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Cite as: [1990] UKSSCSC CI_196_1988

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[1990] UKSSCSC CI_196_1988 (02 July 1990)

R(I) 3/91

Mr. D. G. Rice, Mrs. R. F. M. Heggs CI/196/1988

and Mr. R. A. Sanders
2.7.90

Assessment of disablement – disablement arising out of three industrial accidents – whether interaction of disabilities to be taken into account

The claimant suffered injuries arising out of three separate industrial accidents over a period of three years. He claimed disablement benefit in relation to all three accidents. A medical board made a net final assessment of the disablement arising from the first accident of 4% from 18 July 1984 to 17 July 1985 after offsetting 3% for a previous back condition. There was a final assessment of 4% from 1 June 1986 to 30 November 1986 in relation to the second accident. And in relation to the third accident there was a final assessment of 2% from 27 May 1986 to 30 November 1986 after offsetting 4% in respect of the previous injury to the claimant's left knee. The claimant appealed to the tribunal against all three decisions. In each case, the tribunal confirmed the decision of the medical board. The claimant then appealed to the Commissioner. The question of assessing disablement when the disability results not only from an industrial accident but other causes arose.

Held that:

regulation 11 of the Social Security (General Benefit) Regulations 1982 provides for assessing disablement when the disabilities results from the relevant industrial accident and another cause. Para. (3) enables an assessment to be made of the disability arising from the relevant accident looked at in isolation and the interaction of that accident on "the other effective cause" where the latter precedes the accident;

regulation 11(4) applies where the "other effective cause" occurs after the industrial accident in question. In such cases the assessment is limited to the disablement resulting from the industrial accident unless that assessment is 11% or more. If the assessment from the industrial accident is 11% or more then the assessment has to take account of any disablement resulting from the other effective cause except to the extent to which the claimant would have been subject to if the relevant accident had not occurred;

regulation 11(5) applies where the disablement arises from two or more industrial accidents or diseases. In paragraphs (3) and (4) the "other effective cause" need not be industrial. Paragraph (5) provides that where there has been more than one industrial accident or disease, and some degree of disability, over and above that attributable to the last industrial accident or disease, looked at in isolation, arises from the interaction of that industrial accident or disease on the claimant's existing condition, the degree of disability shall be attributed to that last industrial accident or disease. Any assessment awarded in respect of any earlier industrial accident or disease will remain undisturbed;

in the present case the tribunal did not consider whether the assessed disablement in relation to any of the accidents should have been increased as a result of any interaction, and therefore their decision was erroneous.

DECISION OF THE TRIBUNAL OF COMMISSIONERS

Our decision is that the decision of the medical appeal tribunal dated 27 July 1987 is erroneous in law and is set aside. The case must be reconsidered by an entirely differently constituted tribunal.

The claimant, a crane operator, had the misfortune to have three industrial accidents in three years. The first was on 4 April 1984 when he injured his back while assisting to lift a steel plate. The second was on 19 July 1985 when he twisted his left knee getting out of the cab of his crane. And then, on 11 February 1986, again while getting out of the cab, he slipped and fell and injured both knees. He made claims for disablement benefit in relation to the injuries he sustained in the three accidents. A medical board made a net final assessment of the disablement arising from the first accident of 4% from 18 July 1984 to 17 July 1985 after offsetting 3% for a previous back condition. In relation to the disablement arising from the second accident there was a final assessment of 4% from 1 June 1986 to 30 November 1986. And in relation to the last accident there was a final assessment of 2% from 27 May 1986 to 30 November 1986 after offsetting 4% in respect of the previous injury to the claimant's left knee. The claimant appealed to the tribunal against all three decisions and the three appeals were dealt with at the one hearing. In each case the tribunal confirmed the decision of the medical board. The claimant now appeals to the Commissioner against the three decisions of the tribunal. His case was part heard before a single Commissioner and adjourned for written submissions concerning the effect of regulation 11 of the Social Security (General Benefit) Regulations 1982 [SI 1982/1408]. When those submissions were produced it became apparent that there were, to say the least, doubts about whether regulation 11, and paragraphs 3 to 5 thereof in particular, had been correctly applied in earlier decisions of Commissioners and, to resolve those doubts, a tribunal of Commissioners was appointed to hear and determine these three appeals (now numbered CI/194/1988 (first accident), CI/195/1988 (second accident) and CI/196/1988 (third accident) to the second of which this present decision alone relates) and another appeal raising similar issues in case No. CI/79/1989. The tribunal of Commissioners heard the four appeals together. Miss J. Eady of the Free Representation Unit appeared for the claimant in the three cases to which we have first referred. The claimant in CI/79/1989 attended but was unrepresented. Mr. A. Prosser of counsel instructed by the Solicitor to the Departments of Health and Social Security represented the Secretary of State in relation to all four appeals.

As is well known, assessment of the extent of disablement for industrial injury purposes is, pursuant to section 57(3) of the Social Security Act 1975, to be carried out in accordance with the provisions of Schedule 8 to that Act; that schedule contains the general principles which are well understood and it is not necessary to state them again here. What we are concerned with is the more difficult matter of assessing disablement when the disabilities result not only from the industrial accident in question but also from some other cause eg an earlier industrial accident or a condition unrelated to the claimant's work or to the interaction of the current industrial accident and the other cause. The rules to be applied are to be found in regulation 11, and in particular in paragraphs (2) to (5) thereof.

The last mentioned paragraphs provide as follows:

"(2) When the extent of disablement is being assessed for the purposes of section 57, any disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident (hereinafter in this regulation referred to as 'the other effective cause') shall only be taken into account subject to and in accordance with the following provisions of this regulation.

(3) An assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is a congenital defect or is an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred.

(4) Any assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is an injury or disease received or contracted after and not directly attributable to the relevant accident, shall take account of all such disablement to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if that other effective cause had not arisen and where, in any such case, the extent of the disablement would be assessed at not less than 11 per cent if that other effective cause had not arisen, the assessment shall also take account of any disablement to which the claimant may be subject as a result of that other effective cause except to the extent to which he would have been subject thereto if the relevant accident had not occurred.

(5) Any disablement to the extent to which the claimant is subject thereto as a result both of an accident and a disease or two or more accidents or diseases (as the case may be), being accidents arising out of and in the course of, or diseases due to the employed earners' employment, shall only be taken into account nature of, in assessing the extent of disablement resulting from one such accident or disease being the one which occurred or developed last in point of time".

Paragraph (2) requires that where there is some "other effective cause" of the disabilities in question those disabilities are to be taken into account in accordance with the provisions of the regulations. Paragraph (3) requires that where "the other effective cause" occurs before the industrial accident in question, the measure of disablement due to "the other effective cause" is, in effect, to be deducted from the total assessment. However, in our view, the assessment of disablement will take into account, not merely the disabilities arising out of the relevant accident, looked at in isolation, but also the interaction of that accident on "the other effective cause". Thus, if a claimant loses an eye in an industrial accident, but prior thereto he had, by reason of something happening unconnected with his work, already lost the other eye, the assessment would take into account not merely the disablement arising from the loss of the one eye in the accident in question, but the interaction of that loss on his previous condition i.e. his total blindness. Paragraph (4) is more complicated than paragraph (3); where "the other effective cause" occurs after the industrial accident in question, the assessment is limited to the disablement resulting from the industrial accident unless that assessment is 11% or more, in which case the assessment has to take account of any disablement resulting from the other effective cause "except to the extent to which [the claimant] would have been subject thereto if the relevant accident had not occurred". Thus, as in the case of paragraph (3), the assessment will take into account any interaction.

So far as paragraph (5) is concerned, that paragraph applies where the disablement arises from two or more industrial accidents or diseases (in the case of paragraphs (3) and (4) the other effective cause need not be industrial) and, in at least two cases, CI/16/1987 and CI/128 - 131/1987, the Commissioner held that the effect of the provision was that all disablement should be allowed for in the last industrial accident or disease. We reject that approach. If that were right, it would create the very difficult problem of how to deal with any pre-existing assessment. Clearly, a claimant should not be entitled to retain the benefit of an earlier assessment, if that assessment is to be incorporated in a later assessment. Otherwise he would benefit twice over. Admittedly, the problem could be resolved by reviewing (seemingly on the grounds of a material change of circumstances) and revising any earlier assessment to nil. But even this might give rise to complications e.g. as to the effect of an award of reduced earnings allowance founded on an earlier assessment now reduced to nothing. But, in our view, the difficulty referred to above simply does not arise if regulation 11(5) is properly construed. In our judgment, all that regulation 11(5) does, albeit subject to an important qualification discussed later, is to provide that where there has been more than one industrial accident or disease, and some degree of disability, over and above that attributable to the last industrial accident or disease, looked at in isolation, arises from the interaction of that industrial accident or disease on the claimant's existing condition, the degree of disability shall be attributed to that last industrial accident or disease. In other words, the assessment applicable to the last industrial accident or disease will take into account, not merely the intrinsic disability to which that industrial accident or disease looked at in isolation gives rise, but also the effect of any interaction. But any assessment awarded in respect of any earlier industrial accident or disease will remain undisturbed. The qualification referred to above arises where there are more than two industrial accidents, and the effect of this is considered in paragraph 7. It may be that in the earlier cases to which we have referred paragraph (5) was taken on its own and too literally. It is we think important to keep in mind, when seeking to give effect to paragraph (5), the context in which it arises, namely paragraphs (3) and (4) indeed at one time the like provision was included as a proviso to what was then the equivalent paragraph to the present paragraph (4). That context, we believe, assists to show that the provision has the purpose to which we have referred, and, in our view, the words used do give effect to that purpose. We would not want to suggest that regulation 11 is straightforward and clear as to its meaning. Indeed, it might be difficult to draft a set of provisions in relation to relatively simple concepts which are harder to understand. However, the various paragraphs in question have, in our judgment, the effect to which we have referred, and we so decide.

It might perhaps be helpful if we illustrated the above principles by a hypothetical example. Suppose there have been two industrial accidents and that the assessment in respect of the first of them was 7%. Suppose that the assessment in respect of the disability arising from the second accident, looked at in isolation, was 10%, and that the interaction of that accident on the first was 5%. In these circumstances, the award of 7% in respect of the first accident will remain undisturbed, but the assessment for the second accident will be 10% + 5% = 15%. In other words, the 5% disability arising out of the interaction will attach to the assessment in respect of the second accident. It cannot in any way be attributed to the first. But suppose that instead of two industrial accidents there are three, and suppose that the third accident, looked at in isolation, gives rise to an assessment of 8%, and that the interaction of this accident on the claimant's existing condition is 4%. In our judgment, the award for the third accident will be 12%, and the previous awards will be left undisturbed. We do not consider the 5% in respect of the interaction attributed to the second accident should be reattributed to the third accident; that would mean that the total award in respect of the last accident would become 17% and the award for the second accident would need to be reviewed and revised so as to be reduced to 10% thus giving rise to the difficulties referred to in respect of the approach adopted in CI/16/1987 and CI/128-131/1987.

It will be apparent from what we have said above that the tribunal in the present case did not deal with the question whether and to what extent the assessed disablement, in relation to any of the accidents, should be increased by any interaction and on that account their decision is erroneous in law. Accordingly, as regards the assessment in respect of the second accident, which is the sole subject matter of this particular decision, we set aside the tribunal's decision and direct that the appeal be reheard by a differently constituted tribunal who will apply the principles explained above.

Date: 2 July 1990 (signed) Mr. D. G. Rice

Commissioner

(signed) Mrs. R. F. M. Heggs

Commissioner

(signed) Mr. R. A. Sanders

Commissioner