RETURN TO WORK ACT 2014 - SECT 22
RETURN TO WORK ACT 2014 - SECT 22
22—Assessment of permanent impairment
(1) This section sets
out a scheme for assessing the degree of impairment (being whole person
impairment) that applies to a work injury that results in permanent
impairment.
(2) An assessment
under this section—
(a) must
be made in accordance with the Impairment Assessment Guidelines; and
(b) must
be made by a medical practitioner who holds a current accreditation under this
section.
(3) The Minister
will publish guidelines (the "Impairment Assessment Guidelines") for the
purposes of the assessment of permanent impairment (being whole person
impairment).
(4) The guidelines
under subsection (3)—
(a) must
be published in the Gazette; and
(b) may
adopt or incorporate the provisions of other publications, whether with or
without modification or addition and whether in force at a particular time or
from time to time; and
(c) must
incorporate a methodology that arrives at an assessment of the degree of
impairment of the whole person ("whole person impairment ); and
(d) may
specify procedures to be followed in connection with an assessment; and
(f) may
be amended or substituted by the Minister from time to time.
(5) The Minister must,
before publishing or amending the Impairment Assessment Guidelines, consult
with professional associations representing the class or classes of
medical practitioners who hold accreditations under this section.
(6) An amendment or
substitution in relation to the Impairment Assessment Guidelines under
subsection (4)(f) will take effect from a date specified by the Minister
as part of the amendment, or in the substituted guidelines, as
the case may be (the "commencement date").
(6a) If the
Impairment Assessment Guidelines are amended or substituted, the amendment or
substituted guidelines (as the case may be) will apply in relation to an
injury regardless of whether the injury occurred before or on or after the
commencement date.
(7) An assessment of
the degree of impairment resulting from an injury—
(a) must
not be made until there is evidence that the injury has stabilised; and
(b)
must, subject to subsection (8), be based on the worker's current
impairment as at the date of assessment, including any changes in the signs
and symptoms following any medical or surgical treatment undergone by the
worker in respect of the injury; and
(c) must
be made by an accredited medical practitioner selected in accordance with the
Impairment Assessment Guidelines.
(8) An assessment must
take into account the following principles:
(a) if a
worker presents for assessment in relation to injuries which occurred on
different dates, the impairments are to be assessed chronologically by date of
injury;
(b)
impairments from unrelated injuries or causes are to be disregarded in making
an assessment;
(c)
impairments from the same injury or cause are to be assessed together or
combined to determine the degree of impairment of the worker (using any
principle set out in the Impairment Assessment Guidelines);
(d)
impairment resulting from physical injury is to be assessed separately from
impairment resulting from psychiatric injury;
(e) in
assessing impairment resulting from physical injury or psychiatric injury, no
regard is to be had to impairment that results from consequential mental harm;
(f) in
assessing the degree of permanent impairment resulting from physical injury,
no regard is to be had to impairment that results from a psychiatric injury or
consequential mental harm;
(g) any
portion of an impairment that is due to a previous injury (whether or not a
work injury or whether because of a pre-existing condition) that caused the
worker to suffer an impairment before the relevant work injury is to be
deducted for the purposes of an assessment, subject to any provision to the
contrary made by the Impairment Assessment Guidelines;
(h)
assessments are to comply with any other requirements specified by the
Impairment Assessment Guidelines.
Note—
The Parliament confirms that this subsection is to be interpreted and applied
in accordance with the principles enunciated in the reasons of the Full Court
of the Supreme Court in Return to Work Corporation of South Australia v
Summerfield [2021] SASCFC 17.
(9) A number
determined under the Impairment Assessment Guidelines with respect to a value
of a person's degree of whole person impairment may be rounded up or down
according to any principle set out in the Impairment Assessment Guidelines.
(9a) For the purposes
of this section, an assessment (or parts of an assessment) may be undertaken
by more than 1 accredited medical practitioner and their assessments
combined so as to create 1 assessment.
(10) Subject to
subsections (12) to (15) (inclusive), if—
(a) a
worker has had a whole person impairment assessment under this section; and
(b)
another impairment from the same injury or cause develops or manifests itself
after that assessment,
then that other impairment—
(c) will
be assessed separately; and
(i)
will not be combined in any respect (whether under this
section or sections 56 or 58) with the impairment or impairments that
have already been assessed; but
(ii)
may be combined with any other impairment from the same
injury or cause that has also developed or manifested itself after the earlier
assessment.
Example—
A worker suffers impairments arising from injuries A and B which both
arise from the same cause. The worker has those impairments assessed under
section 22. After the assessment of the impairments arising from injuries
A and B, the worker develops further impairments from injuries C and D
which arise from the same cause as injuries A and B. The worker is
entitled to be assessed for the impairment arising from injuries C
and D and to combine the impairments from those injuries. However, the
worker cannot combine the impairments arising from injuries C and D with
the impairments arising from injuries A and B under this Act.
(12) Subsection (10)
does not affect the requirement under subsection (8)(d) for impairment
resulting from physical injury to be assessed separately from impairment
resulting from psychiatric injury.
(13)
Subsection (10) operates subject to any assessment made under Part 8
(and the exercise of any adjudicative function by the Tribunal or a court).
(14) An interim
decision under section 21 will not be taken to constitute an assessment
for the purposes of subsection (10).
(15)
Subsection (10) does not apply in any circumstances prescribed by the
regulations.
(16) For the purposes
of this section, the Minister must establish an accreditation scheme after
consultation with the Advisory Committee.
(17) The accreditation
scheme—
(a) will
provide for the accreditation of medical practitioners who are determined,
under the scheme, to be suitably qualified to undertake assessments for the
purposes of this section; and
(b) will
work on the basis that the Minister will issue the accreditations; and
(c) may
provide for the suspension or cancellation of accreditation by the Minister on
specified grounds; and
(d) may
be amended or substituted by the Minister from time to time after consultation
with the Advisory Committee.
(18) An accreditation
will be issued by the Minister—
(a) for
a period specified by the Minister; and
(b) on
conditions determined by the Minister.
(19) Sections 10
(other than subsection (1)) and 10A of the
Legislative Instruments Act 1978 apply to the publication, amendment or
substitution of the Impairment Assessment Guidelines under this section (and a
reference in section 10 or 10A to a regulation will be taken to be a
reference to the Impairment Assessment Guidelines, the amendment or the
substitution (as the case requires)).