S.I. No. 695/2006 - Social Welfare (Occupational Injuries) (Amendment) (No. 1) (Miscellaneous Provisions) Regulations 2006

S.I. No. 695 of 2006

SOCIAL WELFARE (OCCUPATIONAL INJURIES) (AMENDMENT) (No. 1) (MISCELLANEOUS PROVISIONS) REGULATIONS 2006

The Minister for Social and Family Affairs, in exercise of the powers conferred on him by sections 4 (as amended by section 17 and Schedule 3 of the Social Welfare Law Reform and Pensions Act 2006 ), 86, 87, 89, 241 (as amended by sections 4 and 17 and Schedules 1 and 3 of the Social Welfare Law Reform and Pensions Act 2006 ), 242, 244 (as amended by sections 4, 17 and 29 and Schedules 1, 3 and 6 of the Social Welfare Law Reform and Pensions Act 2006 ), 249 (as amended by sections 4 and 17 and Schedules 1 and 3 of the Social Welfare Law Reform and Pensions Act 2006 ) and 251 (as amended by section 29 and Schedule 6 of the Social Welfare Law Reform and Pensions Act 2006 ) of the Social Welfare Consolidation Act 2005 (No. 26 of 2005), hereby makes the following Regulations:

Citation and construction.

1.(1) These Regulations may be cited as the Social Welfare (Occupational Injuries) (Amendment) (No. 1) (Miscellaneous Provisions) Regulations 2006.

Commencement.

2. These Regulations come into operation on 15 December 2006.

Amendments to claims provisions.

3. The Social Welfare (Claims and Payments) Regulations 1952 ( S.I. No. 374 of 1952 ) are amended -

(a) in article 11A (as amended by article 8 of the Social Welfare (Amendment of Miscellaneous Social Insurance Provisions) Regulations 1986 ( S.I. No. 81 of 1986 ) by substituting for paragraph (d) the following:

“(d) in the case of death benefit, the period of 3 months commencing on the date of death of deceased,

(e) in the case of medical care, 6 weeks from the date of commencement of such care.”,

(b) in Part V, by inserting after article 15 the following:

“Nominated persons.

15A.(1) A claimant or beneficiary may nominate another person to receive payment of benefit on his or her behalf and subject to the consent of the Minister, such benefit may be payable to the person so nominated.

(2) Every nomination under sub-article (1) -

(a) shall be made to the Minister in the form for the time being approved by him or her, and

(b) may be revoked by the claimant or beneficiary on giving notice in writing of that fact to the Minister.

(3) The Minister may, where he or she considers it appropriate, withdraw his or her consent to a nomination under sub-article (1) and in such case the person so nominated shall, on receipt of a notice of such withdrawal, deliver to the Minister the order book, if any, issued to him or her.

Payable orders.

15B. (1) In the case of benefit payable by means of an order, the Minister shall cause arrangements to be made whereby, on furnishing such evidence as to identity and such other particulars as may be required, a claimant or beneficiary shall obtain a book of orders.

(2) A book of orders issued to any person shall remain the property of the Minister.

(3) Any person having a book of orders or any unpaid orders in respect of benefit or medical care payment shall at the request of an officer of the Minister, deliver such orders to such person as the officer may direct.

(4) A person who fails to comply with articles 13(1) or 15A(3) or sub-article

(3) of this article shall be guilty of an offence.

Extinguishment of right to payment.

15C.(1) Subject to sub-article (2), where benefit has been awarded and is in payment to a person, the right to any sum payable by way of the benefit shall be extinguished where payment of the benefit is not obtained within 6 months.

(2) Sub-article (1) shall not apply in respect of any benefit where a deciding officer or an appeals officer is satisfied that entitlement to the payment exists and where -

(a) the sum payable is not received within the time allowed in sub-article (1) due to the mental or other incapacity of the beneficiary or his or her approved agent, or

(b) in any other case where a deciding officer or appeals officer is satisfied that there was good cause for the delay in claiming the payment within the time allowed in sub-article (1).”, and

(c) by inserting after article 17A (as amended by article 2 of the Social Welfare (Claims and Payments) (Amendment) Regulations 1971 ( S.I. No. 233 of 1971 )) the following:

“Absence from State.

17B.(1) Notwithstanding section 249, a person who is absent from the State shall not be disqualified for receiving -

(a) death benefit (including any increases thereof), by reason only of the person being absent from the State,

(b) injury benefit (including any increase thereof) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and for the specific purpose of receiving treatment for incapacity which commenced before the person left the State,

(d) disablement pension by reason only of being absent from the State, including increases -

(i) under section 78 where constant attendance is required and the period of absence from the State does not exceed 6 months,

(ii) by way of incapacity supplement during such period as the Minister may allow having regard to the circumstances of the case if the absence is for the specific purpose of receiving treatment for incapacity which commenced before the person left the State or the absence is for a period in respect of which an increase is payable under section 78,

(iii) under section 76 in respect of a qualified child where the person is entitled to receive incapacity supplement.

(2) Funeral grant shall be payable in respect of a death, occurring outside the State if the deceased, immediately before death was -

(a) employed in insurable (occupational injuries) employment, or

(b) entitled to and not disqualified for receiving injury benefit or disablement benefit.

(3) For the purposes of sub-article (2), a person shall be deemed to be entitled to injury benefit if he or she would, but for the failure to make a claim, have been so entitled.

Exception from disqualification during penal servitude, imprisonment or detention in legal custody.

17C. (1) (a) Section 249 shall not operate so as to disqualify a person for receiving any occupational injuries benefit (including, subject to paragraph (b), any increases thereof) in respect of any period during which the person is detained (other than in the case of a person found not guilty by reason of insanity under the provisions of the Criminal Law (Insanity) Act 2006 (No. 11 of 2006)) in any institution for the treatment of mental illness or infectious disease.

(b) No increase in respect of a qualified child shall be payable to a person to whom paragraph (a) applies.

(2) (a) Subject to paragraph (b), a person shall not be disqualified for receiving disablement benefit (other than any increase thereof) for any period during which he or she is undergoing penal servitude, imprisonment or detention in legal custody.

(b) The amount of disablement benefit payable by virtue of paragraph (a) by way of any disablement pension or pensions in respect of any period, other than a period in respect of which that person is excepted from disqualification by virtue of the provisions of sub-article (1), during which that person is and has continuously been undergoing penal servitude, imprisonment or detention in legal custody shall not exceed in the aggregate the amount of €3,000 or the total amount payable by way of such pension or all such pensions for a period of one year, whichever is the lesser amount.

(3) Subject to sub-article (1), section 249 shall not operate so as to disqualify a person undergoing a period of penal servitude, imprisonment or detention in legal custody -

(a) for receiving disablement benefit by way of gratuity, death benefit by way of orphan's pension, widower's gratuity or funeral grant,

(b) for receiving injury benefit, disablement benefit or death benefit (including any increase thereof), if -

(i) the detention is in respect of his or her being charged with a criminal offence, and

(ii) the charge is subsequently withdrawn or he or she is acquitted of the offence, and

(iii) in the case of injury benefit or disablement benefit, immediately before the detention he or she was entitled to the said benefit or would, but for sections 74(2) or 75(3) have been so entitled,

(c) for receiving injury benefit, disablement benefit or death benefit (including any increase thereof) if, in a case of imprisonment, the imprisonment is undergone as the alternative to payment of a fine.

(4) Subject to sub-article (1), section 249 shall not operate so as to prohibit payment of an increase in respect of a qualified adult under section 76 for any period during which the qualified adult is undergoing detention in legal custody if -

(a) the detention is in respect of his or her being charged with a criminal offence, and

(b) the charge is subsequently withdrawn or he or she is acquitted of the offence.

(5) (a) Subject to paragraph (b) and notwithstanding that a person, by reason of undergoing a period of penal servitude, imprisonment or detention in legal custody is disqualified by virtue of section 249 for receiving injury benefit or disablement pension which includes an increase in respect of a qualified adult or qualified child under section 76, or death benefit which includes an increase in respect of a qualified child under section 81, the increase shall be paid to any person appointed by the Minister to receive and deal with any sums payable on account of such increase for the benefit of the person or persons in respect of whom the increase is payable, and the receipt of any person so appointed shall be a good discharge to the Minister for any sum so paid.

(b) In the case of injury benefit or disablement pension, paragraph (a) shall apply only where the said person is a person detained in an institution for the treatment of mental illness or is a person who was entitled to such benefit or pension immediately before the commencement of any such period, or would, but for sections 74(2) or 75(3) have been so entitled.

Suspension of payment of benefit during penal servitude, imprisonment or detention in legal custody.

17D. (1) Subject to the provisions of articles 17C(1) and (5) and sub-article (2) of this article, the payment to any person of any occupational injuries benefit or increase of that benefit-

(a) which is excepted from the provisions of section 249 by virtue of the provisions of article 17C, or

(b) which is payable otherwise than in respect of a period during which he or she is undergoing penal servitude, imprisonment or detention in legal custody,

shall be suspended while that person, or, in the case of an increase, the person in respect of whom the increase is payable, is undergoing penal servitude, imprisonment or detention in legal custody.

(2) Injury benefit, disablement benefit or death benefit to which sub-article (1) applies may be paid during any such period to any person appointed by the Minister to receive and deal with any sums payable on behalf of the beneficiary on account of that benefit, and the receipt of any person so appointed shall be a good discharge to the Minister and the Social Insurance Fund for any sum so paid.

(3) Where by virtue of sub-article (1) payment of disablement pension or death benefit by way of pension, is suspended for any period, the period of suspension shall not be taken into account in calculating any period under article 15C.”.

Injury benefit or disablement benefit - amendment to disqualifications.

4. The Social Welfare (Occupational Injuries) Regulations 1967 ( S.I. No. 77 of 1967 ) are amended -

(a) in article 15 (as amended by article 7 of the Social Welfare (Amendment of Miscellaneous Social Insurance Provisions) Regulations 1986 ( S.I. No. 81 of 1986 )) by-

(i) substituting for sub-article (1) the following:

“Provisions as to incapacity for work.

15.(1) For the purposes of the Principal Act, a person who would not otherwise be treated as incapable of work as a result of having suffered an occupational accident shall be so treated in respect of any day on which, as a result of that accident he or she satisfies the conditions specified in sub-articles (1A) and (1B).

(1A) A person who is not incapable of work shall, if it is so decided under the Principal Act, be deemed to be incapable of work by reason of some specific disease or bodily or mental disablement for any day when-

(a) he or she is under medical care in respect of such a disease or disablement and it is certified by a registered medical practitioner that by reason of such disease or disablement the person should abstain from work and he or she does not work, or

(b) he or she is a probable source of infection with a disease specified in regulations under the Health Act 1947 (No. 28 of 1947), to be an infectious disease and the person abstains from work in pursuance of a written order or written advice of a registered medical practitioner.

(1B) A person who at the commencement of any day is, or thereafter on that day becomes, incapable of work by reason of some specific disease or bodily or mental disablement and does not work on that day shall be deemed to be so incapable throughout that day.”,

(ii) substituting in sub-article (2) “article 18(6)” for “rule 5 of the Third Schedule”,

(b) by substituting for article 18 (as amended by article 7 of the Social Welfare (Amendment of Miscellaneous Social Insurance Provisions) Regulations 1986 the following:

“Disqualifications for injury benefit or disablement benefit.

18. (1) A person shall be disqualified for receiving injury benefit or disablement benefit (including any increase thereof) for such period not exceeding 9 weeks as may be determined under the provisions of the Principal Act if he or she fails without good cause-

(a) to attend for, or to submit to, medical examination in accordance with sub-article (4),

(b) to submit to such medical treatment for the injury or loss of faculty as a result of which injury benefit or disablement benefit is claimed by or is payable to him or her, as is considered appropriate in his or her case by the registered medical practitioner in charge of the case or by a registered medical practitioner to whose examination the person has submitted in accordance with this article (provided that he or she shall not be disqualified for receiving injury benefit or disablement benefit for refusal to undergo a surgical operation not being one of a minor character).

(2) A person shall be disqualified for receiving injury benefit or an increase of disablement benefit by way of incapacity supplement for such period not exceeding 9 weeks as may be determined under the Act if he or she fails without good cause-

(a) to comply with any instructions relating to his or her incapacity issued by a registered medical practitioner attending on him or her or whom he or she attended for medical or other examination,

(b) to refrain from behaviour which is likely to hinder his or her recovery,

(c) to see an officer of the Minister and to answer any reasonable enquiries by any such officer relating to his or her claim.

(3) In any case to which sub-article (1) or sub-article (2) applies, proceedings on the claim for or the payment of injury benefit, disablement benefit, or an increase of disablement benefit by way of incapacity supplement, as the case may be, may be suspended for such period as may be determined under the provisions of the Principal Act.

(4) (a) An officer of the Minister may, on giving not less than 7 days notice in writing, require any person who claims or is entitled to injury benefit or disablement benefit to submit himself or herself to medical examination at such time and place as may be specified in the notice.

(b) Notice of the time and place of the examination referred to in paragraph (a), where such examination is of a person claiming or entitled to injury benefit or an increase of disablement benefit in respect of incapacity for work, shall also be sent to the registered medical practitioner in attendance on the person required to submit to such examination.

(c) Any reasonable and necessary travelling and other expenses (including, in the case of a person claiming or entitled to disablement benefit or an increase thereof, compensation for loss of remunerative time) incurred by a person in attending for, or submitting to, examination under paragraph (a) shall be paid by the Minister, who shall determine in any particular case what is a reasonable and necessary amount of expenses.

(5) A person may, with the prior written permission of an officer of the Minister and for a specified period of time undertake -

(a) work which is part-time and by way of rehabilitation or occupational therapy,

(b) where the person has become incapable of following his or her usual occupation, a course of training with a view to fitting himself or herself to take up some other occupation.

(6) A person, claiming or in receipt of injury benefit, may engage in the following limited work without prior written permission or specified period of time-

(a) light work for which no remuneration is or would normally be payable,

(b) work undertaken primarily as a part of his or her treatment while he or she is a patient in, or of, a hospital, sanatorium, or other similar institution and his or her weekly earnings in respect of that work do not exceed €50,

(c) work under a scheme which is, in the opinion of the Minister, charitable in character and purpose and his or her weekly earnings in respect of that work do not exceed €50.

(7) A person claiming or in receipt of an increase of disablement pension by way of incapacity supplement shall do no work unless it be work in respect of which his or her earnings do not, on the average, exceed €33 a week.”, and

Reporting of accidents by employers.

5. The Social Welfare (Claims and Payments) (Amendment) Regulations 1967 ( S.I. No. 85 of 1967 ) are amended by substituting for article 12(4) the following:

“(4) Any person who fails to comply with the provisions of this article shall be guilty of an offence.”.

Late claims - consequential medical care amendment.

6. The Social Welfare (Occupational Injuries) (Medical Care) Regulations 1967 ( S.I. No. 92 of 1967 ) are amended by the deletion of article 3.

Individual proof-consequential amendments.

7. The Social Welfare (Occupational Injuries) (Prescribed Diseases) Regulations 1983 ( S.I. No. 392 of 1983 ) are amended-

(a) in article 6(2) (as amended by article 5 of the Social Welfare (Occupational Injuries) (Prescribed Diseases) (Amendment) Regulations 1985 (S.I. No. 102 of 85)) by substituting for sub-paragraph (2)(b) the following:

“(i) in respect of tuberculosis, the date on which under the provisions of this Part he or she is treated as having developed the disease is not less than 6 weeks after the date on which he or she was first employed in any occupation-

(I) set against the disease in column (2) of paragraph B.8 of Part 1 of Schedule 5, or

(II) established under article 4A (inserted by article 3 of the Social Welfare (Occupational Injuries) (Prescribed Diseases) (Amendment) Regulations 2005 ( S.I. No. 183 of 2005 )), the nature of which has resulted in the development of tuberculosis,

and not more than 2 years after the date on which he or she was last so employed in insurable (occupational injuries) employment;

(ii) in respect of pneumoconiosis, he or she has been employed in any occupation -

(I) set out in Part 2(A) of Schedule 5, or

(II) established under article 4A, the nature of which has resulted in the development of pneumoconiosis,

for a period or periods amounting in the aggregate to not less than 2 years in employment which was either insurable (occupational injuries) employment, or would have been insurable (occupational injuries) employment if it had taken place on or after 1 May 1967.”.

(b) in article 20 (as amended by article 7 of Social Welfare (Occupational Injuries) (Prescribed Diseases) (Amendment) Regulations 1985 ( S.I. No. 102 of 1985 )) by deleting “, vibration induced white finger”.

(d) by substituting for article 23(1) the following:

“23. (1) Subject to sub-articles (2) and (3) disablement benefit shall not be payable in respect of occupational asthma where the claim is made later than

10 years after the date on which the insured person, in respect of whom the claim was made ceased to be employed in any occupation -

(a) prescribed in relation to occupational asthma or

(b) established under article 4A (inserted by article 3 of the Social Welfare (Occupational Injuries) (Prescribed Diseases) (Amendment) Regulations 2005 ( S.I. No. 183 of 2005 )), the nature of which has resulted in the development of occupational asthma.”.

LS		GIVEN under the Official Seal of the Minister for Social and Family Affairs this 11^th day of December 2006.
		SÉAMUS BRENNAN
		Minister for Social and Family Affairs

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These regulations amend the regulations which govern the Occupational Injury Benefit Scheme, in advance of consolidation of Occupational Injury Benefit Regulations dating from 1967.

Article 3 contains a number of amendments to the Social Welfare (Claims and Payments) Regulations 1952 (S.I. 374 of 1952), including provision for:

• prescribing a 3 month time limit for making a claim to Death Benefit commencing on the date of death of the insured person, and a 6 week time limit in the case of Medical Care with effect from the commencement of such care,

• the nomination of another person to receive payment of benefit on behalf of a claimant or beneficiary subject to the consent of the Minister. This consent may be withdrawn by the Minister in circumstances deemed appropriate by him or her,

• a book of payable orders being furnished to the claimant on production of evidence as to the claimant's identity but such book of payable orders will continue to be the property of the Minister. This book must be returned at the request of an officer of the Minister to such person as maybe directed,

• any right to benefit being extinguished after 6 months if the payment is not encashed within this period. A Deciding Officer or an Appeals Officer may extend this period where they deem it appropriate to do so,

• the continuation of payment of certain benefits while the claimant is absent from the State,

• exception from disqualification where a person is detained in legal custody, and

• the circumstances in which payment of benefit is suspended during detention in legal custody.

Article 4 provides a number of amendments to the Social Welfare (Occupational Injuries) Regulations 1967 ( S.I. No. 77 of 1967 ) including provision for :

• outlining the conditions under which a person is deemed to be incapable of work,

• disqualification of Injury Benefit or an increase of Disablement Benefit by way of Incapacity Supplement for a period not exceeding 9 weeks if the person fails to:

(a) comply with instructions relating to their incapacity issued by a medical practitioner on attendance for medical or other examination without good cause,

(b) refrain from behaviour which is likely to hinder his or her recovery, or

• the suspension of Injury Benefit, Disablement or an increase of Disablement by way of Incapacity Supplement in certain circumstances, and

• the circumstances whereby a person may undertake either employment of a rehabilitative nature or employment which is subject to certain weekly earnings limits.

Article 5 amends the Social Welfare (Claims and Payments) (Amendment) Regulations 1967 ( S.I. No. 85 of 1967 ) to provide that an employer who fails to report the details of an occupational accident to an officer of the minister shall be guilty of an offence. It also removes the reference to an obsolete fine amount.

Article 6 provides for the abolition of article 3 in the Social Welfare (Occupational Injuries) (Medical Care) (Regulations) 1967 regarding a duplicate provision relating to late claims of Medical Care.

Article 7 provides for the imposition of time limited constraints when making a claim under the Occupational Injuries Benefit scheme in respect of certain prescribed diseases contracted from prescribed occupations or established under an “Individual Proof” basis.