Division 2

Division 2 Guide to the Assessment of Non-Economic Loss

Introduction

The degree of non-economic loss is to be assessed in accordance with Division 2.

The compensation payable for non-economic loss is divided into two equal amounts.

The Worksheet - Calculation of non-economic loss (see section B6) uses the following formula to calculate the total payable in an individual case:

A + B	=	$Total
WHERE A	=	the percentage assessment of total permanent impairment, multiplied by the first half of the maximum
AND B	=	a reasonable percentage of the second half of the maximum

having regard to the non-economic loss suffered

Listed below are the tables in Division 2 used to calculate a reasonable percentage.

Pain:

Table B1 - Pain

Suffering:

Table B2 - Suffering;

Loss of Amenities:

Table B3.1 - Mobility;

Table B3.2 - Social Relationships;

Table B3.3 - Recreation and Leisure Activities.

Other Loss:

Table B4 - Other Loss.

Loss of Expectation of Life:

Table B5 - Loss of Expectation of Life.

Scores derived from these tables are then transferred to the Worksheet - Calculation of non-economic loss (see section B6, ).

B.1 Pain

Using Table B1, a score out of 5 is assessed for Pain.

Using the Worksheet - Calculation of non-economic loss (see section B6), the score for Pain is combined with the scores derived from Tables B2, B3.1, B3.2, B3.3, B4 and B5.

Pain means physical pain.

Only ongoing pain of a continuing or episodic nature is considered.

This table does not include temporary pain. Nor does it include speculation of future pain that has not yet manifested itself.

In Table B1, VAPS means 'visual analogue pain scale', with 0 being no pain, and 10 being the worst pain ever experienced.

Table B1: Pain

SCORE	DESCRIPTION OF LEVEL OF EFFECT
0	No pain experienced. VAPS = 0
1	Intermittent attacks of pain of nuisance value only. Can be ignored when activity commences. VAPS = 1-2
2	Intermittent attacks of pain. Not easily tolerated, but short-lived. Pain responds fairly readily to treatment (for example, analgesics, anti-inflammatory medications). VAPS = 3-4
3	Episodes of pain more persistent. Not easily tolerated. Treatment, if available, of limited benefit. VAPS = 5-6
4	Pain occurring most of the time. Restrictions on activity. Resistant to treatment. VAPS = 7-8
5	Pain continuous and severe. Preventing activity. Uncontrolled by medication. VAPS = 9-10

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B2 Suffering

Using Table B2, a score out of 5 is assessed for suffering.

Using the Worksheet - Calculation of non-economic loss (see section B6), the score for Suffering is combined with the scores derived from Tables B1, B3.1, B3.2, B3.3, B4 and B5.

Suffering means the mental distress resulting from the accepted conditions or impairment.

It includes emotional symptoms which are within the normal range of human responses to distressing events such as grief, anguish, fear, frustration, humiliation, embarrassment.

Only ongoing suffering of a continuing or episodic nature is considered.

Table B2 does not include:

temporary suffering;
speculation about future suffering that has not yet manifested itself.

Table B2: Suffering

SCORE	DESCRIPTION OF LEVEL OF EFFECT
0	No symptoms of mental distress experienced.
1	Symptoms of mental distress minimal or ill defined. Symptoms occur intermittently. No interference with activity.
2	Distinct symptoms of mental distress which are episodic in nature. Activities reduced during such episodes. Recovers quickly after episodes.
3	Symptoms of mental distress are distinct and varied. Episodes of mental distress occur regularly. Ability to cope or perform activity effectively reduced during episodes. Needs time to recover between episodes. Treatment - medication such as anti-depressants, counselling or other therapy by a psychologist or psychiatrist, or other supportive therapy - of benefit in controlling or relieving symptoms.
4	Symptoms of mental distress are wide ranging and tend to dominate thinking. Rarely free of symptoms of mental distress. Difficulty coping or performing activity. Treatment necessary to either control or relieve symptoms.
5	Symptoms of mental distress arising from accepted condition predominate over thinking. Activities severely restricted. Treatment of no real benefit in controlling or relieving symptoms.

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B3 Loss of amenities

'Loss of amenities' is also known as 'loss of enjoyment of life'.

Loss of Amenities and leisure activities means the effects on mobility, social relationships and recreation.

A score out of 5 is assessed for each of the following:

Mobility (using Table B3.1 - Mobility). 'Mobility' refers to the employee's ongoing ability to move around in his or her environment. This includes walking, driving, being a passenger, using public transport;

Social Relationships (Table B3.2 - Social Relationships). 'Social Relationships' refers to the employee's ongoing capacity to engage in usual social and personal relationships; and

Recreation and Leisure Activities (using Table B3.3 - Recreation and Leisure Activities). 'Recreation and Leisure Activities' refers to the employee's ongoing ability to maintain customary recreational and leisure pursuits.

Using the Worksheet - Calculation of non-economic loss (see section B6), these scores are then combined with the scores derived from Tables B1, B1, B4 and B5.

Table B3.1: Mobility

SCORE	DESCRIPTION OF LEVEL OF EFFECT
0	No or minimal restrictions on mobility.
1	Periodic effects on mobility, resulting in the need for some assistance; or Effects continuing but mild (such as slowing of pace or the need for a walking stick).
2	Mobility reduced, but remains independent of others both within and outside the home. Can travel but may need to have breaks, special seating, for example.
3	Mobility markedly reduced. Needs some assistance from others. Unable to use most forms of transport.
4	Restricted to home and vicinity. Can only travel outside home with door to door transport and the assistance of others.
5	Severely restricted mobility (for example, bed, chair, room). Dependent on others for assistance. Mechanical devices or appliances used for mobility within the home (for example, wheelchair, hoist).

Table B3.2: Social Relationships

SCORE	DESCRIPTION OF EFFECT
0	Usual relationships unaffected.
1	Minor interference with personal relationships, causing some reduction in social activities and contacts.
2	Relationships confined to immediate and extended family and close friends, but unable to relate to casual acquaintances.
3	Difficulty in maintaining relationships with close friends and the extended family.
4	Social contacts confined to immediate family.
5	Difficulties relating socially to anyone.

Table B3.3: Recreation and Leisure Activities

SCORE	DESCRIPTION OF EFFECT
0	Able to follow usual recreation and leisure activities
1	Intermittent interference with activities. In between episodes able to pursue usual activities.
2	Interference to activities reduces frequency of activity, but is able to continue. Is able to follow alternatives.
3	Unable to continue with pre-injury level of activity. Alternative activity possible.
4	Range of pre-injury activities greatly reduced. Needs some assistance to participate in pre-injury recreation and leisure activities.
5	Unable to undertake any pre-injury recreation and leisure activities.

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B4 Other Loss

Table B4 is used to assess losses of a non-economic nature that are not adequately covered by Tables B1, B2, B3.1, B3.2, B3.3, or B5.

A score out of 3 is assessed.

Using the Worksheet - Calculation of non-economic loss (see section B6), this score is then combined with the scores derived from Tables B1, B2, B3.1, B3.2, B3.4, and B5.

Table B4: Other Loss

SCORE	DESCRIPTION OF EFFECT
0	Nil or minimal disadvantages.
1	Moderate disadvantages. For example: dependence upon a specialised diet; detrimental effects of climatic features including temperature, humidity, ultra-violet rays, light, noise, dust.
2	Marked disadvantages. For example, requirement to move to specially modified premises.
3	Severe disadvantages. For example, dependence upon external life saving or supporting machines including aspirator, respirator, dialysis machine, or any form of electro-mechanical device for the sustenance or extension of activities.

B5 Loss of Expectation of Life

A score out of 3 is assessed.

Using the Worksheet - Calculation of non-economic loss (see section B6), this score is then combined with the scores derived from Tables B1, B1, B3.1, B3.2, B3.3, and B4.

Loss of expectation of life is restricted to a maximum of 3 points because of the value placed on it by the courts in damages cases.

Table B5: Loss of Expectation of Life

SCORE	DESCRIPTION OF EFFECT
0	Loss of life expectancy of less than 1 year.
1	Loss of life expectancy of 1 year to less than 10 years.
2	Loss of life expectancy of 10 years to less than 20 years.
3	Loss of life expectancy of 20 years or greater.

B6 Calculation of non-economic loss

This Worksheet allows for the calculation of the percentage of non-economic loss suffered by the employee for the purposes of section 41 of the Seafarers Act.

B6: Worksheet - Calculation of non-economic loss

STEP 1 - Calculation of Total Score from Division 2 Tables

TABLE	SCORE	FACTOR	FINAL SCORE
Table B1: Pain		x 0.5 =

Table B2: Suffering		x 0.5 =

B3 ? Amenities of Life B3.1: Mobility Score		x 0.6 =
B3.2: Social Relationships		x 0.6 =
B3.3: Recreation and Leisure Activities		x 0.6 =

Table B4: Other Loss		x 1.0 =

Table B5: Loss of Expectation of Life		x 1.0 =

TOTAL OF SCORES =

STEP 2 - Conversion of Total of Scores to a Percentage

Choose either Step 2.1 or Step 2.2

Step 2.1

If the Total of Scores from Step 1 above:

equals 15; or
is greater than 15

then the percentage non-economic loss suffered by the employee is 100%.

Step 2.2

If the Total of Scores from Step 1 above is less than 15, insert in the grey shaded area below the Total of Scores from Step 1 above. Complete the calculation to find the percentage non-economic loss suffered by the employee:

__________	x 100 = ____%
15