UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CI_2930_2005 (30 June 2006)

CI 2930 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. At the request of both parties, I replace the decision of the tribunal with the decision that the tribunal should have taken. This is:

Appeal allowed.

(1) The appellant has suffered personal injury and a continuing loss of faculty from the industrial accident on 8 02 1996.

(2) That loss of faculty is impaired upper limb function and impaired mental function.

(3) The disabilities arising from that loss of faculty are pain in, and limitations in normal use of, the upper limbs (including mental limitations) and mild depressed mood

(4) The total disablement of the appellant from the disabilities resulting from that loss of faculty as a result both of that accident, the industrial accident of 5 01 1995 and all other prior causes is 31 per cent.

(5) From that total there is to be an offset against disablement from the disabilities caused by the loss of faculty to upper limbs of 5 per cent for the disablement from the disabilities caused by the loss of faculty resulting from the industrial accident of 5 01 1995.

(6) From that total there is also to an offset against the disablement caused by the loss of mental faculty of 4 per cent for pre-existing causes of the loss of mental faculty.

(7) The total disablement of the appellant resulting from the accident on 8 02 1996 (taking into account those offsets and also including the interaction between the losses of faculty caused by that accident and with the loss of faculty caused by the 1995 accident and any other earlier cause) is therefore 22 per cent.

(8) This applies from 20 04 2001 and is for life, final.

(9) The appellant is therefore entitled to industrial injuries disablement benefit at the rate appropriate to a level of disablement of 27 per cent from 20 04 2001 (including the disablement assessed for the accident on 5 01 1995).

2. Unfortunately, this appeal has been under consideration for several years. It is the subject of two previous decisions by me. The first was a joint decision. In CI 2759 and 2674 2002 I set aside the decisions of a tribunal on 13 12 2001 ("the first tribunal") about two industrial accidents sustained by the appellant ("Q"). The first accident was on 5 01 005 ("the 1995 accident"). The second was on 8 02 1996 ("the 1996 accident"). Both involved physical injuries to Q's left arm and elbow, together with other injuries. I set aside the tribunal decisions in a short joint decision with the consent of both parties. This was because the first tribunal held only a paper hearing and had not adequately considered the loss of mental faculty that the appellant (Q) expressly put in issue in connection with the accidents.
3. The second decision by me in this appeal was CI 2895 2004. It followed the rehearing directed in CI 2674 2002 only (and concerned the 1996 accident only). That rehearing was taken by a fourth tribunal after adjournment by two previous tribunals. Unusually, both parties were appellants against the fourth tribunal's decision, though for different reasons. I set aside the decision of the tribunal ("the fourth tribunal") on 12 01 2004 in another short decision. The chairman of the fourth tribunal repeatedly altered the effective date of that decision and went beyond the powers to correct accidental errors in so doing. Both parties also submitted that there were other errors, but I did not consider them in my decision. I sent the matter for rehearing with a direction to take account of all evidence then available.
4. The appeal was referred to a further tribunal ("the fifth tribunal"). That tribunal heard the appeal on 19 04 2005. It did so in the absence of Q and without representation of either party. It is the appeal by Q, supported by the Secretary of State, against the decision of the fifth tribunal that is the subject of this decision.
5. Q is now suffering from serious health problems that are not the direct subject of the appeal, and that are accepted for Q as being unrelated to the industrial accidents or the resulting loss of faculty for the purposes of industrial injuries disablement benefit. But those other problems, combined with the problems that are relevant in this appeal, make it impossible in practical terms for him to attend oral hearings by a tribunal or me. When this case came back to me to consider a third time, I was concerned that the appeal should nonetheless receive full consideration. I am therefore most grateful that Emma Baldwin, full time social security caseworker for the Free Representation Unit, agreed to act for Q. She appeared for Q, after having spent some time talking with the then applicant, at the oral hearing of the application for permission to appeal that I held on 24 March 2006. Jeremy Heath of the Office of the solicitor to the Department for Work and Pensions appeared for the Secretary of State. I gave an oral grant of permission at that hearing. That grant was not opposed for the Secretary of State at the hearing and is now supported in the further submission received from the secretary of state's representative. Because of issues about evidence, the Secretary of State did not consent to the appeal being dealt with the application. But the parties did agree that it should be expedited because of the unrelated health factors.
6. Consequently, and regretfully, this is the third time I have heard an appeal about the assessment of the disablement caused by Q's 1996 accident with both parties in agreement that the tribunal below erred in law.
7. Since granting permission to appeal on this occasion I have received full submissions, and further medical evidence, from both parties. Both invited me to take a final decision myself without a further oral hearing and have made submissions on the evidence about that decision. It is settled law that I have the power to do that since the Social Security Act 1998 provided that the questions under appeal are no longer medical questions. I do so in this case without a further hearing not only because of the joint invitation but also because of the considerable time already spent on this appeal, because Q could not now reasonably be expected to attend an oral hearing of a tribunal or of a Commissioner, because I have considerable medical evidence collected during the tribunal hearings and submitted by the parties (including recent expert evidence), and because I am able to take into account the issues raised by Ms Baldwin for Q and Mr Heath for the Secretary of State at the oral hearing of the application.

The issues under appeal

8. The decision under appeal is stated in the submission to the tribunal to be a decision taken for the Secretary of State on 25 04 2001 that Q is not entitled to industrial injuries disablement benefit as the assessment of disablement resulting from the industrial accident on 8 02 1966 was less than 14 per cent. That is incorrect, and if it was the decision of the Secretary of State it is wrong in law. The decision notified to Q on 25 04 2001 was different. It was that the industrial accident of 8 02 1996 had caused a loss of faculty; the loss of faculty was soft tissue injury to both elbows; that Q was 6 per cent disabled from 20 04 2001 for life because of that loss of faculty; and that together with the further assessment of the disablement caused by the accident on 5 01 1995 there was a combined total assessment of 11 per cent. That was less than 14 per cent and no benefit was therefore payable. There had been previous assessments of the disablement following from the 1996 accident of 8 per cent from 23 05 1996 to 19 04 2000 (final) and 10 per cent from 20 04 2000 to 19 04 2001 (provisional). I comment below that the notified decision appears to have confused injury with loss of faculty but otherwise take the notified decision, and not the decision in the submission to the tribunal, as the decision under appeal.
9. The other decision originally under appeal, and taken into account in that decision, related to the 1995 accident. That was assessed at 5 per cent (final) from 20 04 2001. The assessment was confirmed by the fourth tribunal after I allowed the appeal from the decision of the first tribunal about that accident. There was no appeal from that decision of the fourth tribunal and that assessment stands.
10. The main point of Q's appeal from the decision of the fifth tribunal is that its assessment failed to take account of the mental aspects of the loss of faculty and disablement that Q contended had been caused by the 1996 accident.

The 1996 accident and its assessment

11. Q claimed industrial injuries disablement benefit for the 1996 accident nearly two years later, on 16 11 1997. Q was at the time a secondary school teacher. Q's description of the accident and injuries in the claim form are as follows:

"I was barraged with snowballs by pupils and fell backwards approx 1 ½ metres to the ground the impact being taken first by my elbows the full weight of my body then striking back of my head on floor.

Both my elbows swoll up and a bump on my head. My left elbow has never stopped hurting. The tendon across the elbow I am told is partly severed and the elbow is prone to seize. Particularly painful if I attempt to lift anything."

12. In the claim form Q added the following problems about attending a medical examination:

"I suffer from stress anxiety/depressive illness which makes it difficult for me to attend interviews without accompaniement. Panic attacks and one of my symptoms being a volatile temper. Since my suspension and breakdown in November 96 on health grounds."

13. The employer confirmed that the accident had been recorded at the time. There was snow and ice on the ground, and that caused Q to slip when surprised by the snowballs. The injured left elbow had previously also been injured in the 1995 accident. Q was given first aid and then went to hospital. The employer confirmed that Q was off work for some days. There is, however, no contemporary general practitioner note of consultation. The hospital and other records of the incident and its immediate consequences are consistent with the description given by Q to an adjudicating medical authority (AMA) who conducted an examination examined Q on 6 01 1998. Q's later accounts somewhat exaggerate the events. But I reject a submission made to me for the Secretary of State that Q's accounts are inconsistent and therefore all unreliable and I find the description on 6 01 1998 to be reliable. The very nature of the problems that Q has asked me to consider may have caused the effects of the 1996 accident to be magnified when Q now considers them. That may itself be evidence that Q is right to raise the mental aspects of the injuries, and it does not call into question the earlier evidence.
14. The AMA assessed Q in 1998 as having a loss of faculty of pain and loss of power in elbows, partially causing a disability of impaired upper limb function, itself causing together with the previous injury a gross disablement of 14 per cent. I note in passing that the AMA started by identifying the disability as separate impaired upper limb function in both upper limbs, but then crossed this out and generalised the finding. I also consider below that this decision appears to have reversed the loss of faculty and the disabilities from the proper order. But the AMA's views about the effects of the injury are clear. Of this 14 per cent, 6 per cent was due to the 1995 accident. That was also technically incorrect, and indeed wrong in law. The previous assessment for offset was 5 per cent, not 6 per cent. But the point does not appear to have been noticed at the time. The outcome was an award of industrial injuries disablement benefit. The AMA recorded as an abnormality that had no effect upon the disablement "stress / anxiety nervous debility". That decision was not appealed.
15. Q asked for the award of industrial injuries disablement benefit to be reviewed on 29 03 1999 for unforeseen aggravation. This was because the levels of pain suffered in both elbows had increased. Q now suffered much more from the pain in the arms. The application included a full report from Dr. Sinha, the general practitioner, following a detailed medical examination on 18 03 1999. That report recorded continuing effects particularly to the left elbow. It separately recorded that Q had to take retirement because of ill health mainly due to stress disorder. It did not record that disorder as connected with the 1996 accident.
16. A second AMA conducted a medical examination on 18 03 2000. The AMA found that Q's loss of faculty was painful restricted movement of elbows, leading to a disability stated as impaired upper limb function partially caused by the 1996 accident. The result was an increase in overall disablement to 16 per cent, with the previous (wrong) offset of 6 per cent remaining in place. This was made provisional for a year from 20 04 2000. The AMA recorded that this was "a difficult case to assess and apportion and separate in statement and examination. The assessment appears to have been based by the AMA on the Medical Assessment Framework, without that actually being stated, as there is reference to an injury "within the 6% - 10% range". The report recorded "anxiety and nervous debility" as an unconnected injury or disease. As noted, that decision was wrong in law for the way it dealt with the offset. So was the notification of the decision by the Secretary of State to Q on 23 06 2000, but for a different and potentially confusing reason. The decision notified to Q was that the loss of faculty was "anxiety and nervous debility". That is the reverse of what the AMA decided, and is clearly wrong for two reasons: (1) It gave the wrong loss of faculty; (2) it thereby omitted the need to assess total disablement from the relevant loss of faculty and then an offset for the disablement caused by the 1995 accident. But the error may explain Q's later insistence that his mental problems should be taken into account by the tribunals. That decision was not appealed. Q may reasonably therefore have considered that he had been awarded disablement benefit from 2000 for his mental problems.
17. A medical adviser for the Department conducted a routine reassessment examination of Q on 12 04 2001. The adviser's findings were that the loss of faculty is soft tissue injury to both elbows. The disability caused by this loss of faculty is impaired upper limb function, partially caused by the 1996 accident. The adviser put gross disablement after examination at 11 per cent. There is an offset of 5 per cent for the injury in 1995, so leaving 6 per cent for the injury in 1996. That corrected the previous excessive offset for the 1995 accident. It also brought the gross assessment below 14 per cent, so ending payment of benefit. The adviser noted nervous debility as an unconnected injury. But there is a new tone to the comments recorded from Q by the adviser, and the adviser's own comments on it. The adviser noted that Q was very anxious and overtalkative, with a mildly aggressive attitude and refusal to be touched for examination. The adviser commented that there was some overstatement of physical disability "but I am not sure if this is at a conscious level…. moderate mental impairment may well be increasing … perception of … physical disability." The adviser did not go on to consider if that mental impairment interacted with the loss of faculty to the upper limbs, although this suggests an interaction.

The current appeal

18. Q promptly appealed against the decision taken on this advice. Q took issue with three specific aspects of the decision: the reference to soft tissue injury only; the extent of loss of function being reached without proper examination; and that the nervous debility was not a result of the accidents. This is followed by an intemperate letter demanding a review. There was a paper reconsideration, but nothing was changed. The matter was referred to a tribunal.
19. I have set out above the history of the matter as it went in turn to the five tribunals. Save for one point, there is nothing further to note about the first tribunal hearing and decision on 13 12 2001 as Q did not attend, and there was no new evidence in the papers. The point is that the tribunal selected as the loss of faculty what the AMA had described as the disability caused by the loss of faculty. It therefore found that the loss of faculty was impaired upper limb function, and not injury to the elbows. I consider the significance of that point below. An application to set that decision aside was refused. The letter of application chiefly focussed on the issue of causality with which, as I have noted above, the tribunal did not deal adequately.
20. The matter came before a second tribunal on 16 01 2003. Ahead of this, Q provided the tribunals with further evidence. This was in the form of letters from two long standing friends who were also teachers, one of whom had worked directly with Q. One of the friends gave specific evidence of having attended the medical examination by the AMA at which Q had been reluctant to be examined. This corroborated Q's evidence that the reason for this was the effect of injuries that Q felt had been caused by another Departmental medical adviser who examined Q some three weeks before that examination. (I assume that this was for an incapacity benefit claim). Q's general practitioner reported on 7 11 2002; "anxiety and depression… history of problems at work which led to this state of affairs … has [never?] been able to recover fully." In reply to a specific question the general practitioner reported no note of any mental health problem prior to 8 02 1996, but that Q reported a traumatic childhood. That evidence is, in my view, of importance.
21. The second tribunal had the case listed before it on 16 01 2003. Q did not attend. The tribunal decided to adjourn for a psychiatric report. The matter was relisted before a third tribunal on 3 04 2003. No report had been made. The third tribunal also adjourned to receive the psychiatric report, noting that Q had agreed to it.
22. The requested report was received, dated 20 11 2003, from Dr Colin Cowan. Dr Cowan, MB, ChB, BSc, MRCPsych, is a consultant psychiatrist at a hospital in Q's region.

He was requested to give a diagnosis, a prognosis, and an opinion on how far Q's condition was attributable to the 1996 accident and how much of it was due to pre-accident occupational problems. His diagnosis was:

"a) phobic anxiety disorder (ICD F.40) commencing in 1995.

b) persistent depressive disorder (ICD F34.1) commencing in 1996."

In answer to the specific questions about causation, he reported:

"a) … phobic anxiety disorder was present before the accident but was substantially exacerbated by the accident. 75% of this disorder can be attributed to the accident.

b) … depressive disorder was not present before the accident and is unlikely to have been caused simply by … pre-accident occupational problems. 90% of this disorder can be attributable to the accident."

23. This report and the other evidence came before the fourth tribunal on 12 01 2004. Q was again not present and was not represented. That tribunal found that the extent of the disablement resulting from the loss of faculty was to be assessed at 76 per cent for life after offsetting 5 per cent for the 1995 accident. The tribunal gave a full statement of its reasons for its decision on 13 5 2004. This contains a clear finding that Q's mental condition had "deteriorated dramatically" after the 1996 accident and that "this was directly attributable to the accident on 8 02 1996". It based its findings on the tone and content of Q's own letters to the tribunal, the letter from a colleague, and the report from Dr Cowan. The tribunal expressly indicated that it was satisfied that there was a clear causal link between Q's current psychological problems and the 1996 accident. A decision maker for the Secretary of State queried the original date from which that decision was given, 8 02 1996. That date was clearly wrong in law because the appeal was against a subsequent assessment, not the initial assessment. That and the subsequent decisions of the chairman attempting to correct the date led to both the Secretary of State and Q appealing against the tribunal decision. As noted above, I allowed the appeals but did not comment on the level of assessment.
24. I set aside that decision, with consent of both parties, because the chairman had exceeded the powers to correct. The chairman had attempted no less than three corrections. This is factually the same as another case in which I dealt with that issue of law, CI 3887 1999. Both parties accepted that these changes themselves left the decision in error of law. The secretary of state's representative also submitted that the tribunal ought to have gone on to consider an offset for pre-existing mental condition. When granting permission to appeal on the main ground I noted this without further comment. And again with agreement, I referred the decision to the fifth tribunal. I also note in passing that the medical member of the second tribunal was the same medical member as that of the fourth tribunal, although the chairman was not. As no consent was given to this partial reconstitution of the tribunal, its decision could have been challenged for that reason also.
25. Before the appeal came to the fifth tribunal, a chairman advised Q to attend and to seek representation from a citizens advice bureau or similar body. Q did not take that advice. A secretary of state's representative was also asked to attend. Both parties were asked to produce any further evidence. The tribunal chairman also asked that hospital notes and any general practitioner notes be obtained. After a further prompt from another tribunal chairman, clinical notes from the general practitioners and other medical letters and reports were produced going back to before 1990. These shows a range of physical problems from 1990, and a range of reports about mental health in and from early 1997. These include a detailed report from Dr Cowan in early 1997. The first clinical note with a mental health aspect was dated 3 5 1991. Part states:

"Host of classical stress induced symptoms, muscular aches, paraesthesiae non- anatomical. Seeking solace in alcohol. Recognises stress but declines my help or referral to psychologist to overcome it as does not want stress/anx to be officially recognised. Advised."

The following notes do not refer back to this but to the various physical problems, although "much stress and worry" was recorded on 23 10 1995. Reports of mental issues become more common in and after 1997. And I have noted above the general practitioner's specific later comment on this issue.

26. The fifth tribunal heard the case on 19 04 2005 without Q present or either party represented. The record of proceedings shows that the tribunal considered the medical evidence in detail before reaching its decision. The statement of reasons also looked in some detail at the medical evidence. The tribunal found the loss of faculty from the 1996 accident to be "painful and restricted use of left elbow resulting in the disablement from the relevant accident disease". The extent of disablement is put at 8 per cent for the period from 20 04 2001 for life in respect of the decision originally dated 12 04 2001. And it decided "no offset for any pre-existing affectin th left arm or shoulder is appropriate." Somewhat surprisingly, it concluded the latter point (ignoring the obvious typing mistakes) for the following reason: "With regard to any offset for a pre-existing condition due to a previous injury in January 1995, if such an accident or injury occurred, then it was so minor no medical intervention was required and it is likely that this would have resolved within 90 days. An offset is therefore not appropriate."
27. I record surprise because the appeal papers contain a copy of the tribunal decision confirming the decision noted above about the 1995 accident. The fifth tribunal was wrong in fact and law about this point. It is wrong in law because, if its decision stood, it would have to be read alongside the assessment of the 1995 accident, so leaving a total disablement of 13% but without any interaction having been properly considered. The tribunal may have been misled because the welter of information put in front of it (in somewhat random order, if the papers before me are a guide) excluded most papers relating to the 1995 accident and related assessments and appeals, and because the submission of Secretary of State to the tribunal about the decision under appeal did not deal with this point as it should have done. There was also no secretary of state's representative at the hearing to help the tribunal. But the error goes to the heart of the decision itself and is not one that can be corrected as an accidental slip. I accepted Ms Baldwin's submission on that point at the hearing of the application and granted permission to appeal on that ground. The secretary of state's representative did not oppose it.

The decision now under appeal

28. I must now make my own assessment of Q's loss of faculty, disabilities and disablement. I must look again at the decision that Q was not entitled to industrial injuries disablement benefit from and including 20 04 2001 because the assessed disablement from the 1996 accident was less than 14 per cent. I must start by recording a pre-existing assessment of 5 per cent for life resulting from the loss of faculty to Q's upper limbs as a direct result of the accident in 1995. I have already noted this error, but that the decision was notified to Q correctly. The fifth tribunal made the same error but for a different reason. My decision must take into account that there is an offset for a previous assessment to be made when considering the loss of faculty to Q's upper limbs, and there is also a need to consider any interaction. I must consider that interaction because of regulation 11 (3) of the Social Security (General Benefit) Regulations 1982 ("1982 Regulations"):

"… an assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is a congenital defect or is an injury of disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred."

In other words, I must identify the disablement caused by all the disabilities resulting from the loss of faculty during the period from 20 04 2001 caused by the 1996 accident and any pre-existing causes, and then offset from it the disablement attributable to the pre-existing causes. I must therefore consider any pre-existing causes of impaired upper limb function. The only one identified in any of the papers is the 1995 accident, and I so find.

The evidence now available

29. I have now been provided with further evidence – in addition to the considerable evidence outlined above – about Q's mental problems and their connection with the 1996 accident. This has been complicated because Q has taken to recopying documents to the Secretary of State, to the tribunals, and to me in the course of the appeals so I now have a file with over 500 pages of actual or potential evidence in somewhat random order, much of which repeats itself. Q has also added information downloaded from the web and copied from a newspaper about assaults on teachers. I do not find that of any help at all.
30. Mrs Jo Finch, the secretary of state's representative, made a new full submission since I granted permission to appeal. To that is attached a note from Dr Susan Reed BSc MB ChB DipOccMed DDAM DFFP of the Department for Work and Pensions' Corporate Medical Group. Dr Reed's note is in part a general comment on the medical issues relevant to the claim made by Q and in part a comment specifically on Q's case. Attached to the final submission is an annex on background information regarding mental health problems and another annex on soft tissue injuries and tennis elbow. I have found the former of those helpful and refer to it below. But I do not consider the note on soft tissue injuries, as I adopt findings from a tribunal as set out below. Both annexes are notes about general considerations in relation to the kinds of medical problems noted, rather than evidence about Q, and in principle are most useful. The separate note of analysis of medical evidence of others about Q is treated by the secretary of state's representative as if it were evidence, but it is an application of the evidence to this case. Rather, as the note states, it is a review of some of the evidence. It also makes points that should in my view be made by the secretary of state's representative and not as an apparent note of evidence. It is always important to keep evidence about an individual case separate from general considerations of medicine, policy and law.
31. Ms Baldwin responded with her own full submission on the appeal, including a full comment on the report from Dr Reed. To her submission are attached: a fulsome letter dated 12 05 2006 from the former deputy/acting head of department of Q's school department from 1992 to 1996, a letter from Q's "line manager" at the school (I assume the head of department) from 1989 to 1993 strongly in support of Q's work during that period, and a further letter from Dr Cowan, dated 16 May 2006. I draw from the two letters clear professional evidence that any mental problems Q might have had before 1996 did not impact in any way on the work at school or Q's behaviour in the school context.
32. I quote the relevant part of Dr Cowan's letter in full:

"2 The assessment of [Q] to form the basis of the report took place on 18 11 2003 and my recollection of this is that it was quite lengthy, certainly in excess of 30 minutes.

3 My opinion about the causal link between [Q's] psychiatric symptoms and the accident was my opinion although this was passed on [Q's] information about [the] history of psychiatric symptoms and mental state.

4 I would not be able to comment on any allegations that my conclusions were inconsistent with other evidence.

5 I have not been trained by the Department for Work or Pensions (sic) or any other organisation in the assessment of disablement for industrial injuries."

The latter comments are addressed at the comments made by Dr Reed on Dr Cowan's evidence in the analysis I noted above. Dr Reed said of Dr Cowan's report in 2003 that

"… there is no indication of how he [Dr Cowan] reached this opinion. As there is no confirmatory evidence in the information from the general practitioner to make these links, one has to assume that Dr Cowan is basing his views on [Q's] opinion".

And she concludes her comment:

"If neither the general practitioner nor Dr Cowan are trained in the assessment of disablement for disablement benefit purposes, although their opinion on relevance may be helpful, and percentage quoted (even if they were quoting in this context, which they are not as they are referring to relevance) their opinions would have to be treated with caution as they will not be familiar with the relevant medical and legal aspects of disablement benefit assessment."

I record only that I see no reason to treat Dr Cowan's evidence with caution.

My decision

33. It has not at any time been disputed that there was an industrial accident suffered by Q on 8 02 1996 while employed in employed earner's employment. Nor, until Dr Reed's comments, has it at any time been disputed that Q suffered loss of faculty as a result of that accident and had and has a continuing level of disablement of more than one per cent from that accident. I am prevented by prior decisions from looking again at any decisions relating to periods before 20 04 2001. None of those points are in dispute. Nor is it in dispute (save again by Dr Reed) that Q is suffering disablement caused by a loss of faculty resulting from the industrial accident in 1995 of 5 per cent for life.
34. At this point, I must clarify the necessary hierarchy of decisions to be taken, as this has been confused or omitted at several stages of this appeal. Accepting that there has been an industrial accident in 1996 arising out of and in the course of Q's employment, I must decide a series of issues. I set these out at length, with the authority for them, because of Ms Baldwin's honest comment that she finds the requirements of the law involved in the decision, and the decisions taken by the courts and commissioners about them, somewhat confusing. It is disturbing that someone of her obvious competence feels constrained to make that point. But she is in good company. See for example the careful discussion of the caselaw in CI 34 1993. In that decision the Commissioner reminded us that it is wise, if possible, to keep the underlying condition and the disabilities separate, and that the underlying condition is the cause of the disabilities. The need for that reminder is illustrated only too well by this case.
35. That decision is also a reminder that these issues were looked at in some detail, and not for the first time, by the House of Lords in Jones v Secretary of State for Social Services, Hudson v Same [1972] AC 944, a decision refusing to reconsider earlier House of Lords authority in this area. I repeat the valuable set of definitions (and caution) given by Lord Simon in Jones (at 1019):

"although in particular cases the concepts may overlap, the statute envisages them as separate – in order for "disablement" benefit to be payable, the "accident" must result in "injury", which must result in "loss of faculty", which must result in "disability" … my understanding of the terminology is as follows: …"injury" is hurt to body or mind … "loss of faculty" is impairment of the proper functioning of part of the body or mind" … "disability" is partial or total failure of power to perform normal bodily or mental processes … "disablement" is the sum of disabilities which, by contrast with the powers of a normal person, can be expressed as a percentage."

36. Reading that vocabulary into the statutory issues that I must consider, the questions to be answered are:

(a) Did the claimant "suffer personal injury ["hurt to body or mind"] caused" by the relevant accident?

Social Security Contributions and Benefits Act 1992 ("1992 Act"), section 94(1)

(b) If so, did the claimant "suffer as a result of the relevant accident from loss of physical or mental faculty" ["impairment of the proper functioning of part of the body or mind"] during the period relevant to this assessment?

1992 Act, section 103(1)

(c) If so, what were "the disabilities ["the partial or total failure of power to perform normal bodily or mental functions"] incurred by the claimant as a result of the relevant loss of faculty ["impairment of the proper functioning"]"?

1992 Act, Schedule 6, paragraph 1. Paragraph 1(a) requires that "the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal"

(d) Do those disabilities ["failure of power to perform…"] take into account "disabilities which, though resulting from the relevant loss of faculty ["impairment of the proper functioning…"], also result, or without the relevant accident might be expected to result, from a cause other than the relevant accident", if there are any?

This is required by 1992 Act, Schedule 6, paragraph 1(b) and Social Security (General Benefit) Regulations 1982 (SI 1982 No 1408 as amended)("1982 Regulations") , regulation 11.

(e) What is the total percentage of the "assessed extent of the resulting disablement" ["the sum of disabilities", or of "failure of power to perform …"] -

(i) by reference to those disabilities ["failure of power to perform…"]without reference to the particular circumstances of the claimant other than age, sex and physical and mental condition, and

(ii) adding "to the percentage of the disablement ["the sum of disabilities…"] … the assessed percentage of any present disablement" of the claimant resulting from any other industrial accident or any prescribed disease?

1992 Act, section 103(1), (2), and Schedule 6, paragraph 1(c)

(f) If the answers to (d) and (e) include disabilities ["failure of power to perform…"] resulting from the loss of faculty ["impairment of the proper functioning…"] both from the relevant accident and from any effective cause other than the relevant accident (whether congenital defect, injury or disease) that predate the accident, then what is the extent of disablement ["the sum of disabilities"] "to which the claimant would have been subject … if the relevant accident had not occurred"?

1992 Act, Schedule 6, paragraph 1(c) and 1982 Regulations, regulation 11(3). Regulation 11(5)requires that where there are two or more industrial accidents (or disease) then the disablement resulting from both or all "shall only be taken into account in assessing the extent of disablement resulting from … the one which occurred or developed last in point of time".

(g) If the answers to (d) and (e) include disabilities ["failure of power to perform…"] resulting from the loss of faculty ["impairment of the proper functioning…"] both from the relevant accident and from any effective cause that postdates the accident and are not directly attributable to it, then what is the extent of disablement if that other effective cause had not arisen?

1982 Regulations, regulation 11(4). That requires that if the answer to (g) is not less than 11 per cent, then the answer to (e) "shall also take account of any disablement to which the claimant may be subject as a result of that other effective cause except to the extent to which the claimant would have been subject thereto in the relevant accident had not occurred". See also regulation 11(5) noted to question (f).

37. I have set this out in full, adding in Lord Simon's definition at every relevant point because none of the six authorities involved in this appeal, nor any of the decision makers for the Secretary of State, has properly applied all these rules.
38. Thankfully, not all those issues are relevant or, if relevant, are in dispute. I have already decided some. The 1996 accident cause Q hurt. Some impairment resulted. I must now identify both the impairment and the failure of power to perform that results from that impairment. I must also identify any offsets. I must do so in respect both to any physical loss of faculty and any mental loss of faculty. With regard to the physical loss of faculty and resulting disablement I have already identified the 1995 accident as the only relevant other effective cause predating the 1996 accident. And I have not identified from any of the papers any relevant subsequent effective cause, nor has any been submitted to me. With regard to physical loss of faculty, the answer to questions (d) and (f) are therefore straightforward, and I can ignore question (g). But I must answer questions (b) and (c).
39. What was the loss of faculty caused by the hurt resulting from the 1996 accident? With apologies for necessary repetition, the medical adviser's opinion leading to the current appeal was that the loss of faculty was "pain and loss of power in elbows". The resulting disability was impaired upper limb function. The first tribunal adopted as the loss of faculty the disabilities identified by the medical adviser, but made no finding on disabilities. I pause at that point to test those views against the questions set out above. It is clear that the medical adviser has confused the issues of injury, loss of faculty and disabilities. The statement of disabilities is a generalised statement of the impairment to the claimant (that is, the loss of faculty) and the statement of loss of faculty is a particularised statement of that loss of faculty. There is as a result no clear statement as such of the disabilities. The first tribunal has correctly taken from that the identity in general terms of the loss of faculty, but it has also not gone on to identify the disabilities.
40. The fifth tribunal, in the decision now under appeal, identified the loss of faculty as "painful and restricted use of left elbow". But it has not adequately explained on what basis it has narrowed the scope of the loss of faculty from that found as fact (even if miscategorised) by the medical adviser. Nor is it clear what are the disabilities found by the tribunal to result from that loss of faculty. They are not self-evident.
41. The importance of properly identifying the disabilities is that a proper assessment of disablement can only be made in accordance with law if it is approached with the disabilities in mind. I repeat the warnings of the Commissioner in the 1993 decision about jumping directly from loss of faculty to disablement. It misses out a vital intermediate question: what is it that the claimant cannot do that a normal person of the same age and sex can do? The answer to that question identifies the disabilities. And it is for those disabilities, if any, not the loss of faculty or the injury, for which disablement benefit is paid.
42. My answers to the first two questions posed are: (a) Q hurt his arms, and particularly his elbows, and also his head; (b) looking from 2001, there was no continuing physical loss of faculty resulting from the injury to the head, but there was continuing physical impairment, by way of loss of power in, and restriction of movement, with pain, of both upper limbs, and particularly the left upper limb. On that basis I agree with the loss of faculty defined by the fifth tribunal save that I do not see why it limited the assessment only to the left elbow on the evidence before it (it did not examine Q so could not decide the matter on its own evidence).
43. Turning to question (c), what are the disabilities caused by this loss of power, restriction of movement, and pain? The earlier tribunals do not decide this, in part because the form that used to be used by tribunals for such decisions did not require this to be filled in an appropriate space. The fifth tribunal did not identify any disabilities separately, but went directly to assessing disablement. There is quite a lot of other evidence about this. In particular, under the heading "effects of disabilities" the AMAs and medical adviser have made findings. I adopt the advice of the medical adviser in 2001, that the disabilities are "limited gripping, lifting, carrying and cooking". I consider that the evidence is that the pain exacerbates the physical restrictions and does not create new disabilities. Together they lead to limitations of the kind identified in 2001. The loss of faculty does not prevent these actions being done, save for lifting heavier items, but it will slow Q down and will cause pain and discomfort.
44. With those points clarified, the questions that remain are:

(1) What is the proper level of assessment of disablement from 20 04 2001 of the physical loss of faculty and resulting disabilities, before offsetting the disablement caused by the 1995 accident?

(2) Is Q right in claiming loss of mental faculty causing mental disabilities resulting from the 1996 accident and that total disablement since 20 04 2001 should include an assessment for that mental loss?

(3) Are there any offsets to be made for defects, injuries or disease constituting other effective causes of total disablement since 20 04 2001 in addition to the five per cent relating to the 1995 accident?

(4) Taking into account all the above, what total level or levels of disablement should be assessed for Q and for what period or periods?

I take these in turn.

The physical disablement

45. I have summarised the AMA examinations in this decision, and I have identified the relevant loss of faculty and disabilities. The relevant assessments were put at 8 per cent initially, increasing to 10 per cent to 19 04 2001, then reduced to 6 per cent from 20 04 2001. In each case there was an offset from total disablement to reflect the award of 5 per cent (wrongly put in some of the decisions at 6 per cent) for the 1995 accident. The fifth tribunal put it at 8 per cent, but erronously did not believe that there had been a 5 per cent assessment for the 1995 accident. All these decisions, leaving aside their errors, therefore identify only relatively minor continuing physical disablement. As Mr Heath pointed out at the oral hearing, none exceeded 14 per cent for the 1996 accident.
46. In the final submission for the Secretary of State to me it is contended that Q suffered no continuing physical or mental loss of faculty in respect of the 1996 accident. That is based on the analysis I noted above. Dr Reed, after conducted her own analysis of some of the medical evidence, contending by reference in particular to the general nature of soft tissue injuries that a link to the 1996 accident was not established, but concluding as a fallback position that the level of disablement would be no more than 5 per cent. I do not know why this assertion of no continuing disablement is introduced at this late stage when it has never previously been contended. Nor do I see any satisfactory evidential basis in this case for her contentions. The opinion appears to be based, as Ms Baldwin rightly commented, on the general comments about soft tissue injuries rather than on this case. I have already rejected the suggestion that Q's accounts of the accident were inconsistent, and therefore unreliable. I reject this contention also. It runs counter to the consistent common evidence-based approach of three medical advisers and three tribunals with medical members. It appears to be based on the logical fallacy of arguing from the probability in general to the particular without taking into account all the evidence of the particular case. Ms Baldwin is right to object to that approach. Evidence-based medicine is based on the evidence in the particular case informed by evidence of cases generally, not by an assumption that the conclusion about a particular case is wrong if it does not fit the general case.
47. Ms Baldwin in her final submission submitted that the AMA reporting in 2001 had reduced the total assessment to 11 per cent while at the same time finding that the level of disablement had increased. She argued that this was wrong, and the assessment should not have been reduced in 2001. She concludes that the total disablement should be the same as the previous assessment, namely 16 per cent.
48. The AMAs and medical adviser were aware, as I have recorded, of what they considered to be unrelated issues, and – rightly or wrongly – they left them out of account. And they were aware of the 1995 accident to the left elbow. And I find as indicated above that all the later decisions were, and should be, on the basis that the AMA in 1998 was correct as to causation.
49. As to levels of disablement once causation is accepted, there is not a huge difference between the final submissions. Dr Reed's view, if causation was accepted, is that it should be 5 per cent. Her note is unclear about whether she is taking into account the 5 per cent assessment that still stands for the 1995 accident. She appears to have concluded that there would be no continuing disablement. If so, she is making the same mistake in fact and law as the fifth tribunal. If the continuing assessment for the 1995 accident is added to her assessment of 5 per cent for the 1996 accident as the law requires, the total assessment should be 10 per cent. Ms Baldwin argues that the AMA in 2001 was wrong in principle in reducing the previous 16 per cent total assessment to 11 per cent, and that the assessment should remain at 16 per cent.
50. What is the total disablement caused to Q by the physical limitations to the use of his upper limbs, and associated pain? I discussed at length in CI 1307 1999 the problem of establishing total disablement arising from loss of faculty. I did so in the context of making my own assessment of (mental) disablement (the first made since Commissioners became able to do that after the 1998 reforms). I do not repeat that discussion here, but I have it firmly in mind. I also have in mind the comments of the Tribunal of Commissioners in dealing with the (physical) disablement in question in the recent decision CI 535 2005 and linked appeals.
51. The list of prescribed degrees of disablement in Schedule 2 to the 1982 Regulations is of little help here, as it was in CI 1307 1999. Amputation of the arm below the shoulder is put at 80 or 70 per cent. Loss of a hand is put at 60 per cent. Loss of a thumb (which will mean in practice loss of grip) is 30 per cent. The physical disabilities suffered by Q fall far short of even the loss of a thumb. Based on the physical disabilities alone, this suggests that the decisions taken to date about these disabilities are all of the right order in this case. I also have this in mind when I turn to the combined effect on Q of all relevant disablement.
    
52. I have read all the medical assessments and evidence, and tribunal decisions, discounting the errors of law. As Mr Heath contended, all are in the range, for the 1996 accident, of 6 to 10 per cent. In my view, the best course of action is to go back to the first tribunal decision in 2001 as the nearest in time to the start of the period of assessment. That tribunal was fully aware of the context of the two assessments (an error made by the fifth tribunal) and of the correct date of decision (an error made by the fourth tribunal) but erred in omitting what I might term the mental element of the claim. That is not relevant here. Nor do I consider that any failure clearly to deal with the differences between loss of faculty, disability and disablement affects its final decision on the facts, as the focus of its decision, and the evidence of the medical adviser that it largely adopted, is clear. That tribunal assessed the disablement at 11 per cent, then offset the 5 per cent for the other accident to leave a 6 per cent assessment, final. I accept that as the proper assessment for the physical aspects of the disablement following on and from 20 04 2001 from the 1996 accident, and so decide.

Did the 1996 accident lead to loss of mental faculty?

53. Q, now represented by Ms Baldwin, strongly contends that it did, and has contended this consistently since 2001. The Secretary of State strongly contends otherwise. The first tribunal failed to deal with it, the fourth tribunal agreed, and the fifth tribunal disagreed.
54. The legislative test is that the "personal injury" must be "caused after 4^th July 1948 by accident" (Social Security Contributions and Benefits Act 1992, section 94(1), and that this must result in loss of faculty, or impairment. These are questions of fact. See R v Industrial Injuries Commissioner ex parte Starr, a decision of a full Divisional Court led by the Lord Chief Justice, and reported as R(I) 11/74. They are not now medical questions, as these no longer exist. They are therefore to be taken in the light of all the evidence. In this case that includes: that of the claimant; the letters from the professional witnesses who knew Q both before and after the accident in a professional capacity at school as well as, in some cases, as friends; the evidence from the general practitioners; and the evidence of expert clinicians or other relevant experts, including general medical evidence about relevant issues.
55. In balancing the evidence and the contentions, and seeking to deal with the questioned credibility of Q, I prefer first hand evidence as to the causes of Q's loss of mental faculty of someone who either knew the claimant in a professional capacity at the relevant times or examined the claimant in the exercise of professional expertise to someone who has not, and I prefer the evidence of a witness with specific relevant expertise to one who does not have that expertise. On that basis my starting point is with the evidence of Dr Cowan and the medical authorities who saw Q at the time. I have set out Dr Cowan's views already. The letters from the members of the teaching profession who knew him in a professional capacity at that time paint a picture consistent with that evidence, and show no employment effects of any problems that Q had or might have had before the 1996 accident. The general practitioner provides evidence, consistent with this, of no symptomatic mental problems before the 1996 accident. So does Q's own evidence, although inevitably when the issue is itself a question about a claimant's mental faculties that evidence must be looked at taking into account those limitations.
56. Dr Cowan gave his answer on the causation point by carefully specific and separate references to two clinical disorders in reply to fully appropriate questions. The first disorder is phobic anxiety disorder. The other is persistent depressive disorder. Dr Cowan has not elaborated on those specific diagnoses, and neither Dr Reed nor either representative has commented on this aspect of his report. Dr Reed treats the mental health issue without reference to the specific diagnoses. As Dr Cowan has been careful in what he says, I must start by considering the references to the ICD (the World Health Organisation's International Classification of Diseases) to which he has made specific reference.
57. ICD F34.1 is dysthymia, a "chronic depression of mood, lasting at least several years, which is not sufficiently severe, or in which individual episodes or not sufficiently prolonged, to justify a disagnosis of severe, moderate, or mild recurrent depressive disorder". The contrast made is between the F34 classification of persistent mood disorders and F33 which covers recurrent depressive disorders.
58. ICD F40 is a generalised reference to phobic anxiety disorders, including agoraphobia, social phobias, and specific phobias such as arachnophobia. It is " a group of disorders in which anxiety is evoked only, or predominantly, in certain well-defined situations that are not currently dangerous. As a result these situations are characteristically avoided or endured with dread … Phobic anxiety and depression often coexist…"
59. Dr Cowan is of the opinion that 75% of Q's phobic anxiety was caused by the 1996 accident, and that 90% of his dysthymia, or mild chronic (clinical) depression, was so caused. I accept the diagnoses, and the causation as stated, and so find as a matter of fact.

Q has a loss of mental faculty that is in part a result of the 1996 accident. That loss of faculty is identified by the two specific disorders named by Dr Cowan. It leads to disabilities in mood, and also in social limitations and, as also identified by the medical adviser in 2001, an overreaction to his physical problems with his upper limbs.

Relevant offsets

60. I agree with the secretary of state's representative that the logic of the decision of the fourth tribunal required it to go on to consider offsets against its total assessment of disablement in addition to the specific offset for the 1995 accident, and that it erred in not doing so. The scope of the fourth tribunal decision also invites further comment. Dr Cowan's evidence is that there is more than one cause for each of the two diagnoses he gives. Any adoption of his evidence, as in the preceding paragraphs, must involve those offsets. The broader issue is whether the fourth tribunal was also including other elements of mental disablement beyond those diagnosed by Dr Cowan, and therefore separate from the specific disorders diagnosed by Dr Cowan as related to the 1996 accident. This is not clear from the terms of the fourth tribunal's decision. If Dr. Reed's general approach is right, (and Ms Baldwin has in part adopted it while disagreeing with its conclusion) then the tribunal should have assessed (and I should now assess) Q's total mental loss of faculty from all causes and then eliminate by set off not only the concurrent causes of the specific losses of faculty but also other non-related disablements.
61. To repeat from earlier in this decision, the approach required in regulation 11(2) of the 1982 Regulations is:

"when the extent of disablement is being assessed for the purposes of section [103], any disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident … shall only be taken into account subject to and in accordance with the following provisions of this regulation".

62. A point raised by Ms Baldwin is important at this stage. In another leading decision on industrial injuries assessment, R(I) 1/81, the tribunal had to decide on a case where it was established on medical evidence that a claimant's multiple sclerosis had been triggered by an industrial accident. The tribunal assessed total disablement from the accident and then applied an offset for the multiple sclerosis as a pre-existing disability. The Commissioner held that this was a misuse of the term "disability" and an erroneous application of the rules in the then equivalent of regulation 11.He stressed, at paragraph 11:

"In their decision the tribunal did not point to anything which the claimant could not do prior to her accident. There was no evidence enabling them to do so. In my view, the constitutional liability to develop the disease cannot have been a "disability" because it was wholly symptomless. Such liability corresponds with the statutory concept of "loss of faculty", that is to say it is a potential cause of disability but not itself a disability."

He went on to find that the tribunal had misapplied the regulations and:

"In particular, they confused a "disability" with a "loss of faculty", and they made an unauthorised offset, that is to say an offset for something which was not a "disability".

He then set out Lord Simon's definitions, as I have done above. He emphasised them by quoting R(I) 2/74:

"A pre-existing condition and a disability are two different things; the one is positive and indicates what was there at the time of the accident; the other is usually negative and indicates that the claimant cannot do certain things owing to the relevant loss of faculty…"

63. Applying that to Q, I do not have to review the whole of Q's mental condition to arrive at an assessment of the loss of mental faculty, the disability or the disablement caused by the 1996 accident. Dr Cowan's diagnoses identify specific disabilities arising from a loss or losses of mental power or function caused in part by the 1996 accident. His evidence is that the losses of power or function arose from other causes also, although he does not identify the other causes and was not asked to do so. On that basis, there is no need to assess Q's total mental ability or disablement. And I do not accept that any other mental disability is shown to be caused by the 1996 accident. It is therefore enough that I consider the specific disabilities identified by Dr Cowan and assess them against the "normal" individual of Q's age and sex.
64. As R(I) 1/81 emphasises, and again as I have already noted, I must take into account the offsetting rules in regulation 11 of the 1982 Regulations. Specifically, I must look at total disablement from any disability arising from the accident and any other effective cause and then offset the likely disablement were that other cause the only operative cause. On the evidence, I do not consider that I have to take account of any mental injuries or diseases received or contracted after the 1996 accident because the nature and effect of the specific disorders (F34 and F40) to which my assessment applies do not require me to do that as a matter of fact. I find on the evidence that Q's phobic and depressive disorders were caused by the 1996 accident or by prior causes. I see nothing in the evidence to suggest that those specific disabilities also arose from subsequent injuries or diseases (although other problems may have arisen since then). And I must leave out of account any pre-existing condition that is not a disability because it was symptomless.
65. I also agree with Ms Baldwin that it worth recalling why the rules are as they are. Again R(I) 1/81 makes this clear. It absorbs into industrial injuries law the "eggshell skull" principle of English and Welsh civil liability law. The defendant must take the claimant as he or she finds that claimant. As the Commissioner notes in R(I) 1/81: "there is no difference in principle between an eggshell skull and an eggshell personality." As applied to this case, I consider it irrelevant to the determination of an offset that Q may have been predisposed to mental health problems because of a traumatic childhood (the details of which are not in any of the papers and are for this reason not in evidence) or for any other reason. His general practitioner and professional colleagues confirm no symptoms of which they were aware of either disorder before the 1996 accident (although the general practitioner did make a relevant note before 1996 on one occasion). Dr Cowan has found some pre-existing causes. I accept that more general evidence in preference to the context-specific evidence from the other witnesses. I therefore find that the disabilities were attributable in part to pre-accident causes.

Total disablement arising from the loss of faculty caused by the 1996 accident

66. I have already found that total physical disablement attributable to the accident is the that arising from continuing physical disablement of the upper limbs. I have accepted the assessment of 11 per cent total disablement from 2001 with an offset of 5 per cent for the 1995 accident. I must now asses the extent of disablement arising from the mental disabilities identified against the criteria laid down in Schedule 6 to the 1992 Act, and in particular against " a person of the same age and sex whose physical and mental condition is normal" (Schedule 6, paragraph 1(a)).
67. Q is male and was about 50 years old when the 2001 decision was made. The earlier medical history and references from fellow professional show that it is fully appropriate to measure him against a "normal" male of that age save for the current concerns. Compared with that "normal" male, and putting Dr Cowan's diagnosis in the context of all the other evidence, Q's relevant mental disablements are long term mild clinical depression of mood (but not such as to be diagnosed as clinical depression) and a phobia about his elbows. He clearly has other mental health problems – and unfortunately now other physical problems as well – but in my view they do not interact with these disabilities. They do not therefore have to be put into, and then taken out again from, the total disablement in the way that the fourth tribunal considered (but failed to complete). And the nature of the phobia suggests, as does some of the evidence, that I must consider interaction between the physical disabilities and the mental disabilities resulting from the obvious linkage between physical limitations in the use of his upper limbs and an obsessive concern about their use.
68. The final submission for the Secretary of State by Mrs Finch is that the appropriate assessment would not exceed about 20 per cent in absolute terms. That was after making the primary submission, which I have rejected, that there was not disablement at all. But it is also not clear whether that 20 per cent includes or excludes the 5 per cent assessment for the 1995 accident. If it does not, then the mental element of that total is of the order of 10 – 15 per cent, and the total in the region of 25 per cent. Ms Baldwin's final submission is that I should adopt the approach of the fourth tribunal and put total disablement from all causes at around 80 per cent. That included her submission that the physical element of that total should be 16 per cent. So the mental element of that is in the order of 65 per cent. But that was based on a "global" approach to mental disablement adopted by that tribunal without any setoff and which I have not adopted.
69. As all those with experience chairing tribunals dealing with these problems know, putting specific figures to disablements of these kinds are extremely difficult decisions. In this case that difficulty has been noted in the papers several times by those trying to establish the proper measure of disablement caused by the 1996 accident. I have accepted Dr Cowan's guidance on causation, but it does not assist at all on disablement. I find the comments of both Dr Reed and Ms Baldwin helpful on the list of items put into discussion about what Q could or could not do if he were a "normal" male of his age. And I form an impression of him and of his limitations from his own letters and comments as well as the clinical, general medical, and other professional evidence measured against that list and the comments of Dr Reed and Ms Baldwin.
70. My main concern is with the limitations relevant to this assessment that focus specifically on Q's problems with anxiety, and in particular his obsessive concern and anxiety about his elbows. Q's anxiety about his elbows can be intense, but it is, in the terms used by the WHO ICD, one limited by context of location and exposure and in particular it presents no danger. The element of pain in the elbows is, in my view, to be regarded as part of the physical disablement and therefore is not to be reflected here. However, there is an aspect of interaction with the mental disorders to which the pain will be relevant.
71. I do not regard the other diagnosis, of mild chronic depression of mood and said to be below the level suggesting clinical depression as such, as by itself warranting more than a small assessment Q in all the circumstances. Of itself it will limit Q little, and it is a marginal issue. If compared with the various amputations listed in the Schedule to the 1982 Regulations, it warrants only the smallest of assessments. The phobia is clearly more serious when activated but is nonetheless a phobia related to a controllable situation. The way that Q has chosen to control it may not be what others would regard as the optimal approach to the disability but that appears to be a matter partly of volition on his part, and partly a matter of interaction between the mental and physical losses of faculty and not evidence of a further loss of faculty or disability in itself. But the overall disablement has to reflect the continued limitations and pain in Q's upper limbs and the interaction between that and the phobia.
72. Even with the phobia and the interaction taken into account, Q still has use of both arms to an extent that renders any comparison with amputation clearly excessive. Nor, taking the issues together do I regard this as severe disablement (that is, 75 per cent disablement or more) of the kind formerly subject to severe disablement allowance. Ms Baldwin's bid for a level of disablement reflecting severe disablement is therefore out of place, even before taking account of offsets. Dr Reed's suggestion is more appropriate although her reasoning differs from mine in reaching that conclusion.
73. In my view, the mental disabilities essentially relate to the phobia. Only minimal disability can be linked with depressed mood. Any mental disabilities other than those from the phobia and the depression of mood are irrelevant. But the interaction between the phobia and the physical disabilities must be in mind. So must the offsets. If I put the phobia (and the interactive effect) at 20 per cent then on my findings I must offset 5 per cent. That reflects my view on the evidence that the mental loss of faculty in total is significantly disabling in itself but not so as to cause major, less alone severe, disablement from this loss of faculty. And that, at the margin, should include the depressed mood with the lesser level of offset. That would give a total disablement from the loss of mental faculty, after offsets, of about 15 - 16 per cent. I take it at 16 per cent. That is to be added to the 11 per cent for the total assessments from the two accidents in the final decision. If I therefore take the additional disablement to Q from the 1996 accident because of the mental loss of faculty but after discounts as 16 per cent, then the total disablement from the accident is 27 per cent. Of that, 5 per cent is attributed to the 1995 accident and 22 per cent to the 1996 accident. I consider that to be a fair decision overall, and I so find. That assessment applies from 20 04 2001 and is for life, final.
74. That is my decision on the facts. I add three general comments. The first that it was most helpful in this case to have a precisely focussed professional assessment of the mental disorders suffered by Q and linked to the accident. I have rarely seen such helpful specific guidance in a case such as it. Secondly, in contrast with that valuable accuracy of focus, decisions like this have a false air of precision because they must put in numerical terms what is a "best judgment" opinion of the decision maker as to total disablement. As this appeal illustrated only too well, those opinions can vary widely in difficult cases.
75. Finally, this decision is not a precedent on its assessment, any more than any other decision of fact. It must be taken as a decision in its particular (and most unusual) context. I repeat the warning on this of the recent Tribunal of Commissioners in CI 535 2005. But I felt it necessary to set out the history and process of assessment in full detail. I did so because I think Q deserves a full explanation of the way his case has been handled. He was, after all, asking the tribunals to do no more than take into account what the Secretary of State told him in 2000. And I also do so because of what I might term Ms Baldwin's expert bemusement. There is no new law here. But the case is an illustration of how things can go wrong in assessing disablement from industrial accidents if those concerned do not keep firmly in mind the basic rules and longstanding legal authorities requiring a proper step-by-step identification of the accident, the injury, the loss of faculty, the disabilities, any other effective causes, the total disablement, any offsets, and all relevant dates.

David Williams

Commissioner

30. 06. 2006