Section 16 - Seafarers Rehabilitation and Compensation Act 1992 – Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0 - Non-economic loss is assessed under [Division 2](#_bookmark282) of this Guide. | Zoe
Seafarers Rehabilitation and Compensation Act 1992 – Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0
16Non-economic loss is assessed under [Division 2](#_bookmark282) of this Guide.
Start here
Get a plain-English read of 16
Turn the raw legal text into a practical explanation grounded in Seafarers Rehabilitation and Compensation Act 1992 – Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0.
16 Non-economic loss is assessed under Division 2 of this Guide.
COMPENSATION PAYABLE
17 The maximum level of payment is prescribed in the legislation and indexed annually on 1 July in accordance with the Consumer Price Index. Compensation is calculated at the rate applicable at the time of the assessment. See Division 3 of this Guide for calculation of total entitlement to compensation for permanent impairment and non-economic loss.
INTERIM AND FINAL ASSESSMENTS
18 On the written request of the employee under subsection 40(1) of the Seafarers Act, an interim determination must be made by the employer of the degree of permanent impairment suffered and an assessment made of an amount of compensation payable to the employee, where:
a) a determination has been made that an employee has suffered a permanent impairment as a result of an injury;
b) the degree of that impairment is equal to or more than 10%; and
c) a final determination of the degree of permanent impairment has not been made.
19 When a final determination of the degree of permanent impairment is made by the employer, there is payable to the employee, under subsection 40(3) of the Seafarers Act, an amount equal to the difference, if any, between the final determination and the interim assessment.
INCREASE IN DEGREE OF WHOLE PERSON IMPAIRMENT
20 Where a final assessment of the degree of permanent impairment has been made by the employer and the level of whole person permanent impairment subsequently increases by 10% or more in respect of the same injury, the employee may request, pursuant to subsection 40(4) of the Seafarers Act, another assessment for compensation for permanent impairment and non-economic loss. Additional compensation is payable for the increased level of whole person impairment only.
21 See Application of this Guide above as to assessments of the degree of permanent impairment made under the previous editions of the Guide.
SURVIVAL OF CLAIMS
22 The Seafarers Act provides for the survival of certain claims for compensation. If an employee suffers an injury resulting in permanent impairment, and the employee dies:
a) before a claim for permanent impairment compensation has been made—the employee’s legal personal representative may make such a claim (see subsection 64(1) and the definition of ‘claimant’ in subsection 3(1)); or
b) after a claim for permanent impairment compensation has been made—the employee’s personal representative may continue with the claim (see subsection 64(2) and the definition of ‘claimant’ in subsection 3(1)).
23 In either case, if an amount of compensation is determined by the employer to be payable under section 39 of the Seafarers Act in respect of the claim, subject to section 134, the amount is payable to the deceased employee’s estate (subsections 64(3) and 134(1)). No compensation under section 41 would be payable to the deceased employee’s estate for any non-economic loss (subsections 64(4)).
PRINCIPLES OF ASSESSMENT
IMPAIRMENT AND NON-ECONOMIC LOSS
24 In the Seafarers Act, ‘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’ (subsection 3(1)). The term relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss, damage or malfunction by reference to the functional capacities of a normal healthy person.
25 In the Seafarers Act, ‘non-economic loss’, in relation to an employee who has suffered an injury resulting in a permanent impairment, means ‘loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware’ (subsection 3(1)). The term deals with the effects of the impairment on the employee’s life.
26 Non-economic loss may be characterised as the ‘lifestyle effects’ of an injury or impairment. Lifestyle effects are a measure of an individual’s mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities. The employee must be aware of the losses suffered. While employees may have equal ratings of whole person impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.
EMPLOYABILITY AND INCAPACITY
27 The concepts of ‘employability’ and ‘incapacity for work’ are not the tests for the assessment of impairment and non- economic loss. Incapacity for work is influenced by factors other than the degree of impairment and is compensated by weekly payments which are separate and independent to permanent impairment entitlements.
PERMANENT IMPAIRMENT
28 Compensation is only payable for an impairment resulting from an injury which is permanent. In the Seafarers Act, ‘permanent’ means ‘likely to continue indefinitely’ (subsection 3(1)).
29 For the purpose of determining whether an impairment is permanent under the Seafarers Act, the assessor must have regard to all of the matters in subsection 39(2), namely:
a) the duration of the impairment;
b) the likelihood of improvement in the employee’s condition;
c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
d) any other relevant matters.
30 The assessor should also have regard to the nature and effect of the impairment, and the extent, if any, to which it may reasonably be capable of being reduced or removed (including by surgery, medication or rehabilitative treatment).
31 In the case of a deceased employee, the assessor must still have regard to all of the matters specified in subsection 39(2) of the Seafarers Act. Consequently, assessing the degree of permanent impairment of the employee immediately prior to death will not necessarily be appropriate. For example:
a) if there was a likelihood of improvement in the employee’s condition or the employee had not undertaken all reasonable rehabilitative treatment for the impairment - the degree of impairment of the employee immediately prior to death will not be appropriate if the degree of permanent impairment resulting from the injury was likely to be less after the improvement or treatment; or
b) if the injury resulted in systemic failure of vital organs leading to the employee’s death - the degree of impairment of the employee immediately prior to death will be appropriate if the degree of permanent impairment resulting from the injury was not likely to have improved or responded to treatment.
32 Whatever the cause of death, the assessor must only assess the permanent impairment resulting from the injury The assessor should, where possible, assess the degree of permanent impairment resulting from the injury by reference to the available evidence (for example, clinical records, investigations, reported histories) and/or by using clinical judgment. For the purposes of the Seafarers Act and this Guide, death is not an impairment that is compensable under section 39 of the Act. Compensation for an injury resulting in death is dealt with separately in sections 29 and 30 of the Act.
PRE-EXISTING CONDITIONS AND AGGRAVATION
33 Where a pre-existing condition (including an underlying condition or pre-existing injury) is aggravated by employment, such that the aggravation is an injury, only the permanent impairment resulting from the injury is to be included in the assessment of the degree of permanent impairment of the employee. However, an assessment should not be made unless the aggravation is permanent.
34 Where the employee’s impairment is entirely attributable to the pre-existing condition, or to the natural progression of the pre-existing condition, the degree of permanent impairment of the employee resulting from the injury is 0%.
35 Where the pre-existing condition was previously asymptomatic, all the permanent impairment resulting from the injury is to be included in the assessment of the degree of permanent impairment of the employee.