On Monday the Court of Appeal handed down judgment in NHS Business Services Authority v Young  EWCA Civ 8, dismissing NHS BSA’s appeal against the judgment of Nugee J ( EWHC 2686 (Ch)). Nugee J’s judgment was itself a successful statutory appeal by Mrs Young against a determination of the Pensions Ombudsman, declining to require NHS BSA to re-assess her application for Permanent Injury Benefit (PIB).
In broad terms under the NHS (Injury Benefits) Regulations 1995, PIB is payable where a relevant NHS employee/former employee suffers an injury at work and has a “Permanent Loss of Earning Ability” (PLOEA) of greater than 10%, and where that PLOEA is “by reason of” the index injury. The appeal centred on the meaning of the words “by reason of” in reg.4(1), and the Court upheld Nugee J’s judgment that they require the index injury to be “an operative cause” of the PLOEA and not “the operative cause” as argued by NHS BSA. The Court was clear that the applicable test is of “but for” causation, and that NHS BSA had not asked the correct question when assessing Mrs Young’s application.
The problem factually in Mrs Young’s case was that there were two possible causes of her PLOEA: investigations following her index back injury revealed a degenerative spine condition. Her case will now have to be re-assessed, with the relevant question being whether, “but for” the index injury, her PLOEA would not have arisen by the date of termination of her employment. There is believed to be a large number of other similar cases awaiting assessment/re-assessment, held in abeyance pending the outcome of the appeal.
The outcome of the appeal will only affect those who sustained a work-related injury on or before 30 March 2013 however, because the government has replaced the Injury Benefit scheme with a new “Injury Allowance” for injuries occurring after that date, which is a contractual benefit obtained directly from the relevant NHS employer. A “sunset period” up to 30 March 2018 is in place for those with pre-31 March 2013 injuries to bring claims under the Regulations, and this period will be extended to 30 March 2038 in exceptional circumstances where the claim arises out of the late onset of symptoms.
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