UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Newcastle appeal tribunal dated 27 September 2001 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the appeal against the decision dated 23 February 2001 (Social Security Act 1998, section 14(8)(a)(i)). The decision is (a) that the claimant has suffered from prescribed disease no A11 since 1 September 1990 and continues to suffer from that disease; (b) that the disablement resulting from the consequent loss of faculty (impaired manual dexterity) for the period from and including 15 December 1990 for life is finally assessed at 11%; and (c) that consequently the claimant is not entitled to disablement benefit.
2. The claim for disablement benefit in relation to prescribed disease no A11 (commonly called vibration white finger) was made on 21 November 2000. The claimant said that he thought he first started to suffer from the disease in 1972, and that it was caused by his work as a welder from 1968 to 1994. He was examined by a medical adviser on 20 February 2001, who gave the opinion that he was not suffering from PD A11. The claimant had said that he had not noticed blanching on the backs of his fingers and the medical adviser considered that this was not consistent with PD A11. The claim for disablement benefit was disallowed in reliance on that opinion.
3. The claimant appealed, saying that he had been diagnosed as having vibration white finger in 1985 and later received a compensation payment from his employer. He was able to obtain some information from the solicitors who were instructed by his Union at the time, although the papers had been destroyed (see the letter of 3 May 2001 on page 23). The solicitors were instructed on 14 September 1988 and the claim was settled for £1,1000 on 30 April 1990. The letter of 3 May 2001 said that the claim would have been pursued in accordance with the GMB/Iron Trades Vibration White Finger Compensation Scheme, under which an award of £1,100 would have corresponded to Stage 2 on the Taylor Pelmear Scale.
4. The claimant's appeal was successful in part, but not so as to lead to an award of disablement benefit. The appeal tribunal decided that he was then suffering from PD A11 and had so suffered since 1 January 1991. It identified the loss of faculty as impaired manual dexterity and finally assessed the resulting disablement at 11% for the period from 16 April 1991 for life.
5. The appeal tribunal took the view that, despite the uncharacteristic feature that the backs of the fingers were not affected, he had suffered from PD A11 as defined in the legislation and that this was due to his exposure to vibrating tools in his work. That is a conclusion which the appeal tribunal was entitled to reach on its evaluation of all the evidence, especially in the light of Commissioner's decision CI/3596/2001, which I have recently followed and applied in CI/1694/2002.
6. The appeal tribunal went on to say this about the date of onset of the disease:

"8. As [the claimant's] comments at part 6 of his claim form acknowledge, vibration white finger (in the medical sense) is a condition which characteristically shows a gradual increase in severity, commonly extending over a number of years. The legal definition of PD A11 is met only when the symptoms have advanced to a particular level of severity. Thus a decision that someone suffers from the medical condition known as vibration white finger is not necessarily inconsistent with a decision that the person concerned is not suffering from PD A11.

9. In [the claimant's] case, when the claim against his employer was being pursued, he was found to be suffering from vibration white finger at stage 2 on the Taylor/Pelmear scale. Stage 2 is inconsistent with a diagnosis of PD a11 since it refers to blanching only in winter, whereas PD A11 requires episodes of blanching which occur throughout the year. It is thus clear that, at the end of the 1980s, [the claimant's] symptoms had not reached the level of severity required for PD A11. [The claimant's] evidence was that there had been a deterioration in his condition a couple of years after 1988. The Tribunal is thus not satisfied that [the claimant] met the requirements of the legal definition of PD A11 prior to 1 January 1991."

The appeal tribunal then explained why its assessment of the degree of disablement was 11%. Again that was a conclusion which the appeal tribunal was entitled to reach on its evaluation of the evidence.

7. The claimant now appeals against the appeal tribunal's decision with my leave. His main point was that there was inadequate explanation to support the choice of 1 January 1991 as the date of onset and that the more appropriate time to find that episodic blanching had expanded from winter only to summer and winter would be the beginning of a winter period. He pointed out the crucial significance for the purpose of a claim for reduced earnings allowance of whether the date of onset was before or after 1 October 1990. When granting leave I said this:

"Did the appeal tribunal make adequate findings of fact and give adequate reasons in relation to the date of onset of prescribed disease A11? If the factor which stood in the way of the terms of the description of the prescribed disease being met was that the episodic blanching did not occur throughout the year, was the reliance on the amount accepted in settlement of a compensation claim against the claimant's employer (on the basis of a medical examination on an unknown date) proper and should there have been a further explanation of why the date of 1 January 1991 was chosen? If there had been episodic blanching during the previous summer, might the date of onset have been 30 September 1990 or earlier?"

8. The written submission dated 24 May 2002 on behalf of the Secretary of State did not support the appeal. The submission relied on Commissioner's decision CI/14532/1996 (which has now been reported as R(I) 3/02) for the proposition that Stage 2 of the Taylor Pelmear Scale is inconsistent with a diagnosis of PD A11. Then it was said that the issue of when a claimant's symptoms reached the degree of severity to meet the statutory definition was not capable of mathematical precision, so that it had to be left to the judgment of an appeal tribunal using its medical knowledge and expertise. There was no error of law in the appeal tribunal's conclusion in this case. The claimant disagreed and pointed to his grounds of appeal. He also requested an oral hearing of the appeal to the Commissioner because there were questions still to be answered. In a nice touch, given the nature of the case, he added "I also believe that there are grey areas, and everything is not necessarily just black or white".
9. I gave a direction stating that I was minded to give the decision which is now set out in paragraph 1 above, but that if the claimant wished to pursue an earlier date of onset or a higher percentage assessment the case would be referred to a new appeal tribunal, with its medical expertise and experience, for rehearing, rather than those issues being decided by the Commissioner. On the basis of his understanding that the decision I was suggesting would bring him within the ambit of reduced earnings allowance, the claimant withdrew his request for an oral hearing and stated that he did not wish to pursue an earlier date of onset or an increased assessment.
10. I now conclude that the appeal tribunal did err in law in the way so succinctly set out in the claimant's application for leave. The appeal tribunal's approach in paragraph 8 of its statement of reasons was entirely correct. However, in paragraph 9 the reason given for the severity of the claimant's symptoms not having reached the necessary level before 1 January 1991 was that the evidence pointed to blanching only in the winter. It therefore must have accepted, on the claimant's evidence of a deterioration in the two years from 1988, that there was blanching throughout the year by 1 January 1991. Since there had already been blanching in the winter for a long time, the appeal tribunal must have accepted that there had been some blanching in the summer of 1990. In those circumstances, logic suggests that the evidence accepted by the appeal tribunal supported a date of onset at the point when there had been sufficient blanching in the summer of 1990, rather than 1 January 1991. At the very least, there was an error of law in the absence of an explanation of why that result was not implemented. The Secretary of State's submission of 24 May 2002 simply failed to deal with the point raised in the claimant's application and mentioned when I granted leave.
11. There is another weakness in the appeal tribunal's reasoning. I leave aside the question of whether the evidence of the amount of the claimant's compensation award was sufficient to support a conclusion that his symptoms fell only into Stage 2 of the Taylor Pelmear Scale down to 1990. The appeal tribunal stated that Stage 2 is inconsistent with a diagnosis of PD A11. The Secretary of State cited the statement by Deputy Commissioner Jacobs (as he then was) in paragraph 28 of R(I) 3/02 (CI/14532/1996) that:

"Any category from Stage 0 to Stage 2 is inconsistent with a diagnosis of this prescribed Disease as there is either no blanching or it occurs only in winter."

12. That decision contains a most helpful discussion of the relevance of the Taylor Pelmear and Stockholm scales for PD A11 cases. However, the statement in paragraph 28 must not be applied mechanically in relation to Stage 2 of the Taylor Pelmear Scale. The description of each Stage identifies a threshold for a person to fall into that Stage, but there will be cases where the symptoms are more severe than the threshold, but do not reach the threshold for the next Stage. Thus Stage 2 refers to blanching during winter, with more extensive symptoms than for Stage 1 and slight interference with domestic and social activities, but not with work. Stage 3 is:

"Extensive blanching with frequent episodes in summer as well as in winter. There is definite interference with work, domestic and social activities."

There is a large jump from the conditions for Stage 2. It is possible for a person to experience blanching during the summer, but not to fall into Stage 3, because the blanching in the summer is not frequent or possibly because the blanching does not extend far enough down the fingers. Thus there cannot be an automatic and mechanical rule, without examination of the particular circumstances of each case, that Stage 2 on the Taylor Pelmear Scale means that PD A11 cannot be diagnosed. I have consulted Mr Commissioner Jacobs (as he now is), who agrees that paragraph 28 of R(I) 3/02 is not to be read as authorising such a rule. The appeal tribunal erred in applying an automatic and mechanical rule.

13. For those reasons, the appeal tribunal's decision of 27 September 2001 must be set aside as erroneous in point of law. It is expedient for me to substitute a decision on the appeal. I accept and adopt the appeal tribunal's conclusions on diagnosis and on the assessment of disablement, with the exception that, for the reasons given in paragraph 10 above, I am satisfied that the conditions for the diagnosis of PD A11 were met no later than 1 September 1990 and that there was a resulting loss of faculty from that date. My decision giving effect to that conclusion is set out in paragraph 1 above.
14. The issue of reduced earnings allowance is not before me in the present appeal, but I note the terms of the exclusion from entitlement in paragraph 11(1) of Schedule 7 to the Social Security Contributions and Benefits Act 1992 (linked to section 94(2)):

"but a person shall not be entitled to reduced earnings allowance to the extent that the relevant loss of faculty results from an accident happening on or after 1st October 1990 ...."

Schedule 2 to the Social Security (Prescribed Diseases) Regulations 1985 provides:

"In sections 94 to 107 of the Social Security Contributions and Benefits Act 1992 and sections 8 to 10 of the Social Security Administration Act 1992 references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to the relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease."

It is therefore clear that if the date of onset of a relevant disease falls before 1 October 1990 the exclusion from entitlement to reduced earnings allowance does not operate, even though the assessment of the resulting disablement cannot start until after 1 October 1990.

(Signed) J Mesher

Commissioner

Date: 16 September 2002