UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CI_3261_2000 (22 November 2001)

 
R(I) 8/02


Mr. P. L. Howell QC CI/3261/2001

22.11.01

Prescribed disease D7 (occupational asthma) – meaning of "any other sensitising agent"

The claimant, a former bus driver, made a claim for industrial injuries disablement benefit on the ground that he was suffering from Prescribed Disease D7 (occupational asthma) the cause of his asthma being the exposure to diesel fumes and dust that his work driving buses through heavy traffic in the centre of London necessarily involved. There was no dispute that the claimant had and continued to have severe chronic asthma which had been much worse when he was at work because of exposure to cold air and diesel and other fumes and improved when he was away from work and avoided these conditions. The only question for the tribunal was whether the claimant's asthma was due to exposure to any of the list of specified agents in the sub-paragraphs of condition D7 in Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No 967 as in force from 26 September 1991 when additional categories of agent were introduced including the one claimed by the claimant to be applicable to him: "(x) any other sensitising agent". The tribunal recorded that the medical evidence did not support the claimant's strongly held view that it had been the diesel fumes that were the original cause of his asthma (although there was agreement that his work exacerbated his condition) and dismissed the appeal. The claimant appealed to the Commissioner.

Held, dismissing the appeal, that:

it is quite clear from the report of the Industrial Injuries Advisory Council dated 28 August 1990, which led to the additional categories of agent being introduced, that the expression "sensitising agent" when used medically in this context means a chemical agent which actually causes a person to develop an asthmatic condition when inhaled at work rather than one which merely exacerbates an existing condition; and that in the absence of medical evidence that the diesel fumes were the original cause of the claimant's asthma the tribunal had reached the only decision they reasonably could have done on the claim.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal by the claimant against the decision of the Sutton tribunal sitting at Whittington House on 28 April 2000 has to be dismissed, as in my judgment the tribunal's decision was correctly based on the evidence before it and contained no error of law.

2. According to the facts found by the tribunal the claimant, a former London bus driver who has suffered from chronic severe asthma for some years, made a claim for industrial injuries disablement benefit on 7 July 1999 on the ground that he was suffering from Prescribed Disease D7 occupational asthma. His contention was, and has throughout been, that the cause of his asthma disease was the exposure to diesel fumes and dust that his work driving Routemasters through the heavy traffic in the centre of London for extended periods necessarily involved.

3. There was medical evidence before the tribunal showing that there was no doubt the claimant had and continued to have severe chronic asthma, which had been much worse when he was at work because of exposure to cold air and diesel and other fumes and improved when he was away from work and avoided these conditions. That is in no way disputed. However the question on which the tribunal had to be satisfied before the claimant could qualify for benefit for disease D7 occupational asthma was whether his asthma was due to exposure to any of the list of specified chemical agents in the 24 sub-paragraphs of condition D7 in Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No. 967, as in force from 26 September 1991 when additional categories of agent were introduced, including the final one which he claimed was applicable to him: "(x) any other sensitising agent".

4. Taking into account the terms of the report of the Industrial Injuries Advisory Council dated 28 August 1990 which led to these extra provisions being introduced (Cm 1244, October 1990) from which it is quite clear that the expression "sensitising agent" when used medically in this context means a chemical agent which actually causes a person to develop an asthmatic condition when inhaled at work, the tribunal were in my judgment quite correct in directing themselves that the question they had to consider on the evidence in the claimant's case was whether it had been shown that the diesel fumes, particulates, dust and so forth he inhaled while driving his bus had been the actual cause of his asthmatic condition, rather than merely irritating his chest and making it worse.

5. As the tribunal correctly recorded, the evidence before them on this issue consisted first of medical advice obtained by the department that diesel exhaust and other vehicle fumes and dust of the kind to which a person is exposed in heavy traffic, while they would certainly act as irritants, would not operate as "sensitisors" or causative agents for occupational asthma in the way required by the regulations making this a prescribed disease. In addition there were medical reports by three separate doctors on behalf of the claimant himself at pages 35 to 41 which as the tribunal correctly recorded in their statement of reasons at page 46 did not at any point report or state that his asthma had actually been caused by exposure to diesel fumes, though they all agreed that it was made much worse by his continuing to work as a bus driver and that it would be a great deal better for him to move to another job. In the words of the consultant physician's report dated 18 February 1999 at page 36:

"He told me that he developed respiratory symptoms after an episode of pneumonia in November 1997  … Subsequently he has been troubled by breathlessness on exertion  … This gentleman clearly has troublesome asthma which is worse when he is outdoors and at work. It is likely that cold air and irritant fumes to which he is exposed at work are exacerbating his asthma and have been the cause of his losing considerable time from work."

6. That being the state of the evidence, and there being as the tribunal recorded no medical evidence to back up the claimant's own strongly held view that it had been the diesel fumes that were the original cause of his asthma, the tribunal in my judgment reached the only decision they reasonably could have done on his claim; and their reasons are fully and clearly expressed.

7. The claimant himself in his reply observations dated 27 November 2000 at pages 61 to 62 I think acknowledges that it is really the lack of supporting medical evidence that was the reason for his claim not being able to succeed, as he says "I still strongly believe that my asthma was caused by exposure to diesel fumes. If in future, medical evidence is found to prove this theory right I want my case to be reopened". That of course remains a possibility, and if further evidence of his particular condition or general advances in medical knowledge and asthma research can be obtained to show that the fumes and gases to which he was exposed while driving his bus contained an identifiable sensitising agent, then it will always be open to him to apply to the Secretary of State to have his case reconsidered in the light of that.

8. The present appeal has, however, necessarily to be dismissed for the reasons given above.

Date: 22 November 2001 (signed) P L Howell

Commissioner