Essentially, it is a matter of fact and medical evidence when an impairment becomes stable for the purposes of compensation for permanent impairment. In order to determine the appropriate date, an assessor should, in particular, look for two items of evidence:
- medical opinions establishing a date when the impairment stabilised; and
- the last date of any active treatment of the impairment.
It is important to note that there is a difference between the date an impairment became stable and the date of permanent impairment. An impairment may well be permanent (ie. likely to continue indefinitely) but not yet stable (eg. a back injury where a disc has ruptured and the client's condition is still deteriorating). Similarly, an impairment could be stable, but not yet permanent, because it is likely that treatment will resolve the condition.
Where further deterioration is expected
Where a gradual deterioration is expected, a s 25 payment may be made, but it must be based on the current actual degree of impairment and not on the expected degree of impairment after the deterioration has occurred. Under no circumstances is a decision to be made on the basis of an anticipated worsening of an impairment.
Where reasonable medical treatment may affect the degree of impairment
When deciding if an impairment is stable, the assessor must consider whether reasonable medical treatment may alter the degree of impairment. If medical treatment is likely to alter the degree of impairment, the impairment is not stable.
If reasonable medical treatment is expected reduce the degree of impairment, but there would still be a compensable degree of impairment after the treatment, an interim payment may be made under s 25 based on the lower WPI.
In such cases, the WPI entered here should be the minimum eventual impairment anticipated if the treatment is entirely successful.
Requirement to undertake reasonable medical treatment
If reasonable medical treatment is likely to alter the degree of impairment, the impairment should be treated as not yet stable, with the effect that a final assessment cannot be made under s 24.
For medical treatment to be considered “reasonable” in this context, it must be reasonable in all the circumstances of the case and must not expose the member to any real risk of further significant injury. If, for example, a client was unwilling to undertake major surgery with its attendant risks, it would not be reasonable to defer making a determination under s 24 on this basis alone. Another example can be found in the decision of the Tribunal in Re Sims and Comcare (1998) where it was considered reasonable for the employee to refuse to take anti-depressant medication because of their significant side effects. Where it is unreasonable to require further medical treatment, the assessment under s 24 should be based on the full degree of compensable impairment suffered by the client.
In considering whether reasonableness should be judged by objective standards or by the subjective perceptions of the client, it is appropriate to adopt the approach taken by the High Court in Fazlic v Milingimbi Community Inc (1982). In that case, the Court had regard to what the employee knew about the proposed treatment and whether his or her concerns were reasonable, given that state of knowledge:
Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend upon the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed. ...
A court is not, save perhaps in exceptional circumstances to be mentioned hereafter, concerned with what in Tutton's Case Cozens-Hardy M.R. described as the question whether, on the balance of medical evidence, the operation may reasonably be performed on the worker. Its concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.
It follows that in the present case the extensive expert medical testimony showing that the operation might reasonably have been performed was irrelevant to the point in issue, the reasonableness of the appellant's refusal, since the facts deposed to were never known to the appellant, who was aware only of the treating surgeon's reticent and, if anything, rather discouraging statement about the operation that was recommended. Moreover the appellant had candidly confessed to his treating surgeon his fears regarding the operation and nothing had been said to dispel them. In those circumstances we cannot say that he was shown to have been unreasonable in refusing the operation and this despite the fact that the alternative facing the appellant was, as he had been told, that there would be no improvement in his condition.