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Duty to mitigate your loss – very important in workcover cases

We have written about it many times  (see for example “Mitigation of Damages“), but perhaps it’s time to re-highlight that an injured person who makes a claim for compensation is actually required to take all reasonable steps to mitigate his or her loss. So what does this actually mean?

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WorkCover NSW – entitlement to make further permanent impairment claim

In August 2015 the NSW Court of Appeal decided that NSW injured workers could not make more than one lump-sum insurance claim. In other words that injured workers could not top up their lump-sum compensation payment if their condition deteriorated. However, yesterday (Monday 26 Oct 15), the state government will make a new regulation to override that court decision in that case, known as Cram Fluid Power v Green.

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AMA Guides and impairment rating are problematic

In most Australian jurisdictions (states and territories), the American Medical Association Guides  (AMA Guides) are the accepted assessment tool for injured workers’ permanent impairment rating. The problem with many AMA Guides (especially the older versions in use such as the AMA Guides 4th ed in Victoria) is that the rated impairment does not take into account the impact the impairment has on the injured worker. What should be measured is disability – that is, how the impairment really affects the injured worker.

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The most important thing in your workcover case is your health

Many injured workers we interact with want to know what their workcover case is worth. Perhaps not in the beginning of their workcover claim, but it is quite natural for (more seriously) injured workers to think about that and it almost always comes up. However, this is not the most important thing to think about. It is your health you should think about and foremost.
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The assessment of psychiatric impairment

With the recent rise in workcover, common law and civil claims involving alleged psychiatric injury, knowledge of how psychiatric impairment is assessed is critical to determining whether an injured worker is entitled to a lumpsum or general damages.

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Case gives new hope to injured workers: Permanent impairment assessment was questionable: Federal Court

At long last a ruling that challenges the integrity of permanent impairment assessments!  This decision should be a bombshell for the NSW workers comp scheme – given the new laws allow insurance company case managers to make capacity decisions.

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Process for impairment benefits

Permanent impairment entitlements: know the tricks, know your rights

Getting through a permanent impairment assessment in Victoria is not as straight forward as many injured workers may think. There are – unfortunately – many dirty tactics routinely used by so called “independent assessors” (and of course the hand that feeds them, namely the workcover insurance) used to deliberately downgrade your permanent injuries, all in the name of insurance profits (minimising your payout/legitimate compensation).

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The guide to the evaluation of psychiatric impairment for clinicians (G.E.P.I.C.)

By popular demand, here is the Guide to the evaluation of psychiatric impairment for clinicians (G.E.P.I.C) used today to assess permanent primary and/or secondary psychiatric/psychological conditions suffered as a result from or as a consequence of a workplace injury, by insurance doctors and medical panels.

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AMA Guide 4th Edition evaluation of permanent impairment handbook

A very loyal reader and good friend of ours has come across and so kindly shared the User Handbook to the AMA 4th Edition Guide to the Evaluation of Permanent Impairment, which is still used in many states to assess how the whole person impairment is calculated.

AMA Guide 4th Edition evaluation of permanent impairment handbook

Permanent impairment and lumpsum

You may be entitled to a lump sum payment if you are left with a permanent impairment because of your work injury. Unlike a common law damages claim, this is a no fault benefit, so you do not need to establish that your employer has been negligent.

The benefit is calculated in accordance with a formula depending on the level of impairment you are assessed as having. An independent doctor would need to examine you in accordance with a guide published by the American Medical Association (In Victoria and some other Australian states it is the 20 year old 4th edition).

The criteria for entitlement to a lump sum claim are tough and claims can be rejected by WorkSafe. The best rule if you are considering making a lump sum claim is therefore to get legal advice.

As a general rule, you must have suffered 10% physical permanent impairment as assessed by WorkSafe Vic (sometimes 5% for certain injuries like arm, leg, back). Here’s a rough guide:

5% impairment: $10,760
15% impairment: $32,348
20% impairment: $44,745
25% impairment: $57,143
30% psychiatric impairment: $69,540

Though? Yeah…real tough!

At first glance one would think that we have a what appears to be a reasonable, standard “guide” in place (The AMA guide 4th Edition) to assess the level of permanent impairment for each injured person…


… you will soon realise (if you dig a little further) that the use of the AMA guide (4th Edition) is based on pseudo science and designed to do only one thing: to stop people — especially the most vulnerable  — from being fairly compensated.

Did you know that the AMA Guides 4th Edition were published in 1993,they are just about 20 years old!

Under the current workers compensation system the kinds of injuries that would be denied compensation include:

  • vertebral fractures resulting in up to 25% compression with ongoing pain : 5-8% total body impairment rating!
  • spinal fusion requiring multiple surgeries with ongoing pain : up to 14%
  • surgically treated disc lesion with ongoing pain: 10%
  • pelvic fractures with displacement deformity: 2-10%
  • disorders restricting ability to walk up mild gradients and stairs, sit down in deep-chairs, rise to a standing position or walk long distances 1-9%
  • brief repetitive or persistent alteration of state of consciousness or awareness 0%-14%
Blame the lump sum culture eh… for the scheme’s deficits… what “lump sum”?

In NSW the new draconian compensation law now also states that lump sum payments are only available for serious permanent injuries, which are defined as greater than 10% WPI.

In Victoria (and most other states) Impairment benefit compensation is determined in accordance with a formula set out by law, dependent of the level of impairment you are assessed as having and the date of your injury. Once the level of impairment is accepted, you cannot negotiate on the amount of compensation that you are entitled to.

To receive any compensation for a psychiatric injury, you need to be assessed as having at least a whopping 30% whole person impairment (primary psychiatric injury).

You may only bring a lump sum claim once your injury has stabilised (that is, not getting any better or worse). At a minimum, you need to wait at least 12 months since your date of injury.

AMA Guide 4th Edition

This handbook to the AMA “Guides to the Evaluation of Permanent Impairment” 4th Edition is from New Zealand, but they too are based on the AMA 4th Edition & the worksheets & descriptions of how the ‘whole person’ permanent impairment  is calculated may just help you to understand the system too!


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[Post entirely entered by T on behalf of workcovervictim who is suffering from yet another nasty shoulder dislocation… ]




Injured and bullied, government worker despairs over WorkCover changes

A severely injured State Government employee from Sydney reports his despair at the thought of Barry OFarrell’s proposals to step down of weekly payments and discontinue medical treatment after 2 years .

The injured worker(who wishes to remain anonymous for fear of repercussions) has  recently been advised he has to undergo an extensive back operation shortly that will  result in a long recuperation period and extensive rehabilitation. The worker had initially chosen conservative treatment as recommended by his  treating professionals. Unfortunately his symptoms have deteriorated and he has been advised he will require surgery to prevent his condition from deteriorating to the point of permanent loss of motor function. Recovery from the surgery is established as very long and go way past the 2 year cap Mr Farrell is so intent on introducing .

After 15 years on the job this injured worker sustained a serious back injury  in 2010 and is currently on reduced hours, but at work. He has fought long and hard with his employer to actually get back to work and remain there.

The employer appears to failing miserable in their duty of care to this worker-in fact their behavior has been nothing less than obstructive and bullying including:

  • Protracted periods of the employer paying incorrect  weekly benefits, being forced to use personal leave to top his wage to meet daily living expenses
  •  Highly confidential information about his injury being broadcast by email to various staff who had absolutely no part in his return to work program – his  employer even going so far as to deny this ever occurred  despite  factual evidence being presented to them.
  • being told by work colleagues and a fellow manager to “piss off out of the department” adding I am “nothing more than a lazy  f**k and none of the other managers want to work with you”
  • severe bullying by managers and work colleagues with regard to the workers incapacity for work and broadcasting that the  injury is nothing but a ”put on” or  ”farce”
  •  request for a chair and more suitable seating area  has been ongoing for   more than 6 months despite continual requests from the treating doctor, pain management councilor, RTW consultant and the injured worker
  • little  contact internally from Managers who need to be involved in the  return to work process to ensure it is sustainable

All this despite  intervention from his treating professionals, rehab consultant, Work Cover and the insurer!

“When you have a serious injury it is all consuming trying to deal with the implications it has on you physically and on your life ,the last thing I expected from my employer was this psychological warfare” said the injured worker.’ My life is on hold and  my employer who caused the injury in the first place doesn’t give a damn. I have felt powerless to challenge this ongoing behaviour from my employer as my total focus has been on trying to beat my physical injury and no energy was ever left in me to fight  my employer since the injury occurred.

Our organization has a history of bullying those of us unfortunate enough to get injured. Mr OFarrell should focus on prevention of injuries at work and a penalize  employers who don’t fulfill their duty of care or  genuinely commit to assisting workers get back to work once they are injured.”