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7.2.2 Pre-Schlenert assessments may require a correction for NEL entitlement
Where an assessment or reassessment involves only 1971 Act or 1930 Act impairments, R&C ISH ensures that an appropriate assessment is made and NEL compensation is not awarded.
For a first assessment under the 1988 Act, the appropriate scores to be entered are those recorded in the Questionnaire as resulting from the effects of the 1988 impairments alone.
In a reassessment where impairments have deteriorated, the appropriate scores to be entered are the higher of the score recorded in the Questionnaire and the previous NEL score (which is likely to include the effects of the 1971/1930 impairments as well as 1988 impairments). Choosing the higher score ensures that a previous lawful NEL entitlement is not recovered by default and avoids the inherent difficulty in dissecting a NEL Questionnaire completed several years earlier.
Where an assessment of entitlement to compensation for a pre-1/12/1988 permanent impairment was carried out before the Schlenert decision was implemented (generally between 1 December 1988 and 30 September 1995), it is likely that compensation for NEL was not paid even though it was subsequently established by the Federal Court that an entitlement existed. In most cases, such assessments predate the introduction of Defcare.
If such a case is discovered in an investigation or a reassessment, the original assessment should be reinvestigated using R&C ISH (using the date of the prior determination as the Date of Assessment). The Calculator will calculate the total entitlement amount including NEL. The compensation previously paid under S24 should be entered as a reassessment. The resulting S27 entitlement should then be paid to the client.
A second assessment should then be conducted for the later claim (for the subsequent deterioration).