Comparison of Workers’ Compensation Arrangements in Australia and New Zealand (2012)

Table 3.8: Definition of injury and relationship to employment - detailed

	Definition of injury and relationship to employment	Contribution of employment
New South Wales	“ . . . personal injury arising out of or in the course of employment . . .” – 1998 Act, s4.	No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury – 1987 Act, s9A(1).
Victoria	“ . . . an injury arising out of, or in the course of, any employment . . .” – s82(1).	Compensation is not payable in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury: a) a heart attack or stroke injury; b) a disease contracted by a worker in the course of employment (whether at, or away from, the place of employment); c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease – s82(2B) & s82(2C).
Queensland	“ . . . a personal injury arising out of, or in the course of, employment . . .” – s32(1).	A significant contributing factor – s32(1).
Western Australia	“ . . . a personal injury by accident arising out of or in the course of the employment . . .” – s5.	Injury includes: a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree – s5.
South Australia	“ . . . disability arises out of, or in the course of employment . . .” – s30.	A substantial cause (for psychiatric disabilities only) – s30A(a).
Tasmania	“Injury includes- 1. a disease; and 2. the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.” (section 3(1) “An injury, not being a disease, arising out of, or in the course of employment” – s25(1)(a). “an injury, which is a disease, to which his employment contributed to a substantial degree”- s25(1)(b).	To a substantial degree, that is, employment is the ‘major or most significant factor ’ (for diseases only) – s3(2A). Employment being the major or most significant contributing factor is also a requirement in relation to injuries that are a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease (section 3(1) – in definition of “injury”).
Northern Territory	“ . . . a physical or mental injury . . . out of or in the course of employment . . .” – s3 & s4.	To a material degree, (for diseases – s4(6) and gradual process – (s4(5)) that is employment was the real, proximate or effective cause (S4(8)).
Australian Capital Territory	“a physical or mental injury (including stress) . . . includes aggravation, acceleration or recurrence of a pre-existing injury . . . arising out of, or in the course of, the worker’s employment . . .” – s4 & s31.	A substantial contributing factor – s31(2).
C’wealth Comcare	“ . . . a physical or mental injury arising out of, or in the course of, the employee’s employment . . .’, or ‘... an aggravation of a physical or mental injury (other than a disease) ...’” - s5A.	Comcare: To a significant degree (for diseases) – s5B, with matter to be taken into account being set out in a non-exclusive list and with ‘significant’ being defined as “substantially more than material”.
C’wealth Seacare	“ . . . a physical or mental injury arising out of, or in the course of, the employee’s employment . . .’, or ‘... an aggravation of a physical or mental injury (other than a disease) ...’” - s3.	To a material degree (for diseases) – s10(1).
C’wealth DVA
New Zealand	A work-related personal injury is a personal injury that a person suffers — (a) while he or she is at any place for the purposes of his or her employment – s28.	Not required, except for work-related gradual process, disease, or infection suffered by the person – s20(2)(e).

Permanent Impairment

Definition of Permanent Impairment

Pre-requisite to determining the level of permanent impairment is the understanding that impairment should not be determined until the claimant has reached a point of maximum medical improvement. This is the point at which the impairment has become static, or is not likely to remit despite medical treatment.

In addition to the principles of assessment contained in the AMA Guides, scheme legislation also provides substantive guidance on how to determine whether an impairment is permanent. Table 3.9 lists the legislative definitions of permanent impairment and also the criteria by which an injury is judged to be permanent.

Permanent Impairment Guidelines

Each of the schemes substitute or remove sections of their respective editions of the AMA Guide. The necessity for these modifications is primarily due to differences in Australian and US clinical practice, but they are sometimes also the result of differences in legislative processes.

Table.3.10 illustrates the particular approach taken by the various schemes to substitute or remove assessment criteria from the Guide.

Discounting of prior conditions

Most schemes require that where a pre-existing non-compensable condition exists, the assessing doctor must discount this pre-existing condition before making a final assessment of impairment. However, if the deductible portion is difficult or costly to determine, schemes may designate a nominal amount for this purpose or in some instances, accept complete liabillity for the injury. Table 3.11 lists the discounting provisions under each scheme.