No statutory criteria for determining whether impairment is permanent

Assessment is based on medical opinion in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment

s55 Workplace Injury Rehabilitation and Compensation Act 2013 :

1. Despite anything to the contrary in the AMA Guides, an assessment under this division of the degree of impairment resulting from an injury must be made — after the injury has stabilised,   Except where disease is an EPD (s68A) or ‘lung injury’ (s68D) – stability not required and
2. subject to  s53 , based on the worker’s current impairment as at the assessment date, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.

s54(2) Workplace Injury Rehabilitation and Compensation Act 2013 : AMA Guides apply in respect of an assessment under 3.3d of Chapter 3 of the AMA Guides as if the following were omitted — ‘with the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment’.

Workers’ Compensation and Rehabilitation Act 2003 :

s38 Meaning of permanent impairment — A permanent impairment, from injury, is an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment

s37 Meaning of impairment — An impairment from injury is a loss of, or loss of efficient use of, any part of a worker’s body

Workers’ Compensation and Rehabilitation Act 2003 : s179 Assessment of permanent impairment

• An insurer may decide, or a worker may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment. The insurer must have the degree of permanent impairment assessed: (a) for industrial deafness by an audiologist; or (b) or a psychiatric or psychological injury by a medical assessment tribunal; or (c) or another injury by a doctor.
• The degree of permanent impairment must be assessed in the way prescribed under a regulation and a report must be given to the insurer stating the matters taken into account and the weight given to the matters, in deciding the degree of permanent impairment; and any other information prescribed under a regulation.
• The degree of permanent impairment must be assessed in accordance with the  Guidelines for Evaluation of Permanent Impairment (the Queensland Guide) to decide the degree of permanent impairment for the injury, and a report complying with the Queensland Guide must be given to the insurer.

Workers’ Compensation and Rehabilitation Regulation 2014:

• Part 4 Division 3, Entitlement to compensation for permanent impairment

No statutory definition

s146A(1) notes that a worker’s degree of impairment is to be evaluated, as a percentage in accordance with the  WorkCover WA Guidelines for the Evaluation of Permanent Impairment 

The ReturnToWorkSA  Impairment Assessment Guidelines provide the following definitions: Permanent: ‘The meaning given to the word ‘permanent’ in various decisions of the courts includes:

1. for a long and indeterminate time but not necessarily forever
2. more likely than not to persist in the foreseeable future.’

Impairment: ‘A loss, loss of use or derangement of any body part, organ system or organ function (AMA5).’

The WorkCover  Guidelines for the Assessment of Permanent Impairment state: ‘it must be shown that the problem has been present for a period of time, is static, well stabilised, and is unlikely to change substantially regardless of treatment.’

However where impairment assessment is a prerequisite for access to common law, and where strict time limits apply, a medical assessor may undertake an assessment where the impairment does not meet the definition of ‘permanent’ to verify that the level of impairment will not be less than the statutory threshold. Under amendments which commenced on 1 July 2010, the threshold for access to common law is 20% whole person impairment (WPI) — page 4.

s 70 Return to Work Act 1986 : ‘permanent impairment means an impairment or impairments assessed in accordance with the guides approved and published by the Authority, as being an impairment or combination of impairments of not less than 5% of the whole person’.

Permanent Impairment 

Safety, Rehabilitation and Compensation Act 1988

s4 — Permanent means likely to continue indefinitely

s4 — Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function

Safety, Rehabilitation and Compensation Act 1988 —  s24(2)   For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

1. the duration of the impairment
2. the likelihood of improvement in the employee’s condition
3. whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and
4. any other relevant matters.

Assessments must be made in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment

Seafarers’ Rehabilitation and Compensation Act 1992

s3 — Permanent means likely to continue indefinitely

s3 — Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function

Seafarers’ Rehabilitation and Compensation Act 1992 —  s39(2) For the purpose of determining whether an impairment is permanent, the employer must have regard to the following matters:

1. the duration of the impairment
2. the likelihood of improvement in the employee’s condition
3. whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and
4. any other relevant matters.

Assessments must be made in accordance with the Seacare Authority Guide to the Assessment of the Degree of Permanent Impairment

Military Rehabilitation and Compensation Act 2004 (MRCA) — Permanent means likely to continue indefinitely —  s68(1)(b)(ii) 

Impairment, in relation to a person, means the loss, the loss of the use, or the damage or malfunction, of any part of the person’s body, of any bodily system or function, or of any part of such a system or function —  s5 

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) —

s4 — Permanent means likely to continue indefinitely

s4 — Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function

MRCA —  s73   For the purposes of subparagraph  s68(1)(b)(ii) and subparagraphs  s71(1)(b)(ii) and  s71(2)(a)(ii) , in deciding whether an impairment suffered by a person is likely to continue indefinitely, the Commission must have regard to:

1. the duration of the impairment, and
2. the likelihood of improvement in the one or more service injuries or diseases concerned, and
3. whether the person has undertaken all reasonable rehabilitative treatment for the impairment, and
4. any other relevant matters.

DRCA —  s24(2)   For the purpose of determining whether an impairment is permanent, MRCC shall have regard to:

1. the duration of the impairment;
2. the likelihood of improvement in the employee’s condition;
3. whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
4. any other relevant matters.

Assessments must be made in accordance with the MRCC Guide to the Assessment of the Degree of Permanent Impairment

Accident Compensation Act 2001 - Clause 57(1), Schedule 1

The Corporation must not assess the claimant’s entitlement to lump sum compensation until the earlier of the following:

(a)  The Corporation receives a certificate from a medical practitioner indicating that:

1. the claimant’s condition resulting from the personal injury has stabilised; and
2. it is likely that there is permanent impairment resulting from the personal injury; or

(b)   after 2 years have passed since the date of the personal injury, the Corporation receives a certificate from a medical practitioner indicating that:

1. the claimant’s condition resulting from the personal injury has not stabilised; but
2. it is likely that there is permanent impairment resulting from the personal injury.