my client was assessed at 15% for IIDB following an accident at work in 1998. the claim was first paid in 2000 following a succesful appeal (not with us).

he was involved in a job manually moving 750kg waste bins around and thee accident caused damage to his cervical spine. the initial specialists report cited signs of wear and tear (process) but confirmed the acccident had caused injury to the spine.

claim has been reviewed 3x since, twice provisional, in 2002 a final award was made at 15% for 2yrs stating underlying spondylosis was highlighted by the original spec report.

cl has attemtped s/session of the final award decision just prior to expiry and we have the appeal listed 9th sept.

no chance of getting med ev with hearing pending, unless we request adj for production. DM states any continuing disability is down to wear and tear and pre-existing condition. seems logical to me to argue that without the accident the condition would not be as it is now. i accept any accident should have a heaaling period but it appears logical that the continuing problems are still directly linked to the accident and therfore entitlemnt remains.

im not very up on IIDB, cant find the answers in Bonner et al, can we:

challenge a final assessment?
argue that the link to the accident remains?
do the DWP have to prove that were it not for the accident the existing spodylosis would be present anyway?

A final assessment can be challenged by applying for a "change of Circumstance". However, on a C.o.C. - unlike the old "unforeseen circumstances" where the tribunal could only confirm or increase the level of disablement - the tribunal can confirm, increase or decrease the level of disablement.

Where someone is going for a C.o.C., then the burden of proof rest with the applicant.

What the tribunal would look at is the overall level of disablement and then subtract from that figure the percentage loss of faculty due to normal wear and tear.

If there is a pre-existing condition then tribunals tend to take the line that that would have produced a level of disablement evenif the accident had not occured and that at a certain point in time that level of disablement would be the same as would have occured because of the accident.

On that basis tribunals tend to find that disablement is not due to the accident.

Another possible outcome is that the tribunal finds that a person is, shall we say 15% disabled, but that 10% is due to normal wear and tear - result 5% industrial injury and no payment because less than 14%.

thanks for the reply, i had a feeling thats the way it would/will go