12 - Entitlements - Impairment by huanghengdong

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									12 - Entitlements - Impairment
Impairment benefits and Table of Maims involve lump sum compensation for permanent impairment
or disabilities incurred through work-related injury.

Two different types   This chapter covers two different types of compensation, each with their own
of compensation       conditions and procedures:

                       S98C & s98E       Impairment benefits (non-economic loss benefits) for
                       claims –          injuries incurred on or after 12 November 1997.
                       injuries post     Impairment benefits are discussed in the main body of this
                       12/11/97          chapter.
                                         Note:

                                          There are separate processes for claims lodged on or
                                          after 12 November 1997 and prior to 18 November
                                          2004 and those lodged on or after 18 November
                                          2004.

                       S98 & s98A        Lump sum entitlements based on the Table of Maims, for
                       claims –          injuries incurred before 12 November 1997. They provide
                       injuries pre      compensation for permanent disability. For information
                       12/11/97          about maims, see appendix 12.11.6 - Table of maims
                                         claims

Correct procedures    It is vital that correct procedures are followed and correct calculations are
to be followed        made based on the relevant injury date. Agents must refer to the correct
                      section in this chapter that matches the type of claim being processed.

                       IB claim lodged    Impairments benefit claims lodged before 18 November
                       prior to           2004 that have not been withdrawn by the
                       18/11/04 and       worker/workers solicitors are to be processed in
                       not withdrawn      accordance with the legislation in place prior to the
                                          implementation of the 2004 legislative amendments.

                       IB claim lodged    Impairment benefit claims lodged before 18 November
                       before             2004 that have been withdrawn by the worker/workers
                       18/11/04 and       solicitors and have re-lodged on or after 18 November
                       has been           2004 are to be processed in accordance with the
                       withdrawn          legislation in place post the implementation of the 2004
                                          legislative amendments.

Chapter contents      12.1 - Process for impairment benefits
                      12.2 - Overview of impairment benefits
                      12.3 - Stabilisation of injuries
                      12.4 - Liability determination
                      12.5 - Impairment assessment
                      12.6 - No disadvantage compensation table
                      12.7 - Calculating impairment benefit claims
                      12.8 - Interest on IB and maims claims
                      12.9 - IB Claims lodged after employer exits Victorian scheme
                      12.10 - Legislation
                      12.11 - Appendices
12.1 - Process for impairment benefits
Here are the procedures for impairment benefit claims.

Procedure                   Process diagram




a Worker lodges impairment benefit claim
b Agent checks claim validity
c Collection of all treating practitioner reports
d Liability determination
e Liability rejected: worker appeals decision
f Suspension of impairment process
g Independent impairment assessment
h Agent reviews IIA report
i Agent determines and calculates impairment benefit entitlement
j Agent creates notice of entitlement
k Worker responds to notice of entitlement
l Agent pays worker impairment benefit
a Worker lodges impairment benefit claim
   BY        ACTION

Worker and   The worker lodges a claim for impairment benefits with their employer, or if
 worker’s    employer ceased / no longer in existence, on the relevant agent. The worker must
 solicitor   use a ‘Worker’s Claim for Impairment Benefits Form’.
             A worker is not required to provide any medical evidence in support of the claim,
             however, if the worker is legally represented, the worker’s solicitor may enclose a
             copy of all the gathered treating medical evidence along with a Solicitor Inquiry Form
             (SIF). The claim form, the SIF and the enclosed material is then submitted to the
             managing agent by either the employer or the worker’s solicitor.

                                                       Act ref:   S98C, S98E, S103, S106
b Agent checks claim validity
The impairment benefit specialist (IBS) is responsible for all the impairment benefit claims lodged
with the agent.

     BY        ACTION

   Agent        Check form      The agent must ensure the correct claim form is used and that that
                                the claim does not contain a material defect, omission or
                                irregularity. However, a claim will still be deemed to have been
                                made despite any material defect, omission or irregularity in the
                                claim if it relates to information that is within the knowledge of the
                                employer or the agent. The IBS may want to consult with the
                                multidisciplinary team when checking for material defects.

                Examples        Here are some examples of a material defect omission or
                                irregularity:
                                •     concurrent common law application
                                •     unsigned claim form
                                •     amended or unsigned Authority to Release Medical Information
                                •     failure to provide a residential street address if worker cannot
                                      be contacted to provide this information
                                •     failure to complete one or more sections on the form

                                                     Act ref:    S103(3), (4G)-(4H), S104B(1BA)

                Where there     If the claim for impairment benefits has a material defect, omission
                is a material   or irregularity, it must be returned to the worker within 14 days.
                defect          The agent must send a letter explaining:
                                •     the material defect
                                •     that the 120 day period for determining liability and
                                      entitlement to compensation does not begin until a valid claim
                                      form is received by the agent
                                Note:

                                    Time limit for determining liability for claims lodged prior to
                                    18 November 2004 is 90 days from the date of the receipt of
                                    the IB claim.

                                                            Act ref:   S103(3), (4G)-(4H), S104B(2)

                Where a valid   On receipt of the worker’s valid claim form the agent must
                claim form is   progress the claim.
                received
                                Refer to 12.4 - Liability determination

   Agent       The agent must consider the following:
 Lodgement after leaving job

      BY       ACTION
     Agent
               If the claim for impairment benefits is the first notification of injury and it has been
               lodged after the worker has stopped working for the injury employer, the agent
               must:
               •   notify the worker, within 14 days of receipt, that the claim is deemed not to have
                   been made until the agent is satisfied that the claim could not have been made
                   while the worker was still employed with the injury employer
               •   ask the worker to explain why the claim could not have been made while they
                   were still employed with the injury employer

                                                           Act ref:   S103(5)

               The senior legal manager must be consulted before applying these steps. The agent
               should not take this course of action if the worker has sustained a delayed onset
               injury such as asbestosis or cancer.

 Injuries from motor vehicle accidents
Any motor vehicle accidents, causing injuries that are later claimed, must be reported to the police.

      BY       ACTION

     Agent     When a claim for impairment benefits is lodged for injuries resulting from a motor
               vehicle accident, the agent must be satisfied that the accident has been reported to
               police. If it is determined that the accident was not reported to police, they must:
               •   consult the TAC to determine liability for concurrent claims
               •   consult the senior legal manager
               •   inform the worker that the claim is deemed not to have been made

                                                           Act ref:   S103(6)

 Claims made within 12 months of injury
A claim for impairment benefits (except a claim solely for hearing loss) cannot be made until 12
months or more after the date of injury.

      BY       ACTION

     Agent     The agent:
               •   has a discretionary power to waive the 12 months provision, if they are satisfied
                   and have medical evidence to substantiate that the injury has stabilised
               •   must contact WorkSafe’s Impairment Benefit Team before agreeing to waive the
                   12 month period

                                                           Act ref:   S104B(1A), S104B(1B)
c Collection of all treating practitioner reports
In some circumstances, a worker’s legal representative may collect a worker’s treating medical
history prior to lodging a claim.
Protocols for the collection of a worker’s treating medical reports have been developed, in
consultation with plaintiff lawyers. The aim of the protocols is to streamline the claims management
process including the provision of a full treatment history to the independent impairment assessor.
See 12.5 - Impairment assessment

                                                           See       Section 98C & E Impairment
                                                           also:     Benefit Protocols



     BY        ACTION

  Worker’s     The worker’s solicitor may write to the agent and request a copy of all treating
  solicitor    doctor reports on file.

   Agent       As a result of this request, the agent provides the solicitor with the treating doctor
               reports. The agent also forwards the worker’s solicitor a Solicitor’s Inquiry Form
               (SIF), using appendix 20.12.3 - Solicitors Inquiry Form for completion by the worker.
               The purpose of this form is to find out from the worker which doctors have been
               consulted for treatment of the affected body part(s).

  Worker’s     After completion of the Solicitor’s Inquiry Form, the worker’s solicitor may decide to
  solicitor    collect additional medical reports from the worker’s treating doctors. In certain
               circumstances the solicitor can be paid for this in accordance with the protocols.
               It is usual for the solicitor to forward the completed Solicitor’s Inquiry Form to the
               agent and write to confirm that they will provide the reports as listed rather than
               have the agent request these on the worker’s behalf.
d Liability determination
A liability determination refers to the worker’s entitlement to receive compensation for the injury
claimed.

      BY                     ACTION

    Agent        The agent must:
                 •     determine liability individually for each of the injuries listed on the claim form
                 •     either accept or reject liability for each injury claimed
                 •     write to the worker within 120 days of receiving the claim advising of their
                       decision
                 For claims lodged prior to 18/11/04 the agent must advise the worker within 90
                 days of the liability determination.
                 Agents are referred to section j Agent creates notice of entitlement for details on
                 what is to be notified to the worker when determining liability and entitlement.
                 See: 12.4 - Liability determination
                 Note 1:

                     If, due to exceptional reasons, the agent is unable to determine liability
                     within this timeframe, they can request an extension of time from WorkSafe.
                     This request must be made to the Impairment Benefit Team by the 110th
                     calendar day after the agent received date, detailing why an exceptional
                     case exists.
                     For those claims lodged prior to 18/11/04 the agent must advise WorkSafe
                     by the 80th day from the date of lodgement of the IB claim.

                 Note 2:

                     The letter to the worker should describe the accepted and/or rejected
                     injuries as precisely as possible and make reference to the treating medical
                     reports.

                 Note 3

    Agent        The agent must consider the following:

 Liability accepted: all injuries

      BY                    ACTION

     Agent      If liability is accepted for all injuries, the agent must arrange for the worker to be
                independently medically examined. This examination must be arranged prior to 120
                days.
                For claims lodged prior to 18/11/04 the agent must arrange an examination within
                30 days.
                Circumstances may allow for the suspension of post 18/11/04 IB Claims. If the
                claim is to be suspended an examination should not be arranged until the suspension
                is removed.
                See: f Suspension of impairment process due to instability and/or insufficient medical
                information.
Liability rejected: all injuries

     BY                    ACTION

   Agent       If liability is rejected for all injuries, the agent must advise the worker in writing of
               the decision.

   Worker      The worker has 60 days to apply to conciliation.



Liability: combination of accepted and rejected

     BY                    ACTION

   Agent       If liability is accepted for some injuries and rejected for others, the agent must
               advise the worker in writing of the decisions.
               See: 12.1 - Process for impairment benefits j Agent creates notice of entitlement for
               details on what is to be notified to the worker when determining liability and
               entitlement.
               The agent must proceed to have the worker examined for those injuries that have
               been accepted or undetermined
               When liability is unable to be determined based upon information on file s112
               independent medical examination may be required.
               See: g Independent impairment assessment for details surrounding a ‘dual purpose’
               assessment.
               If the claim is lodged prior to 18/11/04 the agent must not proceed to have the
               worker examined for those injuries that have been accepted, until any dispute for
               the rejected injuries is resolved.

   Worker      The worker has 60 days to apply to conciliation for those injuries that have been
               rejected.
               See: 12.4 - Liability determination

Agent assesses common law potential

     BY                    ACTION

   Agent       When determining liability, the IBS should review the claim for common law
               potential. If common law potential is identified, the claim must be referred to the
               appropriate technical manager.

                                                           See also:    13 - Entitlements - Common Law

Multiple injuries
If a worker has more than one injury arising out of the same work-related incident, all those
injuries must be assessed at the one time.

     BY        ACTION

   Worker      After a claim for impairment benefits has been resolved, a worker cannot make a
               further claim for injuries resulting from the same circumstance or incident identified
               in the resolved IB claim.

                Act ref:   S104B(5AA) –[S104B(5B) pre
                           18/11/04]
e Liability rejected: worker appeals decision
    BY                   ACTION

  Worker       If the worker wants to refer a rejection of liability for conciliation, they must do so
               within 60 days of receiving the determination. This time period can be extended by
               the senior conciliation officer.

                                                   Act ref:    S55(2), S55(3)

Conciliation   A conciliation officer may refer a medical question to the Medical Panel in relation to
  officer      liability.
               Note:

                Agents should be closely involved in the wording of the ‘medical question’ at
                this stage.

                                                          Act ref:   S56(6)

                                                          See        17.5 - Medical Panels
                                                          also:

  Worker       If liability is not resolved through conciliation and a certificate of genuine dispute is
               issued, the worker can bring legal proceedings in the Magistrates’ or County Court.
               Note:

                Liability disputes cannot be used as an opportunity to resolve the level of
                impairment or compensation. Under no circumstances can a worker use a
                liability dispute to negotiate a settlement.

  Agent        If legal proceedings are issued, the agent must forward all relevant documents to
               WorkSafe’s Impairment Benefit Team within 24 hours of receipt.


 WorkSafe      The Impairment Benefit Team allocates the proceedings to a panel solicitor, who will
               represent the agent and WorkSafe.
Agent   If the agent, conciliation or a court determines that the decision of liability is varied,
        the agent must within 90 days of the variation of liability:
        •   obtain an assessment or assessments in accordance with s91 as to the degree of
            permanent impairment (if any) of the worker resulting from the injury or injuries
            in respect of which liability is accepted or determined
        •   take into account the assessment or assessments obtained and determine the
            degree of permanent impairment (if any) of the worker for each injury
        •   determine whether the worker has an injury which is a total loss mentioned in
            the Table to s98E
        •   calculated the entitlement compensation under s98C or s98E
        •   advise the worker of the determination
        See: j Agent creates notice of entitlement for details on what is to be notified to the
        worker when determining liability and entitlement
        If the agent’s determination of liability for all rejected injuries is maintained, then
        the worker has no further recourse for dispute of the determination of those
        injuries.
        Claims lodged prior to 18/11/04
        If conciliation or a court determines that:
        •   liability is to be accepted, go to g Independent impairment assessment
        •   the agent’s determination of liability for all rejected injuries is maintained, then
            the worker has no further recourse for those injuries
        •   the agent’s determination of liability for rejected injuries is maintained and there
            are other injuries already accepted by the agent and/or the court, the agent
            proceeds to have the worker assessed for the accepted injuries, go to g
            Independent impairment assessment
f Suspension of impairment process
Suspension of the impairment process may be required due to instability and/or insufficient medical
information.

     BY        ACTION

   Agent       For claims lodged on or after 18/11/2004, agents may within 90 days of receipt of
               the IB claim, suspend the workers claim for impairment benefits if either of the
               following applies:
               •     the agent has insufficient medical information to determine the matters specified
                     in s104B(2) including the ability to accept or reject liability, obtain an impairment
                     assessment or determine the degree of impairment
                     or
               •     the workers condition or the injury is not stabilised
               Agents are to ensure that documents on file substantiates that the worker’s condition
               has not stabilized (eg worker to undergo further surgery or treatment).
               Agents must, within 90 days of receipt of the IB claim write to the worker advising
               that their claim for impairment benefits has been suspended.
               Upon either receiving the further medical information or obtaining evidence that the
               workers condition has stabilised, the agent must write to the worker within 14 days
               advising that the suspension has been removed.
               Note:

                   Claims lodged prior to 18/11/04 are unable to be suspended in accordance
                   with s104B(1D).

                                                            Act ref:   S104B(1D), S104B(1E), S104B(2)
g Independent impairment assessment
The agent arranges for the worker to be medically examined by an independent impairment
assessor (IIA) to assess the level of permanent impairment. The IIA must:
•   have successfully completed the Ministerially approved training course in the application of the
    AMA 4th Edition Guides and be listed by WorkSafe as an independent impairment assessor (IIA)
•   provide an assessment of impairment in accordance with the AMA 4th Edition Guides and in
    accordance with operational guidelines (if any) as to the use of those Guides or methods issued
    by the Minister
For claims lodged on or after 18/11/04 - in circumstances where liability is unable to be determined
for one or more injuries the agent may refer to a ‘dual purpose examiner.’
See: 12.5.2 - Finding an independent impairment assessor, hearing loss assessor or dual purpose
examiner
Note:

The Guides are not a reference tool but a mandatory measure required by the Act. Refer to
12.5 - Impairment assessment

        Act ref:   S91




        BY         ACTION

    Agent           Select an IIA   If liability is undetermined when arranging impairment
                                    examinations a s112 independent medical opinion may be
                                    required to assist in the liability determination, agents are
                                    recommended to arrange a ‘dual purpose’ examination with a
                                    medical examiner who is both a WorkSafe acknowledged IIA
                                    and a WorkSafe approved s112 independent medical examiner
                                    For claims lodged prior to 18/11/04 the agent must
                                    select an IIA or a dual purpose examiner to carry out an
                                    independent impairment assessment. This practitioner must
                                    not have previously treated or examined the worker.
                                    For information about selecting a qualified practitioner - see:
                                    •   12.5.2 - Finding an independent impairment assessor,
                                        hearing loss assessor or dual purpose examiner
                                    •   12.5.5 - Multiple injuries - impairment assessment

                    Provide full    The IBS is required to provide the IIA full background
                    background      information and proper instructions for producing a valid
                    information     impairment assessment. This is a detailed and technical
                                    process which requires the IBS to have completed specialist
                                    training.

                    Be aware of     The agent needs to be aware of additional information and
                    additional      protocols. For information about these - See:
                    information
                                    •   12.5.1 - Assessment methods for determining impairment
                                    •   12.5.2 - Finding an independent impairment assessor,
                                        hearing loss assessor or dual purpose examiner
    BY        ACTION

Independent   For injuries   The IIA:
 Impairment   on or after
                             •   examines the worker and provides an IIA report on behalf of
  Assessor    12/11/97 to
                                 the agent
              2/12/03
                             •   must provide in the report:
                                 -   a percentage whole person impairment in respect of the
                                     injuries referred to the examiner
                                 -   an opinion as to whether the worker has a total loss
                                     injury mentioned in the s98E Table
                                 -   a calculation of whole person impairment that includes
                                     the impairment value for any injury which the doctor
                                     considers is a total loss injury and excludes the
                                     impairment value for the injury that is a total loss injury

                                           Act ref:   S104B(5)

                             •   should disregard any impairment from pre-existing or
                                 unrelated injuries or causes

                                           Act ref:   S91(7)

              For injuries   The IIA:
              on or after
                             •   examine the worker and provide an IIA report on behalf of
              3/12/03
                                 the agent
                             •   must provide in the report:
                                 -   a percentage whole person impairment in respect of the
                                     injuries referred to the examiner
                                 -   an opinion as to whether the worker has suffered a total
                                     loss injury mentioned in the s98E Table
                                 -   a combined whole person impairment for all AMA4
                                     Chapter 3 musculoskeletal injuries assessed, excluding
                                     the injuries which are considered a total loss mentioned
                                     in the s98E Table
                                 -   a combined whole person impairment for AMA4 Chapter
                                     3 musculoskeletal injuries assessed, including the
                                     injuries which are considered a total loss mentioned in
                                     the s98E Table
                                 -   a combined whole person impairment for all physical
                                     injuries assessed including the injuries which are
                                     considered a total loss mentioned in the s98E Table
                                 -   a combined whole person impairment for all physical
                                     injuries assessed excluding the injuries which are
                                     considered a total loss mentioned in the s98E Table

                                                  Act ref:   S104B(5) for pre 18/11/04 claims
                                                             only

                             •   should disregard any impairment from pre-existing or
                                 unrelated injuries or causes

                                                  Act ref:   S91(7)
BY   ACTION

     For claims     The IIA who has been selected as a ‘dual purpose examiner’
     lodged on or   must:
     after
                    •   examine the worker and provide an IIA report on behalf of
     18/11/04
                        the agent (as requested above)
                    •   only address requests for medical opinion regarding liability
                        issues as provided to them in the letter of instruction from
                        the agent
h Agent reviews IIA report
The IBS receives and analyses the IIA report(s).
The whole person impairment percentage assessed by the IIA is used by the agent to determine and
calculate the compensation amount applicable for the claimed injury. For additional information
about calculating s98C and s98E benefits - see: 12.7 - Calculating impairment benefit claims.

     BY        ACTION

   Agent        Verify report     The IBS verifies that the impairment assessment report complies
                                  with the AMA Guides 4th Edition.

                Combining         The IBS verifies that when combining impairment values, the
                values            correct total whole person impairment has been determined by
                                  applying the appropriate method as follows:
                                  •     Combined Values Chart when combining two impairments
                                  •     Formula method when combining three or more impairments

                Inform the        The agent is required to keep the worker informed if issues have
                worker            been presented to the IIA for clarification. This is to minimise the
                                  likelihood of any complaints.

                Inform the        Agents are recommended to provide a worker’s solicitor with an
                worker’s          examiner’s initial report together with correspondence requesting
                solicitor         a supplementary report (if applicable), at the time of writing to
                                  the examiner.

                If unidentified   If previously unidentified injuries (arising from the same work-
                injuries are      related incident) are identified in the IIA report, the agent must:
                identified
                                  •     contact the worker and invite them to amend the impairment
                                        benefit claim to include the additional injuries. Liability for
                                        additional injuries must be determined in the same way as
                                        outlined in d Liability determination
                                  •     delay finalising the impairment assessment until the worker
                                        has taken up or refused this opportunity

                Ensure that all   The agent must be satisfied that the worker has been assessed
                injuries have     by an IIA for all accepted injuries sustained in the one work-
                been assessed     related incident. Only then can the impairment assessment be
                                  finalised.
                                  Note:

                                      Resolution of an impairment benefit claim may prejudice a
                                      worker’s ability to make a further claim or recover further
                                      compensation for the same circumstance or incident, at a
                                      later time.

                                                          Act ref:   S104B(5AA)
i Agent determines and calculates impairment
benefit entitlement
The whole person impairment percentage confirmed by the IIA is utilised by the agent to calculate
the compensation amount applicable for the claimed date of injury. For additional information about
calculating s98C and s98E benefits – see: 12.7 - Calculating impairment benefit claims
For claims lodged on or after 18/11/04 agents are not bound by the whole person impairment
percentage assessed by the impairment assessor but must take this into account when determining
the whole person impairment and calculating the compensation amount applicable for the claimed
injury.
 BY     ACTION

Agent   Gather          The agent:
        details about
                        •    gathers the details about the whole person impairment levels
        WPI levels
                            for physical and psychiatric impairments and total loss injuries
                            for the one work-related event
                        •    should use the tables provided in the appendices to find
                            indexed compensation amounts
                        See: 12.11 - Appendices

        If there are    The agent:
        no total loss
                        •   uses the appendices:
        injuries
                            Physical Impairment
                            -   12.11.1.1 - Compensation table for physical impairment
                            -    Compensation table for modified Chapter 3 impairment (for
                                injuries sustained on or after 3 December 2003)
                            -   Compensation table for Chapter 3 spinal impairment (for
                                claims lodged, or claims with the first Impairment
                                Assessment on or after 10 December 2009)
                            Psychiatric Impairment
                            -   12.11.1.2 - Compensation table for psychiatric impairment
                            Further Injury Hearing Loss Impairment
                            -   Compensation for Further Injury Hearing Loss impairment
                                (for claims lodged on or after 18/11/04)
                        •    looks up the 3 compensation amounts for physical impairment
                            (where applicable for the date of the claim or date of injury)
                            and/or whole person psychiatric impairment percentage and/or
                            further injury hearing loss impairment percentage, in relation
                            to the claimed date of injury
                        •   calculates up to 3 separate entitlements:
                            -    the greater compensation payable for the 3 physical
                                impairment calculations
                            -   compensation payable for psychiatric impairment
                            -    compensation payable for further injury hearing loss
                                impairment

        If there are    If there are total loss injuries, the agent calculates 2 separate
        total loss      entitlements for physical impairment and offers the worker the
        injuries        highest of the two.
                        Calculation 1: S98C entitlement calculation minus any s98E
                        component.
                        Calculation 2: S98C entitlement calculation inclusive of any s98E
                        component.
                        For injuries on or after 12/11/97 to 2/12/03
                        For calculation 1 – the agent:
                        •   looks up the total loss injuries in appendix 12.11.3 - S98E No
                            disadvantage compensation table
                        •   finds the coinciding amount/s under the date of injury
Note:

     The maximum amount payable under s98E for a single
     incident is $237,130 (which is indexed annually by date of
     injury).

•   looks up the WPI impairment percentage determined by the
    agent (assessed by the IIA for claims pre 18/11/04) that
    excludes the total loss injury amount (using appendix
    12.11.1.1 - Compensation table for physical impairment)
•    for claims lodged on or after 10 December 2009, or claims with
    the first Impairment Assessment on or after 10 December
    2009, looks up the WPI impairment percentage determined by
    the agent separately under Chapter 3 for a spinal impairment
    only, excluding total loss injuries (appendix 12.11.2.3 -
    Compensation table for Chapter 3 SPINE impairment)
•    determines a total for calculation 1 by comparing the amounts
    of compensation payable for the WPI and the Chapter 3 Spine
    Impairment only and adding together the higher of the two
    amounts with the amount payable for the total loss injury
For calculation 2 – the agent:
•    looks up the whole person physical impairment percentage
    determined by the agent (assessed by the IIA for claims prior
    to 18/11/04) that includes the total loss injury (WPI) using
    appendix 12 E: Compensation table for physical impairment
•    for claims lodged on or after 10 December 2009, or claims with
    the first impairment Assessment on or after 10 December
    2009, looks up the WPI impairment percentage determined by
    the agent separately under Chapter 3 for a spinal impairment
    only. (appendix 12.11.2.3 - Compensation table for Chapter 3
    SPINE impairment)
•   the greater amount is the total for calculation 2
For injuries on or after 3/12/03
The agent:
•   looks up the total loss injuries in appendix 12.11.3 - S98E No
    disadvantage compensation table
•   finds the coinciding amount/s under the date of injury
    Note:

     The maximum amount payable under s98E for a single
     incident is $237,130 (which is indexed annually by date of
     injury).

•    looks up the WPI percentage determined by the agent
    (assessed by the IIA for claims pre 18/11/04) that excludes the
    total loss injury (using appendix 12 E: Compensation table for
    physical impairment
•   looks up the WPI impairment percentage determined by the
    agent (assessed by the IIA for claims pre 18/11/04) separately
    under Chapter 3 only excluding total loss injuries
See: 12.11.9 - Table of modification to degrees of impairment for
the purposes of s98C
               •    for claims lodged on or after 10 December 2009, or claims with
                   the first Impairment Assessment on or after 10 December
                   2009, looks up the WPI impairment percentage determined by
                   the agent separately under Chapter 3 for a spinal impairment
                   only, excluding total loss injuries (appendix 12.11.2.3 -
                   Compensation table for Chapter 3 SPINE impairment)

Apply          For calculation 1 – the agent determines a total for calculation 1
statutory      by adding together the above 2 amounts (either payment under
maximum        combined WPI for all physical injuries, or the modified Chapter 3
               WPI entitlement, or the Chapter 3 Spine WPI entitlement –
               whichever equates to the higher payment).
               For calculation 2 – the agent:
               •    looks up the whole person physical impairment percentage
                   determined by the agent (assessed by the IIA for claims pre
                   18/11/04) that includes the total loss injury amount, using
                   appendix 12.11.1.1 - Compensation table for physical
                   impairment
               •    for claims lodged on or after 10 December 2009, or claims with
                   the first Impairment Assessment on or after 10 December
                   2009, looks up the modified WPI impairment percentage
                   determined by the agent separately under Chapter 3 for a
                   spinal impairment only, (appendix 12.11.2.3 - Compensation
                   table for Chapter 3 SPINE impairment)
               •   the greater amount is the total for calculation 2
               For the final total, the agent then applies the statutory maximum.
               The maximum compensation payable for multiple injuries
               sustained on the same occasion is indexed annually. The
               compensation payable must not exceed this amount. If necessary,
               the agent must reduce the compensation to the statutory
               maximum amount.

                                       Act ref:   S98C(7), S98C(8)

Deduct any     The agent may need to deduct compensation from a s98C & s98E
previous       claim if there has been a previous s98, s98A claim paid for the
s98C&E         same injury.
compensation
               The compensation amount for the s98C & s98E claim must be
               reduced by the total amount of any payments made previously
               under s98 or s98A if the amount of impairment assessed for the
               current claim includes any impairment or loss of use of the same
               body part involved in a previous claim.
               If a claim lodged on or after 18/11/04 is a further injury hearing
               loss claim refer to 12.4.3.2 - Assessing further hearing loss. An
               equation confirms the workers entitlement, a deduction of the
               previously paid amount does not occur.

                                       Act ref:   S98C(3A)

Provide        When the agent has calculated the final compensation liability and
Notice         entitlement they are to update the claim file accordingly.
               See: j Agent creates notice of entitlement


Loss of a      If the injury is for a loss of a foetus, an impairment assessment is
foetus         not required. Agents are to determine the appropriate amount of
               compensation payable using appendix 12.11.1.5 - Summary of
               formulas from the Act.
Note:

 An IBS may wish to consult a technical manager prior to
 payment of this compensation.
j Agent creates notice of entitlement
 BY     ACTION

Agent   Contact the   After receiving the IIA report/s, the agent must notify the worker in writing
        worker in     prior to the 120th day from the date of receipt of the IB claim. (within 60
        writing       days for claims pre 18/11/04 of):
                      •     the decision to accept or reject liability for each injury included in the
                            claim
                      •      each of the determinations as to the degree of permanent impairment
                            (if any) of the worker and whether the worker has an injury which is a
                            total loss mentioned in the table resulting from the injury or injuries in
                            respect of which liability is accepted
                      •     the calculation of any entitlement to compensation
                      •     the workers rights of review (eg Medical Panel/Conciliation)

                                                           Act ref:   S104B(7) or S104B(2)(f), S98C,
                                                                      S98E, S98E(1), S104B(a), S104B(3)

                      Claims lodged prior to 18/11/04
                      •     the assessments of the whole person impairment (physical and
                            psychiatric, separately as well as combined)
                      •     the entitlement to s98C and s98E compensation (if any)
                      •     the right to accept or reject the assessment of impairment and the
                            consequences
                      •     if they accept the assessment their right to accept or dispute the
                            calculation of entitlement
                      •     the right to elect to pursue common law proceedings, if appropriate (if
                            date of injury on or after 20/10/99)

        If a worker   If a worker is legally represented, the agent must provide the worker’s
        is legally    solicitor with a copy of the IIA reports, including correspondence exchanged
        represented   with the impairment examiner. This must be done at the same time as
                      processing the Notice of Liability and Entitlement.

        If a worker   If a worker is not legally represented the agent must provide the workers
        is not        primary treating medical practitioner (usually their general practitioner) with
        legally       a copy of all the impairment reports, including any medical reports
        represented   correspondence and other documents provided to and
                      received from any medical practitioner who has conducted an impairment
                      assessment. It is recommended that the treating medical practitioner inform
                      the worker of the content of the impairment assessment reports(s).
                      Note:

                          For claims lodged pre 18/11/04, if a worker is not legally
                          represented, the agent must provide the worker’s primary treating
                          medical practitioner (usually their general practitioner) with a copy of all
                          the IIA reports, including correspondence exchanged with the impairment
                          examiner. It is recommended that the treating medical practitioner inform
                          the worker of the content of the IIA report(s).
k Worker responds to notice of entitlement
   BY                     ACTION

 Worker      The worker must complete and return the Worker’s Response Form attached to the
             Notice of Liability and Entitlement within 60 days.
             The worker may respond in the following ways:
             •     Accept or dispute the liability determination in respect of each of the injuries
                   claimed
             •      Accept or dispute the impairment determination in relation to physical
                   impairment and accept or dispute the impairment determination in relation to
                   psychiatric impairment
             •     If the worker accepts the impairment assessment (both physical and
                   psychiatric), either accept or dispute the calculated entitlement
             •     If the worker accepts the assessment and the calculated entitlement (both
                   physical and psychiatric) elect to receive or not to receive the compensation
                   entitlement
             Note:

                 If worker disputes the liability determination in respect of one or more injuries
                 claimed, the worker does not have to respond as to whether they accept or
                 dispute the determinations of assessment or calculation of entitlement.



                                                   Act ref:   S104B(6A), S104B(6)

             For claims lodged prior to 18/11/04:
             •     either accept or dispute the impairment assessment
             •     if the worker accepts the impairment assessment, either accept or dispute the
                   calculated entitlement
             •     if the worker accepts the assessment and the calculated entitlement (both
                   physical and psychiatric) elect to receive or not to receive the compensation
                   entitlement

                                                   Act ref:   S104B(7)

 Worker      Follow these procedures, depending on the worker's response:

If worker disputes the impairment assessment
   BY                    ACTION

 Agent          Refer the       If the worker disputes the impairment assessment, the agent will
                claim to the    refer the claim to the Medical Panel within 14 days.
                Medical
                Panel                                    Act ref:    S104B(9)




                What to         The agent:
                refer/provide
                                •   for claims lodges prior to 18/11/04 refers all accepted injuries to
                to the
                                    the Medical Panel
                Medical
                Panel           •   for claims lodged on or after 18/11/04 refers the workers
                                    disputed determinations of impairment which can be either the
                                    psychiatric impairment and/or the physical impairment or both.
                                    The worker may not dispute only part of the psychiatric
                                    impairment or part of any physical impairment
                                •   refers medical questions set out in the Act to the Medical Panel.
                                    Use referral forms from appendices:
                                    -    12.11.4 - Instructions for completing s104b (9) Medical
                                        Panel referral forms
                                    -    20.12.4 - Hearing Loss only - Referral to Medical Panel
                                •   provides the Medical Panel with all documentation on the claim
                                    file as forwarded to the IIA and any further material submitted
                                    by the worker’s solicitor after the generated Notice of
                                    Entitlement / Notice of Liability and Entitlement
                                •   provides a copy of the Medical Panel referral and attached
                                    documentation to the worker and/or their solicitor

                Agent may       A Medical Panel referral may include submissions by the agent. The
                make a          submission may:
                submission
                                •   make reference to the technical interpretation of the AMA
                to Medical
                                    Guides 4th Edition
                Panel
                                •   be developed in consultation with the agent’s senior legal
                                    manager and/or WorkSafe’s Impairment Benefit Team

Worker’s    A worker’s solicitor may make submissions to the Medical Panel. If the agent is
solicitor   provided with a copy of the submissions, they may reply to any submissions and if
            necessary seek advice from WorkSafe’s Impairment Benefit Team.

Medical     The Medical Panel must:
 Panel
            •     form its opinion within 60 days after the referral
            •     within 7 days after forming its opinion provide a copy of the opinion to the agent
            The Medical Panel opinion is binding on all parties including the courts.

                                                          Act ref:    S68(1), S68(2), S68(3), S68(4)

 Agent      When the agent receives the Medical Panel’s opinion, they must send the worker a
            revised Notice of Entitlement within 60 days.
            Note:

                At this time the agent is not required to re-issue the determination of liability.

                                                          Act ref:    S104B(10), S104B(12) & S104B(9)
If worker accepts the impairment assessment

    BY       ACTION

  Worker     The worker is able to accept or dispute in full the physical determination and accept
             or dispute in full the psychiatric impairment determination. A worker cannot accept
             or dispute only part of the physical or psychiatric impairment determination(s).
             Note:

              For claims lodged prior to 18/11/04 the worker must either accept or
              dispute the final whole person impairment assessment. A worker cannot
              accept parts of the impairment assessment and dispute others.

If worker accepts both the assessment and the calculated entitlement

    BY       ACTION

   Agent     If the worker accepts both the impairment assessment and the calculated
             entitlement the agent pays the worker his or her entitlement within 14 days.
             Go to l Agent pays worker impairment benefit

                                                   Act ref:   S104B(8)

If worker accepts the impairment assessment and disputes the calculated entitlement

    BY       ACTION

   Agent     If the worker accepts the impairment assessment and disputes the calculation of
             entitlement (for example the way the formula is applied), the agent must review the
             claim file to ensure that the correct entitlement has been calculated.
             If the correct entitlement has been calculated, the agent should then contact the
             worker to confirm this. If the worker is not satisfied they can refer the dispute to
             conciliation.
             If the agent has incorrectly calculated the worker’s entitlement they should contact
             the worker to resolve the matter and issue a revised Notice of Entitlement / Notice of
             Liability and Entitlement.

 WorkSafe    If conciliation fails and the dispute is referred to court, the agent must refer the
             worker’s claim to WorkSafe’s Impairment Benefit Team, who then allocates a panel
             solicitor to represent WorkSafe and the agent in court.
l Agent pays worker impairment benefit
If the worker accepts the impairment assessment and the calculated entitlement, or the court
directs that the worker be paid an entitlement, the agent is responsible for processing the payment
to the worker and finalising the impairment benefits claim.

     BY        ACTION

   Agent        Process, pay       If the worker accepts the impairment assessment and the
                and finalise the   calculated entitlement, the agent:
                impairment
                                   •   pays the calculated entitlement pursuant to s98C and s98E
                benefit claim
                                       within 14 days of the worker’s acceptance
                                   •   reimburses the worker’s solicitor for the legal costs which
                                       may have incurred in accordance with WorkSafe s98C &
                                       s98E Protocols
                                       See: Impairment (Sections 98C & E) Protocols
                                   •   finalises the impairment benefits claim

                                                        Act ref:   S104B(10B)

                Pay                The agent must pay compensation for impairment benefits
                compensation       directly to the worker in a lump sum.
                direct to worker
                                   If the worker is unable to manage their financial affairs, the
                                   agent must receive written authorisation from the worker’s
                                   appointed Power of Attorney confirming that the compensation
                                   for impairment benefits be paid to them, for example: State
                                   Trustees. The agent must not process the payment until they
                                   receive this information.
12.2 - Overview of impairment benefits
Impairment           S98C and s98E impairment benefit claims are for injuries sustained on or after
benefits replaces    12 November 1997. They:
Table of Maims
                     •   replace s98/s98A Table of Maims
                     •   are paid in addition to any other compensation payable

Compensation for     Impairment benefits are compensation for non-economic loss that is the result
non-economic loss    of permanent impairment.

Claim form           The Worker’s Claim for Impairment Benefits form is the only form approved by
                     WorkSafe for impairment benefit claims.

IBS role             The impairment benefit specialist (IBS) is responsible for managing the
                     impairment benefit claims lodged with the agent.

WorkSafe s98C &      Protocols have been established to assist in the collection of treating medical
s98E Protocols       evidence from a worker’s medical practitioner/s.
                     See: c Collection of all treating practitioner reports

                                        See also:   Section 98C & E Impairment Benefit Protocols
                                                    Section 98C & E Impairment Benefit Protocols -
                                                    indexed fee schedule

S98E total loss      If the worker suffers a ‘total loss’ injury and the amount of compensation
                     calculated under s98C is less than the amount under s98E, the worker is
                     entitled to compensation under s98E.
                     See: 12.6 - No disadvantage compensation table

                                                          Act ref:   S98E

Agent to determine   Within 120 days of receiving the claim the agent must:
liability and
                     •   accept or reject liability for each injury included in the claim
entitlement
                     •   obtain an assessment or assessments in accordance with s91 as to the
                         degree of permanent impairment (if any) of any accepted injury
                     •   determine the degree of permanent impairment (if any) for the purpose
                         of:
                         -   S98C (WPI)
                         -   S134AB (combined WPI and psychiatric)
                         -   Subdivision 1 of Division 3A
                     •   determine whether a worker has an injury which is a total loss mentioned
                         in the s98E(1) table
                     •   calculate any entitlement to compensation under s98C or s98E

                                                          Act ref:   S104B(2)

Agent to determine   The agent is required to determine liability for all the claimed injury/injuries
liability - pre      listed on the Worker’s Claim for Impairment Benefits form within 90 days.
18/11/04 claims
                     When liability has been determined for each of the claimed injuries and any
                     disputes have been resolved, the worker’s claim will progress to the
                     impairment assessment stage.

                                                          Act ref:   S104B
Legal                 If a worker has legal representation, the agent must communicate with the
representation        worker’s authorised legal practitioner.
                      The agent must document all communication on its claim file and forward a
                      copy of all correspondence to the authorised legal practitioner.
                      The cost of this legal representation is to be borne by the worker. Exceptions
                      are:
                      •   legal costs incurred by the worker in successfully litigating a liability
                          dispute
                      As provided for in the protocols – see: c Collection of all treating practitioner
                      reports

Payment to be         The payment of compensation should be made directly to the worker.
made directly to
                      If a worker has authorised a Power of Attorney, the agent should contact the
worker
                      representative body and seek a copy of the legal document prior to processing
                      the payment of compensation.

Agents to report      Agents must contact the Impairment Benefit Team of WorkSafe if they
any issues to         become aware of any issues affecting the management of impairment benefit
WorkSafe              claims.

Lodgement of s98C     A claim for s98C & s98E impairment benefits cannot be made before the
& s98E claim          expiry of the period of 12 months after the date of the worker’s injury.

                                                           Act ref:   S104B(1A)

                      Exception: an agent may receive a claim for s98C & s98E impairment
                      benefits before the expiry of the period of 12 months after the date of the
                      worker’s injury but only if the claimed injuries has stabilised.

                                                           Act ref:   S104B(1B)

Common Law            A worker is able to pursue any Common Law entitlements prior to lodging any
(claims lodged on     s98C and s98E claim. However, workers are unable to have concurrent
or after 18/11/04)    common law claims and impairment benefit claims.
                      An impairment benefits claim must not be processed if the worker has a
                      common Law application which is not finalised (unsuccessfully or successfully)
                      or withdrawn.
                      If a worker has lodged a common law application and an impairment benefit
                      claim, agents are to register the impairment benefits application as defective
                      and return the claim form to the worker within 14 days.

Worker is less than   If the worker is not 18 years of age at the time of the claimed injury, the
18 years of age       assessment of the impairment benefits claim cannot be made until the worker
                      attains the age of 18 years (lodge as defective and return within 14 days).

                                                           Act ref:   S104B(5F)

Death of a worker     Compensation for impairment benefits is not payable after the death of a
                      worker.

                                                           Act ref:   S98C(10)
12.3 - Stabilisation of injuries
The assessment of impairment can only be made when a worker’s injuries has stabilised.

                                                            Act ref:    S104B




The Act refers to    S91(1)(i) refers to the impairment made in accordance with the AMA4 Guides,
impairment in        Records & Reports, Chapter 2, section 2.3 General Comments on Evaluations:
accordance with
                     'An impairment should not be considered “permanent” until the clinical
AMA4 Guides
                     findings, determined during a period of months, indicates that the medical
                     condition is static and well stabilised.'

Worker to be         If the agent is notified that the worker’s injuries has not stabilised by the time
assessed by IIA      of the impairment assessment, the IBS must:
                     •   identify the injuries which is yet to stabilise
                     •   request medical evidence from the worker’s treating practitioner to support
                         the stabilisation of the injuries in question
                     The agent will only arrange for the worker to be examined by the IIA when all
                     accepted injuries are confirmed to be medically stable.
                     For claims lodged on or after 18/11/04 claims – If the condition is not
                     stabilised the agent must within 90 days of receipt of the IB claim advise the
                     worker if the Impairment Benefit claim is to be suspended. For details on
                     suspension of an IB claim – see: f Suspension of impairment process
                     If the agent is advised that the injury / condition has not stabilised post 90
                     days from the date of receipt of the IB claim the agent is unable to suspend
                     the claim. However, the worker must be advised in writing why a
                     determination of liability and entitlement is unable to be issued within 120
                     days of receiving the IB claim.
                     ACCtion

                                                           Act ref:    S1014B(1D)

IIA scheduled but    If the agent is notified that the worker’s injuries has not stabilised but they
worker has not       have already progressed the claim to have the worker examined by the IIA,
been examined.       the IBS must:
                     •   cancel the scheduled IIA examination
                     •   request medical evidence from the worker’s treating practitioner to confirm
                         when the condition/injury has stabilised
                     The agent will schedule a new IIA appointment for the worker when the
                     accepted injuries has stabilised.
                     ACCtion

Worker attends IIA   When reviewing the impairment report/s, the IBS must consider the following:
examination
                     •   impending surgical treatment, noted by the IIA in the report
                     •   a treating practitioner request for further surgery
                     •   IIA opinion that the worker’s injuries is not stable
                     The agent must communicate this information to the worker and request a
                     medical report from the relevant treating practitioner to confirm the stability of
                     the injury in question and/or when stabilisation has been reached.
                     ACCtion
12.4 - Liability determination
This section deals with how to determine liability for impairment benefit claims.

Section contents      12.4.1   -   Guidelines to determine liability
                      12.4.2   -   Psychiatric injury
                      12.4.3   -   Hearing loss
                      12.4.4   -   Loss of a foetus
                      12.4.5   -   Lost workers
12.4.1 - Guidelines to determine liability
Questions to           The agent should consider the following guidelines when making a decision
consider when          regarding the worker’s claimed injuries:
assessing liability
                       •   Did the worker sustain an injury to the body part claimed, as defined in s5
                           of the Act?
                       •   Did the worker’s injury arise out of or in the course of employment?
                       •   Is there a requirement that employment be a ‘significant contributing
                           factor’ to the claimed injury?
                       •   Was the claimed injury sustained on or after 12 November 1997?
                       •   Is the worker a worker for the purposes of the Act?
                       •   Are there any other grounds for rejecting liability, for example the worker’s
                           injury was due to serious and wilful misconduct
                       If the answer is no to any of these questions (except the last question), the
                       agent must not accept liability for the claimed injury.

Agent to review all    The agent must review all treating medical practitioner reports, forms and
reports received       accident circumstance reports on its claim file and any other documentation
                       submitted by the worker.

                                                           See       Section 98C & E Impairment
                                                           also:     Benefit Protocols

Liability to be        The agent must ensure that liability is only accepted for anatomic dysfunction
assessed for the       of a body part, organ or system caused by the claimed injuries and not for the
injury, not the        symptoms for which treatment may be sought.
symptoms
                       The agent should analyse the medical reports of the worker’s claimed injuries
                       and make clear reference to the accepted injuries in its letter of liability.
                       If the worker questions the agent’s decision regarding liability the IBS must
                       explain the assessment of impairment and how the assessment is based upon
                       the permanent impairment to the body part and not the symptoms which may
                       stem from its dysfunction.
                       Note

                                                           See        AMA Guides to the Evaluation of
                                                           also:      Permanent Impairment Fourth
                                                                      Edition

Agent to carefully     The agent needs to carefully assess liability for injuries claimed on the
assess for injuries    Worker’s Claim for Impairment Benefits form.
not included on the
                       These injuries may differ from those listed on the Worker’s Claim for
primary claim
                       Compensation Form (the primary claim).

Agent can use          The agent may use the authority on the claim form to obtain all relevant
authority to obtain    reports from the worker’s treating practitioners. The reports are used to:
treating
                       •   help determine liability for the claimed injuries
practitioner reports
                       •   assist the IIA at the worker’s examination
Dual Purpose          If liability is undetermined when arranging impairment examinations and a
Examination –         s112 independent medical opinion is required to assist in the liability
claims lodged on or   determination. Agents are recommended to arrange a ‘dual purpose’
after 18/11/04        examination with an appropriate medical practitioner (ie a ‘dual purpose
                      examiner’)
                      A ‘dual purpose’ examiner is a medical practitioner who is both a
                      •   WorkSafe acknowledged independent impairment assessor (IIA) who has
                          successfully completed the Ministerially approved training course in the
                          application of the AMA 4th Edition Guides and is listed by WorkSafe as an
                          IIA
                          and
                      •   WorkSafe approved s112 independent medical examiner (IME)
                      A ‘dual purpose’ examiner may only provide
                      •   a medical opinion regarding IB claims specific questions of liability,
                          and
                      •   an assessment of impairment made in accordance with the AMA of those
                          Guides and operational guidelines (if any) as to the use of those Guides or
                          methods issued by the Minister of the accepted injuries
                      The dual purpose examination may be used to assist in determining liability,
                      including:
                      •   whether a claimed injury resulted from the deemed date of injury
                      •   to clarify any inconsistencies in the workers medical history
                      •   to confirm stabilisation

Liability and s112    To assist in determining liability of a worker’s claim, the agent may arrange for
examination - pre     the worker to be assessed by a s112 examiner.
18/11/04 claims
                      The agent should only consider a s112 examination after the receipt of all
                      reports from the worker’s treating practitioners.
                      The s112 examination may be used to assist in determining liability, including:
                      •   whether a claimed injury resulted from the deemed date of injury
                      •   to clarify any inconsistencies in the worker’s medical history
                      •   to confirm stabilisation

Liability and         The agent should determine liability for injuries despite evidence that the
stabilisation of      injuries are currently not stable. If the agent is unable to determine liability
injuries              and/or the workers entitlement to s98C and s98E, the agent may advise the
                      worker in writing within 90 days from the date of receipt of the IB claim,
                      suspend the workers claim for impairment benefits if:
                      •   the agent has insufficient medical information to determine liability or
                          impairment
                          or
                      •   the workers condition of the injury is not stabilised
                      Agents are to ensure that documentation on file substantiates that the workers
                      condition has not stabilised (eg worker to undergo further surgery or
                      treatment)
                      See: f Suspension of impairment process for further details.
                      Claims lodged prior to 18/11/04 - The agent should determine liability for
                      injuries despite evidence that the injuries are currently not stable. In these
                      instances the agent must also advise the worker that they will not be assessed
                      to determine the degree of impairment (if any) until medical evidence to
                      support that the injury has stabilised. This may be provided by the worker.
12.4.2 - Psychiatric injury
When assessing        In assessing the degree of impairment regard must not be had to any
degree of             psychiatric or psychological injury, impairment or symptoms arising as a
impairment            consequence of, or secondary to, a physical injury.

                                                          Act ref:   S91(2)

Liability and         The agent must not have regard to, or base its liability determination on
Psychiatric Injury    whether the worker’s psychiatric injury arises as a consequence of, or
                      secondary to a physical injury.
                      In determining liability the agent should have regard to whether:
                      •   the worker has sought psychological and/or psychiatric treatment for the
                          symptoms or complaint
                      •   there is documented medical evidence to support the onset of the
                          condition within a reasonable time from the date of injury
                      •   there is medical evidence to support the symptoms or complaint is due to
                          the worker’s primary injury

Questions to be       The agent must be satisfied that the impairment benefits claim is supported
considered when       by documented medical evidence and that the following questions have been
assessing liability   considered:
                      •   When did the worker first complain to their treating practitioner of
                          psychiatric symptom and/or injury?
                      •   Does the symptom or complaint arise independently of any claimed
                          physical injury?
                      •   Is the complaint associated with an industrial dispute? If so, has a
                          comprehensive investigation been undertaken?
                      •   Does the onset of complaint result from the worker’s physical injury?
                      •   Is the worker currently treated for the psychiatric symptoms? If so, is it
                          administered by the worker’s treating general practitioner, a psychologist
                          and/or psychiatrist?
                      •   Has the worker previously been treated for the psychiatric symptoms? If
                          so, comment to:
                          -    type of treatment
                          -    duration
                          -    diagnosis and prognosis
                          -    name and address of the previous treating practitioner/s
                      •   Does the worker suffer from a pre-existing psychological or psychiatric
                          condition? Has the worker previously submitted a work claim for any injury
                          arising from this condition? Is there documented medical report/s?
12.4.3 - Hearing loss
Definition          Industrial deafness is any condition of deafness caused by exposure,
                    continued exposure or periods of continued exposure to industrial noise.
                    Hearing loss, that has occurred in circumstances where there is no liability to
                    pay compensation under the Act, must be excluded from assessment of
                    deafness when calculating compensation.

                                                        Act ref:    S88(1), S88(2)

Date of injury       Deemed date      For hearing loss claims, the date of injury is deemed to be:
                     of injury
                                      •   the last day of the worker’s employment out of which or
                                          in the course of which the injury arose
                                          or
                                      •   the date of the claim

                                                      Act ref:     S88(4)

                     When deemed      When the deemed date of injury is the date of claim, that
                     date of injury   is, the worker is currently employed in that employment,
                     is date of       the compensation entitlement is calculated as at the date of
                     claim            the impairment report or supplementary report, rather than
                                      the date of the claim.

                                                      Act ref:     S98C(6)

                     When date of     When the date of calculation is deemed to be in a different
                     calculation is   financial year from the date of the claim, the entitlement
                     deemed to be     will be calculated incorrectly in ACCtion. The IBS must
                     in a different   calculate an incomplete Notice of Entitlement and contact
                     financial year   the Impairment Benefit Team. In these instances WorkSafe
                                      will adjust the payment of compensation based upon the
                                      date of the impairment report.
                                      ACCtion

Establishing last   Damaging noise is generally considered to be at or above 85 decibels (dba). In
employer            the case of Blaney Shire Council v Lobley and Anor, it was found that a worker
                    need not show that employment in fact caused the hearing loss. However, if
                    the ‘tendencies, incidents or characteristics’ of that employment were of the
                    type to cause the injury, then the injury is said to arise from that
                    employment. Therefore to establish the last employer depends on what is the
                    last possible day that damage could have occurred, as opposed to the last
                    probable day.

Determining         The agent is advised to use medical assessments in deciding liability only if an
liability           employer has pre-employment audiograms to confirm the extent of loss prior
                    to commencing employment.
                    In all other circumstances, if a worker is exposed to damaging noise in the
                    course of their job – and medical evidence supports that the worker has
                    sustained some hearing loss - liability for the injury should be accepted.

                    12.4.3.1 - Prior hearing loss due to interstate employment
                    12.4.3.2 - Assessing further hearing loss
12.4.3.1 - Prior hearing loss due to interstate
employment
Prior hearing loss    The agent is responsible for determining what, if any, hearing loss occurred
occurred during       where there is no liability to pay compensation under the Act (for example
interstate            during interstate employment) see appendix 12.11.10 - Hearing loss claims
employment            policy

                                                            See       Stojcevski v Nisselle & Ors
                                                            also:

Establish             To determine if any proportion of hearing loss occurred in non-compensable
employment            circumstances (a full detailed history of a worker’s employment is required.
history               This information can be obtained from the:
                      •     Worker’s Claim for Impairment Benefits form
                      •     worker or worker’s solicitors
                      •     worker’s resume (if current employer has a copy)
                      If there is no identifiable employment history which indicates that hearing loss
                      may have occurred interstate an in-depth review of the worker’s previous
                      employment is not required.

Questions to ask to   To establish what, if any, hearing loss occurred as a result of interstate
determine liability   employment the agent should try to obtain the following information in
                      relation to that employment:
                      •     the worker’s previous occupation with any interstate employer
                      •     the duties the worker performed taking into consideration any noisy
                            employment duties
                      •     time worked at previous interstate employment
                      •     documentation from any interstate insurer confirming prior industrial
                            hearing loss caused by interstate employment
                      •     documentation from any interstate employer which confirms possibility of
                            noise induced hearing loss or documents hearing loss for example factor
                            noise level testings, prior hearing tests etc
                      Note:

                          The worker’s consent is required to prior to obtaining any information
                          from either an interstate employer or interstate insurer.

Questions to ask      If it is likely that some level of industrial hearing loss occurred interstate the
IIA or Medical        agent should ask the examiner to provide:
Panel
                      •     the whole person impairment inclusive of any hearing loss which may have
                            occurred as a result of interstate employment
                      •     the whole person impairment of the hearing loss which is considered to
                            have occurred in Victoria only, based on a time weighted scale
                      Hearing loss from causes other than employment for example exposure to
                      firearms, loud music etc. should also be taken into consideration.
12.4.3.2 - Assessing further hearing loss
Prior Hearing Loss   Prior hearing loss means a loss of hearing for which a worker has received
                     compensation (under any compensation law of the Commonwealth or a State
                     or Territory of the commonwealth).
                     Prior injury means industrial deafness for which the worker has received or
                     become entitled to receive compensation for loss of hearing.

                                                          Act ref:   S89(1)

Agent to convert     The agent is to convert the current hearing loss NAL to whole person
                     impairment.
                     The agent is to convert the prior hearing loss NAL (or equivalent) to whole
                     person.

                                                          Act ref:   S91(3), S91(3A)

Assessing further    If a worker lodges a claim for further hearing loss the percentage impairment
hearing loss         from any prior assessments should not be deducted from the new assessment.
                     Claims lodged prior to 18/11/04: The dollar amount of the earlier
                     settlement should be deducted for any future settlement amount see appendix
                     12.11.10 - Hearing loss claims policy.
                     Note:
                         Only those claims that have a previously compensated prior injury or
                         hearing loss are calculated an entitlement in accordance with s98C(3A).

                                                           See       Del Borgo v Nisselle & Ors
                                                          also:

Determining          If a prior hearing loss claim has been made (regardless of whether a previous
liability –claims    entitlement has been awarded) agents should obtain the following information
lodged prior to      prior to determining liability:
18/11/04
                     •     the documents used to calculate the previous hearing loss entitlement
                           including audiograms, medical reports and notice of entitlement
                     •     up to date audiograms and medical reports (if possible)
                     •     a circumstance report from the worker’s current employment to confirm if
                           employment is considered a significant contributing factor

Determining          If a prior hearing loss claim has been made and compensated for agents
liability – claims   should obtain the following information prior to determining liability for a
lodged on or after   ‘further injury’ hearing loss claim:
18/11/04
                     •     the documents used to calculate the previous hearing loss entitlement
                           including audiograms, medical reports and notice of entitlement or
                           settlement
                     •     up to date audiograms and medical reports (if possible)
                     •     a circumstance report from the worker’s current employment to confirm if
                           employment is considered a significant contributing factor
                     •     CERA testing results, if agent is unable to determine whether any
                           deterioration of hearing loss is work-related

Level of hearing     If the evidence indicates that the worker’s level of hearing has not
loss has not         deteriorated at all then liability should not be accepted for any claimed
deteriorated         deterioration / further injury.

Marginal increment   If there is a marginal increment in hearing loss and the agent is unable to
in hearing loss      determine whether the deterioration is work-related further testing (eg CERA
                     testing) should be arranged to assess liability.
Liability accepted   If a subsequent deterioration in hearing loss is confirmed and liability is
for subsequent       accepted:
deterioration
                     •     the agent must not to request the IIA to deduct any NAL/WPI percentage
                           in relation to the prior hearing loss
                     •     the agent is to calculate the “further injury” hearing loss in accordance
                           with the Act
                     Note:

                         Agents are reminded that within the calculation method s98C(3A):
                         “T” refers to the current total whole person impairment
                             and
                         “P” refers to the prior total whole person impairment

                     For claims lodged prior to 18/11/04 the dollar amount of any prior settlement
                     for hearing loss made under either the Accident Compensation Act 1985 or
                     Workers Compensation Act 1958 is to be deducted from the settlement
                     amount.

                                                           Act ref:   S98C(3A)
12.4.4 - Loss of a foetus
Compensation          If a claim for impairment benefits is received by the agent, and the only
determined by         claimed injury is the loss of a foetus, the IBS should refer this matter to the
Technical Manager     Senior Legal Manager and/or Technical Manager for assistance with making a
                      liability decision.

Agent to obtain       If a claim is made for loss of a foetus, the agent must obtain medical reports
medical reports       from the worker’s treating medical practitioner/s to find out these facts:
                      •     what caused the termination of the pregnancy
                      •     at what stage in the pregnancy the foetus was lost

Circumstances         The agent should accept liability if the medical report/s confirm that the loss:
when liability must
                      •     was a consequence of a work-related injury
be accepted
                      •     occurred after 16 weeks into the worker’s pregnancy

When an agent is      If the medical report/s do not confirm the loss was work-related and happened
to arrange a s112     after 16 weeks of pregnancy, then the agent must arrange for a s112 medical
exam                  examination to confirm these matters.

IIA not needed if     If the agent (or court) determines that liability is accepted and loss of foetus is
only loss of foetus   the only injury claimed, the agent is not required to arrange an assessment of
claimed               impairment.

Amount of             The amount of compensation payable is listed in appendix 12.11.1.5 -
compensation          Summary of formulas from the Act.
payable
                                                            Act ref:   S98C(4)

                      Note:

                          If the loss of more than one foetus occurs as the result of a single
                          incident (for example: twins), the worker is only entitled to recover the
                          amount specified in appendix 12.11.1.5 - Summary of formulas from
                          the Act once.
12.4.5 - Lost workers
If a worker has lodged an IB claim and at any stage during the process of that application, the
worker cannot be located for an extended period of time despite reasonable attempts by the agent
to locate the worker, then the worker should be considered “lost”.

Locating a lost       If an entitlement to compensation has been established an investigation must
worker                be undertaken in attempt to locate the lost worker.
                      The following non-exhaustive actions are also recommended when attempting
                      to locate a lost worker:
                      •   a reasonable amount of correspondence to the workers last known address
                      •   review of directory services such as White Pages and Yellow Pages
                      •   liaise with worker’s employer and/or legal representatives
                      •   in some circumstances, an investigation may be appropriate
                      Agents must be able to demonstrate attempts to locate a lost worker at least
                      once at the initial onset and at least once prior to advising WorkSafe of a lost
                      worker.
                      ACCtion

Determining a         The following may assist an agent in determining a worker is lost:
worker is lost
                      •   agent correspondence to worker is returned to sender
                      •   confirmation from the worker’s legal representative the worker is no longer
                          represented by them as a result of being unable to be located

Advising WorkSafe     In some circumstances agents must advise WorkSafe if a worker is lost for the
of a lost worker      purpose of monitoring resolutions. Agents must advise WorkSafe:
                      •   after a period of 6 months if an IIA has not been undertaken and there is
                          no entitlement owing to the worker
                      •   after a period of 12 months if all IIAs have been undertaken, and there is
                          an entitlement owing to the worker
                      Details which must be forwarded to WorkSafe include:
                      •   claim number
                      •   worker’s name
                      •   date IB application lodged
                      •   last date of any verbal or written correspondence from the worker or their
                          representative
                      •   why the agent considers the worker cannot be contacted or is unlikely to
                          proceed with their IB claim. For example: the worker is overseas with no
                          known return date or future contact details
                      Once the details are received and authorised by WorkSafe, the claim will be
                      updated on Datamart and will be considered a “resolved” claim in relation to
                      agent remuneration.
                      Agents should not inform WorkSafe of lost workers if the worker has a nil ($0)
                      entitlement under s98C/s98E and the notice of entitlement has been issued.
                      ACCtion

If a lost worker is   If a claim has been considered “resolved” for the purposes of agent
relocated             remuneration, and the worker is relocated or makes contact with the agent,
                      the agent must inform WorkSafe and advise if the worker wishes to proceed
                      with their IB claim.
12.5 - Impairment assessment
This section deals with how to assess a claim for impairment benefits.

Section contents     12.5.1 - Assessment methods for determining impairment
                     12.5.2 - Finding an independent impairment assessor, hearing loss assessor or
                     dual purpose examiner
                     12.5.3 - Information to be provided to IIA
                     12.5.4 - Worker’s supporting medical evidence
                     12.5.5 - Multiple injuries - impairment assessment
                     12.5.6 - Deviation of impairment determinations
12.5.1 - Assessment methods for determining
impairment
Apply to all         For claims lodged on or after 18 November 2004 all agents must use the
impairment benefit   following methods to determine impairment.
claims
                     Note:

                      Prior to 12 November 1997 assessment of impairment used other
                      methodologies to assess impairment including AMA 2.

                     After 12 November 1997, the following methods of assessment apply to all
                     impairment benefit claims no matter when the injury occurred, or when the
                     claim is made.

Physical             For physical impairment (excluding psychiatric and hearing loss), The AMA
impairment           Guides to the Evaluation of Permanent Impairment (4th Edition) –
                     substituting chapter 14 Mental and Behavioural Disorders and excluding
                     chapter 15 Pain.

                                                        Act ref:   S91(1)(i), S91(7C), S91(8)

Hearing loss         For hearing loss, The Improved Procedures for Determination of Percentage
                     Loss of Hearing (1988 Edition or a later prescribed Edition), published by the
                     National Acoustics Laboratory.

                                                        Act ref:   S91(4)(b)

Psychiatric          The Clinical Guidelines to the Rating of Psychiatric Impairment, prepared by
impairment           the Medical Panel (Psychiatry) Melbourne, Victoria, October 1997 and
                     published in the Government Gazette (No.S87 Friday, 28 August 1998).

                                                        Act ref:   S91(6)
12.5.2 - Finding an independent impairment
assessor, hearing loss assessor or dual purpose
examiner
IIA must have       A medical practitioner who has successfully completed a training course
successfully        approved by the Minister responsible for WorkCover may conduct impairment
completed a         assessments in accordance with the AMA 4th Edition Guides.
Ministerially
                    ACCtion
approved training
course

Hearing loss        Hearing loss assessors referred to for s91 assessment, are medical
assessors           practitioners who are approved by the Minister of WorkCover to assess
                    hearing loss.
                    A list of approved specialists is provided by the Minister every three years.
                    See appendix 12.11.5 - Approved ENT specialists for determining hearing loss

                                                          Act ref:   S91(4)(a)(i), S91(4)(a)(ii)

AMA4 Training       Eligible assessors must have both the medical speciality relevant to the
modules for IIA     referred injury and AMA4 impairment assessment training to assess particular
examiners           types of injuries. IIA examiners must have completed the following:
                    •     the Core module of the Ministerially approved training course
                          and
                    •     the training module specific to the injury and/or impairment to be
                          assessed
                    For example:

                        If an impairment assessment is required in accordance with ‘Chapter 8 The
                        Visual System’ of the AMA Guides Fourth Edition, the IIA must have
                        completed both the Core and Visual Systems modules of the training
                        course.

                                                          Act ref    S98E(3)(a)(i)

Dual purpose        If liability is undetermined when arranging impairment examinations, a s112
Examiners           medical opinion may be required to assist in the liability determination.
                    Agents are recommended to arrange a ‘dual purpose examination’ with a
                    medical practitioner who is both a:
                    •     WorkSafe acknowledged independent impairment assessor (IIA) who has
                          successfully completed the Ministerially approved training course in the
                          application of the AMA 4th Edition Guides and is listed by Workafe as an IIA
                          and
                    •     WorkSafe approved s112 independent medical examiner (IME)
                    A dual purpose examiner may only provide:
                    •     a medical opinion regarding the IB claim specific questions of liability
                          and
                    •     an assessment of impairment made in accordance with the AMA 4th Edition
                          Guides and operational guidelines (if any) as to the use of those Guides or
                          methods issued by the Minister of the accepted injuries
                    ACCtion
Multiple injuries –    For information about organising assessor(s) for multiple injuries – see:
pre 18/11/04           12.5.5 - Multiple injuries - impairment assessment.
claims

If in doubt, seek      Agents are encouraged to seek advice from WorkSafe’s Impairment Benefit
advice                 Team and/or the agent Medical Advisor.
                       The agents Medical Advisor may be of assistance to an IBS in consideration of
                       clinical or medical issues affecting the impairment assessment process.

Schedule of fees for   See appendix 12.11.7 - Schedule of recommended fees independent
IIA’s and HLAs         impairment assessments (AMA4), for a list of IIA fees and codes.
                       See appendix 12.11.8 - Schedule of fees for hearing loss assessment
12.5.3 - Information to be provided to IIA
The agent must provide certain information to the IIA.

Standard letters of   A series of AMA4-module specific standard letters are available to use when
referral to IIA       referring workers to the IIA. All information required for the independent
                      impairment assessment is included in the standard letters.

Information to be     The agent must provide the medical practitioner, whether IIA, s112 or dual
provided              purpose examiner, with all relevant information and detailed instructions. This
                      could include:
                      •   treating doctor reports
                      •   hospital reports
                      •   x-rays and reports
                      •   test results
                      •   claim form and accident circumstance reports
                      An itemised list of all material provided must be included in the
                      correspondence to the IIA.

Information to be     The agent must provide the IIA specific case instructions including:
requested from
                      •   a request to examine only accepted injuries
independent
impairment            •   identify rejected injuries
assessor
                      •   instructions to consider aggravation, apportionment and unrelated
                          condition/s to the impairment claim (where relevant) including all medical
                          information describing this unrelated impairment brought about by
                          separate incidents
                      •   a synopsis of issues to consider
                      •   a request for the following information to be addressed in the impairment
                          assessment report:
                          -   a whole person impairment for each accepted injury (for all relevant
                              chapters of the AMA4 guides)
                          -   if applicable for injuries which occurred on or after 3/12/03, a
                              separate whole person impairment for any accepted injuries
                              assessable under Chapter 3 of the AMA4 Guides
                          -   details of any accepted injury that results in a total loss injury set out
                              in s98E
                          -   details of any injury arising out of the accepted incident/cause for
                              which compensation has not been claimed
                          -   advice if a further specialist opinion is needed about the injuries
                          -   where necessary, an apportionment of impairments brought about by
                              separate incidents (whether work-related or unrelated to the claim)
                          -   confirmation that the accepted injury/injuries are stable
Information to be    WorkSafe suggests that in some circumstances it is appropriate to identify to
requested from       the IIA:
dual purpose
                     •   identification of accepted injuries, rejected injuries and those injuries
examiners
                         where liability is undetermined
                     •   a request to provide an impairment assessment of the accepted injuries
                     •   a request for the ‘dual purpose’ examiners medical opinion in relation to
                         those claimed injuries with undetermined liability and
                     •   where it is the dual purpose examiners opinion that the claimed injury is
                         related to the claimed incident, a request for an impairment assessment of
                         the injury/injuries

Agent to refer       Where necessary, the agent must refer any issues, arising from the report(s),
issues from report   to the IIA. This may include the following:
to IIA
                     •   confirmation of the whole person impairment
                     •   confirmation of the injuries identified for assessment, if applicable, in ‘dual
                         purpose’ examinations
                     •   issues with combining of the impairment whole person percentages
                     •   consideration to total loss injuries
                     Pre 18/11/04 – issues may include:
                     •   clarification of the application of the AMA 4th Edition Guides
                     •   inconsistencies in the treating history and IIA diagnosis
                     •   issues with combining of the impairment whole person percentages
                     •   consideration to total loss and/or stabilisation
                     Note
                     For claims lodged post 18/11/04 WorkSafe may issue all agents with a claims
                     management policy on supplementary reports (if necessary).
12.5.4 - Worker’s supporting medical evidence
Not necessary for      It is not necessary for a worker to submit any medical reports with their
workers to submit      impairment benefit claim. Agents are primarily responsible for collecting all
medical reports        relevant background medical material required to process the claim.
                       Although the claims process has been designed to relieve workers of the need
                       to obtain any medical opinions, some workers may still be inclined to obtain
                       their own reports.

                                                                See        Section 98C & E Impairment
                                                                also:      Benefit Protocols

Cost of reports can    The cost of medical reports from a worker’s treating medical practitioner
be reimbursed if in    properly obtained by a worker’s solicitor (that is, in accordance with WorkSafe
accordance with        s98C and s98E Impairment Benefit Protocols) can be reimbursed pursuant to
protocols              the Act.

                                                                Act ref:   S99

Agents to ensure all   Agents should ensure that all relevant treating practitioner reports are
reports are            collected before proceeding to arrange an independent impairment
received before IIA    assessment.

Provision of reports   Reports provided by a worker from a medical practitioner who has not treated
from worker's legal    the worker (medico-legal reports) are not relevant in the assessment of
representative         impairment. The cost of these reports will only be reimbursed where:
                       •     the report(s) were provided to the agent in response to the agent’s denial
                             of liability and
                       •     liability is ultimately accepted by the agent or the court
                       Note:

                           If liability is established through litigation, the cost of these reports is to
                           be treated as a legal disbursement.
12.5.5 - Multiple injuries - impairment
assessment
More than one IIA     If the worker’s claim is for multiple injuries, the agent may need to arrange
may be required if    more than one IIA examination.
there are multiple
                      For example: if a worker has traumatic injuries to the neck and the head, the
injuries
                      agent may have accepted these as the anatomical loss to the cervical spine,
                      organic brain injury and a psychological stress reaction. In this situation the
                      worker may be assessed by:
                      •   an orthopaedic surgeon to assess the neck
                      •   a psychiatrist to assess psychiatric injury and provide assistance in
                          distinguishing brain injury
                      •   a neurologist to assess any brain damage
                      If the neurologist assessing the worker’s head injury is also AMA4 accredited
                      in the spine module, the worker may only need to attend two IIA
                      examinations.

Assessor must         One IIA must combine all physical whole person impairments resulting from
combine physical      the injuries occurring in the same incident or on the same day.
impairments for
                      It is the responsibility of the agent IBS to select and instruct the combining IIA
claims lodged prior
                      to combine the physical whole person impairments.
to 18/11/04
                                                          Act ref:   S104B(5A), S104B(5B)

Combination of        Agents can but are not required to request that one IIA combine all physical
impairments for       whole person impairments resulting from the injuries occurring in the same
claims lodged on or   incident or on the same day.
after 18/11/04
                      Where required, it is the responsibility of the agent IBS to select and instruct
                      the combining IIA to combine the physical whole person impairments.
                      If physical and psychiatric impairments occur simultaneously, the agent should
                      also instruct the combining IIA to combine the physical whole person
                      impairments with the workers non-secondary psychiatric impairment arising
                      from the injury/injuries occurring in the same incident or on the same day.
                      Agents are able to determine the liability and entitlement in relation to a claim
                      for s98C and s98E and therefore combine the impairments.

                                                          Act ref:   S104B(5)

Assessor combines     If physical and psychiatric impairments occur simultaneously, the agent can
physical &            also request the combining IIA to combine the physical whole person
psychiatric           impairments with the worker’s psychiatric impairment arising directly from the
impairments           injuries occurring in the same incident or on the same day.

                                                          Act ref:   S134AB, subdivision 1, Division 3A
12.5.6 - Deviation of impairment determinations
Where WorkSafe would determine the degree of impairment as a different percentage to the
Impairment Assessor(s) in order to ensure that the determinations are as accurate as possible, prior
to the worker being advised of the determination, the Impairment Benefit Specialist must follow
these procedures.
In all circumstances the IB Specialist is to clearly and concisely set out the reasoning adopted in
coming to the impairment determination.

Impairment            If the determination does not
Determination
                      •   deviate by greater than or equal to 5% whole person impairment
                          or
                      •   deviate from the degree of impairment provided by the IA and either
                          increase or decrease the impairment to above or below the common law
                          threshold of 30%
                      The IB Specialist is not required to complete the Peer Review proforma.

Impairment            If the determination of impairment deviates from the degree if impairment
determination         provided by the IA by equal to or greater then 5% whole person impairment
deviates greater      the IB specialist must:
than or equal to 5
                      a) Peer review the determination with either a Senior IB Specialist, Team
percent
                         Leader or IB Manager (which ever is appropriate)
                          and
                      b) Document the peer review on Appendix 20.12.2 - Impairment Benefits
                         Peer Review Form

Impairment            If the determination of impairment deviates from the degree of impairment
determination         provided by the IA and either increases or decreases the whole person
deviates above or     impairment to above or below the Common Law threshold (30% combined
below 30%             whole person impairment) the IB specialist must:
common law
                      a) Peer review the determination with either a Senior IB specialist, Team
threshold
                         Leader or IB Manager (which ever is appropriate)
                      b) Document the peer review on the Appendix 20.12.2 - Impairment Benefits
                         Peer Review Form
                          and
                      c) Advise the authority of the determination and provide at that time a copy
                         of the completed Peer Review proforma
12.6 - No disadvantage compensation table
Purpose of no        The purpose of the no disadvantage table is to ensure that all total loss
disadvantage table   injuries are compensated regardless of the level of whole person impairment
                     as assessed by the AMA Guides Fourth Edition.
                     See appendix 12.11.3 - S98E No disadvantage compensation table

                                                        Act ref:   S98E

Total loss           Compensation is payable for the total loss of any body part, system or
                     function listed in the Table.
                     Total loss should be considered in the context of the complete failure of the
                     body system or function.
                     The meaning of total loss is extended by the Act to mean the permanent and
                     total loss of the use of a body part. This extension is limited to limb, hand,
                     foot, finger, thumb, toe or joint, thereof s98E(2)(a).

                                                        Act ref:   S98E(2)(a)
12.7 - Calculating impairment benefit claims
This section deals with calculating impairment benefit claims.

Section contents      12.7.1   -   Compensation tables
                      12.7.2   -   Information needed for calculating entitlement
                      12.7.3   -   IIA combines the overall whole person impairment
                      12.7.4   -   Calculating hearing loss claims
                      12.7.5   -   Calculating gradual process injuries
                      12.7.6   -   Calculating multiple injury claims
12.7.1 - Compensation tables
The amount of compensation for impairment benefits is calculated by applying the assessed
percentage of impairment to a mathematical formula. The mathematical formulas are set out in
s98C(2), s98C(3), s98C(3A) and s98C(4) the Act and the indexation may vary to the worker’s date
of injury.

                                                         Act ref:    S98C, S98E




Impairment benefit   To find actual amounts of compensation payable for different dates of injury
compensation         and differing levels of impairment or total loss, see the compensation tables in
tables               the appendices:
                     Physical Impairment
                     •   12.11.1.1 - Compensation table for physical impairment
                     •   12.11.2.2 - Compensation table for modified Chapter 3 impairment
                     •   12.11.2.3 - Compensation table for Chapter 3 SPINE impairment
                     •   12.11.1.3 - Compensation table for hearing loss
                     Psychiatric Impairment
                     •   12.11.1.2 - Compensation table for psychiatric impairment
                     Total Loss Injuries
                     •   12.11.3 - S98E No disadvantage compensation table
                     Statutory Maximum Compensation
                     •   12.11.1.4 - Maximum amounts for more than one injury
                     For details about using these tables – see: i Agent determines and calculates
                     impairment benefit entitlement

S98Cand s98E -       The maximum impairment benefit payable for s98C and s98E for injuries
maximum benefits     sustained on the same occasion is $503,000 (indexed annually).

                                                        Act ref:    S98C(7), S98C(8)

S98E maximum         The maximum no disadvantage benefit for s98E total loss injuries sustained on
benefits             the same occasion is set at $246,020 (indexed annually).

                                                        Act ref:    S98E(5)
12.7.2 - Information needed for calculating
entitlement
Here is a list of information needed when calculating impairment benefit entitlements.

Identified injuries   The injuries for which liability was accepted must be identified.

Grouped injuries      Injuries that occurred in the same event or circumstance must be grouped
                      together and the date of injury identified.

Physical and          For each accepted injury, including any total loss injuries, the IIA provides:
psychiatric
                      •   the level of physical impairment for all injuries assessed within the AMA4
impairment levels
                          Guides
                      •   for injuries which occurred on or after 3/12/03, the level of physical
                          impairment for all injuries assessed solely under Chapter 3 of the AMA4
                          Guides
                      •   for claims lodged or claims with the first impairment assessment on or
                          after 10 December 2009, the combined level of impairment for all spinal
                          injuries assessed solely under Chapter 3 of the AMA4 Guides
                      •   If there are any total loss injuries, both the following must be provided:
                          -    a percentage of impairment that includes the total loss figure
                          -    a percentage of impairment that excludes the total loss figure
                      the level of psychiatric impairment.

Date of injury        The date of injury is needed to calculate the worker’s entitlement. It is
                      identified in one of the following ways:
                      •   date of the work-related incident/cause of claimed injury
                      •   for injuries that occur by way of gradual process over time:
                          -   the last day on which the worker was performing duties, or exposed to
                              conditions, by reason of which the injury was due to the nature of the
                              worker’s employment or arose out of or in the course of the worker’s
                              employment
                              or
                          -   the date the claim is given, served or lodged where the worker is still
                              performing duties or exposed to conditions the reason of which the
                              injury was due to the nature of the workers’ employment, or arose out
                              of our in the course of the workers employment
                      •   for hearing loss, or further injury hearing loss, it is the last date of
                          employment or the date of the lodgement of the claim (if the worker is still
                          in current employment)

                                                          Act ref:   S98C(5A)-(5D), (6)

                      For more information about determining date of injury for gradual process and
                      hearing loss claims - see:
                      •   12.7.4 - Calculating hearing loss claims
                      •   12.7.5 - Calculating gradual process injuries

Use tables in         To find compensation amounts payable, use the compensation tables in the
appendices            appendices.
Compensation         Any compensation amounts previously paid under s98, s98A or s98C must be
amounts previously   identified. They may be deducted from the compensation for an impairment
paid                 that is the result of an injury caused by recurrence, aggravation, acceleration,
                     exacerbation or deterioration of the previously compensated injury.
                     Note:

                      In the case of a further injury hearing loss claim the agent does not
                      deduct any payment made for a prior injury hearing loss claim.



                                                        Act ref:   S98C(9)
12.7.3 - IIA combines the overall whole person
impairment
For the purposes of calculating:
•   impairment benefit claims (s98C & s98E of the Act)
•   common law entitlement (s134AB of the Act)
•   voluntary settlement (s115 of the Act)
the IIA is responsible for the following:

Combining physical      Injuries            For injuries which have occurred on or after 12/11/97 to
impairments             between             2/12/03, when all of a worker’s impairments have been
                        12/11/97 to         assessed, one combining IIA should be requested to
                        2/12/03             combine physical impairments related to injuries or
                                            diseases sustained on the same occasion (or through
                                            gradual onset due to the same duties or conditions) as
                                            follows:
                                            •   all physical impairments related to the injuries or
                                                diseases sustained on the same occasion assessed
                                                under every chapter of the ANAN4 Guides
                                            •   for claims lodged, or claims with the first impairment
                                                assessment on or after 10 December 2009, all spine
                                                injuries assessed under Chapter 3 of the AMA4 Guides
                                                sustained on the same occasion
                                            For claims lodged prior to 18/11/04 the IIA is required to
                                            combine the WPI.
                                            Agents are now able to determine the liability and
                                            entitlement in relation to a claim for s98C and s98E and
                                            therefore combine the impairments if they are unable to
                                            request an impairment assessor to complete the task.

                        Injuries on or      For injuries which have occurred on or after 3/12/03 and
                        after 3/12/03       prior to 18/11/04 the combining IIA is required to
                                            combine all impairment related injuries or diseases as
                                            follows:
                                            •   for claims lodged, or claims with the first impairment
                                                assessment on or after 10 December 2009, all spine
                                                injuries assessed under Chapter 3 of the AMA4 Guides
                                                sustained on the same occasion
                                            •   all injuries assessed under Chapter 3 of the AMA4
                                                Guides sustained on the same occasion
                                            •   all physical impairments related to injuries or diseases
                                                sustained on the same occasion assessed under every
                                                chapter of the AMA4 Guides
                                            Agents are now able to determine the liability and
                                            entitlement in relation to a claim for s98C and s98E and
                                            therefore combine the impairments if they are unable to
                                            request an impairment assessor to complete the task.
Total impairment    Injuries         For injuries which have occurred on or after 12/11/97 to
for each class of   between          2/12/03, the IIA should be requested to identify the
impairment          12/11/97 to      overall impairment (physical and psychiatric) whole
                    2/12/03          person assessment, caused by each event or circumstance
                                     (or through gradual onset due to the same duties or
                                     conditions) as follows:
                                     •   all physical impairments related to the injuries or
                                         diseases sustained on the same occasion assessed
                                         under every chapter of the AMA4 Guides
                                     •   for claims lodged, or claims with the first impairment
                                         assessment on or after 10 December 2009, all spine
                                         injuries assessed under Chapter 3 of the AMA4 Guides
                                         sustained on the same occasion
                                     For claims lodged prior to 18/11/04 the IIA is required to
                                     combine the overall WPI.
                                     Agents are now able to determine the liability and
                                     entitlement in relation to a claim for s98C and s98E and
                                     therefore combine the impairments if they are unable to
                                     request an impairment assessor.

                    Injuries on or   For injuries which have occurred on or after 3/12/03 the
                    after 3/12/03    IIA should be requested to identify the overall:
                                     •   for claims lodged, or claims with the first impairment
                                         assessment on or after 10 December 2009, whole
                                         person impairment for all spine injuries assessed
                                         under Chapter 3 of the AMA4 Guides sustained on the
                                         same occasion
                                     •   whole person impairment for all injuries assessed
                                         under Chapter 3 of the AMA4 Guides sustained on the
                                         same occasion
                                     •   whole person impairment (physical and psychiatric),
                                         caused by each event or circumstance
                                     IIA should also be requested to separate the total loss
                                     injuries from the overall impairment (physical and
                                     psychiatric) whole person assessment.
                                     Agents are now able to determine the liability and
                                     entitlement in relation to a claim for s98C and s98E and
                                     therefore combine the impairments if they are unable to
                                     identify:
                                     •   for claims lodged, or claims with the fires impairment
                                         assessment on or after 10 December 2009, whole
                                         person impairment for all spine injuries assessed
                                         under Chapter 3 of the AMA4 Guides sustained on the
                                         same occasion
                                     •   whole person impairment for all injuries assessed
                                         under Chapter 3 of the AMA4 Guides sustained on the
                                         same occasion
                                     •   whole person impairment (physical and psychiatric)
                                         caused by each event or circumstance
                                     IIA should also separate the total loss injuries from the
                                     overall impairment (physical and psychiatric) whole
                                     person assessment.
Combining for       For all injuries, the IIA should be requested to combine physical and non-
common law          secondary (primary) psychiatric impairments using the Combined Values Chart
threshold and       for two impairments or the formula in the Combined Values Calculator to
voluntary           combine three or more impairments in order for the agent to advise the
settlement (ICRP)   worker of their whole person impairment for common law election purposes
                    and/or voluntary settlement.
                    Note:

                     A whole person impairment of 30% combined whole person impairment
                     (both physical and primary psychiatric impairment) or greater is
                     required to be deemed as a serious injury. Entitlement to compensation
                     under s98C/E is not calculated from this combined whole person
                     impairment.

                                                      Act ref:   S104B(5)
12.7.4 - Calculating hearing loss claims
Hearing loss claims lodged on or after 12 November 1997 should be lodged on the last employer if
still in current operation, or directly to the agent.

                                                                Act ref:    S88(4), S106, S98C, S98E




Claims lodged on or       Hearing loss claims lodged on or after 12 November 1997 are assessed as
after 12/11/97            impairment benefit claims if either of the following applies:
                          •   the worker was still employed with the employer at the time of making the
                              claim
                          •   employment with the employer ceased after 11 November 1997

Lodged before             Hearing loss claims lodged before 12 November 1997, or lodged after this date
12/11/97 or lodged        if employment ceased beforehand, are processed under s98, s98A and s104A.
if employment
                          For information about this, see appendix 12.11.6 - Table of maims claims.
ceased beforehand
                                                              Act ref:     S98, S98A, S104A

Injury date if still in   If the worker is still in noisy employment, the date of injury is:
noisy employment
                          •   the date the claim was lodged on the employer
                          Further purpose of calculating the entitlement the date of calculation is
                          deemed to be:
                          •   the date of the impairment report (or supplementary report if one exists)
                          •   the date of the Medical Panel certificate of opinion

Total loss of             Under appendix 12.11.3 - S98E No disadvantage compensation table, a
hearing                   worker is entitled to compensation of $159,930 (indexed annually) for a total
                          loss of hearing.

Claims after 1/7/94       For claims after 1 July 1994, the percentage of hearing loss must be
must be                   determined by an approved specialist. A list of approved specialists can be
determined by an          found in appendix 12.11.5 - Approved ENT specialists for determining hearing
approved specialist       loss.
                          The approved specialist establishes the National Acoustics Laboratory (NAL)
                          level of hearing loss.
Approved specialist     The approved specialist impairment assessor should convert the NAL level of
converts the NAL        hearing loss to whole person impairment by either of these methods:
level of hearing loss
                        (Only the first two points relate to pre 18/11/04 claims)
to WPI
                        •     using the formula in s91(3) of the Act
                              Note:

                               The converted whole person impairment figure must be rounded up
                               to the next whole number.

                        •     using appendix 12.11.1.3 - Compensation table for hearing loss to find the
                              whole person physical impairment percentage that is adjacent to the NAL
                              percentage
                        •     For further injury hearing loss claims, using the formula in s91(3) for the
                              current hearing loss and s91(3A) for the prior hearing loss
                        Note:

                            The converted whole person impairment figure must be rounded up to
                            the next whole number for the further injury hearing loss and prior
                            injury hearing loss impairments greater than or equal to 10% NAL.
                            If the prior hearing loss impairment is considered to be less than 10%
                            NAL the impairment is rounded either up or down to the nearest whole
                            number. For example: 5.4% NAL would be rounded to5% whole person
                            after conversion in accordance with s91(3A).

How the agent           The agent determines the level of compensation by using appendix 12.11.1.3
determines the          - Compensation table for hearing loss and:
level of
                        •     finding the column incorporating the date the worker left work or, if the
compensation
                              worker is still employed by the employer, the date of the current existing
                              impairment assessment report
                        •     locating the amount in that column that coincides with the converted
                              whole person physical impairment percentage
                        Note:

                            The dollar amount of any prior settlement for hearing loss made under
                            either the Accident Compensation Act 1985 or Workers Compensation
                            Act 1958 is to be deducted from the settlement amount if the claim is
                            lodged prior to 18/11/04.

                                                              Act ref:   S98C(6)

Level of                If the agent has identified a prior hearing loss attributable to interstate
compensation            employment the agent should obtain the detail of impairment attributed to
where component         hearing loss which has occurred as a result of employment interstate.
of hearing loss
                        If the prior hearing loss has not been assessed in accordance with The
occurred interstate
                        Improved Procedures for Determination of Percentage Loss of Hearing (1988
                        Edition of or a later prescribed Edition) (NAL) published by the National
                        Acoustic Laboratory, the agent is to determine that the impairment given is
                        the equivalent of the percentage that would have been determined in
                        accordance with the NAL method.
                        For claims lodged prior to 18/11/04
                        If the agent has identified a prior hearing loss attributable to interstate
                        employment see 12.4.3.1 - Prior hearing loss due to interstate employment
                        the agent is to deduct, on a time weighted scale, the percentage of
                        impairment that is considered to be non compensable and issue a Notice of
                        Entitlement on the adjusted whole person impairment.
                        The deduction is generally made on a time weighed scale; that is hearing loss
                        occurred at a constant rate over the period of noise exposure. However, if
                      there is clear evidence that the interstate hearing loss occurred at a greater
                      level than that which occurred in Victoria (or vice versa) the time weighted
                      scale may not be appropriate. For example if the worker worked interstate for
                      one year but the medical evidence indicates that the majority of hearing loss
                      occurred interstate.
                      The agent should contact the Dispute Management Branch if they:
                      •   believe the time weighted scale should not apply
                          or
                      •   are unsure as to whether the information to hand can be considered
                          probable cause to justify a deduction of an interstate industrial hearing
                          loss

Agent to calculate    If it is considered reasonable that the worker has suffered some level of
hearing loss          industrial hearing loss, the agent is to have the worker assessed as per normal
                      requesting the examiners opinion as to the following:
                      •   the whole person impairment inclusive of any hearing loss which may have
                          occurred as a result of the workers prior employment and
                      •   the whole person impairment of only the hearing loss which is considered
                          to have occurred within Victoria, based on a time weighted scale
                      Hearing loss from unrelated causes (other than employment) such as
                      exposure to firearms, loud music etc should be taken into consideration when
                      determining the total loss of employment related hearing loss in accordance
                      with s91(7)(c).

                                                          See        Stojcevski v Nisselle & Ors
                                                          also:

Level of              If the agent has identified a prior hearing loss the agent should obtain the
compensation for      detail of impairment attributed to hearing.
further injury
                      If the prior hearing loss has not been assessed in accordance with The
hearing loss claims
                      Improved Procedures for Determination of Percentage Loss of Hearing (1988
                      Edition of or a later prescribed Edition) (NAL) published by the National
                      Acoustic Laboratory, the agent is to determine that the impairment given is
                      the equivalent of the percentage that would have been determined in
                      accordance with the NAL method.
                      When the prior impairment percentage and current impairment percentage
                      has been determined, agent are referred to the formula for calculation of
                      further hearing loss impairment in s98C(3A).

                                                          Act ref:   S89(3C)(b)
12.7.5 - Calculating gradual process injuries
The date of injury needs to be identified when an injury occurs by way of gradual process over time.

Establishing injury   The date of injury must be established as follows.
date
                      The injury is deemed to have been sustained on the last day on which the
                      worker was:
                      a. performing duties
                          or
                      b. exposed to conditions
                          by reason of which the injury was due to the nature if the workers
                          employment or arose out of or in the course of the workers employment
                          or
                          if on the day on which the worker gives, serves or lodges the claim in
                          respect of the injury, the worker is still performing duties, or exposed to
                          conditions by reason of which the injury was due to the nature of the
                          workers employment, or arose out of or in the course of the workers
                          employment, the injury is deemed to have been sustained on the day the
                          worker makes the claim
                      •   no longer employed by the employer against whom the claim is made, the
                          date of injury is the last day worked
                      •   still employed by the employer against whom the claim is made, the date
                          of injury is the date the claim is served on the employer

Information to        The following information may be considered in determining a gradual onset
consider in           injury and the deemed date of injury:
determining the
                      •   clinical notes and medical history from the workers treating health
date of injury for
                          practitioner, confirming an injury has been sustained and the absence of a
gradual onset
                          specific incident contributing to it
injuries
                      •   the nature of the duties of employment whether these duties had changed
                          following notification of the claimed injuries or over time
                      •   the nature of the conditions of employment and whether the conditions
                          had changed following notification of the claimed injuries or over time
                      •   duration of employment with the claimed injury employer
                      •   information as to whether the worker is or was employed elsewhere and
                          the nature of these duties or the conditions of employment
                      •   other claims for compensation made by the worker (if any) for injuries
                          claimed arose out of a specific event/s, or recurrence, aggravation,
                          acceleration, exacerbation or deterioration of any pre-existing injury or
                          disease
                      •   employers claim history (if any) to determine whether the nature of the
                          employment is of a class or type to cause injuries of a gradual process
                          nature
12.7.6 - Calculating multiple injury claims
Classes of             Multiple injuries can lead to one or more of the following classes of
impairment             impairment:
                       •     permanent physical impairment
                       •     permanent psychiatric impairment

Adding                 If a worker has suffered multiple injuries in a single work-related incident, the
entitlements           assessments for each impairment must be combined using the Combined
                       Values Chart for two impairments and the formula of A+B (1-A) or the
                       Combined Values Calculator for three or more impairments to calculate the
                       total whole person impairment percentage.
                       In situations where two impairments are to be combined, the agent should use
                       the Combined Values Chart.
                       Where three or more impairments are to be combined, the combining formula
                       of A+B (1-A) must be applied.
                       It is important not to round any of the values prior to the final value being
                       established. Use of the Combined Values Calculator will ensure the final
                       combined value is accurate.
                       If there is a s98C compensable impairment and a corresponding s98E
                       compensable impairment the two must be calculated separately and then
                       combined together for the final amount of s98C compensation.
                       Note:

                           The final compensation is capped at $503,000 (indexed annually).

                                                           Act ref:   S98C(8)

Multiple injuries on   If a worker has sustained multiple injuries on different occasions, then any
different occasions    entitlements for these must be calculated separately, in chronological order.
12.8 - Interest on IB and maims claims
S128 outlines the provisions relating to circumstances when an employer or WorkSafe is liable for an
additional payment of compensation if a court finds that there has been an “unreasonable” delay in
payment of compensation.

                                                    Act ref:      S128, (S92, S92A, S92B, S98, S98A,
                                                                  S98C and S98E)

Request is made by   If a request is made by the worker or their legal representative for payment of
worker or their      compensation under s128 either by written correspondence or by way of
legal                proceedings in the Magistrates’ or County Courts, all agents must contact
representation       WorkSafe immediately prior to making any payments.

Request is made by   If a request is made by a legal panel firm for payment of compensation on a
legal panel firm     litigated Maims claim, all agents must contact WorkSafe immediately prior to
                     making any payments.

Requests for           Section 98C and/or s98E
payment in
                        For requests of payment of compensation under s128 for claims for
ACCtion
                        compensation under s98C and/or s98E, agents must contact the IB branch
                        of WorkSafe in writing.
                       Maims claims
                        For requests of payment of interest on litigated maims claims, agents must
                        contact the Maims Branch of WorkSafe in writing.
12.9 - IB Claims lodged after employer exits
Victorian scheme
Lodgement of IB        In circumstances where an agent received an IB application for an injury which
applications post      has been incurred after the employers exit from the Victorian scheme, the
employer exit          agent is to return the IB application to the worker/workers representative with
                       an explanation detailing that the injury date falls outside the coverage by the
                       scheme.

Liability              If a claim for compensation is received after the employer has exited the
determination          scheme, with a date of injury prior to the employer exiting the scheme, the
                       liability determination should be made in accordance with section 12.4.1 -
                       Guidelines to determine liability.

Assessment and         See:
calculation of
                       •   12.4.3 - Hearing loss
entitlement of
impairment benefit     •   12.5 - Impairment assessment
claims
                       •   12.7 - Calculating impairment benefit claims

Claim for gradual      If the agent receives a claim for a gradual process injury the agent is to follow
process                the procedure set out in section 12.7.5 Calculating gradual process injuries for
impairments – date     determining the date of injury.
of injury

New IB claims          WorkSafe will provide weekly reports to the agent on all new IB application
lodged where the       lodged where the injury occurred before the employer exiting the Victorian
injury occurred        scheme.
before the exit date
12.10 - Legislation
This section contains information on the main sections of the Act that relate to impairment and Table
of Maims.

Section    Section summary          Section detail

S91        Assessment of            S91 contains information about using the AMA Guides to assess
           impairment               impairment.

S98        Compensation for         A worker who suffers an injury before 12 November 1997 is
           maims                    entitled to compensation equal to the percentage of a set
                                    amount. The percentage for different injuries is listed in the
                                    table.

S98A       Compensation for pain    S98A contains information on who is eligible to claim
           and suffering            compensation for pain and suffering. It relates to injuries
                                    occurring before 12 November 1997.

S98C       Compensation for non-    S98C outlines who is eligible and how the amounts of
           economic loss            compensation are calculated for impairment benefits.

S98C(5)    Definition of foetus     The Act defines foetus as the conceptus beyond the sixteenth
                                    week of development.

S98E       No disadvantage –        S98E contains a table of compensation amounts payable to
           Compensation table       injured workers suffering certain impairments.

S104(2)    Role of WorkSafe in      S104(2) outlines the responsibility of WorkSafe to process s98
           compensation claims      and s98A claims.

S104B      Claims for               S104B contains information about determining liability and
           compensation under       carrying out impairment assessments for impairment benefits.
           s98C
12.11 - Appendices
This section contains information referred to within the preceding text.

Appendices    12.11.1 - S98C Compensation tables - claims made prior to 10 December 2009
              12.11.2 - S98C Compensation tables - claims made from 10 December 2009
              12.11.3 - S98E No disadvantage compensation table
              12.11.4 - Instructions for completing s104b (9) Medical Panel referral forms
              12.11.5 - Approved ENT specialists for determining hearing loss
              12.11.6 - Table of maims claims
              12.11.7 - Schedule of recommended fees independent impairment assessments (AMA4)
              12.11.8 - Schedule of fees for hearing loss assessment
              12.11.9 - Table of modification to degrees of impairment for the purposes of s98C
              12.11.10 - Hearing loss claims policy
              12.11.11 - Further injury hearing loss table
12.11.1 - S98C Compensation tables - claims
made prior to 10 December 2009
Compensation applicable for claims for Impairment Benefits made prior to 10 December 2009 where
the first impairment assessment attended for that claim was prior to 10 December 2009.



Section contents    12.11.1.1   -   Compensation table for physical impairment
                    12.11.1.2   -   Compensation table for psychiatric impairment
                    12.11.1.3   -   Compensation table for hearing loss
                    12.11.1.4   -   Maximum amounts for more than one injury
                    12.11.1.5   -   Summary of formulas from the Act
12.11.1.1 - Compensation table for physical
impairment
Amounts in this table are indexed using movements in the Consumer Price Index (CPI).
Note:

 Since the CPI between the December 1996 and December 1997 quarters decreased, the
 levels of compensation for 1997/98 and 1998/99 injuries remain the same.

Following legislative changes in December 2003 the formulas for calculating non-economic loss in
respect of permanent impairment have been amended. Some amounts of compensation for non-
economic loss have been increased in certain circumstances. To convert whole person physical
impairment to an IB rating in accordance with legislative amendments for injuries on or after 3
December 2003 – see: 12.11.9 - Table of modification to degrees of impairment for the purposes of
s98C
Percentages marked * relate to the worker’s impairment benefit rating where the whole person
impairment assessment has been made in accordance with Chapter 3 of the AMA Guides under
s98C(2A).
 Injuries from 1 July 2007

  Click   to view table.
 Injuries between 3 December 2003 and 30 June 2007

  Click   to view table.
 Injuries between 12/11/97 - 2/12/03

  Click   to view table.
12.11.1.2 - Compensation table for psychiatric
impairment
Amounts in this table are indexed using movements in the Consumer Price Index (CPI).
Note:

  Since the CPI between the December 1996 and December 1997 quarters decreased, the
  levels of compensation for 1997/98 and 1998/99 injuries remain the same.

 Injuries after 1 July 2004

  Click   to view table.
 Injuries between 12/11/97 - 30/6/04

  Click   to view table.
12.11.1.3 - Compensation table for hearing loss
Since the Consumer price Index (CPI) between the December 1996 and December 1997 quarters
decreased, the levels of compensation for 1997/98 and 1998/99 injuries remain the same.
Note:

  Impairment entitlements are indexed annually by CPI. Total loss entitlements are indexed
  annually by average weekly earnings (AWE).

 Hearing loss NAL% - benefits on or after 3 December 2003

  Click   to view table.
 Hearing loss NAL% - benefits between 12/11/97 - 2/12/03

  Click   to view table.
 Total loss of hearing
If the worker is assessed by the medical examiner as suffering total loss of hearing, compensation
must be paid under s98E as follows:

Deemed date of injury            Compensation amount for total loss of hearing

1997/1998                        $104,904

1998/1999                        $109,100

1999/2000                        $109,430

2000/2001                        $110,960

2001/2002                        $114,010

2002/2003                        $120,480

2003/2004                        $129,150

2004/2005                        $139,360

2005/2006                        $141,650

2006/2007                        $147,120

2007/2008                        $149,030

2008/2009                        $154,150

2009/2010                        $159,930
12.11.1.4 - Maximum amounts for more than one
injury
If the worker suffers more than one of the injuries mentioned in the s98E compensation table, they
are not entitled to receive a maximum amount greater than the following, for the appropriate date
of injury:

Deemed date of injury           Maximum
                          compensation amount
                           for multiple injuries
                                     $

1997/1998                 $161,390

1998/1999                 $167,850

1999/2000                 $168,350

2000/2001                 $170,700

2001/2002                 $175,400

2002/2003                 $185,350

2003/2004                 $198,680

2004/2005                 $214,390

2005/2006                 $217,910

2006/2007                 $226,320

2007/2008                 $229,250

2008/2009                 $237,130

2009/2010                 $246,020
12.11.1.5 - Summary of formulas from the Act
Injuries on or after 1 July 2008

 Click   to view table.
Injuries on or after 1 July 2005

 Click   to view table.
Injuries from 1 July 2003 to 30 June 2004

 Click   to view table.
Injuries between 12/11/97 - 30/6/03

 Click   to view table.
12.11.2 - S98C Compensation tables - claims
made from 10 December 2009
Compensation applicable for claims for Impairment Benefits made on or after 10 December 2009, or
existing claims where the first impairment assessment attended for that claim is on or after 10
December 2009.

Section contents    12.11.2.1   -   Compensation table for physical impairment
                    12.11.2.2   -   Compensation table for modified Chapter 3 impairment
                    12.11.2.3   -   Compensation table for Chapter 3 SPINE impairment
                    12.11.2.4   -   Compensation table for hearing loss
                    12.11.2.5   -   Compensation tables for psychiatric impairment
                    12.11.2.6   -   Summary of s98C calculations and amounts
12.11.2.1 - Compensation table for physical
impairment
Claims made on or after 10 December 2009.
Compensation applicable for claims for Impairment Benefits made on or after 10 December 2009, or
existing claims where the first Impairment Assessment attended, for that claim, is on or after 10
December 2009.
 Injuries from 1 July 2005

  Click   to view table.
 Injuries between 1 July 1997 and 30 June 2005

  Click   to view table.
12.11.2.2 - Compensation table for modified
Chapter 3 impairment
Injuries sustained on or after 3 December 2003 with a whole person impairment assessed in
accordance with Chapter 3 of the AMA Guides between 5% and 29% and modified in accordance
with Schedule 2 of the Accident Compensation Act 1985.

Click   to view table.
12.11.2.3 - Compensation table for Chapter 3
SPINE impairment
Claims made on or after 10 December 2009.
SPINE injuries with a whole person impairment assessed in accordance with Chapter 3 of the AMA
Guides between 5% and 29% and modified in accordance with Schedule 2 of the Accident
Compensation Act 1985 (for injuries on or after 3 December 2003) and increased by 10% of the
compensation amount.
S98C(2)(c)(ii)(B) instructs that no calculation for Spine Impairment should exceed $68,240 being
the value calculated for 30% WPI within the 2009/10 Injury Year.
 Injuries between 3 December 2003 and 30 June 2010

  Click   to view table.
 Injuries between 1 July 1997 and 2 December 2003

  Click   to view table.
12.11.2.4 - Compensation table for hearing loss
Since the Consumer price Index (CPI) between the December 1996 and December 1997 quarters
decreased, the levels of compensation for 1997/98 and 1998/99 injuries remain the same.
Note:

  Impairment entitlements are indexed annually by CPI. Total loss entitlements are indexed
  annually by average weekly earnings (AWE).

 Hearing loss NAL% - benefits on or after 3 December 2003

  Click   to view table.
 Hearing loss NAL% - benefits between 12/11/97 - 2/12/03

  Click   to view table.
 Total loss of hearing
If the worker is assessed by the medical examiner as suffering total loss of hearing, compensation
must be paid under s98E as follows:

Deemed date of injury            Compensation amount for total loss of hearing

1997/1998                        $104,904

1998/1999                        $109,100

1999/2000                        $109,430

2000/2001                        $110,960

2001/2002                        $114,010

2002/2003                        $120,480

2003/2004                        $129,150

2004/2005                        $139,360

2005/2006                        $141,650

2006/2007                        $147,120

2007/2008                        $149,030

2008/2009                        $154,150

2009/2010                        $159,930
12.11.2.5 - Compensation tables for psychiatric
impairment
Claims made on or after 10 December 2009.
Compensation applicable for claims for Impairment Benefits made on or after 10 December 2009, or
existing claims where the first Impairment Assessment attended, for that claim, is on or after 10
December 2009.
 Injuries from 1 July 2007

  Click   to view table.
 Injuries between 1 July 1997 and 30 June 2007

  Click   to view table.
12.11.2.6 - Summary of s98C calculations and
amounts
Claims made on or after 10 December 2009.
Compensation applicable for claims for Impairment Benefits made on or after 10 December 2009, or
existing claims where the first Impairment Assessment attended, for that claim, is on or after 10
December 2009.
For claims with Impairment Assessments prior to 10 December 2009 refer to: 12.11.1.5 - Summary
of formulas from the Act.

Click   to view table.
12.11.3 - S98E No disadvantage compensation
table
Here are the amounts paid for s98E total loss injuries. These amounts are indexed annually by
average weekly earnings (AWE).
 Injuries on or after 1 July 2004

  Click   to view table.
 Injuries between 12/11/97 - 30/6/04

  Click   to view table.
12.11.4 - Instructions for completing s104b (9)
Medical Panel referral forms
These forms should be used for s98C and s98E referrals only and must be typed.
•   20.12.1 - Referral to Medical Panel
•   20.12.4 - Hearing Loss only - Referral to Medical Panel
Please refer to the following instructions when completing the forms.

Information                       Instruction

Worker’s address                  It is imperative that agents provide the worker’s current
                                  address when making a referral to a Medical Panel. Agents
                                  should confirm the current address with the worker before
                                  completing the referral document.

Accepted injuries                 Provide an accurate and full description of those injuries for
                                  which liability has been accepted as arising out of the one
                                  event or circumstance. Be precise as the worker may accept
                                  the psychiatric assessment but reject the physical assessment
                                  or vice versa.
                                  For assessments of psychiatric impairment, occupational
                                  asthma or infectious occupational disease please state
                                  whether or not the updated guidelines apply in particular
                                  whether the initial impairment assessment was conducted on
                                  and after 28 July 2006

Date of Injury                    Referrals should be limited to injuries arising from a single
                                  incident. If the worker has claimed for multiple incidents on
                                  the same claim form, a separate referral form for each
                                  incident should be submitted.

Issues and reason for referral    Record details of s104B (4) and (5) independent impairment
                                  assessment, the worker’s response to this assessment and
                                  any other information relevant to the Medical Panel referral.
                                  Also record details of any facts relevant to the s98C claim and
                                  whether they are agreed or disputed.

Schedule of reports               Enclosure A must always be on a separate page. All reports
                                  and correspondence relevant to the assessment should be
                                  recorded on this form and provided to the Medical Panel (see
                                  S65 (6A)). In addition include any:
                                    •     Prior Medical Panel opinion and reason;
                                    •     Conciliation Outcome Certificate;
                                    •     The Notice of Entitlement and worker’s response; and
                                    •      Where surveillance reports are provided, the
                                          corresponding videotape(s)/DVD/CD should also be
                                          included.

Certification                     It is essential that agent’s/self-insurers ensure that all the
                                  information detailed in this section has been provided to the
                                  worker or his/her representative
12.11.5 - Approved ENT specialists for
determining hearing loss
Persons approved to determine the percentage of diminution and total loss of hearing under s91(4),
s98(2AB) and s98E(3) of the Act between 1 July 2009 and 30 June 2010.
Hearing Loss Assessors:

 ENT No.      Title       Surname          First Name                  Address

ENT076A      Mr       Baxter            Malcolm           46 Clyde Road
                                                          BERWICK VIC 3806

ENT010B      Dr       Briggs            Robert J S        Suite 222
                                                          Level 2
                                                          100 Victoria Parade
                                                          EAST MELBOURNE VIC 3002

ENT011A      Mr       Calder            Russell           42 Swanston Street
                                                          GEELONG VIC 3220

ENT072A      Dr       Campbell          Matthew           North Fitzroy Specialist Centre
                                                          544 Brunswick Street
                                                          FITZROY NORTH VIC 3068

ENT071A      Mr       Chan              S F (Danny)       167 Stud Road
                                                          DANDENONG VIC 3175

ENT071B      Mr       Chan              S F (Danny)       262 Mountain Highway
                                                          WANTIRNA VIC 3152

ENT013A      Mr       Costello          Brian             2nd Floor
                                                          141 Grey Street
                                                          EAST MELBOURNE VIC 3002

ENT007A      Mr       Cousins           Vincent C         Cabrini Medical Centre
                                                          Suite 10
                                                          Isabella Street
                                                          MALVERN VIC 3144

ENT015A      Mr       Donoghue          Paul              6 Errard Street North
                                                          BALLARAT VIC 3350

ENT025A      Mr       Hammond           Henry Grant       Walter Williams Clinic
                                                          Level 2
                                                          156 Collins Street
                                                          MELBOURNE VIC 3000

ENT026A      Mr       Hooper            Robin             Suite 11
                                                          5th Floor
                                                          517 St Kilda Road
                                                          MELBOURNE VIC 3004
ENT020A   Dr   Hurst     William       45 Hastings Road
                                       FRANKSTON VIC 3199

ENT027A   Mr   Irani     Boman         4/30 Eleanor Street
                                       FOOTSCRAY VIC 3011

ENT022B   Mr   Kane      Kevin         14 Shuter Street
                                       MOONEE PONDS VIC 3039

ENT029A   Mr   Kennedy   John          St Francis Building
                                       Suite 9
                                       Level 9
                                       166 Gipps Street
                                       EAST MELBOURNE VIC 3002

ENT074A   Dr   Kleiner   Gil           161 Livingston Road
                                       MARRICKVILLE NSW 2204

ENT040A   Mr   Lyons     Bernard       Suite 10
                                       1st Floor
                                       141 Grey Street
                                       EAST MELBOURNE VIC 3002

ENT040C   Mr   Lyons     Bernard       Suite 1
                                       28-32 Arnold Street
                                       BOX HILL VIC 3128

ENT041B   Dr   Maiyah    Madappa       17 Pickett Street
                                       FOOTSCRAY VIC 3011

ENT042A   Mr   Millar    Hugh S        183 Victoria Parade
                                       FITZROY VIC 3065

ENT075A   Dr   Rao       Akkinepalli   P O Box 44
                                       GLEN WAVERLEY VIC 3150

ENT036A   Dr   Redhead   Theodore      54 Bay Road
                                       SANDRINGHAM VIC 3191

ENT046A   Mr   Rundel    Henry M P     Cabrini Medical Centre
                                       Suite 18
                                       Isabella Street
                                       MALVERN VIC 3144

ENT060A   Mr   Russell   Noel          St John of God Medical Centre
                                       43 Little Myers Street
                                       GEELONG VIC 3220

ENT047A   Mr   Sherman   Gary          5 Erin Street
                                       RICHMOND VIC 3121
ENT048A   Dr   Silverstein   Michael        7th Floor
                                            24 Collins Street
                                            MELBOURNE VIC 3000

ENT049A   Mr   Taylor        Roy            Suite 13
                                            529 Police Road
                                            MULGRAVE VIC 3170

ENT059A   Dr   Thomas        Robert         Cabrini Medical Centre
                                            Suite 18
                                            Isabella Street
                                            MALVERN VIC 3144

ENT059B   Dr   Thomas        Robert         87 Ferguson Street
                                            WILLIAMSTOWN VIC 3016

ENT054B   Mr   Thomson       Peter (John)   9 Erin Street
                                            RICHMOND VIC 3121

ENT055B   Dr   Trower        Ron            Level 7
                                            24 Collins Street
                                            MELBOURNE VIC 3000

ENT056A   Mr   Webb          Robert         77 High Street
                                            KEW VIC 3101

ENT073A   Dr   Williams      Brian          Suite 513
                                            Level 5
                                            71-73 Archer Street
                                            CHATSWOOD NSW 2067
12.11.6 - Table of maims claims
This appendix contains information about Table of Maims injuries.
 Table of Maims - general information
  For injuries sustained prior to 12 November 1997, in addition to any other compensation payable,
  a worker may be entitled to a further payment under s98 and s98A if the injury is one of the
  injuries set out in the Table in s98(1).

What s98             The s98 entitlement represents the permanent impairment or loss of function
compensates for      as a consequence of an injury.

What s98A            The s98A entitlement is for the pain and suffering associated with the injury.
compensates for      To qualify for s98A, the amount payable pursuant to s98 must not be less
                     than the threshold amount.

Ministerial          Ministerial Directions were published on 1 June 1998 providing procedures for
Directions           the determination of claims for compensation under s98 and s98A of the Act.
                     The Ministerial Directions were amended in line with the Accident
                     Compensation (Amendment) Act 2001 and published on 1 July 2002. These
                     Directions apply to all maims claims lodged on or after 1 July 2002.

                                                   Act ref:   S104A

Amendments to        The Accident Compensation (Amendment) Acts of 1994, 1996, 2001 and the
Table of Maims       Accident Compensation (Miscellaneous Amendment) Act 1997 introduced
claims               significant changes to the conduct and entitlement of Table of Maims claims.
                     These are:

                      1    The threshold for hearing loss of 7% diminution of hearing to apply in
                           respect of all claims, made on or after 1 April 1994. The diminution of
                           hearing shall be determined by a person or class of persons and in a
                           manner approved by the Minister, determined in accordance with the
                           Improved Procedure for the Determination of Percentage Loss of
                           Hearing (1988 Edition or a later prescribed edition) published by the
                           National Acoustic Laboratory.

                      2    Claims under s98 and s98A made on or after 1 July 1994 must be
                           given, served or lodged at the same time.

                      3    All claims under s98 and s98A made on or after 12 November 1997
                           must include an authority which enables a provider of a medical or
                           hospital service to the worker to release medical information in
                           connection with the injury being claimed.

                      4    S98 and s98A claims must be lodged with a copy of all the medical
                           reports, which the worker intends to rely upon in any subsequent Court
                           proceedings.

                      5    Within 14 days of receipt of the Conciliation Certificate, the Legal Panel
                           firm must make a statutory offer which is consistent with the Medical
                           Panel’s opinion where obtained by the Conciliation.

                      6    No amount is payable under s98 or s98A after the death of a worker.

                      7    The Accident Compensation (Amendment) Act 2001 introduced
                           important procedural changes to the manner in which s98 and s98A
                           claims are to be dealt with. These procedural changes were effective on
                           1 July 2002.
                                               Act ref:   S98(2AA), S98(2B), S103(7)(c), S103,
                                                          S104(1), S104(9), S104(10)

Changes from 1   As from 1 July 2002:
July 2002
                 •   a worker is generally required to lodge only one s98 and s98A claim for all
                     injuries sustained with the one employer
                 •   a claim under s98 and s98A must seek compensation for all injuries that
                     are compensable under those sections that were sustained with the
                     employer named on the claim form, if the injuries are manifest and have
                     stabilised
                 •   a worker can only lodge two or more claims under s98 and s98A after 1
                     July 2002 and recover compensation in the following circumstances,
                     namely:
                     -   where the injury was not manifest at the time the most recent
                         previous claim was made
                     -   the injury claimed had not stabilised and the previous claim was
                         accompanied by
                 •   a statement that the worker intended to lodge a claim for the injury
                 •   a medical report not more than three months prior to the date of the
                     previous claim stating the injury had not stabilised.
                 •   a worker may withdraw a claim under s98 and s98A at any time before a
                     certificate is issued however, if a Medical Panel opinion had been obtained
                     earlier, this remains binding for the claimed injuries

                                               Act ref:   S103(9), S103A, S104AA, S104(8)

S98 and common   After the date on which a compromise or settlement is made of a claim for
law              common law damages in respect of a work injury, where the amount paid at
                 common law for that injury was in whole or part in respect of non-pecuniary
                 loss, there is no liability after that date to pay any further compensation
                 pursuant to s98 in respect of that injury.
                 There is also no entitlement to s98 compensation for injuries which are a
                 consequence of or sequel to the cause of action (accident).
Lodgement of Table of Maims claims

 Agents to        Agents must forward claims for permanent disability and for pain & suffering
 forward claims   to WorkSafe’s Impairment Benefit Team within two working days of receiving
 to WorkSafe      them.
                  WorkSafe allocates these claims to a panel solicitor which assumes
                  responsibility for managing these claims on behalf of WorkSafe.

 Form of claim    Under the Act, to make a claim for compensation under s98 and s98A, a
                  worker must:
                  •   lodge on the employer a claim form approved by WorkSafe

                                                      Act ref:   S103

                  •   include an authority, which enables a provider of a medical, or hospital
                      service to the worker to release medical information in connection with the
                      injury being claimed
                  •   if claiming under s98A, include an Affidavit sworn or affirmed by the
                      worker pursuant to Direction 6 of the “Ministerial Directions - s98 and s98A
                      Compensation Claims”
                  The Affidavit must detail the nature and extent of the pain and suffering
                  resulting from the injury or injuries that are subject of the claim. The Affidavit
                  must contain the following information:

                                                      Act ref:   S98A(5)

                  •   the injuries complained of and the date or dates those injuries occurred
                  •   the circumstances under which the injuries arose
                  •   the date the worker first sought medical treatment in respect of the
                      injuries the subject of the claim
                  •   the nature of the treatment received by the worker as a consequence of
                      the injuries the subject of the claim including:
                      -    any operative procedure he or she has undergone
                      -    any period of hospitalisation
                      -    any medical treatment
                      -    any further treatment proposed
                  •   particulars of all absences from employment or periods on light or modified
                      duties as a consequence of the injuries the subject of the claim
                  •   the nature and extent of the:
                      -   actual pain
                          or
                      -   distress or anxiety suffered or likely to be suffered by him/her
                          resulting from the injuries or any necessary treatment
                  •   the manner in which the injuries and resultant impairment the subject of
                      the claim, has affected or is likely to affect the worker’s:
                      -   ability to perform pre-injury duties
                      -   ability to engage in hobbies, recreation, sporting pursuits and
                          domestic activities undertaken prior to the injuries
                  Failure to provide an appropriate Affidavit may result in the maims claim being
                  suspended.
 Medical           In addition, the Act provides that s98 and s98A claims must be lodged with a
 information       copy of all the medical reports which:
                   •   the worker intends to tender in any proceedings relating to the claim
                       or
                   •   the substance of which the worker intends to adduce in evidence in
                       support of, or as evidence of the extent of any relevant loss, impairment,
                       disfigurement or pain and suffering in any proceedings relating to the claim
                   The medical and other information must support the claim for compensation.
                   That is, the condition arose out of or in the course of employment, and for
                   injuries on or after 1/12/1992, that employment was a significant contributing
                   factor.

                                                       Act ref:   S104(1)

 Invalid claims    Where a claim for compensation contains a material defect, omission or
                   irregularity, it is deemed not to have been made provided it is returned to the
                   worker within 14 days of it being given, served or lodged with a notice.
                   The Legal Panel firm is to ensure the notice details the defect, omission or
                   irregularity identified. It should also state the period within which the claim is
                   to be dealt does not commence until the claim is re lodged without any defect,
                   omission or irregularity.

                                                       Act ref:   S103(3)

Procedures for Table of Maims claims

 Upon receipt of   A letter is to be sent to the worker / the worker’s representative within two
 claim             working days of the agent receiving the claim acknowledging receipt of the
                   claim and advising the claim has been forwarded to WorkSafe for allocation to
                   a Legal Panel firm who will be in contact shortly.
                   ACCtion
                   The agent must forward the claim and the attached documentation to
                   WorkSafe (within 24 hours) for registration and allocation to a WorkSafe Legal
                   Panel firm who will administer the claim in accordance with the legislation and
                   Ministerial Directions and be in contact with the agent. The agent is requested
                   to forward all relevant claim files and associated documentation to the
                   allocated Legal Panel firm immediately.
                   At the same time the agent is to write to the employer advising the employer
                   of the agent’s receipt of the s98 and s98A application.
                   In regard to claims made on or after 1 July 1994, it is necessary to check
                   whether any corresponding s98A claim has been made at the same time. If
                   the claims were not lodged together, the Legal Panel firm will write to the
                   worker/worker’s representative requesting reasons why the s98A claim has
                   been made separately. The agent must then evaluate any “special excuse”
                   subsequently provided by the worker and the Legal Panel firm will provide
                   advice to the agent on this issue.
                   The agent must provide information to the Legal Panel firm as to whether
                   there has been any s98 or common law settlements for the same injuries. In
                   addition, the agent must provide copies of claims of any earlier s98 and s98A
                   claims to deal with s103(9) and s103A issues.
                   The Legal Panel firm will arrange a s112 medical examination as appropriate
                   and forward copies of the worker’s medical material to this examiner.
Other agent        The agent must ensure ACCtion is updated regarding estimates as the claim
responsibilities   progresses in line with the Legal Panel firm’s advice.
                   The agent must action any claims management requests by the Legal Panel
                   firms/WorkSafe in a timely manner.
                   The agent is responsible for providing instructions to the Legal Panel firm to
                   accept or deny claims or to make offers in accordance with Legal Panel
                   recommendations.
                   The agent must ensure prompt payment of appropriate benefits after
                   settlement, and legal costs (where appropriate) and within the specified time
                   frames as specified elsewhere in the Claims Manual.

Within 90 days     The agent must decide to accept or reject liability for the claim taking into
of receiving       account the Legal Panel recommendations. The Legal Panel firm will advise the
claim              worker of this decision.
                   The Legal Panel firm is responsible for arranging a s104A conference within 90
                   days of the receipt date.
                   If the s104A conference is not concluded within 90 days of the receipt date,
                   the Legal Panel firm may, if reasonable to do so, extend the time frame to
                   conclude the conference.
                   The Legal Panel firm will provide the worker with copies of all medical reports
                   WorkSafe intends to rely upon in proceedings relating to the claim.
                   If WorkSafe does not provide these medical reports this evidence cannot be
                   relied upon.
                   During this period of 90 days a conference must occur between the
                   worker/worker’s representative and the Legal Panel firm and an offer made
                   within the meaning of s104A and the Ministerial Directions pertaining to s98
                   and s98A claims.

Offers at s104A    The Legal Panel firm must obtain appropriate authority or instructions from
conferences        the agent to enable it to make an offer in the course of the s104A conference.
                   The worker or worker’s legal practitioner must be readily available to accept or
                   provide a counter-offer to all offers made by the Legal Panel firm.
                   All offers should be followed up by the Legal Panel firm with the
                   worker/worker representative both by telephone and in writing within 10
                   working days.
                   A s104A conference is not concluded until the worker either accepts an offer
                   made by the Legal Panel firm or makes a counter-offer in response to each
                   offer made by the Legal Panel firm.
                   At the completion of the s104A conference a “Form A” notice is to be
                   completed by the parties and accurately record:
                   •   all medical reports and the substance of such reports served in accordance
                       with Directions 5 and 8 of the Ministerial Directions
                   •   all offers and counter-offers made at or during the s104A conference
                   •   any settlement or compromise reached in relation to the maims claim
Conciliation      The worker must not commence proceedings unless:
                  •   the s104A conference has been concluded and the “Form A” notice
                      completed by both parties
                  •   the matter has been referred to conciliation and the Conciliation Officer
                      has issued a Conciliation Certificate in accordance with s104(8) which:
                      -   certifies all reasonable steps have been taken by the worker to settle
                          the dispute
                      -   identifies all copies of medical reports provided by the worker, agent
                          and Legal Panel firm and
                      -   identifies:
                  •   any medical reports about the worker from a medical practitioner
                      appointed under S63(2) at the request of the Conciliation Officer
                  •   if any medical question has been referred by the Conciliation Officer under
                      S56(6) for an opinion by a Medical Panel, specify that opinion
                  •   be served by post on all parties to the dispute
                  The worker has 60 days from the date of the decision to accept or reject the
                  claim to refer the matter for conciliation.
                  The agent must forward the request for conciliation directly to the Legal Panel
                  firm which handled the pre-litigated application within 24 hours of receipt.

Statutory offer   Within 14 days of receipt of the Conciliation Certificate, the Legal Panel firm
                  must make a statutory offer in writing in settlement or compromise of the
                  claim. Where a Medical Panel opinion has been obtained, the statutory offer
                  must be consistent with that opinion.
                  Before making the statutory offer the Legal Panel firm must obtain instructions
                  from WorkSafe and the agent.
                  If the Legal Panel firm fails to make a statutory offer, WorkSafe is “deemed”
                  to have made a statutory offer of nothing. Refer to “Court Proceedings” below
                  as there are legal cost implications.

                                                      Act ref:   S104(11)

Counter –         Within 21 days of receiving the Legal Panel firm’s statutory offer, the worker
Statutory Offer   must accept the offer or make a counter-statutory offer, which must remain
                  open for 21 days.

                                                      Act ref:   S104(11A)

                  If the worker does not accept the offer or fails to make a counter-statutory
                  offer, the worker is “deemed” to have made a counter-statutory offer of the
                  maximum amount(s) that can be claimed for the relevant injury/injuries under
                  s98 and where applicable, s98A.

                                                      Act ref:   S104(11B)
 Court               A worker may refer a matter to court if it is not resolved at the statutory offer
 proceedings         or counter-statutory offer stage.
                     Cost penalties apply depending on the amount the maims claim is resolved
                     for.
                     If the resolution amount is 90% of the worker’s counter-statutory offer or
                     greater then WorkSafe must pay the worker’s party/party costs and bear its
                     own costs.

                                                          Act ref:   S50(2A)(a)

                     If the resolution amount is equal to or less than WorkSafe’s statutory offer
                     then the worker must pay the agent’s party/party costs and bear his or her
                     own costs.

                                                          Act ref:   S50(2A)(b)

                     If the resolution amount is greater than WorkSafe’s statutory offer but is less
                     than 90% of the worker’s counter-statutory offer, then each party must bear
                     their own costs.

                                                          Act ref:   S50(2A)(c)

Calculation of s98 amounts

 How a s98           S98 entitlements are calculated by multiplying the amount of compensation
 entitlement is      payable under s98 as at the date of the injury by the percentage set out
 calculated          opposite the injury in the table. This amount is then multiplied by the
                     percentage loss of the relevant injury suffered by the worker.

 Example             For example: assume that as the result of an injury on 10 November 1993 a
                     worker has a permanent loss of use of the leg assessed at 10%. The
                     percentage in the Table for the loss of a leg is 75%.
                     The amount of compensation under s98 would be 75% of $93,080 multiplied
                     by 10%, which equals $6,981.

Impairment of the neck, back and pelvis

 Use of AMA          The Act requires the degree of impairment for injuries to the back, neck &
 Guides 2nd          pelvis to be assessed in accordance with the AMA Guides to Evaluation of
 Edition             Permanent Impairment (Second Edition). This applies to all claims under s98
                     for injuries occurring on or after 1 November 1992.

                                                          Act ref:   S91, S98(1)(e)

 Neck, back &        The AMA Guides express impairment with reference to the neck, back and
 pelvis expressed    pelvis solely as a percentage impairment of the whole person. The relevant
 as whole person     injuries specified in the Table of Maims are expressed in terms of impairment
 impairment          of the relevant body part. This has resulted in difficulties in calculation of the
                     s98 entitlements for these injuries.

 Method of           WorkSafe, taking into account legal precedents and the method of calculating
 calculating back,   s98 entitlements for back, neck and pelvis claims is to multiply the AMA whole
 neck & pelvis       person assessment for the relevant body part by the statutory maximum to
 claims              calculate the lump sum entitlement.
                     This method only applies to Back, Neck and Pelvis claims. It should be
                     emphasised that the Table maxima percentages for these injuries must not be
                     exceeded when determining entitlement.
Calculation for back, neck & pelvis - examples

 Back                   AMA whole person impairment is assessed at 22%
                        Date of injury is 1 September 1995, so relevant statutory maximum is
                        $100,300
                        Calculation:   100,300 X 22 ÷ 100     =        $22,066
                        The maximum AMA impairment payable for back is 60%

 Neck                   AMA whole person impairment is assessed at 14%
                        Date of injury is 1 April 1997, so relevant statutory maximum is $102,460
                        Calculation:   102,460 X 14 ÷ 100     =        $14,345
                        The maximum AMA impairment payable for neck is 40%

 Pelvis                 AMA whole person impairment is assessed at 5%
                        Date of injury is 20 November 1994, so relevant statutory maximum is
                        $95,810
                        Calculation:   95,810 X 5 ÷ 100      =         $4,791
                        The maximum AMA impairment payable for pelvis is 15%

Multiple s98 injuries

 Worker not             Although a worker may suffer on the same occasion more than one injury
 entitled to            mentioned in the Table, the worker is not entitled to receive in total, more
 receive more           than the statutory maximum payable as at the date of injury.
 than statutory
 maximum                 Act ref:   S98(3)

 Statutory              The statutory maximum was $104,990 as at 1 July 1997.
 maximum

Assessment of hearing loss claims

 Definition of          Industrial deafness, being any condition of deafness caused by exposure,
 industrial             continued exposure or periods of continued exposure to industrial noise, is
 deafness               defined as an injury under the Act and is a loss referred to in the Table in
                        s98(1).

 Date of injury         The Act provides that for hearing loss claims, the date of injury is deemed to
 deemed to be           be the last day of the worker’s employment out of which or in the course of
 last day of            which the injury arose, or the date of the claim if the worker is still employed
 employment             in that employment at the date of the claim.

                                                            Act ref:   S88(4)
 Compensation       Compensation for hearing loss is calculated depending on the date of injury.
 depends on date
                    For example: assume a worker made a claim for loss of hearing on 26 June
 of injury
                    1996 and the compensable loss of hearing was assessed and agreed on 17
                    July 1996 at 10%.

                        Example 1         If on 1 June 1996 the worker had left the employment out
                                          of which or in the course of which the hearing loss arose,
                                          the amount of the lump sum is calculated as at 1 June
                                          1996, that is, 10% of 65% of $100,300.

                        Example 2         On the other hand, if the worker was still employed when
                                          the claim was made, the lump sum will be calculated as at
                                          the date compensation is determined.
                                          Therefore, if the claim was settled on or after 17 July 1996
                                          (but before 30 June 1997), the lump sum will be 10% of
                                          65% of $102,460.

 When hearing       Hearing loss, which occurred in circumstances that do not create any liability
 loss is to be      to pay compensation under the Act must be excluded from the assessment of
 excluded from      deafness for the purposes of calculating compensation.
 assessment

 Determination of   For claims after 1 July 1994, the percentage of diminution of hearing shall be
 hearing loss       determined in accordance with the Act, that is:
                    •     by a person or class of persons approved and in the manner approved by
                          the Minister and
                    •     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

                                                          Act ref:   S98(2AB)

                    Appendix 12.11.5 - Approved ENT specialists for determining hearing loss lists
                    the persons approved by the Minister.
                    The Legal Panel firm should refer any investigation reports or employment
                    audiograms to the ENT specialist for consideration and supplementary report.
                    If the medical reports are unclear, the Legal Panel firm should seek
                    clarification of the doctor’s opinion.
                    When assessing hearing loss claims, there may be references to tinnitus and
                    presbycusis in medical reports. For the purposes of s98, they are treated in
                    the following manner:
                    •     Tinnitus: - may be referred to in hearing loss assessments and is usually
                          characterised by “ringing in the ears”. Tinnitus is not considered additional
                          hearing loss and is not compensable
                    Presbycusis: is an allowance for deterioration in hearing due to the ageing
                    process only.

Assessment of pain and suffering for injuries post 1/9/1985 & pre 1/12/1992
This payment is made under the previous s98(5) as it applied prior to 1 December, 1992. There
are no minimum or maximum amounts for pain and suffering specified under this sub-section but
generally the analysis applied to s98A claims can be applied to s98(5) claims but without
consideration of the thresholds.
Injury not stable - interim awards

 Court may make     If compensation is payable for a maims claim lodged prior to 1 July 2002 but it
 an interim         is not possible to ascertain the total amount as the injury has not stabilised,
 award if injury    only the Magistrates’ Court or County Court may make an interim award.
 not stable
 For example         For example: a worker may have a leg injury constituting a current loss of
                     60% which may remain, improve or worsen. However, if there is a minimum
                     25% permanent loss, then an interim award of 25% may be made.

Assessment of s98A

 Meaning of pain     Pain and suffering means actual pain, or distress or anxiety suffered or likely
 & suffering         to be suffered by the injured worker, whether resulting from the injury
                     concerned or from any necessary treatment.
                     If, after 1 December 1992, a worker suffers an injury mentioned in the Table
                     under s98, there may be an entitlement to receive a further amount of
                     compensation for pain and suffering subject to the following conditions.

 S98A                Where the s98 amount is assessed as equal to or greater than the relevant
 entitlement         threshold, there may be an entitlement to a further payment pursuant to
                     s98A. If the s98 entitlement is less than this threshold there is no entitlement
                     to a s98A payment.
                     For s98 claims made on or after 1 July 1994, the s98A component can only be
                     considered if the s98A claim was given, served or lodged at the same time as
                     the s98 claim.
                     If a worker suffers more than one injury listed in the table on the same
                     occasion, the compensation payable under s98 can be added together to meet
                     the threshold.
                     However, injuries sustained in different accidents cannot be added.
                     For example:

                      If a worker suffered an arm injury and a leg injury in separate
                      accidents, not on the same occasion, the worker would not be able to
                      combine the injuries to meet the threshold.

 Assessment of       The maximum payable under s98A applies in respect of “a most extreme case”
 pain & suffering    of pain and suffering, with any other case being assessed as an amount
                     reasonably proportionate to that maximum, having regard to the degree and
                     duration of pain and suffering, and the severity of the loss or losses.
                     "A most extreme case” refers to a class of cases rather than the most extreme
                     case. It might include severe injuries such as quadriplegia, extreme brain
                     damage or very severe burning and/or scarring. To calculate the amount
                     payable under s98A it is necessary to determine the degree of a worker’s pain
                     and suffering relative to a most extreme case. Once this is done, it is a
                     mathematical exercise to determine the amount of compensation payable.
                     For example: if it is assessed that the degree of a worker’s pain and suffering
                     lies two-thirds of the way between nil and a most extreme case, the
                     compensation will be two-thirds of $56,400, that is, $37,600.
12.11.7 - Schedule of recommended fees
independent impairment assessments (AMA4)
For a copy of the fee schedule refer to: Schedule of recommended fees IIA's.
12.11.8 - Schedule of fees for hearing loss
assessment
For a copy of the fee schedule refer to: Schedule of fees for hearing loss assessment.
12.11.9 - Table of modification to degrees of
impairment for the purposes of s98C
Click   to view table.
12.11.10 - Hearing loss claims policy
Impairment benefits claims management policy for industrial deafness
This document details the ‘best management’ of hearing loss claims in general and those specifically
affected by the decisions of Del Borgo and Stojcevski.
Claims affected by Del Borgo appeal decision

Case                 Victorian WorkCover Authority v. Luigi Del Borgo & Ors

Judges               Winneke, P., Oriston and Eames, JJ.A

Date of Judgement    11 June 2004

Background           On 8 October 2002 Mr Justice Osborn of the Supreme Court of Victoria in the
                     matter of Del Borgo v Niselle & Ors determined that in assessing further
                     hearing loss (that is a claim for hearing loss where the worker has already
                     received a hearing loss settlement) it is not appropriate to deduct the
                     percentage impairment from any prior assessments from the percentage of
                     impairment as assessed.
                     On 11 June 2004 the Victorian Court of Appeal (Winneke, Ormiston and
                     Eames, J.J.A) dismissed WorkSafe’s appeal of the Supreme Court decision.

Effect of the        The ramifications of the Court of Appeal decision are:
decision
                     •   Where a worker received a prior hearing loss settlement under either the
                         Accident Compensation Act 1985 (either s98 or s98C) or the Workers
                         Compensation Act 1958 the dollar amount of the earlier settlement can be
                         deducted
                     The threshold for hearing loss impairments (10% WPI) need only apply once.
                     Each subsequent claim is not required to meet the threshold again to receive
                     any entitlement.

Example              A worker lodges an impairment benefit claim for industrial hearing loss with a
                     date of injury of 1 October 1999 and is assessed at 10% whole person
                     impairment (10% NAL converted to 10% WPI) and is awarded and paid
                     $5,040.
                     The worker then lodges a further impairment benefits claim for industrial
                     hearing loss with a date of injury of 1 February 2004 and is assessed at 12%
                     whole person impairment (13.6%NAL converted to 12% WPI) and is awarded
                     $16,230. The worker is paid $11,190 being the amount outstanding of
                     $16,230 when the prior payment of $5,040 is deducted.

Management of claims current at the time of the Del Borgo decision
All claims where the notice of entitlement was not issued pending the outcome of the Del Borgo
appeal are to have their notice of entitlements issued to in accordance with the decision.

Calculation of       If the worker has a prior hearing loss claim under the Accident Compensation
entitlement where    Act 1985 or under the Workers Compensation Act 1958, the notice of
prior hearing loss   entitlement for the current hearing loss claim should be calculated in
claim existed        accordance with the whole person impairment percentage issued by the
                     independent impairment assessor (no deductions of prior NAL).
                     The dollar amount of what was paid for the prior claim is deducted from the
                     current dollar entitlement.

                                                         Act ref:   S98C(9)
Incomplete notice     The agent must complete an incomplete notice of entitlement in accordance
of entitlement to     with the whole person impairment percentage issued by the independent
be calculated         impairment assessor.
                      Note:

                          A notice of entitlement should not be generated on ACCtion.




Notice of             The agent should provide the following details to WorkSafe so that an accurate
entitlement           notice of entitlement can be generated:
generated by
                      •     claim number and name
WorkSafe
                      •     date of injury
                      •     date of assessment
                      •     outcome of assessment
                      •     claims number and name of prior hearing loss claims with entitlement
                            awarded (with confirmation that prior payment was made)
                      •     date of payment of prior hearing loss

Management of claims finalised prior to Del Borgo decision
Agents should refer any requests from workers or workers’ representatives to “re-open” and re-
finalise hearing loss claims in accordance with Del Borgo to WorkSafe.
Management of claims lodged after Del Borgo decision
Prior to determining liability, agents should obtain:
•   information used to calculate previous hearing loss. For example: prior audiograms, medical
    reports and notice of entitlement
•   up to date audiograms/medical reports
•   a circumstance report from the worker’s current employment to confirm whether employment is
    considered a significant contributing factor (eg. whether the worker’s job/role description verifies
    that any hearing loss may have been a possible result of same)

No deterioration      If the worker’s condition has not deteriorated by any degree, liability should
                      not be accepted for any claimed deterioration in hearing loss.

Marginal increment    If the worker’s level of hearing loss has increased marginally and the agent,
in hearing loss       medical treaters or IME are unable to determine whether any part of that
                      hearing loss is work-related, further testing (eg CERA testing) be undertaken
                      to confirm the status of the worker’s condition.

Subsequent            If liability is accepted for a subsequent deterioration in hearing, the dollar
confirmed hearing     amount of any earlier settlement under either the Accident Compensation Act
loss                  1985 or the Workers Compensation Act 1958 can be deducted.
                      Note:

                          Independent Impairment Assessors are not to be requested to deduct
                          any NAL/WPI percentage in relation to the prior hearing loss.
Claims affected by Stojcevski decision

Case                Bogoja Stojcevski v Paul Nisselle & Ors

Judge               Smith, J

Date of judgement   26 November 2003

Background          On 23 April 2001 Bogoja Stojcevski lodged his claim for permanent disability
                    for hearing loss.
                    By letter dated 4 June 2002 he was advised by the agent that liability was
                    accepted pursuant to s98 of the Act in relation to the industrial deafness
                    injury. The date of injury was determined to be 17 December 1999 being the
                    date the worker was last employed.
                    An IIA was arranged with Mr Little who assessed the worker’s WPI as being
                    Nil%.
                    The worker rejected the assessment and referred the matter to the Medical
                    Panel.
                    Within the referral to the Medical Panel the following was recorded:
                    “The worker underwent tests for loss of hearing in Western Australia, where he
                    worked for BHP until 1993, and the results are included. We would respectfully
                    point out to the Panel that we are of the view that loss of hearing sustained
                    outside Victoria would fall within the definition of industrial deafness which has
                    occurred in circumstances which do not create liability to pay compensation
                    under the Victorian Accident Compensation Act 1985”
                    The questions asked by the agent of Medical Panel were as follows:
                    •   “What is the degree of impairment of the whole person resulting from the
                        workers binaural hearing impairment assessed in accordance with s91(3)
                        of the Act and is the impairment permanent?”
                    •   “Does the worker have an accepted injury which has resulted in a total loss
                        injury mentioned in the tables and s98E(1)? If yes, which injury has
                        resulted in a total loss?”
                    On 27 September 2002 the Medical Panel Opinion confirmed a zero%
                    impairment in accordance with s91(3) of the Act. There was no total loss. In
                    its opinion the Panel deducted the prior hearing loss considered to have
                    occurred interstate. In the absence of accurate pre-employment hearing tests,
                    the Panel found that the hearing loss occurred at a constant rate over the
                    period of the noise exposure.
                    The worker lodged an appeal against the Medical Panel opinion.

Judgement details   Mr Justice Smith handed down his decision in this matter on 26 November
                    2003 making orders to:
                    •   quash the opinion of the Medical Panel of 24 September 2002
                    •   restrain WorkSafe from acting on the Medical Panel’s opinion
                    •   refer the medical questions of 19 August 2002 to a differently constituted
                        Panel to determine in accordance with law
                    Justice Smith concluded:
                    •   S88(1) requires industrial deafness suffered outside of the jurisdiction to
                        be excluded from any compensation payable under the Act, following the
                        obiter remarks of Mr Justice Osborn in Del Borgo
                    •   Mr Justice Smith considered it significant that the Medical Panel was not
                        referred to S88(3) of the Act
                    •   S88(1) is intended to operate after the full hearing loss has been assessed
                        under s98C of the Act. Any industrial deafness which occurs in non-
                        compensable circumstances should be excluded by the Authority, self–
                            insurer or County Court at the time the entitlement to compensation is
                            assessed. His Honour has distinguished between the determination of the
                            level of industrial deafness which is done by the Medical Panel or IME in
                            accordance with s91 and s98C of the Act and the entitlement to
                            compensation which is the responsibility of the Authority, self insurer,
                            conciliation officer or County Court
                      The Medical Panel did not determine the medical questions before it in
                      accordance with law. Alternatively His Honour was satisfied that the third
                      named defendant failed to accord the plaintiff natural justice.

Effect of the         It has been held the Medical Panel do not apply S88(1) and reduce the
decision              assessed hearing loss in the course of assessment of the impairment. The
                      section is applied when assessing the compensation that is payable. The
                      Authority or self insurer must determine what proportion of the industrial
                      deafness occurred in non-compensable circumstances. If the worker
                      challenges the Authority or self insurer’s determination of the non
                      compensable loss, an appeal would lie to the County Court under S39 of the
                      Act.

Management of claims affected by Stojcevski decision
Upon receipt of every hearing loss claim agents are to obtain a full detailed history of the worker’s
employment. This information could be sourced from the:
•   IB claim form (first indication that there may be prior interstate employment)
•   worker/worker’s solicitors
•   resume of the worker (if current employer is in receipt of same)

Evidence of Prior     To determine any prior hearing loss as a result of interstate employment the
Hearing Loss          agent should, where possible, determine:
                      •     What was the worker’s previous occupation with any interstate employer?
                      •     What duties the worker was employed to undertake during their interstate
                            employment?
                      •     Time worked at interstate employment(s)?
                      •     Whether any prior hearing loss impairment has been awarded as a result
                            of employment interstate?
                      •     Documentation from interstate employer confirming possibility of noise
                            induced hearing loss, or documenting any proven hearing loss occurred
                            interstate. (eg Factory noise level testings, prior hearing tests etc)
                      Note:

                          The worker’s consent is required prior to obtaining any information from
                          an interstate insurer or interstate employer. If no consent is given,
                          consideration should be given to rejecting the claim on the basis that
                          the hearing loss was sustained interstate. The legal proceedings, on the
                          rejection of liability, may bring forth the required documents to
                          substantiate the prior hearing loss.
Instructions to   If it is considered reasonable that the worker suffered an industrial hearing
examiner          loss interstate the agent should have the worker assessed to determine:
                  •   the whole person impairment inclusive of any hearing loss which may have
                      occurred as a result of the worker’s prior interstate employment
                  •   the whole person impairment of the hearing loss which is considered to
                      have occurred within Victoria, based on a time weighted scale (if this is not
                      provided, this can be undertaken by the agent if there is clear evidence of
                      a prior interstate hearing loss)
                  •   hearing loss from unrelated causes (other than ‘employment’) such as
                      exposure to firearms, loud music etc should be taken into consideration
                      and when determining the total loss of employment related hearing loss in
                      accordance with s91(7)(c) of the Act

Calculation of    Prior to issuing the notice of entitlement the agent is to deduct, based on a
entitlement       time weighted scale (eg. hearing loss occurring at a constant rate over the
                  period of noise exposure), the percentage of impairment that is considered to
                  be “non compensable” (the interstate hearing loss impairment).
                  If there is clear evidence which substantiates that the interstate hearing loss
                  occurred at a greater level than what occurred in Victoria the time weighted
                  scale would apply.
                  If the time weighted scale is not appropriate, for example where a worker has
                  worked interstate for one year, yet the majority of the hearing loss has been
                  proven by medical records to have occurred interstate, the agent should
                  contact WorkSafe for further instruction.
                  The notice of entitlement is to be issued on the adjusted whole person
                  impairment.
                  If the worker disputes the notice of entitlement as a result of the deduction of
                  the interstate hearing loss the right of appeal in relation to the notice of
                  entitlement) lies in the County Court.
                  The agent is to seek WorkSafe instruction if they are unsure as to whether
                  information to hand can be considered probable cause to justify a deduction of
                  an interstate industrial hearing loss.
                  The agent is to advise WorkSafe immediately upon any dispute (lodged in
                  County Court or otherwise) of a deduction of an interstate industrial hearing
                  loss.
12.11.11 - Further injury hearing loss table
This table relates to claims lodged on or after 18 November 2004 for a further injury hearing loss.
 From 1 July 2004

  Click   to view table.
 From 12 November 1997 to 3 December 2003

  Click   to view table.

								
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