Northern Ireland - Social Security and Child Support Commissioners' Decisions

AM-v-Department for Social Development (CRS) [2013] NICom 27

 

Decision No:  C1/10-11(CRS)

 

 

COMPENSATOR:  NORTHERN IRELAND OFFICE

 

THIRD PARTY:  MSL

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

COMPENSATION RECOVERY SCHEME

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 18 May 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 18 May 2010 is not in error of law.  Accordingly the decision of the appeal tribunal which, in turn confirmed the decision of the Department dated 26 November 2009, is confirmed.

 

         Background

 

2.     The parties to the application are the Department, the injured party (IP), the Northern Ireland Office (the compensator) and the third party (TP).  However, and as is the case in most appeals relating to the compensation recovery, the IP has no interest in the outcome of the proceedings and, accordingly, has taken no part in them.

 

3.     On 18 January 2008 notification was received in the Compensation Recovery Unit (CRU) that the IP had lodged a claim for compensation with the Northern Ireland Office because of an accident which had taken place on 28 August 2007.

 

4.     Further enquiries by officers within CRU established that industrial injuries disablement benefit (IIDB) was awarded to the IP.  A claim to IIDB was received in the Department on 8 July 2008.

 

5.     In a decision dated 15 October 2008 and a copy of which was attached to the original appeal submission as Tab No 5, the decision-maker decided that:

 

‘[The IP] is suffering from a loss of faculty as a result of the relevant accident.

 

The relevant loss of faculty is headaches/dizziness, and painful restricted neck movements.

 

The degree of disablement is 15 percent.

 

The period of the assessment commences on 11/12/2007 and continues to 13/10/2009.

 

The assessment is provisional.’

 

         Entitlement to IIDB was awarded from 9 April 2008 to 13 October 2009.

 

6.     On 26 November 2009 an officer from CRU decided that the compensator was liable to pay to the Department an amount equal to the total of recoverable benefit paid to the IP in respect of the alleged accident.  Further, the CRU officer issued a certificate of recoverable benefits to the compensator and advising the compensator of the decision and the liability of the compensator for full payment.

 

7.     Following a request for a review of the decision incorporating the certificate of recoverable benefits, an officer from CRU decided that the certificate could not be revised.  An appeal was received on 19 January 2010.

 

8.     The appeal tribunal hearing took place on 18 May 2010.  The appeal tribunal disallowed the appeal and confirmed the certificate of recoverable benefits dated 26 November 2009.

 

9.     On 25 October 2010 an application for leave to appeal was received in the Appeals Service from Campbell Fitzpatrick Solicitors.  On 26 October 2010 the Departmental Solicitor’s Office confirmed that the application for leave to appeal had been lodged on behalf of both the compensator and TP.  On 30 November 2010 the application for leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the LQPM identified, as a point of law:

 

‘Whether the Statement of Reasons is adequate to explain the Tribunal’s decision.’

 

         Proceedings before the Social Security Commissioner

 

10.   On 20 January 2011 the appeal was received in the Office of the Social Security Commissioners.  On 2 March 2011 written observations on the appeal were sought from Decision Making Services (DMS) and these were received on 30 March 2011.  In these initial written observations, Miss Teresa McHugh, for DMS, opposed the appeal on the grounds cited by the representative of the compensator and TP.  Written observations were shared with the representative on 18 April 2011.  Further written observations in reply were received from the representative on 4 May 2011 and were shared with Miss McHugh on 16 May 2011.  On that date, I directed that no oral hearing of the appeal would be required and invited further submissions from the parties.  Further correspondence was received from Campbell Fitzpatrick on 23 May 2011 and on 30 June 2011.

 

11.   There then followed a considerable delay in the promulgation of this decision.  The delay was occasioned, initially, by the reduction in the judicial complement in the Office of the Social Security Commissioners by the retirement of the then Chief Social Security Commissioner and, subsequently, by the anticipation that certain issues relating to the scheme for compensation recovery were being considered by another Social Security Commissioner in another case.  It is the policy of the Social Security Commissioners to hold or ‘stay’ parallel cases in these circumstances.  As it turned out, while the other case addressed certain very aspects of the compensation recovery scheme, it did not address the more specific issues arising in this appeal.  Accordingly, apologies are extended to all of the parties to the appeal.

 

         Errors of law

 

12.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

13.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)       giving weight to immaterial matters;

 

(v)        making a material misdirection of law on any material matter;

 

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         Was the decision of the appeal tribunal in the instant case, in error of law?

 

         The relevant legislative background

 

14.   In PF-v-Department for Social Development (CRS) [2012] NICom 349 (C1/12-13(CRS)), Commissioner Stockman set out the relevant legislative background and basic statutory scheme, at paragraphs 18 to 22 of his decision, as follows:

 

‘The relevant legislation and the basic statutory scheme

 

18.       The Social Security (Recovery of Benefits) (NI) Order 1997 (“the Order”) provides the legal framework for the Department to recover the amount of specified benefits paid to a claimant arising from an accident, injury or disease, from any compensation payments made to the claimant in respect of the same accident, injury or disease.

 

19.       Article 3 of the Order provides:

 

‘3.-(1) This Order applies in cases where-

 

(a) a person makes a payment (whether on his own behalf or not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other, and

 

(b) any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident, injury or disease.

 

(2) The reference in paragraph (1)(a) to a payment in consequence of any accident, injury or disease is to a payment made-

 

(a) by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the accident, injury or disease, …’

 

20.       By Article 6, the Order makes provision for the relevant amount of benefit to be certified in a certificate of recoverable benefit and makes provision for such a certificate to be issued.

 

‘6.-(1) Before a person (“the compensator”) makes a compensation payment he shall apply to the Department for a certificate of recoverable benefits.

 

(2) Where the compensator applies for a certificate of recoverable benefits, the Department shall-

 

(a) send to him a written acknowledgement of receipt of his application, and

 

(b) subject to paragraph (7), issue the certificate before the end of the following period.

 

(3) The period is-

 

(a) the prescribed period, or

 

(b) if there is no prescribed period, the period of four weeks, which begins with the day on which the application is received.

 

…’

 

21.       By Articles 7 and 8 of the Order, the certificate is required to contain information regarding the amount of the recoverable benefit and the compensator is made liable to pay the Department an amount equal to the total amount of the recoverable benefits.

 

‘7.-(1) A certificate of recoverable benefits shall specify, for each recoverable benefit-

 

(a) the amount which has been or is likely to have been paid on or before a specified date, and

 

(b) if the benefit is paid or likely to be paid after the specified date, the rate and period for which, and the intervals at which, it is or is likely to be so paid.

 

…

 

8.-(1) A person who makes a compensation payment in any case is liable to pay to the Department an amount equal to the total amount of the recoverable benefits.

 

…’

 

22.       By Article 13, the Order makes further provision for a right of appeal against a certificate on certain grounds.

 

‘13.-(1) An appeal against a certificate of recoverable benefits may be made on the ground-

 

(a) that any amount, rate or period specified in the certificate is incorrect,

 

(b) that listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident, injury or disease in question have been brought into account,

 

(c) that listed benefits which have not been, and are not likely to be, paid to the injured person during the relevant period have been brought into account, or

 

(d) that the payment on the basis of which the certificate was issued is not a payment within Article 3(1)(a).

 

…’

 

         The submissions of the parties

 

15.   In the appeal which was received in the Office of the Social Security Commissioners, it was submitted that the decision of the appeal tribunal was in error of law on the basis of the following submitted grounds:

 

         (i)      the relevant accident took place on 28 August 2007.  IIDB was paid from 9 April 2008.  The statement of reasons for the appeal tribunal’s decision made it clear that the IP could have claimed IIDB from 11 December 2007 but did not do so until 8 July 2008.  The fact that the IP did not claim until seven months after the permitted date for making such a claim ‘… suggests that his claim was not as a result of the relevant accident.  There is no sufficient explanation given as to why the claim was delayed for this substantial period of time.’

 

         (ii)     as the payment of IIDB had continued beyond the period that could have been reasonably attributed to the relevant accident, the payment of IIDB was ‘… not for the relevant accident.  Payment was continuing a year and a half longer than Mr Wallace felt the effects of the accident would have been expected to last.’

 

         (iii)    while it was accepted that incapacity for work was not a condition or pre-condition for entitlement to IIDB, the fact the IP had returned to work was indicative of a resolution of his symptoms from the relevant accident.  Accordingly, it could not have been the case that IIDB was still being paid as a result of the relevant accident when the IP returned to work.

 

16.   In her written observations on the appeal, Miss McHugh responded as follows:

 

         (i)      ‘… I would agree that the claimant could have indeed claimed Industrial Injuries Disablement Benefit at an earlier date; however, the claimant did not avail of this.  I would submit that there is no requirement on the claimant to do so.  In this instance by not availing of this the claimant has lost out on benefit he may have been due.  I would further submit that as in this case where the benefit is claimed at a later date this does not render that the injury was not caused by the relevant accident.  It could be argued and is plausible that the claimant delayed claiming in case there was an improvement in relation to the injury.  Additionally Industrial Injuries Disablement Benefit is not payable for the first 90 days.

 

                  I would submit that the Tribunal has addressed and explained in the Statement of Reasons as above that there is no requirement on the claimant to claim from 11/12/2007.  Additionally the Tribunal has referred to the appropriate regulations that govern when a claim can be considered from.  I would submit that the Tribunal has not erred in law in respect to the ground of appeal.’

 

         (ii)     ‘… I would submit that the tribunal took note of the Approved Medical Officers assessment, dated 13/10/08, which assessed the degree of disablement arising from the relevant accident at 15% from the 91st day to 13/10/09.  They also took note that the decision took account of factors other than loss of faculty as a result of the accident.

 

                  In his findings the medical assessor had stated that it remained unclear whether neck or cerebral function would improve.  He therefore recommended a review in one year’s time, hence the reason for his assessment to 13/10/09.

 

                  The tribunal were only required to consider the position down to the date of settlement, i.e. 5/10/09.  It was therefore not required to make enquiries as to whether or not a review actually took place.  I however contacted Industrial Injuries Benefit who confirmed that the award was reviewed again in respect of the relevant accident of 28/08/2007 as requested by the Approved Medical Officer and a further award was put in place for the period 14/10/09 - 30/11/10 at 18%.

 

                  The tribunal in arriving at its decision also took account of Mr Wallace’s letter to the Compensators solicitors’ dated 15/12/08, in which they sought clarification on a reasonable time the IP] may have taken off work as a result of his injury on 28/8/07.

 

                  The Tribunal considered the scheduled documents and, in weighing up all the evidence before it, concluded that the Department was entitled to recover the amount of benefit for the period of the certificate.  I would submit that the Tribunal has considered all the evidence before it and was entitled to reach the decision it reached.  I therefore would submit that the Tribunal has not erred in law in respect to this ground of appeal.’

 

         (iii)    Incapacity for work is not a condition for entitlement to IIDB.  Accordingly, a claimant may return to work and still receive IIDB.  Being in work is not, therefore, indicative that IIDB was not paid as a result of the relevant accident.

 

17.   In further written observations, in response to those from Miss McHugh, Mr M, for C.. Solicitors, submitted that (i) there was no basis for concluding that the reason for the delay by the IP in claiming IIDB was that he was waiting to see if his medical condition improved (ii) the delay in claiming was because there was no connection between the IIDB claim and the relevant accident (iii) the fact that the IP returned to work is highly indicative that he had returned to a level of fitness which meant that he did not need to claim IIDB.

 

         Analysis

 

18.   The proper approach to the question of whether social security benefits are paid in respect of an accident was set out by the Social Security Commissioner in Great Britain in R(CR) 1/01.  At paragraph 7 of his decision, Commissioner Rowland stated:

 

‘However, the tribunal have overlooked the fact that, if benefit is to be recovered from a compensation payment made in respect of a relevant accident, the relevant accident must have been an effective cause of the injury giving rise to the payment of benefit throughout the period in respect of which the Secretary of State seeks to recover benefit.  Otherwise, it cannot be said that the benefit was paid “in respect of” the accident throughout the period.’

 

19.   The decision of Commissioner Rowland in R(CR) 1/01 was approved of by Mrs Commissioner Brown in Northern Ireland in C2/01-02 (CRS).  Mrs Commissioner Brown also stated, at paragraph 20 of her decision that:

 

‘…The Tribunal is therefore entitled to make its own assessment of evidence.  Where the proper payment of a particular benefit for a particular period is in issue a Tribunal should consider all the relevant evidence before it, make its own assessment of that evidence and consider whether it could reasonably be said that the conditions for entitlement to the benefit in question were satisfied for the disputed period.  It is not a matter of the Tribunal substituting its own decision to award the benefit, simply a matter of the Tribunal deciding on all the evidence now before it whether or not the award was reasonable.’

 

20.   In R(CR) 1/03, Commissioner Rowland stated, at paragraph 5:

 

‘The more serious practical issue arising in the present case is how awards of disablement benefit should be approached.  The rate at which disablement benefit is payable depends on an assessment of the level of disablement … regulation 11 of the Social Security (General Benefit) Regulations 1982 makes provision for the assessment of disablement where disablement is due both to the relevant accident and to some other cause.  If a compensator can show that an assessment was made in ignorance of the fact that the claimant was suffering from a constitutional condition that should have been taken into account in making the assessment, it seems to me that the compensator must be entitled to invite a tribunal to consider what assessment should have been made in the light of the new information and what benefit would have been paid had that assessment been made.  It must then follow that it is open to a compensator to show that an assessment was wrong on other grounds.  For instance, it may be accepted that the claimant had some disablement due to the relevant accident but there may be evidence of some deliberate exaggeration of symptoms which was plainly not taken into account by the assessor.  In such a case, a tribunal would be entitled to give a decision to the effect that part only of the disablement benefit had properly been paid in respect of the relevant accident.  I stress, however, that the burden is on the compensator to show that benefit was paid “otherwise than in respect of” the relevant accident. In the absence of some compelling new evidence, a tribunal will no doubt be slow to substitute their own judgment for that of an assessor who has had the advantage of examining the claimant.

 

21.   Turning to the arguments in the instant case, I begin by noting that in the statement of reasons for its decision, the appeal tribunal recorded that:

 

‘… Following on this claim the victim was examined on 13.10.2008 by an Approved Medical Assessor which assessed the degree of disablement arising from the relevant accident at 15% and the loss of faculty was described as impaired cerebral function and impaired function of the cervical spine.  It is pointed out in the Department’s submission, paragraph 10, “This decision took no account of factors other than the loss of faculty as a result of the relevant accident and (the victim) was awarded Industrial Injuries Disablement Benefit with effect from 09.04.2008.  [II].  The Tribunal’s attention is drawn to the fact that Industrial Injuries Disablement Benefit is awarded specifically in respect of an industrial accident … which results in a loss of faculty.  (Section 103(i) Social Security Contributions and Benefits) Act 1992 (inclusive).  So on the face of it, the Department is entitled to recover the amount of benefit for the period in the certificate.’

 

22.   A number of aspects of that part of the appeal tribunal’s reasoning are worth noting.  Firstly, the appeal tribunal has noted that the award of entitlement to IIDB was made following an assessment by a medical assessor of the Department.  This is the type of assessor referred to by Mr Commissioner Rowland in R(CR) 1/03.  Secondly, the appeal tribunal has noted that the decision-maker, in making the decision to award entitlement to IIDB, did not take into account any other factor than the loss of faculty as a result of the relevant accident.  Accordingly, there could be no question, in the mind of the decision-maker, of the loss of faculty being due to any other cause.  Finally, the appeal tribunal has noted the distinctiveness of IIDB, as a social security benefit.  The provisions of section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.’

 

23.   There is a clear link, therefore, between entitlement to this social security benefit and personal injury by accident arising out of and in the course of employment.  I am of the view that the appeal tribunal might have phrased its conclusions on the link between the statutory prescribed conditions of entitlement to IIDB and the Department’s right to recover social security benefits paid in respect of the accident in a clearer manner.  I think that what the appeal tribunal meant to state that the only basis on which IIDB can be paid is if there is loss of faculty arising from personal injury caused by accident arising out of and in the course of employment.  Prima facie, therefore, there is a link between the entitlement to the social security benefit and the Department’s right to recover.  The qualification is important, however, because as the appeal tribunal recognises, its duty in the appeal was to decide whether the listed IIDB was paid otherwise than in respect of the accident.

 

24.   The first ground of appeal related to the date of claim to IIDB.  The initial submission on this ground was that the IP did not claim IIDB until 8 July 2008, which was a period of close to 11 months after the date of the relevant accident.  I accept that the IP could have made a claim to IIDB on the day after the relevant accident.  The appeal tribunal was correct to point out, in the statement of reasons for its decision, that under the provisions of section 103(6) of the Social Security Contributions and Benefits (Northern Ireland) act 1992, as amended, a claimant cannot have an entitlement to IIDB ‘…until after the expiry of the period of 90 days (disregarding Sundays) beginning with the day of the relevant accident.’

 

25.   The claim was not made until 8 July 2008.  It is submitted that this is suggestive that the claim to IIDB was not as a result of the relevant accident.  With respect to that submission, I cannot accept it.  Firstly, and as was noted above, there can only be entitlement to IIDB, if there is a claimed loss of faculty arising from personal injury caused by accident arising out of and in the course of employment.  It cannot be claimed on any other basis.  There is no evidence that there was a separate intervening accident.  Secondly, delay in claiming entitlement to social security benefits following industrial accidents is not uncommon - see the factual background to the decisions in R(CR) 1/02, for example, where the claim to IIDB in one of the three cases considered was delayed for a similar period to that in the instant case and, similarly, in R(CR) 2/02.  Thirdly, there are all sorts of reasons why claimants delay in making claims to social security benefits and there are specific provisions for the making of late claims to such benefits and the back-dating of entitlement - see the Social Security (Claims and Payments Regulations (Northern Ireland) 1987, as amended.  In the instant case, Miss McHugh has suggested that one reason for the delay might have been that the IP was waiting to determine whether there had been any improvement in his medical condition.  While that is a possibility, I regard it to be unlikely that it was the real reason for the delay.  The most usual reason for delay in claiming social security benefits is unfamiliarity with the substantive rules of entitlement and the prescribed time limits for making a claim, although there is no evidence that this was the reason in the instant case.  As it turned out, the IP’s failure to claim entitlement to IIDB until 8 July 2008 meant that he lost out on a potential award of just under five months of payment to that benefit.

 

26.   The second ground of appeal is that as the payment of IIDB had continued beyond the period that could have been reasonably attributed to the relevant accident, the payment of IIDB was ‘… not for the relevant accident.  Payment was continuing a year and a half longer than Mr Wallace felt the effects of the accident would have been expected to last.’

 

27.   As was noted above, Mrs Commissioner Brown, at paragraph 20 of her decision in C2/01-02 (CRS) emphasised that the task of the appeal tribunal is to ‘… make its own assessment of evidence.  Where the proper payment of a particular benefit for a particular period is in issue a Tribunal should consider all the relevant evidence before it, make its own assessment of that evidence and consider whether it could reasonably be said that the conditions for entitlement to the benefit in question were satisfied for the disputed period.’  I am also reminded that in Quinn v Department for Social Development ([2004] NICA 22), the Court of Appeal emphasised that assessment of evidence and fact-finding role is one for the appeal tribunal.  At paragraph 29, the court stated:

 

‘It is clear that the Tribunal considered Dr M’s report since they refer to it in their findings and describe it as being less than helpful.  The challenge to the Tribunal’s attitude to the report cannot proceed on the basis that they ignored it; rather it must be either that they misconstrued it or they failed to give it sufficient weight.  As to the latter of these two possibilities it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.

 

Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

 

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless-

 

(a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

 

(b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”’

 

28.   At paragraph 4 of R(DLA) 3/04, Mrs Commissioner Brown had made similar remarks:

 

‘I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal.  The weight to be given to an item of evidence is a matter of fact.  That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached.  Having examined Dr M...’s report I do not consider that the Tribunal’s conclusions as to the weight to be given to it are such as no reasonable Tribunal could have reached.’

 

29.   An appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence.  I have considered the appeal tribunal’s assessment of the evidence which was available to it, in light of the submission which has been made in this appeal.

 

30.   It is clear to me that the appeal tribunal has undertaken a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

 

31.   More particularly, the appeal tribunal had before it the report of the assessment undertaken by the Adjudicating Medical Authority (AMA) on behalf of the Department and in connection with the claim to IIDB.  The AMA examined the IP on 13 October 2008, almost a year after the relevant accident.  The AMA found the IP’s account of the accident and its sequelae to be clear and concise and did not find the IP’s evidence to be over-stated.  The AMA thought that one year after the accident it remained unclear whether function would improve.  Accordingly, a review in a further year’s time was recommended.  It is important to note that entitlement to IIDB is based on loss of faculty and that awards may be provisional or final.  The decision-maker accepted the opinion of the AMA that the award, in this case, should be provisional, because of the possibility of improvement in function.  The appeal tribunal hearing took place on 18 May 2010 when the initial period of assessment and the period of the award of entitlement to IIDB had ended.  The appeal tribunal confined itself to considering the period of the award of entitlement to IIDB, asking whether, in the words of Mrs Commissioner Brown, ‘…it could reasonably be said that the conditions for entitlement to the benefit in question were satisfied for the disputed period.’  It did not seek to ascertain whether on the review after the expiry of the initial period of assessment, entitlement to IIDB continued.

 

32.   As against the evidence contained within the report of the AMA, the appeal tribunal had the evidence from Mr Wallace. Mr Wallace is a Consultant Orthopaedic Surgeon who had prepared reports on behalf of the compensator and TP.  In his initial report, dated 24 December 2007, Mr Wallace had given the opinion that within ‘… 6-12 months of a fall of this nature, one would have expected the effect of the injury to have resolved.’  Mr Wallace was also asked to clarify on what might be a reasonable time for the IP to have taken off work as a result of the injury which he had sustained.  In a further report dated 15 December 2008, Mr Wallace noted that the IP had been off work for a period of nine months:

 

‘This is longer than one would usually expect, however, recovery does vary from one individual to another and it is my understanding that there may be a requirement for a high level of fitness prior to return to work in the prison service.  It is difficult to be more specific in such a case.’

 

33.   The appeal tribunal noted the evidence of Mr Wallace and it is clear that it formed the view that the opinions offered by him were not inconsistent with the conclusions of the decision-maker, based on the report of the assessment conducted by the AMA.  The appeal tribunal endorsed and confirmed the decision of the decision-maker.  I cannot find any fault with the approach adopted by the appeal tribunal.  It has weighed and assessed all of the evidence which was before it and arrived at conclusions which are rational and wholly sustainable.

 

34.   Of course the IP did return to work.  According to the submissions which were before the appeal tribunal the return to work occurred on 26 May 2008.  In a final ground of appeal before me, it was accepted that incapacity for work was not a condition or pre-condition for entitlement to IIDB.  That concession is rightly made.  While certain social security benefits are related to a capacity to work, there are others, including, IIDB, where there is no condition of entitlement relating to an inability to work through incapacity.  There are many recipients of IIDB who are in a position to return to employment and yet who continue to satisfy the conditions of entitlement to IIDB.

 

35.   It is further submitted, however, that the fact the IP had returned to work was indicative of a resolution of his symptoms from the relevant accident.  Accordingly, it could not have been the case that IIDB was still being paid as a result of the relevant accident when the IP returned to work.  With respect to that submission, I cannot accept the logic which is being proposed.  A return to work following an accident does not necessarily equate with a resolution of symptoms sequential on injury incurred in the accident.  Following an accident, injured parties return to work for all sorts of reasons and while the injury symptoms continue.  Indeed many injured parties are encouraged to return to work.  Further, it cannot be the case, for the reasons which are set out above, that a return to work correlates with a conclusion that there was no ongoing entitlement to IIDB and, for the purposes of the compensation recovery scheme, that after the return to work, IIDB was being paid otherwise than in respect of the relevant accident.

 

         Disposal

 

36.   The decision of the appeal tribunal dated 18 May 2010 is not in error of law.  Accordingly the decision of the appeal tribunal which, in turn confirmed the decision of the Department dated 26 November 2009, is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

27 March 2013