Safety, Rehabilitation and Compensation (Defence-related Claims) (Catastrophic Injury) Rules 2018

The instrument operates as a definitional matrix linking two types of requirement: an impairment threshold measured on the FIMTM score sheet, and categorical qualification under one of five named injury types. The FIMTM requirement is numerical and immediate: a FIMTM credentialed medical or health care professional must assess an impairment with a score of 5 or less on any item of the FIMTM score sheet (s 6(a)). The Commission then must be satisfied the injury is one of the five specific catastrophic injury types listed in s 6(b).

Each catastrophic category has its own clinical triggers and thresholds:

• Catastrophic nerve injury (s 7) is defined by anatomical localisation, viz a lesion of the spinal cord, cauda equina, brachial plexus, lumbosacral plexus, cervical plexus or coccygeal plexus, that results in sensory deficit, motor deficit, bladder dysfunction or bowel dysfunction. These are binary descriptors of lesion plus listed functional deficits (s 7(a)-(d)).

• Catastrophic brain injury (s 8) requires impairment of cognitive, physical or psychosocial functions and then evidence from one or more of: post traumatic amnesia of at least 7 days, a significant brain imaging abnormality, or a Standardised Mini‑Mental State Examination score of less than 25. The instrument also allows the Commission to treat damage similar in effect and severity to those criteria as qualifying (s 8(a)-(b)).

• Catastrophic amputation injury (s 9) is defined by explicit amputation levels and quantitative loss thresholds, including listed high-level amputations (forequarter, shoulder disarticulation, hindquarter, hip disarticulation), loss of 65% or more of femoral length, or loss of at least two of specified limb or thumb-length thresholds (s 9(a)-(b)).

• Catastrophic burn injury (s 10) sets percentage total body surface area (TBSA) thresholds for full thickness burns by age (greater than 40 per cent for persons aged 16 or above, greater than 30 per cent for persons under 16), any full thickness burns to hands, face or genital area, or inhalation burns with vital capacity or forced expiratory volume in one second less than 50 per cent of predicted for age, height and ethnicity (s 10(a)-(b)).

• Catastrophic blindness injury (s 11) uses corrected visual acuity less than 6/60 in both eyes, constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity, or a combination of visual defects producing the same degree of impairment (s 11(a)-(c)).

Two definitional features require emphasis. First, the instrument freezes the versions of two assessment tools as at the commencement date: the FIMTM score sheet and the SMMSE tool (s 5). That is, the instrument ties qualifying measurements to particular published versions. Second, the threshold structure is conjunctive: both the FIMTM criterion and the Commission’s satisfaction that the injury fits one of the enumerated categories are required (s 6(a)-(b)). The instrument therefore blends a standardised functional metric with categorical clinical definitions that rely on different specialties and diagnostic modalities.

The instrument’s operational effect falls on claimants, medical and health care professionals involved in assessment, the Commission that determines catastrophic status, and institutions or parties whose obligations under the Act depend on the catastrophic classification. The text defines "employee" and "injury" by reference to the Act (s 5), and the instrument explicitly links to the definition of catastrophic injury in subsection 4(1) of the Act (Purpose, s 4). Therefore the population affected is the cohort of employees or former employees whose injuries are within the scope of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and who seek classification under the Act as catastrophically injured.

Specific actors affected by the instrument’s content are:

• Claimants or potential claimants, who must obtain the necessary assessments and evidence to satisfy both limbs of s 6. For the FIMTM limb, a FIMTM credentialed medical or health care professional must perform the assessment and produce a score of 5 or less on any FIMTM item (s 6(a)). For the categorical limb, claimants will need clinical evidence corresponding to whichever category is relied upon (s 7-11).

• Medical and health care professionals, who must be credentialed in FIMTM to provide the requisite functional assessment for s 6(a). Specialists such as neurologists, neurosurgeons, orthopaedic surgeons, burn specialists, pulmonologists (for pulmonary function), and ophthalmologists will be relevant for producing the objective measures required by sections 7-11.

• The Commission, which has the decision-making role of being "satisfied" that the injury is a listed catastrophic type (s 6(b)). The Commission’s role implies an evidentiary review and adjudicative function that is central to the instrument’s operation.

• Employers, insurers and other parties whose legal or financial obligations under the Act depend on whether an injury is catastrophic. The instrument itself does not specify amounts or entitlement rules, but by setting the threshold for "catastrophic" it affects which claims may attract the Act’s catastrophic-related provisions.

The instrument does not specify payment mechanisms or who pays compensation. It prescribes the criteria for categorisation only, leaving the Act to determine entitlements and payments. The instrument also affects administrative practice: using specified versions of assessment tools creates a compliance requirement for assessors and for the Commission when evaluating evidence (s 5). Finally, the instrument affects specialists’ workload and the types of tests and reports that will be required when catastrophic status is contested, because the statutory criteria point to particular clinical measurements and documentation.

The instrument delineates duties and procedural touchpoints implicitly through its criteria; it does not create freestanding, express duties such as payment obligations, nor does it grant specific rights like lump-sum entitlements in its text. The operative duties imposed by the instrument are principally evidentiary and administrative.

Duties:

• To establish the FIMTM limb, an injury must be assessed by a FIMTM credentialed medical or health care professional who records a score of 5 or less on any FIMTM score sheet item (s 6(a)). The duty, therefore, lies on the party seeking a catastrophic finding (normally the claimant) to obtain that credentialed assessment and to present it to the Commission.

• To establish a categorical limb, the proponent must produce evidence that allows the Commission to be satisfied that the injury falls within one of the five categories (s 6(b)). The type of evidence will depend on the category: clinical lesion localisation and documentation of deficits for nerve injuries (s 7), cognitive testing, imaging or documented post traumatic amnesia for brain injuries (s 8), operative reports and measurements for amputations (s 9), TBSA estimates and pulmonary function results for burns (s 10), and ophthalmological measures for blindness (s 11).

• The instrument fixes the versions of key tools, creating a duty to use (or at least rely upon) the specified versions of the FIMTM score sheet and the SMMSE tool as they existed on commencement (s 5). Assessments using later versions are not authorised by the instrument’s text.

Rights and decision-making:

• The Commission has the role of decision-maker; the instrument requires that "the Commission is satisfied" that the injury is of an enumerated catastrophic type (s 6(b)). That is the statutory standard, and the Commission’s satisfaction is a precondition to the injury being treated as catastrophic under the Act.

• Claimants possess procedural rights in practice because they must be able to present the necessary clinical evidence to the Commission; the instrument’s requirements imply the right to have relevant clinical tests considered by the Commission when it decides satisfaction under s 6(b). The instrument does not, however, specify appeal processes, review rights, or time limits; those procedural rights, if any, will be governed by the Act and associated procedural rules that are not contained in this instrument.

• Medical professionals have the right to be recognised for the purposes of the FIMTM limb only if they are FIMTM credentialed; the instrument implicitly restricts admissible functional assessments to those performed by credentialed practitioners (s 6(a)).

In sum, the instrument imposes an evidence-gathering duty on claimants and a fact-finding duty on the Commission, uses fixed-tool versions as at commencement (s 5), and allocates the decision whether an injury is catastrophic to the Commission (s 6(b)). It does not itself create payment obligations, appeal rights, or enforcement penalties within its own text.

The instrument contains no express penalties, fines, sanctions, or criminal offences. Its enforcement mechanism is administrative and limited to adjudicative determination by the Commission. The only direct statutory operational command is that an injury is a catastrophic injury for the purposes of subsection 4(1) of the Act where both the FIMTM assessment criterion and the Commission’s satisfaction that the injury is one of the specified categories are met (s 6). That places responsibility for interpretation and application squarely on the Commission.

Because the instrument prescribes criteria for classification rather than corrective or punitive measures, the instrument’s enforcement operates through evidentiary standards and the Commission’s application of them. Practical enforcement elements implied by the text include:

• The need for qualified assessments: the FIMTM limb requires a FIMTM credentialed medical or health care professional to perform the assessment (s 6(a)). Where such assessments are absent or non‑credentialed, the Commission may decline to be satisfied that the FIMTM threshold has been met.

• The need for specified clinical tests and reports: categories rely on imaging, SMMSE scores, documented periods of post traumatic amnesia, pulmonary function tests, visual acuity and field testing, or surgical/clinical documentation of amputation levels (s 7-11). The absence or inadequacy of these documents will affect the Commission’s satisfaction.

• Discretionary element: the Commission is required to be "satisfied" that the injury is in one of the listed categories (s 6(b)). That phrase in the instrument confers a fact-finding discretion on the Commission to evaluate the weight and sufficiency of evidence. The instrument also includes a residual clause for "damage to the brain similar in effect and severity" to the listed brain injury criteria, which further broadens the Commission’s evaluative task (s 8(b)).

The instrument does not specify procedural enforcement mechanisms such as timelines for Commission decisions, review rights, or sanctions for presenting false information. Any enforcement of false or misleading evidence, or procedural enforcement in respect of Commission decisions, would need to be located in the Act or other legislation; such provisions are not contained within this instrument. Consequently, the instrument’s enforcement is administrative and evidentiary rather than penal.

The instrument expressly operates as a subordinate instrument to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. It is made under subsection 122A(1) of that Act (s 3) and its stated purpose is to prescribe conditions for the definition of catastrophic injury in subsection 4(1) of the Act (s 4). Therefore the instrument is a definitional adjunct to the Act and has no standalone operation outside that statutory framework.

Interactions and dependencies apparent from the text include:

• Reliance on Act definitions and coverage: The instrument refers to "injury" and "employee" by reference to the Act (s 5). A note in the instrument states that under paragraph 5A(1)(a) of the Act, an injury includes a disease suffered by an employee, and signals that the Act contains further provisions on disease (s 5, note). Therefore whether a particular condition falls within the instrument’s scope will depend on the Act’s broader definitions and eligibility criteria.

• Commission’s role under the Act: The instrument confers the decision point to "the Commission" (s 6(b)). The Commission’s powers, procedures, review rights, and any appeal mechanisms will be governed by the Act and potentially other administrative law provisions. The instrument does not displace or detail those procedural rules.

• Use of recognised clinical tools: The instrument prescribes use of the FIMTM score sheet and the SMMSE tool as published by named bodies (s 5). Those tools, and their published versions, are external clinical instruments which in turn are produced under other institutional arrangements. The instrument explicitly fixes versions as at commencement, meaning changes to those external instruments will not automatically change the legal test in this instrument.

• Medical licensing, credentialing and professional standards: The instrument’s requirement that the FIMTM assessment be performed by a "FIMTM credentialed medical or health care professional" (s 6(a)) interacts with the credentialing systems and professional regulation governing clinical practitioners. The instrument does not itself set credentialing standards, and so the process for recognition and the identification of who is credentialed will hinge on external credentialing mechanisms mentioned in s 5 (the FIMTM published by AROC).

• Clinical measurement standards: Several categories refer to clinical measurements (visual acuity 6/60, pulmonary function less than 50% predicted, SMMSE less than 25, FIMTM item scores of 5 or less). Those measures interact with medical measurement standards, predictive equations, and normative tables, but the instrument fixes the measurement thresholds without defining the underlying predictive models. How those predictive values are applied in practice will depend on accepted clinical and testing standards used by practitioners.

Because the instrument is silent on procedural and compensatory detail, it functions as part of a legal ecosystem where substantive entitlements, administrative process, and review rights will be governed by the Act and any accompanying procedural rules. The instrument must be read in that context.

The instrument itself states its name (Safety, Rehabilitation and Compensation (Defence-related Claims) (Catastrophic Injury) Rules 2018) (s 1), its commencement timing (s 2), and its authority under subsection 122A(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (s 3). The text of the instrument prescribes definitions, the conditions of a catastrophic injury, and the detailed criteria for five categories of catastrophic injury (ss 5-11).

The instrument contains no internal amendment schedule, transitional provisions or amendment clauses beyond specifying the versions of two assessment tools as at commencement (s 5). The instrument therefore sets the operative text and freezes the versions of the FIMTM score sheet and the SMMSE tool "as they exist on the day of commencement" (s 5). That freezing effect functions as a temporal anchor: later updates to those tools are not incorporated by the instrument’s text unless an amending instrument is made.

The instrument does not include any listed prior instruments to be replaced or any retrospective amendments to earlier instruments. It does not contain a schedule of prior legislative changes, nor does it list any prior versions of itself. The only historical information in the instrument is the commencement provision (s 2), which places effect the day after registration.

Because the instrument is made under a power in the Act (s 3), any future amendments to these rules would follow the Act’s enabling procedures for such subordinate instruments. The instrument itself does not describe that process. The instrument also includes notes with links to the published versions of the FIMTM and SMMSE documents as available at commencement (s 5, notes), which is the only archival information contained in the text about the versions relied upon.

In short, the instrument records its own making and commencement and fixes the versions of referenced clinical tools as at commencement. It contains no later amendment history within its text.

The instrument contains no citations to cases, judicial decisions, or administrative determinations. The text does not record any litigation, challenges, or judicial interpretations of its provisions. There are no internal references to decided matters, no schedules of legal proceedings, and no appellate history included in the instrument.

Because this instrument functions as a subordinate rules instrument defining what constitutes a catastrophic injury for the statutory definition in subsection 4(1) of the Act (s 4), litigation about its application would arise in the context of disputes under the Act concerning whether an injured person satisfied the catastrophic threshold. Such disputes and any subsequent litigation would be matters external to the instrument and therefore not recorded in its text.

Consequently, within the contents of this instrument itself, there is no litigation history to report. Any analysis of judicial interpretation, contested Commission decisions or appellate treatment would require examination of decisions and records outside the instrument. The instrument does not provide internal guidance about how the Commission’s satisfaction standard has been interpreted in practice, nor does it set out procedural or evidentiary rulings from adjudicative bodies.

Several precise drafting choices in the instrument create points of practical importance that may not be immediately obvious from a surface reading.

1. Two-pronged test, conjunctive requirement (s 6): Both the FIMTM criterion and the Commission’s satisfaction that the injury is one of the enumerated categories are required. A claimant who meets only one limb will not satisfy the instrument’s definition. The FIMTM limb requires a score of 5 or less on any item, not an overall low aggregate score (s 6(a)). That means a single FIMTM item at or below 5 may suffice for the first limb.

2. Credentialing requirement for FIMTM assessors (s 6(a)): The assessment must be performed by a "FIMTM credentialed medical or health care professional". The instrument does not define credentialing processes or list who is credentialed, and it ties admissibility to credential status. Assessments by non‑credentialed clinicians risk being treated as insufficient evidence for the FIMTM limb.

3. Fixed versions of assessment tools (s 5): The instrument references the FIMTM score sheet and SMMSE tool "being the version of the document as it exists on the day of commencement". That choice freezes the legal test to specific published versions. If those external tools are updated subsequently, the instrument’s legal standard will remain tied to the frozen versions unless the instrument is itself amended.

4. Brain injury residual clause (s 8(b)): For brain injury the instrument allows "damage to the brain similar in effect and severity to" the listed criteria to qualify. This creates an openness to analogy and interpretation by the Commission, which can be a source of uncertainty because it is not territorially bounded to the enumerated metrics.

5. Objective numeric and anatomical thresholds (ss 9-11): The instrument relies on numerical thresholds (e.g. femur length 65%, tibial length 50%, TBSA percentages, SMMSE <25, pulmonary function <50% predicted, visual acuity <6/60). These measurements require clinical measurement and, in some cases, predictive reference values (for pulmonary function). The instrument does not specify the measurement methods or predictive equations, which may lead to disputes about measurement technique and reference standards.

6. Ambiguities about "any item" on FIMTM (s 6(a)): FIMTM is a multi-item functional instrument. The instrument uses the phrase "a score of 5 or less on any of the items on the FIMTM score sheet". Parties may disagree about which FIMTM items are material, how single-item deficits should be weighed against aggregate function, and whether isolated low scores tied to temporary factors are sufficient.

7. Narrow anatomical lists for nerve injuries (s 7): Catastrophic nerve injury is limited to lesions of discrete named structures (spinal cord, cauda equina, and certain plexuses). Peripheral nerve injuries outside those anatomic categories are not captured by s 7, even if they produce severe deficits. Claimants with severe peripheral neuropathies not involving the listed structures will have to rely on other categories, if applicable, and will still need to satisfy the FIMTM limb.

8. No penalty or appeal detail in this instrument: The instrument does not specify remedies, timeframes or review options for disputed Commission findings. Parties must look to the Act and administrative law for procedural safeguards.

Each of the above points creates practical risks: evidentiary disputes about measurement and credentialing, potential mismatch between clinical reality and the anatomical list, and interpretative space afforded to the Commission under the "satisfied" standard and the brain injury residual clause.

To maximise the probability that an injury will be treated as catastrophic under this instrument, the steps recommended by the instrument’s requirements are procedural and evidentiary in nature. The instrument makes clear what measurement and documentation will be necessary; compliance therefore requires assembling the right clinicians, tests and reports and presenting them to the Commission.

1. Obtain a FIMTM assessment from a FIMTM credentialed professional (s 6(a), s 5). The FIMTM score sheet version as at commencement is the version specified (s 5). Ensure the assessor is FIMTM credentialed and records the full score sheet, highlighting any item scored at 5 or less. Because the instrument requires a score of 5 or less on any item, identify and document the specific item(s) relied upon.

2. Identify the appropriate catastrophic category and obtain category-specific evidence (ss 7-11):

   • Nerve injury (s 7): Obtain clinical and imaging evidence of a lesion located in one of the listed structures (spinal cord, cauda equina, brachial plexus, lumbosacral plexus, cervical plexus, coccygeal plexus) and document resulting sensory deficit, motor deficit, bladder dysfunction or bowel dysfunction. Specialist neurology or neurosurgery reports, electrophysiology and imaging will be relevant.
   • Brain injury (s 8): Document impairment of cognitive, physical or psychosocial functions and one or more of: documented post traumatic amnesia of at least 7 days, significant brain imaging abnormality, or SMMSE score less than 25. Use the SMMSE tool version specified in s 5 and obtain an authorised practitioner to administer it. If relying on the residual clause (s 8(b)), obtain explanatory expert reports linking the observed damage to the listed criteria in effect and severity terms.
   • Amputation (s 9): Secure operative reports, surgical notes and measurements showing the level of amputation. Document the femur or tibia length percentages where applicable, and the existence of forequarter, shoulder disarticulation, hindquarter, hip disarticulation or thumb amputations at or above the first metacarpophalangeal joint.
   • Burn (s 10): Obtain burn unit documentation with TBSA and depth assessments for full thickness burns, with age‑appropriate thresholds applied (greater than 40 per cent for persons 16 or above, greater than 30 per cent for persons under 16). For inhalation injuries, obtain pulmonary function testing showing vital capacity or FEV1 less than 50 per cent of predicted values and ensure the lab reports the predicted reference values used.
   • Blindness (s 11): Obtain ophthalmological testing showing corrected visual acuity after suitable lenses of less than 6/60 in both eyes, or visual field testing demonstrating constriction to within 10 degrees of fixation in the better eye, or a combination of defects producing equivalent impairment.

3. Ensure all assessments use the specified versions of the FIMTM and SMMSE tools (s 5). Keep contemporaneous records demonstrating which versions were used, and archive copies of the published versions relied upon.

4. Prepare medico-legal reports that reconcile the FIMTM findings with the categorical evidence. Because the instrument requires the Commission to be satisfied of the categorical limb (s 6(b)), explanatory expert opinions that cross‑walk clinical findings to the statutory criteria will assist the Commission’s fact-finding.

5. Anticipate measurement and reference disputes and document methodologies. For pulmonary function tests, request the laboratory to state the reference norms used for predicted values. For TBSA and burn depth, obtain clear documentation by a specialist experienced in burn assessment. For visual field testing and visual acuity, ensure testing is performed under standardised conditions and results are reported with the method used.

6. Confirm the credentials of the FIMTM assessor and any specialist reporting clinicians. Maintain documentary evidence of credentialing where possible, because the instrument ties admissibility to FIMTM credentialing (s 6(a)).

7. Present the assembled evidence to the Commission for satisfaction under s 6(b). The instrument does not set procedural time limits or appeal rights, so follow the processes and filing requirements set out in the Act and relevant procedural rules. Where the statutory process under the Act requires early notification or particular forms, comply with those separate requirements.

8. Budget for costs associated with specialist assessments and testing. The instrument itself does not provide for payment arrangements; therefore claimants should assume that diagnostic tests, specialist reports and medico-legal opinions will generate costs that must be met or funded through existing mechanisms under the Act or otherwise.

9. If the injury is borderline (for example, FIMTM items close to the threshold, or pulmonary function at 50 per cent predicted), consider obtaining multiple assessments, contemporaneous records and robust expert explanation of measurement error, to assist the Commission in its evaluative task.

10. Where the claimant is pursuing a classification that relies on the residual or "similar in effect" language (s 8(b) for brain injury), build a reasoned medico-legal argument that maps the observed deficits to the enumerated criteria in effect and severity, recognising the Commission’s discretionary evaluative role.

Compliance is therefore primarily documentary and clinical. The instrument specifies the tests and thresholds; effective compliance requires targeted clinical measurement, documentation of assessor credentials, and focused medico-legal presentation to the Commission consistent with the Act’s procedural framework.