Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2001] NISSCSC C3/01-02(CRS) (18 February 2002)

 


Decision No: C3/01-02(CRS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
COMPENSATION RECOVERY SCHEME
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 25 February 1999
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the Department against a decision dated 25 February 1999 of an Appeal Tribunal sitting at Belfast. The delay in this decision has been occasioned by two matters. Firstly because it was decided to await the decision of Court of Appeal in Northern Ireland in the case of Eagle Star Insurance and Department for Social Development ex parte McClelland. Secondly there was a procedural problem in relation to who should proceed with the appeal following the McClelland decision. Eventually leave was given to the Department to reinstate its previously withdrawn appeal. This facilitated the Compensator. The Compensator has throughout the appeal to me been represented by Mr G, solicitor of Messrs T and Co Solicitors and the Department by Mr Gough of the Decision Making and Appeals Unit.
2. A hearing was requested by the Compensator but I consider that I can properly decide this matter without such a hearing. I set the Tribunal's decision aside as in error of law. As I do not consider that this is a case where I can properly give the decision which the Tribunal should have given, I remit the matter to a differently constituted Appeal Tribunal for rehearing and redetermination. That Tribunal should bear in mind the views expressed below.
3. It may be of assistance if I set out briefly the background to this case. The claimant had originally sought compensation on the basis that he was suffering from asbestosis. Following additional medical evidence his case was settled on the basis that he had suffered personal injury in that, here I quote from the Statement of Claim: -

"The Plaintiff has developed pleural plaques and is at risk of developing Asbestosis and he remains at risk of developing lung cancer and Mesothelioma."

4. .In the Statement of Claim the Plaintiff (hereinafter called the Injured Person) is described as having sustained severe and permanent "personal" injuries and it is stated that "He has suffered and will suffer pain and discomfort and loss of amenity and may sustain loss and damage."
5. The Injured Person took no part in the appeal to the Tribunal nor to me. The Compensator submitted that it was accepted in the relevant court proceedings that the Injured Person had not suffered from asbestosis at any time between 1994 and settlement in 1998. The only "disease" from which the Injured Person had suffered during that time, in the submission of the Compensator, was pleural plaques. In addition the Injured Person complained that he was suffering from shortness of breath and some chest pain. Those symptoms, in the submission of the Compensator, were not pleaded as particulars of personal injury.
6. In the Compensator's submission the medical reports did not at any stage attempt to relate the Injured Person's symptoms to his chest condition. On the contrary, it was submitted, the report of Dr W of 6 January 1998 and the early clinical records from Mr M and his Registrars concluded respectively that the symptoms "may be related to his beta blockers" and "relate more to his hypertension". The Compensator therefore submitted that there was not one piece of evidence to link the symptoms with the presence of pleural plaques.
7. In the submission of the Compensator the Tribunal's decision that Disablement Benefit could not be recovered, since that was awarded on the basis of an incorrect diagnosis of asbestosis, was a correct decision.
8. As regards the decision insofar as it related to Sickness Benefit, Incapacity Benefit and Invalidity Pension, hereinafter collectively described as "the incapacity benefits," the Compensator submitted that the Tribunal had decided that the Injured Person, was awarded these benefits because he was certified as unfit for work and suffering from "a variety of conditions including dyspnoea". The Tribunal had concluded that "It appears to have been accepted that he [the Injured Person] experienced some symptoms relating to his chest condition". (The Tribunal had held that the benefits were recoverable on the basis that the Injured Person was awarded compensation for a respiratory condition short of asbestosis.) In the Compensator's submission this conclusion was incorrect and unsupported by the evidence.
9. Firstly the Compensator submitted that it was not accepted that the Injured Person suffered symptoms "relating to his chest condition". It was accepted that he suffered symptoms but such explanation as existed for these symptoms was that they were related to hypertension or may have been caused by beta blockers. There was no evidence at all that they were related to pleural plaques.
10. Secondly the Tribunal, in the Compensator's submission, accepted that the basis of the claimant's unfitness for work and thus of the award of benefits was that he suffered from "a variety of conditions including dyspnoea". The Tribunal had therefore expressly attributed the benefits to a condition other than that for which the Injured Person was compensated.
11. Thirdly, in the Compensator's submission, benefit was recoverable only where the compensation payment had been made "in respect of a person in consequence of an … injury or disease" and where benefits had been paid "in respect of the injury or disease". On the basis of the Tribunal's own findings, the Injured Person was compensated for pleural plaques only. The benefits were paid in respect of a separate and unrelated condition. Accordingly the benefits should not be recoverable.
12. The Department made observations on the submission of the Compensator by letter dated 13 December 2001 from Mr Gough. Mr Gough submitted that in this case the Compensator had clearly disputed whether the award of the various benefits related to the disease for which compensation was awarded. The Department submitted that the Tribunal had not fully explained whether it considered that the payment of the incapacity benefits was attributable to the relevant accident, injury or disease. In that respect it had erred in law. In addition, in the Department's submission, the medical evidence of the various consultants, Dr G, Dr W, Dr Mo and Dr M was in conflict with the evidence which the Tribunal accepted for awarding the relevant benefits. The Tribunal had failed to give adequate reasons as to why it accepted the medical evidence submitted by the General Practitioner as opposed to the medical reports from the various Consultants. Its reasons were not therefore adequate and it had erred in law in this respect.
13. The Tribunal's decision dated 25 February 1999 recorded as part of its findings of fact that it accepted the contents of Dr G's report dated 2 December 1997 indicating that on CT scan the claimant was noted to have a "few small pleural plaques present over each lung field and at the left hemidiaphragm, with minimal calafication, [sic] indicating past exposure to asbestos". The Tribunal also found that between 1994 and April 1998 the Injured Person did not have interstitial fibrosis nor was he suffering from asbestosis. It further found that during the relevant period he complained of a shortness of breath on exertion.
14. In its reasons for decision the Tribunal mentioned that the Injured Person (after the dropping of the claim in relation to his suffering from asbestosis) had continued to claim on his amended Statement of Claim that he had suffered pain, discomfort and loss of amenity and resulting loss of earnings. The Tribunal further found that the evidence indicated that the Injured Person was not suffering from any prescribed disease and that Disablement Benefit was therefore awarded in error. With regard to the incapacity benefits these, in the Tribunal's view, were paid as the Injured Person was accepted as being unfit for work, his doctor having certified him as suffering from a variety of conditions including dyspnoea and investigation of same. The Tribunal reasoned that compensation was paid to the claimant "in respect of a respiratory condition, short of asbestosis" and the Tribunal stated: -

"… we cannot conclude that these benefits were paid otherwise than in respect of the relevant injury or disease. It appears to have been accepted that he experienced some symptoms relating to his chest condition."

15. I do not have the Record of Proceedings of the Tribunal so I am not certain of exactly what was contended before it. However, it is apparent from the papers that the Tribunal did have before it medical reports and letters which included the following:

1. Results of respiratory function tests dated 7 September 1997, 7 December 1994 and report of Mr B B dated 10 December 1996.

2. Copy letter from Dr E M to Dr D G McG dated 29 June 1994.

3. Copy letter dated 28 September 1994 from Dr L H to Dr D G McG.

4. Copy letter dated 11 January 1995 from Dr A M N to Dr D G McG.

5. Copy letter dated 11 July 1995 from Dr B MacL to Dr D G McG.

6. Copy letter dated 14 November 1996 from Dr J S to Dr D G McG.

7. Copy letter dated 31 August 1998 from Dr J MacM, Consultant Physician to the Compensator's solicitors.

8. Report dated 2^nd December 1997 of Dr G.

9. Report (date unknown) of Dr W.

16. The Tribunal also had before it details of the benefits which the Department considered to be recoverable which totalled some £13,872.00 as at 5 June 1998. I am missing a copy of the reports of Dr W, G and Mo. I have not considered it necessary to try to obtain these as they are not essential to my decision.
17. It is apparent from the medical reports which were in front of the Tribunal that the Injured Person was complaining of shortness of breath on exertion and of some pain over the right scapula. It is also apparent that treadmill tests did not show evidence of ischaemic heart disease and that pulmonary function tests were considered to be essentially normal. In his letter of 11 January 1995 Dr N... states that he explained to the Injured Person that "… some of the symptoms may [my emphases] be related to his beta blocker medication" and stated that he was to talk to his GP regarding an alternative treatment for his blood pressure. In his letter of 11 July 1995 Dr MacL states "I suspect his breathlessness relates more to his hypertension for which he currently takes Zestril only". Later reports would indicate that the Injured Person was taking Imdur as well as Zestril. I do not have the medical knowledge to know whether Imdur was intended to and did bring about an improvement in the hypertension or an alleviation of its symptoms.
18. The Injured Person had been describing symptoms of shortness of breath and it was on the foot of the description of these symptoms that the various chest investigations were done. It does not seem to me, looking at the letters from Doctors Mu, H, MacL and S that they excluded the possibility of a link between the Injured Person's chest condition and the symptoms of breathlessness. Neither, however, does it appear from that evidence that it was, at least explicitly, accepted that the Injured Person experienced some symptoms relating to his chest condition.
19. I am not therefore sure on what basis the Tribunal reached the conclusion that "it appears to have been accepted that he experienced some symptoms relating to his chest condition." As there appears to have been an issue raised in relation to whether these symptoms were linked to the chest condition for which the Injured Person was compensated it does not appear to me that the Tribunal's reasoning is adequate to deal with this issue. It may have been that the Tribunal used its own knowledge of symptoms likely to have been produced. It may have been that the Tribunal considered that the pain, discomfort and loss of amenity mentioned (and it appears proceeded with) on the Statement of Claim embraced chest symptoms. It may have been that it considered it to be unlikely that compensation would be paid for a symptomless condition and therefore there was an explicit acceptance of such symptoms. I do not know and neither could the parties. For that reason alone I set the decision aside. For the guidance of the new Tribunal I give below some guidance on the manner in which this case should be approached as regards the incapacity benefits.
20. It cannot be said that the compensation was not paid in respect of the condition of pleural plaques and asbestos exposure and as I understand it there is no issue on that matter. The problematic area appears to be whether symptoms, if any, coming from these led to the payment of the incapacity benefits. Certainly dyspnoea is certified as is decreased exercise tolerance. The new Tribunal will have to consider whether there are any symptoms arising from the pleural plaques and the "injury" of asbestos exposure which were a cause of the award of any of the incapacity benefits. The wording whether in medical reports or pleadings, is not conclusive. The important issues are whether the relevant symptoms were an effective cause of the payment of one of the incapacity benefits for all or part of the relevant period and also whether the accident, injury or disease in respect of which compensation was paid was an effective cause of the symptoms. It does not have to be the sole cause. Incapacity benefits (in contrast to Disablement Benefit for a prescribed disease) may be paid in respect of symptoms without a formal diagnosis of a disease or may be paid in respect of symptoms of which are wrongly attributed to a particular disease (as here where they were for a time attributed to asbestosis). It does not matter. If compensation was paid in respect of an accident, injury or disease (however labelled) and if there were symptoms of which that accident injury or disease was an effective cause and if one of the incapacity benefits was paid in respect of those symptoms the benefit may be recoverable.
21. As regards Disablement Benefit the situation is different where prescribed diseases are an issue. There it is only benefit paid in respect of the relevant prescribed disease which will be relevant. Consequently diagnosis will be a much more important issue.
22. As indicated above, wording of the pleadings or other documents is not conclusive. The Tribunal must concentrate on the actual cause of the symptoms or other documents. It is for the Tribunal having reviewed all the evidence and drawn any necessary reasonable influences from the accepted evidence to decide whether and if so what listed benefits have been paid otherwise than in respect of the accident, injury or disease for which compensation was paid. If, having completed its examination of the case, the Tribunal is left not knowing whether or not listed benefits were paid in respect of the accident, injury or disease in question it will be unable to decide that benefits were paid "otherwise" than in respect of it. However, hopefully, the instances of such uncertainty should be very small.
23. As regards Disablement Benefit, the part of the Tribunal's decision which relates to that appears to be correct. Disablement Benefit is payable in relation to prescribed diseases only where a person is found to suffer from one of the list of prescribed diseases contained in the relevant Regulations. It is accepted that the Injured Person did not in fact suffer from and was not paid compensation for suffering from such a disease. Therefore the payment of Disablement Benefit was not made in respect of the relevant accident, injury or disease and cannot be recoupable.
24. The new Tribunal should therefore deal with the remaining benefits and should also record a finding that the Disablement Benefit was not paid in respect of the relevant accident, injury or disease.

M F BROWN

COMMISSIONER

18 FEBRUARY 2002