UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CI_1884_2004 (22 February 2006)

CI 1884 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. I set it aside.
2. Mr H, the claimant and appellant, appeals with permission of a chairman. The tribunal refused Mr H's appeal on 01 03 2004 under reference U 42 031 2004 00198.

DIRECTIONS FOR REHEARING

3. (A) The appeal is to be heard by a new tribunal not including any member of the tribunals that have previously heard this case

(B) The new hearing is to be an oral hearing

(C) The district chairman is asked to note the directions to the new tribunal at the end of this decision and is asked to consider whether a medical member with any particular expertise should be a member of the new tribunal.

(D) If the appellant and representative, and the secretary of state's representative, have any further evidence they wish to place before the tribunal, they are to send this to the tribunal within one month of issue of this decision.

This is subject to any further direction by a district chairman.

REASONS FOR THIS DECISION

The claim

4. Mr H claimed industrial injuries disablement benefit in November 2003. He is suffering from Raynaud's phenomenon as a result of vinyl chloride poisoning used in the making of PVC (polyvinyl chloride). He worked with vinyl chloride from 1969 to 1975. An appeal tribunal allowed prescription of the disease for Mr H in September 2003. The industrial origin of Mr H's problems is therefore not in dispute in this case. But Mr H's claim was identified by the tribunal as a claim for benefit for prescribed disease ("PD") C24(b) and not a more usual claim of "vibration white finger" in the form recognised by PD A11.
5. An examining doctor reported after examination in November 2003 that "in accordance with the current guidelines for diagnosis of PD C24b there has to be coexistent raynauds, sclerodema and osteolytic changes in the terminal phalanges of the fingers, and unfortunately this to not appear to be the case here, so PD C24b cannot be diagnosed". It is common ground that Mr H does have "Raynaud's" or white finger, but not any lytic destruction of the terminal phalanges of his fingers.
6. The tribunal found that the examining doctor was correct in considering that both conditions are required for Mr H to qualify for benefit. It refused his appeal. But another tribunal at the same location came to a different view about the extent of C24b in an appeal about another, similar, claim a few weeks before this case. And I understand that there are some other cases also before tribunals. No doubt this was why the chairman granted permission to appeal. However, to avoid doubt, there is no question that this tribunal was wrong in law in not following the previous tribunal even if (which it and I do not know) the facts were substantially the same.

The prescription of C24(b)

7. The current prescription of C24(b) came into effect on 17 March 2003 under SI 2003 No 270, subject to transitional provisions. Regulation 5 of those regulations substitutes the following entry in the Schedule to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 ("the Schedule"):

"C24

(a) angiosarcoma of the liver exposure to vinyl chloride monomer

(b) acro-osteolysis characterised by in the manufacture of polyvinyl chloride.

(i) lytic destruction of the terminal phalanges,

(ii) in Raynaud's phenomenon, the exaggerated vasometer response to cold causing intense blanching of the digits, and

(iii) sclerodermatous thickening of the skin;

(c) liver fibrosis."

The statutory instrument was made by the Secretary of State in response to a report of the Industrial Injuries Advisory Council (IIAC). The statutory instrument recites that the IIAC was consulted before it was signed by the Minister of State on behalf of the Secretary of State.

The tribunal decision

8. It was argued before the tribunal for Mr H that it was sufficient that he had only one of the three conditions listed for C24(b). The tribunal did not agree.

The decision reads:

"Our decision is based on a strict reading of the prescription of C24(b) set out in part 1 of Schedule 1 to the Social Security (Prescribed Diseases) Regulations 1985.

The prescription, on the face of it, requires that each (our emphasis) of three criteria are satisfied in order that the condition can be diagnosed. For Mr H it was conceded that he does not suffer from lytic destruction of the terminal phalanges, and there is no evidence that he does. He therefore does not satisfy the first of the three listed criteria. In our view, he does not, upon that basis alone, meet the prescription for C24(b). It is accepted, and well evidenced, that Mr H suffers from Raynaud's phenomenon, which is the second of the three listed criteria and it is submitted on Mr H's behalf that he meets the prescription. We do not agree. The use of the word "and" is clear and unambiguous. To obtain the result that is required for Mr H, the word "or" would need to be used or some other formulation that would indicate that the presence of any of the listed criteria would be sufficient to meet the prescription.

We have had shown to us CM 5395 of February 2002, which is a report of the IIAC under section 171 of the social Security Administration Act 1992. It appears to have recommended (and the recommendation accepted by ministers) that PD C24 should consist of five separate conditions, C24(b) comprising three of them. Notwithstanding that, the regulation has been worded as we find it to have been. It is not within our powers to rewrite a clear regulation, that is a matter for the Secretary of State. If there has been a drafting error however, we would hope that it could be rectified as a matter of some urgency."

9. The tribunal also issued a full statement that repeated the analysis in the decision, including the use of the description "strict reading". It added that the argument for Mr H was strengthened by the inclusion of "in" in (b)(ii) which, it accepted, on its interpretation was a redundant word.
10. The papers before the tribunal include a letter from the Minister who signed the amending regulations and a number of what appear to be internal policy papers. I am not sure that most of these papers were properly put to the tribunal. I can see no proper basis for taking note of the letter of the Minister, even though he was the minister who signed the statutory instrument. The letter is not part of any official enactment process and is not in any way made to Parliament. Nor should I or the tribunal be assisted by, or even have sight of, internal policy considerations behind the formal processes reported above. However, I take from the proper submissions to the tribunal and to me the official view that the policy behind the amendments in the statutory instrument is that "the law should follow the medicine". That is, however, in my view no more than a policy affirmation of the legislative procedures laid down in section 108 of the Social Security Contributions and Benefits Act 1992 when read with section 172 of the Social Security Administration Act of that year.

Submissions of the parties

11. I directed a full submission from the Secretary of State about the appeal, and I am grateful to Mr David Kendall for the extremely thorough submission provided. This strongly supported the tribunal's "literal" interpretation, and argued against "a loose interpretation" (his terms). He argued this on the same grammatical grounds as the tribunal, and also by reference to what he contended was the medical description of acro-osteolyis. He also commented on the width of the scope of Raynaud's phenomenon. He further commented on the extent to which it was proper to look beyond the literal words of the law to context and supporting documentation.

He dealt thoroughly with some procedural issues that had arisen prior to this tribunal's decision, and concluded that the tribunal had taken the correct approach.

12. Mr Kendall also submitted an extract of a paper from Dr Susan Reed, BSc, MB, ChB, DipOccMed, DDAM, DFFP, of the DWP Corporate Medical Group. This asserts that acro-osteolysis is present only if all three of the components listed above are present. I say "asserts" because there is no attempt in the note to justify the assertion that all three elements of the disease must be present for the disease itself to be present by reference to published evidence.
13. Mr H's representative argued strongly that the approach of this submission was wrong and misinterpreted the IIAC report. He suggested I ask the IIAC for assistance. I did not consider that appropriate. But I did take the view that this was a case where I could call upon the rarely used powers of a Commissioner under section 16(6) of the Social Security Act 1998 to seek the assistance of an expert. I have no hesitation in taking the view that the questions of fact in this case are of special difficulty. Any claim for a "C" prescribed disease is rare, but its consequences may be most serious as they are all cases of toxic poisoning. I could find no authority in either court decisions or those of my present or past colleagues stating how I should deal with this disease, or with the terminology that was used in formulating its prescription. And I had submissions before me that argued on the one hand that "the law followed the medicine" and that the Secretary of State had implemented the recommendations of the IIAC and on the other hand that it did not and he had not.

Is C24(b) clear and unambiguous?

14. I do not consider that the interpretation given by the tribunal is the obvious and only interpretation. I am strengthened in this view by the knowledge that at least one other tribunal has taken a different view. I also hesitate to accept without further thought an interpretation of an industrial injuries measure said to be based on a "strict reading". As I comment below, there is long standing precedent of the highest authority for saying that that is an entirely inappropriate approach to this legislation. Further, the tribunal appears, in adopting its "strict" reading, to have spent time looking only at the grammatical significance of the "and" and not taking into account the full context of the phrase in which the "and" appears ("characterised by … and …") or the use of that phrase elsewhere in the Schedule. And the tribunal itself, in its reasons, found that this "strict reading" left it with a redundant word.
15. The core of the proper interpretation of the prescription, and whether it is cumulative or several in its reference to the three separate physical conditions listed, lies in the approach to be taken to the way in which it states that acro-osteolysis is "characterised by (i) …, (ii) …, and (iii) …" In my view, the precise content of each of the conditions labelled as (i), (ii) and (iii) are a matter of indifference to the proper interpretation of this form of linkage. But I do not have the same problem as the tribunal with the "in" in (ii). It serves, in my view, to make clear that it is only some aspects of Raynaud's phenomenon that fall within the prescription.
16. The drafting approach of using "characterised by" does not appear to have been adopted in the Schedule before the amendments in 2003 by the statutory instrument that introduced this phrase to C24(b). Nor can I see any other legislative or judicial history of the use of the phrase in any other context. It is, for example, not in Stroud's Judicial Dictionary or in the lists of defined words and phrases in the standard law reports indices. I am, however, aware of the wide use of the phrase in medical, and in particular medical research, publications. "Characterised by" now appears also in the prescriptions of three other of the "toxic poison" prescribed diseases: C2, C5A and C5B. the terms of prescription are:

C2 Central nervous system toxicity characterised by parkinsonianism

C5A Central nervous system toxicity characterised by tremor and neuropsychiatric disease

C5B Central nervous system toxicity characterised by combined cerebellar and cortical degeneration

Having cited those other references, I find them of little help. C5A suggests that the two conditions in C5A should be read as cumulative, but the inclusion of "combined" in C5B tends to suggest that otherwise they would be read disjunctively.

The more general similarity of the prescriptions is also somewhat misleading as the do not reflect the different toxins involved. C2 arises from exposure to manganese, C5A from sustained exposure to mercury (it was what used to cause hatters to go mad) and C5B from methylmercury.

17. Those doubts, and the lack of contextual guidance, lead me to take the step that the tribunal rejected, and to turn to the IIAC report.

Industrial Injuries Advisory Council reports

18. It is well established that a relevant report of the IIAC can assist interpretation of a statutory provision made following one of its reports. And, as was rightly pointed out by the secretary of state's representative, account should be taken of the consultation of the IIAC before the instrument was signed. As the approach to be taken both to the IIAC report and to interpretation of this legislation are central to this decision, I pause to note the authority for that proposition.
19. Early authority is found in the decision of the Tribunal of Commissioners in R(G) 3/58. The headnote to that decision summarises the position of the Tribunal in that appeal concisely: "the regulation was not ambiguous, but if it had been the report of the National Insurance Advisory Committee and the Minister's Statement under section 77 of the National Insurance Act 1946 could have been considered to resolve that ambiguity." The equivalent provision is now in sections 172 to 174 of the Social Security Administration Act 1992. The process for reference to the IIAC and reports from it are not identical to that for the (now) Social Security Advisory Committee, but are substantially similar. The Tribunal of Commissioners deciding R(M) 1/83 endorsed the continuing validity of the analysis in R(G) 3/58.
20. The decision of a Tribunal of Commissioners in R(I) 15/75 took account of an IIAC report, but the Tribunal divided on how it assisted. The appeal concerned an amendment to the prescription for occupational deafness. The precise task was to interpret "occupation involving the use of … tools". Both parties sought assistance from the relevant IIAC report. The majority, including the then chief Commissioner, found it unnecessary to refer to the report because "in our view read in their true context the crucial words which we have to construe are not ambiguous." This was because they took the view that the words must bear the same meaning wherever they appeared in the Schedule (they appeared several times). They also took the view that the argument for the claimant would give the phrase a wider meaning in the context of that prescribed disease to its meaning in relation to other prescribed diseases. I have followed the approach of the majority in this decision in looking at the context of "characterised by … and" elsewhere in the Schedule.
21. Commissioner Watson QC dissented. His starting point was that:

"21 The provisions of the industrial injuries legislation are for the benefit of the worker; they are the successors to the Workmen's Compensation Acts. They should be given a beneficial construction and, were permissible, a wide rather than a narrow construction and construed not in a technical but in a popular sense. (Compare Lyson v Knowles [1901] AC 79, Lord Halsbury LC at p 84-5; Smith v Coles (1905) 2 KB 827, Romer LJ at p 830-1 … Ball v Hunt [1912] AC 496, Lord Loreburn LC at p 499; Tannoch v Brownieside Coal Co Ltd [1929] AC 642, Lord Atkin at p 648."

Although it is not part of the decision, I cite that paragraph as a salutary reminder of the approach traditionally taken on the basis of high authority to the interpretation of the statutory law in this area. Lord Loreburn LC took as given in the passage cited that it was "the ordinary and popular meaning which we are to attach to the language of this statute". The legislation under which diseases are currently prescribed is derived directly from the Workmen's Compensation Acts. It is clear beyond peradventure that a "strict" approach to reading this legislation is entirely misplaced. And any "literal" interpretation such as that advocated for the Secretary of State in this case must follow the approach of the Lords Chancellor Halsbury and Loreburn. I therefore regard as entirely misplaced the suggestion from the secretary of state's representative that anything other than the tribunal's "strict" interpretation would be "loose" and therefore wrong.

22. In R(I) 15/75 the dissenting Commissioner went on to disagree with his colleagues on the need to have consistent interpretation throughout the Schedule, and then to give the phrase in issue a wider meaning that that given by the majority. I have not followed him in that approach in this case. In R(I) 2/85 a Commissioner drew on the views of the majority in R(I) 15/75, and of the Tribunal in R(M) 1/83, in taking account of an IIAC report when interpreting faultily drafted industrial injuries benefit legislation. Reference should also be made to the decision of the Tribunal of Commissioners in R(I) 11/81. Citing the decision of the House of Lords in Black-Clawson International Ltd v PapierWerke [1975] AC 591, the Tribunal held that "we are entitled, and ought" to have regard to an IIAC report to consider the mischief that the regulations under consideration, in their amended form, were intended to remedy. This was cited by the Commissioner in R(I) 3/95 in relying on an IIAC report in her decision. Another Commissioner relied on the same authority in R(I) 4/99 when consulting an IIAC report when wording is unclear and ambiguous but not if it is clear and unambiguous.

Cm 5395

23. The IIAC reported to the Secretary of State on Conditions due to Chemical Agents in February 2002 as Cm 5395. The report noted that there were very few claims for any of the "C" diseases. It nonetheless reviewed every "C" disease. It reported relatively briefly on C24 at pp 51-3. It first noted at paragraph 212 the then current terms of prescription. These were:

"C24(a) Angiosarcoma of the liver

C24(b) Osteolysis of the terminal phalanges of the fingers

C24(c) Non cirrhotic portal fibrosis."

I do not repeat the definitions of prescribed occupations as they are not in dispute. However, they are limited to exposure linked to polymerisation of vinyl chloride monomer. Paragraph 215 records representations that "diseases may sometimes result from exposure to polyvinyl chloride".

24. In paragraph 216, headed "Current evidence" there is a general comment on exposure to vinyl chloride monomer as follows:

"Inhaled VCM (vinyl chloride monomer) can cause three diseases: acro-osteolysis, liver fibrosis and angiosarcoma of the liver. In addition, some studies have linked it with other cancers, and other have suggested a hazard also from polyvinyl chloride."

The paragraph then comments expressly on (a) angiosarcoma of the liver, (b) acro-osteolysis, (c) fibrosis of the liver, (d) other cancers, and (e) polyvinyl chloride. The comment under the heading "(b) acro-osteolysis" is:

"Acro-osteolysis is characterised by:

lytic destruction of bone particularly – but not exclusively – involving the terminal phalanges of the fingers

Raynaud's phenomenon – an exaggerated vasomotor response to cold, which primarily involves the hands with blanching of the fingers.

Sclerodermatous thickening of the skin which often develops in the

hands but may also involve skin in other parts of the body, including

the face."

25. In paragraph 217 the IIAC recommends, without further comment, that the prescription of C24 should be amended as follows:

"a) Angiosarcoma of the liver;

b) Acro-osteolysis characterised by lytic destruction of bone, particularly involving the terminal phalanges of the fingers;

c) Raynaud's phenomenon;

d) Sclerodermatous thickening of the skin, particularly but not exclusively of the hands;

e) Liver fibrosis."

These are recommended to be prescribed for those whose work involves "exposure to vinyl chloride monomer in the manufacture of polyvinyl chloride."

26. The report therefore shows that IIAC recognised and recommended the prescription of five separate conditions to replace the then existing C24 as arising from exposure to vinyl chloride monomer. In that context, I read paragraph 216 of the IIAC report as a clear statement that on the then current clinical evidence there were three separate conditions that it placed in its review under the umbrella head of acro-osteolysis, and two further conditions separately arising from vinyl chloride exposure, all of which as a matter of the clinical evidence separately met the prescription test of section 108(2) of the Contributions and Benefits Act 1992.
27. This is of considerable importance in interpreting the regulation actually implemented, because the Secretary of State has clearly rejected the formulation in the formal recommendation in paragraph 217 and based the new wording instead on the formulation used in paragraph 216. But it is clear to me that when paragraphs 216 and 217 are read together, the IIAC used "characterised by" disjunctively and not conjunctively in paragraph 216. The Secretary of State has also clearly taken a view that a limit should be placed on the terms of prescription of Raynaud's phenomenon, and this has also been achieved by using the paragraph 216 wording and rejecting the paragraph 217 wording.
28. This conclusion caused me some concern as I am clearly not an expert in the field. This is because it seemed clear to me that the IIAC was saying that the three conditions now listed in C24(b) separately warranted prescription, while the submission before me for the Secretary of State contended that "the medical description of "acro-osteolysis as an occupational disease suggests that all three sets of symptoms must concur in each case" (paragraph 4 of the submission for the Secretary of State of 20 October 2004. That submission appeared to me to be in conflict, as a matter of medical fact, with the views of the IIAC.

An expert view

29. To take the matter further, I issued a direction inviting the Secretary of State to provide me with expert medical advice on the proper interpretation of the new form of the regulation. I asked for guidance on the medical meaning of "acro-osteolysis" and also what was meant by saying that acro-osteolysis was "characterised by" the three listed conditions. I am grateful to those representing the Secretary of State for accepting that invitation and seeking advice for me from an independent expert. I record that this was also accepted for Mr H and that both parties have seen the report and have consented to my relying on it without the need for an oral hearing or further examination.
30. I have received a full report from Dr Sumra Dar, MB, ChB (Birmingham), MFOM, an occupational health physician with Grosvenor Health Ltd. I asked the doctor specific questions in a written direction seen by both parties. I do not repeat the direction beyond the extent necessary to make sense fairly of her answers.

In reply to a general question about the change in the prescription of acro-osteolysis, Dr Dar responded:

"The change in the description of the prescribed disease from "osteolysis of the terminal phalanges of the fingers" to "acro-osteolysis characterised by (a) lytic destruction of the bone particularly – but not exclusively – involving the terminal phalanges of the fingers, (b) Raynaud's phenomenon – an exaggerated vasomotor response to cold, which primarily involves the hands with blanching of the fingers and (c) sclerodermatous thickening of the skin which often develops in the hands but may also involve skin in other parts of the body, including the face" is somewhat confusing as "acro-osteolysis" in its widespread meaning within the medical profession only describes the bony changes that occur. Therefore the change from 2003 to the current description has in my opinion used the incorrect term to describe the changes that may occur with vinyl chloride exposure. A more appropriate term would have been "vinyl chloride disease" but this may also include a variety of other systemic affects apart from those described.

The "acro-osteolysis" definition that has now been applied to the prescribed disease associated with vinyl chloride is a narrower description than the "osteolysis" that was previously applied because it would appear from the phrasing of the term currently used, all three of these changes would be required before a prescribed disease is diagnosed and Industrial Injury Disablement benefit is awarded rather than just the bony changes that were required in 2003."

31. I also asked whether, in this specific context, there was any medical meaning behind the used of the phrase "characterised by". Dr Dar commented:

"The term "characterised by" is defined in the Oxford English Dictionary as describing the distinctive character of something. As exposure to vinyl chloride can result in a number of discrete pathologies, I feel that in this context "the term has no specific medical meaning and/or is ambiguous in medical practice so as to be used in its ordinary meaning"."

[The words in inverted commas are quoted from my request for advice. I had asked for any specific meaning of the phrase as a matter of medical expertise, and offered a number of possible meanings. This phrase was the final, residual, meaning I suggested.]

32. Dr Dar confirmed her views that any of the three conditions listed in C24(b) could occur independently of the others in the following terms:

"In summary therefore it appears that a number of symptoms have been reported in the literature as being associated with vinyl chloride exposure in workers. However each of these individual changes may occur separately although it appears that the Raynaud's phenomenon may be an initial, or sentinel, event indicating that other changes may occur. "

33. Dr Dar set out a list of 17 papers (some of which themselves appear to be review papers) from which she drew her conclusions, and which evidence a broad literature survey.
34. I derive the following conclusions from the submissions and evidence now before me.

(1) The report of the IIAC in 2002 was somewhat ambiguous in its phraseology when read as a whole but was aimed at widening the scope of prescription of C24 on the basis of evidence that satisfied it that the conditions of section 108(2) were met;

(2) As a matter of medical usage "acro-osteolysis" properly describes only the first of the three conditions listed in the current formulation of C24(b);

(3) The use of the term "characterised by" in paragraph 216 of the IIAC report was a disjunctive use;

(4) The use disjunctively of "characterised by" by the IIAC in that paragraph is entirely in keeping with medical knowledge as reviewed by Dr Dar;

(5) The interpretation of C24(b) adopted by the tribunal and supported by the Secretary of State does not follow from, and is not supported by, either the medical conclusions of the IIAC report or the additional medical evidence I have seen.

(6) The current prescription of C24(b), as interpreted and applied by the Secretary of State, is narrower than the prescription it replaces.

How should C24(b) be interpreted?

35. I see no value in embroidering this discussion further with other cases about interpretation or about the meaning of "and". There are none about "characterised by". A "strict" approach to the text of C24(b) is clearly wrong in principle. An approach that takes into account the underlying tests in section 108(2) of the 1992 Act and the report of the IIAC as background to an amendment of existing legislation is clearly appropriate in this case.
36. In the light of the report, and the legislative and factual contexts of the amendment I must interpret, I am satisfied that C24(b) as currently drafted has no one clear meaning. I do not regard the "and" in isolation as concluding the debate, as the tribunal did and as the Secretary of State argues. As Stroud's Judicial Dictionary chronicles, "and" can mean "or" if the context forces that interpretation. That coincides with at least some popular usage, if not the primary meaning, of the term. More to the point, the phrase that gives the "and" its context must be read as a whole.
37. What, to use the old term, was the mischief behind the amendments introduced by the 2003 statutory instrument? That is clear from the IIAC report. I follow strong authority from Commissioners as well as a time-hallowed approach to statutory interpretation if I look to the intention behind the amendment in interpreting how that amendment is to function. It was undoubtedly to widen the scope of C24(b). That is the whole purport of the IIAC report on which the amendment was based. The interpretation for which the Secretary of State contends undoubtedly narrows the scope of C24(b). A disjunctive interpretation of the phrase "characterised by … and" not only follows the use of that phrase by the IIAC in the context from which the drafter clearly took it, but also the medicine. It also achieves the underlying purpose of the legislation. I do not see that this analysis is affected by the assent of the IIAC to the regulations as signed into law. That cannot alter the terms of the IIAC report itself or the medical conclusions on which it relied. And, indeed, it may reflect the ambiguity I find in the formulation adopted. I do not know if the IIAC, in assenting, was aware of the interpretation to be put on the regulation by the Secretary of State.
38. Although I anticipate that only a few individuals will be affected by this decision and it is one of considerable difficulty, it is nonetheless of considerable importance to those few. I have formed the view for the reasons set out above that the tribunal was wrong in its interpretation and the Secretary of State is wrong in his assertions that the tribunal adopted the only interpretation possible in the light of the language and the medicine. In my view, C24(b) must be read disjunctively. The test is met if an individual can show that he (or she) has worked in a prescribed occupation and has thereafter evidenced any one of the three physical conditions listed in C24(b). I specifically reject the view that all have to be present for prescription to occur.

Decision in this case

39. I must therefore set aside the decision of the tribunal. But I do not consider that I can award benefit to Mr H. The matter must go to a new tribunal. There are several reasons for this. First, although it has been assumed that Mr H has Raynaud's phenomenon, I see no specific finding in the papers that his condition meets the limited form of Raynaud's set out in C24(b)(ii), namely an exaggerated vasomotor response and intense blanching. That is clearly narrower than the terms of PD A11 for which it appears (by error) he was originally assessed. Second, if Mr H meets that test, a date of onset of the problem at the required level of intensity has to be determined. Third, there must be a determination of the level of disablement since onset, together with consideration of any offsets.

David Williams

Commissioner

22 February 2006

[Signed on the original on the date shown]