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Order to pay earnings lost after work conference mosquito bite

A doctor who contracted viruses from a mosquito bite while attending a medical conference in India – leaving him barely able to walk or sleep – has spoken of his relief after a court told an NHS organisation to repay his lost earnings.

David Stewart, a Manchester critical care consultant, travelled to Surat, on the west coast of India, for an international conference in October 2010, as part of professional leave approved by his employer Central Manchester University Hospitals NHS Foundation Trust – but contracted the chikungunya virus and dengue fever while there, leaving him unable to work and with no prospect of recovery.

On his return to the UK during a period of phased return to work, and when he was unable to undertake night shifts, the trust cut his paid hours of work, nearly halving his income. Dr Stewart applied for a TIA (temporary injury allowance), a benefit which applied up to 2013 and which would have covered up to 85 per cent of his normal earnings while on reduced pay, but his trust declined the application and the NHSBSA (NHS Business Services Authority) also rejected it, after a series of adjudications and disputes processes.

But Dr Stewart’s case has now been heard in the high court, in a case backed by the BMA. A judge was asked to consider whether Dr Stewart had attended the conference in the course of his employment and whether Dr Stewart could show he was bitten at the conference. The court found in favour of Dr Stewart in both issues, and that he should be paid benefit retrospectively, and with interest.

Dr Stewart is now waiting to hear if there will be an appeal and said he wanted to keep his emotions closely guarded until knowing his fight is definitely over.

‘It is real relief,’ Dr Stewart said, ‘but given how long this has taken – until we have confirmation that this is at an end and there is no further appeal and they are going to honour their commitments I am reserving an emotional response.

‘There has been significant negative personal impact and that is compounded in terms of the potential negative effect on the service. The NHS is the caring service – that is its function, its reason for existence. It’s like any institution, the function you get out of your employees is proportional to the way they are treated as an individual. The failure of the management to support and care for its employees is a very dangerous precedent to set.’

 

Citing other reasons

The NHSBSA and the pensions ombudsman said the leave was not part of his work duties and didn’t fall within the scope of protection. They also claimed he could have contracted the viruses after the conference, when, having been joined by his wife, Dr Stewart visited other parts of India including New Delhi, Agra and Jaipur.

Lawyers argued that Dr Stewart’s attendance at the conference should be considered as work and that the viruses were likely to have been contracted during the conference, pointing out that the only type of mosquito capable of transmitting both of them simultaneously exists in Surat but not in the places subsequently visited.

Dr Stewart – who loved his ‘challenging, all-consuming, fantastic job’ – initially attempted to return to work after a long time attempting to recover, and undertaking a demanding schedule of rehabilitation. But the intensity of the job, the lack of sleep caused by pain and failing function of his hands eventually made it impossible, and he was forced to fully retire in 2014.

He has been left needing to find a new home where he can fit a lift and spends at least four hours a day undertaking gruelling physiotherapy – just to stave off the ever-encroaching joint stiffness and progressive degeneration of his muscles and remaining abilities.

The BMA felt Dr Stewart’s case could have implications across the profession, raising concerns that support for staff seeking to improve knowledge or work abroad is not there – despite widespread encouragement from the Government and health leaders for such initiatives and as mandated by the GMC. For this reason the association backed Dr Stewart’s case to the high court.

BMA pensions manager Jackey Brodie, who was heavily involved in the case, said: ‘This case has a very important policy issue attached to it – so it was crucial that we supported Dr Stewart. We pursued the case through the NHS Business Services Authority internal disputes process all the way through to the Pensions Ombudsman but were unsuccessful on each appeal but Dr Stewart has always had a very positive attitude throughout and it’s really rewarding to see the wider issues of the case have been noted.

‘This is a good outcome for a decent man and a committed doctor who has been through so much. It’s wonderful news.’

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