UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CI_3565_2004 (02 June 2006)

CI/3565/2004

Hearing and Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(7)(a) of the Social Security Act 1998 I set aside the decision made by the Woking tribunal on 12^th July 2004 under reference U/45/145/2004/00095 I substitute my own decision to the effect that:

From the 91^st day after 31^st December 2001 there is a loss of faculty, namely anxiety state resulting in the disablement from an industrial accident on 31^st December 2001 and the claimant has suffered from prescribed disease D7 (occupational asthma).

The extent of the disablement resulting from the loss of faculty is 16% for life, consisting of 8% in respect of anxiety state and 8% in respect of the prescribed disease.

I remit to the Secretary of State questions relating to the calculation and payment of any benefit on this basis.

2. I granted leave to appeal after an oral hearing on 26^th October 2005. I indicated to the parties at that stage that if the appeal were to succeed, it was likely that I would substitute my own decision rather than refer the matter to a new tribunal, unless there is any significant factual dispute. The parties have made submissions consequent to the Directions that I gave at that stage. The Secretary of State opposes the appeal and supports the decision of the tribunal. However, so far as I can see the areas of dispute relate to the legal consequence of the facts, rather than to the basic facts themselves. Accordingly, nothing is to be gained from referring the matter to a new tribunal, notwithstanding the submission of the Secretary of State that I should do this.

Background and Procedure

3. The claimant is a woman who was born on 19^th August 1958 and from September 2001 was employed by a hospital as a midwife. She had, from about the end of 1997, begun to develop an itchy rash on her hands whenever she used latex gloves. At about 4.00 am on 31^st December 2001 she was attending a woman in labour. She put on latex gloves to assess the progress of the labour and "I felt instant heat on my hands, hands became red, chest pain and felt generally unwell". This was the first occasion on which she had systemic symptoms. From that time she suffered regular anaphylactic shocks, up to 3 times weekly, requiring hospitalisation for 3 to 6 hours on each occasion, caused by severe sensitivity to latex. By the date of the tribunal hearing there had been 25 reactions requiring hospitalisation. She has discovered how widespread is the use of latex – including elastic bands, rubber wheels on toys, balloons, some telephone buttons, supermarket conveyor belts, rubber soles, rubber backed carpets, much furniture, and use by those preparing food in restaurants. This has had a severe effect on her life. This is all undisputed and there is confirmation in medical reports of 12^th November 2002 (page 131 of the file), 21^st October 2003 (page 23A) and 7^th March 2005 (page 111) from Dr Sarah Deacock, Consultant in Clinical Immunology and Allergy. Referring to one occasion in 2002 on which the claimant was standing near a large pile of rubber mats and latex gym balls, Dr Deacock states that "She developed uncontrollable shaking, wheezing, nausea, epigastric pain, diarrhoea and felt profoundly unwell" (page 131).
4. On 12^th May 2003 the claimant made a claim for industrial injuries disablement benefit on the basis that she had suffered an accident on 31^st December 2001. On 4^th February 2004 the Secretary of State decided that there was no entitlement because, although there was an accident, it did not result in loss of faculty. On 24^th February 2004 the claimant appealed to the tribunal against that decision of the Secretary of State, on the grounds that she was suffering from "industrial asthma" and that there had been a loss of faculty.
5. The tribunal heard the appeal on 12^th July 2004 at the claimant's home. It allowed the appeal to the extent of deciding that from the 91^st day after the accident there was a loss of faculty resulting in disablement from the accident, that this consisted of anxiety state, and that the extent of the disablement was 8% for life. On 17^th September 2004 the District Chairman of the tribunal refused the claimant's application for leave to appeal to the Commissioner against the decision of the tribunal. She now appeals by my leave granted on 27^th October 2005.

Industrial Accident

6. Section 94(1) of Social Security Contributions and Benefits Act 1992 provides that (subject to other conditions of entitlement) benefit shall be payable:

94(1) … where an employed earner suffers personal injury caused … by accident arising … out of and in the course of [her] employment.

It was found by the Secretary of State and the tribunal, and has not been challenged, that what happened on 31^st December 2001 was such an accident. However, there is no entitlement to benefit where the effects of an industrial accident do not last beyond 90 days, in this case from 4^th April 2002. I am not persuaded (and neither was the tribunal) that the physical effects of the industrial accident can be said to have lasted beyond the 90^th day. The claimant must already have been sensitised to latex, and there is not (and possibly cannot be) any evidence as to when and where this happened. Both the industrial accident and the subsequent manifestations of the allergy seem to have been caused by a combination of the earlier sensitisation and immediate exposure to latex, but the physical effects, although very distressing, are relatively temporary. The tribunal correctly found that the subsequent episodes cannot be said to have been industrial accidents, since they did not arise out of and in the course of the claimant's employment.

Prescribed Disease and Latex Allergy

7. Section 108(1) of Social Security Contributions and Benefits Act 1992 provides that (subject to other conditions of entitlement) benefit shall be payable to a person who has been in employed earner's employment in respect of any prescribed disease which is due to the nature of that employment and which developed after 4^th July 1948. In the submission of 22^nd December 2004 (page 111 paragraph 5) the Secretary of State has accepted that a claim to disablement benefit is a claim for the benefit as a whole, not just in respect of eg an industrial accident, and that in the present case the claimant raised the issue of prescribed disease in the appeal to the tribunal, which was obliged to consider the issue (which it did in relation to latex allergy, which was not then prescribed).
8. Following the report of the Industrial Injuries Advisory Committee on Conditions Due to Biological Agents (Cm 5997), schedule 1 to the Social Security (Prescribed Diseases) Regulations 1985 was amended to prescribe a new disease. This was anaphalyxis and was prescribed in relation to employment as a healthcare worker having contact with products made with natural rubber latex. However, this was only prescribed with effect from 14^th March 2005 and the prescription cannot assist the claimant in the present case.

Prescribed Disease and Occupational Asthma

9. During the hearing before me I suggested that it is strongly arguable that the evidence from the claimant's specialist indicates that she suffers from occupational asthma, which the claimant had in effect raised in the appeal to the tribunal, and that this should have been dealt with by the tribunal.
10. Before 14^th March 2005, when "products made with natural rubber latex" were listed as specific agents, schedule 1 to the Social Security (Prescribed Diseases) Regulations 1985 listed as prescribed disease D7 "asthma which is due to exposure to any of the following agents … (x) any other sensitising agent". This was prescribed in relation to any occupation involving exposure to any sensitising agent, and D7 was described generally as "occupational asthma". There is no dispute that latex is a sensitising agent but does the claimant have asthma caused by that agent? The word "asthma" is not further defined in the statutes or regulations, so its meaning in relation to the claim is question of medical fact.
11. Dr Deacock wrote in the report of 7^th March 2005 (page 111): "This patient is highly allergic to latex and develops asthmatic symptoms as part of her allergic reactions". It is agreed on behalf of the claimant that she does not suffer with asthma independent of latex exposure.
12. Dr Susan Reed, a medical adviser to the Secretary of State, in a helpful background submission, reproduced on pages 122 to 126 of the file, suggests that there is some hint of food allergies as well (paragraph 14 on page 125), but in my judgment the evidence shows no more than preventative medication. Dr Reed also states that the claimant has "asthma-type symptoms" such as broncho-spasm leading to shortness of breath, but that these are related to anaphylaxis and are not due to asthma (paragraph 13 on pages 124 to 125). Another medical adviser, Dr Peter Wright, has submitted that "To be sure of a concurrent diagnosis of occupational asthma I would expect episodes of wheezing outside anaphylactic attacks" (paragraph 2 of the submission of 28^th November 2005 reproduced on page 143).
13. I do not accept the logic of this. In the 2^nd edition of The Disability Handbook (May 1998), publicly available, prepared by the Secretary of State's Medical Policy Group, written primarily to help decision makers and published on behalf of the Secretary of State, it is stated in paragraph 11.11.1 (i):

"Asthma is due to reversible narrowing of the air passages in the lungs brought about by an over-reaction to various stimuli, such as air-pollutants, allergens, cold air, emotional stress etc which causes cough and/or wheezing".

14. This is a condition that is identified by its symptoms and in the present case there is no significant evidence of any cause other than the latex allergy (and if there were, no doubt the Secretary of State would then be arguing that there was insufficient evidence that it was caused by the latex allergy). In my view the balance of the evidence shows that the claimant does suffer from occupational asthma.

The Assessment

15. I had floated the idea that 8% was an unreasonably low assessment for the degree of anxiety due to loss of faculty resulting in disablement from the accident. I am now persuaded by the Secretary of State that there was no error of law made in fixing this assessment and that it was within the range of decisions that the tribunal was entitled to make (see the submission of 1^st February 2006 reproduced on pages 145 to 154 – especially paragraph 10).
16. However, as indicated above, there was an error of law in the way that the tribunal treated the question of prescribed disease. Dr Wright suggested that the only disablement is the need to take medication to prevent attacks occurring. I accept this. He goes on to suggest that an assessment would be no more that 5%. It seems to me that the appropriate assessment on this basis is one that is on a par with the assessment for anxiety state fixed by the tribunal – the 8% that the Secretary of State has firmly defended.

H. Levenson

Commissioner

2^nd June 2006