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Cite as: [1991] UKSSCSC CI_308_1989

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[1991] UKSSCSC CI_308_1989 (01 October 1991)

R(I) 2/92

Mr. D. G. Rice CI/308/1989

Prescribed disease A10 (occupational deafness) – claimant working with machine used for cutting newsprint – whether newsprint is "wood"

The claimant had been involved for a period of more than ten years up to the date of his claim in operating or in close proximity to a multi-cross cutting machine used for cutting newsprint. The claimant contended that his work fell within the terms of prescription as he was engaged in the working of wood or material composed partly of wood.

Held that:

whilst newsprint is derived from wood it is not the same as wood. It has undergone a metamorphosis, and in its changed form as newsprint it has become an entirely different material. The claimant was not engaged in an occupation falling within sub-paragraph (h) of the second column of paragraph A10 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal given on 9 March 1989 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the claimant is not entitled to disablement benefit in respect of prescribed disease No. A10 known as occupational deafness.

This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the majority decision of the social security appeal tribunal of 9 March 1989.

On 1 May 1987 the claimant applied for disablement benefit in respect of prescribed disease No. A10 known as occupational deafness. However, on 12 September 1988 the adjudication officer decided that the claim had been made more than five years after the date when the claimant had ceased to be engaged in an occupation prescribed in relation to occupational deafness, and hence the claimant was disentitled to benefit. In other words, he was debarred by the provisions of regulation 25(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 [SI 1985 No. 967], a regulation which was subsequently declared to be ultra vires by the Court of Appeal in McKiernon v. The Secretary of State for Social Security, but was later reinstated with retrospective effect by paragraph 43 of Schedule 6 to the Social Security Act 1990. In due course, the claimant appealed to the tribunal who, by a majority, the chairman dissenting, decided that disablement benefit was payable subject only to the claimant's satisfying the medical conditions for an award.

The tribunal made the following findings of fact:

"From 1961 until November 1987 the claimant had been engaged in the newspaper print industry, and certainly at the time he finished he had been engaged in operating or in close proximity to a multi-cross cutting machine used for cutting the newsprint. The tribunal find that in all probability he had been in close proximity to similar machines throughout his career, although the actual work he had been doing may have varied from time to time due to the nature of his employment on a full flexibility basis. He made a claim, claiming industrial disablement benefit because of prescribed disease, i.e. occupational deafness, on 1 May 1987. At that time he was working with the multi-cross cut machine on the newsprint."

The majority members of the tribunal gave as the reasons for their decision the following:

"The claimant had been engaged for a period in excess of ten years and up to the date of his claim in the working of wood or material composed partly of wood i.e. newsprint, and with multiple cross-cut machines."

The adjudication officer now concerned attacks the majority decision on two grounds. He submits first as follows:

"9. No precise description of the claimant's duties whilst employed by the Sunday Times/Times and Guardian newspapers [is] contained in the papers, nor [was it] apparently elicited from the claimant by the tribunal. The overall impression gained from the tribunal's findings of fact is that over 20 years of employment the claimant worked with or near a prescribed machine, or a similar machine, which was engaged in cutting newsprint to size. No details are included as to the distance of the claimant from the machine when he was not engaged in its occupation, nor the amount of time so spent. The tribunal stated that he was in 'close proximity' to the machine. However I would submit that their findings are inadequate in establishing that the claimant satisfies the 'wholly or mainly' and 'immediate vicinity' tests of the relevant prescriptive term. Further I would submit, their statement that he worked with or nearby a 'similar machine' is insufficient to show that such a machine was one included in the prescribed list."

Clearly, the claimant was relying on establishing that he was engaged in an occupation falling within sub-paragraph (h) of the second column of paragraph A10 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) 1985, which speaks of any occupation involving:

"the use of, or work wholly or mainly in the immediate vicinity of, any of the following machines engaged in the working of wood or material composed partly of wood . . ."

I accept the submission of the adjudication officer now concerned. If the claimant was to succeed in establishing that his employment for the relevant period fell within sub-paragraph (h), the tribunal had to make more extensive findings than they in fact did. But more important is the second submission put forward by the adjudication officer. He says as follows:

"10. I would further submit that the majority decision that the machines were engaged in the working of material composed partly of wood, i.e. newsprint, contains a false proposition of law. Whilst newsprint may have originally been derived from wood in the form of wood pulp, it is my submission that the subsequent processing of the wood pulp substantially alters its nature and character. Consequently I would submit that to conclude that newsprint is a material composed partly of wood is to stretch the definition of 'wood' to beyond its normal everyday meaning and as such I submit it violates the statutory provisions."

I accept that submission. I consider that the dissenting member of the tribunal correctly analysed the position when he gave the following reasons for his dissent:

"The chairman . . . is of the opinion that this particular prescribed occupation refers to wood in [the] accepted sense of the word, not to a material of which wood may be a constituent part. The prescribed occupation in the chairman's opinion clearly refers to working of wood or similar material such as chipboard, and not to the newsprint industry."

Although newsprint is derived from wood, it is not the same as wood. It has undergone a metamorphosis, and in its changed form as newsprint it has become an entirely different material. It follows that the claimant cannot satisfy the relevant statutory requirements.

Accordingly, for the reasons given above, the tribunal erred in point of law and I must set aside their decision. However it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision, which is as set out in paragraph 1 above.

Date: 1 October 1991 (signed) Mr. D. G. Rice

Commissioner