Operational Guidelines: Occupational Injuries Benefit - Disablement Benefit

BREXIT impacts

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Description of Scheme

Disablement Benefit is a payment under the Occupational Injuries Scheme which is payable to an insured person who suffers a loss of physical or mental faculty as a result of an occupational accident or a prescribed occupational disease, on or after 1 May 1967.

References to occupational accidents include reference to prescribed occupational diseases as well as occupational injuries.

Disablement Benefit may be paid as a once off gratuity or in the form of a Disablement Pension.

The Scheme was introduced on 1 May 1967. Cover for commuter accidents commenced on 27 March 1986 and cover for Gardai commenced on 6 April 1989.

Legislation

The main legislation relating to Disablement Benefit is contained in

• Chapter 13 of Part II of the Social Welfare (Consolidation) Act, 2005
• S.I. No. 102 of 2007, (main regulations)

Administration

The scheme is administered by:

Qualifying Conditions

Summary

The customer must have been insurably employed at PRSI classes A, B, D, J or M when the accident happened or when the disease was sustained.

The customer must suffer a loss of physical or mental faculty as a result of an occupational accident or a prescribed occupational disease.

The accident must have occurred on or after 1 May 1967 or the prescribed disease must have developed on or after 1 May 1967.

The accident must have happened out of and in the course of employment which is insurable for occupational injuries.

The accident (or disease) must normally have occurred in (or been contracted in) the State.

Qualifying Conditions in Detail

A). The Customer must be in insurably employed at PRSI classes A, *B, D, J or M. See full discussion of this in "OIB/Injury Benefit" guideline.

• Persons insured at PRSI Class B, although not entitled to Injury Benefit, may be entitled to reduced rates (see section on rates below) of Disablement Benefit. These include permanent and pensionable civil servants, prison officers, registered dentists and doctors employed in the Civil Service. Gardai are covered in respect of accidents (or diseases) occurring on or after 6 April 1989. The main occupational groups not insurable for occupational injuries employment are members of the Armed Forces and the self-employed.

B). The customer must suffer a loss of physical or mental faculty as a result of an occupational accident or a prescribed occupational disease. Loss of faculty is determined on the basis of an in-person Medical examination or desk assessment by a Medical Assessor based on information supplied by the claimant. (See separate Section below).

The extent of disablement is assessed, by reference to the disabilities incurred as a result of the relevant loss of faculty in accordance with the following general principles:

• all disabilities to which the customer may be expected to be subject during the assessment period are taken into account
• the question of whether or not there will be a loss of earning power or additional expense is not considered relevant
• physical and mental condition at the date of the assessment is compared with a healthy person of the same age and sex
• loss of faculty as a result of a congenital defect or of an injury or disease received or contracted before or after the relevant accident is not taken into account
• the assessment is made without reference to the particular circumstances of the customer other than age, sex and physical and mental condition

A list of prescribed degrees of Disablement is contained in the Schedule 2 of SI 102 of 2007, mainly relating to loss of sight, hearing, and amputation. Other losses are assessed on a factual basis.

The total loss, if above 20%, is rounded to the nearest 10% in calculating the rate of disablement pension payable e.g. 23% = 20% Pension/26% = 30% Pension.

C). The accident must have occurred on or after 1 May 1967 or the prescribed disease must have developed on or after 1 May 1967. Full comment on this condition is available in the Injury Benefit guideline.

D). The accident must have happened out of and in the course of insurable (occupational injuries) employment. Full comment on this condition is available in the Injury Benefit guideline.

E). The accident must normally have occurred in the State.

Full comment on this condition is available in the Operational Guidelines: Injury Benefit.

Prescribed Diseases

Diseases from an occupation are generally contracted by a process (i.e. over a period of time). However, they may occasionally develop from a once-off accident at work, and in such a case Injury Benefit can be paid, whether or not the disease contracted is a prescribed disease.

A prescribed occupational disease is a disease listed in Social Welfare legislation which a person contracts in the course of his/her employment due to the nature of that employment e.g. vibration-induced white finger from using chain-saws in forestry work. The legislation also describes, in relation to each of the listed diseases, the occupations where in normal circumstances there would be a reasonable presumption that the disease was work related.

A list of prescribed diseases, and of the employments in respect of which each is prescribed, is contained in SI 392 of 1983, in SI 102 of 1985, in S.I. No. 102/2007 - Social Welfare (Consolidated Occupational Injuries) Regulations 2007.

Presumption of origin

Where an insured person has developed a prescribed disease, and he or she was employed in any occupation prescribed in relation to that disease within the time limits shown below, it will be presumed that the disease was due to the nature of the employment (unless there is evidence to prove the disease was contracted in some other way).

• Tuberculosis - the disease must have developed not less than six weeks after the date on which he was first employed and not more than two years after the date on which he was last employed in a prescribed occupation set against the disease
• Byssinosis - no time limit
• Pneumoconiosis - no time limit except that the person must have been employed in an occupation set out in the legislation for a period of two years in employment which was insurable (occupational injuries) employment. Periods in several qualifying employments may be aggregated. Periods prior to 1 May 1967 in similar employments may also be counted for this purpose
• All other diseases - the employment must have been within one month immediately preceding the date on which he is accepted as having the disease

Note: the above relate to presumption of origin, not time limits within which the claim should be made, which are given below.

Origin not presumed

There is no presumption of origin in respect of inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth and non-infective dermatitis of external origin. In such cases the link has to be medically proven.

Date of development

The date of development of a prescribed disease, is either the day on or after 1 May 1967 on which the claimant first suffered from the relevant loss of faculty or, where applicable, the first date from which benefit could be paid on the claim having regard to claims and payments regulations. Repeat claims in respect of the same disease will be determined by reference to that same date of development, except where Benefit is not awarded on the initial claim.

Where a date of development has to be determined in respect of pneumoconiosis and byssinosis suffered by a claimant who is or has been entitled in respect of the same disease to any compensation under the Workman's Compensation Acts the disease in respect of which the claim is now made will be treated as having developed prior to 1/5/1967 (i.e. a date of development on or after 1/5/1967 cannot be applied).

Where a person has been awarded Disablement Benefit in respect of a prescribed disease other than pneumoconiosis, byssinosis, occupational asthma or occupational deafness and has recovered wholly or partially and at a later date suffers a further attack of the same disease, then:

• where a further attack commences during a period taken into account by an assessment of disablement relating to such previous award, it shall be treated as a reappearance of the original disease, and a fresh date of development will not be applied, except where having regard to the particular circumstances relating to the further attack it is found that the disease was contracted or received afresh. In which case it will be treated as a fresh attack
• where the further attack of the disease commences on a date outside a relevant period, it shall be treated as having been contracted afresh
• the date on which the further attack of the disease commences will be the date of development as though no previous claim had been made in respect of the disease

Where a disease is treated as a reappearance during a period taken into account by a previous assessment of disablement, any reassessment of the extent of disablement or the period of award will be treated as a revision of the previous assessment, not a fresh claim.

Conditions for Occupational asthma

The person must claim Disablement Benefit within 10 years of leaving an occupation prescribed in respect of occupational asthma. This condition will not apply if the claimant had already been awarded Disablement Benefit for life in respect of asthma from an occupational accident or for a period which includes the date of the new claim.

Conditions for pneumoconiosis and byssinosis

Where a person is found to be suffering from pneumoconiosis accompanied by tuberculosis, the effects of the tuberculosis will be treated as if they were the effects of the pneumoconiosis.

Conditions for occupational deafness

A claimant must have been employed in a prescribed employment for at least 10 years and must claim Disablement Benefit within 5 years of leaving that employment. There must be sensorineural hearing loss and the hearing loss must be pure tone loss of at least 50 decibels in each ear. In at least one ear there must be pure tone loss of at least 50 decibels from noise at work. The degree of disablement is set out in the Schedule to SI 391 of 1983 based on the average hearing loss. An assessment in respect of occupational deafness cannot be less than 20%. The first assessment must be provisional and for a period of 5 years. Subsequent reassessments are for not less than 5 years.

Repeat claims in occupational deafness cases

Where a claim is disallowed because a claimant did not satisfy the minimum hearing loss requirement Disablement Benefit will not be payable in respect of a further claim except in the following circumstances:

• three years have expired from the date the claim was disallowed
• three years have expired from the date disablement was assessed at less than 20%
• the claim must be made within five years of leaving prescribed employment

Where a repeat claim is made under the three year limit and (c) Qualifying Conditions in Detail above was satisfied at the time of the original claim the repeat claim does not have to be made within five years of leaving the prescribed employment.

Disqualifications

A person may be disqualified for receiving Disablement Benefit for a period of up to 9 weeks if he/she fails without good cause:

• to attend for a medical examination arranged by the Department
• to submit himself/herself from time to time to appropriate medical treatment for the relevant injury or loss of faculty
• to attend at such places and times as may be required for the purposes of the said medical examination or treatment

Late Claims

Disablement Benefit is normally awarded from the 1st Friday after receipt of a claim. However it can be backdated to three months before the date of claim, if within that 3 month period the person sustained the accident or their claim to injury benefit in respect of that accident had expired. A person is disqualified for payment of Disablement Benefit in respect of any period that exceeds this time limit. But see also paragraph re "Late Claims" in Part 2 under Claims, Investigation and Decision Procedures.

Rates Structure

The rate of benefit depends on the degree of disablement. It is paid at a personal rate without increases for dependants, but see also Incapacity Supplement guideline.

It is payable by pension or gratuity (lump sum) and can be in respect of either a provisional or a final assessment.

No award can be made if the disablement is less than 15%.

Note1: The option between pension and gratuity was available before 1/5/1990 for assessments between 1% and 19%.

Note 2: The option of a gratuity was available for provisional awards for loss of faculty of between 1% and 14%, life awards of between 1% and 9% and an option of a pension or a gratuity for life awards of between 10% and 14%, where the accident/disease was sustained prior to 1/1/2012 and the initial period of assessment was prior to 1/1/2012.

Up to 2011, a gratuity was a non-taxable lump sum and a pension was taxable income.

Current rates of maximum pension and gratuity are published in the Information Booklet SW 19. Reduced rates of pensions and gratuities are calculated on a percentage basis of the maximum rates. For example:

• 90% pension is 90% of 100% pension
• 80% pension is 80% of 100% pension
• 15% life gratuity is 80% of 19% life gratuity
• 16% life gratuity is 85% of 19% life gratuity

Where a gratuity is paid on a provisional basis, the rate is calculated on a monthly basis of 1/7th of the life rate. For example, the Life Gratuity for loss of Faculty of 15% is €15,392. A provisional assessment at 15% is €183.24 per month (15392 ÷ 7 ÷12)

Civil Servants (i.e. those insured at Class B)

Civil Servants insured at Class B cannot be paid Disablement Benefit for the first 26 weeks after the date of the accident. Half-rate Disablement Benefit can only be paid thereafter and a payment equal to the other half is made by the person's parent Department. Department of Public Service Circular 25/1975 refers.

Incapacity Supplement (see separate guideline " OIB Incapacity Supplement") and Constant Attendance Allowance (see section below) are paid at the full rate.

Overlapping Provisions

Disablement Benefit can be paid in addition to any other Social Welfare payment excluding Injury Benefit in respect of the same accident/disease. In addition it can be paid to a person even if he or she has returned to work.

However, a person claiming an increase in their Disablement Pension in the form of Incapacity Supplement cannot claim other Social Welfare payments at the same time.

Successive accidents

If a person has two or more accidents, degrees of disablement resulting from both accidents may be combined subject to a maximum of 100%.

If a person is already in receipt of Disablement Benefit and claims Injury Benefit in respect of another accident, the amount paid on Injury Benefit plus the amount paid on Disablement Benefit must not exceed the amount payable by way of Disablement Benefit to a person who is 100% disabled.

If a person is in receipt of Disablement Benefit at a rate equivalent to 100% disabled, a gratuity in respect of any other accident cannot be awarded.

If a person in receipt of a pension for Life, makes a claim in respect of a successive accident and are awarded a provisional gratuity, that assessment can be used to increase the pension payable during the provisional period instead of paying a gratuity. For example, a person in receipt of a 20% Life Pension is awarded a 5% provisional gratuity for 1 year. That person can claim a 30% pension for that provisional period. However, once the claim in respect of the successive accident is finalised they will revert to a 20% Life Penion plus whatever the final award is for the 2nd accident.

However, if the provisional award in the above example had been 4%, there would be no gain for the customer in amalgamating the assessments, because a 24% assessment is rounded down to a 20% Pension.

Extra Benefits

• Constant Attendance Allowance (See below)
• Incapacity Supplement (See separate guideline)
• Free Schemes (where Incapacity Supplement is in payment for 1 year) (See relevant guideline)

Constant Attendance Allowance

This Allowance can be paid weekly as an increase to a Disablement Pension to persons who are so seriously disabled as to need someone (a relative or some other person) to help them daily at home to attend to their personal needs for a period of at least 6 months.

Constant Attendance Allowance is not payable during any period in which the claimant is receiving medical treatment as an in-patient in a hospital or similar institution.

The award of the Allowance is based on the recommendation of the Department's Medical Advisor.

The person must be in receipt of a Disablement Pension of 50% or over.

Rate of allowance

There is one rate for Constant Attendance Allowance regardless of the degree of Disablement or the amount of attendance required. (See SW 19 booklet for current rate)

Absence from the State

Constant Attendance Allowance is payable when a person is absent from the State where constant attendance is required and the period of absence does not exceed 6 months.

Claims

Disablement Benefit is payable from after the end of the Injury Benefit period where the person has been incapable of work because of an occupational accident. If the person did not have to cease work, but nevertheless suffered a loss of faculty, the benefit is payable from the third day following the accident date.

The prescribed time for making a Disablement Benefit claim is within 3 months from the date that the person is first eligible to receive the Benefit.

Disablement Benefit should be claimed by completing and signing Claim Form OB 21. Claims are registered under a person's Personal Public Service (PPS) No. and the PPS No. is the reference number used in connection with the claim.

An acknowledgement of receipt of claim is issued on receipt of the Claim Form. The PPS No. is quoted and the claimant is asked to quote same in any future contact with the Department regarding his claim.

Late Claims

A person is disqualified for payment for any period more than 3 months prior to the date of claim. However, the claim can be backdated, and payment made in respect of a period of up to 6 months prior to the date of claim, where the person can prove to the satisfaction of the Deciding Officer or Appeals Officer that he/she satisfied the qualifying conditions during that period and that there was good cause for the delay in making the claim throughout that period.

Further backdating of payment may also be possible on an extra statutory basis.

See also " CLAIMS AND LATE CLAIMS" guideline for more information on late claims and other circumstances in which backdated payments or allowances may be made. This guideline also deals with the circumstances in which extra statutory payments may be made.

Documentation

Following receipt of the Claim Form OB 21 a person may be asked for further information in connection with his/her claim. These requests could be for further details relating to the accident, disease, previous injuries, details of the commuter accident, etc. With regard to prescribed disease claims medical evidence is also requested to confirm that the person has the disease and also to show that the disease was contracted as a result of the person's occupation. With regard to occupational deafness claims audiograms are also requested. A person may also be required to submit documentation such as P60, P45 to confirm the Class of PRSI paid.

The person claiming is responsible for the production of such details/documentation and the claim cannot be processed further until all information is supplied.

Investigation of Claim

Contribution details (i.e. Class of PRSI) are obtained from Central Records system. Where the necessary contributions are not recorded the details may be sought from claimant (e.g. P60 etc.). Any case of doubt regarding the insurability of the employment is referred to Scope Section for investigation and decision.

The circumstances of an accident or disease must be verified with the person's employer. If the person had received Injury Benefit in respect of the accident or disease this information generally is already in the Department. Where there is no Injury Benefit claim an enquiry form is sent to the employer. If there is a discrepancy between the employer's and claimant's version of an accident or if no reply is received from the employer the case is sent for investigation by a Social Welfare Investigator.

When the relevant details are received from the employer and/or Social Welfare Investigator, a Deciding Officer decides whether the accident happened in accordance with the legal requirements. In the case of prescribed diseases all the relevant information including the medical evidence is submitted to the Department's Medical Advisor for consideration. On receipt of his reply the Deciding Officer decides whether the disease fulfils the legal conditions.

A declaration is given as to whether the accident or disease was an occupational accident or disease. The customer is notified of this declaration and is offered a right of appeal.

Medical Assessor examinations

If an accident or prescribed disease is accepted by the Department as occupational, the person is referred for an examination by a Medical Advisor. The purpose of this examination is to determine

• whether the accident has resulted in a loss of faculty
• to what degree the extent of disablement resulting from the loss of faculty is to be assessed and
• what period is to be taken into account by the assessment

The Medical Advisor may recommend that a person may be suitable for rehabilitation. This is a little used provision as it is rarely appropriate or necessary to act on it. In the event of it being used, the Medical Adviser would advise the person's own doctor of the recommendation.

'Loss of faculty' means a person's inability to enjoy a normal life-style because of the loss or partial loss of his/her ordinary physical or mental abilities as a result of their occupational accident. In assessing the degree of loss of faculty, account is taken of how the person's current physical and mental condition compares to his/her pre-accident state of health and how s/he compares with a healthy person of the same age and sex.

When a person attends for a medical examination arranged by the Department and he/she suffers a loss of wages as a result, the Department refunds the person with the net loss of wages. Confirmation of the loss of wages is required from the employer before payment can be made. The Department also provides for the payment of reasonable and necessary travelling costs to medical examinations which it arranges. When the person is notified of a Medical examination s/he is advised of the position with regard to refunding in respect of loss of wages for attending the examination. The person initiates the claim. The payment of loss of wages is decided by a Deciding Officer.

Decisions

Claims are decided by Deciding Officers appointed by the Minister under Section 299 of the Social Welfare (Consolidation) Act, 2005. A notification of the decision is issued to the claimant. Where Disablement Benefit is being allowed this notification contains details of the degree of disablement assessed in percentage terms and also gives details of the rate of payment and the duration of the assessment. Where a claim is disallowed the notification gives an explanation of the reason for the disallowance.

Appeals

Following all statutory decisions, the customer is offered the right of appeal and are informed how to go about making an appeal.

Payment

Disablement Pensions are paid as follows:

Weekly payments (in advance on a Friday directly into a bank account or by cheque)

• payments of 60% disablement or over
• payments which include an increase in respect of Incapacity Supplement or Constant Attendance Allowance

Payments made every 4 weeks (in advance on a Friday directly into a bank account or by cheque)

• pension payments of less than 60%
• gratuity payments are issued directly into a bank account or by cheque once the customer indicates that they are not going to appeal a decision If they appeal, the gratuity cannot be paid until the appeal is resolved

Where Disablement Benefit is payable, it may be paid regardless of the country of residence.

Duration of Payment

Disablement Pensions can be awarded on a provisional basis or for life. Where a Disablement Pension is awarded for life it is payable until the person dies. It is a personal award and is not payable to anyone else after the death of the person concerned. (But see also separate guideline on " Death Benefits" )

Provisional awards are paid for a finite period. Customers are informed of this period when they are notified of an award. Any further award commences immediately after the expiry of the earlier award. Payment ceases however on the date of death.

A gratuity may be paid by instalments of such amounts and at such times as appear to the Minister to be reasonable in the circumstances of the case if:

• the person is, at the date of the award of the gratuity, under 18 years of age, or
• the amount of the gratuity awarded exceeds €67.00 and the person requests payment by instalments

A gratuity, if it is payable by equal weekly instalments, is paid as if it was a pension and in any other case paid in a manner as the Minister may consider appropriate.

Maintenance

Changes of address must be notified to the Department in order that cheques issue to the correct address and also so that the Department can contact the recipient at any stage in relation to the claim.

Review

The Department records details of review dates in provisional assessment cases and at the expiry of the provisional award period the person is referred for a further Medical examination.

When a Life Pension is awarded, a periodic review is carried out by the Department to confirm that the person has a continued entitlement to the Pension.

Such a review may check one or more of the following:

• that the person is still alive
• that he or she still lives at the recorded address
• that there is no breach of the Rules of Behaviour (see also under Disqualifications above)

A person who is awarded Disablement Benefit can request a review at any stage if there is a deterioration in his or her condition as a direct result of the accident or prescribed disease. In order to consider such a review, detailed medical evidence which outlines the deterioration must be submitted to the Department for consideration.

Suspension of payment

Payment can be suspended if there is no reply to correspondence or there is other reason to believe:

• the person is no longer alive
• the person is no longer resident at the address and no forwarding address has been supplied.

Retention/Destruction of Documents

Claim files in respect of Disablement Benefit are retained during the lifetime, and for six years after the death, of the claimant. A random sample of 10% of files due to be destroyed are retained for archival purposes in accordance with the National Archives Act.