THE COALWORKERS PNEUMOCONIOSIS SCHEME 1974 Submission to Government by the National Union of Mineworkers I Lavery, National Chairman S Kemp, National Secretary February 2005
REVIEW OF COALWORKERS PNEUMOCONIOSIS SCHEME The Scheme came into effect on 1 October 1974. It was intended that the Scheme would form a package with the various strands of State Benefits payable under the Industrial Injuries Scheme. Benefits at that time included the payment of an Industrial Injuries Pension, Special Hardship Allowance (later replaced by Reduced Earnings Allowance) and Industrial Death Benefit. There was at that time no restriction on the backdating of claims for payment of Industrial Injuries Disablement Benefit providing a claimant could establish continuous good cause for late claim. This was of particular benefit in posthumous claims where pneumoconiosis was not diagnosed during lifetime but was identified on post mortem examination. MAIN PROVISIONS OF THE SCHEME The claimant must have a minimum of 10 years employment in the mining industry. This includes employment with private or licensed mines. It is usually a prerequisite that the claimant has an award of Industrial Injuries Disablement Benefit for Prescribed Diseases D1. A tax-free lump sum is then payable based on the D1 assessment; the payment is based on the percentage of disability awarded at the date of onset of the disease. In posthumous cases benefit is still payable where pneumoconiosis is shown on the death certificate as the cause of death in the absence of a PD D1 award. In these cases the degree of disablement is assumed at 10% and the date of onset is taken as the date of death. Note the DC must specify Pneumoconiosis and not simple or mild Pneumoconiosis. The minimum payment is 2,000 to a miner or widow and 1,000 to the Estate. Where disability increases after an award has been made there is provision for progression payments of 300 for each 10% increase in disablement above 20%. In order to qualify for a progression payment there must be evidence that the disability has increased after 16.8.1988 (prior to 4.12.1997 the amount payable was 200). This must be purely for Pneumoconiosis and not for any other disease that may cause a higher disability. LOSS OF EARNINGS The scheme originally made provision for compensation in respect of loss of earnings as follows: Date of onset/development between 1.10.1974 to 30.09.1990 Lower rate payable where the claimant was incapable of his pre disease employment but able to carry out alternative employment (i.e. a partial loss of earnings) in order to receive the allowance the claimant had to be in receipt of SHA/REA at the maximum rate. 2
Higher rate payable where the claimant is incapable of all work due to pneumoconiosis (i.e. a full loss of earnings). It was a requirement that the claimant was in receipt of the maximum rate of SHA/REA. In addition he must also have been in receipt of State Invalidity/Incapacity benefit. State provision of REA was abolished on 01.10.1990. A claimant can now only qualify for loss of earnings if he is incapable of all work due to pneumoconiosis and in receipt of State Incapacity Benefit. The lower rate for the first 28 weeks of incapacity due to pneumoconiosis. There is no longer any provision for a man to be compensated for a partial loss of earnings. Department of Work & Pensions Provision Since the CWPS was introduced in 1974 there have been a number of significant changes to the Industrial Injuries Scheme. The main changes are as follows: 1.10.1986 Special Hardship Allowance replaced by Reduced Earnings Allowance. 11.04.1988 Industrial Injuries Death Benefit abolished for widows. 10.04.1989 Reduced Earnings Allowance abolished for people attaining retirement age and replaced with a Retirement Allowance. 1.10.1990 Reduced Earnings Allowance abolished. 07.04.1997 Absolute statute bar in relation to the backdating of claims. Maximum period allowed 3 months. However, a loop-hole was found particularly in posthumous claims, completing a Review Application instead of the usual application form, as there was no restriction of back payment for successful claims using this method. The Law was altered on 05.07.99 when the review system was altered to Change of Circumstances, warranting only a maximum one month back payment under this method. In a case where the mineworker has not claimed benefit during his lifetime, this presents difficulties for the widow who wishes to bring a posthumous claim. Pneumoconiosis may be diagnosed for the first time following a post mortem examination and sometimes an inquest. It may be several months before the Coroner gives a verdict and issues a death certificate. 3
In this event any claim to the DWP for PD D1 can only be backdated for a period of 3 months prior to the date of claim and therefore a widow will very often receive no arrears of disablement benefit (bearing in mind that the arrears can only be paid to the date of death in any event). In posthumous claims provided that no other Industrial Injury is payable, application is accepted as date of death and three months benefit is paid back from then. (Posthumous claims can also be successful if hospital x-rays and/or records can be established as showing Pneumoconiosis.) Furthermore, Social Security regulations prevent any claim being brought more than 12 months after the date of death. The effect of these regulations is to prevent proper assessment of the disability in posthumous claims, which in turn reduces or even extinguishes the widow s right to claim compensation from the CWPS. In the absence of an assessment for PD D1 disability is assumed to be only 10% at the date of death. This is very unfair where a man has died from complicated pneumoconiosis/pmf which is clearly more disabling. In the event that pneumoconiosis is not shown on the death certificate no benefit will be payable at all. Question Would the DWP consider backdating benefits in PD D1 cases, as we believe there are exceptional circumstances involved in the diagnosing procedure? There is a case for making an exception to the backdating rules in PD D1 cases to reinstate entitlement to backdated benefits where the disease is not diagnosed during lifetime. This is clearly the case where the specific undeniable evidence on post mortem is available and the date of onset is, in some cases, diagnosed as being some twenty years previously. There should also be consideration given to a diagnosis of Pneumoconiosis when it is on the Medical Reports attained from a consultant who is dealing with the ongoing claim against the former company British Coal, in relation to Chronic Bronchitis & Emphysema. After all, this Specialist would have access and would have to consider, review and comment upon, far more information than would be available to the Medical boarding panels within the DWP. We believe that a review of the CWPS is needed urgently because the financial package that was available to Pneumoconiotics in and since 1974 has been eroded and devalued tremendously over the years. The payments available through the scheme need to be brought up to date and re-valued in line with the current financial values of Common Law claims within the UK. The Pneumoconiosis (Workers Compensation) Act 1979 This scheme previously administered by the DETR is now the responsibility of the DWP. It provides compensation to sufferers of dust related diseases who are unable to claim 4
damages from employers who have gone out of business or where there is no realistic chance of pursuing a Court Action. It primarily compensates sufferers of asbestos related diseases. Although PD D1 is a listed disease it is not intended to compensate coal workers who are expected to pursue their claims through the CWPS. The scheme is more generous than the CWPS in some respects but only provides a one off lump sum payment. The scheme is very similar to the CWPS in that it uses the same method for assessing compensation i.e. it is a prerequisite that the claimant has a DSS assessment for certain prescribed diseases. Compensation is then awarded on the basis of the percentage degree of disablement and the claimant s age at the date of award. The figures awarded under the scheme are more in keeping with Common Law damages and vary from 1,943 to 55,188. There is however a time limit and claims must normally be made within 12 months of the DWP assessment of disability. This is not however an absolute time bar. QUESTION Is there any scope for extending this scheme to include claims for PD D12 where no common law claim is possible following the closure of the scheme, where a man is later diagnosed as suffering with the Disease? We accept that many cases will not be able to proceed at Common Law due to lack of evidence/limitation issues. THE COPD HANDLING AGREEMENT The tariffs start at 4,642 for a man aged 71 or over with a 10% disability to 60,057 for man aged under 60 with an 80% disability. The tariffs are uplifted each year by reference to the RPI. INTERACTION BETWEEN COPD AND CWPS Where a miner suffers from both COPD and pneumoconiosis he can elect in certain circumstances to be compensated for his pneumoconiosis under the provisions of the COPD Handling Agreement providing he has not previously submitted a claim under the CWPS. The provisions are as follows: Category 1 pneumoconiosis is considered to be non-disabling and a claim can be made. Category 2/3 Simple pneumoconiosis will result in a 5% discount to general damages payable under the COPD handling agreement. If there have been no previous payments from the CWPS then the miner has a choice. 5
He can be compensated for his full disability under the COPD Handling agreement with the 5% attributed to pneumoconiosis apportioned separately as a non-smoker when applying the dust model. In this event he waives his right to any compensation from the CWPS. He can accept the 5% reduction to his COPD claim and make a separate claim to the CWPS. COMPLICATED PNEUMOCONIOSIS/PMF Claimants can elect to be compensated under the COPD Handling Agreement if no previous claim to the CWPS in which event they will be compensated for their full disability due to COPD and PMF with the disability due to PMF apportioned separately as a non-smoker. Otherwise PMF is treated as a Co- morbid condition and is totally discounted. This applies to both General and Special Damages. This is where claimants are losing out particularly where they have received a payment from the CWPS many years ago based on a 10% or 20% disability at the date of onset and the condition has progressed resulting in PMF by the date of death. In many cases, there is either no progression payment due or the progression payment does not compensate for the discount that is made to the COPD claim. Very often it is not possible to claim progression payments due to the lack of evidence due to the destruction of DSS records. Widows are also disadvantaged where they have only received the nominal payment from the scheme based on a 10% disability. This anomaly has been raised with CSG. The problem is the form of discharge signed by the claimant discharging the DTI from any further responsibility in relation to the claim for pneumoconiosis. The answer may therefore lie in amendments to the CWPS Scheme that currently relies on DSS assessments in relation to requests for progression payments or compensation in posthumous cases. Would it be possible to depart from this practice and take other evidence into account e.g. the post mortem report or MAP examination report obtained as part of COPD claim? POINTS TO DISCUSS WITH DTI Re: CWPS The scheme was set up in 1974 and does not therefore reflect the current position at Common Law. It is particularly unjust that awards under the CWPS are based upon the disability awarded at date of onset under the PDD1 Scheme for live claimants, just as it is unfair that PDD1 itself is based upon disability at date on onset rather than date of certification. 6
The damages were obviously discounted at the time the scheme was introduced to take into account the significant scope for claiming various benefits from the Industrial Injuries Scheme. This scheme has now been eroded and many of those benefits are no longer available. The awards of compensation under the scheme therefore no longer represent adequate compensation for miners suffering from pneumoconiosis and are significantly lower than awards under the former DETR scheme and the British Coal Respiratory Disease Litigation handling agreement for COPD. Awards from the CWPS should now be more in line with these schemes. There is no provision for the payment of Bereavement damages or any dependency claim to a widow under the provisions of the Fatal Accidents Act 1976 where a miner dies from pneumoconiosis and has not previously been compensated under the scheme. Neither is there any provision for payment of services and miscellaneous financial losses suffered by pneumoconiotics which are every bit as real to them as they are to sufferers of emphysema who are compensated for these elements of their loss under the COPD Handling Agreement. N.B. In this respect it should be noted that the DTI have agreed to pay compensation under the COPD Handling Agreement where PMF has materially contributed to death and there has been no previous payment from the scheme. These payments will however only be made where the miner also suffered from CB/COPD. In COPD cases the respiratory consultants are often assuming a 50% disability due to PMF in cases where the cause of death is stated to pneumoconiosis. This creates an anomaly between the COPD Handling Agreement and the CWPS, which result in a heavy discount to the COPD claim in cases where adequate compensation has not been paid under the CWPS for the disability attributed to pneumoconiosis/pmf. There is no longer any provision to pay a partial loss of earnings where the man has to give up underground or mining employment as a result of his pneumoconiosis and has to take lower paid work. Again this does not reflect common law. There is significant scope for review of the CWPS. As the responsibility for the scheme now lies with the DTI it would seem more appropriate to take up many of the issues we have identified with them. The DWP would have limited involvement apart from the areas that we have highlighted. 7