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Cite as: [1996] UKSSCSC CI_12678_1996

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[1996] UKSSCSC CI_12678_1996 (22 October 1996)

R(I) 4/98

Mr. M. J. Goodman CI/12678/1996

Prescribed disease D6 (nasal carcinoma) - painter sanding wood - whether employed "in or about a building where wooden goods are manufactured or repaired"

The claimant had been working as a painter for 45 years and during the course of his work he had spent a large proportion of his time working with wood and sanding that wood. He claimed to be suffering from prescribed disease D6 but the adjudication officer decided that he had not been engaged in a prescribed occupation and as a result disallowed the claim for disablement benefit. The claimant appealed and the tribunal allowed his appeal on the basis that he came within sub-paragraph (a) of paragraph D6, having been employed in an occupation involving "attendance for work in or about a building where wooden goods are manufactured or repaired". The adjudication officer appealed to the Commissioner.

Held, allowing the appeal, that:

before they were affixed to buildings, the items on which the claimant worked, such as doors, skirting boards and parquet flooring, were "wooden goods" (para. 8);

but sub-paragraph (a) covered only work in buildings such as factories or warehouses where the manufacture or repair of wooden goods was carried out as part of the nature of the building (para. 10);

the claimant was therefore not entitled to disablement benefit because he had not at any time been employed in prescribed employment.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the adjudication officer's appeal against the decision of the social security appeal tribunal dated 1 September 1995 as that decision is erroneous in law and I set it aside. My decision is that, in relation to the claim dated 8 February 1995 for disablement benefit for prescribed disease D6 (nasal carcinoma), disablement benefit is not payable because the claimant has not at any time been employed in the relevant prescribed employed earner's employment: Social Security Administration Act 1992, section 23; Social Security Contributions and Benefits Act 1992, section 108; Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, SI 1985 No. 967 ("the 1985 Regulations"), Schedule 1, Part I, paragraph D6.

This is an appeal to the Commissioner by the adjudication officer against the unanimous decision of a social security appeal tribunal dated 1 September 1995, which allowed the appeal of the claimant (a man born on 7 January 1935) against a review decision of an adjudication officer issued on 26 April 1995. That review decision actually related to the fact that from 1969 onwards the claimant had not been an employee but had been self-employed. However both the tribunal and the Commissioner have dealt with the case in relation to the period of undoubted employed earner's employment by the claimant from 1949 to 1969. The period from 1969 onwards, though self-employment, was factually of similar work. In the circumstances of this case, the real question is therefore whether or not the employed earner's employment for 1949 to 1969 was prescribed for the purposes of paragraph D6 of part I of Schedule 1 to the 1985 Regulations.

At the request of the adjudication officer, the appeal was the subject of an oral hearing before me on 26 September 1996 at which the adjudication officer was represented by Miss N. Lieven of Counsel. The claimant, who was present at the hearing was represented by Mr. J. Bacon of the Citizens Advice Bureau. I am indebted to all those persons for their assistance to me at the hearing.

The facts in this case are carefully summarised by the claimant in his letter of appeal to the tribunal. In effect the tribunal accepted evidence from him in accordance with that letter. The relevant parts of the letter read as follows:

"I have recently applied to claim benefit for an industrial disease called nasal carcinoma [prescribed disease D6] and was not awarded this. The stated reasons were, because I had not been employed in employed earner's employment in any occupation involving the attendance for work in or about a building where wooden goods are manufactured or repaired. I have worked as a painter for 45 years. For the first 25 years of my career I was employed by the following companies [four separate companies in the period from 1949 to 1969]. The remaining 25 years I have been self-employed working in shops, offices, private dwellings, and in contract for companies on factory work. During the 45 years as a painter a large proportion of my time was spent working with wood as a part of my job. It was essential to sand down wood using a portable electric sander or by hand. This procedure generated large amounts of fine wooden dust particles in the areas of where I was working. The work would often be indoors and confined spaces where there was no local or general ventilation to remove the dust thus increasing the risk from it being inhaled. In my previous employment [from 1949-1969] I worked on building sites where I sanded down hard woods, polished and preserved woods. Such items included doors, staircases, windows, garages, fascia boards etc. Whilst with [a company 1955-1959] I was required for two years to sand down and paint wooden huts at [a Royal Ordnance factory]. During my earlier years I was able to grain hardwood products. This was a specialised area in which I had experience and therefore was often requested to do this type of job which meant I had to remove the layers of top wood to restore it to its natural state. My final 25 years I spent as a private and industrial painter and decorator working on private dwellings, shops and contracting out to factory firms ... All my work required large items of wood like wall panels, garden furniture, doors and windows etc. to be sanded and again involved work with hardwood dust, polished wood dust and preserved wood dust. From the information I have read I believe there to be a strong link between the respirable wood dust and the nasal cancer which I have been diagnosed as having. Since I have worked in firms as well as working on my own since 1948 and believe the work done in my career demanded the sanding of wood which creates this respirable wood dust it is in these grounds that I wish to lodge an appeal. Although my line of work is not classified as joinery I hope that in lodging my appeal you will consider the similar occupations with regard to working in wood dust that I have experienced during my 45 years as a painter."

The tribunal, before whom the claimant attended and gave evidence, took the utmost care with this case. They in fact held two hearings and received detailed written submissions from the parties, including a quantity of technical and other evidence. They recorded detailed findings of fact and reasons for their conclusion that in fact the claimant came within the occupation prescribed for disease D6.

That prescription reads as follows:

"Description of disease or injury

Occupation

D6 Carcinoma of the nasal cavity or associated air sinuses (nasal carcinoma).

Any occupation involving:

(a) attendance for work in or about a building where wooden goods are manufactured or repaired; or

(b) attendance for work in a building used for the manufacture of footwear or components of footwear made wholly or partly of leather or fibreboard; or

(c) attendance for work at a place used wholly or mainly for the repair of footwear made wholly or partly of leather or fibre board."

Of the three sub-paragraphs in the prescribed occupation only (a) is of course relevant in this case. However, sub-paragraphs (b) and (c) are useful in construing the meaning of sub-paragraph (a) because they refer to "work in a building used for" and work at a place used wholly or mainly for the repair of". Sub-paragraph (a) is wider in its wording and simply refers to "work in or about a building where wooden goods are manufactured or repaired". As is pointed out on behalf of the claimant, there is no reference in sub-paragraph (a) to the building being "used" for manufacture or repair unlike the references in sub-paragraphs (b) and (c).

The tribunal concluded that the claimant came within sub-paragraph (a) because they regarded the various wooden items on which he had worked over the years as "goods" and they held that his work had involved "the repair" of those goods. At the hearing before me, Miss Lieven on behalf of the adjudication officer conceded that the doors, skirting boards, parquet flooring, etc. on which the claimant had worked over the years came within the phrase "wooden goods". Miss Lieven resiled from a contrary contention in the written submission or the adjudication officer. In my judgment, that concession was correctly made. The items on which the claimant worked over the years, whether or not ultimately attached to buildings, were nevertheless to be described for this purpose as "goods". The tribunal quoted a number of statutory definitions of the word "goods", but those definitions were for the purposes of the particular statutes and were not necessarily relevant in the present context. The social security legislation contains no definition of the word "goods". However, I consider that, certainly before they were affixed to buildings, the wooden items on which the claimant worked by sanding etc. before painting them were undoubtedly "wooden goods" within sub-paragraph (a) of paragraph D6.

The real question as indeed was correctly submitted by Miss Lieven at the hearing was whether or not, when the claimant had worked on those wooden goods, his was work "in or about a building where wooden goods are ... repaired" (my emphasis). It should be also noted that the expression used in sub-paragraph (a) is simply "attendance for work", which presumably means that it does not have to be shown that a claimant was doing the work provided he had attended for it. There is there, I consider, an emphasis in sub-paragraph (a) on being in the vicinity of the manufacture or repair of wooden goods. Once a claimant can show himself as coming within sub-paragraph (a), then under regulation 4(1) of the 1985 Regulations it would be presumed that, if he had nasal cancer, it was due to the nature of the employment. However, that is a presumption that could in an appropriate case e.g. of someone who had been nowhere near wood dust in the building, be rebutted. Medical evidence shows that nasal cancer is rare, except in the case of certain wood workers.

The question is therefore, whether in the circumstances of this case, the claimant, who undoubtedly had inhaled over many years quantities of wood dusts which are apparently recognised carcinogenic agents could bring himself within sub-paragraph (a) of paragraph D6. Miss Lieven submitted that the context of paragraph D6 showed that it was not intended to cover every person who had been subjected to wood dust but was narrower than that. She submitted that the intention was to cover only buildings where the manufacture or repair was part and parcel of the nature of the building e.g. a factory or warehouse where such manufacture or repair was regularly carried out. For the reasons given below, I accept that submission. She drew attention to the fact that the prescription had originally been confined to "attendance for work in or about the building where wooden furniture was manufactured" but, as a result of a report by the Industrial Injuries Advisory Council in 1981 (Cmnd 8393), the prescription had been extended by subsequent regulation to its present form.

Paragraph 60 of the Industrial Injury Advisory Council's report reads as follows:

"60. We received evidence that there was an increased risk of nasal cancer in woodworkers other than workers in the furniture industry (to whom the cover ... is at present restricted), and a review of the research material on the subject showed a much higher incidence of nasal cancer among workers exposed to any fine wood dust than among the population in general. We therefore recommend an extension of the occupational cover of disease D45 [now D6] to the manufacture of all wooden goods. We also recommend extending cover to those involved in the repair of wooden goods."

Mr. Bacon, for the claimant laid stress on the fact that that paragraph was broad in its terms, where it referred to the fact that:

"... a review of the research material on the subject showed a much higher incidence of nasal cancer among workers exposed to any fine wood dust than among the population in general."

However, it should be noted that the first sentence of paragraph 60 refers to "Woodworkers other than workers in the furniture industry" (my emphasis). Mr. Bacon also drew attention to the report of Dr. Acheson and other doctors (in the British Medical Journal for 8 June 1968 at p. 587) on "Nasal cancer in woodworkers in the furniture industry". At page 594 of the Journal, the report, after referring to the increased risk of nasal cancer for wood workers in the furniture industry, says:

"The risk also extends to a significant but lesser extent to persons employed in other trades exposed to dust in the furniture industry. In this area, carpenters and joiners never employed in the furniture industry have either no increased risk or an increase in risk was not detectable in a population of this size ... It is concluded that a constituent or constituents of wood dust which is inhaled and is present in such commonly used hardwoods as oak and beech is etiologically related to the development of these tumours. Polishes, lacquers, and varnishes are unlikely to be incriminated."

There is considerable evidence of hazards to woodworkers and those exposed to respirable wood dust. The Health and Safety Executive (HSE) has issued a number of publications warning against the hazards of wood dust. See, for example, Guidance Note EH40(88). However the question is whether in the context of a claim for disablement benefit this particular claimant comes within the prescription in paragraph D6(a). This is not just a question of fact, on which of course the tribunal's decision would be final and not appealable, but involves the legal construction of sub-paragraph (a) D6. I have found this a most difficult case, not made easier by the undoubted plight in which the claimant has found himself. The nasal cancer has spread, caused him to have an eye removed and has also now spread to his lungs. I have however ultimately come to the conclusion that it is not legitimate to extend to the claimant (who in the course of his work as a painter came into contact for many years with quantities of respirable dust) the protection of sub-paragraph (a) of paragraph D6 because the wording of it does not justify it. I accept as correct in law Miss Lieven's submission that that sub-paragraph (a) covers only buildings where, as part of the nature of the building, the manufacture or repair is carried out e.g. a factory or warehouse. It could not be said that dwelling houses and Royal Ordinance Factory buildings in or near which the claimant worked came within such a description. I ultimately conclude that the tribunal erred in law in applying sub-paragraph (a) to the kind of work that the claimant had done and therefore I must set their decision aside. The intention of sub-paragraph (a), as is evidenced by the above cited Industrial Injuries Advisory Council's Report, was merely to extend the existing prescription for work on the manufacture or repair of wooden furniture to wooden goods generally. No further extension to all those who have in their work inhaled wood dust was intended nor is, in my view, shown by sub-paragraph (a).

Lastly I would note that a different occupational disease (occupational asthma, paragraph D7) is prescribed for any person who has worked in an occupation involving "exposure to any of the agents set out [therein]", one of which (paragraph D7 (i)) is in fact simply "wood dust". If it had been intended to protect such persons from the risk of nasal carcinoma in addition, the wording of paragraph D6 could have been made equally broad. As I understand it, in the present case it is not contended that this particular claimant is suffering from occupational asthma but, if it is thought to be otherwise, there is of course no reason why he should not now make a claim for disablement benefit for prescribed disease D7 though my saying this does not indicate any view by me on the likelihood of success of such a claim.

Date: 22 October 1996 (signed) Mr. M. J. Goodman

Commissioner