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6.2 Section 45 Elections
Once an examination has been completed to assess the level of impairment and effect on the non economic factors of the client thus resulting in an amount of calculation of compensation payable, a letter of offer is sent to those clients with compensation offsetting impacts and a determination letter to all other clients.
It is at this time that the client may decide to choose to reject the compensation and institute civil proceedings for damages against the Commonwealth. This is known as the Section 45 election, with there being no legislative requirement for the client to make this optional election unless they intend to pursue civil proceedings against the Commonwealth. In the strict letter of the legislation, once a decision to institute civil proceedings is made in writing and provided to the Commission, it is irrevocable. Equally, once a Permanent Impairment payment is paid then a section 45 election for that condition is no longer available to the client. Determination and offer letters sent to clients in relation to this should be very clear in stating their choices and the implications of each option.
For clients that receive an offer (as they have compensation offsetting/recovery considerations) notional clearances are sought from the VEA benefits part of the Department. The client will be "offered" an "estimate" lump sum of PI compensation payable with the letter also outlining the impacts of any applicable VEA compensation offsetting/recovery. The client can, at any time before the PI lump sum is paid, advise that they wish to institute civil proceedings under s45 as outlined above. If the client makes this election to sue their eligibility to receive permanent impairment for that condition ceases permanently.