UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_1714_2002 (24 January 2003)

 


CI/1714/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I grant the claimant leave to appeal against the decision of the Newcastle-upon-Tyne appeal tribunal dated 12 February 2002 and I allow her appeal. I set aside the decision of the appeal tribunal. I declare that the claimant suffered personal injury caused by accident arising out of and in the course of her employment as a nurse when she hurt her back while trying to prevent a claimant from falling during the summer of 1978. I leave other questions arising on her claim for disablement benefit in consequence of my decision to be determined by the Secretary of State.

REASONS

2. I held an oral hearing. The claimant neither appeared nor was represented. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions, who adopted the written submission made on behalf of the Secretary of State. I am grateful to her for her assistance.
3. The claimant was employed as an auxiliary nurse from about 1971 until 1984 when she took early retirement on health grounds, having been unable to work since the previous year and an orthopaedic consultant having expressed the view that "her nursing days were finished due to her back condition". On 11 October 2000, she claimed disablement benefit on the ground that her continuing back trouble was attributable to an industrial accident she had suffered in the summer of 1978. She was unable to identify the precise date on which the accident had occurred. However, she did describe the incident in some detail, explaining that she had been bed-bathing a very heavy elderly patient, while supporting her in a standing position, assisted by a pupil nurse who had been unable to support the patient any longer, causing the claimant to take the full weight of the patient to prevent her falling to the floor. She said her back had been arched and twisted and she had felt a red-hot sensation in her spine and that she had reported the accident to a senior nurse. She recalled that the patient had weighed about 20 stone and the fire brigade had had to be called to help with her admission to the hospital.
4. The question whether an accident had occurred was investigated with commendable thoroughness by the Benefits Agency with the full assistance of the claimant. The NHS Trust who were the successor's of the claimant's former employer said "our records do not go back that far". The claimant said she had not been away from work due specifically to incapacity for any period immediately after the accident and so her injury benefit, sickness benefit and invalidity benefit claims records were of no assistance, although they did show periods of incapacity due to back problems in 1980, 1982 and then from 1983. Enquiries were also made of her general practitioner, who said that she had first mentioned "back strain" in 1980, and of the hospital where she had been admitted for an operation in 1983, whose clinical notes said that she had complained in 1983 of a "bad back on and off for one year now. No specific trauma." The claimant supplied the names of possible witnesses. She even tried the fire brigade, in case they had any record of helping with the patient's admission. Not surprising witnesses could not be contacted or could not remember the incident. Eventually, on 5 June 2001, a decision-maker, acting on behalf of the Secretary of State, decided:

"[The claimant] has not proven that there was an identifiable incident on a specific date which happened out of or in the course of her employed earner's employment. Accordingly a declaration that there was an industrial accident cannot be made and the claim for disablement benefit has been disallowed."

5. The claimant appealed. She submitted to the tribunal a letter, dated 24 August 2001, from a staff nurse, recalling that she had been a pupil nurse doing her geriatric training in the hospital where the claimant worked and that she had worked with the claimant. She said:

"I remember the lady in question. She was admitted to the ward, with the aid of the Fire Brigade because she was so obese. Because of her weight she slept in a chair as she and we were not able to put her to bed. To give this lady proper nursing care we had to ask her to stand, with support from us so that she could be washed. It was while this lady was having a bath that the accident happened.

"I cannot remember if I was on duty at the time of the incident but I was made aware of it in the report on my next shift. I do remember [the claimant] being off sick after the accident, and at subsequent times during her nursing career."

6. The tribunal heard the appeal on 12 February 2002. They considered the evidence in some detail and dismissed the appeal, stating in the decision notice –

"The appellant has not shown that she sustained an industrial accident on the specific date in the summer of 1978."

The chairman's statement of reasons was as follows.

"The tribunal carefully considered all the scheduled evidence and noted that the documents from page 67 onwards had been submitted after the decision maker's decision had been reconsidered on 30 July 2001. In that evidence the only document, by way of evidence from a witness, is a letter dated 24 August 2001 …. at page 74.

"In reaching their decision, the tribunal had to make their decision on the balance of probability and the burden of proving that an accident defined in accordance with the Social Security Regulations had taken place fell on the appellant, …

"The tribunal carefully considered all the contentions of [the claimant] and noted that the accident book which records any untoward incidents or accidents had been destroyed. The tribunal do not regard this as surprising in view of the fact that [the claimant] had waited approximately 22 years before she took any action in connection with claiming Industrial Injuries Benefit out of the accident which she says took place in 1978.

"The tribunal do however have the benefit of the GP's factual report dated 21.11.00 compiled from his GP records and the extract from the hospital case notes which gave 2 entries dated 27 October 1983. On the balance of probability the tribunal accept that the entries are stated to be extract of relevant entries in chronological order and that the 2 entries on 27.10.83 are the full entries that were made in the case notes on that day.

"The tribunal also considered the description of the incident which [the claimant] claims was an accident but noted that although she stated she reported the accident on the day in question, she could not recall precisely who she reported it to, it was either a staff nurse or a senior SEN but the identity of the person she could not remember.

"The tribunal carefully considered [the] letter which was written on 24.8.01 after the decision maker's decision had been reconsidered and confirmed. Although the tribunal accept that [the letter writer] may have some recollection of the lady in question, she states that she cannot remember if she was on duty at the time of the incident [the claimant] refers to, but states that she was made aware of it in the report on her next shift. On balance of probability the tribunal consider it unlikely that [the letter writer] has a clear recollection of the incident because she is not certain whether she was on duty at the time or heard about it the next day and she has not been able to give any indication as to the date when this incident occurred. Further she states that [the claimant] was off sick after the incident whereas [the claimant] herself states that she was not and in fact the records of sickness claims show that although [the claimant] was off on 4 occasions during 1978, none of them had any relation to a back problem.

"The tribunal also considered [the claimant's] contention that she had not taken time off work because she was a single mother at the time and she did not want to risk losing her job, but on balance they do not accept this because she had taken time off for 4 other reasons in 1978 and had taken time off with a strained back approximately 2 years later in 1980. Consequently on this evidence on the balance of probability, the tribunal consider it unlikely that [the claimant] sustained an industrial accident in the summer of 1978 and in any case has not fulfilled the burden of proof in satisfying the tribunal on the balance of probability that such an accident occurred.

"The tribunal in reaching this decision accepted the report of the GP that [the claimant] first mentioned back strain in 1980 and was investigated by Mr Nagawalla in 1983 and 1984 and had gone on the sick in September 1983.

"The tribunal also accept the entries on page 34 being extract from hospital case notes and are satisfied on the balance of probability that these are correct statements of fact. They are satisfied that the consultant surgeon wrote the letter to [the claimant's] GP saying that she gave a history of low back pain radiating into her hips for the last 2 weeks and that she was completely rigid with muscle spasm and that in the clinical notes there was a history of back ache for 3-4 weeks with no sciatica and that she had had a bad back on and off for one year, but there was no specific trauma on this basis, [and] the tribunal [are] satisfied that [the claimant] had not sustained an industrial accident when she hurt her back (which is what she complains of) in the summer of 1978. Her back problems did not start to cause her problems to the extent that she mentioned anything to her doctor before 1980.

"The clinical notes state no specific trauma and the tribunal accept this to mean that [the claimant] did not sustain any injury in a particular instant which would be recognised as an accident that would cause the onset of her problems.

"In view of the above and also because [the claimant] cannot give a date of the accident which she complains of or even an approximate date and because there is nothing in the GP's records to show that she complained about her back at that time, the tribunal are satisfied on the balance of probabilities that [the claimant] has not fulfilled the burden of proof and the tribunal are satisfied on the balance of probabilities that she has not shown that she sustained an industrial accident defined in accordance with the Social Security Regulations in the summer of 1978."

7. There are no "Social Security Regulations" defining an "industrial accident" but section 94(1) of the Social Security Contributions and Benefits Act 1992 and section 29(6) of the Social Security Act 1998 make it clear that an "industrial accident" is an accident that causes person injury to the claimant and arises out of and in the course of his or her employment as an employed earner. I presume the tribunal had that in mind.
8. An appeal to a Commissioner lies only on a point of law. Unless an error of law can be demonstrated, a Commissioner is not entitled to interfere with a tribunal's findings of fact. I accept Ms Haywood's submission that most of the claimant's grounds of appeal do not raise any arguable point of law. However, I remain concerned about a number of aspects of the tribunal's decision.
9. Firstly, the penultimate paragraph of the statement of reasons suggests that the tribunal ran together two distinct questions: whether there had been an industrial accident and whether that accident was responsible, at least in part, for the claimant's current disablement. I have no doubt that, given the description of the accident and the date of onset of lasting symptoms, the tribunal were entitled to take the view that the accident was not a significant contributing factor in the claimant's current disablement. Indeed, the claimant herself had said the accident was but the most serious of several and that, in those days before the widespread use of lifting equipment, nurses were constantly imposing strain on their backs. However, the question whether the accident was a cause of the claimant's current disablement was not the question determined in the decision under appeal. That was merely whether, at any time, the claimant had suffered personal injury as the result of an identifiable accident. It was not necessary for the personal injury to have been long-lasting or incapacitating.
10. Secondly, it was not necessary for the claimant to identify when the accident took place more precisely than was necessary for the determination of her claim for disablement benefit and since there was no question of disablement benefit being paid in respect of any period more than three months before the date of claim, "the summer of 1978" was quite precise enough. The Secretary of State seems to have regarded it as being necessary to identify a specific date and the decision notice suggests that the tribunal may have also erred in requiring a precise date. Although the statement of reasons suggests that "an approximate date" might have satisfied the tribunal, the implication is that they did not regard the claimant's date as being sufficiently precise and they did not explain why that was so.
11. Thirdly, it was not necessary, as a matter of law, for the claimant's evidence to be corroborated, although the tribunal were entitled to look for corroboration if they had doubts about the claimant's evidence. The tribunal seem to have regarded the lack of corroboration as a reason in itself for doubting the claimant's evidence, even though they appear to have recognised that the obtaining of corroborative evidence would itself have been difficult due to the passage of time. Furthermore, if the tribunal did have doubts about the claimant's story, they should have explored it further at the hearing. One of the points raised by the claimant in her grounds of appeal is that the tribunal did not appear to want to hear her account of the accident and did not ask questions about it.
12. Fourthly, there is the point that struck me most forcefully when I read the tribunal's decision. There does not seem to have been much scope for innocent error in this case, at least on the central issue as opposed to minor details. Either an event such as that described by the claimant took place or else the claimant's whole story is bogus and her efforts to obtain corroboration were a sham. I do not consider that any of the points upon which the tribunal relied really support a view that the claimant was being dishonest. Certainly there is nothing in the tribunal's decision to suggest that they were aware that that was the necessary implication of their decision. I accept that there is the discrepancy between the claimant's account and that of the former pupil nurse as to whether the claimant was "off sick" after the incident, but that seems to me the sort of minor detail about which recollections could well differ after such a lapse of time. The tribunal did not suggest that the discrepancy showed that they were both deliberately lying.
13. For all these reasons, I am satisfied that the tribunal's decision is erroneous in point of law. I grant leave to appeal and, as both parties have given their consent to the claimant's application being treated as the appeal, I allow the appeal and set aside the tribunal's decision. It is expedient for me to make the necessary findings of fact and to substitute my own decision for that of the tribunal.
14. I accept the claimant's evidence that she did suffer an accident. She has given considerable detail and her account is credible. She described feeling pain and being in discomfort for some while. The discomfort will have been a symptom of an injury. It is not necessary for me to be more precise because, by virtue of section 30 of the Social Security Act 1998, anything further I said would not be binding on the Secretary of State when considering what used to be known as the "disablement questions". The medical evidence casts considerable doubt as to whether the accident caused the claimant's subsequent severe disablement but it does not itself undermine the claimant's account that she did suffer an injury in 1978. The reference in the hospital notes to "no specific trauma" can perfectly well be read as "no recent specific trauma" or "no relevant specific trauma". The claimant did at one stage accept that she might have been mistaken as to the year of the accident but she has been sufficiently consistent in her approach for me to find that it probably occurred in 1978. The discrepancy as to whether or not she was "off sick" immediately after the accident is minor and, in my view, a reflection of a faulty memory. As the nurses were working shifts, it might well be difficult to recall whether a day or so of absence was the natural effect of shift working or due to the degree of discomfort and there is always the possibility that the former pupil nurse was confusing the absence with later absences that were attributed to back pain. The claimant was plainly not off for long enough in 1978 due to back pain to claim benefit. The fact that the claimant took other periods of time off for illness (gastric enteritis, gastric chill, pyelitis and a period in hospital) is not inconsistent with her soldiering on with what may have been the less serious effects of an occupational hazard. Accordingly, I give the decision set out in paragraph 1 above.
15. However, as I have indicated, that may not help the claimant with her claim for disablement benefit. The claimant herself does not consider this particular accident to be the sole cause of her current disablement. If there are other causes, she has to show that this was a sufficiently serious cause that, having regard to the other causes and the provisions of regulation 11 of the Social Security (General Benefit) Regulations 1982, at least 14 per cent. disablement is attributable to this accident (unless there is any question of aggregation with the effects of another industrial accident). Even if she could show there was a series of accidents, it seems to me that she would have difficulty in showing that the current disablement was sufficiently attributable to those accidents, rather than to a "process" caused by general wear and tear as a result of the daily grind on the ward, to entitle her to benefit. I have considered whether I should give a final decision disallowing the claim for disablement benefit on the ground that there is insufficient evidence before me to show that current disablement is attributable to the only accident that I have identified. However, that is a new issue upon which submissions have not been obtained from the claimant. If the point were a very straightforward one I would take the view that the claimant had foregone her opportunity of dealing with it by choosing not to attend the hearing before me or to be represented at it, but, had she attended and had I raised the issue, she could reasonably have asked for an adjournment in order to consider the point and seek further evidence. In those circumstances, I consider that all further questions arising on the claim for disablement benefit, now that I have decided that the claimant did suffer an industrial accident, should be considered separately by the Secretary of State, so that the claimant will have the opportunity of addressing them.

(signed) MARK ROWLAND

Commissioner

24 January 2003