When a delegate is considering the amount of NEL compensation payable under section 27 in respect of an injury they must take into account, among other things, the NEL scores provided in the NEL questionnaire.
The following chapter outlines the relevant policy guidance and key considerations when assessing each score under the NEL tables.
For more information about the assessment, investigation and justification of NEL scores generally, see Chapter 5.7 Calculation of Entitlement for Non-Economic Loss [2].
A score out of five is given for both pain and for suffering in Table B1. These two scores (under Table B1.1 and Table B1.2) are then combined with the scores given in Tables B2, B3 and B4 using the combined value calculation in Table B5.
Table B1 does not include temporary pain and suffering, or speculation as to future pain and suffering that has not yet manifested. Only permanent pain and suffering is taken into account when determining which ‘description of effect’ in Table B1 best reflects the loss suffered by claimant as a result of the injury and, in turn, which score should be given.
Both pain and suffering contain subjective elements. Delegates must assess any available evidence, including the claimant’s self-assessed score, and make a finding as to which description in Table B1 best reflects the pain and suffering experienced by the claimant as a result of the injury.
Table B1.1 Pain
Medical reports or records, approval to pay for specific medication or records of payment for medication can be relied on when considering which description of the effect in Table 1 best reflects the pain suffered by the claimant and, in turn, what score should be given. It should be noted that an absence of this type of evidence will not in itself prevent a delegate from accepting the claimant’s self-assessed pain score. Generally, it will be open to a delegate to accept a claimant’s self-assessed score unless there is evidence that the self-assessed score is not appropriate.
Table B1.2 Suffering
Suffering is the mental distress that results from the injury and includes emotional symptoms such as grief, anguish, fear, frustration, humiliation, embarrassment. There may be evidence such as medical reports that specifically addresses this suffering. In cases where there is no independent evidence of this type, delegates should generally be guided by the claimant’s self-assessed suffering score, which can be accepted unless there is evidence to other evidence that the self-assessed score is not appropriate.
Table B2 requires an assessment of the impact of the injury on Mobility, Social Relationships and for Recreation and Leisure Activities. A score out of five is given for each of the following:
These are scores are then combined with the scores from Tables B1, B3 and B4 using the combined value calculation in Table B5.
Table B2.1 Mobility
Mobility concerns the veteran’s ability to move about their environment both within the home and outside. The effect on activities such as shopping, driving, using public transport and the need for aids or devices to assist in mobility should be considered under this section of Table B2.
Table B2.2 Social relationships
Social Relationships is about the effect on a veteran's ability and capacity to engage in usual social and personal relationships. As indicated in the descriptions of the effect in the table matters such as impact on immediate and extended family, close friends and acquaintances in social situations are noted in the section. Care should be taken not to conflate the impact on recreation and leisure activities when providing a score for social relationships, as a separate will be given for this loss.
Table B2.3 Recreation and Leisure
Recreation and Leisure activities are often the area most affected by a service-related injury. Given the fitness requirements and high level of participation in sporting activities as part of ADF employment, an inability to continue in such activities can be quite distressing. In assessing a claim, delegates can determine the before and after injury activities undertaken by the claimant in order to determine which description of effect best reflects the loss suffered.
Table B3 is used to assess losses of a non-economic nature where it is clear that a particular element of NEL cannot be adequately assessed under Tables B1, B2 or B4. A score out of 3 is given and then combined with the scores derived from Tables B1, B2 and B4 using the combined value calculation in Table B5.
To obtain a rating under this table, it must be demonstrated that the injury or impairment has resulted in a personal deprivation or disadvantage other than the experience of pain, suffering, loss of amenities or loss of life expectancy. The factors to be considered include:
A claim for a score under this table must also be carefully examined to ensure that there is no duplication of benefit within the NEL process.
A score out of three is given under Table B4 and then combined with the scores derived from Tables B1, B2 and B3 using the combined value calculation in Table B5.
A score above 0 will usually be given under Table B4 unless there is expert evidence indicating that the injury is likely to impact on life expectancy. This rating should be based on the examining/treating doctor's assessment of the impact of the injury on life expectancy and should not be based on a client’s self-assessment or the opinion of a MA-C. Where possible the delegate should have the most up to date expert evidence relating to life expectancy so the veteran is appropriately compensated for their loss. In circumstances where it is not possible for the veteran to attend a medical assessment due to their declining health, the delegate should instead seek a medical opinion from the veteran’s treating medical practitioner as to the impact of the condition on the veteran’s life expectancy.
Step 2 under Table B5 is used to convert the scores for Tables B1- B4 into a percentage that is then multiplied by the second half of the maximum NEL amount.
The NEL questionnaire is an important tool for the delegate to obtain necessary information from the veteran about the subjective physiological, psychological and other impacts the injury that is being assessed has on their lifestyle. As a general rule, the NEL questionnaire should be provided to the veteran for completion for each injury that is being assessed.
Comments are required from the veteran to justify their self-assessed scores and the description of effect set out in each of the Tables. Delegates can then satisfy themselves as to the validity of the responses (including by examining medical reports etc.) and confirm or otherwise the ratings in the letter of offer to the claimant.
References
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20831%23comment-form
[2] http://auth-clik.dvastaff.dva.gov.au/military-compensation-srca-manuals-and-resources-library/permanent-impairment-handbook/ch-5-calculation-using-approved-guide/57-calculation-entitlement-non-economic-loss
[3] https://clik.dva.gov.au/user/login?destination=node/20818%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20745%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20791%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20729%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20803%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20873%23comment-form