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.
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 [3]
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 following table can be used by staff as a quick reference guide:
Claim type | Which Guide applies? | |
Repealed Guide | New DRCA PI Guide | |
Assessment of the degree of PI and NEL relating to a claim for compensation under section 24, interim under section 25(1) and section 27 | If claim lodged before 1 April 2023 | If claim lodged on or after 1 April 2023 |
Re-assessment of the degree of PI and NEL relating to a claim for compensation under section 24, interim (including finalising under subsection 25(4)) and section 27 | If request for re-assessment is lodged before 1 April 2023 | If request for re-assessment is lodged on or after 1 April 2023 |
Requests for reconsideration under section 62 | For claims or requests for re-assessments lodged before 1 April 2023 | For claims or requests for re-assessments lodged on or after 1 April 2023 |
Prior to 1 April 2023, Part 2 of the Repealed Guide provided the method for assessing defence-related claims. The Repealed Guide was made by Comcare under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and was due to sunset on 1 April 2023.
Comcare repealed the Repealed Guide from 1 April 2023, including Part 2.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 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:
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.
A copy of the Explanatory Statement which accompanies the DRCA PI Guide can be found at: http://www.legislation.gov.au/Details/F2023L00364/Explanatory%20Statement/Text [5]
A full copy of the current DRCA PI Guide can be found at http://www.legislation.gov.au/Series/F2023L00364 [3]
Explanatory Statement (Historical Information) – earlier versions of the 'Approved Guide’
The Minister for Industrial Relations issued an Explanatory Statement when the first edition of the Approved Guide was tabled in 1989. It discussed the operation of the Guide in the following terms:
The Approved Guide requires that the degree of permanent impairment be assessed on the basis of whole person impairment (WPI) , a concept drawn from the American Medical Association's guides. Evaluation of WPI is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and on the fundamental activities of daily living.
It is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in the Guide.
Under the Approved Guide, a zero rating would represent normal health or wellbeing, while a 100% rating would, in effect, represent death [note that as injuries are now assessed separately in most cases, this is only the case in practice when the 100% rating derives from a single injury]. The loss of a middle finger is rated at 10%, loss of half normal range of knee movement 30%, and blindness 85%.
Under the WPI approach, permanent impairment of any part of the body, bodily function or system will qualify for payment providing the impairment rating is at least 10%. (Injuries to fingers and toes are exempted from the 10% qualifying requirement.)
For the first time in the history of Commonwealth compensation legislation workers will be entitled to a lump sum benefit for back injuries, skin disorders, cardiovascular conditions, mental illness etc. Such conditions were excluded under the previous system which restricted payment to set losses specified in a Table of Maims e.g. loss of limbs, digits, sight, hearing, sexual capacity, facial disfigurement, speech and sense of taste or smell.
The Approved Guide provides for a combined impairment rating in the case of multiple impairments [note this is now only applicable in specific cases involving multiple impairments resulting from one compensable injury]. For example a serious spinal injury resulting in paraplegia and associated other impairments would result in a combined impairment rating of 99%.
The degree of permanent impairment is to be assessed by reference to Part A [now Division 1] of the Approved Guide.
The degree of non-economic loss is to be assessed by reference to Part B [now Division 2] of the Approved Guide. Of the maximum amount of $30,000.00 [indexed] payable a percentage of $15,000.00 [indexed] is to be set by reference to the degree of impairment assessed under Part A [now Division 1], e.g. if the impairment rating was 10% the worker would automatically qualify for 10% of the $15,000.00 [indexed].
The workers entitlement to a proportion of the remaining $15,000.00 [indexed] is to be assessed by rating the effects of the impairment under the headings pain and suffering, loss of amenities, other losses and loss of expectation of life. The scores under these headings are tallied and a simple formula applied to determine the percentage of the remaining $15,000.00 [indexed] that is payable.
The Approved Guide offers a comprehensive system for assessing the level of worker's impairment. It will ensure a consistent approach to the assessment of the compensation payable for both permanent impairment and non-economic loss.
Independent, private medical consultants will be required to report on the degree of impairment in accordance with the Approved Guide.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20866%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20814%23comment-form
[3] http://www.legislation.gov.au/Series/F2023L00364
[4] https://clik.dva.gov.au/user/login?destination=node/20810%23comment-form
[5] http://www.legislation.gov.au/Details/F2023L00364/Explanatory%20Statement/Text