I move amendment No. 1:
In subsection (1), page 3, lines 36 and 37, to substitute "injury" for "accident".
Committee on Finance. - Social Welfare (Occupational Injuries) Bill, 1965: Committee Stage.
SECTION 1.
There are a group of amendments in the name of Deputy Tully and I understand he accepts that they may be taken together.
Yes. We can take them as read. There are 86 of them. In regard to this amendment, the word "accident" occurs 86 times in the Bill. It is neither an appropriate nor an accurate definition, and is not necessary. If we substitute the word "injury" for "accident", we would define exactly what is needed. As I pointed out on Second Stage, it is not right to suggest that all injuries that happen to men or women in the course of their work are accidents. Very often they are not accidents. I instanced the case of the conductor who is travelling in a bus with a rowdy crowd on a Saturday night and somebody hits him. That is not an accident, but according to the code here, it is. Take the farm worker who is milking a cow and the cow kicks him. That is not an accident; I am quite sure the cow intended to kick him. The occupational diseases which are covered in the Bill are not accidents. There should be a more precise definition. I have suggested one, but perhaps the Minister has a better idea. A number of other countries have already removed the description "accident" from their compensation code. I suggest to the Minister we should do the same in this case. I do not want to prolong the argument because we have already covered this ground fairly well.
This is something that was considered by the Commission, and both the minority and the majority of the Commission were in favour of retaining the present wording. Let me quote what the Commission said in regard to the use of the words "by accident":
The first matter which arose in our consideration of the liability of employers was the meaning of the words "personal injury by accident". These were the words used in the Workmen's Compensation Act of 1897, and they were retained in subsequent legislation, including the Act of 1934 in this country. They have also been retained in the British and Northern Ireland National Insurance (Industrial Injuries) Acts of 1946. Down the years many cases have turned on the legal interpretation of the word "accident" and workmen have failed to get compensation where they were unable to prove to the satisfaction of the Court that their incapacity was due to a personal injury by accident. We noted that in the workers' compensation legislation of Queensland, Australia, the word "accident" had been deleted by an amending Act of 1944, in an attempt to make it easier for injured workmen to establish their claims. That Act substitutes the words "has received an injury" for the words "is injured by accident". It was suggested to us that a similar provision should be adopted here. Having considered the matter fully and realising that the Courts have given, so far as injured workmen are concerned, a wide and generous interpretation of the word "accident", we do not recommend the deletion of the words "by accident" from the Act.
It was considered generally by the Commission that what needed to be provided for was injury arising in the course of employment. That is being done in the Bill and it appears to me to be undesirable to change this wording, the meaning of which has been well established by many court decisions.
As the Minister knows, in the previous workmen's compensation legislation, the question of whether or not the injury was received accidentally could decide the case for or against the applicant. In this case the Minister has deliberately excluded certain defences which could be raised, for instance, whether the man was guilty of misconduct and other such defences. The Workmen's Compensation Commission was not aware that the Minister was going to do that. The case is entirely different and the position now is that there is no reason why we should have this question of accident brought in. It does not have to be an accident to entitle a man to compensation.
I have the greatest respect for the Commission which investigated this code and particularly for the people who brought in the minority report because they felt they were fighting what was regarded as a losing battle all the way. The Minister has not accepted every word which they suggested should be included in the Bill and surely the House should have a say in the final drafting of the Bill? If it is reasonable to replace the word "accident" by a more suitable word, the case can be made that the Commission did not recommend the word "accident". The Minister should agree to have another look at this matter. It is a matter that is likely to cause a certain amount of trouble in the courts in the years to come. The Minister is taking this matter completely out of court. If it can be proved that the State can refute an accident in a workman's compensation claim, we do not know where it will go but it can be that it would be brought to the High Court or the Supreme Court. The Minister should realise that the word "accident" is now a misnomer.
I do not think it is correct to say that. The Commission assumed that there were to be these modifications and still recommended that the same terminology be used. The main difficulty about putting in the word "injury" instead of the word "accident" is in case of disease. If we put in the word "injury" instead of the word "accident", there would be the possibility of claims being brought on the basis of accidents in the case of a disease contracted in the ordinary way, whether in the course of employment or not.
I cannot follow the Minister's reasoning in this. If "injury" is not a correct description of an industrial disease, then how would "accident" be a correct description of it?
If the Deputy will look at section 23, subsection (1) of the Bill, he will see that it says:
Subject to the provisions of this section, a person who is insured under the Acts against personal injury caused by accident arising out of and in the course of his employment shall be insured also against any prescribed disease and against any prescribed personal injury not so caused, being a disease or injury due to the nature of that employment and developed on or after the appointed day.
That only makes confusion more confounded.
It covers the Deputy's point but the trouble is that if the word "accident" is replaced by the word "injury", it would bring in any disease.
When a farm or horticultural worker is treating certain types of vegetation, the need arises to use some type of chemical. The worker finds that the chemical may spill on to his hands or face. That is a normal happening and on the container of the chemical there is a written notice that it is not harmful. The man may subsequently develop a disease such as dermatitis. Subsection (1) of section 23 does not cover that. In the course of his employment, he has to do this particular work and the chemical gets on his hands. In such cases, surely the question of injury to his flesh and body is not covered by the word "accident". From the start, "accident" is something which is entirely different from what we are trying to cover in the Bill.
The case the Deputy mentions is covered in the Bill.
(Cavan): Am I correct in thinking that section 23 covers diseases and that the other sections cover accidents?
Yes.
(Cavan): And dermatitis is an industrial disease?
Yes.
(Cavan): The other sections deal with accidents as heretofore. While I do not think there is much point in Deputy Tully's arguments, I cannot agree with the Minister that if we were to accept the word “injury” instead of the word “accident”, we would bring in all sorts of diseases which are not intended to be covered. There is clearly a marked distinction between the word “accident” and the word “injury”.
Section 23 refers to "disease or injury." If the word is changed, it will take in in each case how the injury is caused, whether by a blow or some other means.
If the Deputy looks at section 23, subsection (8), he will find that it envisages that nothing shall affect the right of any person to benefit in respect of a disease which is a personal injury within the meaning of the Act, except if at the time of the accident, he is suffering from a disease which is a prescribed disease by virtue of his occupation. If we eliminate the word "accident", it could be maintained that all diseases, irrespective of whether they could be attributed to the employment, could be the subject of claims for benefit.
I know that certain diseases have been prescribed, but surely the Minister could take the opportunity now, in view of the fact that everything is being covered, to accept a disease contracted in employment as an occupational disease.
That is what subsection (8) of section 23 does. It says:
Nothing in this section shall affect the right of any person to benefit in respect of a disease which is a personal injury by accident within the meaning of this Act, except that a person shall not be entitled to benefit in respect of a disease as being an injury by accident arising out of and in the course of any employment if at the time of the accident the disease is in relation to him a prescribed disease by virtue of the occupation in which he is engaged in that employment.
Certain wellknown diseases, such as dematitis, are prescribed; but if they are not prescribed, they do not apply. I am particularly anxious that this should be covered because there are a number of cases under the existing law where the man's claim has fallen down because the doctors were not prepared to agree it was one of the diseases the Minister mentioned. They knew it was a disease caused in the man's employment because he was using certain chemicals but they would not define it because it was something new.
That would be a disease caused by accident.
The man knew he was going to get the stuff on his hands. It was not an accident.
It would be regarded as a disease caused by accident.
If it is not included in the list, he is out.
No, he would not be out.
(Cavan): As I understand subsection (8), it means that, if he can come in under the industrial diseases section, he is not entitled to come in under the accident section.
That is right.
Amendment, by leave, withdrawn.
Amendments Nos. 2 to 5, inclusive, not moved.
Question proposed: "That section 1 stand part of the Bill."
(Cavan): I should like the Minister to clarify the position regarding the word “apprentice”. The section says:
"apprentice" means a person undergoing full-time training for any trade, business, profession, office, employment or vocation.
I take it apprentices will be subject to industrial insurance under this Bill?
Yes.
(Cavan): What is the position, say, of a solicitor's apprentice who does part-time university instruction and serves his time in his master's office?
He would be covered.
(Cavan): Does that mean that from now on a solicitor's apprentice will be subject to insurance and that his master will have to pay a stamp of 2/1d in respect of him?
The same applies to an accountant.
That is right.
(Cavan): These people are not remunerated.
They actually pay a fee.
(Cavan): Would the Minister look into that? If necessary, we can put down an amendment on Report Stage.
I shall.
The Minister will have to distinguish between an apprentice in receipt of remuneration and an apprentice actually paying a fee for the privilege of becoming an apprentice. I understand that is applicable to the legal profession and the accountancy profession. I am not certain about a teacher.
According to the definition here, "profession" is included. It says a person undergoing full-time training for any trade, business, profession, office, employment or vocation.
That means an apprentice is covered.
(Cavan): Is it the Minister's intention to bring within the scope of this Bill what I would call professional apprentices who are not remunerated but who, on the other hand, pay a fee?
They are not remunerated, but if they receive an injury which disabled them from earning their living, surely they are entitled to be covered?
Who will pay the contribution?
The employer.
Therefore, after the passing of this Bill all apprentices, whether they are in receipt of remuneration or pay a fee for the privilege of being apprentices, will have to be insured and their masters will have to be pay the insurance?
Yes. Even though the apprentice might not be actually earning money at the time, still he is developing his capacity for earning money in future life.
(Cavan): The Minister could carry that to this extreme. He might as well say that any undergraduate at a university could be brought within that. It is the same thing.
He has no master.
(Cavan): He is attending full-time instruction the same as a professional apprentice.
But in a different way. His parents are sending him there. If they were really wise, they would insure him.
(Cavan): At any rate, we have cleared up the position now.
It is the same position as the social insurance scheme at present.
Does this affect his insurability under social service welfare insurance? If he is made insurable, will he be made insurable under the ordinary social welfare insurance?
That has always been the position.
No.
The Social Welfare Act, 1952, says:
Employment in the State under any contract of service or apprenticeship written or oral, whether expressed or implied, and whether the employed person is paid by the employer or some other person, and whether under one or more employers, and whether paid by time or by the piece or partly by time and partly by the piece, or otherwise, or without any money payment.
If that is the law at the moment, why is it not being enforced?
The trouble about that is that the apprentice not in receipt of any pay will be required to pay a share of the stamp.
That would be the position. Maybe there is some enforcement needed; I do not know.
There is not an exclusion somewhere we know nothing about?
(Cavan): Will the Minister have the position examined?
That is the intention— that these people should be covered.
How could they be covered under the 1952 Act if they are not in receipt of any remuneration?
If they fall ill, they are entitled to it.
They are entitled to disability benefit if they have the requisite number of contributions. They are acquiring the contributions which will eventually entitle them to benefit.
They will not have become professional?
No. I remember paying them myself when I know I had never any prospect of benefiting. I was not an apprentice: I was a graduate.
But you were in receipt of remuneration?
Yes.
That is a different thing.
(Cavan): It is a bit incongruous to expect apprentices who are not in receipt of remuneration to pay as much as 5/- or 6/- a week for a couple of years when the chances of being able to reap any benefit from this scheme are extremely remote.
This provision has been there since 1911.
(Cavan): I do not care how long it has been there: it needs looking into.
It is the principle of social insurance that the risk should be spread. In the event of a person suffering an injury or disease which would entitle him to workmen's compensation, he is surely entitled to be covered.
Yes, that is a good idea, but I do not think the other thing stands up at all—the regulation laid down under the 1952 Act.
Yes, it does.
(Cavan): These are people who serve their time, who pay a fee of some hundreds of pounds for the benefit of being apprentices for four or five years at the most. Then, the vast majority of them become qualified and become self-employed. Why they should be called upon during those few years to pay 5/- or 6/- a week, for the hope of receiving nothing, is beyond me.
I do not know that they necessarily become self-employed when they qualify.
(Cavan): The vast majority of them do.
Possibly, some hundreds, in the case of solicitors.
We are probably quoting a very bad example, but the principle is there.
I think the principle is justifiable.
Question put and agreed to.
SECTION 2.
Amendment No. 6 not moved.
With amendment No. 7, perhaps amendments Nos. 10 and 24 could be discussed?
I move amendment No. 7:
In subsection (1), page 5, line 48, to substitute "or" for "and".
This again, concerns the use of the word "or" instead of "and" as is common in other systems. The scope here is widened unless hardship occurs. That is why I am suggesting that this should be done.
This, again, was something that was not considered necessary by the Commission, provided we made the modifications we have made and all of those have been incorporated in the Bill. There appears, then, to be no reason why "and" should be replaced by "or".
Are all the things recommended by the minority report included in the Bill? Is that what the Minister said?
Yes, all the modifications of the meaning "arising out of and in the course of employment." They are incorporated in section 4 of the Bill.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
Perhaps we could take amendment No. 9 with amendment No. 8?
I move amendment No. 8:
In subsection (2), page 6, line 7, after "Act" to insert "(inserted in the Schedule to this Act)".
It is a drafting amendment. I believe it will eliminate the reference to other Acts if it is accepted.
This is an amendment that I do not really understand. There is no Schedule to this measure. I think Deputy Tully must be under a misapprehension here. I cannot see what meaning this amendment would have. The Principal Act is the Social Welfare Act, 1952.
A Schedule was proposed to the Act, which was ruled out of order. I am sorry.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Section 3 agreed to.
SECTION 4.
Amendment No. 10 not moved.
I move amendment No. 11:
In subsection (1), page 7, line 49, to delete "injured" and substitute "insured".
This is just to correct a misprint. It is to delete "injured" and to substitute "insured". "Insured" was the word intended and "injured" was printed instead.
Amendment agreed to.
Amendments No. 12 to 19, inclusive, not moved.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 20 not moved.
Question proposed: "That section 5 stand part of the Bill."
(Cavan): I oppose this section for the purpose of getting the Minister to clarify it as I am not too clear about it. Does it mean that the Minister may declare legal employment which would otherwise be illegal and, because it was illegal, would not come within the provisions of this Bill?
There is a provision similar to this in section 5 (3) of the Workmen's Compensation Act, 1934. That section enables a court to exercise discretion in favour of the workman. This provision gives similar power to the Minister in this case. The intention is that the exercise of the power would be only for the purposes of the Social Welfare Acts, to enable benefit to be paid to the workman or his dependant but would have no application beyond this purpose.
(Cavan): Could the Minister not give us an example of where it might not be payable under this provision?
Suppose somebody was working a double shift, for instance, or working overtime, without a permit for overtime having been granted, or suppose a person under age was working more than the statutory hours laid down—is that the sort of thing?
I have an example here of a boy aged 13 who was injured while leading a horse, towing a barge, at 3 a.m. The employment of a boy of that age at that hour was forbidden by law under the Employment of Children Act, 1903. Because that was illegal, that boy could be deprived of the benefit of workmen's compensation. I have in mind a case like that where the employment would be illegal by virtue of some other legislation.
(Cavan): In that case, I withdraw my opposition.
Question put and agreed to.
SECTION 6.
I move amendment No. 21:
In page 9, line 34, to substitute "subject to regulations" for "not"
The insertion of this amendment would widen the scope of the Bill in favour of the workers. The section says:
Occupational injuries benefit shall not be payable in respect of an accident happening while the insured person is outside the State.
We believe that if the Minister adds the words "subject to regulations", he can cover certain workers who would be unable to recover compensation other than for injuries incurred in the State. The section as drafted would preclude them. The insertion of the amendment would leave the matter open so that a decision can be given by the Minister as to whether or not workers are, in fact, entitled to benefit.
(Cavan): I should like to support the amendment strongly. There is a great deal in it. Coming from a Border county, I know that many farmers in Monaghan, Cavan and the other Border counties have land in Fermanagh or some other northern county. If I understand the section correctly, it means that if a Monaghan or Cavan farmer sends a workman who is practically full-time employed in the Republic to do some work in the North and he meets with an accident there, the workman is precluded from receiving compensation. There are areas in Monaghan and Cavan where practically all the farmers have turbary rights or turf banks in Fermanagh. For as long as I can remember and for long before that they have been going to Fermanagh to cut and save turf and to bring it home. Quite a number of farmers still do that. As I see the section, if a workman employed by these farmers receives serious injury in the course of turf operations in Fermanagh, or on the way home, if a horse bolted in Fermanagh or a tractor were involved in an accident whereby the workman received serious injuries, the section would preclude him absolutely from getting benefit. Deputy Tully's amendment would enable the Minister to deal with the matter.
Take, for instance, lorry drivers.
What Deputy Tully is forgetting is that this Bill is amending the Social Welfare Act, 1952, and we have these powers under that Act.
No.
Section 12 of the Act of 1952, for instance, gives me these powers. I am satisfied that I have power to make these regulations under the Act of 1952 and that the amendment is not necessary. Sections 12, 13, and 64 of the 1952 Act give me these powers. Section 64 in particular deals with the aspect Deputy Fitzpatrick has mentioned. We will have to negotiate reciprocal agreements with the Governments of Great Britain and Northern Ireland in that respect.
The Minister is completely missing the point. The section is very definite. It says:
Occupational injuries benefit shall not be payable in respect of an accident happening while the insured person is outside the State.
I do not know how the Minister can talk about this matter being covered by other Acts and about the fact that he already has the necessary power. He let the cat out of the bag when he talked about reciprocal agreements. We are not talking about reciprocal agreements. We are talking about somebody who is employed in the State and who in the course of his employment must go outside the State and returns to the State.
Yes, he will be covered.
In this section the Minister lays down specifically that occupational injuries benefit cannot be payable. Take the case of lorry drivers who go to the North. They are a typical example. Deputy Fitzpatrick has mentioned farmers in Cavan, Monaghan and Donegal, on the Border. The same can be said of Louth. People are constantly going across the Border on their employers' business. This section rules them out completely.
No. Section 13 of the 1952 Act provides general power to modify the Act in its application to persons who have been outside the State while insured under the Act and regulations already made under this provision permit the continuance of insurance in relation to persons, ordinarily resident here, temporarily employed outside the State in the service of an Irish employer. It is intended that such persons shall be eligible to receive benefits under the scheme though there may be a limitation if they would be entitled to benefit from the country in which they are employed. I have power under section 13 of the 1952 Act to make regulations for the type of case that has been referred to and I intend to do it. It is not necessary to give me power specifically in this Bill because this Bill is simply amending the 1952 Act.
I should like to accept the Minister's statement but I am afraid I could not possibly, in view of the specific statement in the Bill.
The specific statement is also contained in the 1952 Act because it is not intended generally to cover people except while they are employed here but in order to cover the type of case that has been specifically referred to here these regulations under section 13 of the 1952 Act have been made in regard to social insurance and will be made in regard to this aspect of it.
I am sorry. If that is so, I do not think this section should have been included, good, bad or indifferent.
It has to be.
I could not accept the statement.
It has to be included and is included in the 1952 Act because it would not be desirable to provide cover, generally speaking, for people while they are outside the State, but if they are ordinarily resident here and are employed by an Irish firm or an Irish person and their work involves their going outside the State, then they are covered or will be covered when the regulation is made.
Why not put in "subject to regulations"?
(Cavan): I am not happy about this. As Deputy Tully says, the section makes a very definite statement:
Occupational injuries benefit shall not be payable in respect of an accident happening while the insured person is outside the State.
Nothing could be clearer than that and a court might very well hold that that overrides any other provision. I agree that any talk about reciprocal arrangements has nothing at all to do with this.
There is another matter to which I should like to draw the Minister's attention. Under the workmen's compensation code, if a farmer in Cavan lends his employee to his neighbour across the Border for threshing operations or any other agricultural work away from the farm in the Republic, that employee is deemed to be still the employee of the farmer in the Republic. It may well be held that this section would exclude workers outside the State, and the Minister might not have power to make regulations.
I can make these regulations. I have made them before.
(Cavan): This is a very wide section. Does this power to make regulations mean that the Minister can make regulations overriding each and every section of the Bill?
No. There are some obvious cases where that cannot be done.
(Cavan): That seems to be the Minister's contention. This is a hard and fast section. If the Minister has power to ride rough-shod over every section in the Bill, it would appear that we are wasting our time.
I have power under section 13 of the 1952 Act which says:
Regulations may modify the provisions of this Act in their application in the case of persons who are or have been outside the State while insured under this Act.
That is a very specific power. It would be objectionable to change the section as Deputy Tully suggests, to read: "Occupational injuries benefit shall subject to regulations be payable in respect of an accident happening while the insured person is outside the State."
That is what I am asking to have done. If what the Minister has stated is the exact position, then I see no reason why he should not be prepared to accept the amendment. If he is not prepared to accept it, we must assume that he wants to refuse to operate this section. I do not mind what is in the previous Acts. This is the Bill we are discussing, and this is the Bill that will be quoted at us so long as we are in this House.
(Cavan): What we want to ensure is that an employee of an Irish employer while working for that employer outside the State will, as of right, be entitled to the benefits of this Bill. If the Minister has his way, he will be entitled to them only subject to the Minister's goodwill, so to speak. I do not think there is anything to be lost—there is a whole lot to be gained—by accepting this amendment.
In my opinion, it is preferable the way it is; in other words, the same as it is in the Principal Act of 1952. There is no divergence of opinion about that. These regulations can be made and I intend to make them. It is obviously more desirable that they should be made in the same way as they are made under the 1952 Act. Before you put the question, a Leas-Cheann Comhairle, in my opinion, putting in this amendment is purely putting in some unnecessary words. I do not like putting them in but they will not adversely affect my position. It just means tautology in the Bill and unnecessary verbiage.
The Minister is accepting it?
I will let it in, but I would prefer not to.
Amendment agreed to.
Amendment No. 22 not moved.
Section 6, as amended, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill".
(Cavan): I should like to raise one little point on this section which says:
Section 14 of the Principal Act is hereby amended by the addition at the end of subsection (1) thereof of the following paragraph:
"(h) occupational injuries benefit, which shall comprise injury benefit, disablement and death benefit.".
Section 22 of this Bill also provides in certain cases for funeral grants. Does the Minister consider it necessary to include funeral grants in this definition? They are payable under section 22.
This is somewhat different in that it is a grant of funeral expenses. These are provided for periodic payment of benefits.
(Cavan): It is just as much a benefit as a death benefit.
It would not be appropriate in the section of the Principal Act which we are amending and which deals with disability benefits, unemployment benefits, married benefits, maternity benefits, widows' pensions, orphans' allowances, old age pensions. Now we are adding occupational benefits.
(Cavan): I am raising the point to suggest that the Minister and his advisers might have a look at it.
These funeral expenses are part of the death benefit. Is that not right? Death benefit is included, in fact, by way of a grant of £50 in respect of funeral expenses. It is the same thing.
(Cavan): I think that is right.
Question put and agreed to.
SECTION 8.
Amendments Nos. 23 and 24 not moved.
(Cavan): I move amendment No. 25:
In subsection (1), page 9, to delete lines 49 to 53.
This is an amendment to delete the provision that benefits shall not be payable in respect of the first three days unless the man is out of work for 12 days or more. I must say I have never understood this. In the workmen's compensation code, it was four days. I have never agreed with that and I put down this amendment for the purpose of affording an opportunity for a discussion on the provision. If a man is out of work for three days, that is more than half a week now, and it could mean a considerable amount of money, comparatively speaking. I do not see why this should be followed for the sake of following something that has been there for many years. I suppose the argument is that it is to discourage the small pinpricks of small claims but, on the other hand, if a man who is out of work is able to go back to work on the fourth day, he may say: "I will lose three days anyway," and this may encourage him to be dishonest and stay away from work for 12 days to qualify for the benefit. This is one of the things that are carried from Act to Act.
The original arrangement whereby no payment was made for the first three days was included because of the fact that in the disability benefit section of the Minister's Department, it was felt that a man who had a few drinks on Saturday or Sunday night might be inclined not to come to work on Monday. It was felt that if he were paid for the first three days, he might possibly be off every Monday. That does not apply in this case, and I do not agree that there was any validity in the original argument.
If a man meets with an accident and is injured, surely it is not suggested he deliberately stays out for three or four days? This sort of thing, as Deputy Fitzpatrick so rightly pointed out, discourages a man who does not want to lie up after receiving an injury. Instead of going back to work in the first two or three days when he might feel all right, under the present system if he stays out for a fortnight, he will be paid but what this provision says to such a man is: "If you are fool enough to return after three days, it will be at your own expense; you will not get paid". The principle is wrong. The other angle is that a man with a family cannot afford to have three days pay, which might amount to between £4 and £6, deducted from his weekly income because it involves not only himself but his family.
I support Deputies Fitzpatrick and Tully on this question and should like to raise another point as well. Some workers are not inclined to stay away from work because of the prospect of losing three days pay. At times it gives rise to difficulties in certification. It is suggested that it is in the workers' interests to have certificates. Workers may say they will get nothing in respect of the first couple of days of illness and go back to work, later to find themselves in difficulties about certificates.
Deputy Fitzpatrick gave the real reason— that the idea is to discourage trivial claims. I think it is a valid reason. Three days is not a long period but if the incapacity proves to be of any considerable duration, in this provision we are proposing to go back and pay for the first three days also. That is not done in the case of other social welfare benefits. The cost of doing what is suggested here would be considerable and in view of the fact that this is being put into the social welfare code, that these benefits are being provided under the Social Welfare Acts, I think the extra provision whereby the three days will be paid for is as good as we can be expected to do. They are the same conditions as apply in Great Britain and Northern Ireland.
(Cavan): The Minister's statement that the cost would be considerable is the best possible argument for saying it should be done. It means workmen will lose a considerable amount if it is not. The Minister says he will go back and pay them if they are out for 12 days. A roughly similar provision was included in the old workmen's compensation code which we are now replacing. If a man is genuinely ill or is injured for three days and, as Deputy Gibbons said, his doctor advises him to stay out for two or three days and he will be all right, and if in spite of that, the man hobbles back to work, he may be out for weeks and weeks instead of three days. This is a matter in respect of which we could depart somewhat from what has been done in the past and from what is being done in Great Britain and Northern Ireland. There is no reason why we should tie ourselves hand and foot, slavishly——
We are not tying ourselves.
(Cavan):—to Britain or to what is being done across the water.
My trade union some time ago succeeded in making an arrangement with a number of employers, including local authorities, to have payments made in respect of sickness. If the employees fell sick, they were paid. An extraordinary thing was that this, instead of increasing the amount of illness, in fact had the effect of decreasing the duration of illness, because if somebody became ill, he stayed out and then, as Deputy Gibbons pointed out, was not exposing himself to the possibility of long periods of illness as a result of not staying out in the first instance. That being so, the matter should be dealt with in this way. At present a number of employers pay employees in respect of the first three days because they realise, being closer to the people, perhaps, than we are, that a man cannot exist without payment for three days. We are in fact tempting Providence by taking the risk of forcing them to go back when they are not fit for work.
There is the problem of a man who may be injured during each of two weeks, one following the other. He may be injured and may return to work after three days and then may be injured again the following week and lose another three days. The number of such cases would not be very great and should get special consideration.
Such cases would be aggregated.
(Cavan): If a man is genuinely off work for a week, he will be paid for the first three days but not for the other three.
Yes.
(Cavan): That is not fair and there is no justification for it. A person is genuinely certified for a week and he honestly goes back to work but he will be penalised because, presumably, he will not get social welfare benefits for the first three days. The old argument may stand that if he is off work for only three days, it is only three days and that is that, but here you have him off work for a week and he is conscientious enough to go back at the end of that period to hear his employer say: “Thank you very much: you will get compensation for only three days.”
There are not so many types of employment in which the rate of insurance benefit would be greater than or even approximate to the rates of pay for the employment, to the extent to which receipts of social welfare benefits would be an incentive to stay out. I think I am making a considerable advance on the present disability benefits when I provide for payment for the first three days in respect of illness lasting for two weeks. Without tying myself to what is being done in Britain, I should like to point out that this is as much as is done there at the moment. This does not apply to disability benefit but to injury.
I should like to get one point clear. I can understand aggregation in respect of one injury or in respect of a recurrence of the same injury but my point earlier was in respect of two injuries.
It is aggregated, within 13 weeks.
(Cavan): Arising out of the Minister's statement, does he say that at the present time this does not apply to ordinary disability benefits?
No. They do not get paid for the first three days, no matter how long the period is.
If a man is out for three days, returns to work and it comes against him at a later stage——
It is aggregated. If Deputies accept this advance we are making and propose to tackle other aspects of the code at another time, we shall make progress.
Would it be unfair if I asked how long it is since the last adjustment was made in workmen's compensation?
If they accept this improvement, Deputies might concentrate their energies on bringing other social welfare benefits up to this level.
Amendment, by leave, withdrawn.
Amendment No. 26 not moved.
There is a series of related and cognate amendments, which perhaps the House could discuss together. Amendments Nos. 27, 28, 29, 55 and 56 are related and cognate.
(Cavan): I think there is a slightly different principle involved in amendment No. 29.
Amendments Nos. 27, 28 and 29 seek to increase the rate of injury benefit and Deputy Tully's amendments, Nos. 55 and 56, seek to effect similar increases in benefit. For that reason perhaps the House would take amendments Nos. 27, 28, 29, 55 and 56 together.
I move amendment No. 27:
In subsection (3), page 10, lines 14 and 15, to delete all words after "dependant—" and substitute "for any period during which the beneficiary is between the ages of 17 and 18—£5 1s. 3d.; and for any period during which the beneficiary is under the age of 17—£3 17s. 6d."
I think all the amendments could be taken together but Deputy Fitzpatrick may have a point which he wishes to deal with on amendment No. 29. It gladdened my heart to hear the Minister say that the benefits here were the same as in Northern Ireland and Britain. If the Minister agrees that we should have comparisons, then I am glad to be able to supply him with a number of comparisons. I am seeking to have parity with the Northern Ireland scheme.
Amendment No. 28 is:
In subsection (3), page 10, line 16, to substitute "one hundred and thirty-five shillings" for "one hundred and fifteen shillings".
Amendment No. 55 is:
In subsection (1), page 15, line 36, to delete the words after "payable—" and substitute:—
"£5 1s. 3d. where the beneficiary is between the ages of 17 and 18 and £3 17s. 6d. where the beneficiary is under the age of 17."
Amendment No. 56 is:
In subsection (1), page 15, line 37, to substitute "one hundred and thirty-five" for "one hundred and fifteen".
I think there is nothing at all wrong with the suggestion we are making. In fact, there is a very good reason why there should be at least parity with Northern Ireland because in fact the charges for the services are higher. There is no reason why the Minister should not be able to agree to these amendments. I propose to show him on later amendments that there is substantial difference between what is being offered here and what is being offered in Northern Ireland, for a far higher contribution here. Actually, amendments Nos. 62, 63 and 64 also ask for parity with Northern Ireland. As we have not been asked to take them together, I suppose we can take them separately. We believe that if we are to have parity with other sections of the Northern Ireland regulations, we should also include the amount of money that is being paid.
First of all, I should say that Deputy Tully was not 100 per cent consistent in relating the increases he proposes to the rates payable in Great Britain and Northern Ireland. There are some cases in which the rates proposed in the Bill are higher than those in Northern Ireland.
I did not ask to have those reduced. I never ask anything like that.
Yes, he did not ask to have them reduced. The Deputy was also rather inconsistent in proposing changes here which would cost—it is difficult to estimate them exactly—at a rough estimate £750,000. At the same time, in another amendment, he proposes reducing the contributions which have been assessed in order to provide the amount of money necessary to pay the rates of benefit proposed in the Bill. The only other source, of course, from which this money could come is the Exchequer and it is the principle of the Bill that the cost should be borne by employers, just as the cost of workmen's compensation is at present borne by employers.
The rates proposed here are the rates recommended by the minority report but they are adjusted for increases in the cost of living here. The rates proposed by the minority of the Commission were, in fact, the rates in force in Great Britain and Northern Ireland. They have been increased there since then to deal with conditions there and I think what I am proposing in the Bill, that is, to adjust these recommendations to compensate for the increase in the cost of living since then, is as much as I could be expected to do.
I think it was obvious from the report of the Commission that both the majority and the minority had roughly the same idea as to the amount that it would be reasonable to ask industry to pay for this cover because the cost of the two schemes that were recommended were roughly the same. Since then, there have been increases in the cost of living and I am proposing to adjust the rates suggested to compensate for that. Deputy Tully wants them raised further and he also wants the rates of contribution reduced. That is entirely unrealistic.
I think the Minister is assuming that the rates of benefit he has produced here and the rates of charges are assessed on the actuarial basis. Did the Minister just simply take the Northern Ireland rates and benefits and say that we will relate those to the cost of living here? Of course, the Government always think the cost of living here is lower than anywhere else and then they start taking off bits here and there to prove that their belief is correct. Do not forget this. In Northern Ireland, where the incidence of injury is very much higher than it is here, the rates of benefit are higher and the rates of contribution are lower. The same thing applies to Britain where there is heavy mining. In fact, mining here is only starting. I see Tynagh has an open-cast so the Minister need not worry too much about the danger which will arise there. The Minister has been trying to have the best of both worlds here. He is charging more and is giving out less. I do not know why he should have adopted this particular line. Since we have heard so much about the Northern Ireland scheme, the least we could do is pay the rates they are paying there.
There are extra cases covered by this scheme which are not covered by the Northern Ireland scheme. The Northern Ireland scheme does not provide medical care. Medical care is being provided under this Bill and it has to be paid for. In addition, disability benefits will be payable with disablement benefits here. It was proposed and passed during the Second Reading that the cost of disability benefit should be payable from the occupational injuries fund. That represents a substantial proportion of the extra cost here and, I think, is an explanation as to why the rate of contribution here has to be somewhat greater. We have the extra cost of medical care as well as the cost of disability benefit.
That is not the only one. There is another reason.
What is the reason? The total cost of the Northern Ireland scheme includes employers, employees and State contribution but there is no State contribution here.
Amendment put and declared lost.
Amendments Nos. 27, 28, 55 and 56 have been disposed of.
(Cavan): I move amendment No. 29:
In subsection (3), page 10, line 16, to add to the end of paragraph (b) the following:
"where the beneficiary's pre-accident weekly rate of earnings was less than £10, or 75 per cent of the beneficiary's pre-accident weekly rate of earnings where the weekly rate of earnings was £10 or more."
The object of this amendment is to seek to relate, to some extent, the amount of disability benefit, or benefit payable for injuries received in an accident, to the wages being earned by the workman at the time of the accident. As the Bill stands at the moment, a workman will be paid 115/- per week whether he is earning £8 or £20. I do not think that is right: there should be a relation between the wages and the compensation. In this amendment I propose that, whether a workman is being paid £10 per week or not, subject to the other provisions of the Bill, he shall be paid compensation at the rate of 115/- per week, but, if his wages were £10 a week or more, he shall be paid 75 per cent of his wages. That is only reasonable. That was the provision in the old workmen's compensation code, admittedly subject to a ceiling, but there is a lot to be said for it. There seems to be even more to be said for it now when the workmen's compensation is being abolished and when the only compensation a workman will be entitled to is that under this Act.
At the present time a workman might be entitled to £4 10s. 0d. per week and, the Minister realising he could not live on that, was prepared to pay him social welfare disability benefit, bringing him up to the rate of present benefit. But, when the Bill becomes law, he will have one source only to claim from, namely, the Department of Social Welfare. The principle is wrong, that there should be a flat rate, especially when it is being paid for by the employers. I urge the Minister to accept this amendment, in principle. If he does not accept my figures, he and his advisers could work out some equitable scale but he should accept the amendment in principle.
This, I think, is not really necessary—certainly not on any hardship grounds because, of course, there are, in addition to the rate of 115/-, increases for adult and child dependants. This proposal is to introduce wage-related benefits for persons with wages of £10 per week and over without any change in the rate of contributions. One could not very well justify doing that; there would also have to be increases in the rates of contributions and that would be a very involved process. It is estimated that this proposal would be likely to give a total increase of about £150,000 a year for injury benefit and would involve an extra impost on industry which was not recommended by either of the sections of the Commission and I do not think it is necessary, or desirable, to do this. The rates being proposed of both injury benefit and disablement benefit, plus the fact that disability benefit or the unemployability supplement will be payable in addition to disablement benefit, make this not necessary.
(Cavan): I cannot accept the Minister's views. I think an injured workman who is being paid £16 or £17, or even £20, a week should, even if he is not married and has no dependants, get more than his fellow workman who is similarly circumstanced but is only earning half that amount. That is my contention. If it is an effort to compensate the workman for his injury and loss of earnings rather than to give him a mere means of existence, I think——
I would not argue against the theory that it would be a good idea to have wage-related benefits, but it is a difficult thing and we could not start to introduce such a completely new idea in this Bill. But, I cannot argue against the theory that the person who has a larger income when he is at work suffers a more severe diminution in his standard of living on becoming disabled or unemployed. That is obvious but the most we have been able to do here at the moment is to provide flat rate benefits under the social insurance scheme. That is all we can aim at at the moment in this extension of the scheme.
(Cavan): We had best be clear about this. I do not want to say this in any offensive way but the Minister will agree, I take it, that in 1966 115/- a week will do no more than keep a single workman in existence—“frugal comfort” would be nearly too strong a term.
Yes, but what Deputy Fitzpatrick forgets is that that 115/-would be payable to the man who is assessed as being 100 per cent disabled—even if he might, in fact, be able to work and would be paid while he was working—but, in addition to being eligible for this 115/- disablement benefit, if he is also incapable of work, then he will get the social welfare disability benefit. For a single man that would bring it up to £8 7s. 6d. The position is not as serious as Deputy Fitzpatrick thinks.
Amendment, by leave, withdrawn.
(Cavan): I move amendment No. 30:
To delete subsection (5). Subsection (5) of section 8 reads:
A person under the age of sixteen years shall not be entitled to injury benefit except in so far as may be provided by regulations.
I do not agree with that, because, as I understand it, the practices are compulsory insurance. That is the first point. The next point is that the school-leaving age still stands at 14 and boys and girls who leave the national schools and do not intend to pursue further study automatically go on to the labour market. That is the accepted practice at the moment. Children are not obliged to attend full-time educational establishments beyond the age of 14 and, when they leave school, the obvious thing for them is to try to get gainful employment for the purpose of supporting themselves or contributing towards their support in the home. Their employers are compelled to pay 2/1 per week for them if they are boys and 1/6 per week if they are girls. Nevertheless, under this Bill, they are to be paid only on an ex gratia basis at the will of the Minister. That is wrong.
There are provisions which disentitle people to benefit if their employment is illegal unless the Minister decides otherwise. I have no objection to that, but it is going too far to write into this Bill that a person under 16 shall not be entitled to benefit, unless otherwise directed by the Minister. I know perfectly well that under the old workmen's compensation code a person under 16 was not entitled to compensation but the employer could pay insurance in respect of him. Here, unless I am greatly in error, we are compelling the employer to pay social welfare injuries contributions in respect of these people and, practically in the next breath, we say they are not entitled to anything as of right. That is wrong.
These contributions have a cumulative effect. They build up and, presumably, the apprentice will eventually qualify. It may not be until later on in life, if ever, that he will be looking for benefit under this Bill.
(Cavan): I understood there were no qualification contributions under this Bill.
No, but Deputy Fitzpatrick seems to be arguing now against the argument he made on the last amendment. This is, in fact, some degree of wage relation.
(Cavan): This is complete exclusion.
I think Deputy Fitzpatrick is correct.
Regulations will be made.
Deputy Fitzpatrick is correct in asking that this should be deleted. I can see no reason why this sort of thing should be included in the Bill at all, except for one of two reasons: that it was in the previous Act and someone decided that, if it was good enough for the people who went before, it is good enough for us or, instead of working out a table and putting it in the Bill, as could so easily have been done, showing what young people would be entitled to, which would be a lesser amount, they decided that at their leisure they would eventually work out something that would apply to these.
We had an example of this in the contributory old age pension. The Minister by regulation precluded a number of people, not deliberately but because of the regulation he made, from receiving the pension. The regulation excluded people who should have been included. At the moment we have two sections of youngsters, those who go on for further education after 14 and those who leave school at 14. The latter are not just hanging around the roads. They go to work. The Fianna Fáil Deputies present are as well aware of that as I am. It is desperately unfair that they should not be safeguarded in this Bill. The Minister may feel he will be the custodian of their rights and will make a regulation ensuring they get that to which they are entitled. I do not think that is good enough. I am not decrying what the Minister might do, but this Bill is being passed for people; they must have insurance paid for them.
Not under the age of 16.
Yes.
No, not under the age of 16.
Over the age of 16.
Yes.
But the Minister will not agree they should get payment. They may meet with accidents which may render them incapable of earning a livelihood for the rest of their lives. The Minister may feel he is competent to deal with this sort of thing. Why not spell out in the Bill what they will get? We have another example of this in the next amendment down in my name.
As I say, it is intended to make regulations. These people will be in and these regulations will not just be made at our leisure. They will come into operation on the appointed day in the same way as the rest of the Bill.
Why should they not be in the Bill?
Why are not all the other regulations in the Bill? It is because it is not practicable to put every little detail into the Bill. This is something that can be dealt with most effectively by regulation. That regulation will be laid on the Table of the House. It can be challenged and it can be annulled by the House, if the House sees fit.
The Minister knows quite well that, by leaving it out, he is in fact introducing something about which he is not informing the House. We all know what happens when it is a matter of laying something on the Table of the House. I think there were only two cases in which an attempt was made to annul matters in that way. One was the Bord na Móna pension scheme, which I challenged, and another was something in which Deputy Sweetman was interested. This is not the same thing at all. There should be a table in the Bill including these particular people. It would mean only another subsection.
This regulation will be made anyway. What the Deputies want will be done.
Amendment, by leave, withdrawn.
Question proposed: "That section 8 stand part of the Bill."
(Cavan): Subsection 4 reads:
The amount payable by way of injury benefit for any day of incapacity shall be one-sixth of the appropriate weekly rate.
That could work hardship on a workman. We are now in the five-day week and the majority of those who will benefit under this Bill are enjoying that five-day week. Although I did not put down an amendment, I will table one for Report Stage if necessary. I think the subsection should read "the amount payable by way of injury benefit for any day of incapacity shall be one-fifth of the appropriate weekly rate." That is elementary and does not need any further supporting argument.
Well, everybody has not got the five-day week yet.
(Cavan): It will not be long now.
Question put and agreed to.
SECTION 9.
Amendments Nos. 31 to 34, inclusive, not moved.
I move amendment No. 35:
In subsection (7), page 12, line 16, after "scale" to insert "(in Table III)".
The reason for this is that subsection (7) at present reads:
Where the extent of the disablement is assessed for the period taken into account as amounting to less than twenty per cent, disablement benefit shall be a gratuity (in this Act referred to as a disablement gratuity)—
(a) of an amount fixed, in accordance with the length of the said period and the degree of disablement, by a prescribed scale, but not in any case exceeding three hundred and eighty pounds, and,
(b) payable, if and in such cases as regulations so provide, by instalments.
I wish to have included a scale which sets out the disability benefit, the same as operates in Northern Ireland. In Northern Ireland, the scale is laid down at £45 for one per cent, £67 10s. for two per cent and so on, until we reach 18 per cent. When we reach 16 per cent, we find that the amount is £382 10s. in Northern Ireland but for 20 per cent here, it is proposed that there should be £380 so that in fact we are falling behind right along the line. I do not know in what way the Minister proposed to have gratuities for degrees of disablement attended to under 20 per cent. Who is going to decide the amount? The sensible thing would have been to add in one per cent, two per cent, three per cent and so on. Everybody would then know, once the medical evidence had been satisfied and so on, what the entitlement to benefit would be. This in another of these cases where it appears that there has been a lazy approach for the purpose of avoiding the trouble of having to calculate and then add a subsection to the Bill. With your permission, Sir, we might discuss amendment No. 43 as well, which relates to the table.
We can discuss Nos. 34, 36 and 43 together.
The whole point of the amendment is to spell out what these people are entitled to. The Minister has done so with people who have one per cent disability, right down to 20 per cent, but he has not dealt with it after that. I suggest that this can be done without great difficulty. It is only a matter of adding this table. If the Minister is not prepared to accept the Northern Ireland table, as obviously he is not, then he could insert an adjusted table.
Deputy Tully realises that this table is in the regulations in Northern Ireland and it would be in the regulations here also.
It will be in the regulations here?
Yes.
Why are they not included in the Bill?
Because it is unnecessary to complicate the Bill.
How would it complicate it?
It will be graduated down from the maximum gratuity of £380.
It does not say that. It is so vague that I am suspicious about it.
It does not say the way in which this will be graduated. The Deputy will have to accept my word that it is intended to graduate it——
I will accept the Minister's word.
——on the same principle. It is, in fact, done by regulation in Northern Ireland also. It was not included in the actual Bill.
Having had the benefit of what they did in Northern Ireland, will the Minister consider including it in this Bill? If he will not, will he consider altering the subsection so that people in his Department who do not read the Dáil Debates will know what the Minister meant and what the House intended?
I do not see any need. Such a thing is going to be done. What does the Deputy suggest should be inserted?
I have the greatest trust in what the Minister is going to do and if he says something, I know he intends doing it, but what it says here is in fact that the graduation shall be of an amount fixed in accordance with the prescribed scale but that is not what the Minister has said.
The scale is to be prescribed.
Would the Minister consider spelling out what the scale is to be, either on Report Stage here or in the Seanad?
What Deputy Tully wants is to put all these regulations that will have to be made into the Bill. That is not just practicable. You can argue it on a particular one but there are a number of these things which have to be dealt with by regulation and this is a comparatively predictable kind of scale graduated from the maximum of £380 for 19 per cent down to one per cent. This is the more practical way to do it. It says "in accordance with the prescribed scale" and that scale has to be prescribed and will be laid on the Table of the House.
I know that the Minister and his Department deal with these things in a reasonable way but all you want is one unreasonable person and we will have all sorts of rows.
No one person is going to deal with this.
They will be administering it. It will be administered eventually by one person. We have met this before.
It is only a question of graduating £380 down to the minimum of one per cent.
It should be.
We will get somebody who knows something about mathematics.
Amendment by leave withdrawn. Amendment No. 36 not moved.
(Cavan): I move amendment No. 37:
In subsection (7), page 12, lines 16 and 17, to delete "three hundred and eighty" and substitute "one thousand".
I think that the figure of £380 as a maximum for a degree of disability less than 20 per cent is totally inadequate. The scale in Table 1 provides that where the degree of disability is 100 per cent, the disability pension is to be 115/- and where the degree of disability falls to 20 per cent, the disability pension is to be 23/-. If the degree of disability were to be 19 per cent, the very maximum compensation the injured man could get would be a lump sum of £380. That is unfair. I gather from the Minister that mathematics is a difficult problem and certainly it is not my long suit, but calculating what a man whose disability was just under 20 per cent would get, it would work out, I think, at £50 a year. If he were disabled for life at 35 years of age, taking his expectation of working life to be 65, he would have 30 years, and 30 multiplied by 50 gives 1,500. If he was entitled to a pension of just under 23/- per week it would work out at about £1,500 for a man between the ages of 35 and 65. Under this Bill he will get only £380. I cannot understand that. There should be a sliding scale all right but the maximum should be much higher. A man with a few degrees of disability would be paid only a small sum, but the man with 15, 16, 17 or 18 per cent disability should get a much more substantial sum, depending on his age and the probable duration of the disability.
I take it amendment No. 43 is being taken with No. 37?
(Cavan): Deputy Tully has already dealt with No. 43.
Yes. The only other angle to this is that the Minister, I am sure, is aware of the man in employment who suffers slight disability, and the usual thing is that if the employer is carrying his own insurance, the employee is offered light work. He is kept in employment for a while and if the incapacity is greater than it was supposed to be, an effort is made to get rid of him. Under this regulation it is proposed to pay such a person a certain sum of money—I agree with Deputy Fitzpatrick, a totally inadequate sum of money—and if he is unable to find further employment he may be in the awkward position of having to go around from job to job, and he will not get the full rate to which he is entitled because he is only slightly incapacitated. The amount should be very much more than the amount laid down.
The amount of the incapacity which would arise of less than 20 per cent would be such that it would not diminish the person's capacity for performing his normal employment. Taking the scale of disablement benefit that would be payable for different percentages of disablement, the amount of the gratuity proposed for 19 per cent represents the approximate value of the pension that would otherwise be payable if the same system of reducing the pension in accordance with degrees of disablement was followed. It was felt that the weekly rates of pension for lower degrees of disablement would be so small as to be inconsequential and that in these cases it would be better to give the lump sum instead. If we were to increase the lump sum as suggested by Deputy Fitzpatrick it would be making the amount payable for the smaller percentages more valuable than the amount of the disablement pension that would be payable for higher percentages of disablement.
(Cavan): I do not think so. Surely the Minister will agree there is no relationship at all between, say, the 19 per cent disability, which would represent 23/- and the sum of £380 for a man who is going to be disabled for life? That is the case I am making.
It is over seven years, the amount of the disablement benefit payable for 19 per cent.
The Minister will guarantee that only old fellows will meet with slight accidents?
(Cavan): I am not taking the extreme case of a man of 17 but the case of a man of 35, which is a fair average. Giving him an expectation of 30 years' working life, he is going to be cut off with £380 and, in my opinion, he might well be entitled to something in the neighbourhood of £1,500 on the scale that is there.
It would be interesting to find out, if the lump sum was paid by the week, what the instalment would be.
It would be something less than 23/-.
It would be a lot less for a man of 35 years, less than half.
An injury which resulted in 19 per cent disablement would not seriously interfere with a man's capacity.
(Cavan): There is very little difference between 19 and 20 per cent.
At this level of disablement the capacity for work would not be seriously affected.
(Cavan): Even the most conscientious medical man, or whoever will estimate these degrees of disability, could surely make a mistake between 19 and 20 per cent, and then the man, instead of getting 23/- a week for life, would get £380.
Below 20 per cent disablement the incapacity is minimal.
(Cavan): There should be a saving clause put in as is done in all sorts of Acts of Parliament where there are marginal differences, in death duties, and so on. Where a man falls short of 20 per cent here, he will find the amount cut down from 23/- a week for life to the miserable sum of £380, which represents only seven years, as the Minister says.
Deputy Gibbons may be able to enlighten us on this. Supposing a man is operating a saw and loses a finger, I have known settlements which ran as high as £800 or £900, although the injury did not interfere with the type of work the man was doing. Subsequently the man changes his job, so it would not be taken that the man's incapacity would be less than 20 per cent.
Probably they would be common law settlements.
No.
(Cavan): Take the case of a one-eyed man. He can carry on his work perfectly with one eye but there is the awful danger that he might lose the other eye. I remember such a case was worth £300 under the Workmen's Compensation Act. I can tell the Minister—his records in the Department will prove it—that they are now worth £1,500 and £1,600.
The loss of one eye will still be assessed at the same percentage disability.
(Cavan): Could the Minister give us any idea of what the estimate will be?
The loss of one eye would be estimated at 40 per cent disablement which would qualify for a pension of 46/- a week, irrespective of whether he was incapable of working or not, and if he was incapable of working he would get disability benefit in addition.
I should like to know how these percentages are arrived at. Take the case of the man with one eye. It is said that he would have roughly 40 per cent disability. That seems to me to be most unfair. If a man is working in a quarry or with steel where chips may fly and he has only one eye, he could hardly be advised to go back to such work. He would be seriously injured and if he went back to that work, his second eye would be in danger. If such a man with one eye were working as a farm labourer, he would be in a different position.
He could be killed in the same way. He might not see the bull coming.
I did not think of that but he would not be in the same danger as a man working in a quarry or with steel having only one eye.
You have to adopt some scheme for assessing these things and the 40 per cent degree of disablement for the loss of one eye seems to be accepted in other countries.
(Cavan): I would not disagree violently with the Minister about the 40 per cent disablement but what I am concerned with is the case of a man with 19 per cent disablement. I do not wish to accuse the Minister's officials of being lazy or of following slavishly what is done in other countries, but this is a case in which I thought some safety valve should be put in for the man with 18 per cent or 19 per cent disablement which will not cause such a wide discrepany as there is here. I think the Minister should reconsider this matter to see if he can jack up the £380 or if he can put in a safety clause.
The figure of £380 is roughly a seven years' computation of the appropriate rate of payment. I do not see what other safety clauses would be appropriate other than to allow the person to opt for the appropriate weekly rate of disablement benefit. It would be grading it down to a fairly small weekly amount if we did that but we might simply do it.
I think the option should be given.
In certain cases of disablement, the weekly rate would be very small and in most cases people would opt for the lump sum.
(Cavan): I would be against a seven years' purchase in any case. Seven years' purchase is not accepted for anything. In ground rents a seven years' purchase would not be accepted for the most miserable property in Dublin.
We have been following the British line in this matter but I am prepared to allow the person to opt for the appropriate weekly rate of disablement benefit.
(Cavan): We are grateful to the Minister for that but I should like to suggest that seven years' purchase is unrealistic. I do not know what the redemption rate was in the old workmen's compensation code, but it was certainly more than seven years. If you go to buy ground rents, the purchase rate will be much higher than that, even for the most miserable property in Dublin.
Here we are dealing with fairly inconsequential amounts of weekly rates of payment and I think that seven years' value of them is a reasonable calculation for a lump sum payment. I am prepared to give the persons concerned the option of taking the weekly payments.
(Cavan): Eighteen or 19 per cent is not inconsequential.
Amendment, by leave, withdrawn.
(Cavan): I move amendment No. 38:
In subsection (7), page 12, lines 18 and 19, to delete paragraph (b).
I put down this amendment in order to have a discussion on the question of the lump sum. These sums are so small at the moment that they should be payable at the option of the workman in the form of a lump sum. What we are going to do now is to give the Minister the option of paying by instalments. A case can be made that some workmen may squander lump sums if they are given them. That is a fact, but, on the other hand, some lump sums are put to very good use indeed. I think that in cases where a workman wishes to get a lump sum, it should be paid to him in that way and not by instalments.
This provision is inserted so that we can pay by instalments if, after experience, it appears desirable to do so. These gratuities would be payable to the guardians of children. If the person receiving the injury would come of age to qualify for the gratuity itself within a short period after the injury, it might or might not be desirable to retain some of the gratuity to pay to him when he came of age. This regulation is one that may not be made.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 12, lines 24, 26 and 49 to substitute "seventeen" for "eighteen."
Amendments Nos. 40 and 42 are consequential.
Here we are simply asking for parity with what has been done in Northern Ireland and Great Britain. The Bill says:
The scale prescribed for the purposes of this subsection shall be the same for all persons, except that a lower amount may be fixed thereby for cases where, at the beginning of the period taken into account by the assessment, the beneficiary is under the age of eighteen years.
I suggest that the age should be 17 years. Have we actually decided that there is a dangerous period of one year which it would be better to take away? The Bill as it is at the moment makes 18 years the age at which one becomes an adult, rather than 17 years. I think the Minister would be well advised to make it 17 years.
What Deputy Tully is actually proposing is that a reduced scale should be applied and there is a provision in section 9, subsection (7), that a reduced scale may be applied in these cases. Deputy Tully's amendment does not appear to make sense in this. If amendments Nos. 39 and 40 were both made in the Bill, it would read: "Where the beneficiary is under the age of 17 years or, as the case may be, 17 years".
Would the Minister allow me to read the subsection and the amendment? The subsection says:
The scale prescribed for the purposes of this subsection shall be the same for all persons, except that a lower amount may be fixed thereby for cases where, at the beginning of the period taken into account by the assessment, the beneficiary is under the age of eighteen years . . .
What I am suggesting is that we should substitute "seventeen" for "eighteen"; in other words, that the full rate should be paid to those over 17 years of age, as is done in Northern Ireland and Britain. The Bill suggests that those under 18 will be paid on the lesser scale. It is as simple as that.
The same applies in the case of injury and disablement benefit. The age of 18 is the age for reduced rates there, and there does not seem to be any case for having a different age for gratuities.
The Minister could alter the two of them.
Deputy Tully did not propose altering the other.
I was under the impression that both were covered. Because we took so many together, we may have passed over one which dealt with that. The Minister knows what I am suggesting. I think it is perfectly reasonable.
I do not see any particular reason why the age should be 17 rather than 18.
Would the Minister not agree that most of the sections in the Bill are based on the experience of the Northern Ireland and British schemes and that the people on the Workmen's Compensation Commission were very conscious of what has happened in Britain and Northern Ireland? Would the Minister say if they suggested the age of 18 or 17?
I do not know. I do not think there was any mention of the age 17.
It is mentioned in the British scheme and the Northern Ireland scheme, anyway.
Eighteen is the age at which social welfare benefits generally are reduced, as the Deputy knows. I would not be disposed to make this change except in relation to the social insurance scheme as a whole.
We would have no objection to that.
That might come some time.
Amendment, by leave, withdrawn.
Amendment No. 40 not moved.
I move amendment No. 41:
In subsection (8), page 13, to substitute the following figures for the figures in TABLE I, under the heading "Weekly rate":
"135/-
121½/-
108/-
94½/-
81/-
67½/-
54/-
40½/-
27/-".
This simply proposes parity with the Northern Ireland scheme. It outlines the scales of benefit in Northern Ireland. We have discussed this matter very fully on a previous amendment. I would like to have the Minister's view on it.
My view is the same as it was on the previous amendment. These are the rates we have proposed. They were suggested in the minority report and adjusted to take account of the increase in the cost of living since that time. The scheme has been costed on that basis and the rates of contribution decided to finance the rates of benefit proposed in the Bill. That seems to be in accordance with the ideas of both the minority and majority of the Commission of what should be imposed on industry generally for this social service.
Amendment, by leave, withdrawn.
Amendments Nos. 42 and 43 not moved.
(Cavan): I move amendment No. 44:
To delete subsection (9).
On Second Stage, I stated I could not receive this Bill with enthusiasm. In saying that, I had provisions of the Bill like subsection (9) of section 9 in mind. My amendment proposes to delete that subsection, which reads:
Notwithstanding subsection (1) of section 44 of the Principal Act, an appeal shall not lie against a provisional assessment of the extent of disablement before the expiration of two years from the date of the first assessment of the extent of disablement in the case, nor where the period taken into account by the assessment falls wholly within those two years.
As I understand that, if an assessment of disablement is made, the injured workman is not to have a right of appeal to anybody against that assessment for two years, no matter how mistaken the assessment may be. Worse than that, apparently, if the disablement is to last for only two years, then he is to have no right of appeal whatever at any time. That is taking away from the workman his fundamental rights. It is provisions like that and later provisions in the Bill—provisions like the lump sum of £380 we have been talking about—which will leave workmen regretting very much we ever departed from the workmen's compensation code. It is provisions like this that will spoil this measure. I want to make it perfectly clear, as I did on the Second Stage, that I do not want to hold out for the retention of the workmen's compensation code as it stands at the moment, and neither do my Party; but I do want to preserve for workmen their right of appeal. I do not want to leave them in the hands of the Civil Service completely, as this measure proposes to do.
I think if a man is dissatisfied, there should be an immediate appeal from an assessment. Deputy J.A. Costello stated on Second Reading that there was a well-known phrase in the Department that "the fund must be protected at all costs". The Minister stated in reply that Deputy Costello had not quoted the entire phrase which was "that the fund must be protected against fraud". It means the same thing because people in the Department may think something is fraud which is not fraud at all. I know from experience that it is the easiest thing in the world to develop, and develop honestly, either an insurance company bias or Department of Social Welfare bias to the effect that the workman is malingering. It is much more important that the injured workman should be protected than that the fund should be protected.
The provision in this subsection (9) seems to me to mean that the funds should be protected at the expense of the insured workman. I could give the House an example which occurred within the past few months and about which I had to write to the Department where an injured workman, with a wife and seven children dependent on him, has been certified by a medical referee or other medical officials in the Department of Social Welfare as fit for work at the same time as the regional orthopaedic surgeon in our area advised him not to work and had reserved a bed in the Regional Orthopaedic Hospital in Navan to perform a serious operation on him. That man's wife had to be driven three miles to the county council relieving officer in order to get £3 for him. If there were no right of appeal in that case, what would the position be? We are dealing here with disability benefit of a limited nature but the principle is the same.
Officials in the Department of Social Welfare can make honest mistakes. They can develop biases. I shall have more to say about this on a later amendment which I have put down and on which I shall challenge a division because a vital principle is involved and if necessary I shall produce the case I have just been speaking about.
I intend to press this and I ask the House to hold with me that there should be an appeal. I will say, on a later amendment, to whom the appeal should be made but certainly there should be an appeal immediately the workman is dissatisfied. It is altogether out of keeping that the rights of workmen and indeed, I would say, of natural justice that a man should be deprived of an appeal for a period of two years and if the cause of his complaint falls within two years that he should have no appeal at all.
I support what Deputy Fitzpatrick has said. The Minister and his Department know that one of the few things I find fault with is the appeals system. The Minister himself, I think at a time when he was not on his usual guard, made the comment, in reply to a supplementary question by me some time ago, that a second appeal is not important.
That is not what I said. I merely drew the Deputy's attention to the fact that the person had been found fit by two different——
By one referee.
Two.
I asked if he was not entitled to avail of his right to have a second appeal. The Minister said yes but that he did not think it as important as the first one.
I said it was a fact that a person who was appealing for the second time had already been found fit by two different medical referees.
The Minister is aware that I can produce evidence to him of appeals and eventually a person was found unfit after he had been declared fit by two of his doctors. I know of a case similar to that mentioned by Deputy Fitzpatrick where a man was declared fit for work by an appeals officer of the Department on the same day as the local assistant county medical officer of health had recommended his return to Peamount where he has since died. This is one of those things which should not happen but did happen. If there is to be no appeal, the Act can be badly misused.
I may not be reading this subsection correctly but I read into it that if somebody who is suffering as a result of receiving an injury comes under the Workmen's Compensation code and a degree of incapacity is assessed, let it be one per cent or 100 per cent, then that degree of incapacity must remain for two years, if he does not get better or die in the meantime. He has no right of appeal against it even if he has stonewall evidence that the assessment is incorrect.
It is only if that period is included in the assessment. If the medical officer certifies that his degree of disablement will be of such a percentage for a period of two years or more——
It is not a doctor's stethoscope that he would require for that but a crystal ball. I do not know if the Minister would issue crystal balls to the medical officers of health. I do not know how anybody can say, with any degree of certainty, that a degree of incapacity is likely to remain over a period. What I do not want to see happening is that a person who is declared by his local doctor—and this is the important thing—to have a high degree of incapacity is examined by somebody who says his degree of incapacity is very much lower will have no right of appeal for two years if the person who declares the state of incapacity says he will remain that way for two years. The Minister will admit that very great hardship could result if this is accepted and he should have another look at it. Possibly, it is just put down there without going into the other side of it.
I wonder if "appeal" used in this subsection means a review?
That is the point: it does not. A review can take place.
The point Deputies across the floor of the House are making concerns a man who is probably dissatisfied with his primary assessment. The primary assessment having been made, the man's condition may deteriorate. He may deteriorate from 40 per cent to 80 per cent. His case should be reviewed inside the statutory period or even inside any period laid out by the medical referee provided his local doctor asks the Department to do so. He could do so by indicating to the Department his opinion that this man's condition has deteriorated and that he is a suitable case for review. I think there should be no limit to that review and that it should be a matter for the local doctor and the patient himself.
That is the position. A provisional assessment means that it is of a temporary nature. It implies that there is a possibility of the degree of disability changing. In the event of such a deterioration taking place, the person concerned is always at liberty to apply for a review.
Where does it say that? It does not mention that in the section.
It is a tentative assessment.
It does not say that. The subsection is very definite. There is no "tentative" about it.
The circumstances in which provisional assessments should be made are set out in subsection (5).
Subsection (9).
I know, but that refers only to appeals. The circumstances in which a provisional assessment may be made are set out in subsection (5). which states:
if on any assessment the condition of the claimant is not such, having regard to the possibility of changes therein (whether predictable or not), as to allow of a final assessment being made up to the end of the said period—
(a) a provisional assessment shall be made, taking into account such shorter period only as seems reasonable having regard to his condition and the possibility aforesaid, and
(b) on the next assessment the period to be taken into account shall begin with the end of the period taken into account by the provisional assessment.
So that the position will be that in the case of a provisional assessment a review can take place.
(Cavan): If the Minister can satisfy me by reference to some section that a review can take place without any change in circumstances I will be satisfied but I am not satisfied to accept the position that the first doctor who examines a man is deemed to be infallible for two years. That is what is in this section. I am not saying that the Department of Social Welfare doctors alone can make mistakes. Every day in the courts we have had under the old system men cut off on reports of insurance companies' doctors. A man would bring his case to court and when it was tried and other doctors gave evidence he would be restored to benefit immediately. I am not being offensive or suggesting that this can only happen in the Department of Social Welfare. It can happen outside it. A doctor who examines a man expecting or hoping to find nothing wrong with him can honestly make a mistake.
I should like the Minister to put this in the clearest way. If he can show that a provisional assessment must not stand without question for two years I will have second thoughts about it.
A claim that his condition had got worse——
(Cavan): No, that is not it.
—would be a change of circumstances and that would be covered by the circumstances in which a revised decision can be made by a deciding officer under section 46 of the Principal Act.
(Cavan): I am not satisfied with that at all.
That would mean that it would always be open to the person concerned to apply for a review. Of course, he would have to make a case that his condition had deteriorated.
I do not know about Deputy Fitzpatrick but the man I am worrying about is a man who considers that the original assessment is erroneous.
(Cavan): Exactly.
He is not claiming that there has been any deterioration. He is simply claiming that a mistake has been made. As recently as three or four weeks ago, for the third time, I had a case of a man who was examined by one of the Minister's referees and declared fit for work. This man was suffering from asthma. It was discovered that at the time of the day at which he was examined he was apparently in good health whereas a few hours later he was barely able to walk. For the third time, I asked that the matter be reviewed and, again for the third time, he was declared unfit for work, as he is unfit, and has been for quite a long time. He did not claim that his condition had deteriorated. He claimed that he was not fit for work. According to what the Minister says, he would have to be able to prove that his condition had disimproved. We are not talking about such a case. We are simply talking about a man who is dissatisfied with the original assessment and saying that he should have the right of appeal.
It might help Deputies if I read section 46 of the Principal Act, Subsection (1) of that section says:
A deciding officer may, at any time and from time to time, revise any decision of a deciding officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts which have been brought to his notice since the date on which it was given . . .
That does not let us out. This is a new Bill.
Yes, but it is an amendment of the Principal Act and this means that a case can always be reopened in the light of new evidence if new evidence is brought.
There is no new evidence.
This would be medical evidence. If medical evidence could be brought to establish that the original deciding officer had made an erroneous decision, even though there was no deterioration at all in the man's condition, but the medical evidence that was produced was such as to establish that the original decision was erroneous, that could be a cause of renewal.
The man I spoke about a few minutes ago——
This is a better provision, really.
——did not produce any new evidence. The local doctor said he was unfit for work. The Minister's referee said he was fit. There was no new evidence produced. Another referee examined him and said he was unfit. Three times that has happened. I can give a number of other cases where the same thing has happened. I am intrigued by the Minister's reference to the Principal Act and to the fact that this Bill is only an amendment. It is an established thing, as Deputy Fitzpatrick will bear out.
The right exists under the Social Welfare Act, 1952.
It does, but this is something new. We are now passing a new Bill which, according to the way it is drafted, proposes to take away that right. There are certain people who are not included in that Principal Act who are included in the new Bill which contains a subsection which proposes to delete the right included there for ordinary social welfare recipients in respect of these people.
These cases are still governed by the provision for revision of decisions in the Principal Act.
That is wrong. They could not be.
They are. This is a general provision: a deciding officer may at any time revise any decision.
In fairness to doctors, may I say that we may be dealing with a matter of one per cent in these cases? Where one doctor may find a 45 per cent disability, another doctor may find 50 per cent. On the other hand, one doctor may find a 44 per cent disability and another doctor may find a 40 per cent disability. We are dealing with very fine margins at this stage and it will be difficult to decide in many cases. There is no doubt that injured workmen will be very dissatisfied.
The other point I should like to make is that in the case I have mentioned where the family doctor asks for a review and it is found on review that the man's health had deteriorated from the date stated by the family doctor, will the workman be paid retrospectively the increased amount per week to which he is entitled for that period? I do not know whether it arises here or not.
(Cavan): I should like to repeat that I think an appeal is necessary as of right in all cases. I go back to the case that I told the House about and of which I had experience a few months ago. A man was in receipt of social welfare benefit at a fairly substantial rate. He was certified by somebody who came to the local social welfare office as fit for work. The man was getting about £7 a week disability benefit. He had an excellent industrial record of about 20 years' work in a factory. His wages had been about £10 or £12 per week. At £7 a week, he was at a loss. He is certified as fit for work. He says he is not fit for work. The regional orthopaedic surgeon for the north-eastern region has certified him as not being fit for work. He says: “I am waiting to bring you into the orthopaedic hospital in Cavan to operate on you.” That man is deprived of his disability benefit until I write in an appealing letter asking them to do something about it, and then he gets a cheque or a paying order for £80 arrears. If that man had no right to appeal to someone he would have to go on suffering this injustice for two years.
I know we are dealing with disability benefits, but there can be a difference between 100 per cent and 20 per cent which would be £4 12 a week, if I understand it correctly, and if this section means anything, and if it is worth writing in, it means that there is no appeal for two years irrespective of the length of time the man has been suffering. Worse than that, if he was certified as disabled for 18 months only, and the percentage of disability was 20 instead of 100, he could go on suffering this loss of £4 12 a week for 18 months. That is what the section means.
Under the present workmen's compensation code, if a man's compensation is cut off, or if he is declared partially fit for work, which is substantially what this is doing here, he has a right to bring his case to court, and the doctor who is certifying him as partially fit has to come in and subject himself to cross-examination, and has to face the evidence of another doctor. He has to substantiate what he says. Here, nothing is done about that. The man will be examined behind closed doors by one doctor, who will not be subject to any cross-examination, public or private. That is the end of it. It sounds fantastic to me, and if the working people of this country and the Labour Party will stand for that I will be amazed.
I do not think this is necessary. The procedure that is available to have a case reviewed in the light of new evidence, which would cover additional medical evidence, is actually a better and a more favourable procedure for the workman to adopt. If Deputy Tully and Deputy Fitzpatrick are prepared to accept that I will consider this and see if there are any serious administrative objections to it between now and Report Stage. I will do that, but I think the position as it is is more favourable actually.
(Cavan): I am satisfied with that. I am not quite up to date with the procedure in the House, but perhaps the Minister would be kind enough to inform me whether he intends bringing in an amendment, and if not I will put one down.
I will let the Deputy know.
Amendment, by leave, withdrawn.
Question proposed: "That section 9 stand part of the Bill".
I should like to make a few general remarks on the question of personal injuries in the course of employment, and their causation. I feel that in the second line of subsection (1) the words "or diagnosed" should be added after the word "caused" because in changing over from the workmen's compensation code to the Social Welfare Acts there will be cases of men with injuries and they may overlap the appointed day. It will not be too easy for them to go back and prove when they got the injuries. The same thing will apply in Section 23 on the question of disease.
I am thinking of a man who develops what is called beat knee in the course of mining. The same would apply to arthritis, and it would apply particularly in the case of pneumoconiosis which obviously started before the appointed day. A working man might not find it too easy to prove when he got it. It might mean going back some months or some years. I think it would make it easier if the words "or diagnosed" were inserted. As I understand the procedure in the House, the Minister can consider it between now and Report Stage. It may be said that surely a man would know when he was injured. That would apply in a lot of occupations, but there are people in parts of the country who move from one employment to another. This occurs particularly in my area, and people are not in a position to state exactly when the injury occurred and when they are examined by a doctor they may be told: "You have got arthritis following an injury you received at such a time". In view of the fact that we are changing the law, we should try to take in those people.
There are two other cases I could mention. Take the case of a man who injures his knee playing football. He gets the benefit of the national health service and perhaps three months afterwards he injures the same knee at work. Is he entitled to benefit under the Social Welfare Acts? Subsection (3) (b) (i) reads:
would in any case have been subject thereto as the result of a congenital defect or of an injury or disease received or contracted before the relevant accident, or
If this man injures his knee at work on the second occasion, is there a danger that he will be told: "You injured your knee playing football about three months ago and you are not entitled to receive compensation under the Social Welfare Acts".
There is also the case of the man who injures his back and receives compensation under the workmen's compensation code. He returns to work after the appointed day and some months later he re-injures his back. Is he precluded from the benefits of this Bill or will he get them because he suffered the injury in the course of his employment?
(Cavan): I have a note more or less on the same lines as what Deputy Gibbons has been saying and he may be able to help me. Subsection (3) (b) (ii) states:
would not have been subject thereto but for some injury or disease received or contracted after, and not directly attributable to, that accident;
I am thinking of a case where there were two accidents which caused the disability and I am wondering is that covered by this section. If he has suffered two injuries is he excluded? That should be included. You might have a man who met with an accident and carried on all right but who then met with a second accident and the accumulative effect of the two caused disability. I suggest that case should be included, though I am not sure that it is not.
We are coming to the end of this debate for today. Deputy Gibbon's points were excellent but there is one further thing I have been trying to define. I have read the Bill three times and cannot find it. It is in reference to the person who meets with an accident and is in receipt of compensation prior to the coming into operation of the new Act. Let us suppose his employer is either carrying his own insurance or goes broke or dies, and there is no way of continuing the compensation.
Disability benefits.
Is there any danger of this being taken over as workmen's compensation or industrial injuries benefits?
With regard to a person who receives one injury and gets the appropriate benefit and receives another injury of a similar nature, he can get further benefit, provided the total of the awards does not exceed the maximum rate of benefit provided under the Bill and, of course, subject to the rule that it does not exceed pre-accident earnings. Theoretically, a person who injures a knee playing football and the injury recurs during work could be excluded if this were established. That, however, is very unlikely to happen. On the question of inserting the word "diagnosis" instead of "incur", I do not think that would be practicable. There is a provision in section 23 (4) whereby provision will be made by regulation:
(4) Provision may be made by regulation for determining the time at which a person is to be treated for the purposes of the Acts as having developed any disease or injury prescribed for the purposes of this section, and the circumstances in which any such disease or injury is, where the person in question has previously suffered therefrom, to be treated as having recrudesced or as having been contracted or received afresh.
That subsection covers the cases Deputy Gibbons has in mind—cases of diseases such as pneumoconiosis— in the only way in which it is practicable to deal with them. The regulations will prescribe that the first day of incapacity will be deemed to be the date on which the disease was contracted. It seems to me to be the same thing as the day on which it was diagnosed.
There is another point in relation to congenital defects. I suggest the Minister should have another look at this question. With the great efforts now being made to employ the handicapped, the suggestion that a person is suffering from a congenital handicap and that he will not be entitled to compensation under this legislation may mean that employers will not employ the handicapped. I feel that, as far as possible, such persons should not be subjected to this handicap. The Minister did not refer to my point about the man who had received his lump sum some time before the new Act came into force, but had a recurrence of his injury some months following the coming into operation of the Act. Will he be told he has already received compensation for his injury or will he come under this section as if he were incapacitated for the first time? This is important because people may not employ such a man if they feel there is some such risk.
Deputy Gibbons referred to the big effort being made to employ the handicapped. I have a couple of hundred unemployed people in my area who are not handicapped and I should be delighted if Deputy Gibbons would help me to get employment for them. How will the system work if somebody receives an injury after the passing of the Act? Supposing a man working in a farmyard falls and goes to the doctor in order to apply for benefit, which he eventually receives. If at a subsequent date another doctor certifies that this is the result of an old injuiry, does that man continue in benefit, or what happens? It has been brought to my notice, as general secretary of a trade union, that quite a number of my members have been injured at work and have found, when their cases come to court, that the doctors say the injury complained of occurred many years before. Most of them tell me they have no recollection of any such accident and it is suggested in court that they are suffering from arthritis and the bottom falls out of their case. Can that happen under the legislation we are now discussing?
That is a medical matter—a question where the medical evidence determines whether the person is suffering from arthritis.
He is suffering from an injury. The doctor to whom he went originally says he is suffering from an injury and for several months he is getting compensation, but a specialist later says the man met with an accident years ago, sustained a break in the bone and is suffering from arthritis. This is causing a lot of annoyance. It has been cropping up quite recently. If somebody is paid compensation under the new Act and is certified as having sustained injury in an accident in his employment, can the same thing happen? On a subsequent date, if some doctor certifies that the man suffered from an old injury, is that man to be put on ordinary social welfare benefit?
Medical men differ.
There is a conflict. A man may be told to go back to the employer with whom he worked when he was injured. If the word "diagnosis" is included, once the case is diagnosed, the Department of Social Welfare will take responsibility for it. There would then be no conflict, no necessity to go back to decide when the injury occurred. All this, of course, applies more appropriately to section 23. My feeling is that the word "diagnosis" is vitally important, particularly to cases arising during the year following the coming into operation of the Act. It would save workmen, solicitors and others, and probably the Departmental officials, a lot of worry and trouble. You would have something concrete once the certificate was available.
What could be more concrete than taking the first day of incapacity as the day on which the disease was contracted or the injury received? If the worker made his claim on the ground that he was incapacitated before the Act came into force, then it comes under workmen's compensation. If he does not claim that he was incapacitated until after the day the Act comes into operation, he comes under the Bill because the disease is taken as having been contracted on that date. I do not see any need for including the word "diagnosis."
I should like to pose a question to the Minister as to what can be done where there is a difference as to diagnosis. I had a case recently of a young man who was obliged to lay off work due to illness. His doctor diagnosed a simple skin rash. The condition worsened considerably and the workman had to be hospitalised. The doctor in the local hospital diagnosed dermatitis. In the meantime, he had applied for social welfare benefit for his wife and very large family. The question was raised in the Department of Social Welfare in respect of the ailment diagnosed and described in the doctor's certificate. A long delay ensued before this issue was cleared up. The man, having left hospital went back to the local doctor again, who, incidentally, was the doctor attached to the factory, the business enterprise in which this man worked. The doctor persisted again in putting down a skin rash. The workman brought this to his notice and as a result of putting this on the certificate, social welfare benefit was held up and he and his wife were destitute for a number of weeks.
The man pointed out further that in the county hospital the doctors' panel there diagnosed dermatitis and stipulated it was such. The doctor changed his attitude slightly only to this extent. He inserted on the certificate "dermatitis" but added the words "non-industrial", causing added confusion. Be it said, there was obviously a vested interest in this matter. Be it said to the Minister's credit, and that of his Department, when I made representations on the basis I have outlined, social welfare disability benefit was very promptly paid, on the understanding that the workman would not take action against his employer. Perhaps this is precisely what the firm or other vested interests want in this matter.
It is very difficult. When this kind of thing happens, there ought to be an independent arbitrator who could be called in to clear the lines specifically as to diagnosis and ailment or injury at any given time. There is too much hanky-panky going on in respect of diagnosis and anything the Minister can do to tidy up the defects which we have had to mention on this section will be very welcome.
I am pleased to see that the ambiguity which existed for so long in respect of miners' diseases in particular —I represent the constituency which has one of the biggest anthracite coal mines in the country—is being cleared up and that there are regulations in this new measure which will clarify the position in respect of tuberculosis, pneumoconiosis and all the other chest ailments which may or may not be attributable to employment in mining as such.
It must be admitted that doctors differ; so do politicians or, if they did not, we would not be here at all because there would be no need for us. With regard to this question, when it arises, it is always advisable to see a good solicitor.
(Cavan): The Deputy will not be able to do that any more.
The situation at the moment, in Deputy Treacy's case, is that this man is referred to a certified surgeon, whose business it is to certify whether he has industrial dermatitis or not and, having done so, the legal process is started. As I am reminded of it again, I should like to know from the Minister if he intends to continue with this practice of certifying surgeons or will it be abolished in future legislation. This is probably more appropriate to section 23 than to this section.
With regard to the case raised by Deputy Treacy, the point appeared to be that this workman was certified as having a skin rash originally. Later on, it was established it was dermatitis. It would be accepted in that case that it was dermatitis from the start. It would be diagnosed then, and accepted, as having been dermatitis from the original date of illness, so that such a person would come under the provisions of the Act. The type of situation to which Deputy Treacy referred is one that will not arise after this Bill has been passed. There will not be anybody with a vested interest trying to arrange that the injured workman——
There will be nobody to pass the buck.
——is not qualified for workmen's compensation because it is no longer a liability of the individual employer. The question of whether it will be necessary to retain the assistance of certifying surgeons is one that has not been decided yet.
Question put and agreed to.
SECTION 10.
I move amendment No. 45:
In subsection (1), page 13, line 11, to substitute "fifty shillings" for "forty shillings".
There are a number of other amendments which hang together with this one. They all seek parity with the Northern Ireland scheme and I think, with your permission, Sir, we might dispose of them together. I refer to amendments Nos. 45, 46, 47, 49, 50, 51 and 52.
Yes, if the Deputy agrees.
I thought they had all been dealt with already.
It was the question of accident we dealt with at the start.
We dealt with the rates, did we not?
Perhaps the Minister was not listening.
We dealt with a lot of rates. I thought we had dealt with them all.
I should like to know if the Minister can justify the difference in the rates he is offering and those in Northern Ireland.
As I said, with regard to the other rates which it was proposed should be increased here, certain amounts were proposed in the recommendations of the minority of the Commission. Those were adjusted to take account of increases in the cost of living here. The rates of contribution were arrived at on that basis of those rates so to change those now would obviously also involve increasing the rate of contribution. That, I think, would not be justified in all the circumstances. Both the majority and the minority of the Commission were practically unanimous about the total load that should be imposed for this service.
Would the Minister say if, in fact, the rates proposed were in parity with those in Northern Ireland?
Not in all cases.
In most cases they were, were they not?
Yes. We accepted them and adjusted them for increases in the cost of living.
Northern Ireland adjusted them, too. Does the Minister suggest that the Northern Ireland cost of living has increased far more than ours has in the intervening period?
We adjusted them to take account of the cost of living here.
If the Minister does that, surely he knows that in Northern Ireland the same situation arises?
I do not have to do everything they do there.
Does the Minister suggest that the people up there in Northern Ireland do not know what they are doing? Captain O'Neill would be most annoyed.
Progress reported: Committee to sit again.