Variable conditions : not a majority of time

Client appealing UC LCW/LCWRA decision : 0 points and exceptional circs regs not considered either

Client has occipital nerve issues, which leave her unable to function for 4-5 days every 6-8 weeks.
Migraine type symptoms, vision gone, unable to stand or even lift head from pillow when she has these flare ups.

Im struggling, as regs state that there is a majority of time provision regarding LCW (reg 40?), and she doesn’t fit into that box so to speak, as most of the times she can function ok.

She has lost jobs due to this yet the WCA rules state she has no limited capability for work.

Thoughts?

what about exceptional circumstances - what work/work related activity can she safely do when unable to see or stand - how can she get home, how safely do any job involving cooking, machinery etc
For reg 29 - what job that she could realistically do without it being a risk to her health

Any chance the frequency of episodes goes up when she’s more active ( i.e. can be triggered by stress or fatigue)?

Or that problems start suddenly when she does have the episodes - and could cause her to be in danger if she is out of the house when that happens ?

If either of those applied you could try arguing that if she had to look for work (or take part in work focused activities) she’d be at substantial risk. That can cover a lot of things the form and descriptors don’t take into consideration.

Edit - beaten to this suggestion the exact minute I posted !

Reg 40 only relates to the LCWRA descriptors. It doesn’t apply to the LCW descriptors or to ex- reg 29 and 35.

It was more the frequency of the issue that got me. I know caselaw exists regarding risk not being more likely than not however I would need to explain the risk + consequences, and factor in the fact she is only debilitated one week in 6

What about the ‘reasonable adjustments to workplace’ amendment - 29(3)/reg 4(2)(a) of schedule 8?

I’m divided on the applicability of it.
On the one hand, based on the information your provided about the frequency, and presuming that she functions 100% (or so) on any remaining day/week, I have no doubt that she could do many different forms of self-employment effectively. And various workplaces, dependant on her duties would certainly be amenable to reasonable adjustments that allow for her condition. Flexible hours, perhaps combined with a reduced hours contract, for instance.

On the other hand, it is an entirely different question whether or not she’d be able to obtain the above employment arrangements. The job market is difficult enough already.
How regular are her flares? Is she guaranteed safe for the next 4 weeks if she’s just had a flare?
Is there any way of predicting a flare? If it could happen in the middle of the workday there aren’t many occupations that could adjust to it.