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Disablement Benefit Case 1

Question At Issue:

Extent of loss of physical or mental faculty.

Background:

Arising from an occupational accident, the appellant suffered back and neck injuries. He was awarded Disablement Benefit on the basis of an assessment of 50% disablement for a period of almost two years. A Medical Assessor of the Department of Social and Family Affairs subsequently assessed his disablement at 20% for the next six months and a Deciding Officer awarded payment at the corresponding rate. The appellant’s solicitor appealed the decision on his behalf.

Oral Hearing:

The appellant was accompanied by his solicitor.

The appellant outlined details of the occupational accident in which he fell some twenty feet, sustaining a fracture to cervical vertebra 6 and soft tissue injuries to his neck, lower back, head and knees. He reported on the early diagnosis and treatment of his injuries, under the care of an orthopaedic surgeon. Subsequently, he also attended a neurologist, a physiotherapist and a consultant psychiatrist.

The appellant contended that he experiences severe pain. He reported that he had been diagnosed with osteoarthritis of the lower spine and right knee and that he was also being treated for abdominal pain and diabetes. He outlined the difficulties he experiences in walking and sitting for any length of time, as well as problems he has in sleeping. He contended that his diabetes had become worse since the accident, leading to a loss of vision in one of his eyes. He asserted that this had occurred because he neglected the management of his diabetes after the accident.

The appellant’s solicitor submitted four medical reports: three from the orthopaedic surgeon who had assessed his condition over a three-year period, and one from the consultant psychiatrist he attended. He drew attention to the fact that the orthopaedic surgeon, in each of his reports, had stated that the appellant ‘remains completely disabled’. He contended that the appellant had suffered both physically and mentally, as a result of the accident. He referred to the appellant’s attendance at a neurologist in relation to damage to a nerve in his elbow, arguing that his physical ailments were not confined to his neck and back. He referred also to the appellant’s diabetes and to the problem he had with his vision, arguing that these problems had become worse after the accident as they had not been managed properly.

His solicitor submitted that the appellant had enjoyed an outdoor life but that all of the activities in which he had participated were now denied him. He contended that his family life had also been affected. In terms of the degree of disablement, he argued that in assessing ‘loss of faculty’, as provided for under the Disablement Benefit scheme, a 20% assessment of disablement was a gross understatement. He argued that doctors still could not indicate what the appellant’s future outlook was.

Consideration of the Appeals Officer:

The Appeals Officer considered that the evidence showed that the appellant suffered very serious injuries as a result of his accident and that he had not recovered to any considerable extent from those injuries. Having seen him, having considered the medical reports submitted, and having listened to the evidence presented at the oral hearing, the Appeals Officer concluded it was difficult to justify a disablement assessment of only 20% in the appellant’s case. He accepted the evidence offered at the oral hearing as to the impact, both physical and psychological, that the accident had had on the appellant. He concluded that the assessment should, accordingly, be increased to 50% with effect from a specified date (the date on which Disablement Benefit had been reduced by the Deciding Officer from the original award of 50% to the subsequent rate of 20%).

Outcome:

Appeal allowed.

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