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Introduction - The Chartered Society of Physiotherapy

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					                         Document type               FACTSHEET
                         Reference                   19
                         Issuing function            ERUS
                         Date of issue               AUGUST 2005




INDUSTRIAL INJURIES




THE CHARTERED SOCIETY OF PHYSIOTHERAPY
14 Bedford Row, London WC1R 4ED, UK www.csp.org.uk Tel +44 (0)20 7306 6666 Email enquiries@csp.org.uk
       THE CHARTERED SOCIETY OF PHYSIOTHERAPY



       Industrial Injuries


INTRODUCTION

1.     INTRODUCTION TO INDUSTRIAL INJURY

       A glossary of terms used throughout this factsheet is given in Appendix B.

       1.1   WHAT IS AN INDUSTRIAL INJURY?

             An industrial injury is one, which occurs in the course of an employee‟s work, and the following conditions must
             be satisfied.

               (i)               personal injury
               (ii)              by Accident
               (iii)             arising out of AND
               (iv)              in the course of
               (v)               employed earners employment

       1.2     INDUSTRIAL ACCIDENT

               The Department for Work and Pensions (DWP) state that an accident is defined as “any unintended happening
               or incident at work that has arisen out of and in the course of your employment, and has resulted in a personal
               injury”, (also known as loss of faculty).

               A loss of physical or mental faculty means some loss of power or function of an organ of the body. This can
               include disfigurement even when this causes no bodily handicap. Whether a loss of faculty results in disability
               is decided by comparing the employee‟s condition as a result of the accident with the condition of a normal
               healthy person of the same age and sex.

               You are only entitled to claim for a state benefit if the accident results in a personal injury. It does not matter
               if the effect of the injury is immediate (e.g. a broken leg) or is delayed (e.g. blow to knee leading to impaired
               mobility at a later date).


       1.3     PRESCRIBED DISEASES



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      There is provision for payment of benefits to those who are suffering from certain diseases contracted in the
      course of certain types of employment. Such diseases are noted in the Social Security (Prescribed Diseases)
      Regulations 1995 and are determined by the Secretary of State as a disease that is a risk arising from a
      person‟s occupation and not a risk common to everybody. If the disease is not listed in the regulations there is
      still the capacity to claim for a benefit under the accident provisions if a disease has been caused as a result
      of an accident.


1.4   OTHER CAUSES OF INJURY

      If you have a condition that pre-disposes you to certain injures you can still be entitled to claim. You must
      prove that if you had not suffered the accident at work, you would not have suffered that particular injury.


1.5   SUSTAINING AN ACCIDENT WHILE TRAVELLING

      DWP state that you would not be regarded as being at work when you are travelling to or from work, but you
      may be eligible for their Industrial Injuries Disablement Benefit (IIDB) if you are in transport provided by your
      employer.

      The NHS Injury Benefit Scheme‟s criteria is that you would be covered if the injury was sustained whilst
      travelling on official duty. Again this would normally exclude your journeys from your home to work.


1.6   EMERGENCIES

      For the NHS Injury Benefit Scheme if you have an accident when off duty responding to an emergency, you will
      be covered if what you did was reasonably incidental to your normal duties and was a sensible reaction to the
      emergency.


1.7   ACCIDENTS CAUSED BY OTHERS

      If you have an accident during work because of someone else's misconduct or negligence, you will be covered
      if you can show that you did not contribute directly or indirectly to the accident.


1.8   WHAT TO DO AFTER AN ACCIDENT




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           As soon as possible after the accident at work details must be reported to your employer and entered in
           the accident book. This should be done even if things do not seem serious at the time.

           If you think the accident may have some ill effect in the future, you should apply to your local social security
           office for a declaration that you had an industrial accident. You need claim form BI 95 available from local
           Jobcentre Plus or social security office. This form is also available from the DWP website, www.dwp.gov.uk

           When your Jobcentre Plus or social security office receives your claim form they will normally write to your
           employer to verify the accident.

           If you are in any doubt whether you are covered by the Industrial Injuries scheme go ahead and apply for an
           'accident declaration' anyway. Members are also advised to contact their safety rep or steward for help and
           advice following an accident at work. The steward or rep can contact the Society in cases of difficulty in
           pursuing a claim.


2.   BENEFITS AVAILABLE FOLLOWING AN INDUSTRIAL INJURY

     Following an industrial injury there are four schemes, which may be applicable to NHS employees. The first is
     relevant to all employees who are off work due to an Industrial Injury and the second to all NHS employees while the
     latter two apply to specific circumstances:
     1)      The DWP Industrial Injuries Scheme
     2) The NHS Industrial Injuries Scheme
     3) Ill Health Retirement Scheme
     4) Common Law Compensation


     2.1   DWP INDUSTRIAL INJURY SCHEME

           2.1.1 COVERAGE OF THE SCHEME

           DWP Industrial Injuries scheme covers all people who are working for an employer. The scheme provides non-
           contributory no-fault benefits for disablement because of an accident at work, or because of an industrial
           disease that is listed by the Industrial Injuries Advisory Council (listed in leaflet N12, see appendix A). All
           benefits provided under this scheme are tax-free. They are payable in addition to other incapacity and
           disability benefits but taken into account against income-related benefits. Employees are covered from their
           first day at work and are covered by the Scheme if a work-related accident occurred outside the EU as long as
           their employer is paying National Insurance Contributions (NICs)

           Some of the benefits provided, which are outlined in more detail in this fact sheet are:
            Industrial Injuries Disablement Benefit



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       Reduced Earnings Allowance
       Constant Attendance Allowance
       Exceptionally Severe Disablement Allowance


2.1.2 Industrial Injuries Disablement Benefit (IIDB)

This is a weekly benefit paid to people who become disabled because of an accident at work or due to certain
diseases caused by their work. The amount you get paid is related to how badly you were disabled as a result of the
industrial injury or disease.

You can get IIDB either temporarily or permanently for major or minor injuries. A medical examination is normally
arranged and this looks at the extent of your disability and how long your disability is expected to last. This
examination could be done provisionally if they think your condition could improve or get worse.


ASSESSMENT OF THE DISABLEMENT
Assessment of a disablement is determined, as a percentage up to 100% (an example of a 100% disability would be
total loss of sight, or loss of both hands). To be eligible for the IIDB the assessment must be at least 14%. An
example of what would constitute a disablement of 14% is the loss of an index finger or big toe.

If an individual‟s disability is assessed at between 14% and 19% they will qualify for the 20% rate. The benefit is paid
at rates between 20% and 100%, rounded up or down to the nearest 10%. The rates of benefits are published each
year in the Social Security Benefits Uprating Order. This occurs usually each April, beginning of the financial year.
Details of rates are provided in Leaflet GL23 “Social Security benefit rates” from your Jobcentre Plus or from their
website www.jobcentreplus.gov.uk

The possibility of combining percentage assessments of between 1% and 13% in respect of different industrial
injuries or diseases to reach the 14% figure means it will still be worth claiming disablement benefit for two or more
„minor‟ injuries. If you have one minor injury make sure you apply for an accident declaration. If you have a second
industrial accident, make sure you submit an accident declaration form (B195) and claim the IIDB. However if you
have lost earnings because of an industrial injury you should claim the IIDB and (if applicable) the reduced earnings
allowance (REA) (see section on REA), even if you think it is unlikely you will reach a total assessment of 14%.

How to Claim
The claim is made on Form BI100A, which is available from the employee‟s nearest Jobcentre Plus or social security
office. The form can also be accessed from the DWP website. Their address is www.dwp.gov.uk.

The claim should be made two months after the accident. The benefit is not payable for the first 15 weeks (90 days,
not including Sundays) after the accident.




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DWP will write to the employer for verification of the accident. If DWP accept the claim they will ask the claimant to
attend a medical examination. It is important that if members are asked to attend a medical examination that they
attend, unless they have good cause (of which they need to inform DWP), because the claim will otherwise be
automatically disallowed.

The medical examination is carried out by at least one doctor trained in industrial disablement injuries. The member
can provide further evidence, which was not included in their claim form to the specialist. The specialist can access
the member‟s hospital case notes if they attended for treatment for the injury under assessment. They can also
request the member‟s GP provides them with a report.

The doctor then provides a written report to DWP based on the examination and any other medical evidence. They will
provide an opinion on whether the member has suffered a loss of faculty as a result of the accident and, if so, advise
on the level of the disablement and how long it is expected to last. The assessment may be provisional if the condition
is expected to get better or worse.


THE DECISION
When the DWP gets the assessment they make a decision regarding the member‟s claim. The member‟s local
Jobcentre Plus or social security office writes to them, notifying the decision and the amount of the benefit and the
duration of time the benefit will be provided. If the member wants to appeal the decision about their claim there is
process outlined in the DWP publication GL24 “If You Think Our Decision is Wrong”. There are also several
circumstances in which the member can ask for their case to be looked at again – for example if their injury has got
worse, or new medical information has come to light.


IIDB BENEFIT RATES
For members aged 18 years or over the weekly payments, as of April 2005 range from £24.76 (20% disabled) to
£123.80 (100% disabled). The benefit is paid on top of any earnings and is paid directly into the member‟s bank
account weekly or every four or thirteen weeks.

DWP Appeal Process

If you wish to challenge a decision you can lodge an appeal. The form for this can be found at the back of Leaflet
GL24. This leaflet is available at social security offices Job centres, or your local CAB. You send your appeal to the
office dealing with your claim. You have one month from the date of the decision letter to lodge your appeal.

DWP appoint a „decision maker‟ and they will first see if revising it in your favour can change the decision. If they can,
then the appeal will stop. This is called a lapsed appeal. If the decision cannot be changed, the appeal will proceed.
The decision-maker may also revise a decision that is not in your favour. If this occurs you are given the opportunity
to make representations against this new decision.




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If your appeal is not lapsed or withdrawn it will be sent to the Appeals Service for a decision. Before it is sent, the
decision maker will prepare an appeal submission. This explains the reasons for the decision under appeal. It will
explain the law that relates to the decision and will include any additional evidence. This submission is then used by
the tribunal, which is set up to decide your appeal. You will also receive a copy of the submission.

Appeal Tribunal Hearing

Prior to the hearing you will receive a pre-hearing enquiry form to complete. One of the questions in this form is you
are asked if you want to attend the Tribunal appeal hearing or put in a written submission only. DWP advise that
people who have oral hearings usually do better than those who do not.

The appeal is heard by a tribunal composed of two panel members who have the necessary expertise to decide your
appeal.

You are entitled to call and question witnesses, but you don‟t have the right to insist that a witness attend as only the
chairman of the tribunal can do this. All appeal hearings are open to the public, but the Tribunal may decide to hold it
in private, for example to protect your privacy or family life.

The tribunal doesn‟t have to consider anything not raised by the appeal. So it is important you include all the points
you want to dispute. Most importantly, the tribunal will only consider the circumstances that existed at the time the
decision you are appealing against was made. Changes of circumstances that happen after the decision you are
appealing against will not be taken into account. In this situation if your claim was refused and then your
circumstances changed you can make a new claim at your social security office or Jobcentre.

The tribunal may request further medical evidence, and they can ask you to see a medical practitioner for an
examination.

It is possible you will receive their decision on the day; otherwise you will be sent a copy of the decision as soon as
possible after the hearing. This decision is also sent to the DWP and if appropriate used to correct your benefit
payments.

The tribunal‟s decision can only be challenged on the following grounds:
       If it contains an accidental error for which you can ask for a correction and the clerk or a legally qualified
        panel member may correct the accidental error in the way the decision has been written, such as a mistake in
        a date or an amount.
       The decision was wrong due to the Tribunal not having a piece of evidence or a party present at the hearing.
        In this situation you may ask for the decision to be put aside and a new tribunal to be set up to hear your
        appeal.
       The decision contained an error in law. If you can show that the decision is wrong in law then you may appeal
        to the Social Security Commissioners.




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For further details about The Appeals Service you can access their website on www.appeals-service.gov.uk.

2.1.3 REDUCED EARNINGS ALLOWANCE (REA)
This is independent of disablement benefit, but the degree of disablement must be assessed at least 1%. If the
disablement also means a person is unable to work in their regular occupation, or earn as much in any alternative
employment they can be paid REA. You can claim reduced earnings allowance only if your accident happened, or your
disease began before 1st October 1990, as it is now abolished. For 2005 the maximum amount of REA is £49.52 a
week for each accident or disease.

2.1.4 CONSTANT ATTENDANCE ALLOWANCE (CAA)
If you are receive the IIDB and it is 100% rate payable you may also be considered for this allowance. It is paid if you
need constant care and attention as a result of your injury or disease. It is not paid for help with ordinary housework
or for similar domestic purposes and is only relevant if you are bedridden, blind or paralysed.

When a 100% rate IIDB is provided, an opinion will automatically be given for CAA at the time of your medical
examination. However if you do need to claim this entitlement the relevant form is BI104, which you can get from
your jobcentre Plus or social security office or on the DWP website, www.dwp.gov.uk

There are four rates of CAA based on the amount of attendance you require. These rates are defined as part time,
normal maximum, intermediate or exceptional. To determine your level of entitlement a home visit may be conducted
by a DWP appointed doctor. There is no formal right of appeal against a decision on CAA.

2.1.5 EXCEPTIONALLY SEVERE DISABLEMENT ALLOWANCE
This is an extra allowance if you are exceptionally severely disabled and already entitled to CAA at the intermediate or
exceptional rate, and your need for the CAA is likely to be permanent. You don‟t have to make a separate claim. Your
entitlement is considered at the same time as your CAA. Payment is the same as for IIDB and CAA, which is the
benefit, is paid direct into your account.


2.2 NHS INJURY BENEFIT SCHEME
All NHS employees are covered by the NHS Industrial Injuries Scheme. This scheme is beneficial to employees and
should be claimed at the same time as any DWP benefits, but you must be aware that any NHS benefit will be offset
against any social security benefit.

The injury benefits scheme is not part of the NHS Superannuation Scheme.

      The NHS Industrial Injuries scheme covers all NHS employees including those who are not members of the
      superannuation scheme, for injury benefits.

               2.2.1   ENTITLEMENT




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           Injury benefits become payable when an employee is injured in the course of their duties or if they
           contract a disease because of exposure to it by the nature of the work if:

           (i)     earning ability is reduced by 10%
                   OR
           (ii)    they are on sick leave with reduced pay as a result of injury or disease
                   OR
           (iii)   they die as a result of injury or disease




           2.2.2 TYPES OF BENEFITS

           There are two types of benefit available through the NHS Industrial Injury scheme:

           (i)     Temporary Injury Allowance
           (ii)    Permanent Injury Benefit


           2.2.3 TEMPORARY INJURY ALLOWANCE (T.I.A.)

                   This is claimed via the Human Resources (HR) Department. Once the injured person goes onto
                   half pay during a spell of sick leave they are entitled to T.I.A. and they are guaranteed 85% of
                   usual pay for as long as they are off work as a result of the industrial injury. T.I.A. is paid
                   regardless of service or reduction of earning ability, and it should be noted that any benefit
                   paid by the DWP would be offset against T.I.A. so that total benefit does not amount to more
                   than 85% of the normal salary.

                   Before you go onto half pay you should begin negotiations with your HR department so TIA
                   starts when your half pay starts.

                   If you are unable to do this, the allowance can be paid retrospectively provided it can be
                   proved that the sick leave was as a direct result of the injury. TIA ends when you return to
                   work or retire/resign from your NHS employment.

                   The employer can decline paying you the T.I.A if there has been an element of misconduct or
                   culpable negligence on your part, which led to your injury. In such circumstances the
                   employer must state the reasons why your claim has failed. If you wish to appeal the
                   employer is obliged to contact the NHS Pensions Agency who will adjudicate impartially.



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           2.2.4 PERMANENT INJURY BENEFIT (PIB)

                  PIB is only considered if the injury causes a permanent reduction of your earning ability of
                  more than 10% in the general field of employment. It can be paid if the number of hours you
                  are able to work is permanently reduced; or you have to change to a lower paid job; or you
                  have to leave your NHS employment.

                  This allowance is calculated as a percentage of your average pay and is intended to top up
                  your income. This percentage is based on your length of service and the permanent reduction
                  in your earning ability.

                  In addition a lump sum is payable where earning ability is permanently reduced and you have
                  returned to work in a different capacity. These benefits are a percentage of final pay.

                  When arrangements have been made to ease you back into employment through flexible
                  working and where hours per week are gradually increased until you are back to your normal
                  hours - the PIB will not be provided. This is because such arrangements are considered to be
                  of a temporary nature.

                  However if you continue to work reduced hours for between 12 and 18 months and it can be
                  shown that the reduction in your hours is permanent, and is because of your condition, then
                  payment of PIB could be considered.

                  In calculating the level of guaranteed income, any pension paid under the scheme and any DWP
                  benefits are taken into account (i.e. the NHS award and the DWP awards are offset against
                  each other). The lump sum is paid in full regardless of any other benefits. The Injury Benefit
                  Section at the NHS Pensions Agency determines entitlement to PIB.




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           2.2.5    GUARANTEED INCOME

                   Where earning ability is permanently reduced, the scale of the benefit is based on the
                   reduction in earning ability (NB: in any job not just physiotherapy). Guaranteed income is
                   based on length of employment and is for life.


                                  Guaranteed income (including scheme pension and Social
                                  Security benefits) shown as a percentage of pay.
                                   Employment
       Reduction of    Earning    Less than 5      5 yrs and        15 yrs and       25 yrs and           Lump
       Ability                    yrs              over but less    over but less    over                 Sum
                                                   than 15 yrs      than 25 yrs

       More than 10% but not
       more than 25%                   15%              30%              45%             60%              12.5%
       More than 25% but not
       more than 50%                   40%              50%             60%              70%              25%
       More than 50% but not
       more than 75%                   65%              70%              75%             80%             37.5%
       More than 75%                   85%              85%              85%             85%              50%


           2.2.6 DEATH OF EMPLOYEE

           Should the employee die the guaranteed income and lump sum may be paid to the employee‟s widow
           and to certain dependents.



           2.2.7 REVIEW OF GUARANTEED INCOME

           If the persons earning ability is further reduced later on, the income guaranteed will be reassessed.
           This does not apply to the lump sum.

           2.2.8   COST OF LIVING INCREASES




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              All allowances from the NHS Injury Benefits Scheme are index linked to protect them against increases
              in the cost of living.

              For information on benefits for widows and dependants you are advised to refer to the booklet "NHS
              Superannuation, A Members Guide to the Scheme", which is obtainable from the HR Department or
              Superannuation Officer.

              2.2.9 MEDICAL ASSESSMENT FOR PIB

              Your employer submits a claim to the Injury Benefits Section at the NHS Pensions Agency. The claim
              form is known as form AW13. The form is set out into two parts. The employer completes Part A and
              you will be asked to fill in part B of the form. The Pensions Agency advises that it vital that you provide
              as much information as possible about your condition, it onset, cause, effect on you and your ability to
              work and prognosis. For instance your inability to sit/ stand/drive/ walk any distance/lift
              anything/do normal activities of daily living etc.

              It is a good idea to check the information provided by your employer under Part A of the form and any
              accompanying documents they have provided. If you disagree with any of the information supplied by
              the employer you need to notify the Pensions Agency and explain what it is you dispute and why.

              To assist the Agency in their assessment it would be helpful to send copies of any reports you have
              that relate to your claim.

              It is important if you are asked to attend a medical examination that the examining doctor is aware of
              all the problems you face in relation to the industrial injury. The doctors do not always ask the
              relevant questions, so it is up to you, the patient, to put forward any points which are relevant and may
              have been overlooked or not pursued in enough detail relative to their contribution to the prognosis of
              the industrial injury; eg pain.


              2.2.10 APPEAL/DISPUTES

              There is no formal appeals process for disagreements regarding PIB. However, decisions will be
              reconsidered upon receipt of further medical evidence or other information.


  2.3 ILL HEALTH RETIREMENT (ONLY AVAILABLE TO MEMBERS OF NHS SUPERANNUATION SCHEME)

2.3.1 The form needed to claim ill health retirement is AW33E available from the HR department; Part 1 has to be
             completed by personnel, Part 2 by the claimant and Part 3 by the claimant‟s GP.




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           A Pension and a Lump sum will be payable on retirement if the member of the scheme:

           (i)     Retires on grounds of permanent ill health at any age
                        AND

            (ii)   Has at least two years‟ membership (i.e. period during which member has paid contributions
                   to superannuation scheme). For part time employees - all contributing part-time membership
                   counts at full calendar length towards qualifying membership, but is converted to the whole
                   time equivalent for counting as reckonable membership.

                       OR

           (iii)   Has more than 2 but less than 5 years superannuable service. In this case the years of
                   service cannot be increased (see 2.3.3). NB Members of the scheme with less than 2 years
                   service will have their superannuation contributions refunded.




     2.3.2 EXTRA MEMBERSHIP

           Extra ill-health membership enhances the basic benefits and services to compensate the member for
           having to retire early due to ill health, rather than at a time of their choosing.

           Membership between 5 and 10 years will be doubled subject to maximum of service you could have had
           by age 65.

           Qualifying membership over 10 years will be increased to 20 years subject to the maximum you could
           have had by age 65 or your membership is increased by 6 and two third years, subject to maximum of
           service you would have had by age 60, if more beneficial.

           Service cannot be increased to more than 40 years.

     2.3.3 PENSION

           For each complete year of service (increased as above) the pension is 1/80th of members‟ final pay of
           the best of the last three years pensionable pay. For any service in part-time employment, equivalent
           whole-time pay is used).

           For an incomplete year of service (increased as above) the pension will be calculated on number of
           days of employment.



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     2.3.4 LUMP SUM

             This is normally 3 x the annual pension, except for any period in which an unreduced lump sum was
             purchased. Married men's lump sum with membership before 25.3.72 may get a smaller lump sum.
             This is because membership before that date only counts at one third of the value of later
             membership when lump sums are worked out. Most married men affected in this way can purchase a
             3 x lump sum for all or part of their pre 25/3/72 membership by taking out an Unreduced Lump Sum
             through AVCs (Additional Voluntary Contributions).

     For further details regarding NHS Pension Scheme, see ERUS Factsheet No 7 “Superannuation”

2.4 COMMON LAW COMPENSATION

            You may also have a civil claim for personal injury against your employer. The basis requirements for
            this are that you have a diagnosable illness or injury; that this was caused by your employment; and
            that your employer was negligent in their duty of care towards you in relation to your sustaining the
            injury.

             If this may be the case call CSP legal services on 0800 587 7519. This service is free to members and
            you will need to provide your membership details when phoning. The time limit for filing civil claims is
            three years from the date of the accident.




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APPENDIX A

INDUSTRIAL INJURY FORMS/LEAFLETS
All the leaflets and forms listed are available from DWP, Job Centres and some libraries with the exception of Form AW33E (see
below)

FORMS

BI95                    Accident declaration form. This is used to declare the accident and must be completed within 6
                        months of the accident. (Accident before 6 April 1983 different rules)

BI100A                  Accidents Claim Form for Industrial Injuries Disablement Benefit (IIDB)

BI100B                  Diseases claim form for IIDB

BI100C                  Chronic bronchitis/emphysema claim form for IIDB

BI100E                  Allergic rhinitis claim form

BI100-OA                Occupational asthma

BI100-OD                Occupational deafness

BI104                   Constant Attendance Allowance

GL24                    Application to appeal against DWP decision regarding entitlement to benefit. “If you think our Decision
                        is Wrong”

AW13                    Application form for PIB (initiated by the NHS employer)

AW33E                   Application for Ill Health Retirement (initiated from your NHS employer‟s HR Dept) completed by
                        employer, claimant and claimant‟s GP)

LEAFLETS

SD7                     “Disabled Because of an Accident at Work”

SD6                     “Ill or disabled Because of a Disease or Deafness Caused by Work?”




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NI260 DMA      “A Guide to Dispute, Supersession and Appeal” – information on challenging a DWP decision.

GL23                  Leaflet providing the current social security benefit rates

N12                   Leaflet containing the list of industrial diseases recognised by the Industrial Injuries Advisory Council.

SD1B                  Leaflet available from NHS employer or NHS Pension Agency, which provides background information
                      about injury, benefits.


USEFUL SOURCES

DB1 “A Guide to Industrial Injuries Disablement Benefits”, DWP, April 2004

Labour Research Department Booklet, “State Benefits and Tax Credits 2005”.

“A Guide to the NHS Injury Benefit Scheme”, NHS Pensions Agency (available from their website).


Websites
www.dwp.gov.uk
www.jobcentreplus.gov.uk
www.nhspa.gov.uk
www.appeals-service.gov.uk




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