UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCR_2365_2003 (28 November 2003)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The compensator's appeal to the Commissioner is disallowed. The decision of the Leeds appeal tribunal dated 1 May 2003 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. The compensation history in this case is that the claimant made a claim against his employers in respect of an injury suffered in an accident at work on 17 January 1999. The claim was settled in a consent order approved by the court on 11 October 2002. The claimant accepted £8,500 in full and final settlement. The order included this clause:

"The Defendants shall pursue a review of the recoverable benefits payable to the Compensation Recovery Unit and will, if appropriate, make an appeal against such recoverable benefits and the Claimant will co-operate with such review and appeal."

The correspondence leading up to that order shows that the settlement was based on loss of earnings for six months, plus general damages.

3. The compensator (the employer's insurers) had requested a certificate of recoverable benefit (CRB), which was issued on 20 September 2002. The amount appropriate for the date on which the compensation was paid was £11,801.31, which was paid by the compensator on 5 November 2002. That amount was made up entirely of incapacity benefit paid to the claimant from 11 December 1999. He had received statutory sick pay from 26 May 1999 to 10 December 1999. He had also received industrial injuries disablement benefit from some unknown date in respect of the accident of 17 January 1999, but because of the loss of the claimant's file the Secretary of State was unable to provide information as to the amounts received. Accordingly, nothing for the disablement benefit was included in the CRB.
4. The doctors' statements on forms Med 3 dated 1 December 1999 (for five weeks), 5 January 2000 (for four weeks) and 2 May 2000 (for 13 weeks) gave the diagnosis of the disorder causing absence from work as "back problems". The Med 3 dated 2 February 2000 (for 13 weeks) gave the diagnosis as "spinal problems". There was also a form Med 4 signed by the claimant's doctor on 18 February 2000 giving the main diagnosis as "chronic back problem". The claimant was examined by an examining medical practitioner (EMP) on 5 May 2000, who described the diagnosis as back injury and found a number of physical problems giving rise to well over the necessary 15 points for satisfying the personal capability assessment (PCA). He was examined again on 26 October 2001 by another EMP, who described the diagnosis as back pain and also found enough physical problems to exceed 15 points. Both EMPs thought that the claimant might improve with treatment. However, in August 2002, after further information had been obtained from the claimant's GP, a medical officer of Benefits Agency Medical Services decided that the cause of his incapacity was unlikely to improve. Payment of incapacity benefit continued.
5. The claimant had stated for the purpose of his civil claim that he felt a sharp pain in his lower back while having to lift a domestic double oven on his own. At the time he thought that he had pulled or strained a muscle. He thought that the pain would improve and carried on working. However, the pain got worse and on 3 March 1999 he went to his GP, who arranged for an X-ray at hospital the next day and also prescribed painkillers. The claimant said that he continued working until 26 May 1999 when he felt unable to continue. The report of the X-ray carried out on 4 March 1999 was:

"The vertebral bodies are of normal height. There may be a minor spondylolisthesis at L5/S1. A coned view would be advisable for further assessment."

The GP requested the further X-ray, as the back pain was still present. The report of the X-ray carried out on 4 June 1999 was:

"CONED VIEW OF SACRO ILIAC JUNCTION

There is a spondylolisis at L5 with a minor spondylolisthesis of approximately 10%."

6. The claimant was examined on 26 January 2001 by Mr Keshav Singhal, a consultant orthopaedic surgeon, in connection with his civil claim. Mr Singhal had the claimant's GP records and the X-rays. He recorded that the X-rays showed:

"a spondylolysis at L5 and there is a grade I spondylolysthesis with very minimal forward slip. Disc spaces are well maintained. Texture of the vertebral bodies is normal and there is no evidence of bony injury."

He initially described the injury as "low back strain". His diagnosis was of exacerbation of pre-existing spondylolysis and spondylolysthesis. The report continued:

"[The claimant] strained his back while lifting heavy oven at work on 17.01.1999. X-rays show him to have spondylolysis at L5 and a minor degree of spondylolysthesis. Spondylolysis is a constitutional condition and almost certainly has been pre-existing. Perusal of GP records, however, do confirm that this condition was asymptomatic as he had not attended his surgery with any complaints of backache between 1987 and 1999. Accordingly, [the claimant's] asymptomatic spondylolysis and spondylolysthesis have turned symptomatic following the back strain sustained on 17.01.1999. The pain is ongoing. It is intrusive and interferes and prevents him from carrying out his normal employment. [The claimant's] symptoms would be amenable to physiotherapy and would improve to a certain extent but I would not expect it to settle completely. He is expected to have minor to moderate symptoms in the future and heavy lifting would precipitate his symptoms. If his symptoms were not to settle with conservative means then surgery may be necessary and ilio-transverse fusion would be expected to give him good pain relief and near normal functional back.

The accident has not brought on the spondylolysis and spondylolysthesis. These conditions had been pre-existing and constitutional. The accident has served to make the asymptomatic conditions symptomatic. However, even if the accident had not happened, [the claimant] would have gone on to develop a backache at some point in the future and this may have been, on the balance of probabilities, any time between two years and five years from the date of the accident. Accordingly, the accident could be said to have brought forward his symptoms by two to five years. Long term symptoms or the requirement of surgery for future incapacity would not be related to the accident, these being related to the constitutional condition."

7. A number of further questions were put to Mr Singhal, who replied on 10 June 2002 that the claimant could have returned to work in a supervisory capacity, entailing no heavy lifting, within six months or so of his injury.
8. The compensator's appeal, after drawing attention to some of the history and to Mr Singhal's opinions, was on these grounds:

"We therefore contend that in the first instance the amount, rate or period specified on the Certificate is wrong. By the date the benefits started to be paid on the basis of the available medical evidence, the Claimant was capable of employment in any event. Further, he may well have developed symptoms within two years of the accident in question, namely by January 2001, in any event, and therefore we would contend that benefits paid were not as a result of the accident in question.

It will be noted from the correspondence and from the Consent Order that the Claimant will co-operate with the Appeal. For the purposes of settlement, the offer related to a claim for special damages by way of loss of earnings for a period of six months only."

9. The Secretary of State's submission was that the terms of the settlement with the claimant were irrelevant. It was accepted that the claimant had a pre-existing back condition, but before the accident was fit and able to work, so that there was no reason to consider that he would not have remained fit and able to work if the accident had not happened. Although Mr Singhal was an expert in his field, his opinion that the claimant could have returned to some work after six months was only an informed guess. The evidence that the claimant's disablement for industrial injuries purposes had been assessed at 15% down to 30 March 2002 and at 14% from 31 March 2002 to 19 February 2003, with no offset in either case for a pre-existing condition was submitted to support the conclusion that the claimant's accident continued to be an effective cause of his incapacity for work throughout that period.
10. The appeal tribunal dismissed the compensator's appeal and confirmed the CRB. After setting out the evidence, the statement of reasons continued:

"The question for us is not whether [the claimant] was capable of some restricted work, but whether his disabilities were such that he would satisfy the Personal Capability Assessment. Mr Singhal did not address this question but Dr Caria [Dr Skaria, the second EMP] did. On similar clinical findings Dr Caria found that [the claimant] had problems with the activities of sitting, rising from sitting, bending or kneeling, standing, walking, using stairs and he was awarded more than 15 points to satisfy the Personal Capability Assessment. We are satisfied that Dr Caria's assessment was correct and that throughout the period for which [the claimant] received Incapacity Benefit he continued to satisfy the Personal Capability Assessment.

On the further question which is the period at which [the claimant] would have developed backache, we note Mr Singhal's opinion. [The claimant] is still a young man and we are not satisfied that he would have developed symptoms at the 2 year point. Mr Singhal referred to a minor Spondylolisthesis with very minimal forward slip. Our view is that symptoms would probably have developed at a period not before 4 years from the date of the accident."

11. The compensator now appeals from that decision with my leave. The grounds of the application mainly raised issues of the evaluation of the evidence and it was argued that the evidence clearly showed that the benefits paid to the claimant were not paid as a direct result of the accident of 17 January 2000. Those were issues of fact and not of law. When I granted leave to appeal I said this:

"It is arguable that the appeal tribunal did not ask itself the right questions in law, in the light of Commissioners' decisions R(CR) 1/02, R(CR) 2/02 and CCR/4919/2001. If the appeal tribunal did base its conclusion on a finding that the relevant accident or injury continued to be a contributory cause of some element of the injured person's disablement beyond the end of the period covered by the certificate of recoverable benefits, was there a sufficient explanation of the reasons for that finding and a sufficient evaluation of the relevant evidence? There may also be a question whether the appeal tribunal was entitled to ignore the evidence of payment of industrial injuries disablement benefit, which had not been included in the certificate."

12. The Secretary of State, in a fairly brief submission, dated 8 September 2003, supported the appeal. It was submitted that in cases of pre-existing conditions appeal tribunals were required to consider how long the relevant accident was an effective cause of benefit being paid (R(CR) 1/01) and that in the present case the appeal tribunal in deciding how far the accident had accelerated the claimant's disablement did not give adequate reasons for the change from two years to four years. It was said in addition that the appeal tribunal "failed to consider how much the incapacity of the pre existing condition would have contributed to the incapacity". In reply, the compensator's solicitors agreed that the appeal tribunal's decision should be set aside and that there should be a rehearing.
13. I do not find the Secretary of State's submission at all persuasive. It rests on a misreading of the appeal tribunal's decision and does not really get to grips with the essential legal questions.
14. The first question which the appeal tribunal posed for itself in the passage set out in paragraph 10 above is in line with the principles laid down by the Tribunal of Commissioners in decisions R(CR) 1/02 and R(CR) 2/02. It does not matter that the statement of reasons did not expressly mention those decisions. It was held in paragraph 35 of R(CR) 1/02 that:

"benefits which ought not to have been paid at all cannot be said to have been `paid ... in respect of' a relevant accident, injury or disease. It follows that, in considering whether payments were made `otherwise than in respect of the accident, injury or disease in question', a tribunal is entitled to reach a conclusion that is inconsistent with the award of benefit."

15. Thus, in the present case, if the compensator had succeeded in showing that, for all or some of the period covered by the CRB, the claimant ought not, in the light of his overall condition, to have been entitled to incapacity benefit at all, to that extent the incapacity benefit actually paid would have had to be excluded from the CRB. The appeal tribunal answered that question against the compensator. It was entitled to do so on its evaluation of the evidence. It correctly pointed out that entitlement to incapacity benefit does not depend on capacity or incapacity for work in a general sense, but, once the PCA is applied, on whether the claimant satisfies the particular requirements of that assessment. There was evidence to support the appeal tribunal's conclusion that throughout the period in question the claimant satisfied the PCA and that conclusion was adequately explained. There was therefore no error of law in relation that question. The Tribunal of Commissioners in R(CR) 1/02 and R(CR) 2/02 had not dealt with precisely similar circumstances, as R(CR) 1/02 concerned industrial injuries disablement benefit and R(CR) 2/02 concerned a transitional award of incapacity benefit which depended on satisfaction of the general condition of incapacity for work. However, the appeal tribunal's approach was entirely within the scope of the principle set out above.
16. One factor which the appeal tribunal did not deal with was that in the present case the claimant's entitlement to incapacity benefit from 11 December 1999 until a PCA was actually carried out after the first EMP's examination in May 2000 would have been on the basis of deemed incapacity for work under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (the 1995 Regulations). Under regulation 28 a claimant subject to the PCA who is submitting medical statements and who has not been found capable of work within the previous six months is to be treated as incapable of work until a PCA is actually carried out. However, it is correspondingly much more difficult to show that an award of incapacity benefit under regulation 28 should not have been made at all. So long as regulation 28 operates, it is irrelevant to entitlement whether or not the claimant would satisfy the PCA if it were carried out. In the present case, there is no doubt that medical statements were submitted and that the claimant was not excluded by the six-month rule, so that he was properly entitled to incapacity benefit until the PCA was actually carried out. Thus the failure of the appeal tribunal to mention this factor had no material effect on its conclusion.
17. The second question posed by the appeal tribunal in the passage set out in paragraph 10 above is also in line with the principles laid down by the Tribunal of Commissioners in R(CR) 1/02 and R(CR) 2/02. In those cases counsel for the Secretary of State conceded that (paragraph 23 of R(CR) 1/02):

"in relation to non-industrial incapacity benefits, the approach taken in CCR/5336/1995 and R(CR) 1/01 remains good law and that a compensator may allege that the claimant's incapacity was not caused by the relevant accident, injury or disease."

In R(CR) 2/02 the Tribunal of Commissioners applied that concession to the case before it, where entitlement to incapacity benefit depended on actual incapacity for work, but in fact decided that incapacity benefit was to be excluded from the CRB because that benefit should not have been awarded at all. In decision CCR/4919/2001 I had to deal with a case where ordinary incapacity benefit had been awarded and where that award was initially under regulation 28 of the 1995 Regulations. There I restricted what I said about the scope of the legal principle, for reasons which may eventually (as the result of other cases) turn out to be unnecessary. But I held specifically (at paragraph 28) that if, for all or some of a period of receipt of incapacity benefit under regulation 28, the relevant accident, injury or disease was not an effective cause of any disablement, then for the period in question the incapacity benefit could not be included in a CRB. The same would have to apply where incapacity benefit was paid following the satisfaction of the PCA.

18. Thus, in the present case it was legitimate and relevant for the compensator to argue before the appeal tribunal that the accident of 17 January 1999 brought forward the symptoms of the claimant's pre-existing condition by no more than two years. If that argument had been accepted, it would have meant that the compensator had shown that as from January 2001 the relevant accident, injury or disease was not an effective cause of the claimant's disablement. He would have been suffering the same disablement, as a consequence of the pre-existing condition, even if he had not suffered the accident. The appeal tribunal rejected that argument. Did it ask itself the right questions in law and adequately explain the reasons for rejecting the argument? I considered when granting leave to appeal that it was arguable that the appeal tribunal erred in those respects, but on full consideration I conclude that there was no error of law.
19. Although the appeal tribunal did not expressly refer to the Tribunal of Commissioners' decisions or to the general principle which it was applying, it asked itself when the claimant would have developed backache if he had not suffered the relevant accident. That was in substance the right question, asking whether it had been shown by the compensator that at some date within the period covered by the CRB the relevant accident was not an effective cause of any disablement. The Secretary of State has submitted that the appeal tribunal's reasons were inadequate in not explaining "the change from 2 years to 4 years". However, there was no such change. Mr Singhal's opinion, which is what was relied on by the compensator, was that the claimant may, on the balance of probabilities, have developed backache at any time within two to five years of the date of the accident. That is a broad range of time and very cautiously expressed. It was entirely consistent with that opinion for the appeal tribunal to have taken the view that backache would not have developed earlier than four years from the date of the accident. Reasons were given for taking that view - the claimant's age and the very minimal forward slip of the spondylolysis reported by Mr Singhal on his examination of the X-rays. Those reasons are brief, but in my judgment adequate, in circumstances where there was no inconsistency with Mr Singhal's opinion. I am satisfied that there was also no inconsistency with Mr Singhal's later opinion that the claimant would have been able to return to supervisory or office work within six months or so of the accident. That opinion certainly did not suggest that Mr Singhal thought that the claimant would not be suffering any disablement as a result of the accident at that date. He thought that the resulting disablement would limit the claimant's working ability in the way described.
20. Should the appeal tribunal have considered any other factual issues? In the application for leave to appeal, the compensator's solicitors drew attention to what the claimant had put on various incapacity benefit forms, including references to pain and discomfort in the shoulders, arms and neck, as well as to back problems and crushed or compressed vertebrae. They continued:

"Therefore it would appear that [the claimant's] continuing problems cannot be said to be related to the index accident. [The claimant] did not sustain a crushed vertebra in the index accident, nor did he suffer from any injuries to his neck, shoulder or arm. The fact that [the claimant] has advised the pain in the right forearm and hand sometimes causes problems with his grip, must surely have an effect on his ability/inability to reach, lift and carry items. Again, these problems cannot be said to be related to or caused by the index accident."

This may be the argument to which the Secretary of State's representative was referring when saying in the submission of 8 September 2003 that the appeal tribunal "failed to consider how much the incapacity of the pre-existing condition would have contributed to the incapacity".

21. There was no error of law in the appeal tribunal's failing to consider that argument. First, it was not put to the appeal tribunal. The issue of other disablement, independent of that resulting from the relevant accident or from the pre-existing back condition, being a cause of incapacity for work was not raised in the letter of appeal or at the hearing on 1 May 2003. The issue not having been raised, there was no error of law in the appeal tribunal's not dealing with it. Second, I do not think that there is anything in the argument. When one looks at the EMPs' reports, on which scoring of points under the PCA and the continuing award of incapacity benefit would have been based, the diagnosis relied on was injury to back and the EMPs ticked no problem with manual dexterity, reaching or lifting and carrying. Similarly, the Med 3 statements on which deeming of incapacity for work under regulation 28 would have been based were restricted to back problems. Therefore, it does not seem that any problems with neck, arms, shoulders or grip had any influence on the claimant's entitlement to incapacity benefit at any date within the period covered by the CRB.
22. The result, in the light of the appeal tribunal's finding that the claimant's pre-existing condition would not have caused any symptoms within four years of the accident of 17 January 1999, is that there was no question before the appeal tribunal of dual causation of any of the disablement relevant to incapacity benefit within the period covered by the CRB. Therefore, the present case does not raise any of the potentially difficult problems stemming from the particular form of the all work test/PCA and from the deeming of incapacity for work under regulation 28 when both the relevant accident, injury or disease and some separate cause or causes contribute to disablement.
23. I do not need to say any more about the non-inclusion of industrial injuries disablement benefit in the CRB and whether the failure of the Secretary of State to produce any evidence of the amounts paid meant that the appeal tribunal did not have to investigate the matter. It is sufficient that, as I have rejected the other grounds on which the compensator's appeal could succeed, this ground (suggesting that the decision was too favourable to the compensator) would provide no basis for allowing its appeal.
24. For those reasons I conclude that the appeal tribunal did not err in law. The compensator's appeal must therefore be dismissed.

(Signed) J Mesher

Commissioner

Date: 28 November 2003