Relevance of this question

Relevance of this question

Under the 1971 Act and the 1930 Act, compensation was paid for the physical effect of certain impairments (maims) however there was no entitlement to compensation for non-economic loss (NEL) such as pain, suffering, effect on social relationships, etc.

Accordingly, in the early days of the 1988 Act, when a pre-1/12/88 impairment was compensated for permanent impairment, a payment was made under s 24 (calculated on the basis of the 1971/1930 entitlement) but no payment under s 27 for NEL was awarded.

In Schlenert v Australian and Overseas Telecommunications Corporation (1994), the Full Federal Court held that an impairment which became permanent under the 1971 Act or the 1930 Act must be compensated both under s 24 for the physical effect of the impairment (with the quantum calculated under the previous Acts) and under s 27 for non-economic loss (NEL).  The decision was based on a particular statutory interpretation of ss 24, 27 and 124 of the 1988 Act by the Court and resulted in pre-1/12/88 clients receiving NEL compensation even though NEL was not compensated under the 1971 or 1930 Acts.

Because of this change in the law effected by the Full Court and implemented by MCRS in September 1995, there are previous assessments of permanent impairment where the client has not been paid the appropriate s 27 amount.  Where such as case is discovered, for example in a reassessment, a determination under s 27 should be made and compensation paid to the client.

The Screen Warning appearing on the Deductions and Clearances Screen is intended to warn the assessor that the case under investigation may have a retrospective NEL entitlement.  The form of the Screen Warning is:

The assessment includes at least one 1971 or 1930 Act impairment that may attract a retrospective NEL payment under s 27 for an earlier s 24 payment made between 1 December 1988 and 30 September 1995