Nhs Injury Benefit Scheme · CAS-62200-F1C6

CAS-62200-F1C6

Ombudsman’s Determination Applicant: Mr R

Scheme: NHS Injury Benefit Scheme

Respondents: NHS Business Services Authority (NHS BSA)

NELFT NHS Foundation Trust (NELFT)

Outcome

Complaint summary

Background information, including submissions from the parties Background

Mr R was employed in the NHS until August 2019 when he retired on the grounds of ill health. Mr R had been on long-term sickness absence since September 2018. In December 2019, he applied for a PIB in connection with a back injury sustained in 2010.

“3 Persons to whom the regulations apply

(1) Subject to paragraph (3), these Regulations apply to any person who, while he -

(a) is in the paid employment of an employing authority; …

1 CAS-62200-F1C6 (hereinafter referred to in this regulation as “his employment”), sustains an injury before 31st March 2013, or contracts a disease before that date, to which paragraph (2) applies.

(2) This paragraph applies to an injury which is sustained and to a disease which is contracted in the course of the person's employment and which is wholly or mainly attributable to his employment and also to any other injury sustained and, similarly, to any other disease contracted, if -

(a) it is wholly or mainly attributable to the duties of his employment; …

(3) These Regulations shall not apply to a person -

(a) in relation to any injury or disease wholly or mainly due to, or seriously aggravated by, his own culpable negligence or misconduct; …”

“4 Scale of benefits

(1) Benefits in accordance with this regulation shall be payable by the Secretary of State to any person to whom regulation 3(1) applies whose earning ability is permanently reduced by more than 10 per cent by reason of the injury or disease …”

On 11 November 2019, NELFT wrote an open letter in support of Mr R’s application. Among other things, NELFT stated that it had been unable to trace an accident report for the 2010 incident. It explained that, at its request, Mr R had provided a print from his GP record for 28 June 2010. This states:

“Was on night duty, has [sic] a “near fall” while climbing down the stairs. Was okay but developed back pain about 3 hours later. Now has severe low back pain. Had some pain killer but did not get any relief. Still in very severe [pain] and has has [sic] difficulty walking.”

NELFT also said it had agreed to award Mr R a temporary injury allowance (TIA) for a period of reduced pay between February and July 2017 and a further period between July and September 2017. It said a further TIA had been paid for a period of absence starting in September 2018.

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“I have carefully considered all the evidence held which includes your statement and the evidence you have kindly provided, together with the recommendation received from the Scheme’s medical adviser. My decision is that although I am satisfied that the injury for which you have claimed Permanent Injury Benefits is wholly or mainly attributable to your NHS employment, the medical adviser does not consider that you have suffered a permanent loss of earnings ability of more than 10% by reason of the injury.”

NHS BSA issued a stage two decision on 12 January 2021. It said it had taken advice from the Scheme’s MA and undertaken a full review of Mr R’s application. NHS BSA said it agreed with the MA that Mr R had sustained an injury to his back in the course of his NHS employment and that this was wholly or mainly attributable to his NHS employment. It confirmed that a road traffic accident which Mr R had referred to could not be considered because it had occurred after 31 March 2013. NHS BSA said it agreed with the MA that Mr R’s back injury had not caused him to suffer a permanent loss of earnings ability (PLOEA). It declined his appeal. NHS BSA then quoted the advice it had received from the MA (see Appendix).

Mr R’s position

• Since his injury he has tried to continue to work. Despite returning to work, he was not without discomfort and this led to a change to a lower paid role.

• The reduction in his salary meant that he was unable to meet his financial obligations and he incurred debt, including borrowing from loan companies, family and friends.

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NELFT’s position

1 GP note for 28 June 2010 states: “Low back pain (first)”

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NHS BSA’s position

Adjudicator’s Opinion

5 CAS-62200-F1C6 15.1 Members’ entitlements to injury benefits were determined by the scheme rules or regulations. The scheme rules or regulations determined the circumstances in which members were eligible for injury benefits, the conditions which they had to satisfy, and the way in which decisions about ill health benefits had to be taken.

15.2 In Mr R’s case, the relevant regulations were Regulation 3 and Regulation 4 in the 1995 Regulations (see paragraphs 4 and 5 above). Briefly, in order to qualify for a PIB, Mr R had to satisfy the following conditions:-

• He had sustained an injury, or contracted a disease, in the course of his NHS employment which was wholly or mainly attributable to that employment; or

• He had sustained an injury, or contracted a disease, which was wholly or mainly attributable to the duties of his NHS employment; and

• By reason of the injury or disease, his earning ability had been permanently reduced by more than 10%.

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2 Young v NHS Business Services Authority [2015] EWHC 2686 (Ch)

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Mr R did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr R provided further comments which are summarised below. I have considered Mr R’s comments, but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

8 CAS-62200-F1C6 Mr R’s further comments

Ombudsman’s decision

• He has sustained an injury, or contracted a disease, in the course of his NHS employment which is wholly or mainly attributable to that employment; or

• He has sustained an injury, or contracted a disease, which is wholly or mainly attributable to the duties of his NHS employment; and

• By reason of the injury or disease, his earning ability has been permanently reduced by more than 10%.

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Therefore, I do not uphold Mr R’s complaint against NHS BSA.

With regard to Mr R’s complaint against NELFT, I find that it had no role to play in the decision-making process relating to his application for a PIB. NELFT provided a supporting letter for Mr R’s application but this was as much as it could do as an employer. I do not uphold Mr R’s complaint against NELFT.

Anthony Arter Pensions Ombudsman

25 July 2022

11 CAS-62200-F1C6 Appendix Medical evidence

3 Stewart v NHS Business Services Authority [2018] EWHC 2285 (Ch) and Young v NHS Business Services

Authority [2015] EWHC 2686 (Ch). The latter was appealed, see NHS Business Services Authority v Young [2017] EWCA Civ 8. 12 CAS-62200-F1C6

“There is no doubt that the applicant has degenerative changes in his lumbar spine. Dr Ather confirmed in his report of 26 June 2017 that imaging of the applicant’s spine shows degenerative changes at multiple levels. These degenerative changes are constitutional in origin. They are not a consequence of the incident in June 2010. While I have no doubt that the applicant does indeed have ongoing symptoms and that he does have a PLOEA as a result of

13 CAS-62200-F1C6 these ongoing symptoms, these symptoms are the result of the degenerative changes in his spine. The applicant’s PLOEA is a consequence of the degenerative changes. Any soft tissue injury sustained in June 2010 would not be an operative cause of his PLOEA.”

4 Mr R disagrees with this timescale.

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“This medical evidence indicates that [Mr R] has spondylosis of his spine, which initially became symptomatic in the lumbar region and subsequently in the neck. MRI scans are all consistent in showing degrees of degeneration within the intervertebral discs and facet joints. It must be noted that the proportion of the population that demonstrates degenerative changes on MRI scans progressively increases through life, with the maximum incidence of onset of pain as a result of these degenerative changes occurring in the sixth decade. Onset of symptoms can very often be aligned with minor injuries, but equally can be spontaneous. The normal expression by a Specialist Spinal Orthopaedic Surgeon is that an incident or injury can represent a marginally earlier onset of back symptoms, whereas in the absence of particular minor injury, the symptom onset would have been a handful of years later, but in any event highly likely due to the natural history of constitutional degeneration anyway.

The evidence does indicate that [Mr R] sustained a slip whilst going down a set of dark stairs and he describes twisting whilst trying to catch himself and a build-up of pain in the following hours and the GP noted right sided tenderness. This would be entirely consistent with a soft tissue strain. The

16 CAS-62200-F1C6 nature of soft tissue injuries and indeed injuries of soft tissues around degenerative structures is that they would then go through a healing process. The evidence is clear that [Mr R] does have degenerative spine disease.”

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