Victorian Consolidated Legislation

Transport Accident Act 1986 - SECT 46A

Degree of impairment

46A. Degree of impairment



(1) The Commission must determine the degree of impairment of each person who
is injured as a result of a transport accident and appears to the Commission
to be or to be likely to be entitled to an impairment benefit, as at-

   (a)  if the person was not a minor when the accident occurred-

   (i)  when the injury stabilises; or

   (ii) 3 years after the accident, or 3 years after any injury first
        manifests itself (as the case may be)- whichever occurs first; or

   (b)  if the person was a minor when the accident occurred or when the
        injury first manifested itself-

   (i)  when the person attains the age of 18 years, if the injury has
        stabilised by that time; or

   (ii) in any other case-

                (A)  when the injury stabilises; or

                (B)  when the person attains the age of 21 years- whichever
                     occurs first.

(1AA) Despite subsection (1), the Commission must not determine the degree of
impairment within 3 months after the accident.

(1AB) If a person applies to the Commission for a determination of his or her
degree of impairment as a result of a transport accident more than 2 years
after the day of the accident, or the day when any injury first manifested
itself, whichever is the later day, the Commission must, if it is of the
opinion that the person is, or is likely to be, entitled to an impairment
benefit, determine the person's degree of impairment-

   (a)  if the injury had stabilised by the date that the application was
        made, within 12 months after that date; or

   (b)  in any other case, within-

   (i)  12 months after the injury stabilises; or

   (ii) 2 years after the date the application was made- whichever occurs
        first.

(1AC) If the Commission is of the opinion that a person who applied to the
Commission in the circumstances described in subsection (1AB) is, or is likely
to be, entitled to an impairment benefit, but the person's injury has not
stabilised within 12 months after the application was made, the person may ask
the Commission to wait until the injury has stabilised before determining his
or her degree of impairment.

(1AD) Despite subsection (1AB)(b), the Commission must comply with any request
under subsection (1AC) that is made in writing.

(1A) If the Commission has not made a determination of the degree of
impairment of a person injured as a result of a transport accident who has
made a claim for compensation in their own right within the period of time
provided by this Act that has been accepted by the Commission because it does
not appear to the Commission that the person is or is likely to be entitled to
an impairment benefit, the person may, before the expiry of the period of 6
years after an injury resulting from the transport accident first manifests
itself, apply to the Commission for a determination of the degree of
impairment as at the date of the application.

(1B) The period of 6 years referred to in subsection (1A) applies-

   (a)  in respect of a transport accident that occurred before the
        commencement of section 13 of the Transport Accident (Amendment) Act
        2000, from the commencement of that section; and

   (b)  in respect of a transport accident that occurs on or after the
        commencement of section 13 of the Transport Accident (Amendment) Act
        2000, from the time that the transport accident occurs.

(1C) If an injury of a person who was not a minor when the accident occurred
has not stabilised 3 years after the accident, or 3 years after any injury
first manifests itself (as the case may be), the person may ask the
Commission-

   (a)  to determine his or her degree of impairment; or

   (b)  to wait until the injury has stabilised before determining his or her
        degree of impairment.

(1D) The Commission must comply with any request under subsection (1C) that is
made in writing and, in the case of a request made under subsection (1C)(a),
must do so within 12 months after receiving the request.

(1E) If a person who is eligible to make a request under subsection (1C) does
not make such a request within 90 days after the date he or she becomes
eligible to make the request, the Commission must determine the degree of
impairment of the person within 12 months after that date.

(2) In this Part, a reference to the determination of a degree of impairment
is a reference to a determination by the Commission-

   (a)  made in accordance with-

   (i)  the A.M.A Guides as applicable subject to subsections (2A) and (2B);
        or

   (ii) methods prescribed for the purposes of this section- and in accordance
        with operational guidelines (if any) as to the use of those Guides or
        methods issued by the Minister; and

   (b)  if the Minister has approved a training course in the application of
        those Guides or methods, made after an assessment by a medical
        practitioner who has successfully completed such a training course.

(2A) Despite anything to the contrary in the A.M.A Guides, an assessment under
subsection (1) of the degree of impairment resulting from an injury must be
made based on the person's current impairment as at the date of the
assessment, including any changes in the signs and symptoms following any
medical or surgical treatment undergone by the person in respect of the
injury.

(2B) The A.M.A Guides apply in respect of an assessment under section 3.3d of
Chapter 3 of the A.M.A 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".

(3) For the purposes of determining the degree of impairment of the whole
person resulting from binaural hearing impairment, the percentage of the
diminution of hearing determined in accordance with subsection (4) is to be
converted as follows-

   (a)  if the binaural loss of hearing is less than 10 per cent NAL, the
        degree of impairment is zero;

   (b)  if the binaural loss of hearing is 10 per cent NAL, the degree of
        impairment is 10 per cent;

   (c)  if the binaural loss of hearing is more than 10 per cent NAL, the
        degree of impairment is the percentage equivalent of the number
        (rounded up to the next whole number) given by the formula-

10 + [0×278 (NAL - 10)]- where NAL is the percentage of diminution of hearing
determined in accordance with subsection (4).

(4) For the purposes of this section, the percentage of diminution of hearing-

   (a)  shall be determined-

   (i)  by a person or class of persons approved; and

   (ii) in the manner approved- by the Minister; and

   (b)  shall be determined in accordance with the Improved Procedure for
        Determination of Percentage Loss of Hearing (1988 Edition or a later
        prescribed edition) published by the National Acoustic Laboratory.

(5) An approval by the Minister for the purposes of subsection (4)(a)(i)
continues in force for the period not exceeding 12 months as is specified by
the Minister in the approval unless revoked by the Minister.

(6) For the purposes of assessing the degree of psychiatric impairment the
A.M.A Guides apply, subject to any regulations made for the purposes of this
section, as if for Chapter 14 there were substituted the guidelines entitled
"The Guide to the Evaluation of Psychiatric Impairment for Clinicians".

(6A) The guidelines referred to in subsection (6)-

   (a)  must be published by the Commission in the Government Gazette;

   (b)  have effect on the day after the day on which the guidelines are
        published in the Government Gazette;

   (c)  may be amended, varied or substituted by a subsequent edition of the
        guidelines published by the Commission in the Government Gazette.

(7) In this section A.M.A Guides means the American Medical Association's
Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than
Chapter 15) as modified by this Act.



(8) If the Commission is required to assess the degree of impairment of a
person whose injury has not stabilised, for the purposes of that assessment-

   (a)  unless the contrary intention appears in this section, the degree of
        impairment to be assessed is the degree of current impairment as at
        the date of the determination of the assessment; and



   (b)  any reference to permanent impairment in the A.M.A Guides is to be
        read as a reference to current impairment.

(9) Subject to subsection (10), this section as amended by section 30 of the
Accident Compensation and Other Legislation (Amendment) Act 2006 applies in
respect of transport accidents on or after the commencement of section 30 of
the Accident Compensation and Other Legislation (Amendment) Act 2006.





(10) Despite subsection (9), if the first guidelines under this section as
amended by section 30 of the Accident Compensation and Other Legislation
(Amendment) Act 2006 are not in force on the commencement of section 30 of
that Act, this section as in force before that commencement continues to apply
in respect of transport accidents on or after that commencement until the
first guidelines are in force.

Note This section, as amended by section 10 of the Transport Accident
(Amendment) Act 2004 (which amended subsections (1) and (1A) and inserted
subsections (1AA)-(1AD), (1C)-(1E) and (8)) applies with respect to all
transport accidents that occurred on or after the day that is 18 months before
the date of commencement of section 10-see section 188.