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5.7.3 Previous NEL Scores for Different Injuries
As previously mentioned, each separate injury which satisfies the requirements of S24 gives rise to a separate S27 payment. Each NEL score must therefore reflect the specific lifestyle effects of that injury.
Where a claim is made for a subsequent and different injury that satisfies the requirements of S24, the delegate will need to consider on the basis of the clients comments and medical evidence, whether the NEL scores attributed under the relevant categories include any contribution from other injuries previously compensated.
For example, in relation to a subsequent injury claim, if the score provided for Table 1 (Pain and Suffering) reflects pain experienced by the client in a different body part or system, then the NEL rating provided for this category applies, irrespective of what the client was previously awarded in respect of other injuries under this table.
In circumstances affected by the Fellowes, Canute and Robson decision, careful consideration of the NEL scores becomes especially important i.e. where a subsequent injury impacts on the same bodily system as one previously compensated, or affects lifestyle, life expectancy etc in a similar way.
For example, if the client's subsequent claim relates to a right knee injury and they previously received compensation in respect of a left knee injury, it may be difficult to distinguish NEL scores for categories such as mobility. If the client's ability to move is affected as a result of the right knee injury, the delegate needs to ensure the NEL score for this claim does not include any pre-existing lifestyle effects of the client's left knee injury on his/her ability to move. In this case, it may be appropriate to seek clarification from the treating specialist to obtain suitable evidence to differentiate between the differing causes of the NEL.
Due to the subjective nature of non-economic loss, and the discretionary delegations available to delegates, no rigid instruction can be applied to every case. Delegates should be guided by the medical and other evidence specific to each case that the scores are justified or alternatively that any adjustments made to discount lifestyle effects from injuries or impairments previously compensated, are warranted.
Previous NEL Scores for the Same Injuries (ie Reassessment)
An entitlement to a further NEL payment under S27 may also arise when a reassessment is made because the client's degree of impairment (relating to injuries for which compensation under S24 has previously been paid) has increased by 10% or more (S25(4)), or by 2.5% WPI or more in the case of binaural hearing loss (S25(5)).
If a client is entitled to a further NEL payment, the previous and current scores under Tables 1–4 in Part 2 Division 2 of the Approved Guide are collected and the Permanent Impairment Calculator then calculates a weighted total of previous scores and a weighted total of current scores using Table 5. The difference between the two scores is used to calculate the new amount payable as compensation for non-economic loss.
When considering an entitlement to a further NEL payment under s27 in these circumstances, a client cannot be compensated more than the maximum amount in each section of pain and suffering, ie on the scale of 0 to 5 in each category, there can be no higher score than 5 in total regardless of how many additional s24 and s27 payments are considered.