underlying pathology as a ‘qualitative and quantitative change in the underlying condition as to give rise to a fresh, new impairment’.  When deciding if there has been a change to the underlying pathology, delegates will need to consider the relevant medical evidence and facts in each individual case. 

Note: Delegates should be mindful of the difference in definitions under the DRCA of impairment in section 4 and injury in section 5A.  Since the Full Federal Court case in Canute, more distinct injuries (and their associated impairment) after 1 December 1988 will be assessed separately and in isolation for permanent impairment compensation under DRCA.  Where the medical evidence confirms the veteran has suffered a new injury, liability must be investigated and accepted before permanent impairment compensation for that injury can be investigated and paid.

Please see the following chapters for more information:

• The effect of Canute on whole person impairment assessments - chapter 3.4.2
• Injury under DRCA – chapter 3.1
• Impairment under DRCA – chapter 3.2

In cases where delegates require assistance on complex matters regarding new injuries or impairments, or crafting specific questions for the medical practitioner, please seek guidance from Benefits and Payments Policy via the Delegate Support Framework. 

Examples

Examples will highlight some of the circumstances in which an old Act injury should be assessed under DRCA, as well as when an assessment of an old Act injury should remain under the old Act.

Examples will also highlight circumstances in which a new and distinct injury has occurred after 1 December 1988.  Delegates may also encounter situations where the relevant evidence confirms medical treatment for a service-related injury gives rise to a new and distinct injury.  In these circumstances, delegates should be mindful that Canute case law applies, and the veteran is entitled to a separate assessment of the impairment in relation to that new injury, in the event liability is accepted.

In all cases, the individual facts and medical evidence should be considered, and blanket rules should not be applied.  In some cases, delegates will need to seek supplementary medical evidence from the treating practitioner, including asking specific questions to determine if there has been a change in the underlying pathology of an accepted condition.  As above, if delegates require assistance they can seek guidance from Benefits and Payments Policy via the Delegate Support Framework. 

Example 1 – old Act injury assessed under DRCA

A veteran suffered right knee osteoarthritis in 1982 and the medical evidence confirmed the resulting impairment became permanent in 1985. Following a claim in 1987, the veteran received permanent impairment lump sum compensation under the 1971 Act based on a loss of efficient use (LOEU) of the lower limb.

In 2000, the veteran made a subsequent claim for permanent impairment, and advised the delegate that in 1999, he had undergone a total right knee replacement for treatment of the osteoarthritis.  When seeking an opinion from the veteran’s treating medical practitioner, the delegate obtained more information about what effect, if any, the total right knee replacement had on the injury.  The medical practitioner confirmed the following: 

• The total knee replacement was treatment for the signs and symptoms of the accepted osteoarthritis condition and whilst successful, did not completely resolve the osteoarthritis, and
• the total knee replacement did not result in a new injury or disease as defined in section 5 of the DRCA, however, it did cause a change in the underlying pathology of the osteoarthritis condition, resulting in a new and distinct permanent impairment in 1999.

In this case, the delegate may be satisfied that the Canute case law does not apply, as there has been no new injury which should be considered separately and in isolation for permanent impairment, following a separate investigation and determination by the liability team. 

Instead, it would be open to the delegate to assess the degree of permanent impairment under the relevant tables of the DRCA PI Guide, and if compensation is payable, subtract the dollar amount which was paid previously for the LOEU of the lower limb under the 1971 Act.

Example 2 – old Act injury not assessed under the DRCA

A veteran suffered a chronic left knee medial meniscus tear in 1985 and the medical evidence confirmed the resulting impairment became permanent after meniscal repair surgery in 1986. Following a claim in 1990, the veteran received permanent impairment lump sum compensation under the 1971 Act based on a loss of efficient use (LOEU) of the lower limb.

In 1995, the veteran made a subsequent claim for permanent impairment, and advised the delegate that in 1993, he had undergone further arthroscopy and meniscal repair.  At this time, the surgeon completed new radiology and diagnosed osteoarthritis.  When seeking an opinion from the veteran’s treating medical practitioner, the delegate obtained more information about what effect, if any, the surgical procedures had on the meniscal tear.  The medical practitioner confirmed the following: 

• no new meniscal tears occurred between 1985 and 1995, and
• the impairment due to the meniscal tear was permanent in 1986, and
• more surgical intervention may be required in the future due to the natural progression and worsening of the meniscal tear, and
• osteoarthritis is a new, distinct injury from the meniscal tear, occurring in 1993.

In this case, the delegate may be satisfied that the chronic left knee medial meniscus tear should be assessed under the 1971 Act because the impairment became permanent in 1986 and the underlying pathology of the condition has not changed.  The veteran should be compensated for any deterioration in the LOEU as a result of the meniscus tear.

The delegate may also be satisfied that osteoarthritis is a new, distinct injury, for which compensation is payable under the DRCA, once the liability team has made a determination that it is service-related.  In the case that it is, the delegate will assess the impairment caused by osteoarthritis separately under the DRCA.

Example 3 – old Act injury assessed under DRCA

A veteran suffered an intervertebral disc prolapse in 1987 and the medical evidence confirmed the resulting impairment also became permanent in 1987.  In 2005, the veteran underwent a spinal disc fusion at two levels of the thoraco-lumbar spine, to control the ongoing symptoms of the disc prolapse, and made a claim for permanent impairment compensation in 2006. 

In investigating the claim, the delegate sought an opinion from the treating medical practitioner, asking specific questions about the effect, if any, the spinal fusion had on the underlying pathology of the intervertebral disc prolapse.  The medical practitioner confirmed the following:

• The spinal fusion was treatment for the signs and symptoms of the accepted intervertebral disc prolapse condition and whilst successful, did not result in a new medical diagnosis, injury or disease, and

• the spinal fusion resulted in a change in the underlying pathology of the disc prolapse, resulting in a new and distinct permanent impairment in 2005. 

In this case, the delegate may be satisfied that the Canute case law does not apply, as there has been no new injury which should be considered separately and in isolation for permanent impairment, following a separate investigation and determination by the liability team. 

Instead, it would be open to the delegate to assess the degree of permanent impairment under the DRCA, on the basis that the medical practitioner confirmed a new and distinct impairment occurred as a result of a change in the underlying pathology of the condition, permanent in 2005.

Example 4 – old Act injury assessed under DRCA

A veteran suffered lumbar spondylosis in 1987 and the medical evidence confirmed the resulting impairment also became permanent in 1987.  The veteran claimed permanent impairment compensation, however the claim was denied on the basis that the impairment was not of a kind that was covered under the 1971 Act. 

In 2010 the veteran made a subsequent claim for permanent impairment compensation, and advised the delegate that he was now suffering from walking difficulties due to pain in the lower limbs.  When seeking an opinion from the veteran’s treating medical practitioner, the delegate obtained more information about the lower limb problems and if they were related to the accepted lumbar spondylosis.  The medical practitioner confirmed the following: 

• there was no new injury, rather, the veteran’s lumbar spondylosis condition significantly worsened between 2009 and 2010 as evidenced by sudden onset of lower limb pain, tingling and numbness,
• radiology confirmed the veteran was suffering from significant nerve impingement as a result of the lumbar spondylosis, which had caused a new impairment in the lower limbs,
• a change in the underlying pathology of lumbar spondylosis had occurred between 2009 and 2010, as evidenced by nerve impingement, and the new impairment became permanent in 2010.

In this case, it would be open to the delegate to assess the degree of permanent impairment caused by lumbar spondylosis under the DRCA, on the basis that the medical practitioner confirmed a change in the underlying pathology of the condition in 2009 caused a significant worsening of the impairment, and became permanent in 2010.

Example 5 – old Act injury not assessed under DRCA

A veteran suffered PTSD in 1970 and the medical evidence confirmed the resulting impairment became permanent in 1980.  In 1995, the veteran lodged a claim for permanent impairment and submitted that the impairment caused by PTSD had worsened in 1995, having a more significant impact on activities of daily living than it had previously in the 1980s. 

The medical evidence confirmed that whilst there had been a deterioration in the degree of impairment between 1980 and 1995, the deterioration had been as a result of the natural progression of PTSD, and the underlying pathology of the PTSD condition had not changed.  In this case, the permanent impairment should be considered under the 1971 Act. 

For more information about the coverage of the 1971 Act, please see chapter 8.

Example 6 – old Act injury not assessed under DRCA

A veteran suffered osteoarthritis of the shoulder in 1984 and the medical evidence confirmed the resulting impairment became permanent in 1985.  The veteran claimed permanent impairment in 1998 and was paid compensation under the 1971 Act based on a 10% loss of efficient use of the upper limb.  In 2005 the veteran made a subsequent claim for permanent impairment and submitted that the impairment had significantly worsened earlier that year.  The medical evidence confirmed that the degree of loss of efficient use (i.e. impairment) had deteriorated to 30%, but that the underlying pathology of the condition had not changed, rather, the osteoarthritis condition had simply worsened due to natural disease progression.  In this case, the permanent impairment should be considered under the 1971 Act.