UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CI_1961_2008 (15 September 2008)

CI 1961 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer it to a new tribunal to retake the decision under appeal.

The claimant and appellant (Q) is appealing with my permission against the decision of the Leeds tribunal on 3 04 2008 under reference 007 08 00034.

DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D The claimant does not have a representative, and is advised to seek the help of a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser with the rehearing of this appeal.

E If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

This appeal is supported by the Secretary of State. I agree with the Secretary of State's representative that the decision is inadequate. The tribunal was asked to apply a new prescription of an industrial disease. It was give little assistance in making that decision by the parties either at the hearing or in written submissions to it. Q's claim appears to have been sidetracked by a medical adviser into a discussion of the nature of the wrist and hand movements involved in her activities. The submission to the tribunal appears to be more concerned with the activities of keyboard workers than Q's actual work in the textile industry. The tribunal did not adequately explain why it did not consider that Q's work met the test.

Q had worked as a textile burler and mender. She claimed industrial injuries disablement benefit for prescribed disease A12, known as carpel tunnel syndrome ("CTS"). Her claim was made a few months after the formal prescription of that disease had been extended by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2007 (SI 2007 No 811), regulation 2(7). With effect from 6 04 2007, the definition of the occupations prescribed for that disease in the Schedule to the Social Security (Prescribed Diseases) Regulations 1985 (SI 1985 No 967) was amended to read:

"(a) the use, at the time the symptoms first develop, of hand-held powered tools whose internal parts vibrate so as to transmit that vibration to the hand, but excluding those tools which are solely powered by hand; or

(b) repeated palmar flexion and dorsiflexion of the wrist for at least 20 hours per week for a period or periods amounting in aggregate to at least 12 months in the 24 months prior to the onset of symptoms, where "repeated" means once or more often in every 30 seconds".

Paragraph (a) is an amended version of the previous prescription. Paragraph (b), in issue here, is entirely new. As the statutory instrument and its explanatory memorandum record, this amendment followed advice of the Industrial Injuries Advisory Council. The advice was given in the Council's report Work-related upper limb disorders, published as CM 6868 in July 2006.

The test applied by the Council in recommending prescription is that exposure or activities at work lead to a doubling of the risk of onset of a disease for someone experiencing the exposure or undertaking the activities. The Council summarised the relevant evidence of this risk as follows:

"46 Specifically, evidence was found that flexing and extending of the wrist, when repeated over much of the work time, was associated with a more than doubling of risk of CTS. The reviewers commented: "A reasonable choice [for the exposure schedule], based upon a conservative reading of the research evidence, might be repeated bending and/or flexing of the wrist (every 30 seconds or more often) for at least 20 hours per week.

47 Independently, a doubling of risk was found in connection with the regular use of a forceful grip. The reviewers considered that this exposure was potentially much harder to verify within the Scheme.

…

49 The Council was advised that CTS, if associated with work, was likely to develop for the first time during employment, not afterwards; and that there was some evidence that the duration of qualifying employment should exceed a year.

50 After considering the evidence, the Council recommends prescription for CTS in those whose occupation involve repeated palmar flexion and dorsiflexion of the wrist (see Appendix 2 for a diagram of the relevant action) for at least 20 hours per weeks and who have undertaken such work for at least 12 months in aggregate in the 24 months prior to the onset of symptoms.

51 A cycle time of once or more often in every 30 seconds can be considered sufficiently 'frequent' to qualify for prescription. The Council anticipates that presentation to medical attention would normally occur during, or within six months of leaving, the relevant employment."

Appendix 3 to the report includes wording to effect this recommendation. The text of paragraph (b) is not identical, but it clearly follows the recommendation and advice of the Council set out above. I direct the attention of the tribunal to the reasons for this new prescription as an appropriate aid to applying it.

CTS is not a disease where there is a presumption that the disease is due to the employment. Q must show that she has the disease and that it is due to her employment on the balance of probabilities. And she must show that her job involved the prescribed activity. Q produced medical evidence of wrist operations including carpel tunnel release. She gave consistent evidence, confirmed independently by her employer and an orthopaedic surgeon, that she did meet the test both as to movements and as to frequency and that she had the relevant industrial disease with a relevant date of onset. The decision maker did not accept this as the evidence was too "broad brush", though it is not clear why. Q gave oral evidence about the nature of the wrist movements. I can see nothing in the record of proceedings about frequency. The tribunal was prepared to accept "some flexion". In rejecting her claim, it did not deal adequately with frequency, or explain why it did not accept her evidence. I direct the new tribunal to retake the decision. The tribunal should note, if it finds the prescription satisfied, that the Secretary of State has not dealt to date with any other issue.

David Williams

Commissioner

15 09 2008

[Signed on the original on the date stated]