Upper Tribunal (Administrative Appeals Chamber)

R(I) 1/09

(FR v Secretary of State for Work and Pensions [2008] UKUT 12 (AAC))

The Secretary of State refused the claimant's claim for industrial injuries disablement benefit in respect of PD A12 carpal tunnel syndrome on the ground that her work did not involve the required action as prescribed in column (b) of the Schedule to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 as amended from 6 April 2007 on the basis of recommendations of the Industrial Injuries Advisory Council. The claimant appealed and an appeal tribunal upheld the Secretary of State's decision, finding that the movements involved in the claimant's work did not involve the required degree of dorsiflexion and palmar flexion and were not the main action of the hand involved in that work.

Held, allowing the appeal, that:

1. the tribunal had erred in law in confusing the questions arising on a claim for disablement benefit by considering in the context of the prescription question whether the prescribed movements were the sole or main action involved in the claimant's work, that being a relevant issue only for the causation question (paragraphs 8 to 16);

2. the tribunal had also erred in misinterpreting the report of the Industrial Injuries Advisory Council as showing that a particular degree of flexion was relevant to the prescription question when there was nothing in the report to suggest that, though the degree of flexion could be relevant to the medical condition question or the causation question (paragraphs 21 to 27).

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

My decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007:

I SET ASIDE the decision of the Blackpool appeal tribunal, held on 9 July 2008 under reference 123/08/00408, because it involved the making of an error on a point of law.

I REMIT the case to a differently constituted First-tier Tribunal (Social Entitlement Chamber) and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

REASONS FOR DECISION

A. What I have decided

1. The issue in this case is whether a particular degree of flexion is required for prescribed disease A12 (carpal tunnel syndrome) under paragraph (b) of the prescription in the Schedule to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967, as amended). I have decided that it is not, but that it may be relevant to other questions that arise on a claim in respect of this disease.

B. The claim for disablement benefit

2. The claimant claimed disablement benefit in respect of prescribed disease A12 (carpal tunnel syndrome) under paragraph (b):

"A12. Carpal tunnel syndrome. ...

(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."

3. The Secretary of State's decision-maker decided that the claimant did not satisfy that prescription. This was based on advice from the Adjudication and Constitutional Issues Division that the work the claimant did, cake decoration and preparation, did not involve the required action.

4. The claimant exercised her right of appeal to an appeal tribunal.

C. What the tribunal decided and why

5. The chairman set out the tribunal's decision to dismiss the appeal and gave its reasons. For convenience of reference, I have added letters to each paragraph:

6. The decision was:

"A. The decision of the Tribunal was that [the claimant] did not fulfil the prescriptive condition for Prescribed Disease A12 - Carpal Tunnel Syndrome."

7. The reasons were:

"B. The Tribunal studied the Report of the Industrial Injuries Council presented to Parliament in July 2006 which led to the new prescriptive condition. In particular they noted appendix 2 thereof which indicates dorsiflexion of 70 degs and palmar flexion approaching 90 degs. While agreeing that many of the hand movements of [the claimant] included a degree of flexion they fell far short of these accentuated movements.

C. The Tribunal on considering the prescriptive condition were further of the opinion that it required the dorsiflexion and palmar flexion to be the main if not the sole action of the hand and for the force exerted by the hand to be in the plane of the dorsiflexion and palmar flexion. In the case of [the claimant] it appeared to the Tribunal that the main delivery of force was by rotation as in spreading or beating.

D. Thus while accepting that [the claimant] has a heavy job which may well have contributed to her having problems with her hands, the Tribunal agreed with the Secretary of State that the condition for Prescribed Disease A12 - Carpal Tunnel Syndrome had not been met."

D. How the tribunal went wrong - confusion of questions

8. Four questions potentially arise if a claimant claims disablement benefit in respect of this prescribed disease.

9. First, the medical condition question: does the claimant have carpal tunnel syndrome? This is not defined in the legislation, so the normal medical definition applies. The syndrome involves the compression of the median nerve at the wrist, causing symptoms of pain, paraesthesia or sensory loss. This is not intended to be a comprehensive definition.

10. Second, the prescription question: does the claimant satisfy the prescription in paragraph (b)? This depends on whether the terms specified in the Schedule to the Regulations are satisfied.

11. Third, the causation question: was the disease due to the nature of the claimant's employment? The legal burden is on the claimant to prove this. The presumption of causation in regulation 4 is expressly excluded for A12.

12. Fourth, the disablement question: to what extent is the claimant disabled by the prescribed disease?

13. It is not necessary to consider all those questions in every case. A negative answer to any one of them is fatal to the claim and renders it unnecessary to consider the others.

14. However, it is important to keep the questions separate. Each raises a distinct mixture of medical, legal and factual issues. Transposing an element from one of the questions to another undermines the integrity of the analysis.

15. The tribunal's decision and the first two paragraphs that I have quoted from the tribunal's reasons show that it muddled the issues relevant to these questions.

16. The tribunal gave its decision in terms of the second question - the prescription question. That is clear from paragraph A and D. However, paragraph C deals with the issue whether the prescribed movements had to be the sole or main action involved in the claimant's work. There is no justification for that in the wording of the legislation. It is not a relevant consideration in the prescription question. It may, though, be a relevant factor in other questions. It may be relevant, as part of the claimant's occupational history, to the medical condition question: does she have the condition at all? It may also be relevant to the causation question: was the condition due to the nature of the claimant's employment? But those matters are distinct from the prescription question.

17. The tribunal went wrong either by confusing the factors relevant to each question or by misdirecting itself on the meaning of the legislation.

E. How the tribunal went wrong - use of the IIAC report

18. The prescription in paragraph (b) is based on the recommendation of the Industrial Injuries Advisory Council in its report on Work-related upper limb disorders (2006 Cm 6868). The relevant section of the report reads:

"Consideration of specific conditions

Carpal tunnel syndrome

41. CTS occurs when the median nerve (which runs from the forearm into the hand) becomes squeezed at the wrist. This nerve controls sensations to the thumb, fingers (other than the little finger), and a part of the palm, and also small muscles in the hand that operate the fingers and thumb.

42. The carpal tunnel is a narrow, rigid passageway of ligament and bones at the base of the hand. The median nerve and several tendons pass through it. The nerve may become compressed if the contents of the canal swell (e.g. through thickening of inflamed tendons or because of endocrine or hormonal factors, fluid retention during pregnancy or menopause, rheumatoid arthritis, the development of a cyst or tumour in the canal), or the bony architecture becomes disturbed (e.g. fractures, congenital disorders). Women are more likely than men to develop CTS, perhaps because the tunnel tends to be smaller. The condition is quite common in the general population.

43. The symptoms of CTS include burning, tingling, or numbness in the palm of the hand and the fingers, especially the thumb and the index and middle fingers, night time pain that disturbs sleep, decreased grip strength, and in chronic or untreated cases, wasting of the muscles at the thumb base. Disability arises from poor hand function.

44. Regarding CTS, the commissioned review found that the current terms of prescription in users of hand-held powered vibratory tools are supported by the evidence and remain appropriate, with no strong case for revision. Ideally, research data would enable the level of qualifying exposure to be more closely defined, but at present such detail is not available. However, we would expect symptoms to begin in the job in which hand-held powered vibratory tools were used, and so the Council recommends that the terms of prescription should reflect this.

45. The review found insufficient evidence to extend the terms of prescription on the basis of job title, but a reasonable body of research evidence supporting prescription on the basis of activity in the job.

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.

48. The review identified a few studies of CTS and use of the computer keyboard or mouse, and these did not provide support for prescription.

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 involves repeated palmar flexion and dorsiflexion of the wrist (see Appendix 2 for a diagram of the relevant action) for at least 20 hours per week 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 exposed employment."

19. I have added a copy of Appendix 2 to the end of this decision.

20. It is permissible to have regard to this report in order to understand the mischief that led to the change in legislation (the Tribunal of Commissioners in R(I) 11/81 at paragraph 15) and to resolve any uncertainty or ambiguity in the legislation (Mr Commissioner Goodman in R(I) 4/99 at paragraph 9).

21. The Secretary of State's representative has argued that the tribunal misdirected itself by requiring a particular degree of flexion in order to satisfy the prescription. I accept that submission.

22. It is clear from paragraph B that I have quoted from the chairman's reasons that the tribunal relied on Appendix 2 to the IIAC's report to show that dorsiflexion and palmar flexion to particular degrees was required. In doing so, the tribunal misdirected itself in law for these reasons.

23. First, that is not how I read paragraph 50 of the report. I read it as referring to Appendix 2 in order to demonstrate the nature of the movement involved in dorsiflexion and plantar flexion, not as indicating the degree of movement required.

24. Second, there is nothing in the discussion in the preceding paragraphs of the report to indicate that the degree of movement was relevant to the prescription.

25. Third, the Secretary of State's representative has pointed out that the degree of movement shown on the diagram indicates the normal range of movement. There is nothing in the report to suggest that movement to the maximum degree possible is required for the prescription.

26. Fourth, the terms of the prescription proposed by the IIAC, which were broadly adopted in the legislation, do not mention the degree of movement. They use dorsiflexion and plantar flexion, but those medical terms, so far as definitions in medical dictionaries show, relate only to the direction of movement, not the degree.

27. It is possible that the degree of movement involved in the claimant's employment is relevant to other questions. It may be relevant, as part of the occupational history, to the medical condition question. It may also be relevant to the causation question. But it is not relevant to the prescription question.

F. Disposal

28. I set aside the tribunal's decision. I have to decide whether to remit the case for rehearing or to re-make the decision myself. I have considered whether it is possible to decide that, despite the tribunal's mistakes, its reasoning is sufficient to show that the claimant has failed to satisfy at least one of the questions that arise on her claim. However, without access to medical knowledge and, perhaps, the benefit of further questioning, I am unable to say that. I have, therefore, directed a rehearing.

Appendix 2

DIAGRAM OF PALMAR FLEXION AND DORSIFLEXION