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5.7.7 Scoring NEL in pre-1/12/1988 cases affected by new s27(3)
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 section 24 for the permanent impairment (with the quantum calculated under the previous Acts) and under section 27 for non-economic loss (NEL). The decision was based on a particular statutory interpretation of sections 24, 27 and 124 of the SRCA and resulted in veterans’ covered under the SRCA’s predecessor Acts receiving NEL compensation even though NEL was not compensated under the Acts.
The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 introduced a new subsection 27(3), which effectively reversed the Schlenert decision, stating that 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.
Determining the appropriate scores for NEL (on or after 7 December 2000)
The exclusion of NEL compensation in pre-1/12/1988 cases by new subsection 27(3) is not intended to affect NEL payments already determined and paid. Therefore, where a NEL entitlement was properly paid under the previous law, the client continues to be entitled to that amount and it must not be recovered, nor will be offset against any further section 24 entitlement arising from a reassessment. More detailed discussion of this issue appears in Chapter 7.2 Entitlements to NEL Payments under the 1971 and 1930 Acts.