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When considering whether an impairment is likely to continue indefinitely the delegate should give consideration to whether the claimant has undertaken all reasonable rehabilitative treatment for that impairment.  “Rehabilitative treatment” means any treatment, including surgery, designed to restore a person, as far as it can be, to the person's former health (see Smiths J in Dragojlovic v Director-General of Social Security (1984) 1 FCR 307-308).

 

Firstly, the delegate should consider what, if any, reasonable rehabilitative treatment exists for the particular impairment?  This is a question that should be answered on basis of advice received from a legally qualified medical practitioner whose expertise is appropriate to the particular impairment under consideration.  Secondly, the delegate should consider whether the claimant has undertaken the reasonable rehabilitative treatment?  These questions will assist the determination of whether the particular impairment under consideration is a permanent one (see Katz J in Filla v Comcare Australia [2001] FCA 964).

 

If reasonable rehabilitative treatment does exist for the particular impairment and the claimant has already undertaken all of it, this obviously will tend to be indicative that the impairment is permanent.  On the other hand, if reasonable rehabilitative treatment does exist for the particular impairment and the claimant has not yet undertaken it, this may, depending on the circumstances, tend either against or in favour of the impairment being permanent:

  • The claimant may be willing to undertake the treatment and have been unable for some reason to do so yet, but be able to do so in the near future.  This may tend against the impairment being permanent;
  • On the other hand, the claimant may be willing to undertake the treatment, but be unable for some reason to do so for a indefinite period of time. This may tend in favour of the impairment being permanent.  However, delegates must still give consideration to the claimant's general duty to mitigate his or her damage, as discussed below.