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3.3.3 Section 24(2)
Section 24(1) of the SRCA provides for compensation to be paid in respect of impairment arising from a compensable injury. In determining whether an impairment is 'permanent' (which is defined in S4(1) as 'likely to continue indefinitely'), S24(2) requires the delegate to 'have regard to' criteria listed in paragraphs (a), (b), (c) and (d) of the subsection.
Essentially, it is matter of fact and medical opinion when an impairment becomes permanent. In most cases, the date of permanence is the date of injury, or shortly thereafter (i.e. there is a certain degree of medical inevitability that once the injury has been sustained, the impairment is present and will remain so even though the degree may vary).
In some cases it will not be clear whether the impairment will become permanent until medical treatment and rehabilitation has been completed. However, even in such cases, the evidence may point to the date of permanence being the date of injury.
In Re O'Maley and Comcare (1997), the Administrative Appeals Tribunal applied the definition of “permanent” as discussed by the Full Federal Court in McDonald v Director-General of Social Security (1984) regarding the level of certainty required in making a judgment as to permanency:
It is not necessary to have a 'settled expectation' of permanency before so finding, a belief – even on a fine balance – that indefinite duration is more likely than foreseeable termination, will suffice.