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[1997] UKSSCSC CI_12673_1996 (10 September 1997)

R(I) 1/98

Mr. M. Rowland CI/12673/1996

Prescribed disease A8 (tenosynovitis) - new "claim" after end of period of assessment - whether requiring a review of the assessment

On 19 June 1957 a medical board decided the claimant had been suffering from prescribed disease No. 34 (now prescribed disease A8, tenosynovitis) and assessed disablement at 5% from 24 March 1957 to 23 September 1957. Following a further claim, on 12 March 1986 a medical appeal tribunal decided that he had not suffered from tenosynovitis since 24 September 1957. His appeal to a Commissioner against that decision was dismissed. Later, the claimant made a further claim, treated as having been made on 16 November 1992, for disablement benefit from 13 March 1986. An adjudicating medical practitioner decided that the claimant was suffering from tenosynovitis, that it was a recrudescence of an earlier attack, and that disablement should be assessed at 5% for life from 16 August 1992. The claimant appealed to a medical appeal tribunal. The tribunal, confirming the decision of the adjudicating medical practitioner, made no reference to recrudescence but found that the claimant had been suffering intermittent attacks of tenosynovitis since 16 January 1957 and assessed disablement at 5% from 16 August 1992 for life. They considered that they were giving a decision on review under section 47(4) of the Social Security Administration Act 1992, and that therefore regulation 62 of the Social Security (Adjudication) Regulations 1995 limited the assessment to a period not exceeding three months before the date of the application. The claimant appealed.

Held, allowing the appeal, that:

the claim from 13 March 1986 did not involve a review under section 47(4), which would bring into play regulation 62, because section 47(4) did not apply to a case arising out of an industrial disease if the period under consideration began after the end of any previous period of assessment for benefit;

the tribunal had therefore erred in deciding that they could not take into account any period exceeding three months before the date of the application and could have made an assessment from any date from 13 March 1986 (the date from which the claimant claimed benefit) although benefit might have been awarded only from a later date.

The Commissioner remitted the case to a differently constituted tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I directed an oral hearing of this appeal because it raised complex issues. The claimant, who indicated that he was in poor health, neither attended the hearing nor was represented. The Secretary of State was represented at the hearing by Mr. Richard Morgan of the Office of the Solicitor to the Department of Social Security and Health who substantially adopted written submissions made by Mr. C. Richards. I am grateful to both Mr. Richards and Mr. Morgan for the clarity of their submissions which have greatly assisted me.

The claimant was formerly a forge worker. He first claimed disablement benefit in respect of prescribed disease No. 34 (now prescribed disease A8), popularly known as tenosynovitis, on 30 March 1957. On 19 June 1957, a medical board decided that he had been suffering from tenosynovitis and assessed disablement at 5% from 24 March 1957 to 23 September 1957. No further claim for disablement benefit was made by the claimant in respect of tenosynovitis until 1985. On 16 April 1985, a medical board assessed disablement due to tenosynovitis at less than 1% from 24 September 1957. The claimant appealed against that assessment but, on 12 March 1986, a medical appeal tribunal decided that the claimant had not suffered from tenosynovitis at all since 24 September 1957. The claimant appealed to a Commissioner but, on 4 March 1987, his appeal was dismissed (CI/168/1986).

On 16 November 1992, the claimant made the "claim" which has led to the appeal before me. On that day there was received by the Benefits Agency, a form BI168(UA) completed by the claimant on 12 November 1992 and on which he applied for a review of his "assessment" on the grounds of "unforeseen aggravation". However, there was no current assessment of disablement and the claimant appears to have been advised by the Benefits Agency to make a statement on 25 May 1993, saying:

"I wish to continue with my claim for unforeseen aggravation for my 5% assessment up to 23 September 1957. If this is not possible, I wish this to be treated as a fresh claim."

On 24 June 1993, the Benefits Agency wrote:

"As your claim for unforeseen aggravation has been rejected, your claim is now being treated as a new claim. Therefore, would you please state the date you wish your claim to be accepted. (Previously you claimed from 16 January 1957.)"

The claimant replied on the following day saying:

"I wish my claim for tenosynovitis to be accepted from and on 13 March 1986".

The procedure under which the application in its original form was "rejected" is obscure but is not important in the context of this appeal. The application has now been reconstituted as a "claim", treated as made on 16 November 1992, for disablement benefit from 13 March 1986.

Various medical reports were obtained and so were some papers relating to industrial accidents in which the claimant had injured his hands and wrists. Eventually, on 30 March 1994, the matter was put before an adjudicating medical practitioner who decided that the claimant was suffering from tenosynovitis and that it was a recrudescence of an earlier attack. The adjudicating medical practitioner also assessed disablement at 5% for life from 16 August 1992. He gave the following explanation for his decision:

"The AMA considers that he suffered an attack of tenosynovitis beginning 16 January 1957 rendering him incapable of work at that time and that that attack has left him liable to repeated attacks provoked by manual tasks and has assessed the disablement occasioned since accordingly."

The matter then seems to have been referred to an adjudication officer who seems to have been confused as to the distinction between an adjudicating medical practitioner and a medical practitioner to whom a question is referred for report. However, it is unnecessary for me to comment further on the adjudication officer's decision.

The claimant appealed against the adjudicating medical practitioner's assessment of disablement. The Secretary of State's submission to the tribunal mentioned also the adjudicating medical practitioner's decision on the recrudescence question. At the request of the tribunal, the Secretary of State had the question "whether or not [the claimant] suffered from prescribed disease A8 or a sequela thereof" referred to the tribunal so that the tribunal could consider all the issues together. On 5 April 1995, the tribunal decided that the claimant had not suffered from prescribed disease A8 or a sequela thereof since 23 September 1957, but that decision was set aside on 18 May 1995 and the matter came before a differently constituted tribunal on 5 September 1995. On that date, the new tribunal confirmed the decision of the adjudicating medical practitioner. They made no express reference in their decision to recrudescence, but they found that the claimant had suffered from prescribed disease A8 since 16 January 1957 and they assessed disablement at 5% from 16 August 1992 for life. After recording their clinical findings, they gave the following additional explanation for their decision:

"Our conclusions are that he has been suffering from intermittent attacks of tenosynovitis in the extensor muscles of both forearms over the years since 1957, although these appear to be becoming less frequent in recent years. He is also affected by other conditions which are causing serious disability, rheumatoid arthritis, osteoarthritis and Dupuytren's contracture on both sides, although this latter condition is mild. The burns of both hands that he suffered in 1949 do not appear to have left any serious disability.

Finally our remit is to assess disability only for tenosynovitis (PD A8) and we assess this at 5% on average. His gross disability is considerably more than this in both hands due to the other conditions mentioned, but we have not attempted to assess this."

It is from that decision of the medical appeal tribunal that the claimant now appeals with my leave.

The claimant's main complaint is that the tribunal assessed disablement only from 16 August 1992 and did not assess disablement in respect of any earlier period. The tribunal limited the assessment in that way because they considered that they were giving a decision on review under section 47(4) of the Social Security Administration Act 1992 and that, therefore, regulation 68 of the Social Security (Adjudication) Regulations 1986 (now regulation 62 of the Social Security (Adjudication) Regulations 1995, to which I shall refer) applied. Regulation 62 of the 1995 Regulations provides:

"On review of any assessment under section 47(4) of the Administration Act (review on ground of unforeseen aggravation) the period to be taken into account by any revised assessment may include any period not exceeding 3 months before-

(a) if the review was in consequence of an application by a claimant, or a person acting on his behalf, the date of that application; or

(b) if the review was in consequence of a decision on a recrudescence question, within the meaning of regulation 43(3)(b) given under regulation 7(4) of the Prescribed Diseases Regulations (recrudescence of a prescribed disease), the date of the claim on which that decision was given,

if the medical board are satisfied that throughout that period there has been unforeseen aggravation of the results of the relevant injury since the making of the assessment under review."

The reference in the regulation to a "medical board" seems to be a drafting error as most reviews under section 47(4) are now carried out by single adjudicating medical practitioners. Presumably "medical board" should be read as "adjudicating medical authority". However nothing turns on that point.

It will be recalled that the claimant's "claim" of 16 November 1992 was originally made by way of an application for a review of an assessment of disablement on the ground that there had been unforeseen aggravation of the results of the tenosynovitis (which would have been a review under section 47(4) of the 1992 Act) but that the Benefits Agency rejected that application. Insofar as the application might have been regarded as an application for review of the award of disablement benefit in 1957 and as an application for review, in respect of the period up to 23 September 1957, of the assessment of disablement made on 19 June 1957, the Benefits Agency were clearly right to reject it because what is now regulation 62 of the 1995 Regulations had the effect that an adjudicating medical authority would have been unable to consider the period in issue. The question which arises on this appeal is whether the "claim" from 13 March 1986 also involved a review under section 47(4) bringing regulation 62 into play.

Section 47(4) to (6) of the 1992 Act provides:

"(4) 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 result of the relevant injury.

"(5) Where in connection with a claim for disablement benefit made after 25 August 1953 it is decided that the relevant accident has not resulted in any loss of faculty, the decision-

(a) may be reviewed under sub-section (4) above as if it were an assessment of the extent of disablement resulting from a relevant loss of faculty; but

(b) subject to any further decision on appeal or review, shall be treated as deciding the question whether the relevant accident had so resulted both for the time about which the decision was given and for any subsequent time.

(6) For the purposes of sub-section (5) above, a final assessment of the extent of the disablement resulting from a loss of faculty made for a period limited by reference to a definite date shall be treated as deciding that at that date the relevant accident had not resulted in any loss of faculty."

The combined effect of subsections (5) and (6) is that, a claim for disablement benefit due to an industrial accident made in respect of a period after the end of a previous assessment of disablement must be treated as an application for review of that assessment on the ground that there has been unforeseen aggravation of the result of the relevant injury.

However, section 62 of the 1992 Act permits the modification of the Act where a claim is made for disablement benefit due to an industrial disease. Section 47(4) of the 1992 Act is applied, with the minimum of modification, to cases concerning diseases, by virtue of regulations 43(2) and 44(2)(a) of the 1995 Regulations (formerly regulations 40(2) and 41(2)(a) of the 1986 Regulations). Regulation 43(2) provides:

"Except as provided in this Section any reference in Part II of the Administration Act or in these Regulations to the relevant accident shall be construed as a reference to the relevant disease and any reference to the date of the relevant accident shall be construed as a reference to the date of onset of the relevant disease."

Regulation 44(2) provides:

"The provisions of

(a) Part II of the Administration Act, subject to the provisions of this Section and of Schedule 3; and

(b) ... ,

shall apply for the determination of any question arising in connection with a claim for benefit under sections 108, 109, and 110 of the Contributions and Benefits Act in respect of a prescribed disease."

On the other hand, as has been rightly pointed out on behalf of the Secretary of State, section 47(5) of the 1992 Act (and therefore also section 47(6) which has effect only for the purpose of subsection (5)) does not apply to claims and applications in respect of industrial diseases. Regulation 44(1) of the 1995 Regulations (formerly regulation 41(1) of the 1986 Regulations) provides:

"Subject to regulation 52 (review on ground of unforeseen aggravation) the provisions of section 47(5) of the Administration Act (effect of decisions as to a loss of faculty) and of section 44 of that Act (declaration that an accident is an industrial accident) shall not apply in relation to prescribed diseases."

The exception in regulation 52 (formerly regulation 49 of the 1986 Regulations) arises only where the application for review is made within three months of the end of a final assessment of disablement.

The reason why, subject to regulation 52, section 47(5) and (6) does not apply in relation to a claim in respect of an industrial disease is presumably because episodes during which a person suffers from a prescribed disease may be entirely unconnected. Regulation 7 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 provides for the circumstances in which an attack of a disease is to be regarded as a recrudescence of an earlier attack and for the circumstances in which the disease is to be treated as having been contracted afresh and for the consequences of those findings. Regulation 7(1) to (4) provides:

"(1) Where in respect of a prescribed disease other than pneumoconiosis, byssinosis, diffuse mesothelioma, occupational deafness, occupational asthma, primary carcinoma of the lung, bilateral diffuse pleural thickening or chronic bronchitis or emphysema, a person's disablement has been assessed at not less than 1% and he suffers from another attack of the same disease, or dies as a result thereof, then-

(a) if the further attack commences or the death occurs during a period taken into account by that assessment which period is in this regulation referred to as a 'relevant period' the disease shall be treated as a recrudescence of the attack to which the relevant period relates, unless it is otherwise determined in the manner referred to in the following sub-paragraph;

(b) if the further attack commences or the death occurs otherwise than during a relevant period, or if it is determined in the manner provided in Part IX of the Adjudication Regulations that the disease was in fact contracted afresh, it shall be treated as having been so contracted.

(2) For the purposes of paragraph (1), a further attack of a prescribed disease shall be deemed to have commenced on the date on which the person concerned was first incapable of work or first suffered from the relevant loss of faculty, whichever is earlier, as a result of that further attack.

(3) Where, under the foregoing provisions of this Regulation, a disease is treated as having been contracted afresh, the date of onset of the disease in relation to the first contraction shall be the date on which the person concerned was first incapable of work or first suffered from the relevant loss of faculty, whichever is earlier as a result of the further attack, or in the event of his death, the date of death.

(4) Where, under the provisions aforesaid, a disease is treated as a recrudescence, any assessment of disablement in respect of the recrudescence during a period taken into account by a previous assessment of disablement shall be by way of review of the assessment relating to the relevant period, and the review shall be subject to the provisions of regulation 49 of the Adjudication Regulations."

The reference in regulation 7(4) of the 1985 Regulations to regulation 49 of the Social Security (Adjudication) Regulations 1984 must now be construed as a reference to regulation 51 of the 1995 Regulations (formerly regulation 48 of the 1986 Regulations), which provides:

"Where, by reason of the provisions of regulation 7(4) of the Prescribed Diseases Regulations, the decision on a recrudescence question necessitates the review of a previous assessment of disablement, the adjudicating medical authority may review such previous assessment, as provided by section 47 of the Administration Act, so however that, in any such case, notwithstanding the provisions of subsection (7) of that section, a previous assessment may be reviewed as provided by this regulation at any time without the leave of a medical appeal tribunal."

Regulation 47 of the 1995 Regulations (formerly regulation 44 of the 1986 Regulations) has the effect that, in any case where a disablement question arises, a "recrudescence question" must be determined by an adjudicating medical authority.

In the absence of provisions akin to section 47(5) and (6), it is plain that section 47(4) of the 1992 Act has no application in a case arising out of an industrial disease if the period under consideration commences after the end of any previous period of assessment, unless some other statutory provision provides otherwise. That is because, in the absence of such provision, no question of "review" arises if the period under consideration is different from that taken into account on any previous determination. It is argued on behalf of the Secretary of State that the effect of regulation 7(4) of the 1985 Regulations was that the assessment of disablement in the present case was to be made on a review under section 47(4) and that, therefore, the tribunal were right not to take account of any period more than three months before the date of the application for review because regulation 62 of the 1995 Regulations applied. However, I do not accept that submission. There seem to me to be two objections to it.

Firstly, regulation 7(4) of the 1985 Regulations 1985 only comes into play where a disease is treated as a recrudescence under regulation 7(1)(a) and that requires that the "further attack" has occurred during a period taken into account by an earlier assessment of disablement. In the present case, the tribunal wholly failed to deal with the "recrudescence question" but it is at best doubtful that they would have concluded that the disease was to be treated as a recrudescence had they considered the issue. Their finding that there had been "intermittent attacks" suggests that they would have found that any attack relevant to a "claim" for benefit from 13 March 1986 did not commence before 24 September 1957. It is true that they also found the claimant to have been suffering from prescribed disease A8 since 16 January 1957, which raises the possibility that they considered that there was really only one underlying attack, but that finding is problematic for reasons I shall explain below.

Secondly, regulation 7(4) of the 1985 Regulations applies only in respect of "any assessment of disablement in respect of the recrudescence during a period taken into account by a previous assessment of disablement". Therefore, in respect of any period commencing after any previous assessment of disablement, it cannot be said, for the purpose of regulation 51 of the 1995 Regulations, that "by reason of the provisions of regulation 7(4) of the Prescribed Diseases Regulations, the decision on the recrudescence question necessitates the review of a previous assessment of disablement" (my emphases). If regulation 51 does not apply, neither does regulation 62. Those provisions served to prevent the claimant from seeking a review of the 1957 assessment of disablement under section 47(4) of the 1992 Act (and there is nothing in the present case that can conceivably be construed as an application for review of that assessment under section 47(1)). However, none of the provisions I have mentioned so far served to prevent the medical appeal tribunal from assessing disablement from a date after
23 September 1957 and, in particular, from 13 March 1986 (from when the claimant "claims" disablement benefit). The tribunal should have made a free-standing assessment on the new "claim" for disablement benefit and it was unnecessary for them to review any earlier assessment of disablement. They erred in law in taking the view that they could not consider any period more than three months before the date of "claim".

The claimant presumably "claimed" benefit from 13 March 1986 because he was advised that he could not claim in respect of any earlier period due to the decision of the medical appeal tribunal on 12 March 1986 when they had held that he had not been suffering from tenosynovitis since 23 September 1957. Such advice would have been accurate. There were, in my view, substantial obstacles to an effective review of the decision of 12 March 1986 and, unless it was reviewed, the effect of section 60(1) of the 1992 Act was that that decision was final. Section 60(1) and (2) provides:

"(1) Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part of this Act shall be final; ...

(2) Subsection (1) above shall not make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision."

Section 60(2) permitted the tribunal sitting on 5 September 1995 to reach a finding of fact that was inconsistent with the decision given on 12 March 1986. Section 60(1) prevented that finding from being effective in respect of any period before
13 March 1986, but nothing prevented it from being effective from that date.

On the other hand, it would not necessarily follow from there being an assessment of disablement in respect of tenosynovitis from 13 March 1986, or from 91 days thereafter if 13 March 1986 were found to be the date of onset of the prescribed disease, that the claimant would be awarded disablement benefit in respect of tenosynovitis from that date. There are limits to the extent to which a claim can be back-dated. In fact, the "claim" made in this case on 16 November 1992, should have been treated as an application for review of an existing award of disablement benefit made in respect of an industrial accident, but that makes little difference because there are also limits to the extent to which such an application may be effective in respect of a period before it was made (see CI/420/1994). Those, however, are all matters for an adjudication officer, rather than a medical appeal tribunal (although, if an adjudication officer makes, before a case reaches the medical appeal tribunal, a decision limiting the period in respect of which benefit may be paid, the tribunal is entitled to restrict their consideration to that period, see paragraph 7 of Schedule 6 to the Social Security Contributions and Benefits Act 1992).

Mr. Richards, in his written submission on behalf of the Secretary of State, submitted that the tribunal's decision was erroneous in point of law because their findings suggest that there was more than one cause of the claimant's condition and their reasoning does not show that they considered the provisions of regulation 11 of the Social Security (General Benefits) Regulations 1982. Mr. Morgan, however, suggested at the hearing that the tribunal's reasoning might be considered adequate in the particular circumstances of this case. There is some force in both submissions but, as this case must be considered by another tribunal in any event, it is unnecessary for me to resolve the issue. It is sufficient that I should make it clear that the new tribunal's reasons must show that they have considered whether, and if so how, regulation 11 of the 1982 Regulations applies to this case.

The tribunal to whom I now refer the case should also make it quite clear that they have addressed the recrudescence question that arises if they are satisfied that the claimant has suffered from prescribed disease A8 during any relevant period. In this connection, I must explain why the last tribunal's finding that the claimant had been suffering from prescribed disease A8 since 16 January 1957 is problematic. Firstly, if the tribunal's finding that there had been intermittent attacks was a finding that, from time to time, the disease had been contracted afresh (bearing in mind the provisions of regulation 7(1)(b) and (2) of the 1985 Regulations), the date of onset of the disease fell to be determined under regulation 7(3) of the 1985 Regulations as the first day in respect of which the claimant suffered from a relevant loss of faculty as a result of the relevant further attack. Secondly, if they regarded tenosynovitis as including a liability to those attacks that actually produce symptoms (as the adjudicating medical practitioner seems to have done), their approach may have been inconsistent with the legislation. I can understand that a person suffering from, say, asthma can properly be said to be suffering from the condition between those attacks that create symptoms. It is not so clear that the same is true in relation to prescribed disease A8 which is actually prescribed, not as tenosynovitis, but as "traumatic inflammation of the tendons of the hand or forearm, or of the associated tendon sheaths". If an attack occurs when there is such inflammation and if there is no such inflammation between attacks, can it properly be said that the person is suffering from the disease between attacks ? The claimant may well have had, since 1957, a susceptibility to prescribed disease A8, but it may be inconsistent with the finding that there are only intermittent attacks to find that the claimant has continually suffered from the condition as it is prescribed. It is not strictly necessary for me to form a view on this issue and I am reluctant to do so without clear medical findings directed to it. I merely draw it to the attention of the tribunal to whom I now refer the case. I also wonder whether the legislation would work better if tenosynovitis were prescribed by reference to a liability to traumatic inflammation.

In any event, I allow the claimant's appeal. I set aside the decision of the Birmingham medical appeal tribunal dated 5 September 1995 and I refer the case to a differently constituted tribunal for determination in conformity with my decision.

Date: 10 September 1997 (signed) Mr. M. Rowland

Commissioner