UK Social Security and Child Support Commissioners' Decisions

 


1. This appeal, brought with my leave, fails. The decision of the Appeal Tribunal on 21 1 02 was not erroneous in point of law, as explained below. The consequences of the relevant accident remained an effective cause of the payment of each of the benefits detailed in the certificate of recoverable benefit throughout the period of the certificate.
2. The facts on this appeal are well-known to the parties and I need not recapitulate them. There was an occurrence at work on 8 11 94 which was accepted, for benefit purposes, as an industrial accident. Various benefits were awarded on that basis throughout the relevant five-year period from the date of the accident, and were recovered from the compensator. The court in a compensation claim also accepted the occurrence as an industrial accident, but held that the onset of the appellant's symptoms from what everyone seems to be agreed was an underlying condition had been accelerated by two years. This was a different view from that which had been expressed by the appellant's expert in two previous medical reports (the second given after he had seen the defendants' medical reports), which was that the acceleration period was estimated at three years. It seems the expert revised his estimate at trial having heard the appellant give evidence and taken the judge's queries into account.
3. As a result of this revised estimate, the tribunal was asked to find that after two years from the accident (8 11 96), none of the appellant's problems was any longer attributable to the accident. She should therefore get a refund from the Secretary of State of that part of the damages paid over under the certificate of recoverable benefit that represented benefit paid for any period after 8 11 96.
4. The significance of tht date is that on 29 1 97 the appellant had surgery by her expert which decompressed the tibialis posterior tendon sheath. He said in his report of 19 9 97 that although there had not been a rupture of the tendon, as his original examination on 30 5 96 had suggested, the abnormalities found on exploration suggested a chronic tenosynovitis, which in his view was likely to have been precipitated by the accident. He estimated that the accident had precipitated the symptoms by three years. He repeated these views as to both causation and duration in a further report of 3 11 98, after he had seen the defendants' medical evidence which cast doubt on whether there had been an accident at all, or at least whether the symptoms complained of by the appellant were attributable to it.
5. Sadly, as a sequela of the operation (both parties are agreed on this), the appellant suffered a pulmonary embolism shortly afterwards, and the after-effects of this, including renal artery damage from anticoagulants, caused her to have a congeries of symptoms which led to increased disability and the award of further benefits. If, however, the effects of the accident could be taken as exhausted after two years, none of these other symptoms, nor the benefits awarded on the basis of them, would be recoverable.
6. The trial finding of 5 10 99 was before the Secretary of State when the original submissions were written, and is dealt with at page 21F. The appellant's expert's first report was also before him, but not, it appears, the second report. This was, however, before the tribunal. There was a further submission from the Secretary of State, but only to deal with the Tribunal of Commissioners' decision of 15 5 01 in CCR/6524/99 and linked cases.
7. The appellant's solicitor at the hearing (which the appellant did not attend) told the tribunal how the appellant's expert had changed his mind at trial. Indeed by the manner in which she made her submissions, stressing the adverse nature of the defendants' medical evidence and that the appellant's expert was the only one who had found a causal link between the accident and the appellant's condition, and the length of time which had elapsed after the accident before he first saw her, she almost appeared to be saying that the compensation award should not have been made at all. She suggested that if the adjudicating medical practitioners who had accepted the industrial accident as the, or a, cause of disablement had seen the defendants' medical evidence, they might not have attributed the appellant's condition to the accident at all. She had not obtained a transcript of the proceedings, on the grounds of expense, so effectively the tribunal knew no more than that the expert had changed his mind, not about causation but about duration.
8. The tribunal carefully considered the medical evidence, including the expert's report of 3 11 98 which reiterated his views about both causation and duration. On causation, it preferred his view to that of the defendants' expert, because of his eminence and expertise. But on duration, although acknowledging the court's finding, it correctly observed that it was not bound by the decision and that it had to exercise its own independent expert medical judgment. It noted that all the benefit documentation referred to left lower limb and post-embolism problems. It noted the appellant's expert's statement that the surgery which resulted in the embolism would not have taken place if the accident had not occurred. It found that all those consequences, which continued after the three-year period originally estimated by the expert, stemmed from the accident, and that all the benefits within the five-year period were therefore recoverable.
9. The appellant's representative's arguments on the appeal to me have been based on the expert's change of mind on oath at trial. She accepted (as is incontrovertible under s12(3) of the Social security (Recovery of Benefits) Act 1997) that a tribunal is not bound by a court decision, it need only take it into account, but she argued that the basis of the court's finding on duration was the evidence, from an expert whose views the tribunal had otherwise accepted as preferable to the evidence of other experts, that this was the best evidence, and that the tribunal did not adequately explain why it was disregarded. A signed statement from the expert (now retired) was supplied to me, though not available to the tribunal, in which he says he changed his mind having regard to the appellant's own evidence and the judge's queries. He also says the defendants' medical evidence influenced him but, as I pointed out in giving leave to appeal, he had already seen this and reiterated his own views on duration as well as causation in his report of 3 11 98, to which he makes no reference at all in his signed statement, so I am not persuaded that that evidence can have been of any material effect in changing his mind. Of course he is entitled to stress that his original estimate was only a rough one; but he does not mention that he reiterated it at a later stage. He does not say why he considered that the appellant would have required the surgery which resulted in the embolism even if there had been no accident and the condition had manifested itself less than three months before the operation, which is the inescapable logic of his conclusion on duration.
10. Nonetheless the appeal raised a point which I considered arguable, and I gave leave to appeal. The Secretary of State's officer did not support the appeal. She argued that the effect of CCR/6524/99 was that so long as the relevant accident was a cause of benefit being paid, even if not the only cause, then that benefit is recoverable. She also cited CCR/8023/95, decided under earlier legislation, where reduced earnings allowance was held recoverable beyond the period during which, as the result of a settlement, it had been accepted the disablement lasted, because it would not have been awarded without acceptance of an underlying industrial accident disablement.
11. The representative argued in response that it was irrational for the tribunal, having accepted the appellant's expert's evidence on causation as authoritative, not also to have accepted his revised estimate of duration given at trial. This was the best evidence, and it meant the appellant proved her case. She accused the Secretary of State of confusing the ground on which benefit is awarded (here based on the appellant's own evidence which turned out to have been misguided) with the grounds on which a better-informed tribunal may and should find that those awards were mistaken. I would not quarrel with these submissions as a matter of principle. CCR/6524/99 undoubtedly allows tribunals to go behind awards of benefit and decide whether they were properly made. This is not in dispute. But it all depends on the facts of each case.
12. The 1997 Act by s11(1)(b) permits an appeal against a certificate of recoverable benefits.on the ground that listed benefits which have been paid "otherwise than in respect of the accident" have been (wrongly) brought into account. The Secretary of State's officer contends that provided the relevant accident still plays some part in the benefit award, which she says by reference to the detail of the various benefit claims and findings that in this case it did, that is enough to preclude the benefits having been wrongly brought into account. Given the basis on which industrial injuries disablement benefit is awarded, which is that the relevant accident need not be the sole nor even the predominant cause of disablement, so long as it is a real and effective cause, I think she is probably right. CCR/6524/99 indeed refers in paragraph 35 only to benefits "that ought not to have been paid at all" as being benefits not "paid in respect of" a relevant accident, which lends some support to her interpretation. But that does not really help me in the present case. Nor does CCR/8023/95, which properly links reduced earnings allowance to disablement benefit but, in the context of the present case, would beg the question about the ground on which disablement benefit was paid.
13. I therefore come back to the question whether the present tribunal was entitled to rely on the expert's earlier opinions on duration, in the face of his retraction at trial. After some hesitation, I conclude that it was. In CCR/3558/00 the tribunal found that the effects of the relevant industrial accident had been exhausted within two or three months and the continuing disability was due to pre-existing back conditions aggravated by incidents occurring after the relevant accident. The commissioner held that this was a conclusion open to it, even though he might himself on all the evidence have reahed a different one. The present tribunal had only the fact of the retraction before it, not the reasons for it. I have had the expert's further statement, but find, as I mentioned above, that I am not further illuminated. He says (leaving aside the other side's medical evidence, which he had already seen) that he changed his mind having heard the appellant's evidence and the judge's queries. I do not know why the judge, who obviously like the tribunal preferred the expert's evidence on causation, nonetheless so dealt with the appellant, or with the expert as a witness, that he changed his mind on duration. It would be quite improper for me to speculate. But the evidence about the retraction is not so compelling as to brand the tribunal "irrational" in preferring the contents of the earlier reports.
14. I consider the tribunal had sufficient evidence before it, in the form of the expert's original and reiterated reports as to duration, and in the absence of anything other than the fact of retraction at trial, for it to reach the conclusion it did.
15. The appeal therefore fails. I note that the tribunal's short decision wrongly refers to the date of termination of the certificate as 12 10 99, a mistake not repeated in the full statement. In some circumstances, a discrepancy beween the short decision and the full statement can be an error of law. But I am satisfied that this was a mistake that could have been put right under the power in the Decisions and Appeals Regulations 1999 to correct minor errors. Neither party has raised it before me, and I do not consider it of any material significance.

(signed on original) Christine Fellner

Commissioner

8 November 2002