UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CI_7371_1999 (29 June 2001)

 
R(I) 7/02


Mr. D. Williams CI/7371/1999

29.6.01

Industrial disease – prescribed disease D4 (allergic rhinitis) - operation of regulation 4 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985

The appellant claimed benefit on the basis that he was suffering from prescribed disease D4 (allergic rhinitis due to exposure to a listed agent). Neither of two examining medical practioners' reports diagnosed the disease, but the appellant obtained two reports from an expert which were helpful to his case. The appellant's appeal was heard by a Medical Appeal Tribunal. The tribunal found that the claimant did suffer from allergic rhinitis, but that his condition was constitutional, rather than occupational, in origin. The tribunal did not consider regulation 4(1) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, which provides, where a person has one of certain prescribed diseases (including D4), that "…that disease shall, unless the contrary is proved, be presumed to be due to the nature of his employed earner's employment…" if that employment is in any occupation listed against that disease in Schedule 1 to the regulations. The appellant appealed to the Commissioner.

Held, allowing the appeal, that:

for the appellant's claim to succeed it had to be shown (inter alia) that the rhinitis was due to exposure to one or more of the agents listed in the formal prescription of the disease in the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, Schedule 1 (the prescription of the disease having been amended with effect from 24 March 1996);

in his claim form the appellant had indicated occupational exposure to several of the listed agents, and the claim therefore put the operation of the presumption of regulation 4(1) into issue;

once it is decided that an appellant has allergic rhinitis the cause or causes must be considered, but a tribunal cannot conduct that enquiry until it knows whether the occupation or occupations undertaken by the appellant are prescribed;

in this instance, the tribunal which heard the case had not known whether a decision had been taken as to whether or not the appellant's occupation was prescribed within the terms of regulation 4(1), and the tribunal had therefore erred in law by failing to adjourn either for such a decision to be taken or for any decision already taken to be reported to it;

the changes in the operation of regulation 4 distinguished this case from R(I) 1/97 which was decided under the old form of PD D4 prior to its redefinition and inclusion in the presumption of regulation 4;

the occupational/constitutional approach to the cause of rhinitis may not be helpful under the new form of PD D4 because, while it is for the experts to decide questions of fact , if an individual is allergic to some of the listed agents and was in a prescribed occupation, then (subject to the other conditions that apply) he or she has the prescribed disease, even if also allergic to other allergens.

The Commissioner set aside the tribunal's decision and gave the decision that the tribunal should have given. This was that the case was adjourned for the Secretary of State to decide whether all or any of the occupations that the appellant undertook during the period relevant to this claim were prescribed occupations for PD D4.

[Note: It is understood that (contrary to the assumption of the Commissioner in paragraph 9) it is normal practice to decide prescription questions before diagnosis questions for this prescribed disease.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I allow the appeal.
2. The appellant is appealing with permission of the chairman against the decision of the Liverpool appeal tribunal on 22 January 1999 that the claimant was not suffering from prescribed disease D4 or any sequela of that disease.
3. For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. I take instead the decision that the tribunal should have taken, which is:

Consideration of the diagnosis question is adjourned for the Secretary of State to decide whether all or any of the occupations that the appellant undertook during the period relevant to this claim are occupations for which the prescribed disease D4 is prescribed.

I direct that the case be referred to the Secretary of State. If the Secretary of State decides that one or more of the appellant's occupations is prescribed for the purposes of prescribed disease D4, then the case is to be listed, with that information, for full rehearing by a new tribunal in accordance with this decision.

Background to this appeal

4. Shortly after the appellant claimed that he was suffering from the prescribed disease D4 (allergic rhinitis due to exposure to a listed agent), he was examined by an examining medical practitioner. He had previously made a claim for the disease in 1997. The practitioner who examined him in 1997 reported that the claimant was not suffering from the disease. The claimant appealed that finding, and he was examined again by another medical practitioner, who also reported that the history and clinical findings did not support a diagnosis of the disease. The examination following this new claim also led to a report that the claimant did not suffer from the disease. But this time, before taking matters further, the claimant obtained a report from a consultant ear nose and throat specialist indicating that the clinical appearances were those of allergic rhinitis. A further report from the consultant (after sight of general practitioner reports and the results of an Immunoglobulin E test) considered that the claimant had occupational allergic rhinitis. The claimant was then seen by another examining medical practitioner who also had sight of the consultant's reports. That practitioner found no evidence of PD D4.

The tribunal decision

5. The appeal was heard by a medical appeal tribunal with two medical members. The appellant was present and represented at the hearing. As well as hearing from both, the tribunal medically examined the appellant. The key findings of the tribunal were:

5. Taking into account all the evidence and the findings above the tribunal is satisfied that the appellant does suffer from allergic rhinitis. This does not necessarily mean that he suffers from the prescribed disease D4; this depends on whether the allergic rhinitis is occupational or constitutional in origin.

6. On the balance of probabilities, it is the view of the tribunal that the allergic rhinitis in this case is constitutional in origin. Accordingly, the tribunal is not satisfied that the appellant suffers from prescribed disease PDD4.

In its statement of reasons, the tribunal discusses the reports of the consultant in some detail. It states that it accepted the clinical findings in the reports. But the tribunal makes it clear that its medical members take a different diagnostic view from the consultant based on the clinical findings, taking into account the personal history of the appellant and the evidence as a whole.

Grounds of appeal

6. The main ground of appeal was that the tribunal had misread the reports of the consultant. The Secretary of State's representative did not support the appeal. In the view of that representative, the report from the consultant was ambiguous, and that it was highly unlikely that a medical appeal tribunal would misread a medical report. The representative drew attention to the other evidence, and that the tribunal was an expert tribunal. It was also submitted that the decision of the tribunal was adequate.

Occupational or constitutional?

7. Both parties join issue on whether the tribunal took the right approach in deciding that the rhinitis was not occupational and was constitutional. I agree with both on that point, but I do not accept either submission as both miss what is in my judgment the central point in this case. It is not disputed that the appellant had allergic rhinitis. For the appellant's claim to succeed, it had also to be shown that the rhinitis was due to exposure from one or more of the agents listed in the formal prescription of the disease in the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, Schedule 1. The list in that schedule is long but a closed list. However, if the appellant's occupation was prescribed for the purposes of the disease, then a presumption about the linkage of the rhinitis and the occupation operates in the appellant's favour.

Regulation 4 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985

8. The precise terms of prescribed disease D4 were changed by statutory instrument with effect from 24 March 1996. Previously, there was no specific reference to allergic rhinitis. (See the full discussion about the old form of D4 in the decision of Commissioner Hallett reported as R(I) 1/97). The new prescription was considered in this case. That change in the law was accompanied by another change which has been overlooked. Regulation 4(1) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 now provides:

Where a person has developed a disease which is prescribed in relation to him in Part I of Schedule 1 hereto, other than the diseases A10, A12, B5, D1, D2, D5 and D12 in that Schedule, that disease shall, unless the contrary is proved, be presumed to be due to the nature of his employed earner's employment if that employment was in any occupation set against that disease in the second column of the said Part and he was so employed on, or at any time within one month immediately preceding, the date on which, under the subsequent provisions of these regulations, he is treated as having developed the disease.

Before the change in prescription of D4 in 1996, D4 was also listed in the regulation. The occupation listed in the second column for D4 is:

Any occupation involving:

Exposure to any of the agents set out in column 1 of this paragraph.

9. In the claim form completed in 1998, the claimant indicated occupational exposure to several of the listed agents, and said that he thought he had been suffering from allergic rhinitis from 1982. The claim therefore put the operation of regulation 4 in issue, as it would apply if the appellant's evidence on those points were accepted. The first examining medical practitioner, in August 1998, found no evidence of allergic rhinitis, so did not consider identification of agents or the presumption in regulation 4. The second practitioner neither confirmed nor refuted this approach, concluding ambiguously that there was no evidence to support a diagnosis of PD D4. It is not clear whether that opinion took, or should have taken, regulation 4 into account. The tribunal agreed that the appellant had allergic rhinitis. As it recognised, this put in issue what had caused the rhinitis. If the occupation undertaken by the appellant had been prescribed, it also put regulation 4 in issue. But the tribunal did not know whether a decision had been taken about the appellant's occupation being prescribed. I assume (following normal practice) that it has not been so decided. The tribunal should have adjourned for the decision to be taken and/or reported to it.
10. The change in the operation of regulation 4 makes this case fundamentally different to that considered by the Commissioner in R(I) 1/97 under the old rules. As the Commissioner said (paragraphs 4 and 16 of that decision), the question arose in that case because there was no presumption then operating for D4. Here the tribunal is faced with a different problem. Once it had decided that the appellant had allergic rhinitis, it was required to consider the cause or causes of that rhinitis. But a tribunal cannot fully conduct that enquiry until it knows whether the occupation or occupations undertaken by the appellant are prescribed. This is because it cannot consider regulation 4 until it knows whether, and how far, the "prescribed occupation" condition is met.
11. More generally, I am also not sure that "occupational or constitutional" is a helpful question to be asked under the new form of PD D4. There is some suggestion in this case that the rhinitis might be both at the same time. The formal prescription of D4 covers allergic rhinitis "due to" occupational exposure to the listed agents. I am not a medical expert, and it is for the experts to decide as a question of fact, but personal experience suggests that an individual's allergic rhinitis may be triggered at any one time by a range of agents or allergens. If the individual is allergic to some of the agents within the list, and he or she is or was in a prescribed occupation, then (subject to the other conditions that apply) he or she has the prescribed disease even if also allergic to other allergens. Regulation 4 may help decide this. It will be for those who decide the level of disablement attributable to the prescribed agents, rather than other allergens, to decide on the extent of the prescribed disease. It may be that this requires a determination of overall disablement with an appropriate offset or it may be that, once an individual is sensitised, the additional sensitivities are sequelae of the initial sensitisation. Those again are questions of fact.

My decision

12. The tribunal, having concluded that the appellant has allergic rhinitis, should have adjourned the hearing to invite the determination whether all or any of the appellant's occupations were prescribed before continuing with its analysis. Of course, if it is now determined that there was no prescribed occupation, then the claim ceases to operate (subject to any appeal on that point). Or it may be that there should be prescription of all the appellant's previous occupations, or some but not others. Only when it is clear that the "prescribed occupation" condition in regulation 4 is met for at least part of the relevant period should a hearing of this appeal proceed, with the presumption in regulation 4 in mind. If the prescription of occupations covered only part of the appellant's work, then a tribunal will need to consider the time limit in regulation 4 to see if the date of onset was linked by time to a prescribed occupation.
13. In taking the decision that the tribunal should have taken, I adopt a practical point related to adjournment from R(I) 1/97, paragraph 30(2). If the tribunal had to adjourn for this reason, it may be considered desirable to adjourn all aspects of the case, so that the matter may be reconsidered as a whole by a new tribunal, rather than having to be reserved for a tribunal of the same membership as the tribunal adjourning so that it may conclude the case. With that point in mind, I take the somewhat unusual decision as a Commissioner that this tribunal should have adjourned, as I consider that expedient. I adjourn it with directions rather than send it back for a full rehearing to stop the new tribunal also finding itself having to adjourn.

Date: 29 June 2001 (signed) David Williams

Commissioner