46ADegree 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— S. 46A(1)(a) substituted by No. 94/2004 s. 10(1). (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 S. 46A(1)(b) substituted by No. 94/2004 s. 10(1). (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— S. 46A(1AA) inserted by No. 94/2004 s. 10(2). (1AA) Despite subsection (1), the Commission must not determine the degree of impairment within 3 months after the accident. S. 46A(1AB) inserted by No. 94/2004 s. 10(2). (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— S. 46A(1AC) inserted by No. 94/2004 s. 10(2). (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. S. 46A(1AD) inserted by No. 94/2004 s. 10(2). (1AD) Despite subsection (1AB)(b), the Commission must comply with any request under subsection (1AC) that is made in writing. S. 46A(1A) inserted by No. 84/2000 s. 13, amended by Nos 94/2004 s. 10(3), 65/2008 s. 3, substituted by No. 80/2010 s. 5(1). (1A) If the Commission— S. 46A(1A)(a) amended by No. 71/2013 s. 12(1). (a) has not made a determination under this section of the degree of impairment of a person injured as a result of a transport accident who has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 that has been accepted by the Commission within the period of 6 years after the later of— (i) the date of the transport accident; or (ii) the date on which the injury to the person resulting from the transport accident first manifests itself; and (b) within that period of 6 years— (i) has not advised the person that he or she appears likely to be entitled to an impairment benefit; and (ii) has not received an application in writing from the person requesting the Commission to carry out an impairment assessment— the Commission is to be taken to have made a determination that the degree of impairment is 0%. S. 46A(1B) inserted by No. 84/2000 s. 13. (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 S. 46A(1B)(b) amended by No. 80/2010 s. 5(2)(a). (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; and S. 46A(1B)(c) inserted by No. 80/2010 s. 5(2)(b). (c) in the case of an injury to a person who was a minor at the time of the transport accident, from the day on which the person attains the age of 18 years. S. 46A(1C) inserted by No. 94/2004 s. 10(4). (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. S. 46A(1D) inserted by No. 94/2004 s. 10(4). (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. S. 46A(1E) inserted by No. 94/2004 s. 10(4). (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. S. 46A(1F) inserted by No. 71/2013 s. 13. (1F) When determining the degree of impairment under this section, section 47(7) or section 47(7A), the Commission must— (a) not include impairments resulting from injuries or causes that are unrelated to the transport accident; and (b) in the case of a person who has an injury that existed before the transport accident that is aggravated by an injury that was the result of a transport accident— (i) in the case of a spinal injury, use the apportionment methodology set out in Chapter 3.3f of the A.M.A Guides; (ii) in any other case, use the subtraction methodology set out in Chapter 2 of the A.M.A Guides. S. 46A(2) inserted by No. 34/1998 (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— S. 46A(2)(a)(i) amended by Nos 60/2007 s. 8(1)(3), 71/2013 s. 14(1), 18/2016 s. 3(1), 73/2016 s. 7(1). (i) the A.M.A Guides as applicable subject to this section; 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. S. 46A(2A) inserted by No. 60/2007 s. 8(2). (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. S. 46A(2B) inserted by No. 60/2007 s. 8(2). (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". S. 46A(2C) inserted by No. 71/2013 s. 14(2), repealed by No. 18/2016 s. 3(2), new s. 46A(2C) inserted by No. 73/2016 s. 7(2). (2C) The A.M.A Guides and the Spinal Impairment Guides Modification Document apply in respect of an assessment of impairment under section 3.3 of Chapter 3 of the A.M.A Guides, and if there is any inconsistency between the A.M.A Guides and the Spinal Impairment Guides Modification Document, the Spinal Impairment Guides Modification Document prevails, to the extent of the inconsistency. S. 46A(2D) inserted by No. 71/2013 s. 14(2), repealed by No. 18/2016 s. 3(2), new s. 46A(2D) inserted by No. 73/2016 s. 7(2). (2D) The Spinal Impairment Guides Modification Document may be amended, varied or substituted by a subsequent edition of the Spinal Impairment Guides Modification Document published by the Commission in the Government Gazette. S. 46A(2E) inserted by No. 73/2016 s. 7(2). (2E) An amendment, variation or substitution of the Spinal Impairment Guides Modification Document under subsection (2D) has effect on the day after the day on which the amendment, variation or substitution (as the case may be) is published in the Government Gazette. S. 46A(3) inserted by No. 34/1998 (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). S. 46A(4) inserted by No. 34/1998 (4) For the purposes of this section, the percentage of diminution of hearing— S. 46A(4)(a) amended by No. 71/2013 s. 15(a). (a) must be assessed as a binaural loss of hearing and determined— (i) by a person or class of persons approved; and (ii) in the manner approved— by the Minister; and S. 46A(4)(b) amended by No. 71/2013 s. 15(b). (b) must be assessed as a binaural loss of hearing and 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. S. 46A(5) inserted by No. 34/1998 (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. S. 46A(6) inserted by No. 34/1998 s. 8, substituted by No. 41/2006 s. 30(1).[[9]](#endnote-10) (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". S. 46A(6A) inserted by No. 41/2006 s. 30(1), amended by Nos 71/2013 s. 14(3), 18/2016 s. 3(3). (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. S. 46A(7) inserted by No. 34/1998 s. 8, amended by No. 60/2007 s. 8(3)(b), substituted by No. 73/2016 s. 7(3). ***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; ***Spinal Impairment Guides Modification Document*** means the Spinal Impairment Guides Modification Document published in the Government Gazette on 6 October 2016. S. 46A(8) inserted by No. 34/1998 s. 8, repealed by No. 95/2003 s. 27 (as amended by No. 28/2005 s. 32), new s. 46A(8) inserted by No. 94/2004 s. 10(5). (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 S. 46A(8)(b) amended by No. 60/2007 s. 8(3)(b). (b) any reference to permanent impairment in the A.M.A Guides is to be read as a reference to current impairment. S. 46A(9) inserted by No. 34/1998 s. 8, repealed by No. 95/2003 s. 27 (as amended by No. 28/2005 s. 32), new s. 46A(9) inserted by No. 41/2006 s. 30(2). (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**. S. 46A(10) inserted by No. 41/2006 s. 30(2). (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. 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. S. 46AA inserted by No. 34/1998 46AA Changes to methods of determining degree of impairment (1) The Governor in Council may by Regulations fix the methods to be used for the purpose of determining the degree of impairment in respect of an injury as a result of a transport accident. (2) Regulations made under this section— (a) must specify the methods to be used and any modifications of those methods that are to apply; (b) may for the purposes of paragraph (a) apply, adopt or incorporate, with or without modification any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body as formulated, issued, prescribed or published at the time the Regulations are made; (c) can only apply for the purpose of determining the degree of impairment of a person who is injured as a result of a transport accident on or after the date that the Regulations are made or on or after a later date specified in the Regulations. (3) If Regulations are made under this section, section 46A applies in respect of determinations of the degree of impairment to which the Regulations apply as if the provisions of the Regulations were substituted for subsections (2) to (7) of section 46A. S. 46B inserted by No. 60/1996 s. 35.