New South Wales Consolidated Acts

CIVIL LIABILITY ACT 2002 - SECT 26D

26D Assessment of permanent impairment

(1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the
"1998 WC Act" ).

(2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if--

(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and

(b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and

(c) a reference in that Part of the 1998 WC Act to a worker's employer were a reference to the Crown, and

(d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and

(e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and

(f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations.

(2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part.

Note : The Minister may amend or repeal an order made under this subsection. See section 43 of the Interpretation Act 1987 .

(2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time.

(2C) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order made under subsection (2A) in the same way as they apply to a statutory rule.

(3) If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act.

(3A) A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner's reasons for that assessment.

(4) A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist in accordance with the 1998 WC Act.

(5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%.

(6) In this section--

"modification" includes an addition, omission or substitution.

"WorkCover Guidelines" has the same meaning as it has in the 1998 WC Act.