EXPLANATORY STATEMENT
Safety, Rehabilitation and Compensation Act 1988
Issued by Comcare
Notice of Disallowable Instruments
Approved Guide: Guide to the Assessment of the Degree
of Permanent Impairment
The purpose of the instruments to which this Explanatory Statement relates is to bring into operation the second edition of the Guide setting out the criteria by which the degree of permanent impairment and non-economic loss suffered by an injured employee shall be assessed for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
Section 24 of the SRC Act provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of that injury and the degree of permanent impairment shall be a percentage determined under the provisions of the approved Guide.
Section 28 provides that Comcare 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. In accordance with subsections 28(2) and (3) of the SRC Act, the instruments revoke the first edition of the Guide and approve the second edition, commencing on 1 March 2006.
The instruments are disallowable instruments, subject in part, to the Acts Interpretation Act 1901.
In preparing the Guide, Comcare has, as required under subsection 28(6) of the SRC Act, had regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
The first edition of the Guide was issued in 1989. It was based on the 2nd edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The content of the first edition of the Comcare Guide has fallen behind developments in medical assessment of permanent impairment and has been subject to judicial criticism.
The second edition has been devised in consultation with a range of Australian medical specialists and is based on the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, namely the 5th edition.
The second edition of the Guide is substantially more comprehensive than the first edition and will provide an accurate, clear and objective method for measuring all impairments likely to result from work related conditions. It provides calibrated impairment ratings across the various organ systems, more extensive and comprehensive tables with specific measurements of impairment, and detailed instructions on how ratings may be applied or combined. New impairment tables have also been added for specific conditions and in many tables the maximum levels of impairment have been increased.
While, non-economic loss ratings remain the same, there is more information on symptoms to assist in providing a more consistent and equitable way of rating non-economic loss.
Permanent impairment ratings determined under the first edition will be preserved unless that assessment would not have been made but for a false statement or misrepresentation.
The first edition chapter on psychiatric disorders has been preserved in the second edition. Comcare will continue to closely monitor developments in psychiatric impairment rating scales and the operation of the new edition generally.
Comcare has undertaken extensive consultation with all relevant stakeholders including medical and legal practitioners, employee representatives, SRC Act licensees and Ex-Service Organisations (ESOs).
Overview
The Safety, Rehabilitation and Compensation Act 1988 was enacted to address the need for a comprehensive framework for the assessment and compensation of permanent impairment and non-economic loss resulting from injuries sustained in the course of employment. The Act was introduced by the Commonwealth Parliament and its primary policy objective is to ensure that injured employees receive fair and consistent compensation for the impairments and losses they suffer. The Act outlines the processes and criteria for determining the degree of permanent impairment, which is essential for calculating the appropriate level of compensation payable by Comcare, the entity responsible for administering the Act. The legislation has been updated to reflect contemporary medical understanding and to address criticisms of the initial assessment methods, as evidenced by the introduction of the second edition of the Guide to the Assessment of the Degree of Permanent Impairment. This revision aims to provide a more accurate, clear, and objective method for assessing all impairments likely to result from work-related conditions, ensuring that the compensation system remains equitable and reflective of current medical standards.
Scope and Application
The Safety, Rehabilitation and Compensation Act 1988 applies to employees who suffer work-related injuries that result in permanent impairment, ensuring that Comcare is liable to pay compensation based on the degree of impairment as determined by an approved Guide. This legislation encompasses the entire Commonwealth jurisdiction, including territories, and applies to any employer and employee within this scope. The Act provides a mechanism through which Comcare can update the Guide, ensuring it remains current with medical assessments and practices. The second edition of the Guide to the Assessment of the Degree of Permanent Impairment, which was approved and commenced on 1 March 2006, replaces the first edition and incorporates contemporary medical standards, offering a more comprehensive and objective method for assessing impairments. These instruments, being disallowable, are subject to the Acts Interpretation Act 1901. The new Guide was developed after extensive consultations with Australian medical specialists and legal practitioners, ensuring that it aligns with current medical practices and provides clear, consistent criteria for assessing permanent impairments and non-economic loss.
Key Provisions
The main operative sections of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) that are relevant to the new Guide are sections 24 and 28 (subsections 24(2) and 28(2)-(6)). Section 24 mandates that Comcare is responsible for compensating employees who suffer permanent impairments resulting from injuries sustained at work, with the degree of impairment to be determined according to the approved Guide (section 24(2)). Section 28 empowers Comcare to develop, modify, or revoke the Guide at its discretion (subsection 28(2)). The instruments in question revoke the first edition of the Guide and approve the second edition, effective from 1 March 2006 (subsections 28(2) and (3)). Comcare is required to consider medical opinions regarding the nature and effects of the injury, as well as the potential for reduction or removal of impairment or non-economic loss (subsection 28(6)).
The obligations and requirements imposed by the Act on Comcare include the preparation and approval of the Guide, which must be based on the most current medical standards and best practices. Comcare is obligated to consult with a wide array of stakeholders, including medical specialists, legal practitioners, and employee representatives, to ensure that the Guide is comprehensive and effective. The Guide must provide clear and objective criteria for assessing both permanent impairments and non-economic losses, with detailed instructions and tables to facilitate accurate ratings. Additionally, Comcare must continue to monitor and review the Guide to adapt to advancements in medical science and to respond to any judicial feedback or criticism.
Failure to adhere to the provisions of the Guide or any subsequent amendments to the SRC Act may result in legal consequences for Comcare. Although the Act does not explicitly detail specific penalties for non-compliance, breaches of the Guide or the Act could potentially lead to civil liabilities or claims for improper assessment of impairment or compensation. Furthermore, if the Guide is found to be deficient or outdated, it could result in judicial review or changes mandated by the courts, potentially leading to costly revisions and compensation claims. The extent of any penalties or consequences would be determined by the specific nature and impact of the non-compliance.
The new Guide represents a significant update from its predecessor, incorporating the latest medical research and standards. By providing more comprehensive tables, specific measurements, and detailed instructions, the second edition aims to offer a more accurate and equitable method for assessing impairments and non-economic losses. The preservation of certain elements from the first edition, such as the chapter on psychiatric disorders, ensures continuity in the treatment of specific conditions. This thorough revision is intended to better align with current medical practices and to address past criticisms, ultimately benefiting both injured employees and the administering body.