5.1.1 'Approved Guide' - S4(1)

Key dates

• The second edition of the Guide to the Assessment of the Degree of Impairment (PI Guide) was released in 2005 and applies to defence-related claims received prior to 1 December 2011.
• The Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Repealed Guide) (previously referred to as the PI Guide Edition 2.1 (PIG)) was released in 2011 which included a Part 2, and applies to defence-related claims made under the DRCA received between 1 December 2011 and 31 March 2023.
• The DRCA PI Guide applies to defence-related claims made under DRCA received on and after 1 April 2023. For more information see ‘Application of the DRCA Guide’.

The DRCA PI Guide – ‘Approved Guide’

Section 4(1) of the DRCA defines the “Approved Guide” as follows:

(a) the document, prepared by the MRCC in accordance with Section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force, and

(b) if an instrument varying the document has been approved by the Minister – that document as so varied.

Section 28 of the DRCA provides that the Military Rehabilitation and Compensation Commission (MRCC) may prepare a written document, to be called the Guide to the Assessment of the Degree of Permanent Impairment, and may, from time to time, vary or revoke the approved Guide.

Application of the DRCA PI Guide

From 1 April 2023, the Approved Guide is the ‘Guide to the Assessment of the Degree of Permanent Impairment 2023’ (DRCA PI Guide).

The DRCA PI Guide can be found on the Federal Register of Legislation at: http://www.legislation.gov.au/Series/F2023L00364

The DRCA PI Guide, authorised under section 28 of DRCA, provides the method for assessing the degree of permanent impairment and non-economic loss for the purpose of determining claims made under the DRCA.

The DRCA PI Guide applies in relation to:

• the assessment or re-assessment of the degree of PI or the degree of NEL suffered by an employee as a result of an injury or impairment relating to a claim for compensation under section 24, subsection 25(4) or (5) or section 27 of the DRCA, if the claim is made on or after 1 April 2023;
• re-assessment of claims received before 1 April 2023;
• the reconsideration of determination under section 62 of the DRCA that relates to the above assessment or reassessment of a claim; and
• reviews by the Administrative Review Tribunal of decisions made under subsection 38(4) or section 62 of the DRCA that relates to the above assessment or reassessment.

The following table can be used by staff as a quick reference guide:

Background of the DRCA PI Guide

Prior to 1 April 2023, Part 2 of the Repealed Guide provided the method for assessing defence-related claims. The Repealed Guide was made by Comcare under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and was due to sunset on 1 April 2023.

Comcare repealed the Repealed Guide from 1 April 2023, including Part 2. Therefore a new Approved Guide under the DRCA needed to come into effect on 1 April 2023 to provide the method for assessing the degree of permanent impairment and non-economic loss for the determining claims made under DRCA.

The DRCA PI Guide was prepared by the MRCC and approved by the Minister and came into effect on 1 April 2023.

The DRCA PI Guide reproduces Part 2 of the Repealed Guide without any substantive changes that would affect compensation outcomes for veterans and applies to claims for permanent impairment and non-economic loss made from 1 April 2023.  Some improvements and minor changes to style and format have been made.

The DRCA PI Guide includes introductory material (adopted for the DRCA context) which was previously provided in Part 1 of the Repealed Guide. As the DRCA PI Guide is a standalone instrument under the DRCA for the assessment of defence-related claims, the introductory material provides necessary information for those who will be using and applying the guide to assess the degree of permanent impairment and non-economic loss.

The Repealed Guide

The Repealed Guide was developed by Comcare in response to criticisms received from doctors and other key stakeholders concerning the application and operation of the second edition of the Guide. It was also developed to address the decision of the Federal Court in the matter of Broadhurst v Comcare [2010] FCA 1034 and the decisions of the High Court with respect to Canute and Fellowes.

Prior to the DRCA PI Guide, the methodology for assessing the degree of PI and NEL for defence-related claims under the DRCA was provided by Part 2 of the Repealed Guide which was made by Comcare under the SRCA.

The Repealed Guide consists of two parts:

• Part 1 was utilised by Comcare and their licensees for the assessment of claims under the SRCA; and
• Part 2 was utilised by DVA, on behalf of the MRCC, for the assessment of claims for serving and ex-serving Australian Defence Force (ADF) members under the DRCA.

At the time the DRCA was enacted, specific provisions were included in the legislation to allow for the Repealed Guide to be used to assess PI and NEL claims under the DRCA, until the time came when a separate Instrument is prepared under section 28 of the DRCA.