Div 5Assessment of permanent impairment

Division 5—Assessment of permanent impairment 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) Subject to subsection (6b), 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. (6b) If the Impairment Assessment Guidelines are amended or substituted, the guidelines in operation immediately before the commencement date of the amendment or substitution will continue to apply in relation to the assessment of permanent impairment of a worker's injury if, before that commencement date— (a) the worker's injury satisfies the requirements of subsection (7)(a); and (b) the worker attended an appointment with an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines for the purposes of an assessment of permanent impairment of that injury. (7) An assessment of the degree of impairment resulting from an injury— (a) must not be made— (i) until there is evidence that the injury has stabilised; or (ii) unless— (A) the injury is a condition prescribed for the purposes of this subparagraph by a regulation made on the recommendation of the Minister (see subsection (7a)); and (B) any requirement prescribed by the regulations has been satisfied; or (iii) unless the injury is a terminal condition; (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. (7a) The Minister must not make a recommendation to prescribe a condition for the purposes of subsection (7)(a)(ii)(A) unless— (i) 1 or more professional associations representing medical practitioners, including the Australian Medical Association (South Australia) Incorporated; and (b) the Minister is satisfied that the condition is— (i) serious and potentially life threatening if suffered by a person; and (ii) extremely likely to cause an ongoing deterioration of a person's health, such that the degree of impairment resulting from the condition is unlikely to stabilise for a significant period of time. (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. 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 (d) — (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)).