Safety, Rehabilitation and Compensation (Catastrophic Injury) Rules 2018

The central legal concept in the instrument is “catastrophic injury” as used in subsection 4(1) of the Act; the rules supply the conditions that satisfy that statutory definition (s 6). The instrument organises catastrophic injury into five principal categories (s 6(a)-(e)). Each category is further specified by clinical, anatomical or functional measures.

• Catastrophic spinal cord injury (s 7): defined as a lesion of the spinal cord or cauda equina which results in one or more specific functional deficits. The listed deficits are sensory deficit, motor deficit, bladder dysfunction or bowel dysfunction. The rule therefore focuses on functional outcome rather than specific vertebral level or imaging description.

• Catastrophic brain injury (s 8): requires three linked elements: (a) impairment of cognitive, physical or psychosocial functions; (b) an impairment assessed at a score of 5 or less on any of the items on the FIMTM score sheet at Schedule 1; and (c) either a period of post traumatic amnesia of at least seven days or a significant brain imaging abnormality. The instrument thus combines a generic clinical impairment requirement with a discrete functional threshold on a proprietary instrument and with objective adjunctive markers (PTA duration or imaging).

• Catastrophic amputation injury (s 9): splits into single injury (s 9(1)) and multiple injuries (s 9(2)-(3)). For single injuries, the rules list specific anatomical losses that qualify (forequarter, shoulder disarticulation, hindquarter, hip disarticulation), neurological losses (brachial or lumbar plexus avulsion with no residual functioning), percentage length losses of femur (65% or more) or tibia (50% or more), and thumb loss at or above the first metacarpophalangeal joint. Multiple injury provisions permit aggregation where a prior injury to a different limb satisfies specified thresholds; the instrument also clarifies that earlier injuries are not catastrophic unless they themselves meet the catastrophic conditions (s 9(3)).

• Catastrophic burn injury (s 10): requires both an impairment assessed at a FIM score of 5 or less on any item and one or both of two physical criteria: (a) full thickness burns above a TBSA threshold (over 40% for age 16 or above; over 30% for under 16) or burns to hands, face or genital area; and/or (b) inhalation burns producing vital capacity or FEV1 less than 50% of predicted for the employee’s age, height and ethnicity. The rule therefore creates a conjunctive test of functional impairment plus defined burn severity.

• Catastrophic blindness injury (s 11): defined by corrected visual acuity under 6/60 in both eyes; or constriction to within 10 degrees of fixation in the better eye; or a combination of visual defects resulting in equivalent impairment.

Schedule 1 operationalises the FIMTM assessment. It lists 18 items (self care, sphincter control, transfers, locomotion, communication, social cognition) with spaces for scoring, modes of administration, and a requirement to note whether the score is attributable to the injury and whether the assessor is FIMTM‑credentialled. The Schedule reproduces the FIMTM levels and includes a trademark and licence notice.

Key technical features: the instrument applies retrospectively and prospectively (s 4), requires use of FIMTM items and specific numerical thresholds for body surface area, percentage losses of limb length, PTA duration, and respiratory function expressed as percentage of predicted. Several terms used in the rules are not further defined by the instrument itself, for example “significant brain imaging abnormality,” “post traumatic amnesia,” or the method for calculating percentage femur/tibia loss; those items will require clinical determination in application.

The instrument is framed to affect employees whose injuries fall within the Act’s compensation framework. The definitional reach is explicit: it “applies to an injury suffered by an employee whether the injury was suffered before, on, or after the commencement of this instrument” (s 4). The operative meaning of “injury” in the instrument is “an injury in respect of which compensation is payable under the Act” (s 5). Therefore the instrument targets, in the first instance, employees with compensated injuries and the decision-making processes that determine whether those injuries qualify as catastrophic under subsection 4(1) of the Act (s 6).

Who makes decisions: the instrument itself is a rule made by the Minister under s 122A of the Act (s 3). It does not create a decision‑making body or process; it supplies criteria that administrators, clinicians and decision-makers applying the Act will use. The Schedule’s request for the assessor’s credentialing status signals that clinical assessors and rehabilitation specialists are implicated in producing evidence that will determine classification.

Who bears costs and compliance tasks: the text requires measurement and documentation of discrete clinical variables: FIMTM scoring, PTA duration, imaging reports, TBSA estimation, respiratory function testing against predicted norms (age, height, ethnicity), visual acuity with correction, and anatomical measurements for amputations. Those tasks impose data‑collection and assessment obligations on treating clinicians, accredited assessors and likely insurers or administrative agencies handling claims. The instrument itself does not allocate payment responsibility for assessments but the practical effect is that employers, insurers or claim administrators will need to procure credentialled FIMTM assessments and relevant diagnostic tests to support catastrophic classifications.

Entities with potential ancillary roles: the Schedule acknowledges that FIM is a trademark and that AROC has the territory licence for FIM in Australia. That indicates an intellectual property and credential environment: use of the FIMTM instrument as the functional measure implies reliance on a proprietary assessment framework and credentialing processes. The instrument therefore affects clinical service providers, rehabilitation administrators and decision-makers by embedding a proprietary assessment into the statutory test.

Finally, because the instrument covers injuries suffered before commencement (s 4), it affects existing claimants whose injury and functional status must now be re‑assessed against these criteria for catastrophic status even if the injury pre-dates the rules.

The instrument does not itself create express statutory duties or rights in the way the Act does; instead it supplies the criteria that determine whether an employee has a particular status , “catastrophic injury” , under the Act. Those determinations will trigger whatever duties and entitlements the Act attaches to catastrophic injury. Mechanically, the instrument imposes practical duties on decision-makers, clinicians and assessors to establish and record the specified clinical thresholds.

Duty to apply the criteria: decision-makers applying subsection 4(1) of the Act must use the instrument’s conditions when evaluating catastrophic injury status (s 6). That means evidence must be marshalled to show the presence or absence of the specified elements in whichever category is invoked. The instrument lines up discrete evidentiary thresholds: FIMTM scores (s 8, s 10 and Schedule 1), PTA duration (s 8), imaging abnormalities (s 8), TBSA percentages and affected anatomical regions (s 10), measured respiratory function relative to predicted norms (s 10), corrected visual acuity and field constriction (s 11), and anatomical/percentage measurements for amputations (s 9).

Duty to document causation: the FIMTM score sheet in Schedule 1 asks whether the score is “due to the injury” and provides space for “Reasons for score”. The instrument therefore anticipates an explicit causal enquiry linking functional limitation to the compensable injury.

Duty to use credentialled assessment where appropriate: Schedule 1 records whether the FIMTM assessment was administered by a FIMTM‑credentialed assessor. While the instrument does not make credentialling an absolute statutory precondition, the inclusion of that field signals that a credentialled assessment is the appropriate evidentiary vehicle for functional scoring under the rules.

Rights are indirect: an employee whose injury meets the listed conditions will, by operation of the Act together with these rules, qualify as having a catastrophic injury for statutory purposes. The instrument itself does not specify the rights or remedies that follow; those remain in the Act. The rules also preserve the employee’s retrospective application right by being applicable to injuries that occurred before commencement (s 4).

Discretion left to clinicians and decision-makers: the instrument uses some terms that require clinical judgement , for example, “significant brain imaging abnormality” (s 8), methods for computing “percentage of the length of the femur” lost (s 9), or the calculation of TBSA for burns (s 10). Those items create zones of professional discretion in how evidence is produced and assessed. Decision-makers applying the Act will need to determine whether particular clinical findings fit the descriptive thresholds set out in the rules.

The instrument contains no criminal or civil penalties, fines or enforcement mechanisms. It is framed as a rules instrument defining conditions to be used for the statutory definition of “catastrophic injury” in subsection 4(1) of the Act (s 6). The instrument states its authority (s 3) and commencement (s 2) but does not create enforcement powers or prescribe sanctions for non‑compliance.

Enforcement consequences therefore arise indirectly through the Act. That is, classification under these rules will alter how the Act’s enforcement, compensation, and rehabilitation provisions operate in respect of an injured employee, but the instrument does not itself set out those operational consequences. Any penalty or remedial process, including dispute resolution, appeals or sanctions for incorrect classifications, must derive from the Act or from other administrative procedures established under the Act. The text does not reproduce those mechanisms.

Compliance oversight will be functional rather than penal within the instrument’s text. Because the rules require particular kinds of evidence (for example FIMTM scoring, PTA duration, imaging, respiratory function tests), practical enforcement of correct application will depend on claims administrators and clinical assessors accepting or challenging the sufficiency, accuracy and credentialing of assessments. The instrument’s Schedule requests that the FIMTM assessment indicate whether it was administered by a credentialled assessor, which creates an evidentiary expectation rather than a statutory penalty for not being credentialled.

In disputes over whether the criteria are satisfied, existing Act procedures for review and appeal,outside this instrument,will govern the outcome. The instrument does not modify or create new appeal rights; it merely supplies substantive criteria for catastrophic classification. Where a party fails to produce the relevant evidence, the practical consequence will be that decision-makers under the Act may not classify the injury as catastrophic, with attendant effects on compensation and services; those consequences are operational, not penal, within the text of the instrument.

The instrument is expressly made under the Act; it interfaces with the Act by supplying the conditions to be used in the statutory definition of catastrophic injury in subsection 4(1) of the Act (s 3, s 6). The instrument therefore operates as a delegated‑authority rule that refines a statutory term. Its legal effect is to instruct how the Act’s existing processes should treat particular injuries once the criteria are met.

Direct cross-references in the text are limited to the Act and the Act’s subsections that govern delegated rule‑making and the definition of catastrophic injury (s 3, s 6, s 5 defined “injury” with reference to compensation payable under the Act). The instrument states that it applies to injuries before, on, or after commencement (s 4), so it potentially affects claims currently in process under the Act and those yet to arise.

Interaction with clinical and professional standards occurs by necessity rather than by explicit statutory cross-reference. The rules demand clinical measurements and uses a specific proprietary instrument, the FIMTM, as the functional measure for brain and burn injuries (s 8, s 10, Schedule 1). Because the FIMTM is a trademarked instrument with a territory licence held by AROC in Australia (Schedule 1 note), the instrument intersects with intellectual property and credential frameworks: assessors will need to be FIMTM‑credentialled to produce the preferred evidence and administrators will need to rely on licence‑compliant assessments. The instrument does not alter clinical legislation but effectively imports a standardised clinical measure into the legal test.

Where the rules require respiratory function to be “less than 50% of that predicted for the employee’s age, height and ethnicity” (s 10), they presuppose use of normative prediction equations or reference standards. The instrument does not specify which prediction tables or reference values must be used, so the choice of clinical standard,pulmonary function reference data that account for age, height and ethnicity,will determine whether an individual meets the threshold. That creates an interface between the instrument and accepted clinical measurement standards.

For amputations, the instrument’s measurement of percentage length lost (s 9) will interact with clinical practice on limb measurement and categorisation. For blindness, corrected visual acuity standards (s 11) connect with ophthalmological testing standards. The instrument itself does not harmonise these clinical standards; it incorporates them as necessary inputs to the legal test.

Finally, because the instrument does not create enforcement mechanisms, procedural and remedial interactions,appeals, review, compensation payments,remain governed by the Act and any subordinate procedures established under the Act rather than by the instrument itself.

The instrument, titled the Safety, Rehabilitation and Compensation (Catastrophic Injury) Rules 2018, is dated 22 August 2018 and was signed by the Minister, Craig Laundy (instrument preamble). It states a commencement rule: the instrument commences the day after it is registered on the Federal Register of Legislation (s 2). The instrument records its authority as being made under section 122A of the Act (s 3).

There are no provisions within the text that record prior versions, prior instruments substituted or revoked, or subsequent amendments. The instrument does not include transitional amendment provisions beyond the application clause that extends its operation to injuries suffered before, on or after commencement (s 4). No schedules or notes in the instrument indicate later modification dates, revocations, or amendment provisions. The Schedule provides operative material (the FIMTM score sheet) and a trademark/licence note relating to the FIMTM; it does not record alterations over time.

Because the instrument is a standalone rules instrument made under delegated authority, any amendment, revocation or replacement would need to occur by further instrument made under the same delegated power in the Act. The text does not record any such subsequent instruments. The only dated markers in the instrument are the minister’s date (22/8/18) and the commencement mechanism; nothing in the instrument’s text supplies an amendment history beyond that.

Where stakeholders require an authoritative amendment history (for example to check whether these criteria have been altered since the date on the instrument), they will need to consult the legislative register or the Act’s instrument history outside this text. The instrument itself gives no record of subsequent amendments, legislative fixes, or corrigenda.

The instrument’s text does not reference any court decisions, tribunal determinations, or administrative rulings related to its provisions. It does not catalogue prior litigation, nor does it set out any interpretative rulings. No cases, judicial or arbitral authorities, or appeal outcomes are named or summarised in the instrument.

Because the rules operate as definitional criteria for catastrophic injury under the Act, disputes over application,such as whether an injured employee meets the FIMTM threshold, whether a period of post traumatic amnesia reached seven days, whether an imaging abnormality is “significant,” or whether percentage limb losses meet the thresholds,would be matters that could generate litigation or tribunal review under the Act’s dispute mechanisms. However, the instrument itself does not provide examples, precedent, or enforcement decisions.

Practitioners seeking litigation history relevant to interpreting these criteria must therefore look outside this instrument to the administrative decisions, tribunal files and court records arising from claims under the Act where these rules have been applied. The instrument contains none of that material. The absence of litigation references in the text means that assessors, claims handlers and lawyers should expect to rely on clinical evidence and on the Act’s procedural review mechanisms when contesting classifications; the instrument does not supply case law or interpretative gloss.

The instrument contains several technical features and drafting choices that can produce unintended evidentiary or administrative consequences in application. These points are grounded in the text and highlight where careful attention is required.

1. Single‑item FIM threshold for brain and burn injuries (s 8, s 10, Schedule 1): The rules require an “impairment assessed at a score of 5 or less on any of the items on the FIMTM score sheet” (s 8(b), s 10). That means meeting the threshold on a single FIM item suffices (the test is “any” item), rather than a total FIM score. Practitioners must therefore be precise about whether a single domain at level 5 or less has been reached and whether that domain is attributable to the compensable injury (Schedule 1 asks “Is score due to the injury?”).

2. Conjunctive tests for brain and burn injuries: Both categories require functional impairment (FIM item ≤5) plus additional markers. Brain injury requires PTA ≥7 days or a “significant brain imaging abnormality” (s 8). Burn injury requires either large TBSA full thickness burns (thresholds age-differentiated) or inhalation injury producing VC or FEV1 <50% predicted (s 10). Failure to satisfy the adjunct marker will defeat catastrophic classification even if a FIM item is ≤5.

3. Undefined clinical terms invite discretion: The instrument uses terms that are not defined within its text,“significant brain imaging abnormality” (s 8), “post traumatic amnesia” (s 8), and methods for calculating “percentage of the length of the femur” lost (s 9). Absence of definitions means those items are resolved by clinical judgment and evidentiary proof, creating scope for disagreement.

4. Reliance on proprietary assessment tool and credentialling (Schedule 1): The FIMTM is trademarked and the Schedule notes AROC holds the territory licence in Australia. The sheet asks whether the assessor is FIMTM‑credentialled. The instrument does not state that an uncredentialled assessment is invalid, but the inclusion of the credential field creates an evidentiary preference and potential procedural objection if a claimant produces non‑credentialled FIM assessments.

5. Amputation aggregation rules are narrowly configured (s 9(2)-(3)): For multiple injuries, the prior injury must be to a different limb and must itself meet a specified loss condition; earlier injuries that do not meet the conditions are explicitly not to be treated as catastrophic (s 9(3)). That creates potential for sequencing disputes about earlier injuries and their recorded characteristics.

6. Age-dependent thresholds for burns (s 10): TBSA thresholds differ for employees under and over 16. Care is needed in borderline age cases, and in how TBSA is calculated. The rules do not prescribe a TBSA method.

7. Respiratory function reference standards (s 10): The inhalation criterion compares VC or FEV1 to predicted values “for the employee’s age, height and ethnicity.” Use of ethnicity in predicted values raises a requirement to select appropriate normative tables; the instrument does not specify which are authoritative.

8. Visual acuity after correction (s 11): The blindness test requires corrected acuity less than 6/60 in both eyes or field constriction to within 10 degrees in the better eye, or a combination equivalent. The instrument’s note defines 6/60 but not the correction standards or measurement conditions.

9. Causation explicitly queried on FIM sheet (Schedule 1): The Schedule asks “Is score due to the injury?” That requires assessing whether functional impairment is attributable to the compensable injury rather than to comorbidity or pre‑existing condition. The instrument does not resolve how competing attributions should be treated.

10. Retrospective application (s 4): The rules apply to injuries suffered before commencement; this requires re-examination of pre-existing claims and possibly re-assessment under new thresholds, with attendant administrative and evidentiary burdens.

Each of these features translates into practical decision points: which assessors to use, how to measure percentages and TBSA, what imaging reports suffice, what normative equations count for predicted respiratory values, and how to establish PTA duration. The instrument delegates these determinations to clinical evidence and decision-makers without prescribing single measurement protocols.

Compliance in practice means assembling the specific clinical and documentary evidence the instrument requires to show whether an employee’s injury meets a catastrophic category. The rules themselves define the evidentiary items; below is a step‑by‑step approach grounded on the instrument’s text.

1. Identify the relevant catastrophic category (s 6). Start by mapping the employee’s injury to one of the five categories: spinal cord, brain, amputation, burn, or blindness.

2. For spinal cord injuries (s 7): obtain clinical documentation demonstrating a lesion of the spinal cord or cauda equina and demonstrate one or more of the listed deficits,sensory deficit, motor deficit, bladder dysfunction, bowel dysfunction. Include neurological assessments, specialist reports and functional testing showing these deficits.

3. For brain injuries (s 8):

   • Produce evidence of impairment of cognitive, physical or psychosocial functions.
   • Complete the FIMTM score sheet (Schedule 1) and identify any FIM item scored 5 or less. Ensure the assessor records whether the score is due to the injury and provides reasons.
   • Establish either (i) that post traumatic amnesia lasted at least seven days, with documentation from clinical notes or specialist reports, or (ii) that brain imaging shows a “significant brain imaging abnormality.” Because the instrument does not define “significant”, obtain detailed radiology reports and treating neurologist/clinician opinions linking imaging findings to functional outcomes.

4. For amputation injuries (s 9):

   • For single injuries, document the precise anatomical level (forequarter, shoulder disarticulation, hip, hindquarter, etc.), neurological status in plexus avulsions (residual functioning), or measure limb length loss as a percentage of femur or tibia where specified (65% femur, 50% tibia thresholds). For thumb loss, document level at or above first metacarpophalangeal joint.
   • For multiple injuries, assemble the history of prior limb injuries and evidence that the earlier injury satisfied the listed thresholds or prior catastrophic conditions. Note that earlier injuries that do not meet the conditions are not to be treated as catastrophic (s 9(3)).

5. For burn injuries (s 10):

   • Complete the FIMTM sheet and record any item scoring 5 or less as attributable to the burn.
   • For full thickness burns, secure TBSA estimates and age at injury to check thresholds (>40% TBSA for age 16+, >30% for under 16). Document whether burns affect hands, face or genital area.
   • For inhalation burns, obtain pulmonary function tests showing vital capacity or FEV1 and compute percentages of predicted values using appropriate prediction equations that incorporate age, height and ethnicity, since the instrument requires comparison to predicted values.

6. For blindness (s 11):

   • Obtain ophthalmological assessment showing corrected visual acuity in both eyes and visual field testing. Demonstrate corrected acuity less than 6/60 in both eyes or constriction to within 10 degrees of fixation in the better eye, or a combination resulting in equivalent impairment. Include correction methods used.

7. Use the FIMTM properly (Schedule 1):

   • Record method of administration (direct observation or interview), date of assessment, and whether the assessor is FIMTM‑credentialled. Given the Schedule’s emphasis, prefer use of a credentialled assessor and retain credential documentation.
   • Complete the “Is score due to the injury?” box and provide reasons for each scored item to address causation and pre‑existing conditions.

8. Address undefined terms with specialist evidence:

   • For “significant brain imaging abnormality” or PTA, obtain specialist reports that explain why particular imaging findings are significant or why PTA reached the threshold. Where clinical judgment is required, produce contemporaneous expert opinions.

9. Document measurement methodologies:

   • For percentage limb length loss and TBSA, document the method used to compute percentages and TBSA. Where possible, use standard clinical calculation methods and record the methodology in the report, because the instrument does not prescribe a specific calculation.

10. Anticipate disputes and preserve records:

• Because the instrument applies retrospectively (s 4), maintain clear records for historical injuries. Preserve imaging, operative, and assessment reports that show onset, progression and attribution of deficits.

11. Note intellectual property and licence issues:

• The Schedule records that FIM is a trademark and that AROC holds the territory licence in Australia. Where using the FIMTM instrument, ensure assessments comply with licence terms and use credentialled administrators where feasible.

12. Coordinate with the Act’s processes:

• The instrument supplies the substantive criteria; implementation will take place through the Act’s existing compensation and review processes. Route the collected evidence into the Act’s claim or review pathways as required by the administering authority.

Following these steps aligns assessment and documentation with the instrument’s specified thresholds (see s 6-11 and Schedule 1). Because several criteria rely on clinical judgement or external reference standards (imaging significance, PTA, predicted respiratory values), front‑loading specialist assessments and explicit methodological records reduces the risk of classification disputes.