THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CI/13238/1996
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER M J GOODMAN
"A10(b) Any occupation involving.. the use of pneumatic percussive tools on metal, or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used." (My underlining).
"Through his working life, the claimant worked as an asphalter, which involved the breaking up of surfaces prior to laying the asphalt. In breaking up the surfaces the claimant used pneumatic percussive tools on metal contained within the concrete surfaces."
"By virtue of his work as an asphalter, the claimant came within paragraph (b) of the second column in the Schedule to the Prescribed Diseases Regulations. Prior to laying asphalt, the claimant (who was in charge of a gang) had to rip out the previous surfaces - these were made of reinforced concrete and were broken up with pneumatic drills/compressor which struck the metal contained within the concrete."
"Moreover, sub-paragraph (b) like all the sub-paragraphs of A10, is subject to the requirement that the prescribed work must be in 'any occupation involving....'. That in my judgment does imply that there must be a point at which the use of the pneumatic percussive tools on metal is so incidental and so momentary that it cannot really be said that the claimant was employed in 'any occupation involving.... the use of pneumatic percussive tools on metal'. In plain parlance here the claimant was not working in any such occupation. He was working in an occupation which involved breaking up concrete flooring. The momentary or occasional contact with a metal reinforcing rod was minimal."
That decision does not appear to have been cited to or at least alluded to by the tribunal in this case.
"It is my opinion that the [adjudication officer] has wrongly relied upon Commissioner's decision CI/540/1994 paragraph 11 [quote above]... I do not consider that there is any analogy between flooring and roads. Whilst the Commissioner considered re-enforcing rocks [the present claimant] gave evidence regarding the make up of concrete road. He stated that the concrete was held together by metal net which was approximately 12 inches square. Because of this [the claimant] stated that a different drill was required. For the breaking of concrete only a round drill was required for breaking concrete. With metal re-enforcement a longer pointed drill was required as the round drill would not cut through the metal. I submit that because the make-up of concrete roads is not the same as the make-up of concrete flooring that [the claimant] does work in an occupation involving the use of pneumatic percussive tools on metal and therefore the decision of the tribunal was correct. I have enclosed a supporting letter from a Mr John Sumbland who is the District Secretary of the [Transport and General Workers Union] and who has responsibility for road workers throughout the U.K."
"Having served as a full-time official for the TGWU for the past 12 years, I have had responsibility for that period of time for representing our members covered by the Civil Engineering and Construction Industry National Working Rule Agreement of which Road Construction is a part. Reinforced concrete road surfaces, either sub-structure or main surface, was the mode of application up to a decade ago. Its widespread use has now diminished and its application is only relied upon given certain geographical conditions i.e. bridge spans and certain ground structures. This fact is borne out by what many motorists witness whilst negotiating motorway contraflows whilst new surfaces are being laid, i.e. one witnesses many layers of different size aggregates, loose and in macadams. Previously, many roads were laid in concrete sections with the concrete encasing meshed reinforcing wire for added strength. This reinforcing material was approximately quarter inch round steel wires welded together to form a matting of squares. Where repairs were needed to this concrete structure or whatever lay beneath, then dependent on the job in hand, air compressor driven road hammers (drills) would be used or heavy JCB mounted hammers. Both these methods would invariably involve the drill or bolster bit striking the steel mesh whilst attempting to break up the concrete."
"'Metal' for the purposes of the disease number A10 in Part I of Schedule 1 to these Regulations, does not include stone, concrete, aggregate or similar substances for use in road and railway construction."
This definition is not cited by the parties in the present appeal but clearly has some bearing on it. The definition was inserted by the 1990 Regulations, in effect to reverse a Commissioner's decision which had held that the word "metal" could include the substance commonly known as "road metal", though not of course having a metallic content. The definition of "metal" indicates clearly the purpose of the regulations, namely that "stone, concrete, aggregate or similar substances for use in road.. construction" are not to be regarded as "metal" for the purposes of paragraph A10. That reinforces my decision that the ruling in CI/540/1994 should apply to this case.
"Commissioner's decision R(I)4/84 states that 'underground' should be given its ordinary meaning 'below the surface of the ground'. Any contention that the work can be applied to work in places below ground level but open to the air is for rejection. I would submit that as the Mersey Tunnel is open to air at either end it does not satisfy the meaning of underground for occupational deafness."
However at the hearing before the tribunal, the presenting officer is recorded as saying,
"I would disassociate myself from paragraph 6.6 of the adjudication officer's submission - I don't think this is correct."
"With regards to the meaning of the word 'underground' I would submit that the presenting officer was correct to disassociate himself from the original adjudication officer's submission. This is because in R(I)4/84 the Commissioner held that the term 'underground' is restricted to a place where the surface of the earth is physically immediately above and which is thus not open to the air. Accordingly I would submit that work in the Mersey Tunnel, although being open at either end, is work 'underground'."
"(c) The use of pneumatic percussive tools for drilling rock in quarries or underground or in mining coal [or in sinking shafts or for tunnelling in civil engineering works] or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used;" (My underlining)
Amendments to a prescription can be given effect to on adjudication even where the claim was before the date of the amendment as here (claim 16 August 1994 - amendment 10 October 1994 - R(I)4/84). Consequently, it would seem that the time spent by the claimant with pneumatic percussive tools drilling rock (if such was the case) in the Mersey Tunnel was "for tunnelling in civil engineering works".
(Signed) M J Goodman
(Date) 29 September 1998