The Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985

PART V SPECIAL PROVISIONS AS TO PNEUMOCONIOSIS, BYSSINOSIS, OCCUPATIONAL DEAFNESS AND CERTAIN OTHER DISEASES

SECTION A BENEFIT

Special conditions for disablement benefit for pneumoconiosis, byssinosis and diffuse mesothelioma

20.—(1) No disablement gratuity shall be payable in respect of pneumoconiosis, byssinosis or diffuse mesothelioma, but if in any case the extent of disablement is such that, when assessed in accordance with section 57 (disablement benefit), it amounts to less than 20 per cent, the beneficiary shall, subject to the proviso to section 57(6) , be entitled to a disablement pension for the period taken into account by the assessment, payable, if such assessment does not exceed 10 per cent, at the weekly rate specified in Schedule 4 to the Benefit Regulations (rate of disablement pension payable in lieu of disablement gratuity) for a degree of disablement of less than 11 per cent but not less than 6 per cent, and in any other case at the weekly rate so specified for a degree of disablement of less than 20 per cent but not less than 16 per cent.

(2) Section 78(4)(b), in so far as it provides that disablement benefit shall not be payable in respect of byssinosis unless the claimant is found to be suffering from loss of faculty which is likely to be permanent, shall not apply.

(3) Notwithstanding paragraph 4(a) of Schedule 8 (period to be taken into account by an assessment of the extent of the claimant's disablement), the period to be taken into account by an assessment of the extent of the claimant's disablement in respect of byssinosis, if not limited by reference to the claimant's life, shall not be less than one year.

Pneumoconiosis—effects of tuberculosis

21.  Where any person is found to be suffering from pneumoconiosis accompanied by tuberculosis, the effects of the tuberculosis shall be treated for the purposes of Chapter V of Part II of the Act and of these regulations as if they were effects of the pneumoconiosis.

Pneumoconiosis—effects of emphysema and chronic bronchitis

22.—(1) Where any person is disabled by pneumoconiosis or pneumoconiosis accompanied by tuberculosis to an extent which would, if his physical condition were otherwise normal, be assessed at not less than 50 per cent, the effects of any emphysema and of any chronic bronchitis from which that person is found to be suffering shall be treated for the purposes of Chapter V of Part II of the Act and of these regulations as if they were effects of the pneumoconiosis.

(2) Where, on a claim for death benefit, the question arises whether the extent of a person's disablement resulting from pneumoconiosis or from pneumoconiosis accompanied by tuberculosis would, if his physical condition were otherwise normal, have been assessed at not less than 50 per cent—

(a) if there has been no assessment of disablement resulting from pneumoconiosis or from pneumoconiosis accompanied by tuberculosis made during the person's life, or if there is no such assessment current at the time of death, that question shall be determined by a medical board and the provisions of the Act shall apply as if such question were a disablement question;

(b) if there is an assessment of disablement resulting from pneumoconiosis or from pneumoconiosis accompanied by tuberculosis current at the time of the person's death, that question shall be treated as having been determined by the decision of the medical board or medical appeal tribunal, as the case may be, which made such assessment.

Increase of benefit for special hardship—special provision for penumoconiosis cases

23.  Where a beneficiary in receipt of a disablement pension in respect of pneumoconiosis receives advice from a special medical board that in consequence of the disease he should not follow his regular occupation unless he complies with certain special restrictions as to the place, duration or circumstances of his work, or otherwise, then for the purpose of determining whether he fulfils the conditions laid down in section 60(1) (increase of disablement pension for special hardship) and for that purpose only—

(a) the beneficiary shall be deemed, unless the contrary is proved by evidence other than the aforesaid advice—

(i) to be incapable of following his regular occupation and likely to remain permanently so incapable, and

(ii) to be incapable of following employment of an equivalent standard which is suitable in his case;

(b) where the beneficiary has ceased to follow any occupation to which the aforesaid special restrictions were applicable, the fact that he had followed such an occupation in the period between the date of onset of the disease and the date of the current assessment of his disablement, or for a reasonable period of trial thereafter, shall be disregarded.

Special requirement for pneumoconiosis claimants in unscheduled occupation cases

24.—(1) Part IX of the Adjudication Regulations shall apply to any claim for disablement benefit in respect of pneumoconiosis by a person in relation to whom the disease is prescribed by virtue of regulation 2(b)(ii) subject to the modification that if the claimant fails to show to the satisfaction of the adjudication officer that there is reasonable cause for suspecting that the claimant is suffering or has suffered from the disease the adjudication officer shall on that ground, and without referring the diagnosis question as provided in regulation 43(2) of the Adjudication Regulations, determine that an award cannot be made.

(2) The provisions of the last foregoing paragraph shall apply to a social security appeal tribunal and a Commissioner as they apply to the adjudication officer.

Time for claiming benefit in respect of occupational deafness

25.—(1) Regulation 14 of the Claims and Payments Regulations (time for claiming benefit) shall not apply in relation to occupational deafness except in relation to a claim for sickness benefit payable by virtue of section 50A.

(2) Subject to regulation 27(1)(c), disablement benefit, or sickness benefit payable by virtue of section 50A of the Act, shall not be paid in pursuance of a claim in respect of occupational deafness which is made later than 5 years after the latest date, before the date of the claim, on which the claimant worked in an occupation prescribed in relation to occupational deafness unless—

(a) the claimant has been employed in one or more of the occupations so prescribed for a period or periods amounting in aggregate to not less than 10 years, and

(b) that period or the last of those periods ended on or after 8th October 1977, and

(c) the claim is made within the period of one year beginning on 3rd October 1983, and

(d) either—

(i) the claimant, not being a person to whom regulation 27(1)(c) applies, has not within the period of 3 years before the claim was made previously made a claim which was disallowed because he was not suffering from occupational deafness, or

(ii) where a previous claim was made by him, a medical board or a medical appeal tribunal have not within the period of 3 years before the claim was made reassessed the extent of his disablement at less than 20 per cent.

Claims in respect of occupational deafness

26.  Where it appears that a person who has made a claim for sickness benefit by virtue of section 50A of the Act in respect of occupational deafness—

(a) may be entitled to disablement benefit, and

(b) has not previously made a claim for disablement benefit in respect of occupational deafness or such a previous claim has been disallowed,

such a claim for sickness benefit may also be treated as a claim for disablement benefit.

Further claims in respect of occupational deafness

27.—(1) In the event of disallowance of a claim for disablement benefit or sickness benefit made by virtue of section 50A of the Act in respect of occupational deafness because the claimant has failed to satisfy the minimum hearing loss requirement prescribed in column 1 of paragraph A10 of Part I of Schedule 1 hereto, disablement benefit or sickness benefit made by virtue of section 50A of the Act shall not be paid in pursuance of a further claim in respect of occupational deafness made by or on behalf of that claimant unless—

(a) it is a claim made after the expiration of 3 years from the date of a claim which was disallowed because the claimant was not suffering from occupational deafness; or

(b) it is a claim made after the expiration of 3 years from the date of a reassessment by a medical board or medical appeal tribunal of the extent of the claimant's disablement at less than 20 per cent; or

(c) if the claimant would otherwise be precluded by regulation 25(2) from making a further claim after the expiration of 3 years from the date of the disallowed claim or from the date of a reassessment by a medical board or a medical appeal tribunal of the extent of his disablement at less than 20 per cent, as the case may be, it is the first claim made since that date and within 5 years from the latest date, before the date of the claim, on which he worked in any occupation specified in column 2 of paragraph A10 of Part I of Schedule I hereto.

(2) A claim to be paid benefit by virtue of paragraph (1)(c) may be disallowed by the adjudication officer, social security appeal tribunal or Commissioner, as the case may be (hereinafter called “the determining authority”), without referring the disablement question to a medical board or medical appeal tribunal where the determining authority is satisfied from the medical evidence given on the disallowed claim that the claimant is not suffering from occupational deafness.

Availability of disablement benefit in respect of occupational deafness

28.  Where a person is awarded disablement benefit in respect of occupational deafness, section 57(4) (period for which disablement benefit is not available) shall not apply.

Period to be covered by assessment of disablement in respect of occupational deafness

29.  Subject to the proviso to section 57(6) (cessation of pension on death of beneficiary)—

(a) every initial assessment of the extent of a claimant's disablement in respect of occupational deafness shall be a provisional assessment and the period to be taken into account by such an assessment shall be a period of 5 years;

(b) the period to be taken into account by any subsequent reassessment of the extent of the claimant's disablement in respect of occupational deafness, if not limited by reference to the claimant's life, shall not be less than 5 years.

Review of assessment for unforeseen aggravation in respect of occupational deafness

30.—(1) The provisions of section 110(2) (review of assessment in case of unforeseen aggravation) shall not apply to an assessment of the extent of disablement in respect of occupational deafness until after the expiration of 5 years from the date of commencement of the period taken into account by that assessment.

(2) The provisions of section 110(2) shall not apply to an assessment of the extent of disablement in respect of occupational deafness which is less than 20 per cent.

31.  Subject to the provisions of regulation 30 and notwithstanding the provisions of section 110(5) (leave of medical appeal tribunal required to review assessment in certain cases), a life assessment in respect of occupational deafness made by a medical board or a medical appeal tribunal shall not be reviewed in accordance with section 110(2) (review of assessment in case of unforeseen aggravation) without leave of a medical appeal tribunal, and in the case of a provisional assessment in respect of occupational deafness no such leave shall be required.

No appeal against initial provisional assessment of disablement in respect of occupational deafness

32.  Notwithstanding section 109(2), but subject to the provisions of section 109(3), no appeal shall lie against an initial provisional assessment of the extent of disablement in respect of occupational deafness.

Cases in which reassessment of disablement in respect of occupational deafness is final

33.  Where in any case the extent of disablement in respect of occupational deafness has been provisionally assessed at 20 per cent or more and on any reassessment the extent of disablement in respect of occupational deafness is assessed at less than 20 per cent that assessment shall be final.

Assessment of extent of disablement and rate of disablement benefit payable in respect of occupational deafness

34.—(1) Subject to the provisions of Schedule 8 and regulations made thereunder and the following provisions of this regulation, the first assessment of the extent of disablement in respect of occupational deafness made in pursuance of a claim made before 3rd September 1979 by a person to whom disablement benefit in respect of occupational deafness is payable for a period before 3rd September 1979 shall be the percentage calculated by applying the formula set out in Part III of Schedule 3 hereto to the percentages specified in column 2 of Part I of that Schedule opposite the appropriate amount of hearing loss in the better ear and the worse ear respectively specified in column 1 of that Schedule, being the total hearing loss due to all causes, measured in each case by pure tone audiometry over the 1, 2 and 3 kHz frequencies.

(2) Except in any case to which paragraph (1) applies and subject to the provisions of Schedule 8 and regulations made thereunder and the following provisions of this regulation, the extent of disablement in respect of occupational deafness shall be assessed at the percentage calculated by applying the formula set out in Part III of Schedule 3 hereto to the percentages specified in column 2 of Part II of that Schedule opposite the appropriate amount of hearing loss in the better ear and the worse ear respectively specified in column 1 of that Schedule, being the total hearing loss due to all causes, measured in each case by pure tone audiometry over the 1, 2 and 3 kHz frequencies.

(3) In this regulation and in Schedule 3 hereto “better ear” means that ear in which the claimant's hearing loss due to all causes is the less and “worse ear” means that ear in which the claimant's hearing loss due to all causes is the more.

(4) The extent of disablement in respect of occupational deafness may be subject to such increase or reduction of the degree of disablement as may be reasonable in the circumstances of the case where, having regard to the provisions of Schedule 8 and to regulations made thereunder, that degree of disablement does not provide a reasonable assessment of the extent of disability resulting from the relevant loss of faculty.

(5) Where on reassessment of the extent of disability in respect of occupational deafness the sensorineural hearing loss is less than 50dB in each ear, being due in the case of at least one ear to occupational noise, the extent of disablement shall be assessed at less than 20 per cent.

(6) Where the extent of disablement is reassessed at less than 20 per cent disablement benefit shall not be payable.

(7) In the case of a person to whom disablement benefit by reason of occupational deafness was payable in respect of a period before 3rd September 1979—

(a) if no assessment of the extent of his disability has been made, reviewed or varied on or after that date, the rate of any disablement benefit payable to him shall be the rate payable for the degree of disablement assessed in accordance with paragraph (1), but

(b) if such an assessment has been made, reviewed or varied in respect of a period commencing on or after that date and before 3rd October 1983, the rate of any disablement benefit payable to him shall be either—

(i) the rate which would by payable if an assessment were made in accordance with paragraph (2), or

(ii) the rate which was payable immediately before the first occasion on which such review or variation took place,

whichever is the more favourable to him.

(8) Where in the case of a person to whom disablement benefit by reason of occupational deafness was payable in respect of a period before 3rd September 1979 the extent of his disability is reassessed and the period taken into account on reassessment begins on or after 3rd October 1983 and—

(a) immediately before that date, by virtue of paragraph (7) the rate at which disablement benefit was payable to him was higher than the rate which would otherwise have been payable, or,

(b) the reassessment is the first reassessment for a period commencing after 3rd September 1979,

the rate of disablement benefit payable to him shall be whichever of the rates specified in paragraph (9) is applicable.

(9) The rate of disablement benefit payable in the case of a person to whom paragraph (8) applies shall be—

(a) if the current rate appropriate to the extent of his disability as reassessed is the same as or more than the rate at which disablement benefit was payable immediately before the beginning of the period taken into account on reassessment, the current rate, or

(b) if the current rate is less than the rate at which disablement benefit was payable immediately before the beginning of the period taken into account on reassessment, the lower of the following rates—

(i) the rate at which benefit would have been payable if the reassessment of the extent of his disability had been made in accordance with paragraph (1), or

(ii) the rate at which benefit was payable immediately before the beginning of the period taken into account on reassessment.

Commencement date of period of assessment in respect of occupational deafness

35.  Notwithstanding the provisions of section 108 and Schedule 8, the period to be taken into account by an assessment of the extent of disablement in respect of occupational deafness shall not commence before 3rd February 1975.

Time for claiming benefit in respect of occupational asthma

36.—(1) Subject to paragraphs (2) and (3), disablement benefit and sickness benefit payable by virtue of section 50A shall not be paid in pursuance of a claim in respect of occupational asthma which is made later than 10 years after the latest date, before the date of the claim, on which the claimant or, as the case may be, the person in respect of whom the claim is made worked in an occupation prescribed in relation to occupational asthma.

(2) Paragraph (1) shall not apply to any claim made before 29th March 1983 by or in respect of a person who ceased on or after 29th March 1972 to be employed in an occupation prescribed in relation to occupational asthma.

(3) Paragraph (1) shall not apply to any claim made by or in respect of a person who has at any time been found to be suffering from asthma as a result of an industrial accident and by virtue of that finding has been awarded disablement benefit either for life or for a period which includes the date on which the aforesaid claim is made.

(4) Subject to paragraphs (5) and (6), industrial death benefit shall not be paid in pursuance of a claim in respect of occupational asthma where the person in respect of whose death the benefit is being claimed died more than 10 years after the latest day on which he worked in an occupation prescribed in relation to occupational asthma.

(5) Paragraph (4) shall not apply to any claim made in respect of the death of a person who died before 29th March 1983 and who on or after 29th March 1972 had not worked in an occupation prescribed in relation to occupational asthma.

(6) Paragraph (4) shall not apply to any claim made in respect of the death of a person who had at any time been found to be suffering either from asthma as a result of an industrial accident or from occupational asthma and by virtue of that finding had been awarded disablement benefit either for life or for a period which included the date of his death.

(7) Regulation 14 of the Claims and Payments Regulations (time for claiming benefit) shall not apply to a claim in respect of occupational asthma made before 29th March 1983.

SECTION B MEDICAL EXAMINATIONS AND SUSPENSION

Initial examinations

37.—(1) Where any person is, on or after 5th July 1948, engaged for employment in any occupation specified in paragraph (3), or is transferred by his employer to such employment, he shall submit himself, before the end of the second month of such new employment, for medical examination (hereafter in these regulations referred to as an “initial examination”) under arrangements made or approved by the Secretary of State, so however that a person who—

(a) being 21 years of age or over, has been employed, within the 3 years previous to such engagement or transfer, in that occupation or in some other occupation specified in paragraph (3); or

(b) being under 21 years of age, has previously submitted himself for medical examination as aforesaid and has been found on such examination to satisfy the requirements with respect to physique set out in paragraph (2),

shall not be required to submit himself to an initial examination under the provisions of this paragraph.

(2) For the purposes of the foregoing paragraph of this regulation, the requirements with respect to physique shall be that the person is not suffering from any of the following conditions, namely:—

(a) Tuberculosis of any organ, active or inactive, except a healed pulmonary primary focus.

(b) Pneumoconiosis or other marked pulmonary abnormality to an extent discernible by radiological examination.

(c) Chronic bronchitis or asthma if causing marked incapacity.

(d) Severe thoracic deformity.

(e) Rheumatic valvular heart disease.

(f) Other heart disease causing disability.

(3) For the purposes of this regulation, the specified occupations shall be any occupation in an industry or process to which the First Schedule to the Silicosis and Asbestosis (Medical Arrangements) Scheme 1931(1) applied immediately before 5th July 1948, or to which the said Schedule would have applied if such industry or process had been carried on at that time.

Periodical examinations

38.  Any person employed on or after 5th July 1948 in employed earner's employment in an occupation in relation to which pneumoconiosis is prescribed under regulation 2 shall submit himself for medical examination (hereafter in these regulations referred to as a “periodical examination”), under arrangements made or approved by the Secretary of State, on the occasions and at the intervals specified in such of the following provisions of this regulation as may be appropriate in his case, that is to say—

 (a) in the case of any person who makes a claim for benefit in respect of pneumoconiosis—

 (a) when required to do so on making such claim, and, if required by a special medical board, at such intervals thereafter as such a board may in his case from time to time direct;

38.

 (b) in the case of a person who is employed in an occupation specified in paragraph (3) of the last foregoing regulation—

 (b) at intervals of 2 years whilst so employed, or at such other intervals as a special medical board may in his case from time to time direct.

Suspension from employment

39.  A certificate of suspension issued under the provisions of either regulation 43 or regulation 44 of the National Insurance (Industrial Injuries) (Prescribed Diseases) Regulations 1959 (regulations revoked with effect from 27th November 1974 by regulation 7(1) of the National Insurance (Industrial Injuries) (Prescribed Diseases) Amendment (No. 2) Regulations 1974) and in force immediately before 27th November 1974 shall continue in force subject to and in accordance with the provisions of regulation 40 of these regulations.

Conditions of suspension

40.—(1) A certificate of suspension issued under the provisions of either regulation 43 or regulation 44 of the National Insurance (Industrial Injuries) (Prescribed Diseases) Regulations 1959, and remaining in force by virtue of the last preceding regulation, shall suspend the person to whom it relates from further employment in any occupation in relation to which pneumoconiosis is prescribed, with such exceptions and subject to such conditions (if any) as may be specified in the certificate.

(2) A special medical board may at any time revoke or vary a certificate of suspension on the application of the person to whom it relates, but unless so revoked or varied such certificate shall remain in force throughout the life of such person.

(3) No person who has been suspended from employment may engage or continue in employment, and no employer may employ or continue to employ any such person, in any occupation in relation to which pneumoconiosis is prescribed, except in accordance with the terms of the certificate of suspension in his case.

Duties of employers

41.  Every employer who employs or intends to employ any persons in any occupation specified in regulation 37(3) —

(a) shall give notice to the Secretary of State of his commencing to carry on any industry or process which will involve the employment of any persons in any such occupation;

(b) shall arrange for the initial examination of any person newly engaged or transferred to his employment in circumstances in which such examination is required by regulation 37;

(c) shall provide such facilities as the Secretary of State may reasonably require for the periodical examination of any persons employed by him in circumstances in which such examination is required by regulation 38(b).

Fees for initial and periodical examination

42.  When a person undergoes an initial examination or a periodical examination under the provisions of regulation 38(b), the employer by whom that person is employed at the time of such examination shall pay to the National Insurance Fund, in respect of an initial examination a fee of 30p, and in respect of a periodical examination a fee of 95p with an additional fee of £1.57 if a radiographic examination is required.

(1)

amended by S.R. & O. 1934/889, 1939/705.