Section 24(1) provides that a member who is injured in compensable circumstances is entitled to lump-sum compensation in respect of any permanent impairment which results from that injury:
s24(1) Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
s24(5) The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the Approved Guide.
s24(6) The degree of permanent impairment shall be expressed as a percentage.
For historical s24 rates see Historical Statutory Rates under the SRCA 1988 [4]
Section 24(8) of the SRCA excepts certain impairments from the requirement in S24(7) that compensation for permanent impairment is not payable unless WPI is 10% or more. The provisions state:
24(7) Subject to Section 25, if:
a)the employee has a permanent impairment other than a hearing loss, and
b)Comcare determines that the degree of permanent impairment is less than 10%,
an amount of compensation is not payable to the employee under this section.
...
24(8) Subsection (7) does not apply to any one or more of the following:
a)the impairment constituted by the loss, or the loss of the use, of a finger
b)the impairment constituted by the loss, or the loss of the use, of a toe
c)the impairment constituted by the loss of the sense of taste
d)the impairment constituted by the loss of the sense of smell.
The impairments excepted from the 10% requirement in S24(7) are impairments of the fingers, the toes, the sense of taste and the sense of smell. This exclusion from the 10% threshold requirment applies equally to initial assessment and any ongoing reassessment for increase in PI compensation.
Note that S24(7A) provides that hearing loss is also subject to a reduced threshold (2.5% WPI) if the Date of Injury is on or after 1 October 2001 (see JPA 2001/11).
More ? [6]
Loss of the senses of taste or smell was added to S24(7) by the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (No 264/1992), commencing on 24 December 1992. By S10(2) of the amending Act, the inclusion of loss of taste and smell applies for the purposes of:
a)any determination, made after the commencement of this section, of a claim, whether the claim was made before or after that commencement, or
b)any consideration or review, made after that commencement, of a determination, made before that commencement, of a claim.
The Permanent Impairment Calculator gives effect to this amendment in all cases where the 'Date of Assessment' is 24 December 1992 or later.
Where an earlier Date of Assessment is chosen (e.g. for audit purposes) the senses of taste and of smell do not appear in the list box for selection.
The 10% impairment threshold does not apply where the impairment became permanent before 1 December 1988 as a result of the decision of the Full Federal Court in Comcare v Bozicevic (1997).
The DRCA PI Guide is a document prepared by the MRCC, and approved by the Minister, in accordance with section 28 of the DRCA. Its purpose is to provide an objective basis for the assessment of the amount of lump-sum compensation for permanent impairment and non-economic loss payable to an injured employees covered under the DRCA (i.e. defence personnel).
The DRCA PI Guide comprises:
Introduction;
Principles of Assessment;
Division 1 (Chapter 1 – 14):
Chapters 1 to 13 provide tables which are used to assess the degree of permanent impairment; and
Chapter 14 provides Table 14.1 'Combined Values Chart', used to combine whole person impairment ratings in certain scenarios;
Division 2 – Tables B1–B5 which are used to assess the degree of non-economic loss;
Division 3 – Worksheet C1 which is used to calculate the total entitlement to compensation for permanent impairment and non-economic loss.
Where there is a choice between two tables for the same impairment, the table which is most favourable to the client must be selected. This principle is drawn from the Federal Court decision in Whittaker v Comcare (1998) FCA 1099, where the same impairment from a soft tissue injury involving a joint was assessable under both table 9.2 and table 9.5.
A single injury may give rise to several or many impairments. In these cases, where the impairments alone do not meet the definition of a discrete injury, a score is determined for each impairment under the appropriate table, and then the Combined Values Chart in Chapter 14 is used to derive a combined WPI figure (CWPI) for the purposes of calculation of compensation for permanent impairment under s24 and for non-economic loss under s27.
Since the Canute decision, the situation above (single injury giving rise to several impairments) is the only situation in which a delegate should combine WPI scores. Where there are discrete injuries, including injuries arising from the original injury, they should be treated as separate injuries for all compensation purposes: they are not combined and will need to meet the 10% threshold on their own to be compensable.
The Fellowes decision also made it clear that the impairment arising from each injury must be assessed separately and in isolation, even when using a table that assesses impairment on a functional basis. If the same functional table is used to assess the impairments arising from two or more separate injuries, a separate assessment must be conducted for each injury using that table, rather than assessing the injuries together.
If the impairment under investigation is of a kind that cannot be assessed in accordance with the provisions of the Approved Guide, the Introduction to the Approved Guide authorises reference to the provisions of the current American Medical Association's Guides to the Evaluation of Permanent Impairment (the AMA Guides) in making the assessment. Note, however, that the AMA Guides are to be used only in very rare cases where it is not possible for a person's condition to be assessed under the Approved Guide.
If there is at least one way in the Approved Guide to rate the functional impact of the impairments of an injury (even if the given rating is zero), then we should use the Approved Guide and not turn to the AMA.
However, we can use the AMA where the tables in the Approved Guide are not able to assess the injuries (i.e. the impairments that are actually occurring) on a bodily system.
Some (non-exhaustive) examples would include the assessment of:
Further discussion of the AMA Guides is contained later in this chapter.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20825%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20722%23comment-form
[3] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/permanent-impairment-handbook/ch-7-assessments-under-1971-and-1930-acts
[4] https://clik.dva.gov.au/compensation-and-support-reference-library/payment-rates/historical-payment-rates/pre-2011/mrcasrca-rates-history
[5] https://clik.dva.gov.au/user/login?destination=node/20909%23comment-form
[6] https://clik.dva.gov.au/book/export/html/20825#tgt-msrca_pi_hbk_ftn35
[7] https://clik.dva.gov.au/military-compensation-reference-library/historical-information/jpas-comcare-jurisdictional-policy-advices/2001/200111
[8] https://clik.dva.gov.au/book/export/html/20825#ref-msrca_pi_hbk_ftn35
[9] https://clik.dva.gov.au/user/login?destination=node/20927%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20869%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20785%23comment-form