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[1992] UKSSCSC CI_81_1990 (16 December 1992)

R(I) 4/94

Mr. V. G. H. Hallett CI/81/1990

Disablement benefit - whether disabilities arising subsequent to an accident can be included in the assessment of disablement

The claimant had an industrial accident when she was run over. In due course, she was given a final assessment of her disablement arising from the loss of faculty caused by that accident (the "relevant loss of faculty"). Her disabilities included impaired locomotion.

The claimant subsequently sought a review of that assessment on the grounds of unforeseen aggravation. An adjudicating medical authority found that the depression and psychiatric condition which the claimant had developed subsequent to the accident was not a disability caused by a relevant loss of faculty. It was however an additional effective cause of her impaired locomotion.

The Secretary of State referred the adjudicating medical authority's decision to a medical appeal tribunal.

The Secretary of State was of the view that a disability which was neither caused by a relevant loss of faculty, nor was itself an additional effective cause of any such disability, could nonetheless be taken into account in the aggregate of disablement if it interacted with, and made more severe, a disability which did arise from a relevant loss of faculty: the "C" (Connection) condition.

The tribunal made a final assessment of the claimant's disablement as 20%. They found that the claimant's depression and psychiatric condition was not attributable to her accident. It was not included in the assessment. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

where a disability such as the claimant's depression and psychological condition arose subsequent to an accident, the following questions had to be answered (paras. 30-37);

(a) did that condition arise from a relevant loss of faculty? If so, it was to be included in the percentage aggregate of disablement;

(b) if it did not, was the condition an additional effective cause of a disability which did arise from a relevant loss of faculty?

(c) if so, was the claimant's disablement assessed as at least 11% before this additional cause was taken into account?

(d) if it was, then the greater disability flowing from the additional effective cause should be taken into account in the aggregate percentage disablement, less any disability which the claimant would have suffered from in any case if the accident had not occurred;

(e) the claimant's depression and psychological condition did not arise from a relevant loss of faculty, and was not an additional cause of any disability which did, then it could not be taken into account in the assessment of disablement. There was no further alternative;

(f) accordingly, the "C" condition put forward by the Secretary of State had no basis in law, and should not be applied.

the tribunal had been entitled to find that the claimant's condition was not caused by the accident, but had erred in failing to go on to consider whether or not it was an effective cause of the disability which had been so caused.

The case was remitted to another tribunal to consider the questions set out by the Commissioner.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decisions

The claimant's appeal against the two decisions of the medical appeal tribunal (MAT) dated 13 September 1989 succeeds. I set those decisions aside and refer the cases to another MAT for determination in accordance with my directions.

Representation

I held two oral hearings of this appeal. The claimant, who did not attend, was represented by Mr. David Wilcox of the National Association of Citizens' Advice Bureaux. The Secretary of State was represented by Mr. Robert Jay of Counsel, instructed by the Solicitor's Office of the Departments of Health and Social Security.

Nature of the appeal

The MAT had before it two references, one dated 3 June 1986 and the other dated 13 September 1989, of decisions by an adjudicating medical authority (AMA) relating to the assessment of disablement of a woman who had suffered physical injury from an accident followed, later, by depression and psychiatric condition. They found, in a careful reasoned decision, that these later conditions "could not fairly be attributed to" the accident. The question that arises is the extent to which conditions arising after an accident (not stemming from any industrial accident themselves) should be taken into account and what are the necessary findings where, as the MAT decided in this case, they were not caused by the accident and, it follows, do not form part of "the relevant loss of faculty".

The relevant statutory provisions

These are sections 57(1) & (3), 107(2), 108(1) and (2) and 110(2) and paragraphs 1, 2 and 3 of Schedule 8 of the Social Security Act 1975 - and regulation 11 of the Social Security (General Benefit) Regulations 1982. They are set out in the appendix. The regulations are still in force. The statutory provisions have been replaced by the following provisions of consolidation, in the Social Security Contributions and Benefits Act 1992 ("the CB Act") and the Social Security Administration Act 1992 ("the A Act"):

s. 57(1) CB103(1), Sch 7, para. 9(1)

s. 57(3) CB103(5)

s. 107(2) A44(2)

s. 108(1) A45(1)

s. 108(2) A45(2)

s. 110(2) A47(4)

Schedule 8 paras. 1, 2, CB Sch 6 paras. 1, 2, 3.

The statutory chain of causation

In order to obtain disablement benefit there must be "personal injury" from an accident (section 107(2) 1975 Act) resulting in "loss of physical or mental faculty" (section 57) resulting in "disability" and "disablement" (Schedule 8 and regulation 11).

(1) "injury" means hurt to body or mind and includes all the adverse physical and mental consequences of the accident

(2) "relevant injury" means the injury in respect of which industrial disablement benefit is claimed or payable

(3) "loss of faculty" means impairment of the proper functioning of part of the body or mind and is used in the statute to describe a cause of disabilities to do things which in sum constitute disablement

(4) "relevant loss of faculty" means in relation to industrial injuries benefit the loss of faculty resulting from the relevant injury

(5) "disability" means partial or total failure of power to perform normal bodily or mental processes

(6) "disablement" is the sum of disabilities which, by contrast with the powers of a normal person, can be expressed as a percentage

The terms relevant injury and relevant loss of faculty are defined in Schedule 20 of the 1975 Act and re-enacted in section 122(1) of the Social Security Contributions and Benefits Act 1992. All the other definitions are taken from the opinions of Lord Simon in Jones and Hudson v. Secretary of State for Social Services [1972] AC 944 at page 1020 letter A and of Lord Diplock at page 1010 letter C.

The accident

The claimant sustained an industrial accident on 9 August 1979 when she was run over while crossing a main road and sustained injury. She received injury benefit from 10 August 1979 to 15 December 1979 and claimed disablement benefit on 17 December 1979. This was followed by several disablement assessments made on Departmental forms which themselves require explanation.

The disablement assessment forms: an explanation

The Board and AMA decisions are all recorded on form BI 118A. That form, until after 1984, did not provide for any finding as to what the relevant loss of faculty in fact was: see decision R(I) 5/84, which is that of a tribunal of Commissioners. The earlier forms provided for a finding as to what the injury was which resulted from the accident and whether wholly (entered as "F") or partly (entered as "P") relevant. P was entered where there was a pre-existing condition. Any "condition not itself resulting from the accident but giving rise to greater disablement than it otherwise would have been in an otherwise normal person of that age and sex was to be entered as C (pre) if present at the date of the accident and C (post) if arising after the accident. An addition was made if the net assessment exceeded 11%, so it is clear that the precursor of regulation 11 of the 1982 General Benefit Regulations (i.e. the 1975 General Benefit Regulations) was in mind.

After R(I) 5/84, the form was amended to show the relevant loss of faculty. Regulation 11 conditions were re-lettered, C (pre) becoming O (pre) and C (post) becoming O (post). A new condition was inserted and referred to as a "C" condition. This was directed to be entered only where there was a condition which interacted with the recorded disability but was not an effective cause of it "C" stands for "connected": see paragraph 49 of the Industrial Handbook for Adjudicating Medical Authorities (1982) edition.

The disablement assessments in this case

After two provisional assessments of disablement at 10%, on 16 November 1981 a reassessment medical board found fracture of right pelvic ramus and pain right sacro-iliac joint fully relevant (F) to the accident, recorded caesarian scar as an unconnected condition and stated that the effect of the relevant loss of faculty was that the claimant was handicapped for bending, lifting and locomotion. There had been improvement since the last board (24 November 1980) namely improved back movements and shoulder. The board finally assessed the disablement resulting from the relevant loss of faculty at 5% from 16 December 1981 to 15 December 1983.

On 14 May 1984 an aggravation review medical board found fracture of right pelvic ramus with pain in right sacro-iliac joint fully relevant, recorded caesarian section as an unconnected condition and found that there had been unforeseen aggravation of the results of the relevant loss of faculty due to non-union of fracture of right pubic ramus and "shoulder movements are worse". They finally assessed disablement at 10% from 6 December 1983 for life.

On 3 June 1986 an adjudicating medical authority found the resulting from the accident to be injury right pubic ramus, the loss of physical or mental faculty resulting from the accident to be painful limited movements of lower spine and lower limbs, the disability resulting from the relevant loss of faculty to be impaired spinal function fully relevant with abdominal operation scar and dysuria as unconnected conditions. They found that there had been unforeseen aggravation of the disablement resulting from the relevant loss of faculty since the assessment was made on 14 May 1984 by bedfast and being unable to walk on ground without help. They provisionally assessed disablement at 100% from 10 January 1986 to 9 January 1987.

On 21 September 1987 at the instigation of the Secretary of State the adjudication officer referred the decision of the adjudicating medical authority of 3 June 1986 to the MAT to confirm, vary or set aside and replace the decision of the AMA of 3 June 1986 in the light of the evidence and its own expert medical judgment and to decide afresh whether there had been unforeseen aggravation of the results of the relevant injury since 14 May 1984. It was submitted by the Secretary of State that the assessment, without an updated report on the claimant's condition, was too high and that there were no physical findings present to account for the claimant's inability to stand and walk.

On 3 December 1987 an AMA deferred their decision in order to obtain and consider a consultant psychiatrist's report dated 6 March 1989 they completed their decision on 24 April 1989. They found fractured pelvis to be the injury resulting from the relevant accident. They specified the relevant loss of faculty as "painful back". They described the disability resulting from the relevant loss of faculty as "impaired locomotion" and marked it P to indicate another effective cause of that disability. They specified the defect, injury or disease constituting the other effective cause as "Depression 1983. and Psychiatric condition" and they described it as "0 Post" which form B118A (the form for their decision) states should be entered when the condition constituting the other effective cause arises after the accident. Caesarian section was stated, to be an unconnected condition. The effect of the relevant loss of faculty was stated to be "Handicapped for standing and walking". In reply to the question whether there had been any improvement or worsening since the last assessment, the AMA stated "Improved as patient was 'bedfast' at Board 3 June 1986 & c/o bladder symptoms". They assessed the disablement appropriate for the accident had the 0 (Post) condition not occurred at 14% net and made an additional assessment for the 0 (Post) condition of 66%. Their decision on assessment was that the disablement resulting from the relevant loss of faculty was accordingly 80% for the period 10 January 1987 to 9 January 1990. This assessment was expressed to be provisional.

On 29 August 1989 at the instigation of the Secretary of State the adjudication officer referred the decision of the AMA of 3 December 1987, completed 24 April 1989, to the MAT after stating that the MAT was entitled to reach its own conclusions on the whole of the case before it and to decide afresh whether and from what date not earlier than 10 January 1987 the claimant had any loss of faculty resulting from the accident on 9 August 1979 and, if so, at what degree and for what period disablement resulting from the relevant loss of faculty should be assessed. The Secretary of State then observed:

"The Secretary of State notes that after the relevant accident Mrs Banks suffered from a psychiatric condition and depression. The disablement resulting from this later condition cannot in itself be included in the assessment. If, however, the tribunal considered that it made the effects of the relevant accident more disabling than they would have been, this additional disablement must be included in the assessment, providing that the effects of the relevant accident (together with any disablement arising out of a connected condition) amount to 11% or more. The resulting assessment will include both the disablement arising from the relevant accident (and any connected condition) as well as any additional disablement due to the later condition itself. This is what the regulations require."

(A sidenote note, only part of which is reproduced in the case papers refers to ...... Act 1975 8, SS ... General ... benefit). egs 1982, e.g. 11(2) and ... The remainder is cut off from the copy. The references must be to the Social Security Act 1975 Schedule 8, the Social Security (General Benefit) Regulations 1982 regulations 11(2) and 11(4).

The Secretary of State then observed that although Dr. Galla (the consultant psychiatrist) "considers Mrs. Banks's mental disablement to be related to the accident", he does not offer a specific diagnosis. The Secretary of State then observed:

"In the light of the above, the tribunal is invited to consider afresh whether Mrs. Bank's symptoms are directly attributable to the accident or whether there has been a fresh intervening emotional cause."

The MAT decision

The MAT heard both references on 13 September 1989. They completed two records of their proceedings on form BI 255 (1987), one for each reference. That relating to the reference dated 21 September 1987 of the AMA's decision of 3 June 1986 simply refers to the other reference, namely that dated 29 August 1989, of the decision of 3 December 1987 and 24 April 1989.

(1) The decision of the MAT on the reference of 29 August 1989 was:

"We are/are not [sic] satisfied that since the decision of the Medical Board dated 14 May 1984 there has been an unforeseen aggravation of the results of the relevant injury/prescribed disease.

From 10 January 1986 there is a loss of faculty identified as follows/resulting [sic] from the relevant accident painful restricted back movements and bladder problems

The extent of the disablement resulting from the loss of faculty is to be assessed at 20 per cent for the period 10 January 1986 for life.

This is a final assessment."

(2) Their recorded findings of fact were:

"We adopt the clinical findings of the Adjudicating Medical Authority."

(3) The MAT's reasons for their decision were:

"We heard from Miss Hawes of the Citizens Advice Bureau on behalf of the appellant and from Mrs. Martin on behalf of the Secretary of State. All scheduled evidence was carefully considered, the x-rays were viewed and the appellant was medically examined.

Miss Hawes quoted from several of the medical reports and hospital case notes to establish certain elements of the problem which were noted at an early stage, and stressed that the appellant was still suffering from non-union fracture, back strain, bladder problems, haematuria, shortening of the right leg and a psychiatric condition linked to the accident. Doctor Galla's report is particularly quoted in support of the connection between the mental condition and the accident. She further submitted that the arthritic changes and spondylosis now recorded are on the balance of probabilities the result of the accident, particularly as some minor arthritic changes were noticed immediately after the accident which would be unlikely to be inherent bearing in mind the age at that time of the appellant.

As the appellant had in the past denied the existence of any mental problem, she was asked whether this was not acknowledged as it formed a major part of the award and was among the complaints listed by her representative. She stated that it had been explained to her that it was a result of the trauma from the accident rather than any inherent mental deficiency which she thought was being suggested at the outset. Asked about depression, she said that she did get frustrated sometimes, but does not appear to have severe bouts of depression.

The appellant told us that she no longer walks at all, and does not even try because of the pain when she places her weight on her leg, where there is pain right from the hip down to the foot on occasion, with some loss of sensation and pins and needles also.

The appellant told us that she has had none of the fainting fits complained of for some 18 months, but sleeps badly because of the pain in the back. Even using the wheelchair as she does always, she has to take a rest lying down in the early afternoon. It was acknowledged that although there was some discomfort the cervical spine pain was not a particular problem by comparison with the lower back where the pain is severe even when at rest.

It was stressed by Miss Hawes that the bladder problems had not disappeared but still recurred from time to time. The appellant attends a day centre three days a week, and spends her days reading, knitting and caring for her young family. She is able to dress the top half of herself but her husband has to help her with the bottom half. She has used the wheelchair since sometime after her 1986 hospital visit.

On examination: she is a slightly built woman seated in a wheelchair. She was lifted onto the couch for examination by her husband. She is able to sit up on the couch and reach forward almost to touch her toes. There is a little tenderness in the lower lumbar region without any particular localization. There is also a little tenderness over the right iliac crest and in the right groin, but neither of these are marked. Straight leg raising is full on the left and limited to 60° on the right. There is no muscular wasting and muscular power in the legs is good. She indicates a slight sensory diminution to light touch over the whole of the right leg. Tendon reflexes are normal. Movement of both hips are full. She was asked to try to stand and agreed to do so, but although she said that pain was due to taking weight on her right foot she would not attempt to stand only on her left foot. Neck movements are full and there is no real limitation of shoulder joint movement, though she complains of some discomfort on full extension of the shoulder. X-rays confirmed the presence of an unhealed fracture of the right lower pubic ramus. There is no really significant change in the appearance of the right hip from 1979 to 1986, and the lumbar spine and cervical spine x-rays show no really significant arthritic changes.

On the basis of the above findings, we consider that there has been unforeseen aggravation since the decision of the medical board of 14 May 1984. So far as those aspects complained of which affect the appellant's mobility are concerned, there has been no substantial change and there is really no dispute as to their extent. We accept that it would not have been anticipated that the bladder problems would continue for as long as in the event they have done, and a further increase is appropriate for this.

We are aware that by far the largest portion of the existing assessment relates to depression and psychiatric condition. The appellant was able to converse quite fluently today and stated herself that she had come to terms with the problem and no longer suffered severe bouts of depression. It is noted that in the past she has denied anything other than a physical problem. Bearing this in mind, we have to disagree with the final assessment with Dr. Galla's report. He does mention exaggeration and dramatization of symptoms, but suggests that perhaps the appellant is entitled to the benefit of the doubt, so he is clearly by no means certain himself. It is our view that bearing in mind the very late onset of these problems, several years after the accident itself, they cannot fairly be attributed to it and we therefore make no assessment for them.

Faced with references on two consecutive previous awards, we feel it appropriate to set them both aside and make one overall assessment.

We accordingly set aside the decisions of the Adjudicating Medical Authority of 3 June 1986 and 24 April 1989 and assess disablement at 20% from 10 January 1986 for life, calculated as to 15% for the back and other locomotion problems and 5% for the urinary symptoms."

The claimant applied for leave to appeal and this was granted by a Commissioner.

Was the decision of the MAT erroneous in law?

Yes, it was, for the following reasons:

(1) The MAT had before them, on reference, two questions: the first relating to unforeseen aggravation and the second relating to the causation of the claimant's disability.

(2) The first question arose out of the decision of the AMA of 3 June 1986 that there had been unforeseen aggravation of the results of the relevant injury since 14 May 1984 in respect of which they made a provisional assessment of disablement of 100%, for the period of one year from 10 January 1986 to 9 January 1987. [That assessment completely replaced the assessment of 10% for life made by the board of 14 May 1984: see the decision of the Court of Appeal in the case of Robert Parker v. Chief Adjudication Officer reported in the appendix to decision R(I) 2/90].

(3) The second question arose out of the decision of the AMA of 24 April 1989 that the relevant loss of faculty as a result of the injury was painful back, and that the disability consisting of impaired locomotion was partly due to the painful back and as to the remainder due to another effective cause namely depression 1983 and psychiatric condition. The painful back attracted an assessment of 14% and there was an additional assessment of 66% for the depression and psychiatric condition. The AMA, on this basis, made a provisional assessment of 80% for the period 10 January 1987 to 9 January 1990.

(4) The MAT found that the depression and psychiatric problems could not fairly be attributed to the accident. So they clearly found that these problems were not disabilities resulting from the relevant loss of faculty. But they did not consider regulations 11(2) and (4) or address themselves to the question raised by that regulation, namely whether these problems constituted another effective cause of the disability that did result from the relevant loss of faculty, "impaired locomotion". The failure to deal with this question was a clear error of law as regards the MAT's decision on the reference dated 29 August 1989 relating to the AMA decision of 3 December 1987 and 24 April 1989. It was also an error of law in respect of the reference dated 21 September 1987 relating to the AMA decision of 3 June 1986. For the AMA of 3 December 1987 and 24 April 1989 had found the depression arose in 1983. Thus the question whether there was another effective cause of the disability found by the earlier AMA (impaired spinal function) was equally relevant to the earlier decision. Both decisions were accordingly erroneous in law.

Accordingly, I set aside both decisions of the MAT and refer them to another MAT for determination in accordance with my directions.

Directions to the new MAT

Since the second reference by the Secretary of State was made so that the case could be considered as a whole, it is desirable that a single decision should be given which covers both references.

(1) Clinical findings

It was submitted at the second oral hearing before me that the previous MAT committed an error of law in adopting the clinical findings of the AMA because there were two sets of findings, one by each of the two AMA's, and these findings were inconsistent with each other. Since the two sets of findings were made at different times and the two decisions made assessments in respect of different periods, different findings by the two AMAs are not necessarily inconsistent as the claimant's condition may have altered. In order to avoid future difficulty in this respect, the MAT should:

(a) make their own clinical findings, and

(b) in so far as they adopt the clinical findings of either of the two AMAs whose decisions have been referred to them, indicate what particular findings of each AMA are accepted so as to avoid any question of inconsistency.

(2) Unforeseen aggravation

The first question before the MAT is whether there was unforeseen aggravation of the results of the relevant injury since 14 May 1984. Unless unforeseen aggravation is found by the MAT the decision of the aggravation review medical board of 14 May 1984 finally assessing disablement at 10% from 16 December 1983 for life will stand and the MAT will then have no further jurisdiction on either of the two references. The decision of the AMA of 3 June 1986 (para. 12 above) found there was unforeseen aggravation and assessed disablement benefit for one year only. By reversing that decision, the MAT will have restored the life award, of the board of 14 May 1984.

The relevant section dealing with unforeseen aggravation is section 110(2) of the Social Security Act 1975 (re-enacted by section 47(4) of the Social Security Administration Act 1992 as from 1 July 1992): see section 192(4) and sections 3 and 5(1) and Schedule 1 and paragraph 1(1) of Schedule 3 to the Social Security (Consequential Provisions) Act. The section is set out in the appendix.

In respect of this, the MAT must decide:

(a) whether there has been any worsening of the claimant's condition since 14 May 1984

(b) if so, whether that worsening was an aggravation of the results of the relevant injury

(c) if it was such an aggravation, whether the aggravation was sufficiently foreseen and allowed for in the life assessment of 10 per cent, or was unforeseen and merited a higher assessment

See, decision R(I) 18/61, which is that of a tribunal of Commissioners.

In deciding what were the results of the relevant injury (see paragraph 25(b) above), that is to say the relevant loss of faculty and the resulting disabilities and disablement, and the question whether there was a worsening of such results, the MAT should not consider whether there was another effective cause of any worsening (e.g. depression) unless they have increased the assessment of 10% for life made by the board of 14 May 1984 to at least 11%: see regulation 11(4) of the 1982 Regulations, which is set out in the appendix, and paragraphs 32 to 34 below.

(3) The period of assessment

The second question, and one which only arises if the first (unforeseen aggravation) is answered in the affirmative, is to decide upon the period of assessment. The commencement of that period is fixed by the date from which the MAT decide there was unforeseen aggravation of the results of the relevant injury. So there must be a finding as to this date. As regards the length of period chosen that must be determined in accordance with the provisions of Schedule 8, now replaced by the consolidation provisions of Schedule 6 of the CB Act. The assessment must also state whether it is provisional or final.

The MAT are reminded that any finding of fact or other determination necessary to any earlier decision in this case is not conclusive: see section 117(2) Social Security Act 1975, now replaced by the provision of consolidation section 60(2) of the A Act. Findings of earlier medical boards do not bind them, though they may be persuasive cf. decision CI/370/1989 at paragraph 26.

(4) Making the assessment: causation

The MAT, assuming they have found unforeseen aggravation, should, in respect of the period of assessment make, in the same way as an AMA completing form BI 118A, but with the addition of reasons where explanation is required, findings on what constitutes the relevant injury, the relevant loss of faculty and the resulting disabilities. In considering these, they must consider the cause of those disabilities.

Assuming that the MAT find, like the previous MAT, that the relevant injury was fractured pelvis, that the claimant's sole disability were impaired locomotion and urinary symptoms and that she suffers from a painful back and bladder problems and in addition from a mental condition which arose after the accident, three questions of causation relating to the mental condition arise:

(a) is the mental condition to be included in the relevant loss of faculty resulting in the disability? or

(b) if not, and the relevant loss of faculty was solely the painful back and bladder problems, was the mental condition another effective cause of the disability? or

(c) was the mental condition neither, being entirely unconnected with the disability?

As to (a). The authority for holding that a mental condition, such as depression and a psychiatric condition is to be taken into account in assessing the disability incurred as a result of the relevant loss of faculty is paragraph 1 of Schedule 8 to the 1975 Act (now Schedule 6 to the 1992 CB Act) which provides that the extent of disablement is to be assessed by reference to the disabilities "incurred by the claimant as a result of the relevant loss of faculty" in accordance with the general princip1es set out in sub-paragraphs (a), (b), (c) and (d). Sub-paragraph (a) provides (subject to exceptions) that all disabilities incurred as a result of the relevant loss of faculty shall be "taken into account ... having regard to his [i.e. the claimant's] physical and mental condition at the date of assessment as compared with a person of the same age and sex whose physical and mental condition is normal".

As to (b). The authority for taking into account in assessing a disability dual causation, one cause being the relevant loss of faculty and the other being "the other effective cause", is contained in regulation 11 of the General Benefit Regulations which were made under sub-paragraph (b) of paragraph 1 of Schedule 8, which provides for regulations as to the extent if any to which disabilities are to be taken into account where there are:

"disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might be expected to result, from a cause other than the relevant accident."

Regulation 11 of the 1982 General Benefit Regulations (replacing 1975 Regulations) contains provisions to this effect. Paragraph (3) (not in point in the present case) may operate to restrict the assessment by "off setting" the extent of the disability which would have been present had the relevant accident not occurred, and thus the amount of benefit, where there is a pre-existing "other effective cause" of the disability. Paragraph (4) (in point in the present case) may operate in the circumstances envisaged in paragraph 33 below to increase the assessment and thus the amount of benefit, where there is a subsequent "other effective cause" of the disability. Regulations 11(3) and (4) relate to cases where there is only one industrial accident but where two causes, only one of which is a result of the relevant loss of faculty, which together operate to produce a disability.

Regulation 11(4) provides that in assessing the extent of disablement made by reference to any disability which is due in part of the relevant loss of faculty but also to another effective cause being an injury (or disease) received (or contracted) after the relevant accident:

(a) account is to be taken of the disablement to which the claimant would have been subject if the other effective cause had not arisen, and

(b) where such extent is 11% or more account shall also be taken of disablement as a result of the other effective cause "except to the extent to which he would have been subject thereto if the relevant accident had not occurred". In effect, the increase for greater disability due to another effective cause only operates if the first cause (calculated as provided in sub-para. (a) of para. 1 of Schedule 8) is assessed at 11% or more.

To summarise the effect of Schedule 8 and regulation 11(4), the disability arising from the relevant loss of faculty is first assessed as provided in Schedule 8, and in particular in sub-paragraph (a) of paragraph 1, taking into account the claimant's physical and mental condition as compared with a person of the same age and sex whose physical and mental condition is normal. If that assessment is 11% or more, it may be increased, in the manner provided in regulation 11(4) , to give effect to the greater disability due to the other effective cause.

The MAT in the present case should disregard paragraph (5) of regulation 11, which is confined to the case where there has been more than one accident or disease arising out of and in the course of, or due to the nature of, the claimant's employed earner's employment. They should also disregard paragraphs (6) and (7) which prescribe by reference to Schedule 2, degrees of disablement. They can, however, have regard to such degrees as specified in that Schedule in making their assessment, by virtue of paragraph (8). See the appendix to this decision.

As to (c). If the claimant's mental condition, arising after the accident, does not (a) constitute part of the relevant loss of faculty nor (b) amount to another effective cause of disability that alternative (c) applies, namely that this condition is unconnected with the accident in any way.

The "C" condition. So far as regards, at the least, the case where there is a single industrial accident followed later by depression and a psychiatric condition which is not another effective cause, the MAT should not treat this as a "C" condition. No assessment in respect of this is authorised by the Act or regulations. This "condition" did not appear in the prescribed form for AMAs until some time after 1984. It is described on the forms which are the subject of the references to the MAT as a condition "which through interaction has the effect of increasing the disability arising from the relevant loss of faculty but is not itself the other effective cause of that disability" and in paragraph 64 of the Industrial Injuries Handbook for Adjudicating Medical Authorities 1986 edition "C" conditions are described as:

"Conditions which cause disability distinct from that arising from the loss of faculty but which, by their presence, have the effect of making the relevant disability more disabling than it otherwise would have been, are recorded as "C" conditions. They are not subject to Benefit Regulations."

The authority given for this statement is paragraph 1 of Schedule 8 of the Social Security Act 1975. According, however, to the Secretary of State, in his written submission on this point dated 18 June 1992 the C condition is authorised by paragraph 1(a) of Schedule 8. No authority is quoted to support this submission and I do not accept that paragraph 1(a) creates it. That paragraph indicates how disabilities arising from the relevant loss of faculty are to be assessed and provides that all disabilities "so incurred" shall be assessed in the way specified in that paragraph. If the claimant's physical or mental condition, compared with a person of the same age and sex, differs from normal the assessment of the disability arising from the relevant loss of faculty must take this into account. It is not a separate condition. Treating it as such leads to confusion since it would be necessary to find a condition (the "C" condition) which is not included in the relevant loss of faculty resulting in the disability and is not another effective cause of the disability but nevertheless causes greater disablement. No such notion is suggested in the Act or regulations, no decision cited to me or which I can discover has ever referred to it. Either the claimant's subsequent depression is included in the relevant loss of faculty, or it is another effective cause of the disability (impaired locomotion) as the last AMA found, or it is an unconnected condition.

The MAT in the present case should accordingly, if they find depression and psychiatric condition arising after the accident, indicate into which of the three categories referred to above that condition falls. It is of particular importance that they should give reasons as to why that condition is, or is not, another effective cause, during the assessment period, of the impaired locomotion. For it was the failure to deal with this point that constituted the error of law in respect of which I have set the decision of the MAT aside.

My decision is set out in paragraph 1.

Date: 16 December 1992 (signed) Mr. V. G. H. Hallett Commissioner

APPENDIX

(see para. 4 for the provisions of consolidation)

Disablement benefit

Social Security Act 1975 (as amended)

-(1) Subject to the provisions of this section, an employed earner shall be entitled to disablement benefit if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than [14 per cent].

(2) ......................

(3) "Assessed" means assessed in accordance with Schedule 8 to this Act; and for the purposes of that Schedule there shall be deemed not to be any relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.

107(2) Subject to subsection (3) below, and to section 117 (finality of decisions), any person suffering personal injury by accident shall be entitled, if he claims the accident was an industrial accident, to have that question determined, and a declaration made and recorded accordingly, notwithstanding that no claim for benefit has been made in connection with which the question arises; and this Part of this Act applies for that purpose as if the question had arisen in connection with a claim for benefit.

-(1) In relation to industrial injuries benefit [and severe disablement allowance], the "disablement questions" are the questions -

(a) [in relation to industrial injuries benefit,] whether the relevant accident has resulted in a loss of faculty;

(b) [in relation to both benefits,] at what degree the extent of disablement resulting from a loss of faculty is to be assessed, and what period is to be taken into account by the assessment

[but questions relating to the aggregation of percentages of disablement resulting from different accidents are not disablement questions (and accordingly fall to be determined by an adjudication officer).]

[(2) Subject to and in accordance with regulations, the disablement questions shall be referred to and determined by an adjudicating medical practitioner or by two or more adjudicating medical practitioners or by a medical appeal tribunal] [or, in such cases relating to severe disablement allowance as may be prescribed, by an adjudication officer.]

110(2) Any assessment of the extent of the disablement resulting from the relevant loss of faculty may also be reviewed by an adjudicating, medical practitioner if he is satisfied that since the making of the assessment there has been an unforeseen aggravation of the results of the relevant injury.

[Unforeseen aggravation falls to be determined by a medical board (i.e. two adjudicating medical practitioners: see regulation 29(1)(a) of the Social Security Adjudication Regulations 1986.]

SCHEDULE 8

Assessment of extent of disablement

General provisions as to method of assessment

For the purposes of [section 36 or 57] of this Act, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles:-

(a) save as hereafter provided in this paragraph, the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal;

(b) [except in the case of an assessment for the purposes of section 36,] regulations may make provision as to the extent (if any) to which any disabilities are to be taken into account where they are 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;

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition;

(d) the disabilities resulting from such loss of faculty as may be prescribed shall be taken as amounting to 100 per cent disablement and other disabilities shall be assessed accordingly.

Provision may be made by regulations for further defining the principles on which the extent of disablement is to be assessed and such regulations may in particular direct that a prescribed loss of faculty shall be treated as resulting in a prescribed degree of disablement; and, in connection with any such direction, nothing in paragraph 1(c) above prevents the making of different provision, in the case of loss of faculty in or affecting hand or arm, for right-handed and for left-handed persons.

Regulations under paragraph 1(d) or 2 above may include provision -

(a) for adjusting or reviewing an assessment made before the date of the coming into force of those regulations;

(b) for any resulting alteration of that assessment to have effect as from that date;

so however that no assessment shall be reduced by virtue of this paragraph.

Social Security (General Benefit) Regulations 1982

Principles of Assessment

Further definition of the principles of assessment of disablement and prescribed degrees of disablement

-(1) Schedule 8 to the Act (general principles relating to the assessment of the extent of disablement) shall have effect subject to the provisions of this regulation.

(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 (hereafter 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 a 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 and in the course of, or diseases due to the nature of, employed earners' employment, shall only be taken into account 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.

(6) Where the sole injury which a claimant suffers as a result of the relevant accident is one specified in column 1 of Schedule 2 to these regulations, whether or not such injury incorporates one or more other injuries so specified, the loss of faculty suffered by the claimant as a result of that injury shall be treated for the purposes of section 57 of, and Schedule 8 to, the Act as resulting in the degree of disablement set against such injury in column 2 of the said Schedule 2 subject to such increase or reduction of that degree of disablement as may be reasonable in the circumstances of the case where, having regard to the provisions of the said Schedule 8 to the Act and to the foregoing paragraphs of this regulation, that degree of disablement does not provide a reasonable assessment of the extent of disablement resulting from the relevant loss of faculty.

(7) For the purposes of paragraph (6) where the relevant injury is one so specified in the said column 1 against which there is set in the said column 2 the degree of disablement of 100 per cent and the claimant suffers some disablement to which he would have been subject whether or not the relevant accident had occurred, no reduction of that degree of disablement shall be required if the medical appeal tribunal, the medical board or single medical practitioner acting instead of a medical board (as the case may be) is satisfied that, in the circumstances of the case, 100 per cent is a reasonable assessment of the extent of disablement from the relevant loss of faculty.

(8) For the purposes of assessing, in accordance with the provisions of Schedule 8 to the Act, the extent of disablement resulting from the relevant injury in any case which does not fall to be determined under paragraph (6) or (7), the medical appeal tribunal, the medical board or single medical practitioner acting instead of a medical board (as the case may be) may have such regard as may be appropriate to the prescribed degrees of disablement set against the injuries specified in the said Schedule 2.