Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR 79/2/378

Date: 24 JUNE 1998

SUPERANNUATION ACT 1972

THE LOCAL GOVERNMENT (DISCRETIONARY PAYMENTS) REGULATIONS 1996 (“the 1996 regulations”)

1. I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted on behalf of Mrs L XXX under regulation 45(6) of the 1996 regulations against the decision of the XXX (“the XXX”) not to consider her entitled to payment of an annual injury allowance under regulation 34 of the 1996 regulations.

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 14 October and 4 December 1996, 19 February and 14 March, 22 May and 2 September, 18 September and 30 October 1997; to the XXX’s letters of 3 December 1996, 8 April and 3 June 1997; and to all the copy correspondence enclosed with those letters.

3. The question for determination is whether Mrs XXX is entitled to an injury allowance under regulation 34 of the 1996 regulations.

4. From the evidence submitted the following facts have been established:

(a) Mrs XXX is aged 48;

(b) she was employed by the XXX from 30 July 1984 as a Key to Disc Machine Operator;

(c) Mrs XXX was diagnosed by Mr XXX, Consultant Trauma and Orthopaedic Surgeon, in a letter to Dr XXX, her GP, on 15 August 1995 as suffering from repetitive strain in her right arm, causing secondary carpal tunnel syndrome;

(d) on 17 June 1996 Dr XXX, Mrs XXX’s GP, signed a certificate of permanent incapacity;

(e) she retired on the grounds of permanent ill-health on 31 July 1996; and

(f) on 14 October 1996 you appealed to the Secretary of State against the XXX’s decision not to consider awarding Mrs XXX an annual injury allowance.

5. You maintain that Mrs XXX was required to input very large amounts of data into a computer system using a keypad operated by her right hand. You claim that Mrs XXX is suffering from a severe repetitive strain injury which resulted in her permanent ill-health retirement. You maintain that this view is supported by Mrs XXX’s medical advisers. The XXX maintain that Mrs XXX’s medical condition could not clearly be attributed to anything she was required to do in carrying out her work with the organisation. Other factors could have caused her problem and it was unlikely that she contracted her condition as a result of carrying out her work with XXX. The XXX also state that although they gave Mrs XXX early retirement on ill-health grounds following a certificate from her GP, they are not convinced an independent medical opinion would have reached the same conclusion.

6. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mrs XXX’s rights under the regulations, as fell to be decided in the first instance by XXX. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

7. The relevant provisions of the 1996 regulations which deal with the question of awarding an annual injury allowance are as follows:

“Regulation 34-(1) if-

(a) as a result of anything he was required to do in carrying out his work a person employed in a relevant employment -

(a) sustains an injury; or

(b) contracts a disease; and

(b) he ceases to be employed in that or any other relevant employment as a result of an incapacity which is likely to be permanent and was caused by the injury or disease,

he shall be entitled to an annual allowance not exceeding 85 percent of his annual rate of remuneration in respect of the employment when he ceased to be employed.”

8. To assist the Secretary of State in reaching a conclusion, Mrs XXX underwent an independent medical examination on 28 November 1997 by Mr XXX, Consultant Orthopaedic Surgeon.

9. In his report, copies of which were sent to both the parties, Mr XXX reviewed Mrs XXX’s medical records and the results of his examination, he found that taking all the facts into consideration including the normal clinical and electrophysiological studies, Mrs XXX is capable of working on a full-time basis. He certified that she was not suffering from a physical condition which would have rendered her incapable of carrying out the duties in her job description. He concluded that on the balance of probability, there was no evidence to support awarding an injury allowance at the time of cessation of Mrs XXX’s employment under the regulations.

10. Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that Mrs XXX did not cease her employment with XXX because of an incapacity which was caused by an injury as a result of anything she was required to do in carrying out her work in the sense required by regulation 34 of the 1996 regulations. He therefore dismisses the appeal.

11. A copy of this letter has been sent to the XXX.

12. The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.

13. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).