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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).
A client served between 1984 and 1990 and had liability accepted for bilateral sensorineural hearing loss in June 1997. The date of injury and permanence was determined as being 7 January 1988, and based on liability being accepted for the condition, the client subsequently submitted a claim for permanent impairment compensation. The assessment of the client’s hearing indicated a 5.6% loss and resulted in an offer of lump sum compensation for the LOEU under the 1971 Act and included a section 27 payment for the NEL component as the assessment was pre-Schlenert.
The client is now seeking a reassessment of the hearing loss based on a current audiogram which indicates a current loss of 17.4%. How should this client’s entitlement to compensation be reassessed?
The date of permanence of the injury is pre-DRCA, and therefore the client is entitled to the additional compensation for the LOEU less any previous amounts of compensation payable to the client for the impairment. This will exclude any deductions for the NEL component of his previous offer of compensation, that is only the amount of compensation paid to the client under section 24 of the DRCA for the LOEU should be deducted from the amount of compensation payable for the 17.4% loss and the amount paid for the NEL should not be recovered from any additional amounts of compensation offered. This is because the NEL payment was offered based on the case law interpretation of the legislation and policy at the time, and therefore the client’s entitlement to that payment should not be recovered during a reassessment based on the current legislative provisions. Noting that based on the operation of subsection 27(3) at the time of the reassessment the client is not entitled to any additional NEL payment as his loss is compensated under the 1971 Act.
A client served between 1984 and 1990 and had liability accepted for his bilateral osteoarthritis of the knees in June 1995. The date of injury and permanence was determined as being 7 December 1987 based on the medical evidence that this is when the client first sought medical treatment for the condition. The client subsequently submitted a claim for compensation, and was offered lump sum compensation for the 10% LOEU under the 1971 Act which included a section 27 payment for the NEL component as the assessment was pre-Schlenert.
The client is now seeking a reassessment of the osteoarthritis following extensive surgical treatment of the knees. The treating specialist reports a change in the underlying pathology of the condition which became permanent in 2018 and indicates a loss of 20% WPI under the PI Guide. How should this client’s entitlement to compensation be reassessed?
Based on the current medical evidence, there has been a change in the underlying pathology of the osteoarthritis due to the surgery, resulting in the development of a new impairment with a date of permanence in 2018. Based on a permanence date after the commencement of the DRCA (1 December 1988), the client’s entitlement to compensation for permanent impairment should be assessed under the DRCA provisions, which will mean the client is entitled to section 24 and 27 compensation amounts.
The reassessment will result in an amount of section 24 compensation calculated on the basis of the current 20% WPI. The previous amount of LOEU compensation should be deducted on a dollar for dollar basis. Furthermore, the client will be entitled to a further section 27 amount for the NEL compensation payable based on the current degree of impairment, in the calculations the amount calculated should be reduced by the NEL component of the compensation offer that was previously paid.