Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C3/99(II) (12 October 1999)

 


Decision No: C3/99(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Medical Appeal Tribunal

dated 15 June 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with leave of the Chairman of the Tribunal, against the decision of the Medical Appeal Tribunal which confirmed the adjudicating medical authorities assessment of the extent of the claimant's disablement at 8% from 20 June 1996 for life.
2. The claimant was working as a police constable in Northern Ireland when he was assaulted and injured during a riot on 16 June 1966. As a result of this he suffered injury to his left knee and post-traumatic stress disorder. He continued in employment as a police officer in Northern Ireland until 1968. He subsequently emigrated to Australia in 1971 and joined the Royal Australian Air Force. He was in the Air Force from 1971 to 1986. He then worked as an investigator in accident compensation from 1986 until 1990 and as a community correctional officer from 1990 until he was medically retired due to a cardiac condition on 22 August 1994. A claim for Disablement Benefit was received on 19 March 1996 arising out of the incident on 16 June 1966. The claimant was examined by a medical officer on 4 October 1996 (Dr J Y...) and this medical officer had access at that time to a report dated 25 September 1996 from a consultant psychiatrist (Dr J M G...). An adjudicating medical authority then considered the claimant's case on 17 December 1996 and took into account in particular the reports of Dr G... and Dr Y..., the commonwealth medical officer. This authority then made a final assessment to the effect that the extent of disablement resulting from the relevant loss of faculty (sleep, mood disturbance and social withdrawal) at 8% from 20 June 1996 for life. The claimant then appealed on 4 February 1997 to the Medical Appeal Tribunal.
3. On appeal by a paper determination on 9 September 1997, the Chairman made the following record of proceedings:-

"This claimant is not present and there are no medical notes

available, save as appear in the Appeal papers themselves."

4. The Tribunal made the following findings of fact material to its decision:-

"The current award is 8% from 20.6.1966 for life.

This man is 56, living in Australia. He was a police officer

in RUC on 6.6.1966 on duty during a disturbance and was

assaulted and injured. He suffered, apparently according to

his RUC records, leg chest and internal injuries and was

admitted to Royal Victoria Hospital for 4 days 6.6.1966 -

9.6.1966.

He also apparently suffered Post Traumatic Stress Disorder

as found by Dr J Y... (sic), Commonwealth Medical Officer

and which Dr Y... (sic) confusingly attributes to both the

Belfast incident and stress at work in RAAF. Dr Y... (sic)

feels that his knee condition is minor. He also has an

unrelated heart condition. Dr G..., Director of Psychiatry

in Greenslop Private Hospital finds Post Traumatic Stress

Disorder relates to 1966 incident but also refers to stress

at work in RAAF.

The Australian Government Health Service Medical Officer report

of 4.10.1996 found 20% for Post Traumatic Stress Disorder.

The Tribunal feels that the Post Traumatic Stress Disorder is

related to both the 1966 incident and his RAAF service and

which is measured in total at 20% by the Australian authorities.

At such a distance in time and place it is impossible for this

Tribunal to apportion the percentage Post Traumatic Stress

Disorder."

5. The Tribunal gave the following reasons for its decision:-

"This Tribunal cannot interfere with the current award as

there is insufficient evidence to allow apportionment.

Accordingly the Australian authorities are to be asked to

apportion the disablement percentage of 20% as to Post

Traumatic Stress Disorder arising out of the 1966 incident

and service in RAAF. Per the guidance of the Australian

authorities the following rule should be applied "If some

disability has occurred after the relevant accident arising

from an injury or illness which is not directly attributable

to the relevant accident, the Tribunal should assess the total

disablement and offset (deduct) the amount of disablement which

would have been present had the relevant accident not occurred.""

6. The unanimous decision of the Tribunal to adjourn the case was in the following terms:-

"Adjourn to enable further evidence as noted in MAT9(pd) to be

obtained.

The further evidence to be sought by Industrial Injuries Branch

which Branch already has a "line of communication" with the

Australian Authorities."

7. Accordingly the appeal came before the Medical Appeal Tribunal for further consideration on 17 December 1996. Unfortunately, although understandably, the composition of this Tribunal was entirely different to the earlier Tribunal.
8. The record of proceedings by the Chairman of this Tribunal was in the following terms:-

"This is a paper determination. Tribunal members have perused

and carefully considered the scheduled documents and the copy

reports from Dr G... (Australia) dated 28 November 1997 and

Dr Y... (Australia) dated 19 February 1998. We have also

considered the claimant's letter which was received 19 March

1998. We have no evidence before us to convince us that the

assessment of 17 December 1996 was inappropriate. When this

assessment was made the reports of Dr G... (dated 25 September

1996) and Dr Y... (sic) (3 October 1996) were before and

considered by the adjudicating medical authority. We have

studied and considered the most recent reports from Dr G...

and Dr Y.... We still have no reason to disagree with the

adjudicating medical authority assessment."

9. The Tribunal's findings of fact material to its decision were in the following terms:-

"We have made clear findings on the basis of the medical

evidence available."

10. The reasons for the Tribunal's decision were as follows:-

"For reasons set out at 1. above."

(the reference to "1" is a reference to the record of

proceedings set out above).

11. The unanimous decision of the Tribunal was in the following terms:-

"We confirm the assessment of 8% made by the adjudicating

medical authority on 17 December 1996."

12. It appears to me that there has been considerable confusion over the identity of one of the Australian doctors. There is a reference to a Dr Y... in the findings of fact at the first Tribunal. Close perusal of the papers would suggest that the correct appellation should be Dr Y.... This doctor appears to be the same doctor referred to in the second Tribunal's record of proceedings as Dr Y... in the reference to the report of 3 October 1996. However, the other references to Dr Y... in the second Tribunal's record of proceedings probably should have referred to a Dr S Y... who has been described as an "Acting/SMA ". However, this real or apparent confusion, will have to be resolved when this case is finally adjudicated upon.
13. The claimant sought leave to appeal to a Social Security Commissioner and such leave was granted by the Chairman on 3 September 1998. The appeal was not served within the statutory time limit but a Commissioner, on 18 June 1999, accepted the appeal for special reasons.
14. The claimant based his appeal on the following grounds, namely, that the Tribunal had wrongly disregarded the specialist medical evidence supplied by the Australian medical authorities. Mr Connolly of the Industrial Injuries Branch of the Department made the following written submissions by letter dated 2 July 1999:-

"Mr V... was originally examined by Dr Y... (sic) on 3.10.96

who expressed the opinion that he suffered from:-

1. Post Traumatic Stress Disorder - a condition which was

felt to be directly related to the industrial accident

on 16.6.66 in which Mr V... sustained injuries during

a riot in the course of his service with the Royal

Ulster Constabulary (RUC). Dr Y... (sic) assessed the

extent of disablement arising from this condition at

20%;

2. Internal Derangement of Left Knee - a condition which

was considered to be partly due to the incident on

16.6.66 but which was, however, a minor problem and

amendable to minor surgery;

3. Ischaemic Heart Disease - a condition which Dr Y...

(sic) described as serious in its present form but not

related to the incident on 16.6.66.

An adjudicating medical authority conducted a paper

determination on 17.12.96 and, taking into account both the

report Dr J G..., Consultant Psychiatrist, dated 25.9.96

and the report completed by Dr Y... (sic) on 3.10.96, assessed

the extent of disablement at 8% in respect of impaired

psychological function with less 1% attributable to impaired

function of left lower limb.

The Medical Appeal Tribunal of 24.11.97 which considered Mr

V...'s appeal against the adjudicating medical authority's

decision of 17.12.96 recorded in its findings of fact material

to the decision that it considered the condition of Post

Traumatic Stress Disorder to be related to both the 1996

incident during his employment with the RUC and his subsequent

service with the Royal Australian Air Force (RAAF). The

Tribunal recorded, however, that it found it impossible, due to

the distance in time and place, to apportion the percentage

disablement to the 1996 incident. The hearing was, therefore,

adjourned to enable the Australian Authorities to consider

apportionment.

A subsequent report completed by Dr G... on 28.11.97 indicated

that, in his opinion, the condition of Post Traumatic Stress

Disorder is directly related to Mr V...'s service with the RUC

and that the percentage disablement connected with his later

RAAF service was minimal. In a report dated 19.2.98, Dr Y... advised that, having regard to Dr G...'s report dated 28.11.97, the percentage disablement attributable to the 1966 incident is 20% with negligible

disablement connected with his RAAF service.

Section 46 of the Social Security Administration (Northern

Ireland) Act 1992 provides that the only grounds for appealing

to the Social Security Commissioner from a decision of a Medical

Appeal Tribunal is that the decision is erroneous in point of

law. In Mr V...'s case, the Medical Appeal Tribunal have

indicated that it had carefully considered the scheduled

documents including the reports from Dr G... and Dr Y... but

had no evidence before it to convince it that the adjudicating

medical authority's decision of 17.12.96 was inappropriate.

The Tribunal went on to confirm the assessment of 8% made on

17.12.96. The Department submits, however, that it is unclear

from the findings of fact material to the decision why the

Tribunal, having sought the assistance of the Australian

Commonwealth Medical Officer in apportioning percentage

disablement to the 1966 incident, then rejected that opinion.

For the reason, it is submitted that the Tribunal erred in law

in not setting out precisely how it arrived at its decision that

the assessment of disablement should be assessed at 8%."

15. It seems to me that Dr Y... and Dr Y... have been referred to as the same person, as Dr Y..., in these submissions and I also notice that claimant in his original appeal documents has also confused the identity of the two doctors. However, while this is not an unimportant matter, in my view the error in the identity of the doctors does not vitiate the substance of the appeal of the claimant and the substance and relevance of the departmental submissions.
16. I agree with Mr Connolly that it is unclear from the findings of fact material to decision of the second Tribunal why it rejected the Australian medical evidence after the first Tribunal specifically required the assistance of the Australian commonwealth medical officer. There is a possibility that the confusion between Dr Y... and Dr Y... has resulted the second Tribunal inadvertently receiving assistance from an entirely different medical body from the one that the original Tribunal had asked to provide further medical evidence. However, I agree that, in any event, the Tribunal has erred in law in not setting out precisely how it arrived at its decision that the assessment of disablement should be assessed at 8%, in light of the fact that there was substantial evidence from an apparently competent authority to the effect that a very different percentage figure was appropriate.
17. In the circumstances I hold that the decision of the Medical Appeal Tribunal of 15 June 1998 was erroneous in appoint of law. I accordingly set it aside and refer the case to a differently constituted Appeal Tribunal and this Tribunal should take into account the present decision when coming to its determination.

(Signed): J A H Martin

CHIEF COMMISSIONER

12 October 1999