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5.7.1 Compensation for Non-Economic Loss
Section 27(1) provides that a member to whom compensation is payable under S24 is also entitled to lump-sum compensation in respect of non-economic loss suffered as a result of the injury or impairment:
27(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under Section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
The amount of compensation payable is divided into two equal amounts (indexed under section 13):
27(2) The amount of compensation is an amount assessed by Comcare under the formula:
A is the percentage finally determined by Comcare under Section 24 to be the degree of permanent impairment of the employee from that injury, and
B is the percentage determined by Comcare under the Approved Guide to be the degree of non-economic loss suffered by the employee from that injury.
The 'B' amount is determined under Part 2 Division 2 (formerly Part B) of the Guide and is based on the scores under the following tables, combined in accordance with Tables 5 and 6:
- Table 1 Pain and Suffering
- Table 2 Loss of Amenities
- Table 3 Other Loss
- Table 4 Loss of Expectation of Life
- Table 5 Combined Value Calculation
- Table 6 Final calculation
Note that certain impairments which became permanent before 1 December 1988 may attract a non-economic loss payment under S27 as a result of the Federal Court decision in Schlenert v AOTC (1994). However, as a result of legislative amendment to S27 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001, no entitlement to a NEL payment for a pre-1/12/1988 impairment arises where the claim for NEL was made on or after 7 December 2000.
Historical S27(2) rates can be viewed in CLIK.
- Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144/2001), item 21, Part 4, Schedule 2 : Reversal of Schlenert entitlement to NEL
- Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139; 121 ALR 67; 19 AAR 305 (compensation for NEL in respect of 1930 Act and 1971 Act impairments)
- JPA No. 2001/4: Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (April 2001)
- JPA No. 2001/13: Amendment to the SRCA 1988 – Claims for non-economic loss in respect of permanent impairments which occurred before 1 December 1988 (October 2001)