UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CI_4874_2001 (09 August 2002)

 


File no: CI/4874/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of the Barnsley Appeal tribunal herein of 6.11.01 is erroneous in point of law and I set it aside. Fresh findings of fact need to be made and I am not in a position to make them. Pursuant to section 14(8)(b) Social Security Act 1998 I therefore refer this case to a differently constituted tribunal for determination.

Background

2. On 28.7.00 the appellant made a claim for Industrial Injuries Disablement Benefit naming the disease which he believed that he had as Vibration White Finger. On 27.11.00 the appellant was seen by Dr Nour. The appellant described the numbness and pins and needles which he suffered in his hands and the doctor's note continues: -

"Other symptoms in the hands. The fingers lose colour during these attack (sic) and they seem paler usually in the tips down to the first joints."

Dr Nour determined that there was no evidence that the appellant had suffered from Vibration White Finger at any time since 5^th July 1948 and offered the diagnosis, "Atypical white changes of fingers." The doctor added, "The mode of onset of symptoms and their symmetry are not typical of Vibration White Finger."

The appeal to the tribunal

3. The appellant appealed to the tribunal. He attended the hearing with his representative on 6.11.01. The chairman's note of evidence reads: -

"Starts with pins and needles and hot and cold, whole length of 1^st 3 fingers and tingling at the base of little finger. Start to go greyish white at bottom to whole length of finger. Tries to move hands and get them moving. Tingling all the time. Starts to go away the same way. All finger at the same time. Hands seem weak ½ - ¾ hr. afterwards. Problem picking small things up. Nothing really brings attacks on unless in a cold area. Still using vibrating tools but not for long. Holds a straight glass of cold beer would not be a problem. 1-2 times a week it wakes him up. Vibration brings it up. Warmer he is less attacks. Beginning late 80's slight numbness and tingling has got worse and worse. Lack of grip. Calls 1^st joint the knuckles of the fist. Early 90's losing colour. No injuries as a miner. Broken arms as a child. Codefen for back pain but no longer."

4. The tribunal dismissed the appeal and in the statement of material facts and reasons recorded their finding that: -

"He has attacks of pins and needles and his hands feel hot and cold when the 1^st. three fingers and base of the little fingers of both hands are affected. The same fingers start to go a greyish white from the base knuckles to the tips affecting the whole length of the fingers."

Later, the statement continued: -

"The description of blanching from the base of the fingers to the tips is inconsistent with a diagnosis of PDA 11 since the peripheral blood vessels at the tips of the fingers are affected first in Vibration White Finger not the bases of the fingers. There would not be blanching of the bases of the fingers before the tips in VWF."

The appeal to the Commissioner

5. The appellant's representative sought leave to appeal. He complained that the existence of the prescribed disease was made out, although he quoted from the note of evidence rather from the statement of material facts and reasons. He complained also that the evidence had not been recorded in full and that the medical member of the tribunal had not carried out a cold water provocation test. Leave to appeal was refused by the District Chairman but granted by the Commissioner. The Commissioner's reasons were that: -

"The ground of appeal is arguable. There is perhaps, an ambiguity. Were the tribunal saying that it was necessary, as a matter of law, that blanching starts at the tips or were they saying that blanching always does start at the tips so that they simply did not believe the claimant's account and were not prepared to accept that he had any, or sufficient, blanching at all."

6. The Secretary of State does not support the appeal. The observations of his representative read as follows: -

"In the present case I have received advice from one of the Department's Senior Medical advisors that the blood vessels and nerves nearer the tips of the fingers are smaller and more delicate and hence more prone to vibration damage. It is for this reason that vibration damage tends to occur at the tips of the fingers in the early stages, progressing, over time, down the finger with continued exposure to vibration. The blanching tends to affect the backs as well as the fronts of the fingers (this is unlike the situation when one presses on the fingers and produces a lightening effect due to squeezing the blood from the fingers temporarily.) The question of blanching therefore has to be considered in the context of vibration induced damage and the tribunal were therefore entitled to exercise their clinical judgement as to and whether the symptoms and the blanching described were those of the prescribed disease. In my submission therefore, the tribunal were not necessarily saying they did not believe the claimant's evidence but simply that the claimant's account of blanching did not accord with the accepted medical understanding of vibration induced Raynauld's Phenomenon."

The law

7. The relevant law is to be found, first in s.108(1) Social Security Contributions and Benefits Act 1992 which provides insofar as it is relevant: -

"Industrial injuries benefits shall…be payable in accordance with this section… in respect of any prescribed disease …"

Subsection (2) provides the power of the Secretary of State to prescribe diseases in relation to employed earners. r.2 Social Security (Prescribed Diseases) Regulations 1985 provides that subject to various matters set out therein each disease or injury set out in the first column of Part I of Schedule I thereto is prescribed in relation to all those whose occupations are set out alongside the relevant disease or injury in the second column. In the first column of Schedule I to those regulations at number A11 there appears the following; -

"Episodic blanching, occurring throughout the year, affecting the middle or proximal phalanges, or in the case of a thumb the proximal phalanx, of-

(a) in the case of a person with only 5 fingers (including thumbs) on one hand, any three of those fingers, or

(b) in the case of a person with only 4 such fingers, any 2 of those fingers, or

(c) in the case of a person with less than 4 such fingers or, as the case may be, the one remaining finger (vibration white finger)."

The expression "Vibration induced Raynauld's Phenomenon" does not appear and indeed the expression "Vibration White Finger" only appears in parentheses. Generally speaking, the expressions which appear in the first column of Schedule I are recognised medical conditions whereas A11 refers to symptoms and their degree and frequency of onset. A11 is not alone in this, as the same is true of Prescribed Disease D9. There are three other instances of the addition of expressions in parentheses after the title of the prescribed Disease. They follow the descriptions of A5 A6 and A7.

8. In practice PDA11 is frequently described as "commonly known as Vibration White Finger". Certainly that expression is not regarded as a precise one. In R(I) 1/02 the Commissioner described PDA11 as one aspect of a wider group of problems known as hand arm vibration syndrome and he referred to his earlier decision in CI 3073/99 when he stated:

"The description and diagnosis of vibration white finger is notoriously difficult, as is well illustrated by the series of expert reports on the subject by the Industrial Injuries Advisory Council. Their most recent report (Cm. 2844 published in May 1995) outlines the four previous reports and the problems they discuss. It is well established that Commissioners may look to these reports for assistance in cases of doubt about the law and its application. The most recent report recommended a change to the description and prescription of vibration white finger. Specifically it recommended that the problem should be represcribed as hand-arm vibration syndrome (HAVS). This was not accepted by the Government."

The Commissioner continued by referring to the fact that the Department for Trade and Industry accepted both the vascular and the neurological parts of the disease when considering compensation, the DSS, as it then was, rejected the advice it was given and to continue to accept only the vascular part of the disease when considering entitlement to compensation.

9. It is well established now that neurological disabilities can be taken into account in determining the degree of disablement for PDA11. This seems to have been accepted by the Secretary of State who has abandoned his appeal against the decision of the Deputy Commissioner in CI 4661/00 which was to that effect. But that is the[position after the condition is diagnosed. PDA11 remains simply what Schedule I says it is. The expression "(vibration white finger)" does not expressly limit the definition of the disease, and bearing in mind the imprecision of the term, I do not think that it does so by implication either. The Commissioner in CI 7052/99 analysed the issues that might arise in a PDA11 case. He wrote:

"10. Three issues arise in relation to a claim for disablement benefit in respect of a prescribed disease.

10. 1 First is the issue whether the claimant worked in an occupation prescribed in respect of the disease.
11. 2 Second is the issue whether the claimant has the disease and, if the disease is diagnosed, the degree of resulting disablement.
12. 3 Third is whether the disease was caused by the prescribed occupation. Prescribed disease A11 is one of those diseases that are presumed to be due to the occupation unless the contrary is proved. See regulation 4 of the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985"

The tribunal's error of law

13. In the present case the tribunal appear to have mixed issues 2 and 3 together but more fundamentally have failed to make the necessary findings of fact. It is unclear whether or not the tribunal accepted the evidence of the claimant that his fingers blanched in the way that he said they did. If they did not, then they should have said so and said why. If they did accept his evidence, then PDA11 would seem to have been established and the tribunal should have moved on to the third issue above, bearing in mind the incidence of the burden of proof.

The representative of the Secretary of State does not support this appeal but I think falls into the same trap as the tribunal did. It is misleading to say that "the question of blanching … has to be considered in the context of vibration induced damage…" The blanching must be considered first, and if the required degree of blanching is established attention should then be turned to causation.

14. There is an additional matter to which I ought to refer. In the application for leave to appeal the claimant's representative referred to the fact that the medical member of the tribunal declined to carry out a cold water provocation test. It is not clear whether the claimant was examined in other ways. S.20(3) Social Security Act 1998 prevents a tribunal from carrying out a physical examination save in prescribed circumstances. Those circumstances are prescribed by r.52 Social Security and Child Support (Decisions and Appeals) Regulations 1999. It is clear that there is no obligation as such to carry out a physical examination as such but a tribunal might well be in breach of its inquisitorial function if it failed to do so in response to a request from a claimant. Routinely, the cold water provocation test is not carried upon someone with a heart condition and that might have been the position in the present case. At all events, it is desirable that if an examination is not carried out, or not carried out to the extent as is usual, the reasons are noted in the Record of Proceedings.

Directions

15. I direct that the new tribunal shall carry out a complete rehearing in this case and shall adopt the approach to which I have referred in paragraph 9. If the position of the Secretary of State is that he wishes to suggest that the symptoms described by the claimant are indicative of non-industrial causation, then he may wish to prepare a further submission to that effect. It should be understood that the decision I have made is no indication of the likely outcome of this case.

Stuart McLachlan

Deputy Commissioner

[Signed on original on the date shown] 9.8.02