This must be read in conjunction with the Impairment benefits policy.
What are the Impairment Assessment Protocols?
The TAC, the Law Institute of Victoria (LIV) and the Australian Lawyers Alliance (ALA) have agreed to exchange information in accordance with a set of procedures called the Impairment Assessment Protocols.
The Impairment Assessment Protocols are a set of procedures whereby the TAC and a client's solicitor are able to obtain and exchange information with each other in relation to the assessment of a client's impairment resulting from transport accident injuries.
The procedures are helpful as they set out the type of information to be supplied to support a client's claim to an impairment benefit because there are set time frames for submitting the information and for reviewing it. This process aims to improve efficiency in the delivery of impairment benefits to clients.
For further information, please refer to the TAC protocols page.
What happens if a client does not have a solicitor?
A client who does not have a solicitor is not subject to the Impairment Assessment Protocols. A client in this situation may deal directly with the TAC in order to have his/her impairment claim processed. During the impairment process the TAC may use the claim form authority to obtain information, or ask the client to supply that information and will review the information in order to make an impairment determination in accordance with the Transport Accident Act 1986 (TAA 1986).
Does the TAC assess pre-existing/unrelated conditions or injuries aggravated or re-injured by the transport accident in determining the impairment?
The TAC will only assess and determine a client's degree of impairment which results from transport accident injuries. When determing Impairment the TAC will not assess any pre-existing or unrelated condition or injury, unless the transport accident has aggravated or re-injured the same body part or system.
The TAC will assess and include in the assessment an impairment allowance for the aggravation component when determining a client's impairment for transport accident injuries.
What is a pre-existing/unrelated condition or injury?
This is any injury or medical condition which was not caused by the transport accident. It may exist before or after the transport accident. For example diabetes, asthma, deafness, a sporting injury or workplace injury.
Are normal age related changes included in the impairment assessment?
The TAC will not include normal age related changes in the impairment assessment. For example the deterioration that is normal and medically expected to occur as a person grows older to their hearing, eyesight, body parts such as the neck and spine.
Are impairment benefits subject to tax?
Impairment benefits are not assessable as income. The Australian Taxation Office (ATO) views the benefits as payment for the loss of a capital asset. For this reason, the TAC does not withhold income tax from the benefits nor does it issue income statements.
Are impairment benefits indexed?
Yes, impairment benefits are automatically indexed at the beginning of each financial year in accordance with the formula under section 61 of the TAA 1986.
Increases to weekly annuity benefits and the lump sum are in line with the Consumer Price Index (CPI).
Can TAC deduct a client's outstanding legal costs from their impairment lump sum?
No, under the Act the TAC is not permitted to deduct from a client's lump sum any outstanding legal costs. Where a client is represented by a solicitor, the TAC pays the lump sum benefit directly to the client and not to the solicitor. This policy also applies to interim and part lump sum benefits.
If impairment examinations have been attended or impairment benefits requested and the client subsequently dies, is the estate entitled to a client's impairment benefits?
Yes, where the client's impairment but for the death can be determined at 11% or more based on impairment reports or medical evidence in TAC's possession then TAC pays the impairment entitlement to the estate, provided 3 months have passed from the date of the transport accident. This will be as follows:
- lump sum - the lump sum in full, however where a client prior to the death elects to receive part of the impairment benefit as a lump sum and the remainder of the benefit as weekly payments, TAC will pay the lump sum benefit outstanding at the date of death to the estate, and any outstanding weekly entitlement only up to the date of death.
- weekly annuity benefits -applies to accidents before 16 December 2004, the TAC will pay weekly annuity benefits up to and including the date of death. The client's entitlement to annuity benefits ceases upon death. Future payments which, but for the death would have been made do not form part of the deceased's estate.
Note, where the cause of death is transport accident related, the claim is also referred to the Dependency team to assess if there is any entitlement to dependency benefits. Where a dependency lump sum benefit is payable and impairment benefits have been paid, the TAC deducts the impairment lump sum from the dependency lump sum in accordance with section 57 of the TAA 1986. Where the impairment lump sum exceeds the dependency lump sum under section 57, the TAC will not recover. Refer to the Dependency benefits policy.
Additionally, in cases where the death occurs as a result of the transport accident and the client's family members are entitled to Dependency benefits, the TAC will assess the claim as a Dependency claim only.
What if a client has an injury which affects his/her decision making?
The TAC will liaise with relevant parties (may include appropriate family member, parent, legal adviser, or guardian administrator) prior to making a lump sum payment where medical and other reports advise the nature of the client's injury substantially affects the client's capacity to make decisions, eg. a significant acquired brain injury.
Is an overseas visitor entitled to impairment benefits?
Yes, overseas visitors are entitled to be assessed for impairment benefits.
The TAC will apply the TAA 1986 and the same processes which are applied when assessing clients who reside in Victoria for impairment benefits.
As the client lives overseas, how will the TAC conduct the impairment assessment?
The TAC will aim to have the client examined for impairment purposes before the overseas visitor returns to his/her country of residence. If this is not possible, the TAC will conduct an impairment assessment based on the information the TAC has obtained from the client's treating doctor and/or medical specialist. If there is sufficient information, the TAC may determine the level of impairment without an independent medical examination.
What if the information the TAC has is insufficient to determine the overseas visitors level of impairment?
Where practical, the TAC will arrange for an overseas visitor to be assessed:
- in his/her country; or
- in a neighbouring country, if the assessment can not be done in the client's country of residence.
The TAC pays for the reasonable travel and accommodation costs incurred by an overseas visitor who attends a TAC arranged impairment exam in his/her country or in another country.
How is the exam carried out by the overseas doctor?
If a medical examination is to be arranged for an impairment assessment and an overseas doctor is chosen, the doctor will be sent a letter detailing what is required by the TAC, the fee that will be paid and a copy of the AMA Guides.
When the medical report is received by the TAC then the impairment level is assessed in the usual manner.
If a client requests an impairment determination to be able to proceed with a common law action, when will the assessment be done?
When the assessment is required to be able to initiate proceedings at common law, the assessment may be done once the injuries are substantially stable or stable.
What edition of the AMA Impairment Guides is used in the 5 yearly review process?
The TAC will use the same edition of the Guides that was first used to determine the client's initial degree of impairment when reviewing a client's impairment to see if the injury has improved or deteriorated. Transport Accident Act 1986 reference s.55(6)
How does the amendment on 14 November 1996 impact the 5 yearly review process for LOEC claims?
The TAC is obliged to review the entitlement of a client receiving total or partial LOEC, once in each 5 year period. This is known as a 5 yearly review and is normally conducted when a client's impairment rating is 50% or more and the client is receiving LOEC benefits on an ongoing basis. See also the What other factors can affect a client's entitlement to LOEC benefits? in the Loss of Earning Capacity Benefits policy.
As of 14 November 1996 the legislation requires that when assessing a client's level of impairment only primary psychiatric or psychological injury can be included in the assessment. This means any psychiatric or psychological injury that is secondary to a person's physical injury or flows from a physical injury must be excluded from the impairment. This applies to impairment assessments conducted on and after 14 November 1996. Transport Accident Act 1986 reference: s.46B(1)
For example, depression that flows from a reaction to severe scarring of a body part, would be a secondary psychological injury and post traumatic stress which may occur if a person is trapped in a burning motor vehicle would be an example of a primary psychological injury.
However, the TAC will allow primary and/or secondary psychiatric or psychological injury to be included in the impairment assessment as part of the 5 yearly review process, but only when:
- the initial impairment was determined and finalised at 50% or more before 14 November 1996, and
- primary and/or secondary psychiatric or psychological injury was included in that initial impairment assessment.
If the impairment was determined and finalised on or after 14 November 1996 then only primary psychological injury can be included in the assessment. Secondary psychological injury will be excluded from the assessment.