Practice directive – Whole person impairment for ongoing entitlement to weekly payments

Background

This practice directive provides guidance for medical practitioners, independent medical examiners and independent impairment assessors. It may also be useful for employers and workers.

The Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2023 made a range of amendments to the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) and Accident Compensation Act 1985. One of these amendments was the introduction of a whole person impairment requirement for weekly payments to continue after the second entitlement period. This new requirement only applies to claims that reach the end of the second entitlement period on or after 31 March 2024.

Weekly payments after the second entitlement period

All worker's compensation claims are reviewed before the end of the second entitlement period. This second entitlement period review is also known as the 130-week review. For weekly payments claims that reach 130 weeks on or after 31 March 2024, an injured worker can only receive weekly payments after the expiry of the second entitlement period if they have:

• a whole person impairment of 21% or more as a result of their compensable injury or injuries, and
• no current work capacity and this is likely to continue indefinitely

Whole person impairment

Whole person impairment (WPI) is the measurement used to determine the percentage of permanent impairment resulting from a workplace injury or injuries arising from the same event or circumstance. It is expressed as a whole percentage value.

For the purposes of the second entitlement period review, it is the greater of the worker's:

• degree of impairment resulting from one or more physical injuries, or
• degree of impairment resulting from one or more primary psychiatric or psychological injuries

It is expressed as a whole percentage value.

The WIRC Act states that decision makers can determine WPI having regard to:

• an independent impairment assessment that has been completed in accordance with the requirements of Division 4 of Part 2 of the WIRC Act
• any medical reports, correspondence and other documents that have been provided for the purpose of determining the worker's entitlement to compensation, and
• the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides) and any guidelines referred to in section 54 of the WIRC Act

Second entitlement review period

Before the end of the second entitlement period, the decision maker will collect and review information about the worker's:

• compensable injuries and/or illnesses
• capacity to work
• degree of whole person impairment

This will include collecting and reviewing information about the worker's claim, as well as medical information. Documents that might be collected and reviewed include:

• the worker's claim form
• reports from the worker's treating medical practitioners, including clinical records, hospital records, pathology and diagnostic test reports
• occupational rehabilitation provider reports
• incident reports
• any other documentation submitted by the worker

An Impairment Specialist will then complete an Initial Eligibility Review (IER) to identify:

• the worker's compensable injuries or illnesses arising from the same event or circumstance
• whether those injuries or illnesses are stable
• the estimated degree of WPI for each injury of illness
• if the worker has been, or is currently being assessed, for an impairment benefit claim

The outcome of the IER will assist in deciding how the worker's WPI will be determined.

How whole person impairment is determined

A worker's WPI can be:

• assessed by an Independent Impairment Assessor (IIA)
• determined by an Impairment Specialist without an independent impairment assessment. This is known as an administrative determination

Impairment is measured using the:

• AMA Guides, for physical injuries and illnesses
• Guide to the Evaluation of Psychiatric Impairment for Clinicians, for psychiatric injuries and illnesses, and
• the Improved Procedures for Determination of Percentage Loss of Hearing, for heading loss

These guides provide specific instructions in medical terms about how to measure the extent that an injury or illness has affected body movements, systems or functions.

Independent impairment assessment

Most workers will be asked to attend an independent impairment assessment to determine their WPI. The worker must attend this assessment. The assessment is done by an IIA who is a medical doctor. All IIAs have completed training approved by the Victorian Government in how to assess WPI. A worker may be asked to attend more than one IIA appointment. For example, if the worker is claiming for both physical and psychiatric injuries, they may be asked to attend an assessment by an IIA who is an orthopaedic specialist and an IIA who is a psychiatrist.

Following the assessment, the IIA will prepare a report. The Impairment Specialist must review this report and verify:

• the worker has been assessed for all accepted injuries and/or illnesses
• the report includes:
  • a percentage WPI for the injuries or illnesses referred to the IIA
  • an opinion on whether the worker has suffered a total loss injury mentioned in the no disadvantage table
  • a correctly combined WPI
  • if a psychiatric injury has been assessed, that the assessment was completed in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians
  • any impairment from pre-existing or unrelated injuries or causes has been disregarded
• whether there is any deviation between the IIA’s assessment of the worker’s WPI and the estimate made during the IER

The Impairment Specialist will then determine the worker's WPI for the purposes of the WIRC Act.

A worker must be given a written statement of each injury included in the assessment.

Administrative determination

Administrative determinations allow Impairment Specialists to determine a worker's WPI without an independent impairment assessment. They are used where it is not necessary or practicable for a worker to attend an independent impairment assessment. Administrative determinations can only be made where:

• there is no reasonable prospect of the worker's WPI being 21% or more
• there is no reasonable prospect of the worker's WPI being less than 21%
• the worker resides overseas
• it is not reasonable or practical for the worker to attend an independent impairment assessment

When making an administrative determination, an Impairment Specialist must have regard to:

• the available medical evidence relating to whether the worker’s impairment is likely to be permanent
• any practical barriers to the worker attending an independent impairment assessment
• whether determining the worker's WPI without an independent impairment assessment is likely to disadvantage the worker

For example, if a worker is catastrophically injured, the Impairment Specialist should consider if an administrative determination is more appropriate, given there is no reasonable prospect of the worker’s WPI being less than 21%.

An administrative determination of a worker's WPI will continue to apply unless and until an independent impairment assessment is undertaken. This may occur as part of an impairment benefit claim, or during dispute resolution. This means that in the absence of an independent impairment assessment, an administrative determination may be a final determination of WPI.

A worker must be given a written notice of an administrative determination. This notice must include a written statement of each injury that the administrative determination relates to.

Interim determination

An interim determination may be made when it is not possible to make a final determination of a worker's WPI. Interim determinations should only be made where:

• the worker's injury is not stable. This includes diagnosed eligible progressive diseases which are unlikely to stabilise
• the worker has multiple injuries that arise from the same event or circumstance, and one or more is not stable
• the worker is under 18 years of age, or
• the information required to make a WPI determination is not available

An interim determination is made based on an estimate of what the worker’s WPI will be once it can be finally assessed.

When making an interim determination, Impairment Specialists should have regard to any:

• capacity assessment information, if the estimated WPI is 11% or more
• available medical evidence about the worker's capacity and degree of impairment
• information that confirms the worker’s injury or illness is not stable

A worker must be given a written notice of an interim determination. This notice must include a written statement of each injury that the interim determination relates to.

An interim determination is not a final determination and can be reviewed at any time. It applies until a further interim determination, or an ongoing determination is made.

Final determination of impairment

A worker may be asked to attend an independent impairment assessment for the purposes of:

• the second eligibility period review; or
• an impairment benefits claim (either statutory or common law)

An independent impairment assessment and WPI determination made for either of these purposes, will apply for both. For example, a worker submitted an impairment benefit claim and underwent an independent impairment assessment. Three months later the second eligibility period review of their claim starts. The worker will not be asked to attend another independent impairment assessment. The WPI from the impairment benefit assessment will be used for the purposes of the second eligibility period review.

Surgery after final determination of impairment

A worker can apply to have their WPI re-assessed if they have undergone surgery and believe their WPI has increased. The subsequent surgery must be for the same injury or one of the injuries to which the WPI determination relates.