UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CI_2393_2002 (07 November 2002)

 


PLH Commissioner''s File: CI 2393/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disablement Benefit

Appeal Tribunal: Middlesbrough

Tribunal Case Ref: U/44/234/2001/00813

Tribunal date: 25 March 2002

Reasons issued: 25 March 2002

1. This claimant’'s appeal has to be dismissed, as in my judgment it cannot be said that the decision of the Middlesbrough appeal tribunal on 25 March 2002, holding that he had not been shown to meet the statutory conditions to qualify him for benefit for Prescribed Disease No. D7 Occupational Asthma, was at fault as a matter of law.

2. The claimant is a man now aged 73 who worked for over 50 years as a joiner, and throughout that time was exposed to wood dust and other substances which could cause or contribute to breathing difficulties. He claimed disablement benefit for Prescribed Disease No. D7 Occupational Asthma only on 8 February 2001 when he had already been retired for some time. This he did because of advice from a dermatologist he had consulted for eczema that this and his asthma were related, and both had been contributed to by his work. However a departmental doctor who examined him for the specific purpose of his prescribed disease claim concluded that although he had chronic severe asthma, the history of how this had developed fell short of establishing that it was due to “"occupational sensitisation”". In other words, although there was no doubt he had asthma and had been in an occupation involving exposure to at least one of the “"sensitising agents”" listed in the prescription of Disease D7 in Part 1 of Schedule 1 Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No. 967, the necessary causal connection between the two which is an essential part of the prescription and thus of the ability to claim benefit was not demonstrated in his case.

3. On the claimant’'s appeal to the tribunal against the consequent rejection of his claim, the tribunal also accepted that he was suffering from severe asthma so that there was no need for any adjournment to produce X-ray evidence to establish this. They further recorded as a fact that he had in the course of his employment been exposed to sensitising agents for the purposes of Prescribed Disease D7, including soldering fumes and shotblasting dust in addition to wood dust. However they too reached the conclusion that on the balance of probabilities the required causal connection between the two had not been established in his case, saying that:

“"We took a history from the claimant. His symptoms started in 1985 and worsened markedly after retiring in 1994. At onset, symptoms were no worse at work, and no improvement during 2 weeks holiday. He does not identify any dust or fumes which worsened his condition at work. On the balance of probabilities he is not suffering from industrial asthma PDD7. However he does suffer from constitutional asthma of a late onset type.”"

See the statement of reasons for their decision at pages 29-30, issued to the parties on 25 March 2002.

4. The tribunal’'s conclusion against the claimant thus depended entirely a single question of medical fact and judgment, whether the required causal link between the claimant’'s condition and the sensitising agents to which he had been exposed was established to their satisfaction, on the balance of probabilities.

5. An appeal to a Commissioner under section 14 Social Security Act 1998 can be brought only if there is some error of law in an appeal tribunal’'s decision or the way they arrived at it; and as has been said many times it does not amount to an error of law that, on an issue of factual and expert judgment such as governed the result in this claimant’'s case, there might be room for two views or that another tribunal of fact approaching the case equally conscientiously and professionally might have reached a different conclusion.

6. I can well appreciate how puzzling it must be for a person who finds himself suffering from severe asthma after working for so many years among dust and fumes to be told that the medical experts at the department and on the tribunal cannot see a link between the two: and as a non-expert person I confess I find it puzzling myself. But the decision on such matters is placed in the hands of the tribunal and is not one for me. In support of the claimant’'s appeal the written argument submitted on his behalf by his Citizens’' Advice Bureau suggests that the tribunal had erred in not specifically mentioning the fact of his exposure to asbestos dust as an earlier point in his working career; but I am not satisfied that the omission to mention one particular form of dust could be said to invalidate the overall conclusion of the tribunal expressed in the findings I have already quoted In any event, there was no medical evidence or other material before the tribunal to establish that asbestos dust operates as a “"sensitising agent”" in the restricted sense of that term applicable for the purposes of Prescribed Disease D7: cf decision CI 3261/00 which I understand is to be reported.

7. (In fact, the Secretary of State’'s written submission dated 2 August 2002 at pages 51 to 52 refers to advice by the department’'s specialist medical adviser that asbestos is not such a “"sensitising agent”" in relation to asthma, although its terrible effects in causing some other conditions are unhappily now well known: the advice that it does not count as a sensitising agent for asthma is not challenged or commented on in the observations in reply).

8. The remaining points taken on behalf of the claimant are in my judgment also answered by what is said in the submission on behalf of the Secretary of State. First it is suggested that the tribunal’'s stated reasons failed to explain adequately their reference to his condition showing no improvement when absent from work, but I find no lack of clarity in this, and I agree with the submission of Ms Finch on behalf of the Secretary of State that in any case the tribunal did not base its decision solely on that one specific point but on the evidence as a whole, including the claimant’'s own statement that his breathing had got worse since the retirement in 1994. Secondly it is suggested that the tribunal overlooked the claimant’'s evidence of having been violently sick from excessive fumes when working too close to extractor fans, but again I agree with Ms Finch that this does not identify any error on the part of the tribunal; since the relevant question was the more specific one of whether his asthma was brought on or made worse by the conditions in which he was working, and on this what the tribunal said about the evidence before them was correct.

9. For those reasons, I have been unable to conclude that there was any error of law in the decision the tribunal gave, and the appeal against it is accordingly dismissed.

(Signed)

P L Howell

Commissioner

7 November 2002