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[1990] UKSSCSC CI_397_1989 (01 November 1990)

R(I) 4/91

Mr. V. G. H. Hallett CI/397/1989
1.11.90

Prescribed disease C 23 (primary neoplasm) - jurisdiction of Medical Appeal Tribunal - whether belief that claimant was not working in a prescribed occupation relevant to the diagnosis question

Claimant claimed industrial disablement benefit for prescribed industrial disease C23. The adjudication officer decided that C23 was prescribed in relation to the claimant but referred the diagnosis question to the Medical Board. The Medical Board decided the claimant was not suffering from prescribed disease C23 or any sequela of that disease. The adjudicating officer decided disablement benefit was not payable. The claimant appealed to the Medical Appeal Tribunal. The Medical Board's decision was upheld, and in reaching their decision, the Medical Appeal Tribunal considered whether the claimant could only be suffering from prescribed disease C23 if he had been engaged in an occupation involving exposure to substances listed in Schedule 1, paragraph 23 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. The claimant appealed.

Held that:

the question whether a claimant is suffering from a prescribed disease is a diagnosis question and falls within the powers of a Medical Appeal Tribunal when determining such a question (regulation 40(3) Social Security (Adjudication) Regulations 1986);

the question whether a disease is prescribed is not a diagnosis question. It is for the statutory authorities (the adjudicating officer, the social security appeal tribunal, and the Commissioner) to determine the question whether the relevant disease is prescribed (regulation 41 of the Social Security 49 (Adjudication) Regulations 1986);

where a claimant is suffering from a prescribed disease, it is open to the adjudication officer to seek to show that the disease in question was not due to the nature of the claimant's employed earners employment (regulation 4 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

This claimant's appeal succeeds. My decision is that the decision of the medical appeal tribunal (MAT) dated 19 May 1989 is erroneous in law. I set it aside and refer the case to another MAT for determination in accordance with my directions. The Secretary of State and the claimant are to be at liberty to apply for further directions if required.

Representation

I held an oral hearing of this appeal. The claimant, who was present, was unrepresented. The Secretary of State was represented by Miss F. Kinsman of the Solicitor's Office, Departments of Health and Social Security.

Nature of the appeal

This appeal raises the question of the division of jurisdiction between the medical authorities and the statutory authorities in relation to prescribed industrial diseases.

The relevant law

PD C23 is in issue in this case. The prescribed disease and prescribed occupation for this disease are set out in Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 and are reproduced in the appendix to this decision.

The claim

On 9 October 1986, the claimant claimed industrial disablement benefit for prescribed industrial disease C23. The prescription for that industrial disease is set out in column 1 of Part I of Schedule 1 to the above mentioned regulations.

Decisions relating to the claim

On 29 January 1987, an adjudication officer decided as follows:

"Prescribed disease number C23 is prescribed in relation to the claimant."

A consultant completed a medical report on form BI 161 (PD) on 25 August 1987. He diagnosed the claimant as suffering from:

"Papillary transitional cell tumour of bladder (multifocal and recurrent)."

He wrote that he was unable to fill in answers to the questions whether the claimant was, or had since 1 January 1968, been suffering from PD C23 and if so whether that disease was due to the nature of his employment, because he was not quite sure whether the oil the claimant described as being used in his industrial process was in fact carcinogenic or could be implicated in his disease process. He considered that smoking could and there was a possibility that the use of Magenta and maybe contact with rubber might have been a risk factor.

The adjudication officer referred the diagnosis question, after he had considered the consultant's report, to a medical board for decision. The medical board decision on 5 January 1988 was the claimant was not suffering from PD C23 or a sequela of that disease and had not suffered from it at any time since 1 January 1968. Their findings of fact were:

"The Board agrees with the Consultant's report."

On 2 February 1988, an adjudication officer decided that disablement benefit was not payable from and including 1 January 1968 because the claimant had not been suffering from the prescribed disease known as "PD C23" Primary neoplasm (including papilloma, carcinoma-in-situ and invasive carcinoma) of the epithelial lining of the urinary tract (renal pelvis, ureta [sic], bladder or urethra) or from any condition resulting therefrom. The decision was expressed to be made having regard to the report of the AMA (i.e. the medical board's report) and is made on the same form as that report, or decision.

The decision of the MAT

The claimant appealed against the Board's decision to the MAT. The Secretary of State submitted, in writing, to the MAT:

"The tribunal are asked to consider whether [the claimant] has suffered at anytime from the prescribed disease since 1 January 1968."

The MAT heard the appeal on 16 May 1989. By a majority, they confirmed the decision of the AMA. Their unanimous finding of fact was that:

"Since 1970 the appellant has suffered from a bladder tumour which from time to time has been treated and recurred."

The minority member considered the claimant suffered from primary neoplasm of the epithelial lining of the urinary tract in consequence of exposure to rubber dust and that he had since 1 January 1968 suffered from PD C23. One majority member considered Magenta was not a qualifying substance for the purpose of the appeal and that his exposure to beta naphthylamine was not exposure to the raw material and in the circumstances the claimant was not suffering from the prescribed disease. The other majority member decided that beta naphthylamine was not used in the manufacture or that the claimant had been exposed to it. All three members decided that Magenta was not a prohibited substance.

The claimant appealed against this decision with the leave of the chairman of the MAT.

The Secretary of State supported the appeal, in his written submission dated 7 December 1989, on the grounds that the majority of the MAT members had not explained adequately why the claimant's exposure to the dust from the rollers when the claimant ground them did not fall within the list of occupations in sub-paragraph (b) of paragraph 23 of Part I of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. In response to a query from a nominated officer in the Office of the Social Security Commissioners, the Secretary of State expressly submitted that the MAT were entitled to establish whether the claimant had used, handled or come into contact with any of the substances listed in sub-paragraph (b) of paragraph 23.

Miss Kinsman adopted the first submission but not the second.

Was the decision of the MAT erroneous in law?

Yes, it was. The MAT's reasons for their decision, which are given in commendable detail, show that all the members of the MAT considered that the claimant could only be held to be suffering from prescribed disease C23 if he had been engaged in an occupation involving exposure to substances listed in the second column of paragraph C23 of Part I of Schedule 1 of the Prescribed Diseases Regulations 1985. That was entirely wrong, and a clear error of law. It completely misapprehends the diagnosis question which the MAT had jurisdiction to decide and confuses it with the question whether the claimant was in a prescribed occupation, which was not within their jurisdiction at all.

Sections 76 and 77 of the Social Security Act 1975 replaced statutory provisions, in similar terms, extending back to 1948. Subsection (1) of section 76 provides that there is to be payable in respect of any person in employed earner's employment for the purposes of Chapter IV (benefit for industrial injuries) such benefits as are there provided in respect of any prescribed disease or injury (but not an injury caused by accident arising out of and in the course of his employment) being a disease or injury due to the nature of that employment and developed after 4 July 1948. Subsection (2) of section 76 provides that a disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupations and not a risk common to all persons; and 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. Subsection (3)(a) of section 77 authorises the making of regulations providing for presuming any prescribed disease or injury to be due, unless the contrary is proved, to the nature of a person's employment where he was employed in any prescribed occupation at the time when, or within a prescribed period or for a prescribed length of time (whether continuous or not) before he developed the injury.

(1) Column 1 of Part I of Schedule 1 to the Prescribed Diseases Regulations 1985 sets out the prescribed diseases (and injuries). Column 2 sets out the prescribed occupations. Regulation 4 of those regulations provides that (subject to exceptions not relevant here) a disease which is prescribed in relation to the claimant shall, unless the contrary is proved, be presumed to be due to the nature of his employed earner's employment if that employment was in any occupation set against the disease in the second column of Part I and he was so employed on, or at any time within one month immediately preceding, the date on which, under the subsequent provisions of the regulations, he is treated as having developed the disease.

(2) The question whether a claimant is suffering from a prescribed disease listed in column 1 of Part I of Schedule 1 to the Prescribed Diseases Regulations 1985 is a diagnosis question: see regulation 40(3) of the Social Security (Adjudication) Regulations 1986. Such a question usually (see decision R(I) 4/80 at para. 10) requires a medical report (regulation 42). There are provisions for reference, or an appeal, to a medical board and from there, under regulation 46, to a MAT. The quite different question whether the disease listed in column 1 is prescribed, under column 2, in relation to the claimant is not a diagnosis question: see regulation 40(3). Nor does it fall within the powers of an MAT when determining such a question: see regulation 47.

(3) It is therefore for the statutory authorities (the adjudication officer, the social security appeal tribunal and the Commissioner) to determine the question whether the relevant disease is prescribed in relation to the claimant under the provisions of Part III (adjudication) of the Social Security Act 1975: see regulation 41(2)(a).

(4) This division of jurisdiction under which the medical authorities decide the diagnosis question, namely whether the claimant is suffering from a prescribed disease (column 1), and the statutory authorities decide whether the disease is prescribed in relation to the claimant (column 2) is well settled. The law has been consistently so interpreted by the Commissioners in this way: see, for example, decision R(I) 5/57 at paragraph 13 and decision R(I) 3/74 at paragraph 16.

(5) For completeness, it should be added that it is open to an adjudication officer, in a case where a claimant is suffering from a prescribed disease (column 1) and the disease is prescribed in relation to him (column 2) to seek to show that the disease in question was not due to the nature of the claimant's employed earner's employment, in terms of regulation 4 of the Prescribed Diseases Regulations 1985. Cases relating to this question take the statutory authority route (adjudication officer, social security appeal tribunal and Commissioner): see, for example, decisions R(I) 37/52 and R(I) 38/52 (both of which are decisions of tribunals of Commissioners). The medical authorities (who include the MAT) have no jurisdiction to decide these questions, which fall within regulation 41(2)(a), not regulation 40(3) or 47 of the 1986 Adjudication Regulations.

For the above reasons, I set aside the decision of the MAT dated 19 May 1989 as erroneous in law and refer the case to another MAT, which should be entirely differently constituted, for determination in accordance with my directions: see subsections (6) and (7) of section 112 of the Social Security Act 1975, which were added to that section by the Social Security Act 1989 paragraph 9(2) and came into operation on 6 April 1990.

Directions to the new MAT

The MAT must decide whether the claimant is suffering from:

"Primary neoplasm (including papilloma, carcinoma-in-situ and invasive carcinoma) of the epithelial lining of the urinary tract (renal pelvis, ureter, bladder and urethra)."

If the answer to this question is yes, I direct the MAT to find that the claimant is suffering from PD C23. If the answer to this question is no, I direct the MAT to find that the claimant is not suffering from PD C23.

The MAT should also make findings on whether the claimant has been suffering from PD C23 at any time since 1 January 1968 and if so for what periods? Findings should also be made, in view of the provisions of regulation 3 of the 1988 Prescribed Diseases Regulations, on the question whether the claimant is suffering or has since 1 January 1968 suffered from any sequela of prescribed disease C23.

In the event of the MAT returning answers favourable to the claimant, disablement issues may arise. Disablement questions are within the jurisdiction of an MAT which is dealing with a diagnosis question: see regulation 47 of the 1986 Adjudication Regulations. They can be the subject of the further submission from the Secretary of State to the MAT if necessary: see paragraph 23, below.

The MAT have no jurisdiction to decide, and should not purport to decide, whether the claimant has been engaged in an occupation involving the substances listed opposite prescribed disease C23 in column 2 of Part I of Schedule I of the Prescribed Diseases Regulations 1985. That question has, in fact, already been answered in the affirmative by the adjudication officer who on 29 January 1987 decided that prescribed disease number C23 was prescribed in relation to the claimant.

In the light of my decision, the Secretary of State should make a fresh submission to the new MAT.

The MAT should set out their material findings of fact and the reasons for their decision as required by regulation 31(4) of the Social Security (Adjudication) Regulations 1986. They should ensure that they indicate what contentions, relevant to the questions that they are required to determine (see paras. 19-23 above) they accept and which they reject, and why. They should make findings on all relevant points raised by or on behalf of the Secretary of State or the claimant.

My decision is set out in paragraph 1. I express the hope that arrangements can be made for the fresh MAT to determine this appeal in the very near future. It seems probable that the consultant who advised in August 1987, the medical board who gave a decision on 5 January 1988 and the MAT who gave the decision of 19 May 1989 would all have answered the question set out in paragraph 19 above in

the affirmative. If this is so, the claimant has been kept waiting for a favourable decision, in circumstances for which he was in no way at fault, for three years.

Date: 1 November 1990 (signed) Mr. V. G. H. Hallett

Commissioner

THE APPENDIX

SOCIAL SECURITY (INDUSTRIAL INJURIES) (PRESCRIBED DISEASES) REGULATIONS

PART I (cont.)

Prescribed disease or injury Occupation

C23. Primary neoplasm (including papilloma, carcinoma-in-situ and invasive carcinoma) of the epithelial lining of the urinary tract (renal pelvis, ureter, bladder and urethra)
Any occupation involving:
(a) Work in a building in which any of the following substances is produced for commercial purposes:
(i) alpha-naphthylamine, beta-naphthylamine or methylene-bis-orthochloroaniline;
(ii) diphenyl substituted by at least one nitro or primary amino group or by at least one nitro and primary amino group (including benzidine);
(iii) any of the substances mentioned in sub-paragraph (ii) above if further ring substituted by halogeno, methyl or methoxy groups, but not by other groups;
(iv) the salts of any of the substances mentioned in the sub-paragraphs (i) to (iii) above;
(v) auramine or magenta; or
(b) the use of handling of any of the substances mentioned in sub-paragraph (a)(i) to (iv), or work in a process in which any such substance is used, handled or liberated; or
(c) the maintenance or cleaning of any plant or machinery used in any such process as is mentioned in sub-paragraph (b), or the cleaning of clothing used in any such building as is mentioned in sub-paragraph (a) if such clothing is cleaned within the works of which the building forms a part or in a laundry maintained and used solely in connection with such works.