The 'Date Stable' for an impairment is the date when the impairment has stabilised, i.e. there is unlikely to be any further change in the condition, whether a deterioration or an improvement. The 'Date Stable' must be distinguished from two other crucial dates:
Whether an impairment is 'stable' is relevant in which type of compensation is appropriate for permanent impairment.
If a permanent impairment covered by the 1988 Act is not yet stable, but is at least 10% WPI, the client is entitled to request an interim payment of compensation under S25 of the Act. R&C ISH will automatically calculate any entitlement as an interim payment under S25 if there is an impairment which is not yet stable but is otherwise eligible for payment. A request for a final payment under S24 must be made at a later date when the impairment has fully stabilised.
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, a delegate should, in particular, look for two items of evidence:
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 (i.e. likely to continue indefinitely) but not yet stable (e.g. 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 a condition is permanent and stable at the current level of impairment however a gradual deterioration is expected, for example degenerative conditions, a final assessment under Section 24 should be made. The assessment 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
When deciding if an impairment is stable, the delegate 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 to 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 S25 based on the lower WPI.
In such cases, the WPI used here should be the minimum eventual impairment anticipated if the treatment is entirely successful. As the Tribunal found in Dimitriou and Comcare [4] (1997) AATA 583:
There may well be a basis to find that that degree of whole person impairment presently is greater than 10 per cent however we have preferred to find an impairment at 10 per cent only so as to ensure that should the applicant undertake surgery into the future, her impairment following that surgery will be no less than what we would otherwise presently decide. That is to say, we would be hopeful that in the event of the applicant successfully undertaking hip replacement that her whole person impairment then would be less than 20 per cent. As we have indicated above we are satisfied that at the present time and in the event of successful surgery the whole person impairment will be no less than 10 per cent.
More ? [5]
If a 1930 Act permanent impairment became stable after the commencement of the 1971 Act on 1 September 1971, the applicable rate is determined under the 1971 Act.
More ? [6]
If reasonable medical treatment is likely to alter the degree of impairment, the impairment should not be treated as stable at this time, with the effect that a final assessment cannot be made under S24.
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 based on the inherent risks associate with the surgery, it would not be reasonable to defer making a determination under S24 on this basis alone. Another example can be found in the decision of the Tribunal in Re Sims and Comcare [12](1998) where it was considered reasonable for the employee to refuse to take anti-depressant medication because of the advice the employee had received regarding the treatment's low chance of success and the significant side effects of the medication itself. Where it is unreasonable to require further medical treatment, the assessment under S24 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). [13]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: They also stated it was necessary to take into account “all the circumstances known to...and affecting [the worker]” in addition to the medical advice they had received.
The Federal Court added in Filla v Comcare (2001) [14] that “even if the worker has received medical advice to submit to an operation and even if that advice means that the worker knows of cogent factors favouring his submitting to that operation, still, other circumstances known to and affecting the worker may mean that the worker's refusal to submit to the operation is neither the result of baseless fear nor properly to be characterised as unreasonable”. They went on to include a worker's religious beliefs as something that could “repel any suggestion of unreasonableness in refusing to submit to that surgery”.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20755%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20846%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20943%23comment-form
[4] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1997/583.html?stem=0&synonyms=0&query=Dimitriou%20and%20Comcare
[5] https://clik.dva.gov.au/book/export/html/20755#tgt-msrca_pi_hbk_ftn28
[6] https://clik.dva.gov.au/book/export/html/20755#tgt-msrca_pi_hbk_ftn29
[7] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/permanent-impairment-handbook/ch-4-assessment/45-condition-stable/453-requirement-undertake-reasonable-medical-treatment
[8] https://clik.dva.gov.au/book/export/html/20755#ref-msrca_pi_hbk_ftn28
[9] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/permanent-impairment-handbook/ch-8-permanent-impairment-under-1971-act
[10] https://clik.dva.gov.au/book/export/html/20755#ref-msrca_pi_hbk_ftn29
[11] https://clik.dva.gov.au/user/login?destination=node/20852%23comment-form
[12] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1998/416.html?stem=0&synonyms=0&query=Sims%20and%20Comcare%201998
[13] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1982/3.html?stem=0&synonyms=0&query=title(Fazlic%20and%20Milingimbi%20Community%20Inc%20(1982).%20)
[14] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2001/964.html?stem=0&synonyms=0&query=title(Filla%20and%20Comcare%20)