UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CI_660_2001 (08 November 2002)

 


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THE SOCIAL SECURITY COMMISSIONERS
Commissioner's File No: CI 660/01
SOCIAL SECURITY ACTS 1992-1998 APPEAL FROM DECISION OF APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE SOCIAL SECURITY COMMISSIONER
COMMISSIONER: P L Howell QC 8 November 2002

Claim for: Disablement Benefit

Appeal Tribunal: Nottingham

Tribunal Case Ref: U/42/045/2000/03111

Tribunal date: 27 July 2000

Reasons issued: 4 November 2000

PLH Commissioner's File: CI 660/01

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: Nottingham

Tribunal Case Ref: U/42/045/2000/03111

Tribunal date: 27 July 2000

Reasons issued: 4 November 2000

1. This claimant's appeal against the decision of the Nottingham appeal tribunal sitting on 27 July 2000 is dismissed, as in my judgment there was no error of law in the decision the tribunal then gave based on the evidence before them.

2. The issues before the tribunal, on the appeal to them against the Secretary of State's rejection of a claim for disablement benefit for prescribed disease PD A11 (Vibration White Finger) made by the claimant on 8 December 1999, were whether the claimant was and had been suffering from that disease as prescribed; and if so what was the date of its onset, and what was the percentage assessment and period of any disablement from the resulting loss of faculty.

3. The tribunal were required to consider this on the basis of documentary evidence only, since neither side had opted for an oral hearing, but they had the benefit of extensive medical evidence which they quite rightly decided was sufficient to enable them to give a proper decision on the case. The chief evidence for the claimant was a detailed medical report by a Dr. Soar dated 12 April 1999 (pages 14-29) which confirmed that the claimant was by that time suffering from hand-arm vibration syndrome involving blanching to his fingers. This recorded as part of the history taken from the claimant of his vascular symptoms, under the heading "Cold Induced Whiteness" that he answered "yes" to the question "Have you ever suffered from your fingers going white on exposure to cold?" and immediately after that, that his answer to "When did you first notice the white finger?" was "1995": see page 16. As the tribunal recorded in their statement of reasons sent to the parties on 4 November 2000 at pages 52 to 53, they accepted the evidence and findings recorded in Dr. Soar's report, preferring this to the report of a departmental examining doctor dated 15 February 2000 who had not considered the prescribed disease was present, and in particular had not confirmed on examination the presence of blanching in the claimant's fingers.

4. Given the claimant's history and the medical evidence, the tribunal recorded that they preferred the evidence of Dr. Soar, and that they were satisfied that the claimant achieved the level of vibration white finger set out by the statutes to enable him to have a disablement benefit assessment made. They accordingly determined the diagnosis question in his favour by holding him to be suffering from Prescribed Disease A11, assessing his disablement at 5%.

5. Those aspects of their decision are not in dispute. All that is in question on the claimant's appeal is whether there was any error in law in their further determination that the date of onset of the prescribed disease as established to their satisfaction was 1 January 1996, with the start of the disablement assessment period calculated on that basis as 16 April 1996. The tribunal's reasons for finding that date of onset were explained very clearly as follows:

"The question arose as to the date from which he satisfied those criteria [i.e. for vibration white finger as prescribed] and in that regard we relied upon the report of Dr. Soar which clearly on page 16 indicated that [the claimant] first noticed the white finger in 1995. It is an integral part of the diagnosis of PDA11 that blanching affecting the middle or proximal phalanges is present on any 3 fingers of a 5 fingered man on one hand. On the balance of probabilities the tribunal considered that by 1 January 1996 the level of whiteness would have reached the level required by statute and for that reason diagnosed PDA11 from 1 January 1996."

6. The claimant's appeal against that decision, for which leave was granted by another Commissioner, is based on the single contention that the tribunal ought to have found an earlier date of onset for his vibration white finger, and that as he said only after the decision had been given, the evidence on page 16 that he had first noticed the symptoms of whiteness in 1995 was, he now believed, based on a misunderstanding between himself and the doctor over whether he was talking about the onset of his symptoms or his first becoming aware that vibration white finger was a prescribed disease for which he might claim.

7. In his later observations he also refers to confusion on his part over whether he was required to lodge a claim for disablement benefit when his main interest was in claiming reduced earnings allowance, but in my view there can be no question of this having given rise to any error on the part of the tribunal. There is no doubt that the actual claim before them, on which they were required to adjudicate, was the signed claim he did make for disablement benefit on 8 December 1999 (pages 3 to 13: see in particular the words "This is my claim for industrial injuries disablement benefit" beside his signature and the date 6 December 1999 on page 13.) In any event, such a claim was in my view a necessary prerequisite for his being able to establish any right to reduced earnings allowance in the circumstances, since although that now has to be claimed additionally as a separate benefit it is a necessary condition of entitlement that a person should first have obtained a disablement assessment of at least one per cent established on a claim under the industrial injuries disablement scheme: paragraph 11, Schedule 7 Social Security Contributions and Benefits Act 1992.

8. Reverting to the issue raised by the claimant on how the tribunal dealt with the date of onset of his disease, I am not satisfied that his suggestion of a possible misunderstanding between himself and Dr. Soar demonstrates any error of law on the part of the tribunal. The tribunal's task was to determine the factual and medical issues in the case on the basis of the evidence before them, and what is recorded on paragraph 16 of Dr. Soar's report, which they accepted, can only reasonably be read as the tribunal did, as referring to the date when the claimant's cardiovascular symptoms of whiteness first became noticeable. Like the tribunal I find that evidence quite clear, factual and unambiguous; and it is significant that at no point in the correspondence and documents he submitted to the tribunal between the date of that report on 12 April 1999 and the date of the hearing on 27 July 2000 (see pages 36 to 46) did the claimant raise any suggestion that the evidence in that report was factually incorrect, or that his blanching had appeared at an earlier date.

9. It seems to me that in those circumstances Ms J Finch is correct in saying in her written submission on behalf of the Secretary of State dated 12 September 2002 at pages 85 to 86 that the tribunal's decision on when the disease, and the blanching, had progressed to the required level to satisfy the prescription of disease A11 was one they were entitled to reach on the evidence before them, and cannot be impugned as a matter of law, the reasons for it being clearly and adequately explained. The claimant in a more recent letter submitted to the Commissioners' office on 26 October 2002 draws attention to the answer recorded on page 18 of Dr Soar's report about his having first noticed tingling or numbness in this fingers in the late 1980's, but that does not seem to me to advance matters any further or cast any doubt on Dr Soar's report or the tribunal's decision, as it is the blanching that is essential for the prescribed disease.

10. For those reasons, I dismiss this appeal. As Ms Finch's records, the decision of another Commissioner in case CI 6027/99 which raises different issues on dates of onset is currently under appeal to the Court of Appeal, but I am satisfied that for the reasons explained in the direction I gave in this case on 13 August 2002 the issues involved in that other case are not of any relevance to the outcome of the present one which depended on the facts as found by the tribunal.

(Signed)

P L Howell

Commissioner

8 November 2002