QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN
(On the application of
NATIONAL ASSOCIATION OF COLLIERY OVERMEN, DEPUTIES AND SHOT FIRERS)
|- and -
|SECRETARY OF STATE
FOR WORK AND PENSIONS
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jonathan Moffett (instructed by Office of the Solicitor,
Department for Work & Pensions) for the Defendant
Crown Copyright ©
Mr Justice Pitchford:
"We are acting for a large number of former miners who are now suffering from vibration white finger......Our union clients have requested that we investigate the marked discrepancy between those former miners who have been successful in civil claims and those former miners who have been successful in obtaining benefits for PDA11. Our research has led to the development of a deep concern about the use of the cold water provocation test as a diagnostic tool by the examining BAMS [Benefits Agency Medical Services] doctor.
It seems clear that the cold water provocation test is extensively used in South Wales and the outcome of the cold water provocation test is one of the main, if not the only criteria, by which the condition is diagnosed in those applying for benefit for PDA11. In support of this assertion please consider the enclosed statement prepared by Mr Alun Davies who is the Assistant Secretary of NACODS and who has extensive experience of dealing with these matters.
It seems equally clear that the cold water provocation test is of no diagnostic value whatsoever and its use should now be abandoned by the Department of Work and Pensions. In support of this argument would you please consider the enclosed report prepared by Professor C L Welsh dated 9 August 2001.
In the circumstances would you please confirm that the Department will now issue clear guidance in relation to the Cold Water Provocation Test in relation to those Claimants seeking benefit for PDA11....."
"There is no universally recognised and agreed diagnostic test for "white finger". Tests developed in the context of settling civil claims for negligence may not be appropriate for Social Security benefits. The Benefits Scheme requires a straightforward and simple administrative approach suitable for a National Benefits Scheme. It is important to ensure that the tests used are practicable, useable, repeatable and acceptable for diagnosing the condition, and assessing a person's disability for industrial injury benefit purposes.
Because the criteria are not the same in the industrial injuries scheme and in the British Coal compensation cases it is quite possible for a claim for civil compensation to succeed even if a claim for prescribed disease A11 has failed. This is because of the difference between the two schemes and is not a reflection of the competence of the doctors carrying out the assessments.
I hope that this helps to explain the Government's position."
"(1) Industrial injury benefits shall in respect of a person who has been in employed earner's employment be payable in accordance with this section.... in respect of –
(i) any prescribed disease, or
(ii) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment)
which is a disease or injury due to the nature of that employment and which developed after 4 July 1948.
(2) A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –
(a) it ought to be treated, having regard to its causes and incidence and other relevant considerations, as a risk to their occupations and not as a risk common to all persons; and
(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty."
"....Each disease or injury set out in the first column of Part 1 of Schedule 1 hereto is prescribed in relation to all persons who have been employed on or after 5 July 1948 in employed earner's employment in any occupation set against such disease or injury in the second column of the said Part...."
"A11. Episodic blanching, occurring throughout the year, affecting the middle or proximal phalanges or in the case of a thumb, the proximal phalanx of –
1. in the case of a person with five fingers (including thumb) on one hand, any three of those fingers, or
2. in the case of a person with only four such fingers, any two of those fingers, or
3. in the case of a person with less than four such fingers or, as the case may be, the one remaining finger (vibration white finger)."
"History Prolonged use of vibrating tools.
Symptoms Intermittent blanching of fingers. The extent of blanching, its frequency, duration, seasonal incidence and associated symptoms should be carefully recorded.
Signs Usually none. In the more advanced cases there may be some loss of touch.
Investigation These are aimed at finding causes of secondary Raynaud's Phenomenon other than vibration, for example poliomyelitis, syringomyelia, scleroderma, lupus erythematosus, rheumatoid arthritis, occlusive vascular disease and costo-clavicular syndrome.
In severer cases blanching may be induced by asking the patient to immerse his or her hands in cold water for a few minutes.
Due to the nature of When a Prescribed Disease is diagnosed in a worker who is a) currently employed in or; b) within a month of having left the relevant scheduled occupation, the disease should be presumed to be due to the nature of the occupation unless there is evidence to the contrary.....
Special points The various gradings of Vibration Induced White Finger by Taylor and Pelmear, Rigby and Cornish and the recent Stockholm Workshop Scale have not proved to be very useful in the diagnosis of PDA11. The diagnosis should be based strictly on the diagnostic criteria laid down in the definition of the disease for industrial injuries purposes, and special attention should be paid to the exact extent of blanching in each finger and whether or not the blanching occurred episodically all the year round." [my emphasis]
1) Heavy reliance by the DM on the CWPT. It is the basic test used by MAs to determine whether the applicant suffers from PDA11.
2) Less reliance is placed on the test by the tribunal. Although the test is almost always carried out at the tribunal, several appellants have succeeded in their appeals despite a negative test result.
3) The tribunal does place reliance on independent medical evidence gathered primarily for the purpose of a civil claim but the DM less so or not at all.
1) A description of symptoms.
2) An account of exposure to percussive and vibratory tools in the course of employment, including the number of years exposed, the type of tools used, the method of use and an estimate of daily exposure time.
3) Details of personal, social, family and past medical history, medication, alcohol consumption and smoking.
"..... There remains an incomplete, or even total, lack of knowledge of the effects of HTV by some members of the medical profession who are perhaps not so intimately concerned with the problem. Even among occupational physicians, considerably more emphasis has been given in the past to vascular effects. This misunderstanding has been fostered to some extent by British legislation.... in an attempt to overcome some of these difficulties, in 1991 the Faculty of Occupational Medicine of the Royal College of Physicians, London, commissioned a working party to study and report on the clinical effects and pathophysiology of HTV and their assessment....."
"Continuing exposure to HTV results in the classic symptom of episodic blanching, with attacks to the fingers most exposed to vibration, usually precipitated by cold exposure. Further transmission of vibration to the hand results in an increase in the area affected by blanching, which may eventually extend to the base of the fingers and very occasionally beyond. The distribution of the affected fingers varies with the occupation and the way in which that occupation is performed by the individual worker.
Attacks of episodic blanching usually last several minutes, with a pattern of blue/white discolouration followed by redness. In some cases, there develops permanent blue discolouration. Transient tingling may be felt and considerable pain which may persist for some time after the finger has apparently returned to normal. During the attack the affected area becomes numb and unrecognised injury may be sustained at this time.
There is steady progression of the area affected in most cases, with attacks becoming increasingly frequent and often being ascribed to increasing age or accepted as part of the job."
"Simple screening tests easily performed within the consulting room should form part of the assessment examinations. No single test is able to diagnose and stage HAVS, but the use of multiple tests can help both to substantiate the presence of the syndrome and to stage its progression. False positive and false negative results can occur with any of the tests described. Some tests which have been advocated in the past are of doubtful value because of variations which are not infrequently found in the normal population."
"Special investigations require additional equipment and expertise. They may be performed by occupational physicians with appropriate experience, otherwise referral to specialist centres is required.
Arm and Digital Blood Flow. This test can demonstrate a vascular tree, but is not useful in the diagnosis of HAVS.
- Cold Provocation Tests
(a) Temperature recovery times of fingers.
(b) Fingers systolic blood pressure measurements..…..
Recommendations concerning cold provocation tests in diagnosis and assessment of hand-arm syndrome
The literature contains many reports of cold provocation tests which have been used in the diagnosis and assessment of HAVS for more than 30 years, with disappointing and, in many cases, misleading results. At present many different tests are performed with wide variations in the challenging conditions and ill-defined end-points, without reference data (sensitivity and specificity). Simple cold provocation, such as dipping the hand(s) in cold water followed by visual inspection of the colour of the skin, is of negligible value and gives a high number of false negative results. This method should be abandoned."
An acceptable cold water provocation test should have the following criteria:
- standard acclimatisation and challenged conditions;
- a defined end-point; and
- reported sensitivity and specificity.
Satisfactory measured variables are:
- temperature, using thermistors, thermocouples and thermal imaging; and
- digital systolic blood pressure"
"Two questions arise in relation to the diagnosis of VWF for the purpose of determining industrial injuries claims. These are: (i) Does the Claimant in fact have white finger? (ii) If so, is the white finger occupationally caused? In demonstrating the presence of white finger the principal difficulty arises from the intermittent nature of the condition for, especially in its early stages, it cannot be made to appear with any reliability in the course of a medical examination. From the evidence we considered, we concluded that there is no single objective clinical test to confirm its presence. But we are told that, in the severer forms, it is sometimes possible to provoke the condition by comparatively simply means, such as getting the patient to hold his hands under cold water for a few minutes. An examination on these lines, combined with careful history taking, should, it was put to us, usually suffice to diagnose the presence of the condition in its more advanced stages." [my emphasis]
"We do not think that there is a case for specialist medical centres to be set up to diagnose VWF and assess the resulting disablement. Nor do we think that diagnosis and assessment should normally depend on a complicated series of tests. Since we have recommended that disablement benefit only is to be payable, specialists would carry out the initial examination of Claimants and we believe that, by a combination of history taking with straightforward tests to exclude other causes of white finger, it will be possible to arrive at a satisfactory diagnosis in respect of the severe cases to which we have suggested prescription be limited." [my emphasis]
"There are many tests that have been used to diagnose and assess vibration white finger. Many are of questionable reliability, are of little use for screening procedures, do not discriminate enough in themselves and are insufficiently objective. Specialised tests for screening have been proposed and these include:
a) Vascular - Doppler
- Cold Provocation
- Finger systolic blood, pressure following cooling....."
"In assessing the vascular effects of vibration the Doppler Test has not proved particularly valuable although it can demonstrate the patency of the peripheral vascular tree. The cold water provocation test is much in vogue but requires careful standardisation of the test conditions and accurate temperature measurements. The specificity and sensitivity of both tests are considered by some to be unacceptably low. Instruments for measuring blood pressure, following cooling, in the finger are available, reliable, and easy to use."
"Finger systolic blood pressure following cooling, and vibrometry should be used as the principal diagnostic tests; (other tests may be of value in assessing levels of disability, but are not reliable enough to make the initial diagnosis)."
"Cold provocation testing using finger skin temperature monitoring by the technique described is not a valid tool for diagnosing the vascular component of the hand-arm vibration syndrome. Performing the test at different seasonal periods did not affect outcome."
This conclusion is entirely consistent with the recommendation made by IIAC in 1995.
"Numerous tests have been developed as diagnostic aids for vibration-induced white finger. The cold provocation test is just one of those tests. The tests are not very reliable, having too many false positives and false negatives to be reliable, i.e. the results can indicate the disease is present when it is not, or can indicate that it is not present when it is. For this reason the Department does not put too much weight on the cold provocation test, and it is by no means universally used throughout the country. As far as I am aware there are no Departmental guidelines on its use."
"Accordingly, as is indicated by the material to which I have referred.... the NDPD test is not put forward as a test which can provide a definitive answer to the question of whether an individual suffers from PDA11. Rather, it is regarded (at best) as a tool which may be of use in certain cases. This is because, as is accepted by the Secretary of State, the NDPD test is not particularly reliable...."
In her second statement at paragraph 3, Dr Reed confirms that this represents her own view and the Secretary of State's policy.
"Various clinical and special tests have been used in the evaluation of patients with hand-arm vibration syndrome. Compression of the nail bed of affected digits for 10 seconds may show delay (minus 5 seconds) return of the digital circulation (Lewis-Prusik Test). Finger plethysmography allows measurement of changes in finger systolic blood pressure and finger vascular circulation following cooling. Digital blood pressure measurements using a Doppler device may demonstrate a fall in pressure after cold provocation. Cold provocation tests are commonly used in an attempt to provoke digital pallor. However, the method of doing these tests has not been standardised, and sensitivity is low."
"Cold air or water provocation tests (immersion of the digits in air or water for 2-10 minutes at 5-15 degrees Celsius with recording of skin temperature) to note any reactive hyperaemia while immersed, and delay in recovery afterwards. The cold stressed tests are used to verify that vasospasm occurs on cold exposure, and the severity grade may be determined from the results."
It is plain from the text that reference is made not to the NDPD test but to the more sophisticated temperature testing itself now disapproved by Lawson and others.
"503. The onset of Raynaud's Disease and Raynaud's Phenomenon is usually gradual over a number of years, with attacks being rare and in winter only. Usually the fingers are affected, (but it can affect the toes and, more rarely, the nose, ears, cheeks and chin), beginning with tingling and/or numbness in the tips of the fingers. Later in the progression of the disorder there is well-demarcated blanching on exposure to intense cold, at first in the tips of the fingers, but over time this blanching progresses to affect more and more of the finger, and to occur throughout the year, in that it can occur on colder summer days
504. If the cause of the disorder is vibration the disorder will not progress if exposure to vibration ceases. With continued exposure to vibration the disorder may slowly worsen.
505. The colour changes are characteristic. The blanching is an intense whiteness with a well-defined demarcation. The blanching may last a few minutes or last up to an hour or two. Sometimes immersion in warm water speeds up recovery. On recovery the fingers may become cyanotic (i.e. turn a greyish-blue colour) or become hyperaemic (i.e. very red in colour). Blanching is not just a paleness, it is an intense whitening. In severe cases, with the passage of time, there may be trophic changes leading to gangrene of the tips of the fingers.
506. As the symptoms are intermittent, and only occur in cold conditions, it is rare for the clinician to witness an attack. Thus, in a specific case, it is important not only to try to have an accurate description of the symptoms, but also to establish an accurate diagnosis and that the cause is occupational in origin, and not due to another cause.
508. There is no simple, reliable test for Raynaud's Phenomenon, and much of the diagnosis depends on the history and observations during the interview. Loss of sensation, which can be a feature of Raynaud's Phenomenon, such as can be identified by simple tests such as the response to pinprick, cotton wool etc. may not necessarily be disabling, and rely on the patient's responses, and are therefore not very reliable. On the other hand observation of manual dexterity is relatively easy to test formally, and verify informally through observation during the interview, pre and post-examination etc.
509. Because it is rare for the clinician to see the colour changes, and the tests which have been developed are not very reliable (having many false positives and false negative results), the diagnosis of the disorder and its cause are mainly derived from the history from the patient. In cases seeking compensation (e.g. in the civil courts or under the Industrial Injuries Scheme) it is particularly important to check the patient's history closely. The signs are easily learned, and there has been evidence of "coaching" to ensure the criteria for diagnosis and causation are fulfilled."
"1. The examination should involve both informal observations throughout the interview and a formal clinical assessment. (It is very rare for the blanching to be witnessed at examination, even on "objective" testing – see para 4.4.4).
2. Informal observation of the ability to hold a pen, unfasten and fasten buttons etc. should be made throughout the proceedings, and commented upon in the clinical findings.
3. The formal examination should involve formal testing of fine manipulatory skills... and to note any discrepancy between the formal testing and the informal observations; formal tests for sensation, noting if these correlate with the nerve distribution; tests for thoracic outlet syndrome, e.g. presence of a cervical rib. Tests should be performed to eliminate an alternative diagnosis, e.g. carpal tunnel syndrome, tenosynovitis etc.
4. "Objective" tests have been developed, and are used in civil claims. However these are often unreliable, having many false positives and false negatives, and, in several instances are not truly objective as responses can be learned. At best they are diagnostic tools, to be considered along with the history and results of formal and informal observations. As they take a considerable length of time and require a controlled environment, they are not considered appropriate for use in IISB, where the extent of disablement is not established by their use."
"Following our meeting at the Hilton Hotel last Thursday and Friday, I have outlined some of my concerns in relation to PDA11.
1. The condition is poorly prescribed. The present narrow criteria rely on an anecdotal account of blanching (this feature cannot be reliably provoked by cold immersion in the examination)....
2. The medical examiners in MATs (and I include myself in this criticism) cannot reliably diagnose or rule out the condition in Claimants. This leads to confusion and distress in many circumstances. Most of the examining doctors have only sketchiest understanding of this industrial injury and to award disablement benefit in this way is unacceptable."
"We must now say that if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi, has jurisdiction to correct the error of law by an appropriate declaration. Such an extended jurisdiction is no doubt a salutary and indeed a necessary one in certain circumstances, as the Royal College of Nursing case  AC 800 itself well illustrates. But the occasions of departmental non-statutory publication raising, as in that case, a clearly defined issue of law unclouded by political, social or moral overtones, will be rare. In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to decide whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or proffering answers to hypothetical questions of law which do not strictly arise for decision."
"The second general comment which should be made is that the courts are not, contrary to what is sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves."
"The Department for Work & Pensions requests that the Council undertake a review of the current prescription for PDA11.
Recent Capital Commissioners decisions indicate that both the neurological and vascular disabilities should be assessed when deciding the level of disablement. This differs from both the intention of the legislation and its present wording.
IIAC last reviewed the prescription in 1995. On that occasion the Department did not implement the recommendations because the cost of introducing expensive tests was disproportionate to the number of cases that would benefit. However currently medical advisors and decision makers are assessing cases in the light of the new case law without the need for specialised tests.
In addition scientific evidence relating to PDA11 and HAVS will have changed since the last IIAC report in 1995.
Once IIAC's review is completed the Department will legislate to regularise the position."
"In severer cases blanching may be induced by asking the patient to immerse his or hands in cold water for a few minutes but a negative result should be treated as of no diagnostic value"
or words to like effect.