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Cite as: [1997] UKSSCSC CI_13270_1996

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[1997] UKSSCSC CI_13270_1996 (06 October 1997)

R(I) 5/98

Mr. D. G. Rice CI/13270/1996

Prescribed disease A6 (beat knee) - friction and pressure applied to the claimant's foot by use of a brake pedal - whether leading to "friction or pressure at or about the knee"

The claimant had been employed for approximately 20 years as a crane driver (ball and chain) and in the course of his work friction and pressure were applied to his foot when using the brake pedal. The adjudication officer decided that the claimant had not been employed in an occupation involving "manual labour causing severe or prolonged external friction or pressure at or about the knee" and disallowed the claimant's claim for disablement benefit. The claimant appealed and the tribunal allowed the appeal. The adjudication officer appealed to the Commissioner who considered a medical report dealing with the question whether material friction or pressure might have been transmitted to the claimant's knee.

Held, allowing the appeal, that:

the prescribed occupation was to be interpreted in the context of the prescribed disease and the friction or pressure to which the manual labour gave rise had to be friction or pressure that caused beat knee;

the action of depression and release of a brake pedal might cause the knee to be repeatedly flexed and extended and cause damage to the knee joint but it would not cause beat knee;

the tribunal had erred in law in reaching holding the claimant to have been employed in a prescribed occupation.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 20 September 1995 is erroneous in point of law and accordingly I set it aside. As it is convenient that I substitute my decision for that of the tribunal, I further decide that prescribed disease number A6 (known as beat knee) is not prescribed in relation to the claimant, because the claimant has not been employed on or after 5 July 1948 in employed earners' employment in any occupation involving manual labour causing severe or prolonged external friction or pressure at or about the knee, so the claimant is not entitled to disablement benefit.

This is an appeal by the claimant, brought out of time with my leave, against the decision of the social security appeal tribunal of 20 September 1995.

On 19 April 1995 the adjudication officer decided that the claimant was not engaged in a prescribed occupation in relation to prescribed disease number A6 (known as beat knee), and accordingly he disallowed disablement benefit. In due course the claimant appealed to the tribunal, who in the event allowed the appeal. They took the view that the claimant had in fact been engaged in a prescribed occupation, and as a result allowed the claim for disablement benefit. The adjudication officer now appeals to me against that decision.

Prescribed disease number A6 constitutes:

"Bursitis or subcutaneous cellulitis arising at or about the knee due to severe or prolonged external friction or pressure at or about the knee (beat knee)."

The occupation for which this disease is prescribed (as set out in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, SI 1985 No. 967) is any occupation involving:

"manual labour causing severe or prolonged external friction or pressure at or about the knee"

The claimant was for 20 years or so employed as a crane driver (ball and chain), and in the course of his work friction and pressure were applied to his foot. Although such friction and pressure were not directly applied to the claimant's knee, the possibility suggested itself that the friction and pressure in question might be transmitted to the knee. In other words, although the claimant did not suffer friction or pressure directly to the knee, he might do so indirectly. I considered the point gave rise to some difficulty, and accordingly directed an oral hearing, which initially took place on 30 March 1997. However, it soon became evident that medical evidence was necessary to deal with the matter at issue, and accordingly I adjourned the hearing to enable such evidence to be procured.

At the resumed hearing, which took place on 2 September 1997, the claimant, who was present, was represented by Mr. E. Blackwell of the T.G.W.U., whilst the adjudication officer appeared by Mr. S. Sriskan Darajah of the Solicitor's Office of the Department of Social Security. Both these representatives had appeared at the earlier hearing.

A medical report had been obtained by the adjudication officer from Dr. S. M. Reed, BSc, MB, ChB, DoccMed, dated 2 June 1997. That report discusses in detail the nature of prescribed disease A6 (beat knee) and in the course of it says:

"The key feature of beat knee is that there is direct pressure and/or friction to the knee and immediate vicinity, for example just above or below the knee. This pressure/friction must be applied directly to the area of skin to cause cellulitis, or directly to the skin overlying the bursa."

Manifestly, the prescribed occupation is to be interpreted in the context of prescribed disease A6. Therefore the friction or pressure to which the manual labour gives rise must be the friction or pressure that causes beat knee. It is not any kind of friction or pressure.

What was the effect on the claimant's knee of his use of the brake pedal in the course of his operation of the crane? Dr. Reed answers this as follows:

"The action of depression and release of a brake pedal may cause the knee to be repeatedly flexed and extended (though the bulk of the action takes place at the ankle joint). Such repeated actions can cause damage to the knee joint e.g. tearing of the ligaments, or wear and tear leading to osteoarthritis. These conditions are entirely different to beat knee. They involve different pathological processes to those encountered in beat knee and involve entirely different anatomical parts of the knee. The parts affected in osteoarthritis and ligamental damage are actually within the knee joint itself, whereas in beat knee the anatomical parts affected are superficial and not within the knee joint itself."

Clearly then, consistent use of the brake pedal did not result in friction or pressure on the claimant's knee within the context of prescribed disease A6, and as a result his occupation was not prescribed. Mr. Blackwell did not seek to contend otherwise. He accepted the report.

Manifestly, in reaching the contrary conclusion the tribunal erred in point of law, and I must set aside that decision. However, it is unnecessary for me to remit the matter to a new tribunal for a re-hearing as, having had sight of Dr. Reed's medical report and heard the parties' representatives, I am satisfied that I can substitute my decision for that of the tribunal, and dispose of the appeal finally.

Accordingly, my decision is as set out in paragraph 1.

Date: 6 October 1997 (signed) Mr. D. G. Rice

Commissioner