The use of this phrase gives a delegate some flexibility in the exercise of their judgment as to the permanence of an impairment.  In making this judgement, it is necessary to consider each of the criteria.  However, the relative weighting to be given to each criterion must be determined on the facts of each individual case.

When considering whether an impairment is likely to continue indefinitely the delegate should give consideration to duration of the impairment.  The use of the word “indefinite” indicates that an impairment does not need to last forever to be considered “permanent”.  Instead, it should be taken to refer to a period of time which, although undetermined, is substantial (McDonald v Director-General of Social Security [5](1984) [5] 6 ALD 6).  In some cases, such as an amputation, the permanency of the impairment will be obvious.  However, where such as a fracture of the limb, an impairment is known to be of a likely finite duration it should not be considered permanent.  However, if such an impairment fails to resolve for a considerable period of time and the medical evidence suggests that long-term prognosis for resolution is poor, it may be appropriate to review the question of permanence.

When considering whether an impairment is likely to continue indefinitely the delegate should give consideration to whether the impairment is likely to cease.  The greater the likelihood of substantial improvement then the less likely the impairment can be regarded as permanent.  The reverse is also true; the less probable the likelihood of improvement, the more appropriate will be a finding that the impairment is permanent.

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 [8](1984) [8] 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 [9] [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.

This paragraph authorises the delegate to consider any other matters which may assist in determining whether an impairment is more likely than not to continue indefinitely.  However, it is important to ensure that any such other factors are relevant to the client's particular situation and that there is adequate medical or other evidence to support the conclusion reached.