UK Social Security and Child Support Commissioners' Decisions

Janicki v. Secretary of State for Social Security [2000] UKSSCSC CI_13188_1996 (06 December 2000)

R(I) 1/01

(Janicki v. Secretary of State for Social Security)

Mr. A. Lloyd-Davis CI/13188/1996
18.3.99

CA (Schiemann and Buxton LJJ and Jacob J)

6.12.00

Prescribed disease A12 (carpal tunnel syndrome) - scissors and wire cutters not containing their own source of vibration but transmitting vibration from an external source - whether hand-held vibrating tools

The claimant was required to use a heavy industrial sewing machine, which vibrated. She was also required to use industrial wire cutters and scissors, which were hand-held but so heavy that they had to rest on the sewing machine. Neither the wire cutters nor the scissors contained their own source of vibration but they transmitted vibration from the sewing machine to the claimant. An adjudication officer refused her claim for disablement benefit on the basis that she had not worked in employed earner's employment involving the use of hand-held vibrating tools. There was no contention that the sewing machine was itself a hand-held vibrating tool. The tribunal dismissed the claimant's appeal. The Commissioner, following CI/156/1994 in preference to CI/136/1995, decided that the tool, when in use, must of itself and independently of any external agency, vibrate and in addition be hand-held. He dismissed the claimant's appeal. The claimant appealed to the Court of Appeal.

Held, allowing the appeal, that:

it was an occupation that was prescribed and what the individual was doing needed to be looked at;

if he or she used a tool which was hand-held and vibrated then it was a hand-held vibrating tool within paragraph A12 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985;

this construction was confirmed by the Industrial Injuries Advisory Council's Report for Work Related Upper Limb Disorders published in 1992 (Cmnd. 1936 – May 1992), which had led to the prescription of the disease. The report was based on studies which had shown that carpal tunnel syndrome appeared if there was a combination of gripping and vibration and it did not indicate any interest in the source of vibration.

The Court remitted the case to a differently constituted appeal tribunal on the medical issues.

Note: The prescription of the occupation was amended from 24 March 1996 by regulation 5 of the Social Security (Industrial Injuries and Diseases) (Miscellaneous Amendments) Regulations 1996, S.I. 1996 No. 425, subject to a saving in regulation 7.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the social security appeal tribunal held on 10 March 1995 is not erroneous in law. Accordingly I do not allow the claimant's appeal.
2. In September 1993 the claimant submitted an application for industrial injuries benefit in relation to prescribed disease A12 known as carpal tunnel syndrome. The adjudication officer then concerned decided that prescribed disease A12 was not prescribed in relation to the claimant because she had not been employed on or after 5 July 1948 in employed earner's employment involving the use of hand-held vibrating tools. He disallowed the claimant's claim for industrial injuries benefit. The claimant appeals with the leave of the Commissioner. The appeal is not supported by the adjudication officer now concerned.
3. In order to establish that prescribed disease A12 is prescribed in relation to the claimant, by virtue of regulation 2(a) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 she has to show that she has been employed in employed earner's employment any time on or after 5 July 1948 in any occupation set against prescribed disease A12 in the second column of Part I of Schedule 1 to those regulations. The relevant entry in the second column of Part I was (before it was subsequently amended) any occupation involving "the use of hand-held vibrating tools".
4. The tribunal's findings of fact so far as is relevant to this appeal were as follows:

"[The claimant] was born on 11 August 1945 and, for a large number of years, has been employed as a machinist manufacturing sports bags.

In connection with this job (which is piecework) she was required to use a heavy industrial sewing machine which vibrated. She was also required to use industrial wire cutters and scissors which were hand-held but so heavy that they had to rest on the sewing machine. The scissors and wire cutters themselves did not of themselves vibrate. Any vibration was caused through the vibration of the sewing machine. [The claimant] herself bodily vibrated as a result of contact with the sewing machine."

I interpose that there was evidence before the tribunal from the claimant that the sewing machine was foot-operated. Further there was no contention before the tribunal nor before me that the sewing machine was itself a hand-held vibrating tool. Such a contention would clearly be unsustainable.

5. The relevant passages in the tribunal's reasons were as follows:

"The tribunal had to decide whether taking into account all the facts [the claimant] suffered from prescribed disease A12, being work-related carpal tunnel syndrome caused by the use of hand-held vibrating tools.

Whilst it was accepted that the scissors and wire cutters did in fact vibrate, this was as a result not of the tools themselves vibrating, but by contact with the sewing machine. [The claimant's] body and hands also vibrated by contact with the sewing machine. It was putting a much too liberal interpretation on the words "vibrating tools" to conclude that by contact with another machine they fell within the definition.

...

... [the tribunal is] of the view that [the claimant] cannot satisfy the definition of prescribed disease because of the fact that the scissors and wire cutters in any event do not of themselves vibrate." (tribunal's emphasis)

6. The claimant's representative's grounds of appeal are:

"The regulations do not specify the means by which the hand-held tools should vibrate. It is submitted that the tribunal took a narrow view of the meaning of hand-held vibrating tools. The tools did vibrate by virtue of contact with the sewing machine."

These grounds are substantially repeated in the claimant's further observations.

7. In CI/156/1994, where the tool in question was a metal template used to control thick cloth which was being sewn on an industrial sewing machine, the Commissioner said, at paragraph 12:

"The context of the whole phrase "hand-held vibrating tools" seems to me to suggest a tool which contains within it a source of vibration. It is not enough that a tool transmits vibration."

However, in CI/136/1995, where the tool in question was a pair of tweezers which was used by the claimant in contact with a floor-mounted piece of vibrating machinery, the Commissioner held, in paragraph 10:

"It is not suggested that "hand-held vibrating tools" has a technical or special meaning. The words must be given their ordinary natural meaning and whether any particular hand-held tool comes within the words must it seems to me, be a question of fact. For my part, I do not find any justification for concluding that "hand-held vibrating tools" refers only to tools which vibrate on their own account."

Later in the same decision, at paragraph 11, the Commissioner continued:

"It is not in issue in this case that the tweezers were a hand-held tool. It is only a question whether they are within the description "hand-held vibrating tool". That, as I have said, is a question of fact. The tribunal's findings on that appear to me to be impeccable and I see no fault in their reasons. As to CI/156/1994 I would only say that, unfortunately, I have to disagree with the proposition that, as a matter of law, to be within the description of "hand-held vibrating tools" the tool in question must contain within it the source of its vibration."

8. I am therefore faced with two directly conflicting and irreconcilable decisions of other Commissioners. In my judgment, however, there is no doubt whatsoever that the decision in CI/156/1994 is to be preferred. It is not enough that a tool merely transmits vibration from something else, it must contain its own source of vibration. I reached this conclusion purely on the use of language in the words of the prescription. Those words are not "vibrating hand-held tools", which might have included any hand-held tool which vibrated whether the source of vibration was internal or external to the tool itself, but "hand-held vibrating tools" which indicates that the tools (when in use) must of themselves and independently of any external agency vibrate, and in addition be hand-held.
9. For the reasons set out in the preceding paragraph I do not allow this appeal. There is one further matter. Paragraphs 5 and 6 of the submission of the adjudication officer now concerned were in the following terms:

"5. The claimant in this case contended the prescription was satisfied by the use of industrial scissors and wire cutters which vibrated by virtue of them resting on the vibrating sewing machine. The tribunal held that as the tools of themselves did not vibrate their use did not satisfy the prescription.

Commissioners' decisions CI/156/1994 and CI/136/1995 are now included at pages 19 and 24 respectively. However these decisions were made after the date of the tribunal hearing and therefore could not have been considered at that time. I would submit that the tribunal were correct in finding that the claimant did not use hand-held vibrating tools and that their decision was not erroneous in law. I therefore do not support this appeal." (my added emphasis)

The emphasised words seem to suggest that, whatever the Commissioners' decisions referred to had decided, they can be of no relevance to whether or not the tribunal's decision was or was not erroneous since they post-dated that decision: the Commissioners' decisions seem to be treated by the adjudication officer as if they were evidence arising after the date of the tribunal hearing and which the tribunal could not be faulted for not taking into account. If my interpretation of what the adjudication officer is submitting is correct, that submission is based on a misapprehension as to the doctrine of judicial precedent. If a tribunal in, say, 1996 decides case A on a particular view of the law and then, in 1997, a Commissioner in a different case, case B, on appeal from another tribunal holds that the law is otherwise, then, on case A coming before a Commissioner in 1998, an adjudication officer is bound to have regard to the view of the law taken by the Commissioner in case B in making his or her submissions on whether or not the appeal in case A should or should not be supported. In the present case there were conflicting decisions from two Commissioners: I would have expected, but did not receive, a submission from the adjudication officer as to which of the decisions was regarded by the adjudication service as being correct.

Date: 18 March 1999 (signed) Mr. A. Lloyd-Davies

Commissioner

The claimant appealed to the Court of Appeal. The decision of the court of Appeal follows.


 


DECISION OF THE COURT OF APPEAL

Mr. C. Bloomer (instructed by Rowlands, Manchester M2 2RW) appeared on behalf of the Applicant.

Mr. D. Forsdick (instructed by Dept. of Social Security, London WC2A 2LS) appeared on behalf of the Respondent.

Judgment

10. LORD JUSTICE SCHIEMANN: Jacob J will give the first judgment.
11. MR JUSTICE JACOB: This is an appeal from the decision of 18 March 1999 of Mr. Commissioner Lloyd-Davies, a social security Commissioner. He upheld the decision of the social security appeal tribunal by which the appellant's application for industrial injuries benefit was refused.
12. The claim arose because she developed carpal tunnel syndrome "prescribed disease A12" in the relevant regulations. The facts are simple and were stated by the tribunal as follows:

"[The claimant] was born 11 August 1945 and, for a large number of years, has been employed as a machinist manufacturing sports bags.

In connection with this job (which is piecework) she was required to use a heavy industrial sewing machine which vibrated. She was also required to use industrial wire cutters and scissors which were hand-held but so heavy that they had to rest on the sewing machine."

13. Note that it was essential that the hand-held devices rested on the sewing machine.

"The scissors and wire cutters themselves did not of themselves vibrate. Any vibration was caused through the vibration of the sewing machine. [the claimant] herself bodily vibrated as a result of contact with the sewing machine."

14. They made that finding. However nothing turns on the point made in the last sentence.
15. The issue before the Commissioner arose under regulation 2 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, SI 1985 No. 967 as amended, in particular in 1993, by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 1993, SI 1993 No. 862.
16. The Commissioner correctly set out what the applicant had to show: that her employed occupation was one "involving the use of hand-held vibrating tools." The scheme of the regulation (both unamended and amended) is set forth in regulation 2. This provides:

"For the purposes of Chapter V of Part II of the Act-

(a) subject to paragraphs (b) and (c) of this regulation [and to regulations which are set out] each disease or injury set out in the first column of Part I of Schedule 1 hereto is prescribed in relation to all persons who have been employed [after a certain date] in employed earner's employment in any occupation set against such disease or injury in the second column of the said Part."

17. So the scheme of the Schedule is disease on one side and occupation on the other. One's attention is therefore focused not just on the tool but on the occupation.
18. The Commissioner reasoned really just on the words alone. He held that although the particular cutters were hand-held they were not hand-held vibrating tools within the meaning of the regulation. He said:

"It is not enough that a tool merely transmits vibration from something else, it must contain its own source of vibration. I reached this conclusion purely on the use of language in the words of the prescription. Those words are not "vibrating hand-held tools", which might have included any hand-held tool which vibrated whether the source of vibration was internal or external to the tool itself, but "hand-held vibrating tools" which indicates that the tools (when in use) must of themselves and independently of any external agency vibrate, and in addition be hand-held."

19. As a matter of language I do not think that follows. It is obviously a fine point because another Commissioner has come to a different conclusion. In case CI/136/1995 Commissioner Sanders said:

"On balance, I should have thought that if it had been intended to limit "hand-held vibrating tools" in the way suggested by the adjudication officer some word or other, possibly "powered", would have been added."

20. He came to the conclusion that there was no need for an independent vibration source within the hand-held tool.
21. Yet another Commissioner came to the opposite conclusion.
22. At present I think the true solution is to be found by thinking about the fact that what is prescribed is an occupation. You are looking at what the individual is doing. If what he or she does is to use a tool which is hand-held and vibrates then it is a hand-held vibrating tool within the meaning of the regulation.
23. I think that is rather confirmed by the travaux prèparatoires. These, in essence, consist of a Report for Work Related Upper Limb Disorders published in 1992. The recommendation at the beginning began:

"Only for one condition, carpal tunnel syndrome associated with the use of hand-held vibrating tools, is the epidemiological evidence strong enough to satisfy our stringent demands. Consequently, we recommend to you that this should be added to the list."

24. When one goes to the body of the report one finds this at paragraph 26:

"Better evidence is available from cross-sectional studies that have compared the prevalence of carpal tunnel syndrome in subjects carrying out a range of jobs, and from case-control studies in which the occupational activities of patients with carpal tunnel syndrome have been compared with those of controls who did not have the disease. The findings from such studies tend to indicate associations with tasks that entail forceful or repetitive wrist movement, but estimates of the risk associated with such activities have varied widely and, in the better executed studies, have often been small. The most consistent observations have related to work involving the use of vibrating tools. Four studies have indicated a doubling of the risk of carpal tunnel syndrome among people working with hand-held vibrating tools, although it is unclear how far the disorder is a consequence of the vibration, and how far of the posture and the grip required to use such tools - many of which are heavy or cumbersome."

25. The authors then reach their conclusion that hand-held vibrating tools should be added to the list.
26. The report is based on essentially statistical studies. What has been observed is, if you have the combination of gripping and vibration, the syndrome seems to appear. If one thinks of it in those terms there would be no interest whatever in considering the source of the vibration. Thus, to my mind, the travaux preparatoires also indicate that one is not interested in the source of vibration: it is holding the tool by hand coupled with the vibration which brings you within the regulation. I would allow the appeal.
27. LORD JUSTICE BUXTON: I also will allow the appeal for the reasons given by my Lord.
28. LORD JUSTICE SCHIEMANN: I am of the same mind. The appeal will therefore be allowed.

Order: Appeal allowed; remitted to differently constituted appeal tribunal for determination of the medical issue; costs to be subject to detailed legal aid assessment.