UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CI_2746_2002 (13 November 2002)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the tribunal's decision and, since it is not expedient for me to make the findings of fact which are necessary to determine the claimant's entitlement to benefit, I refer the case for rehearing before a differently constituted tribunal.
2. This appeal arises out of a claim for industrial injury disablement benefit made on 18 August 2000. The claimant stated that she had suffered an accident on 10 January 1999 by doing heavy lifting work in the course of her employment as a microfilm librarian. The claim was initially rejected, but a tribunal made a declaration on 23 March 2001 that the claimant had suffered an industrial accident shortly before Christmas 1998 when her foot slipped on a ladder. On 6 August 2001 a medical adviser made a gross assessment of 15% loss of faculty in respect of restricted back movements, with an offset of 5% in respect of a pre-existing degenerative lumbar condition. On 17 August 2001 a decision was made on the basis of that assessment that the claimant was not entitled to benefit because the net assessment of disablement was less than 14%, and on 17 August 2001 the claimant appealed against that decision. Although the decision was reconsidered, it was not revised, and accordingly the appeal proceeded to a hearing on 25 March 2002.
3. The tribunal considered the medical evidence and the claimant was examined by the medical member. The tribunal referred to a letter from a local general practitioner stating that the claimant's fall at work had exacerbated her back problems and dealt with that issue as follows:

"In order to determine this question and to assess the level of disablement and consider any offset we balanced the evidence as indicated above against that of the AMA at pages 28-32 of the bundle noting that that examination took place on 6 August 2001. The description of the accident given by [the claimant] was not entirely dissimilar to what she stated today. Indeed the evidence contained in all the medical statements is that she had a pre-existing degenerative condition. Based on a clinical examination recorded above we then proceeded in accordance with regulation 11 to consider the gross disablement which [the claimant] had today consistent with the degenerative back condition and the level to which the accident interacted or not with this and making an assessment thereof therefore leading to the offset of her pre-existing conditions. In this regard it is our expert opinion that her total disablement is 15% and the extent of her moderately limited movements as found in our examination are in Dr Collins' statement following the accident can be assessed at 10%. It follows from this that pre-existing condition is assessed at 5% and hence the award of 10% after deducting the offset at 5%."

4. The claimant appealed against the tribunal's decision on the ground that the tribunal had failed to apply regulation 11 of the Social Security (General Benefit) Regulations 1982 in accordance with the approach laid down in R(I) 3/91, in that the tribunal considered each of the two causes of the claimant's disability in isolation, rather than in combination. In a submission dated 6 September 2002 the Secretary of State's representative supported the appeal, on the ground that the tribunal had subtracted the disablement which they considered was due to the accident in order to arrive at the disablement due to other causes.
5. I have come to the conclusion that the appeal must be allowed for the reason given by the Secretary of State's representative. Although the tribunal clearly analysed the evidence with care and did consider the interaction between the claimant's pre-existing degenerative lumbar condition and the effects of the relevant accident, they assessed the percentage of disablement due to the relevant accident by subtracting the disablement attributable to the accident from the total disability. In cases where disability results both from a relevant accident and from a pre-accident congenital defect or injury or disease, regulation 11(3) requires the tribunal to take account of "all…disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred." Where disablement results both from a relevant accident and from a pre-accident condition, the regulation is clearly intended to give the claimant the benefit of any overlapping disablement, and that result can only be achieved if a separate assessment is made of the disablement to which the claimant would have been subject as a result of the pre-accident condition alone. I therefore agree with the Secretary of State's representative that regulation 11(3) requires the total disablement to be assessed, and for the percentage disablement resulting from the pre-accident condition to be subtracted from the total percentage disablement in order to arrive at the assessment of the disablement due to the relevant accident.
6. I therefore consider that the tribunal's decision was erroneous in point of law and that, accordingly, I must set the decision aside. Since this appeal requires a medical assessment, it is clearly not expedient for me to make the findings which are necessary to determine the claimant's entitlement to benefit. I therefore refer the case for rehearing before a differently constituted tribunal, which should deal with the matter in accordance with the approach set out by the Secretary of State's representative on page 75 of the case papers.

(Signed) E A L Bano

Commissioner

(Date) 13 November 2002