UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_4582_2002 (14 August 2003)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Barnsley appeal tribunal dated 12 July 2002 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 34 below (Social Security Act 1998, section 14(8)(b)).
2. The claimant has been successful on a point of law in the appeal to the Commissioner. He wanted me, in that event, to substitute a decision on the facts. He did not want to go back before another appeal tribunal. But I have concluded that that is what ought to happen. First, it is desirable that the issues of fact should be decided by a body including members with the medical expertise of medically qualified panel members of appeal tribunals deciding disablement benefit cases. Second, it is be fair to give the claimant the opportunity to give further evidence in person, and possibly to get other people (such as family or friends or work colleagues) to give evidence in person or in writing.

The background

3. The claimant submitted a claim for disablement benefit for what he described as hand arm vibration syndrome, vibration white finger, on 16 January 2001. He had worked as a fabrication plater in various employments from 1954 to 1994. There is no doubt that these occupations involved using tools mentioned in the prescription of prescribed disease A11. Since October 1994 he has not worked in occupations where vibrating tools are used.
4. On the claim form the claimant said that he first noticed tingling and numbness in 1975 and first noticed blanching of fingers in 1988. In describing how the disease affected him he said:

"Hand arm vibration white finger affects me as such that my hands and fingers are always extremely cold and numb. They blanch a lot then turn blue and then red and this gives a burning sensation through the hands and fingers along with pins and needles then tingling. This last for hours, the tingling is always there. The condition affects me both in summer and winter months. In extremely cold weather both hands cramp up. The left one is worse."

He went on to describe problems with the swelling of his fingers and with the muscles and joints of his hand, arms and shoulders, and with fine movement and dexterity of the fingers. He also said that when working in cold conditions and cold steelwork his hands would cramp up and that this got worse over the years.

5. With his claim form the claimant enclosed a report for Occumed Ltd prepared by a Dr C P Herdman, an occupational health physician. This was in the context of a possible civil claim for damages. The report was dated 15 November 2000 and followed an examination on 7 November 2000. The report is long and detailed. I pick out the main points, relating to vascular symptoms rather than sensorineural symptoms. The "symptomatic history" recorded numbness and tingling of the fingers, worse when riding his bicycle and the left hand worse than the right. The left hand was said to seize up in cold weather and the hands to go white and blue in cold weather. Under "vascular symptoms" was the following:

"The Claimant does suffer from his fingers going white on exposure to cold. He first noticed this in 1988. The attacks of white finger happen all year round. He suffers 14 attacks per week in the winter. He suffers 3 attacks per week in the summer. The most common circumstances are when holding a cold steering wheel or riding his bike. When he has an attack, he has difficulty changing gears on his bike. The frequency of the attacks of whiteness are staying the same."

Dr Herdman recorded the extent of blanching on a chart and recorded a blanching score of 12 on the left and 9 on the right. The record of examination in a warm, comfortable room shows that the claimant's fingers were not a normal colour at the time, but that he had blanching of his fingers. Unfortunately, the extent and precise nature of the blanching was not recorded. The results of a battery of objective tests carried out in the Health and Safety Executive's laboratories in Sheffield were recorded. In conclusion, Dr Herdman put the vascular symptoms at 2 on the Stockholm scale and gave the following opinion:

"It is my opinion that this man has Hand Arm Vibration Syndrome. I base this opinion on the history, full medical examination and the objective tests. There is nothing to suggest any other pathology as the cause for his symptoms. I believe the above staging is appropriate."

There was a suggestion that industrial injuries benefit might be payable.

6. The claimant was examined for the Benefits Agency by a doctor on 6 December 2001, who had Dr Herdman's report in front of him. The history taken from the claimant recorded the onset of numbness and tingling, and pains in the fingers, arms and shoulders, in 1975. In answer to the question "Did you ever notice any change in appearance of fingers or hands?", the claimant is recorded as saying the following (I have made some guesses where photocopying has cut off some of the page):

"In 1988 I noticed change but not before. The fingers went white in 1988 approximately and I started getting [weals?] on my fingers. The first time I noticed whiteness it affected the four fingers on both hands from tips to where the ring is. This whiteness comes all the time and it stays for hours in winter and in summer. I ride a push bike every day so it gets worse when I set out on my push bike. My fingers and thumbs tighten up, then I cannot use them."

The doctor diagnosed white changes of fingers, cause unknown, and ticked that there was no evidence that the claimant had suffered from vibration white finger at any time since 5 July 1948. He wrote:

"Claimant developed white changes in fingers. This started in 1988 and remained the same in extent till present. This is not like the gradual evolution of vibration white finger. This condition therefore cannot be diagnosed."

The Secretary of State's decision and the appeal to the appeal tribunal

7. The decision was then given on 12 December 2001 that the claimant was not entitled to disablement benefit as he had not been diagnosed as suffering from prescribed disease A11 (vibration white finger). The claimant appealed. His main point was that as he had been diagnosed as having prescribed disease A11 by Dr Herdman and had been offered £1900 compensation from British Steel's insurers, he should be awarded disablement benefit. The claimant attended the hearing on 12 July 2002. He is recorded as having said that he noticed whiteness of the fingers in 1988. All four fingers of each hand were affected from the tips to the level of where the ring is. The backs of the fingers were affected, but the claimant did not notice it as much on the fronts. They did not go completely white on the fronts of the fingers, just slightly white, whereas the backs were proper white. The claimant was also recorded as saying that he had had difficulty understanding the doctor on 6 December 2001 and had answered as honestly as he could. The medically qualified panel member examined the claimant and the findings were recorded, including that his hands were not immersed in ice-cold water, in view of his recent heart attack.
8. The appeal tribunal disallowed the appeal and confirmed the Secretary of State's decision. In its statement of reasons it concluded that the claimant was not suffering from prescribed disease A11 and continued (paragraph 5):

"The Appellant has stated both to the medical advisor and to the Tribunal that he first noticed whiteness of his fingers in 1988 when it affected all four fingers of each hand from the tips to just below the second knuckle of each finger. The extent of the whiteness had remained the same since then.

The evolution of PDA11 is a gradual one with the whiteness affecting more fingers and more of each affected finger as time goes by and exposure to vibration continues.

The Appellant also described to the Tribunal how the whiteness is a proper whiteness on the backs of his fingers but only a slight whiteness on the fronts. This is not a true circumferential whiteness. Herdman's report does not deal with either of these aspects.

The whiteness of the fingers to the full extent from the onset and the lack of a true circumferential whitening of the fingers is to be interpreted anatomically as meaning that there is unlikely to be blanching within the terms of the prescription.

On balance of probabilities, therefore, the Appellant does not have PDA11."

The appeal to the Commissioner

9. The claimant now appeals against the appeal tribunal's decision with leave granted by Mr Commissioner Rowland. The Commissioner suggested that the appeal tribunal may have been wrong in stating that blanching which was not circumferential could not fall within the prescription, and referred to two Commissioners' decisions on the topic. The appeal was not supported on behalf of the Secretary of State in the submission dated 31 January 2003. It was submitted that Mr Commissioner Henty's decision CI/1807/2002 was to be preferred to Mr Commissioner Rowland's in CI/3596/2001 and that, since it was anatomically unfeasible for blanching as the result of vibration exposure to affect one side of the fingers only, there was no error of law in the appeal tribunal's concluding that there was no blanching within the terms of the prescription. The claimant made a detailed reply and requested an oral hearing, which was granted by Mr Commissioner Rowland.
10. The oral hearing took place at Doncaster County Court on 14 July 2003, after an earlier hearing had to be postponed. The claimant attended. The Secretary of State was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department for Work and Pensions and by Dr Susan Reed of the Department's Corporate Medical Group. I am grateful to all present for their assistance.

The relevant legislation

11. Section 108(1) of the Social Security Contributions and Benefits Act 1992 provides that:

"(1) Industrial injuries benefit shall, in respect of a person who has been in employed earner's employment, be payable in accordance with this section and sections 109 and 110 below in respect of--

(a) any prescribed disease, or

(b) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment),

which is a disease or injury due to the nature of that employment and which developed after 4th July 1948."

The rest of section 108 gives the power to make regulations about prescribing diseases and section 109 provides generally for the benefits payable under section 108 to be the same as those paid for industrial injuries caused by accidents. Section 110 deals only with respiratory diseases.

12. The main remaining industrial injuries benefit is disablement pension. The conditions of entitlement in terms of industrial injury under section 103(1) are that the claimant is suffering as the result of the relevant accident from a loss of physical or mental faculty the extent of the disablement resulting from which is assessed at not less than 14%. Then Schedule 2 to the Social Security (Prescribed Diseases) Regulations 1985 provides:

"In sections 94 to 107 of the Social Security Contributions and Benefits Act 1992 and sections 8 to 10 of the Social Security Administration Act 1992 references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to the relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease."

Thus in prescribed disease cases there can only be entitlement to disablement pension (usually called disablement benefit) if the claimant shows that he is suffering or has suffered from a prescribed disease which has resulted in a loss of faculty and an assessment of the resulting disablement is 14% or more. But that is subject to the general condition at the end of section 108(1) that the disease suffered (and falling within the diseases which are prescribed) is "due to the nature of [the claimant's] employment".

13. Regulation 2(a) of the Prescribed Diseases Regulations provides:

"For the purposes of sections 108 to 110 of the [Contributions and Benefits Act]--

(a) subject to the following paragraphs of this regulation and to regulation 43(3), (5) and (6), each disease or injury set out in the first column of Part I of Schedule 1 hereto is prescribed in relation to all persons who have been employed on or after 5th July 1948 in employed earner's employment in any occupation set against such disease or injury in the second column of the said Part;"

In relation to prescribed disease A11 what is set out in the first column of Schedule 1 is as follows:

"A11. 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 5 finger (including thumb) on one hand, any 3 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, any one of those fingers or, as the case may be, the one remaining finger (vibration white finger)."

The second column lists a variety of prescribed occupations which I do not need to set out as it is agreed that the claimant's occupations down to 1994 were prescribed for the purpose of paragraph A11.

14. Finally, regulation 4(1) of the Prescribed Diseases Regulations provides:

"(1) Where a person has developed a disease which is prescribed in relation to him in Part I of Schedule 1 hereto, other than the diseases numbered A10, A12, B5, D1, D2, D5 and D12 in that Schedule, that disease shall, unless the contrary is proved, be presumed to be due to the nature of his employed earner's employment if that employment was in any occupation set against that disease in the second column of the said Part and he was so employed on, or at any time within one month immediately preceding, the date on which, under the subsequent provisions of these regulations, he is treated as having developed the disease."

The date on which a person is treated as developing a disease, the date of onset, is basically the date on which he first suffers from a loss of faculty resulting from the disease.

15. I have set out the legislation in much more detail than usual because the precise way that the various elements within the conditions of entitlement to disablement pension fit together is central to this case. The existence of the overall condition that the disease is due to the nature of the claimant's employment and the effect of regulation 4(1) of the Prescribed Diseases Regulations are particularly important. In the present case, if the claimant were found to have been suffering from the disease as set out in paragraph A11 of the first column of Schedule 1 (which question I shall call "the diagnosis question") from some date before November 1994, the disease would be deemed to be due to nature of his employment, so that the general condition would be satisfied. But that would be subject to proof, on the balance of probabilities, that the disease was not due to the nature of the prescribed occupation (see Commissioners' decisions R(I) 38/52 and R(I) 4/91). On that issue, the burden of proof under the current adjudication regime lies on the Secretary of State.

The diagnosis of prescribed disease A11

Occupational origin

16. First, I have no doubt that in deciding the diagnosis question the cause of the condition is irrelevant. It is irrelevant at that stage whether the cause was the use of vibrating tools at work or even exposure to vibration from any source at all. Thus cases of primary Raynaud's disease and of secondary Raynaud's Phenomenon (see the extracts from the paper by Dr Reed on Raynaud's Phenomenon which I have copied in the appendix to this decision) not arising from the effects of vibration transmitted through the hands will fall within the diagnosis if sufficient fingers are affected episodically throughout the year. I reject the submission for the Secretary of State that the words "vibration white finger" in brackets at the end of the first column of paragraph A11 of Schedule 1 to the Prescribed Disease Regulations by inference create a test as part of the diagnosis question of a causal connection with exposure to vibration transmitted through the hands. In my view those words do no more than supply a convenient label for the prescribed disease, rather than a number. For the cause of a disease to be part of the diagnosis question there must be an explicit link in the appropriate paragraph in the first column, as there is, for instance, for occupational deafness (A10), allergic rhinitis (D4) and occupational asthma (D7). In the ordinary case, of which A11 is one, the necessity for an occupational connection comes from the overall condition in section 108(1) of the Contributions and Benefits Act, subject to the presumption in regulation 4(1) of the Prescribed Diseases Regulations.

Blanching

17. Second, I accept the submission for the Secretary of State that in its context "blanching" means something more than the normal paleness in the extremities experienced on exposure to cold, when the blood supply to the peripheral arteries will reduce to protect the system as a whole. It was submitted that it requires the intense whiteness, a profound deathly white, described in Dr Reed's paper on The Blood and Nerve Supply to the Hand (which I have copied in the appendix to this decision, although it is subject to some qualifications below). I have no doubt that such an effect is characteristic, but I decline to rule in law that "blanching" is restricted to that meaning. What is blanching in any particular case must be a matter for the medical expertise and experience of the medical advisors who carry out examinations and medically qualified panel members of appeal tribunals.
18. I take that view partly because of some of the evidence presented to Pitchford J in R (on the application of the National Association of Colliery Overmen, Deputies and Shotfirers) v Secretary of State for Work and Pensions [2003] EWHC 607 (Admin), 1 May 2003. I was not referred to that decision, which was about whether the Department's Notes on the Diagnosis of Prescribed Diseases should be amended to state that a negative result on cold water provocation testing was of no diagnostic value for prescribed disease A11, in the present case. In the 1993 report of a Working Party of the Royal College of Physicians, entitled Hand-transmitted Vibration, Clinical Effects and Pathophysiology, paragraph 2 of chapter 1 described attacks of episodic blanching, with a pattern of blue/white discolouration followed by redness. That might be consistent with what Dr Reed said in her paper referred to in the previous paragraph, that on re-warming the affected areas become cyanosed (blueish in colour), due to low blood-oxygen levels, and then very red, due to a rebound of excessive oxygen (reactive hyperaemia). That might also be consistent with paragraph 505 of the Medical Assessment Framework (of which Dr Reed was apparently a principal author, and which was part of the evidence in the NACODS case), where the colours on recovery were described as greyish-blue and very red. However, in Pitchford J's discussion of individual cases there was evidence of doctors regarding some mottling as amounting to blanching, which the judge did not rule out, especially if it could amount to blue/white discolouration. In view of those difficulties I should not trespass on areas of expert medical judgment.

Circumferential blanching

19. Third, I am satisfied that, contrary to the view expressed by Mr Commissioner Henty in CI/1807/2002 and contrary to the submissions for the Secretary of State, it is not a requirement for the diagnosis question's being answered in favour of a claimant that the blanching of the fingers should be circumferential. The submission for the Secretary of State was that, for the reasons given in Dr Reed's paper, it was not anatomically feasible for the front of the fingers (ie the palm side) to be affected by blanching, but not the backs. Therefore, it was said, when the word "blanching" was used in the prescription it must, by necessary inference, have meant circumferential blanching. I do not agree. The words of the prescription should be taken as they are, without adding any artificial restrictions. That is not to say that evidence to the effect that blanching of the fingers is not circumferential is not relevant at other important points in the decision-making process, as I discuss in paragraph 21 below.
20. In addition, Dr Reed made what seem to me important concessions at the oral hearing. She had already said in her paper that the exact microscopic pathological process causing the symptoms of Raynaud's Phenomenon is unknown. I understand that to mean that while it is known that chronic exposure to vibration transmitted through the hands causes intermittent constriction of arteries and arterioles on exposure to cold, it is not known how the vibration produces the damage which has that effect. She went on to say that nothing in medicine is absolute and that propositions must be taken as describing normal circumstances, leaving the possibility that in unusual circumstances a proposition will not hold good. So she suggested that an individual might have some peculiarity of anatomy which meant that only one side of the fingers was affected or that only one side exhibited the classic blanching rather than some other discolouration. She also suggested that, as it is known that the use of particular tools can affect specific fingers, it could possibly be that the use of an unusual vibrating tool or the use of some unusual technique by the person concerned might lead to a particular area of the fingers being spared damage and the pattern of blanching being limited or concentrated on one side of the fingers. In my judgment, once such concessions are made, the argument of law that blanching must mean circumferential blanching must fall away.
21. For those reasons, I respectfully decline to follow the approach in law adopted by Mr Commissioner Henty in CI/1807/2002. I prefer the approach of Mr Commissioner Rowland in CI/3596/2001 and disagree with Mr Commissioner Henty that that decision was reached per incuriam. In CI/3596/2001 it was said that blanching "of the palmar side of the fingers only may be an atypical condition but it is sufficient to meet the terms of the prescription and that is what is relevant when it is being determined whether or not a claimant is suffering from a prescribed disease or injury". I agree.
22. How then can an appeal tribunal deal with a case in which the history given by a claimant is of blanching affecting one side of the fingers only? One possibility was suggested in CI/3596/2001, that the atypical nature of such circumstances might be a reason to doubt the history given by the claimant. That is certainly a relevant factor, which would have to be weighed by an appeal tribunal along with all the other evidence and all the other factors pointing both in favour of and against a claimant's case. For the doubt might go in either direction. A claimant might be unobservant and have failed to notice the circumferential nature of the blanching (although it is also said that blanching once experienced cannot be mistaken). Or there might be a doubt that a claimant's memory was accurate or that he was telling the truth about the exact nature of the changes in colour of the fingers or the extent of the effect.
23. A second possibility mentioned in CI/3596/2001 was that a lack of circumferential blanching might indicate that the disease was not due to the nature of a claimant's employment. I am not quite sure how that would work if what is important is the basic anatomy of the blood vessels in the fingers. Presumably, primary Raynaud's Disease and secondary Raynaud's Phenomenon would also typically affect both sides of the fingers. But whether that is so or not is a matter of medical judgment that, again, should be left to those with the proper expertise. For now, the essential point is that, if an appeal tribunal considered that this possibility existed, it would not be relevant to the diagnosis question as I have defined it. It would be relevant to the separate question of whether the disease was due to the nature of the claimant's employment and that question would have to be considered separately because of the burden on the Secretary of State to displace the presumption in regulation 4(1) of the Prescribed Diseases Regulations.

Sudden onset

24. Similar points arise where there is evidence of a relatively sudden appearance of blanching affecting a finger or fingers to a significant extent, rather than a gradual spread of the extent of the blanching from the tips of the affected fingers down towards the base. It is no part of the diagnosis question as I have defined it that there should have been a gradual spread of blanching. If enough fingers are affected by blanching to the prescribed extent that is sufficient. However, evidence of the way in which the blanching started and spread, if it did, will be relevant, together with other relevant evidence (such as whether blanching or tingling started before the first use of vibrating tools, whether it started only after such use had stopped and the relation of the spread of blanching to continued use of such tools), to the issues of whether the history given by the claimant is to be accepted and of whether, if A11 is diagnosed, it is due to the nature of the claimant's employment.
25. I must again not trespass on areas of medical expertise, but Dr Reed put forward some helpful points. These must be subject to the same warning that there may be unusual cases which deviate from the norm. She said that the first symptom is usually tingling and that blanching usually begins to develop later, I think in vibration-induced cases first in the finger or fingers most subject to vibration. She said that it was anatomically unfeasible for blanching to develop overnight and that one would expect the smallest blood vessels towards the tips of the finger to be affected first and for the blanching to spread gradually, if there was continuing exposure to vibration, to the larger blood vessels further down the finger. She also said at the oral hearing that in cases of primary Raynaud's Disease the blanching tended to spread more quickly than in cases of secondary Raynaud's Phenomenon. However, she said that, if a person had some genetic predisposition to the condition, blanching due to exposure to vibration might spread relatively quickly. That seems to me to suggest, subject to medical judgments in particular cases, that although a history of a very sudden onset of extensive blanching might be looked at with suspicion, a more rapid spread of blanching than usual would not in itself point to the diagnosis question being decided against a claimant. The diagnosis question itself does not distinguish between primary and secondary forms of the condition, but is limited to the existence and extent of the particular symptom of blanching. However, a rapid spread might be relevant as a factor, along with all the other relevant evidence, in deciding whether the Secretary of State had displaced the presumption that the prescribed disease was due to the nature of a claimant's employment.

Did the appeal tribunal err in law?

26. The appeal tribunal did go wrong in law, by failing to make adequate findings of fact or give an adequate explanation of its conclusion, in a way which leaves it impossible to say that it applied the right legal meaning to prescribed disease A11. The issue turns on what the second paragraph on the second page of the statement of reasons means:

"The whiteness of the fingers to the full extent from the outset and the lack of a true circumferential whitening of the fingers is to be interpreted anatomically as meaning that there is unlikely to be blanching within the terms of the prescription."

The conclusion immediately following was that the claimant did not have prescribed disease A11 and the Secretary of State's decision which was confirmed was that the claimant had not been diagnosed as suffering from prescribed disease A11 and so was not entitled to disablement benefit.

27. If the appeal tribunal meant that it found, because of the factors mentioned, that the claimant did not have the extent of the whitening which he had described in his oral evidence and written statements, it should have said so expressly. If the claimant's evidence on that was being rejected, he was entitled to be told that clearly. The appeal tribunal did not do those things. On the meaning assumed above, the appeal tribunal left the claimant in the dark about how far his evidence was accepted or rejected and thereby erred in law. The same would apply if the appeal tribunal meant that it accepted that some whitening occurred as the claimant had described, but that it was not blanching within the meaning in paragraph 17 above. Such a conclusion would have to have been spelled out clearly.
28. If the appeal tribunal meant that it accepted that the claimant experienced the extent of whitening which he had described, but that that did not allow the diagnosis question to be decided in his favour, that reasoning embodied an error of law. Such a conclusion could only have been reached on one or both of the following bases, that circumferential blanching and a gradual onset were requirements for the deciding the diagnosis question on prescribed disease A11 in favour of a claimant or that an occupational origin was a requirement for doing so. For the reasons explained above, as a matter of law none of those matters is a bar to the diagnosis of prescribed disease A11 if it is found that the symptom of blanching is present to the required degree. On this assumption as to the appeal tribunal's meaning (which I think is the most likely one), it adopted a false proposition of law.
29. If the appeal tribunal meant that it accepted that the claimant had suffered from the disease as set out in column 1 of paragraph A11 of Schedule 1 to the Prescribed Diseases Regulations from 1988, but concluded that he was not entitled to disablement benefit because the disease was not due to the nature of his employment in a prescribed occupation, there was no adequate explanation of that conclusion. There was no recognition of that being a separate issue from that of diagnosis or that the burden of proof was on the Secretary of State to displace the statutory presumption in favour of the claimant. Nor, if that was the issue which the appeal tribunal thought was decisive, was there any notice of that to the claimant. He therefore did not have a fair opportunity to deal with that issue, if it was in truth the real basis for the appeal tribunal's decision. Therefore, on the assumption of this paragraph the appeal tribunal went wrong in law in several ways.
30. Thus, whatever the appeal tribunal intended to express, it went wrong in law in some way or other. And the failure to make clear the true basis of its decision was a further illustration of inadequate reasoning.

The Commissioner's decision

31. For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law. As explained briefly in paragraph 2 above I have concluded that I should not substitute a decision on the claimant's appeal against the decision dated 12 December 2001. To expand slightly on those reasons, the claimant told me at the oral hearing that he had got muddled at the appeal tribunal about the fronts and backs of his finger and had given some "silly" answers to the examining doctor on 6 December 2001. It is plain from what I have said above that evidence of just how and when blanching of the fingers started and progressed will be very relevant to the claimant's case. It is fair to give him a further opportunity to give direct evidence himself in person and, if necessary, to explain what he is recorded as having said in the past. It is also fair to give him the opportunity of producing evidence from other people about the start and progress of blanching. By the same token, the Secretary of State may wish to develop points made about the claimant's case, such as the point that, if the claimant had been suffering the extent of blanching described for the lengths of time and at the frequency described, irreversible tissue damage would have been expected, which is not in fact present. The claimant should have the opportunity to answer any such points.
32. The claimant naturally puts a lot of weight on Dr Herdman's report and the results of expert testing. However, so far as the claimant's condition as at 1988 and while he was working is concerned, rather than his condition as at the date of the report in November 2000, the claimant's own evidence is vital. And the evidence put before the court in the NACODS case has emphasised the limitations of "objective" testing when the concern is the diagnosis of the very specifically defined condition of prescribed disease A11. It seemed eventually to be agreed there that a cold water provocation test carried out under acceptable criteria could be used as one diagnostic tool in the sense that a positive result could be regarded as a factor pointing towards a diagnosis, although a negative result should not be regarded as a factor pointing the other way. But it is still the case, regardless of the merit or otherwise of points made on behalf of the Secretary of State (such as to question Dr Herdman's expert status and to draw attention to the lack of the detail in his observation that the claimant had blanching of the fingers on examination), that other evidence from the claimant is important for his appeal.
33. Accordingly, I refer the appeal against the decision dated 12 December 2001 to a differently constituted appeal tribunal for determination in accordance with the following directions.

Directions to the new appeal tribunal

34. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 12 July 2002. The new appeal tribunal must follow the legal approach set out in paragraphs 16 to 25 above, carefully identifying the different questions within the conditions of entitlement for disablement benefit and applying the proper burden of proof to each question that becomes relevant. I need give no further directions of law. The evaluation of all the evidence will be entirely a matter for the judgment, including expert medical judgment, of the members of the new appeal tribunal.

(Signed) J Mesher

Commissioner

Date: 14 August 2003