3.09 Injury andassault

Transcription

1 3.09 Injury andassault This policy is about what happens if you suffer injury while at work and the actions that your and NICS must take if this occurs. The policy also details some of the payments that you may receive. If you suffer an accident at work it is important that you report it following the established procedures Section Notification of Accidents and Dangerous Occurrences If you are absent due to injury caused by the actions or negligence of the Crown and/or a third party, the method of paying sick pay will vary according to the circumstances of the incident and whether or not a claim for damages including an element for loss of earnings is to be made Section 5.5 Injury Involving the Crown and/or a Third Party If you suffer an injury the period of your absence may not count against the maximum mount of paid absence you may be entitled to Section 5.6 Excusal of Sick Absence for periods of Injury due to Absence If you suffer an injury and receive compensation you may be required to repay some amounts that NICS have already given you Annex 4 The following term within this policy are defined in the glossary: No specific terms You may also be interested in the following policies: 3.01 Sickness Absence, 3.08 Special leave, 7.02 Staff Welfare This policy is version 2.1 This policy is currently being revised and this is why it is included here only as a printable version and not an electronic version. The printable version available on this page contains the current policy. This homepage is only a guide to the policy, not the policy itself. In the event of any discrepancy between the content of this homepage and the associated policy, the wording of the policy shall apply.

2 3.09 Injury and Assault 5.1 GENERAL Accident Book If a Department occupies premises to which the provisions of the Factories Act (Northern Ireland) 1983 apply, or where 10 or more persons are normally employed, an accident book must be maintained. Accident books may be obtained from Establishment/Personnel Branches and should be preserved for at least 3 years from the date of the last entry. Departments must investigate all accidents and furnish any information which the DHSS may request. Notification of Accidents and Dangerous Occurrences Under the provisions of the Reporting of Injuries and Dangerous Occurrences Regulations (NI) 1997, which came into operation on 1 April 1998, Departments are required to notify the Health and Safety Executive for Northern Ireland (HSENI) of: Accidents An accident connected with work which results in the death of any person. An accident connected with work which results in a major injury to an employee or a self-employed person working on the premises. An accident connected with work which results in a member of the public being taken to hospital. Such incidents should be notified without delay (eg by telephone) and written details of the accident should be sent to HSENI within 10 days, using the statutory form NI If an accident connected with work results in an employee, or a self-employed person working on the premises, being unable to do their normal work for more than 3 consecutive days, written details of the accident should be sent to HSENI within 10 days, using the statutory form NI 2508.

3 In connection with the above, it should be noted that the definition of accident includes an act of non-consensual physical violence done to a person at work. Diseases If a doctor notifies a Department that an employee suffers from a reportable work-related disease (these are listed in the Regulations), a completed disease report form (NI 2508 A) must been sent to HSENI. Dangerous Occurrences The Regulations include a list of prescribed Dangerous Occurrences. If such an incident takes place, it should be notified without delay (eg telephone) and written details of the occurrence should be sent to HSENI within 10 days, using the statutory form NI Reports of Injuries Sustained on or off duty and Occurrences of Prescribed Diseases Absences due to such causes are dealt with in the following order: a. Industrial injury/disease ie any injury arising out of, or in the course of duty and any attack of a prescribed disease due to the nature of employment. b. Injury overseas. c. Any injury involving the Crown and/or a third party. 5.2 PROCEDURES Civil Servants should report the circumstances of any injury received on or off duty and any attack of a prescribed disease due to the nature of their employment Cases in which injury benefits under Section 11 of the Principal Civil Service Pensions Scheme (NI) appear to be payable will be submitted by Personnel to Superannuation Branch, Department of Finance and Personnel as soon as possible. Where any injury is due to an accident which occurs outside the United Kingdom the case will also be referred to the Solicitor, Department of Finance and Personnel. 5.3 INDUSTRIAL INJURY/ASSAULT If officers are absent as a result of injury arising out of, or in the course of, their duty or an attack of a prescribed disease due to the nature of their employment whether or not the injury or disease causes immediate sick absence the Department will write and tell

4 them that in order to protect their interests under the Social Security Regulations, they should inform the local office of the Social Security Agency (SSA) they wish: a. to apply for an accident declaration in respect of the accident; or b. to establish entitlement to benefit for a prescribed disease Civil Servants who suffer injury as a result of an accident on duty should also be advised by their Department to seek legal advice from either their union or a solicitor specialising in injury compensation If officers are absent due to an injury sustained or a disease contracted in circumstances which satisfy the qualifying conditions for payment of injury benefits under Section 11.3 of the Principal Civil Service Pensions Scheme (NI): a. provided the first absence commenced on or after 14 July 1975 the normal sick absence maxima may be waived and the officer allowed up to 12 months on full pay and 6 months on half pay ie 18 months overall in any period of 4 years or less; b. an injury allowance may be payable where earning capacity is impaired by the injury or disease, ie the officer is receiving sick pay at less than full rate (see paragraph [9368]) Cases which appear to be eligible for the extension of paid sick absence should be referred as soon as possible to Superannuation Branch, Department of Finance and Personnel, with the information shown in [paragraph 9383 a. to d.] for confirmation that they meet the qualifying conditions of Section 11 of the Principal Civil Service Pension Scheme (NI) No deduction will be made either from sick pay or from ordinary pay on return to duty: a. for Disablement Benefit or Allowances awarded under the Social Security Regulations in respect of an injury sustained at work; or b. for an increase in Disablement Benefit or Allowances or a Disability Pension during approved hospital treatment.

5 Injury Absences Reckoning Towards Sick Absence Limit Periods of paid sick absence due to industrial injury or disease will reckon against the maximum periods of paid sick absence set out in [paragraph 581] except as provided for in a. of paragraph INJURY OVERSEAS If a Civil Servant is injured overseas in circumstances where the Social Security Agency would have awarded Disablement Benefit if the accident had happened in the United Kingdom, the Department of Finance and Personnel may make an award on the analogy of Disablement Benefit under the Injury Benefit provisions of the Principal Civil Service Pension Scheme (NI). 5.5 INJURY INVOLVING THE CROWN AND/OR A THIRD PARTY If Civil Servants are absent due to injury caused by the actions or negligence of the Crown and/or a third party, the method of paying sick pay will vary according to the circumstances of the incident and whether or not a claim for damages including an element for loss of earnings is to be made. The procedures to be followed are set out in the following paragraphs. Reporting Incidents Immediately following an incident which gives rise to an injury, officers should send their Personnel/Establishment Branch a report giving the following information: a. date and place of incident; b. detailed account of the incident; and c. the name and address of the person(s) responsible (if known) Reports should be submitted as soon as possible and not delayed until the officers decide whether or not to make a claim against the third party or in the case of a criminal injury, the Compensation Agency. When officers decide to make such claims

6 they should forward the name and address of their Solicitor to their Personnel/Establishment Branch. Categories of Injury In order to determine the appropriate procedure, any absence due to injury on or off duty involving the Crown and/or a third party must be identified at the outset as due to: a. injury as a result of an accident in which the Crown alone is involved; b. injury due to the actions or negligence of a third party; c. injury as a result of an accident involving the Crown and a third party; d. assault in the course of duty or while not on duty but where the assault is clearly connected with official duty; or e. injury due to unlawful activity If officers are injured due to the actions of a third party or as a result of an accident on or off duty, involving the Crown and/or a third party, as in paragraph b- e above (except where the third party was a servant of the Crown acting during the course of his/her duty or when a breach of duty on the part of the Crown has caused the accident) and a claim for damages is to be made, they should be advised to include a specific amount for loss of earnings in accordance with Annex 1. They should be required to sign an undertaking as soon as possible in the form set out at Annex 2. Injury as a Result of an Accident in which the Crown Alone is Involved Where the third party is a servant of the Crown acting during the course of duty or where it is alleged that a breach of duty on the part of the Crown or its servants has caused the accident, injured officers must not normally include any amount for loss of earnings in their claim against the Crown. However a claim for loss of earnings may be made where: either i. the officers are not in receipt of full sick pay for the period of absence due to injury; or

7 ii. their gross salary or wages including overtime would have exceeded full sick pay had they not been absent due to injury. They should also be allowed in accordance with the provisions of the Law Reform (Personal Injuries) Act (NI) 1948 to claim half the amount of Social Security benefits paid. Payments During Absence Officers should receive normal sick pay at the appropriate rate according to the rules set out in [paragraphs 451 to 535]. When a claim against the Department is cleared, sick absence or a percentage of it can be excused from reckoning against sick pay maxima without the officer having to repay sick pay to the Department Periods of absence due to injury during which officers receive sick pay at either full or half rate may be excused from reckoning against the maximum periods of paid sick absence set out in [paragraph 487]. Such periods should, however, be recorded on the officers sick leave records. If a claim for damages is partly successful and a percentage of contributory negligence on the part of the Civil Servant is fixed or agreed, a percentage of the period of sick absence will be excused. Injury Due to the Actions or Negligence of a Third Party Payments During Absence Sick pay should not be allowed but sums equivalent to the amount which would have been paid if the absence had been due to ordinary sickness may be issued as an advance - [see paragraphs 451 to 555] If a claim for damages is wholly or partly successful, any advances are subject to refund and the officer s income tax and contributions payments need to be adjusted in accordance with the rules set out in Annex If Civil Servants do not claim any damages from a third party, or if their claim is wholly unsuccessful, they will not be required to repay the advance or any part of it. Injury as a Result of Accident Involving the Crown and a Third Party If Civil Servants suffer an injury as a result of an accident involving both the Crown and a third party, 2 claims should be made - one against the Crown which must not normally include any amount for loss of earnings (see paragraph 5.5.6) and one against the third party (see paragraph 5.5.5).

8 Payments During Absence Sick pay should not be allowed but sums equivalent to the amount which would have been paid if the absence had been due to ordinary sickness may be issued as an advance - [see paragraphs 451 to 555] If a claim for damages is wholly or partly successful, any advances are subject to refund and the officer s income tax and contributions payments need to be adjusted in accordance with the rules set out in Annex 3. In those cases in which the Crown and a third party are involved when the claim for damages is disposed of, the damages for loss of earnings received from the third party are treated as in Annex 3 and the proportion which the Civil Servant could recover from the Crown is offset against the amount of advances received for the balance of the period If Civil Servants do not claim any damages from a third party, or if their claim is wholly unsuccessful, they will not be required to repay the advance or any part of it. Assault in the Course of Duty or While not on Duty but Where the Assault is Clearly Connected with Official Duty If there is any doubt whether or not an absence is directly attributable to an assault on duty, the advice of the Occupational Health Service will be sought. If the circumstances of the assault on duty are such that there is a possibility of recovering damages from a third party, the Civil Servant will be advised to act as in the case of an officer injured due to an accident involving a third party and required to sign an undertaking as set out in Annex 1. See paragraph 5.5.2, for the purpose of a claim. Payments During Absence If a claim for damages is not to be made, full sick pay should be paid irrespective of the amount the officer would have received under the sick pay rules less any Social Security Incapacity or Disablement Benefit, or non-contributory Invalidity Pension received from the Social Security Agency plus additions in respect of overtime, a shift disturbance or night duty allowances regularly received (calculated on average earnings over the immediately preceding calendar quarter, unless such work is of a purely seasonal character when an estimate should be made of what the officer would have received had he/she not been forced to miss work because of the assault) If a claim for damages is to be made, sums equivalent to the amount which would have been paid under above should be paid subject to a refund if the claim is successful.

9 If a claim for damages is wholly or partly successful, any advances are subject to refund and the officer s income tax and contributions payments need to be adjusted in accordance with the rules set out in Annex If Civil Servants do not claim any damages from a third party, or if their claim is wholly unsuccessful, they will not be required to repay the advance or any part of it As officers will receive full pay in these circumstances any claim for Criminal Injuries should not include an amount for loss of earnings. Injury Due to Unlawful Activity Where Civil Servants are injured, whether in the course of duty or otherwise, through bombing, gunfire, riot or other unlawful activities and provided that they themselves were not engaging in these activities, their sick absence directly due to the injury will not be recorded against their ordinary sick absence allowance and during the absence they will receive full pay less any Social Security Injury or Incapacity Benefit which they receive from the Social Security Agency. Full pay will be defined as set out in paragraph As officers will receive full pay in these circumstances any claim for Criminal Injuries should not include an amount for loss of earnings The procedure set out in paragraphs and does not affect the normal rule that sick absence is subject to the provision that there is a reasonable prospect of eventual recovery of the officer concerned and such cases will, therefore, be submitted to the Medical Adviser in accordance with the normal procedures as set out in [paragraph 476]. 5.6 EXCUSAL OF SICK ABSENCE FOR PERIODS OF ABSENCE DUE TO INJURY Periods of absence due to injury or assault may be excused from reckoning against the maximum periods of paid absence set out at [Code section Sick Absence paragraph 600] as shown in the table at Annex 4. Such period should, however, be recorded on the officers sick leave records. Any sick absence excused reckons for pay and superannuation [see Code sections Pay and Superannuation ]. If full pay is advanced, the advance will be regarded, for the purpose of excusal of sick absence, as if it had been full pay less Social Security Benefit and National Insurance Employee s Primary Class 1 Contributions. For industrial injury/disease, see also paragraph Effect of Excusal on Sick Absence If the incidence of unpaid sick absence following injury is such that no further sick pay can be issued because of the rule which precludes this when aggregated paid

10 sick absence exceeds one year in any period of 4 years, Civil Servants who fall sick following return to work after injury may receive sick pay to the extent that the sums advanced to them were refunded, irrespective of the one year in four limitation.

11 INJURY AND ASSAULT ANNEX 1 Paragraph CLAIM FOR DAMAGES AGAINST A THIRD PARTY 1. If the circumstances of assaults on duty or accidents (on or off duty) are such that a claim for loss of earnings or damages lies against a third party (except when the third party is a servant of the Crown acting during the course of his/her duty or when a breach of duty on the part of the Crown caused the accident), Civil Servants should be advised to include a specific amount for loss of earnings in any claims which they might decide to make against the third party. 2. Irrespective of the amount advanced under the provision of paragraphs++ claims should be based on the gross salary or wages which would have been paid had they not been absent from work due to the injury plus any overtime which would also have been paid to them, less: a. anticipated income tax on the total amount and the employee s primary Class 1 National Insurance Contribution which would have been deducted from their remuneration during the period concerned if they had been working; the amounts withheld as equivalent to primary Class 1 contributions should be treated in all other respects as though they were earnings related contributions; and b. in accordance with the Law Reform (Miscellaneous Provisions) Act (NI) 1948 a deduction from the claim in respect of half of the value of any Social Security benefit payable during the period of absence due to injury within a period of 5 years beginning with the time when the cause of action occurred. The Social Security benefits are incapacity benefit, severe disablement allowance or disablement benefit together with any injury benefit paid in respect of an industrial accident or prescribed disease occurring before 6 April 1983 (on which date injury benefit was abolished). 3. Where a Civil Servant is absent from work because of the act of a third party, and receives, or is likely to receive, SSP, an equivalent amount should be included in the claim for compensation and paid by the compensator to the Department of Health and Social Services.

12 INJURY AND ASSAULT ANNEX 2 Paragraph UNDERTAKING BY A CIVIL SERVANT INJURED DUE TO THE NEGLIGENCE OF A THIRD PARTY IN CONSIDERATION of the (name of Department) advancing to me sums during my absence from duty due to an accident in which I was involved on the day of 19, I HEREBY UNDERTAKE to refund to the said (name of Department) from any damages received, the total amount of the sums so advanced, less such part of that amount as is proportionate to any contributory negligence or fault on my part, or, if my claim is settled by a lump sum in which no specific amount is identifiable as loss of earnings, to refund the advance to the same extent as my total claim is successful, or such other amount as is, in the opinion of the Department, fair and reasonable. Signed Address Witness Address Date

13 Paragraph INJURY AND ASSAULT ANNEX 3 PAYMENTS TO A CIVIL SERVANT DURING ABSENCE DUE TO INJURY OR ASSAULT ABSENCE DUE TO INJURY AS A RESULT OF a. an accident on or off duty and the Crown alone is involved: b. an accident on or off duty and a third party is involved: c. an accident on or off duty and the Crown and a third party are involved : d. an assault in the course of duty or an assault while not on duty but clearly connected with official duty: LEVEL AND NATURE OF PAYMENT Sick pay: at full, half or pension rate, adjusted as necessary for injury benefit in accordance with the rules set out in [paragraphs ] Injury benefit does not apply to an industrial accident or prescribed disease occurring on or after 6 April 1983 when sickness benefit may be paid in place of injury benefit Sick pay should not be allowed but sums equivalent to the amount which would have been paid if the absence had been due to ordinary sickness may be issued as an advance - see [paragraphs 451 to 555]. i. If a claim for damages is not to be made, full sick pay irrespective of the amount received under the sick pay rules in [paragraph 487] any Social Security incapacity or disablement benefit, or noncontributory invalidity pension received from the Department of Health and Social Services plus additions in respect of overtime, shift disturbance or

14 night duty allowances regularly received (calculated on average earnings over the immediately preceding calendar quarter, unless such work is of a purely seasonal character when an estimate should be made of what the officer would have received had he/she not been forced to miss work because of the assault). or ii. If a claim for damage is to be made - sums equivalent to the amount which would have been paid under di. above if no claim for damages had been made, subject to a refund if the claim is successful. NOTE SSP will be paid in all cases where the officer is eligible for it.

15 INJURY AND ASSAULT ANNEX 4 Paragraph REFUND OF PAYMENTS 1. The amount to be refunded by Civil Servants to their Department when a claim for damages against a third party is wholly or partly successful may be calculated by reference to the table below, where: A = Amount of pay advanced less SSP if applicable to an officer during absence due to injury; B = Sum equivalent to the full amount of the employee s Class 1 National Insurance contributions for the period concerned; PROPORTION OF CLAIM RECOVERED AMOUNT TO BE REFUNDED Full recovery of loss of earnings Part recovery where amount of settlement for loss of earnings is clearly identifiable No specific amount for loss of earnings identifiable in settlement A-B (A-B) x (A-B) x amount of settlement for loss of earnings amount of claim for loss of earnings amount of settlement total claim NB: BUT IF THE RESULTING AMOUNT SEEMS INAPPROPRIATE IN A PARTICULAR CASE - the Head of Department has discretion to accept such other amount as seems fair and reasonable. 2. The basis of calculation is the same whatever rate of pay was in issue; if half pay or pension rate of pay was advanced during the absence, any balance of the damages is retained by the Civil Servant.

16 ANNEX 4 (Cont d) Paragraph INJURY AND ASSAULT 3. Civil Servants should not be required to refund any pay issued to them during sick absence (due to the injury) which occurred after the date of judgement, or settlement of their claim, and which in consequence was not included in the special damages claimed. 4. If an injured Civil Servant makes a refund to the Department under the arrangements described above, the facts should be reported to the Chief Inspector (Northern Ireland Branch), Inland Revenue. The officer will therefore be required to refund to the Department an amount which includes Income Tax paid on advances of pay but he/she should then apply to Inland Revenue for recovery of the Income Tax element. 5. National Insurance contributions will be refundable for the period for which sick absence is excused and remain chargeable for the period which still counts against sick absence entitlement. Claims for refund should be made to the nearest local office of the Social Security Agency only in the cases of officers whose claims relate to past tax years. In all other cases, the adjustment should be made by the employing Department.

17 INJURY AND ASSAULT ANNEX 5 Paragraph EXCUSAL OF SICK ABSENCE FOR PERIODS OF ABSENCE DUE TO INJURY ABSENCE DUE TO INJURY AS A RESULT OF a. An accident on or off duty and the Crown alone is involved. OUTCOME OF CLAIM FOR DAMAGES i. Successful - no contributory negligence by Civil Servant. ii. Partly successful - proportion of contributory negligence on part of Civil Servant fixed or agreed. iii. No agreement as to contributory negligence. EXCUSAL OF SICK ABSENCE Total period of paid sick absence including sick pay at pension rate. A period running from the date on which the paid absence due to injury began, up to the date on which the amount the Civil Servant could recover would be expended when set against the pay actually issued for that period. Such part of the period of paid sick absence (including sick pay at pension rate) as in the opinion of the Head of the Department is fair and reasonable.

18 INJURY AND ASSAULT ANNEX 5 (Cont d) Paragraph b. An accident due to the negligence of a third party on or off duty. c. An accident on or off duty and both the Crown and a third party are involved. d. Assault while on duty or an assault while not on duty, but clearly connected with official duty. Successful. Successful against Crown and/or third party. Whether successful or unsuccessful. A period running from the date on which the paid absence due to the injury began, up to the date on which the total sum repaid to the Department would be expended when set against the pay advanced. A period determined as if the third party only is involved, see b. above; any remaining period is treated as if the Crown alone is involved, see a. above, subject to the officer obtaining the necessary refund from the third party and handing it over to the Department. Total period of sick absence due to the assault irrespective of the result of any claim made.