UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CCR_4919_2001 (30 June 2003)

R(CR) 1/04


Mr J. Mesher CCR/4919/2001

30.06.03

Cause of payment of benefits - deemed incapacity for work - effective cause of disablement - weight to be given to GP's evidence

The claimant was awarded compensation in respect of an injury to his right eye in an accident at work. The Secretary of State issued a certificate of recoverable benefits to the compensator seeking to recover incapacity benefit paid to the claimant on two separate claims. The compensator appealed on the ground that the certificate showed benefit which was not paid as a result of the accident. Expert medical evidence was produced, which showed that the claimant had pre-existing loss of sight in the right eye and that the accident had no disabling effect for more than a week following the accident. Most of the incapacity benefit at issue had been awarded under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995, which provides that a claimant shall be deemed to satisfy the all work test on the production of medical evidence in the prescribed form (normally a Med 3 signed by a GP). The diagnosis given in that medical evidence by his GP was injury to right eye, combined with depression on the second claim. The issue before the Commissioner was whether a payment of incapacity benefit under regulation 28 based on medical evidence linked to the relevant accident, injury or disease could be found to be paid otherwise than in respect of that accident, injury or disease.

Held, allowing the appeal, that:

the issue in this case was different from those addressed by the Tribunal of Commissioners in R(CR) 2/02, where there was only one potential cause of incapacity (paragraphs 22-25);

one must look at the substance of the diagnosis stated by a doctor on a Med 3 certificate, or any other form of medical evidence accepted for the purpose of regulation 28, to ascertain whether it is sufficiently linked to the relevant accident, injury or disease to indicate that that accident, injury or disease was an effective cause of the certificate being given and incapacity benefit being awarded (paragraphs 26 and 27);

if it is shown that for all or some of the period of receipt of incapacity benefit under regulation 28 the relevant accident, injury or disease was not an effective cause of any disablement, then to that extent the incapacity benefit cannot be included in a certificate of recoverable benefits (paragraph 28);

in this case the medical evidence showed that the accident was not an effective cause of disablement in any such period, since for the first period of receipt of incapacity benefit the claimant's disablement resulted entirely from the pre-existing condition of his right eye and for the second period from that cause and from his depressive illness (paragraphs 29-33).

The Commissioner substituted his own decision revoking the certificate.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The compensator's appeal to the Commissioner is allowed. The decision of the Manchester appeal tribunal dated 7 June 2000 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the appeal against the certificate of recoverable benefits issued on 19 December 1998 having made the necessary findings of fact (Social Security (Recovery of Benefits) Act 1997, section 13(3), and Social Security Act 1998, section 14(8)(a)(ii)). The decision is to declare that the certificate of recoverable benefits is to be revoked (Social Security (Recovery of Benefits) Act 1997, section 12(4)(c)).
2. This case raises a short, but quite difficult, point of law about the operation of the compensation recovery legislation when payments of incapacity benefit have been made on deemed incapacity for work under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (the 1995 Regulations).

The benefit history

3. The injured person's benefit history was as follows. He was employed as a bus driver. He suffered an accident at work on 27 July 1995 when a fire extinguisher discharged water-based foam into his face and in particular his right eye. He received statutory sick pay from 28 July 1995 to 12 February 1996. Following receipt of a form SSP1 from his employer telling him in section 1 that statutory sick pay would not be paid after 12 February 1996 because its 28 week limit would have been met, the injured person filled in the second part of the form to claim incapacity benefit. Under brief details of his sickness he wrote "eye injury, loss of sight". He signed the form on 15 January 1996. Incapacity benefit was awarded from and including 13 February 1996, although the date of the decision doing so is not known.
4. He was sent an IB50 incapacity for work questionnaire which he signed on 20 February 1996. In the section for describing his illness or disability he wrote "a fire extinguisher went off on a bus and went into my eyes causing loss of sight in my right eye". He was later asked to get a Med 4 statement from his GP. There is a Med 4 in the papers signed on 15 March 1996. Slightly confusingly, the box "you need not refrain from your usual occupation" was ticked, but in the space that followed "you should refrain from your usual occupation" the GP had written "Med 3 was given on 12/3/96 for 4 weeks". Under main diagnosis the GP wrote "Injury R eye" and under remarks he wrote:

"Sustained injury to R eye (27/7/95) when a fire extinguisher went off accidentally. He attended Royal Oldham Hospital. He is still under the eye consultant there. He still complains of problems with his vision."

The injured person was examined by an approved doctor on 3 May 1996, following whose report he was given a score of eight points on the all work test on 11 July 1996. That resulted in a decision reviewing the decision awarding incapacity benefit and giving the revised decision that he was not entitled from and including 11 July 1996. That decision was confirmed on appeal to a social security appeal tribunal.

5. The injured person made an unsuccessful new claim for incapacity benefit with effect from 28 November 1996. His GP provided a Med 3 dated 10 December 1996 advising him to refrain from work for 13 weeks and giving the diagnosis "R eye injury". A further claim was made which was successful from 15 January 1997. The injured person had mentioned depression and problems sleeping. The GP's Med 4 dated 24 February 1997, although again giving the main diagnosis as "injury right eye", also mentioned that he did get depressed at times and had difficulty in sleeping. After another examination by an approved doctor he was scored at 11 points on the mental health descriptors and 12 points on the physical descriptors. The mental health descriptors alone were enough to pass the all work test. Payment of incapacity benefit ceased after 17 November 1997.

The compensation history

6. The history of the injured person's compensation claim is as follows. He brought a claim against his employers. Notice of the claim was given to the Compensation Recovery Unit (CRU) by the employers' insurers (the compensator) on 10 December 1996. For the purposes of the claim, medical reports were obtained by solicitors acting for the injured person and by the compensator.
7. Mr Rosen, a consultant ophthalmic surgeon, examined the injured person on 10 November 1995 at the request of his solicitors and gave one report on that day and a further report on 12 February 1996 after seeing records from the Royal Oldham Hospital. He answered an enquiry by the solicitors in a letter of 4 June 1997. Mr Rosen's immediate conclusions on 10 November 1995 were that his physical findings suggested that the injured person had a longstanding amblyopic right eye as a result of a longstanding convergent squint in that eye. His report of 12 February 1996 set out long extracts of notes and letters by the doctors who had treated the injured person after the accident and down to December 1995, the general findings being of no abnormalities or apparent signs of damage from the accident, but of the right convergent squint and severely reduced visual acuity in the right eye. Mr Rosen's opinion was as follows:

"Further to my clinical report which also confirmed the normality of his eye on clinical examination but the abnormality of his visual performance, I too would have to confirm that on the basis of the evidence that is available, that there are two possibilities. One is that he has had poor vision in his right eye all along, which is the consequence of a childhood squint and consequential amblyopia. His apparently good vision in the past has been recorded as a consequence of poor technique in testing someone's vision. In my experience it is quite easy for a patient's eye to be poorly covered and a patient can be entirely unaware that he is reading the chart with the better of the two eyes, whilst the poorer one is supposed to be covered. The alternative is that the accident in some way which is impossible to conceive has damaged the visual function. As the left visual field is normal the implication can only be that the optic nerve or retina was damaged. There was no evidence of the retina or atrophy of the nerve so my conclusion would be that this is a long standing case of amblyopia, consequent upon the lifelong strabismus and that the accident was not relevant in changing the visual performance."

In the letter of 4 June 1997 Mr Rosen said that he thought that a week at the most would have been reasonable for symptoms, recovery and return to work as the result of the effects of the fire extinguisher fluid, ignoring the effects of the pre-existing condition.

8. Mr Garston, also a consultant ophthalmic surgeon, examined the injured person on 13 March 1997 at the request of the compensator. He had hospital records extending into 1997 as well. He also had evidence that in 1954, at the age of 15, the injured person had been rejected for employment underground by a Coal Board medical officer, because of poor vision in his right eye. Mr Garston gave a detailed opinion. He could not explain the state of the injured person's vision by the physical effects of the fire extinguisher fluid, as there were no immediate or later signs of damage. His opinion was that from the ocular/visual point of view (leaving aside the possibilities of a genuine psychiatric response to the incident of 27 July 1995 or of malingering) it would have been reasonable for the injured person to be absent from work for one to two days at most.
9. Following those reports, the injured person's claim was limited to his loss of earnings for one week and damages for pain and suffering, in the total amount of £650. There was an arbitration hearing before a district judge on 26 November 1997 on the issue of liability, which was decided in the injured person's favour.

The certificate of recoverable benefits

10. I find the evidence of the dates on which certificates of recoverable benefits were issued and put under challenge particularly obscure. The case as put to the appeal tribunal was that the relevant certificate of recoverable benefits was that issued to the compensator on 19 December 1998 in the sum of £3190.35, made up of all the incapacity benefit paid to the injured person in the periods from 13 February 1996 to 9 July 1996 and from 15 January 1997 to 17 November 1997. The case was also put on the basis that a valid appeal had been made on behalf of the compensator on the ground that the certificate showed benefit which was not paid as a result of the accident, in the light of the consultants' reports about the injured person's pre-existing problems with his eyes. I see no reason in all the circumstances not to accept that as the basis of the appeal to the appeal tribunal, and to me.

The appeal tribunal's decision

11. The appeal tribunal of 7 June 2000 allowed the compensator's appeal in relation to the period from 15 January 1997 to 17 November 1997, but confirmed the decision in relation to the period from 13 February 1996 to 9 July 1996. Although it did not use the precise language of section 12(4)(b) of the Social Security (Recovery of Benefits) Act 1997 ("the 1997 Act"), it specified the variations to be made by the Secretary of State when issuing a fresh certificate under section 12(5).
12. The appeal tribunal's statement of reasons contained the following:

"Facts found

On the basis of the evidence, we found on the balance of probabilities that the injury had featured as one of the causes of payment of Incapacity Benefit for the inclusive period of the 13th of February 1996 to the 9th of July 1996. In reaching this decision, the tribunal observed that the claimant had told the Examining Medical Officer at page 67 of the bundle that since the accident he has had severe loss of vision in his right eye, though he acknowledged that the problem with the right eye was not caused solely by the accident.

The Med 4 certificate at page 63 supplied for the purposes of determining the claim for Incapacity Benefit certified injury to the right eye as the cause of incapacity. However, for the purposes of a later claim for Incapacity Benefit which covered the period from the 15th of January 1997 to the 17th of November 1997, the claimant was awarded 11 Mental Health Descriptor points in respect of the depressive illness from which he then suffered. There was no evidence to suggest that the depressive illness had arisen because of or was in any way attributable to the accident in question. The claimant would have been exempt from work on the basis of those mental health findings alone. Accordingly, we were not satisfied that any Incapacity Benefit paid for this later period was paid wholly or in part consequence of the accident in question.

The Law Applied

The tribunal applied the decision of Commissioner Mr J J Skinner in which it was said that the effect of an injury arising from the relevant accident does not have to be the sole cause of payment of the benefits concerned. The benefits would be recoverable under the Scheme provided that the accident was one of the causes of payment of those benefits (CCR/001/93). In this case, the claimant's depressive illness was of itself sufficient to merit an award of Incapacity Benefit."

The appeal to the Commissioner

13. The compensator now appeals against the appeal tribunal's decision with the leave of Mr Commissioner Pacey granted on 19 February 2002. The appeal was not supported in the written submission dated 21 March 2002 on behalf of the Secretary of State. Following their reply, the compensator's solicitors requested an oral hearing. The request was granted by Mr Commissioner Pacey on 14 February 2003 and the appeal was heard before me at Bury County Court on 23 April 2003. The compensator was represented by Mr Peter Burns of counsel, instructed by Keoghs, solicitors. The Secretary of State was represented by Mr Michael Atkins of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for their submissions.

Errors of law

14. Mr Atkins, while accepting the result of the appeal tribunal's decision in relation to the period from 15 January 1997 to 17 November 1997, continued to submit that its decision was correct in law. I reject the submission that the appeal tribunal did not go wrong in law. I put that on two main, linked, grounds. First, the appeal tribunal did not say anything at all about the evidence in the form of the consultants' reports and the argument made for the compensator that those reports showed that incapacity benefit could not be taken to have been paid "in respect of the accident, injury or disease" (1997 Act, section 1(1)(b)). Nor did the appeal tribunal explain why, in the light of the statutory scheme of incapacity benefit, the benefit was to be treated as paid in respect of the accident merely because of the claimant's assertion of a link (apparently accepted by his GP) in the face of the expert medical evidence to the contrary. There was a failure of explanation for the rejection of a specific contention put forward for the compensator. That is an error of law. The second main ground is that the appeal tribunal failed to apply the principles set out by the Tribunal of Commissioners in decisions R(CR) 1/02 and R(CR) 2/02 (although without any personal fault on the part of the members of the appeal tribunal as those decisions were not made until 15 May 2001). Those decisions establish the relevance of issues which should in law have been dealt with in the statement of reasons.
15. For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law. It is then plainly expedient for me to substitute a decision on the appeal against the certificate of 19 December 1998, as was agreed by both representatives.

The Commissioner's decision

The principles in R(CR) 1/02 and R(CR) 2/02

16. A number of Commissioners' decisions have been mentioned at earlier stages in this case, but it is no longer necessary to go back earlier than the Tribunal of Commissioners' decisions. Mr Burns and Mr Atkins had not given specific thought to what had been said in R(CR) 2/02 about incapacity benefit. I gave them time to consider that decision and the issue identified below about the operation of regulation 28 of the 1995 Regulations and Mr Atkins was able to take instructions. Neither wished to request any further time in which to make submissions.
17. R(CR) 1/02 concerned three cases in which certificates of recoverable benefits were issued covering industrial injuries benefits which had been paid in respect of accidents at work which had also led to civil claims for damages. It was argued in appeals by the compensators against the certificates that the benefits had been wrongly paid for periods covered by the certificates because the injured person's disablement either no longer or never had resulted from the relevant accident. Before the Tribunal of Commissioners, Mr Richard Drabble QC, counsel for the Secretary of State, accepted that in relation to non-industrial incapacity benefits a compensator could under the 1997 Act allege that an injured person's incapacity was not caused by the relevant accident, injury or disease. But he submitted that, in cases of benefits dependent on being incapable of work or on disablement being a result of a particular accident, it was irrelevant to the question whether benefit had been paid "in respect of" the accident, injury or disease that it was later shown that the injured person was not in fact incapable of work or was not in fact suffering disablement as a result of the relevant accident. The Tribunal rejected that submission and held that benefits which ought not to have been paid at all cannot be said to have been paid in respect of the relevant accident, injury or disease. There was a particularly helpful discussion of the context of the 1997 Act, in which it was concluded that it could not have been intended to bind compensators by the result of decisions on benefit entitlement on which they had no rights to make any representations and to require them to reimburse the Secretary of State for benefits mistakenly paid.
18. R(CR) 2/02 dealt with different circumstances, but in the light of the general approach in R(CR) 1/02. The injured person was paid compensation of £6,000 for pneumoconiosis on a claim against his employers. Nothing was included for loss of earnings. He was awarded, amongst other benefits, sickness benefit, followed by invalidity benefit, which was replaced by incapacity benefit from 13 April 1995. Medical certificates submitted in connection with the claim for sickness and invalidity benefit referred to "chest condition", which was agreed on behalf of the compensator to mean the injured person's pneumoconiosis. The certificate of recoverable benefit included all the benefits for nearly five years, a total of £32,549.28. The compensator appealed on the ground that the disability resulting from the pneumoconiosis was not sufficient to account for the payment of the benefits awarded on the grounds of incapacity for work. It was said that the medical evidence showed that the injured person had not been incapable of work during the period in question. Thus this was not a case where it was disputed that the injured person was suffering from a disablement as a result of the relevant accident, injury or disease, but one where it was argued that benefits ought not to have been paid because the disablement did not lead to incapacity for work.
19. The Tribunal of Commissioners, in relation to the sickness and invalidity benefit, referred to the concession on behalf of the Secretary of State mentioned in paragraph 17 above. It held that its conclusion that there was no liability on compensators to reimburse the Secretary of State for benefits which ought not to have been paid at all applied as much to the situation where the reason was not the existence of another cause of the disablement but that the disablement was not sufficiently serious to support a finding that the injured person was incapable of work.
20. In paragraphs 15 to 17 the Tribunal continued:

"15. The position in relation to incapacity benefit is very different. Since 13 April 1995, when incapacity benefit was introduced to replace sickness and invalidity benefit, incapacity for work, for both incapacity benefit and income support, has been determined in accordance with Part XIIA of the Social Security Contributions and Benefits Act 1992 ...

16. Actual incapacity for work is relevant in those cases where the 'own occupation test' applies during the first 28 weeks of a period of absence from work (although those 28 weeks often coincide with a period of entitlement to statutory sick pay rather than incapacity benefit). However, actual incapacity for work is wholly irrelevant to entitlement to benefit in those cases where claimants with serious conditions are treated as incapable of work under regulation 10 of the 1995 Regulations or in cases where the question of whether a person is incapable of work falls to be determined in accordance with the personal capability assessment (formerly known as the 'all work test').

17. Where the question whether a claimant is capable or incapable of work falls to be determined in accordance with a personal capability assessment, the claimant is treated as incapable of work if he scores a sufficient number of points in respect of the disabilities set out in the Schedule to the 1995 Regulations for the purpose of regulation 26. Pending an assessment, a claimant is usually treated under regulation 28 of the 1995 Regulations as incapable of work, for as long as medical evidence, generally in the form of Med 3 certificates, is being submitted. Mr Drabble argued that, even if we rejected his primary submission that a tribunal considering an appeal under the 1997 Act was not entitled to go behind an award of benefit, incapacity benefit was nonetheless 'paid [...] in respect of' pneumoconiosis in this case because the claimant was entitled to the benefit as a result of providing certificates issued in respect of his chest condition which was conceded by [counsel for the compensator] to be due to the pneumoconiosis. It was, he submitted, irrelevant to the question of entitlement to benefit whether the claimant was actually incapable of work or whether he would have satisfied the all work test had he been referred for one.

18. Were this a case arising under regulation 28 of the 1995 Regulations, we would be inclined to accept Mr Drabble's submissions."

21. However, the Tribunal then went on to hold that, since the claimant in R(CR) 2/02 was treated as entitled to incapacity benefit under transitional regulations, because of his existing award of invalidity benefit, the same approach should be taken as to sickness and invalidity benefit. His incapacity benefit ought not to have been paid at all, because the finding of actual incapacity for work for purposes of sickness and invalidity benefit purposes had been erroneous. The Tribunal therefore did not need to make a final decision on the effect of regulation 28 of the 1995 Regulations. Nor did the point need to be decided by Mr Commissioner Rowland in the subsequent decision CCR/2320/2002, reported as R(CR) 3/03.

The issue in the present case

22. The issue which arises in the present case now becomes clear. The awards of incapacity benefit made to the injured person with effect from 13 February 1996 and from 15 January 1997 were made on his deemed incapacity for work under the all work test in accordance with regulation 28. There was a slight wobble about that in the Secretary of State's written submission and in Mr Atkins' skeleton argument, but there is no doubt that the own occupation test was never applied to the injured person. When he was actually assessed on the all work test, the injured person's entitlement to incapacity benefit was brought to an end, from 11 July 1996 and 18 November 1997, because he did not satisfy the test. Does it therefore follow from Mr Drabble's submission in R(CR) 2/02, which the Tribunal of Commissioners was inclined to accept, that the incapacity benefit (for either the first or for both periods) was paid to the injured person in respect of the injury suffered on 27 July 1995 because the application of regulation 28 depended on the provision of Med 3 certificates stating a diagnosis of injury to the right eye? Under regulation 28, no judgment can be made about a person's actual incapacity for work or prospects in the actual application of the all work test/personal capability assessment. As long as evidence of incapacity is provided and the person has not been found capable of work in the previous six months, the deeming follows automatically.
23. Both Mr Burns and Mr Atkins submitted that Mr Drabble's submission did not have that result in the circumstances of the present case. Mr Burns submitted that it was crucial that in R(CR) 2/02 the diagnosis stated on the medical certificates was accepted to represent the disease for which compensation had been paid. What was at issue in that case was the effect of its later being found that the injured person had not been incapable of work as a result of the pneumoconiosis. Everything else was obiter. Mr Drabble's submission set out in paragraph 17 of R(CR) 2/02 should not, he said, be taken as directed to any circumstances outside those where the medical certificate on which the application of regulation 28 was based reflected the disablement resulting from the relevant accident, injury or disease. It should not be taken as undermining his general acceptance, endorsed by the Tribunal of Commissioners, that it is open to a compensator to argue that incapacity was not caused by a relevant accident, injury or disease where that accident etc. caused some disablement, but there was another cause of the incapacity. Mr Atkins did not wish to make any submission to the contrary. He submitted that in the circumstances of the present case it was open to the compensator to make the argument that the payment of benefit was not attributable to the accident of 27 July 1995, even as one of a number of effective causes. If that argument succeeded, which he submitted it should not, then the benefit should not form part of the certificate.
24. I accept those submissions in the circumstances of the present case. I have hesitated slightly over the Tribunal of Commissioners' statement in paragraph 15 of R(CR) 2/02 that the position in relation to incapacity benefit (outside the category of transitional cases) is very different from that in relation to sickness and invalidity benefits. The result of the submissions I have accepted is that the position on the application of the compensation recovery legislation is somewhat different, but not very different. However, I am satisfied that the Tribunal's statement was directed to the difference in the terms of the conditions of entitlement to sickness and invalidity benefit on the one hand and incapacity benefit on the other. It was not directed to the outcome of the application of the compensation recovery legislation. Similarly, the Tribunal's suggestion in paragraph 18 that it was inclined to accept Mr Drabble's submission about regulation 28 of the 1995 Regulations was in its context restricted to cases in which there was only one potential cause of incapacity, which was identified in the Med 3 with the relevant accident, injury or disease. Those are not the circumstances of the present case. I leave the precise scope of that suggestion to be decided in some other case.
25. I place much more weight on what was said in paragraphs 30 to 34 of R(CR) 1/02 about what additional burdens Parliament could have intended to impose on compensators in the 1997 Act. The considerations which swayed the Tribunal of Commissioners in R(CR) 1/02 in relation to benefits which ought not to have been paid and, in R(CR) 2/02, in relation to sickness and invalidity benefit where the disablement stemming from the relevant accident, injury or disease did not incapacitate the injured person for work, seem to me to apply just as much in relation to incapacity benefit.
26. I have, though, also hesitated over the special conditions in regulation 28 of the 1995 Regulations. Entitlement to incapacity benefit under regulation 28 turns on the fact of provision of medical evidence. The normal form of that evidence under the Social Security (Medical Evidence) Regulations 1976 is a Med 3 certificate, or strictly a Med 3 statement, in the form set out in Part II of Schedule 1 to those Regulations. A doctor is told in the rules in Part I of Schedule 1 to state, as precisely as possible subject to the well-being of the person concerned, the diagnosis of the disorder in respect of which the doctor is advising refraining from work. If the doctor gives a diagnosis which is linked to the relevant accident, injury or disease, how can the subsequent payment of incapacity benefit not be in respect of that accident etc?
27. That line of argument tends to prove too much. Under regulation 28 it does not matter what diagnosis the doctor gives. It could be a diagnosis which no reasonable person could give to the claimant or even a diagnosis which is not accepted by any respectable medical opinion as having any existence. Providing that the doctor puts his or her name to advice to refrain from work for that reason in a statement in the right form, the operation of regulation 28 is triggered. One might then say that incapacity benefit under regulation 28 can never be paid in respect of any accident, injury or disease, but is paid solely in respect of the fact of provision of medical evidence in an accepted form. The result would be that incapacity benefit under regulation 28 could never form part of a certificate of recoverable benefits. It seems to me that that result would be wrong, and would reflect a formulaic approach rather than one directed at the substance of the issues. One must therefore look at the substance of the diagnosis stated by a doctor on a Med 3 certificate, or any other form of medical evidence accepted for the purpose of regulation 28, to ascertain whether it is sufficiently linked to the relevant accident, injury or disease to indicate that that accident etc. was an effective cause of the certificate being given and incapacity benefit being awarded. But if one must look at the substance for that purpose, in my judgment a compensator must be allowed to make an argument of substance in relation to the inclusion of the incapacity benefit in a certificate of recoverable benefits.
28. If it is shown that for all or some of the period of receipt of incapacity benefit under regulation 28 the relevant accident, injury or disease was not an effective cause of any disablement, then to that extent the incapacity benefit cannot be included in a certificate of recoverable benefits. That is sufficient to decide the present case. I leave open for decision in some other case the difficult question of the effect of its being shown that for some part of the period of receipt of incapacity benefit under regulation 28 the relevant accident, injury or disease was an effective cause of some disablement. It seems to me that if the doctor's diagnosis on the Med 3 certificates which triggered entitlement under regulation 28 is not linked at all to the relevant accident, injury or disease, then the payment of incapacity benefit should not be regarded as in respect of that accident etc. But where there is such a link, I prefer to leave the issue to be decided in another case or cases. There the potential variety of circumstances can be fully explored in the light of what was said in R(CR) 2/02 (see the end of paragraph 24 above).
29. I can now apply those conclusions to the circumstances of the present case. Mr Atkins' submission on behalf of the Secretary of State had in his skeleton argument been that, for the first period of payment of incapacity benefit, the accident of 27 July 1995 was an effective cause of the payment of incapacity benefit to the injured person, because of the lack of evidence of restrictions on his activities, such as work, before the accident. At the oral hearing he put the point on the basis that it was the occurrence of the accident which forced the injured person to rely on statutory sick pay and, on its expiry, to claim incapacity benefit. The accident was the trigger for the events which resulted in the payment of incapacity benefit. He submitted that taking into account the effect of the injured person's pre-existing condition there was still dual causation of the payment of benefit.
30. I do not accept that approach. It is inconsistent with the approach of looking at the substance of the relevant issues and at the causal connection between the relevant accident, injury or disease and the injured person's disablement. It is irrelevant to those issues in the present case that the accident of 27 July 1995 formed an essential part of the history leading up to the claims for incapacity benefit.
31. Looking at the relevant issues as defined above, I note first that I do not have copies of the Med 3 certificates on which the awards of incapacity benefit were made. What are in the papers are copies of Med 4 statements obtained while the awards of incapacity benefit were running for the purpose of actually applying the all work test to the injured person. That may matter in other cases. In the present case I am prepared to assume, from the doctor's continued use of the diagnosis "injury to right eye", that that would have been the diagnosis stated on the Med 3s submitted at the beginning of each claim, and at intervals thereafter (with the addition of depression and sleep problems in the second period). The statement of that diagnosis shows a link to the accident of 27 July 1995. Therefore, I cannot dispose of the case on the basis that the substance of the medical evidence on which the award of incapacity benefit under regulation 28 was based was not linked at all to the relevant accident, injury or disease. I must look at the evidence on the causation of the injured person's disablement.
32. On that issue I accept Mr Burns' submission that the expert medical evidence from Mr Rosen and Mr Garston, as set out in paragraphs 7 and 8 above, shows with overwhelming force that the accident of 27 July 1995 had no disabling effect on the injured person for any longer period than a week following the accident. The faint suggestion in Mr Garston's report of a genuine psychiatric response to the accident has nothing else in the evidence to support it and has not been relied on by the Secretary of State. The medical evidence is overwhelming that by the date of the first receipt of incapacity benefit the injured person's disablement resulted entirely from the pre-existing condition of his right eye. At the dates of the second period of receipt his disablement resulted from that cause and from his depressive illness. For both periods the accident of 27 July 1995 was not an effective cause of his disablement.

Conclusion

33. The result is that the incapacity benefit paid for the two periods in issue was not paid in respect of the relevant accident, injury or disease for the purpose of section 1 of the 1997 Act. It cannot form part of a certificate of recoverable benefits. As no other benefit was involved, the decision which I must substitute is to declare that the certificate issued on 19 December 1998 is to be revoked.

Date: 30 June 2003 (Signed) J. Mesher

Commissioner