Victorian Current Acts

ACCIDENT COMPENSATION ACT 1985 - SECT 91

    (1)     In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment—

        (a)     made in accordance with—

S. 91(1)(a)(i) amended by No. 107/1997
s. 25(1), substituted by No. 26/2000 s. 13(1), amended by No. 60/2007 s. 25(1).

              (i)     the A.M.A Guides as applicable subject to subsections (1A) and (1B); or

S. 91(1)(a)(ia) inserted by No. 41/2006 s. 9(1), amended by No. 60/2007 s. 25(2).

        (ia)     the A.M.A Guides as applicable subject to subsections (1A) and (1B) and guidelines in accordance with subsection (6), (6A) or (6B); 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 by a medical practitioner who has successfully completed such a training course.

S. 91(1A) inserted by No. 60/2007 s. 25(3).

    (1A)     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—

        (a)     after the injury has stabilised; and

        (b)     subject to subsection (7), based on the worker'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 worker in respect of the injury.

S. 91(1B) inserted by No. 60/2007 s. 25(3).

    (1B)     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".

    (2)     In assessing a degree of impairment under subsection (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

S. 91(3) inserted by No. 107/1997
s. 25(2), amended by No. 80/2010 s. 88(1)(a).

    (3)     For the purposes of assessing the degree of impairment of the whole person resulting from diminution of hearing, the percentage of the diminution of hearing determined in accordance with subsection (4) is to be converted as follows—

S. 91(3)(a) amended by No. 80/2010 s. 88(1)(b).

        (a)     if the diminution of hearing assessed as a binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is zero;

S. 91(3)(b) amended by No. 80/2010 s. 88(1)(b).

        (b)     if the diminution of hearing assessed as a binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent;

S. 91(3)(c) amended by No. 80/2010 s. 88(1)(b).

        (c)     if the diminution of hearing assessed as a 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. 91(3AAA) inserted by No. 80/2010 s. 88(2).

    (3AAA)     Impairment from industrial deafness or a proportion of such impairment that occurs in circumstances that do not create a liability to pay compensation under this Act must be excluded from the assessment of deafness for the purposes of assessing the degree of impairment under this section.

S. 91(3AAB) inserted by No. 80/2010 s. 88(2).

    (3AAB)     Unless the Authority, self-insurer, Medical Panel or County Court (as the case requires) determines otherwise, impairment from industrial deafness is deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment.

S. 91(3AA) inserted by No. 28/2005 s. 18, amended by No. 80/2010 s. 88(3)(a).

    (3AA)     In the case of a further injury, for the purposes of assessing the degree of impairment of the whole person resulting from a diminution of hearing assessed as a binaural hearing impairment from which the worker was suffering immediately after the further injury in respect of which the claim is made, the percentage of the diminution of hearing is to be determined in accordance with subsection (4) and converted in accordance with subsection (3).

S. 91(3A) inserted by No. 102/2004 s. 16(1), substituted by No. 28/2005 s. 18, amended by No. 80/2010 s. 88(3)(b)(i).

    (3A)     In the case of a further injury, for the purposes of assessing the degree of impairment of the whole person resulting from a diminution of hearing in respect of prior injury or prior hearing loss, the percentage of the diminution of hearing is to be determined in accordance with sections 89(3C) and 89(3D) and converted as follows—

S. 91(3A)(a) amended by No. 80/2010 s. 88(3)(b)(ii).

        (a)     if the diminution of hearing assessed as a binaural loss of hearing is less than 10 per cent NAL, the degree of impairment is equal to that per cent (rounded up to the next whole number);

S. 91(3A)(b) amended by No. 80/2010 s. 88(3)(b)(ii).

        (b)     if the diminution of hearing assessed as a binaural loss of hearing is 10 per cent NAL, the degree of impairment is 10 per cent;

S. 91(3A)(c) amended by No. 80/2010 s. 88(3)(b)(ii).

        (c)     if the diminution of hearing assessed as a 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 sections 89(3C) and 89(3D).

S. 91(4) inserted by No. 107/1997
s. 25(2), amended by No. 102/2004 s. 16(2).

    (4)     For the purposes of this section and section 89(3)(a), the percentage of diminution of hearing—

S. 91(4)(a) amended by No. 80/2010 s. 88(3)(c).

        (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. 91(4)(b) amended by No. 80/2010 s. 88(3)(c).

        (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. 91(5) inserted by No. 107/1997
s. 25(2), amended by No. 82/2001 s. 14.

    (5)     An approval by the Minister for the purposes of subsection (4)(a)(i) continues in force for the period not exceeding 3 years as is specified by the Minister in the approval unless revoked by the Minister.

S. 91(6) inserted by No. 107/1997
s. 25(2), amended by No. 26/2000 s. 13(2), substituted by No. 41/2006 s. 9(2).

    (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. 91(6A) inserted by No. 41/2006 s. 9(2).

    (6A)     For the purposes of assessing the degree of occupational asthma impairment—

        (a)     the A.M.A Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 5, Tables 8 and 10, there were substituted the guidelines entitled "Impairment Assessment in Workers with Occupational Asthma"; and

        (b)     occupational asthma has the meaning given by the guidelines entitled "Impairment Assessment in Workers with Occupational Asthma".

S. 91(6B) inserted by No. 41/2006 s. 9(2).

    (6B)     For the purposes of assessing the degree of infectious occupational diseases impairment—

        (a)     the A.M.A Guides apply, subject to any regulations made for the purposes of this section and subject to the guidelines entitled "Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases"; and

        (b)     infectious occupational disease has the meaning given by the guidelines entitled "Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases".

S. 91(6C) inserted by No. 41/2006 s. 9(2).

    (6C)     The guidelines referred to in subsections (6), (6A) and (6B)—

        (a)     must be published by the Authority 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 Authority in the Government Gazette.

S. 91(7) inserted by No. 107/1997
s. 25(2).

    (7)     For the purposes of section 98C—

        (a)     impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the A.M.A Guides;

        (b)     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;

S. 91(7)(c) amended by No. 95/2003 s. 8(3)(a).

        (c)     impairments from unrelated injuries or causes are to be disregarded in making an assessment;

S. 91(7)(d) inserted by No. 95/2003 s. 8(3)(b), amended by No. 60/2007 s. 25(4).

        (d)     assessments are to specify the whole person values for each chapter of the A.M.A Guides used in the assessment.

Note

Paragraph (d) only applies in respect of assessments for injuries that occur on or after the date of commencement of section 8 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003— see section 264(2).

S. 91(7AA) inserted by No. 9/2010 s. 53.

    (7AA)     For the purposes of section 98C(2A)(a)(ii) and (iii), assessments of spinal impairment are to specify the whole person values derived in accordance with section 3.3 of Chapter 3 of the A.M.A. Guides.

S. 91(7A) inserted by No. 26/2000
s. 13(3), amended by No. 82/2001 s. 5.

    (7A)     For the purposes of Subdivision 1 of Division 3A and of section 134AB —

        (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; and

        (b)     impairments from unrelated injuries or causes are to be disregarded in making an assessment.

S. 91(7B) inserted by No. 26/2000
s. 13(4).

    (7B)     Regulations made under this Act may modify the A.M.A Guides.

S. 91(7C) inserted by No. 82/2001 s. 15, amended by No. 60/2007 s. 25(4).

    (7C)     If a regulation is made under subsection (7B), the A.M.A Guides as modified by the regulation only apply in respect of an injury occurring on or after the date the modification takes effect.

S. 91(8) inserted by No. 107/1997
s. 25(2), amended by No. 26/2000 s. 13(5), repealed by No. 80/2010 s. 88(3)(d).

    *     *     *     *     *

S. 91(9) inserted by No. 107/1997
s. 25(2), substituted by No. 95/2003 s. 7, amended by No. 60/2007 s. 25(4).

    (9)     Despite anything to the contrary in the A.M.A Guides, in determining a person's degree of impairment, no number determined under the A.M.A Guides is to be rounded up or down, regardless of whether the number represents an initial, an intermediate, a combined or a final value, unless the rounding is expressly required or permitted by this Act.

S. 91(10) inserted by No. 107/1997
s. 25(2), substituted by No. 95/2003 s. 7, amended by No. 60/2007 s. 25(4).

    (10)     A number determined under the A.M.A Guides must be rounded to the nearest whole percent.

Example

A final degree of impairment of 9·5% must be rounded to 10%. A final degree of impairment of 8·4% must be rounded to 8%.

Note

Section 264(1) sets out the transitional provisions that apply to subsections (9) and (10). Section 255 re‑enacts former sections 91(9) and 91(10) (which were transitional provisions in relation to amendments made by the Accident Compensation (Miscellaneous Amendment) Act 1997 ).

S. 91(11) inserted by No. 95/2003 s. 7.

    (11)     This subsection applies if—

        (a)     an assessment is made for the purposes of section 98C of a worker's degree of impairment; and

        (b)     the injury in respect of which the assessment is made occurred before the commencement of section 8 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 ; and

        (c)     the degree of impairment is determined to be 8% or 9%.

S. 91(12) inserted by No. 95/2003 s. 7, amended by No. 60/2007 s. 25(4).

    (12)     If subsection (11) applies, the degree of impairment may be rounded in accordance with the A.M.A Guides.

Pt 4 Div. 1A (Heading and ss 91A– 91D) inserted by No. 95/2003 s. 20.

Division 1A—Determination by courts and recognition of determinations

S. 91A inserted by No. 95/2003 s. 20.