DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

 

The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 2 August 2010 under file reference 228/09/04619 does not involve an error on a point of law.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The appellant’s case

 

1. The appellant’s case is simple.  He believes he is entitled to an award of industrial disablement benefit for the prescribed disease (PD) of osteoarthritis of the knee (PD A14) or “coalminer’s knee”.  He explained in his original letter of appeal that “this is because I had to crawl on my knees for forty years for I worked as a face worker at 5 different collieries”.  Unfortunately the law is not quite so simple.

 

The history of the claim

 

2. On 13 July 2009 PD A14 was added to the list of prescribed industrial diseases in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1995 (SI 1995/967; “the 1995 Regulations”).  On the very same day the appellant, who was then aged 70, made his claim for A14.  He explained that he had been a colliery piece worker from 1953 until 1968 and then a face worker from 1973 until 1986.

 

3. On 13 August 2009 the appellant was examined by a doctor on behalf of the Department. The appellant apparently told the doctor that the knee problems started around 1968. However, the examining doctor recorded various clinical findings and summarised his opinion as follows:

 

“The customer has symptoms of osteoarthritis but physical examination showed mild to moderate signs of osteoarthritis.  He is on mild pain killers and has not seen a specialist for the problem.  In my view he has degenerative disease which is in keeping with his age.  This is unlikely to be attributed to the career he pursued.”

 

4. On 28 August 2009 a decision maker accepted that opinion and issued a decision disallowing the claim for industrial disablement benefit “as PD A14 not diagnosed”.

 

5. On 27 April 2010 a First-tier Tribunal adjourned for copies of the appellant’s GP records relating to his knee problem.  These were duly provided.  They showed consultations with the GP going back to 2000, but not before, over knee problems.  There were also copies of hospital X-ray reports from January 2001 (“no abnormality detected”) and May 2010 (“minimal reduction in the medial joint space.  No other significant abnormality demonstrated”).

 

 

The First-tier Tribunal’s decision

 

6. On 2 August 2010 the First-tier Tribunal heard the appeal.  The tribunal’s decision notice stated that the appeal was dismissed and the Secretary of State’s decision confirmed; “at no time since 13/07/2009 has the appellant suffered from Prescribed Disease No A14”.

 

7. The tribunal’s statement of reasons summarised the clinical findings of the tribunal’s medical member, reviewed the evidence and accepted that the appellant had osteoarthritis of the knees.

 

8. The central part of the tribunal’s reasoning for dismissing the appeal was at paragraphs 8-10 of the statement of reasons:

 

“8. Today [the appellant] told the Tribunal that he first began to have real problems in the knees some 10 to 15 years ago. That would be consistent with him being referred for x-ray in 2001.  A previous tribunal had requested his GP to supply copies of entries with his medical notes relevant to problems with the knees.  The notes supplied start in 2000 which again is consistent with his claim that he first began to have serious problems with the knees some 10 to 15 years ago.

 

9. This is at odds with the date of 1968 for the beginning of problems with his knees in that if he had problems at the beginning of 1968 then the Tribunal would have expected him to have firstly noticeable problems by the time he left the mines some 18 years later and secondly significantly more demonstrable evidence of osteoarthritis with the knees by the time he was x-rayed in 2001.

 

10. The Tribunal therefore concluded that whilst he has osteoarthritis of the knees it is not due to his employment as a miner but as the EMP indicated is degenerative in nature.  This is reinforced by virtue of the fact that the appellant in evidence to the Tribunal states that his knees have gradually deteriorated and are getting worse over the years.  This is in conjunction with his comment that problems really started some 10 to 15 years ago.”

 

The submissions to the Upper Tribunal

 

9. The appellant appeals to the Upper Tribunal with my permission.  His main point, understandably perhaps, is that he “cannot believe that anyone can disregard 28 years working at the coal face would not have a severe effect on any person’s knees.”  He pointed out that he has spent more than half his working life working on his knees.

 

10. Ms Denise Taylor, in a written submission for the Secretary of State, does not support the appeal.  In summary, she argues that the tribunal was entitled to reach the decision it did, namely that the appellant’s osteoarthritis of the knee was caused by degenerative changes rather than by his former occupation as a miner.

 

The prescription of osteoarthritis of the knee in coal miners

 

11. The decision on whether to prescribe a particular industrial disease is taken by the Secretary of State on the advice of an expert independent committee, the Industrial Injuries Advisory Council (IIAC). The background to the prescription of A14 was discussed in DM v Secretary of State for Work and Pensions (II) [2010] UKUT 207 (AAC) (at paragraphs 5-9).  Statute requires that there must be a recognised risk to workers in a particular occupation and the link between the disease and the occupation must be capable of being established or reasonably presumed in individual cases (Social Security Contributions and Benefits Act (SSCBA) 1992, section 108(2)).  In practice IIAC looks for a doubling of risk in the epidemiological evidence to meet this statutory requirement.  The doubling of risk means just that: a coal miner is more than twice as likely to suffer from the condition as someone who has not worked in the industry – it does not mean that all former coal miners with osteoarthritis of the knee have the condition as a direct result of their work.

 

The causation test and the statutory presumption

 

12. Accordingly the simple fact that a coal miner or former coal miner has osteoarthritis of the knee does not automatically qualify them for an award of benefit based on PD A14.  The statutory conditions still need to be met.  One of these is the causation test.  So it is not enough that a disease has been prescribed for a particular group of workers; it must also be shown that the particular worker’s condition is due to his or her (former) occupation.  This is plain from the words of section 108(1) of the SSCBA 1992, which refers to the claimant having a prescribed disease or injury “which is a disease or injury due to the nature of their employment”.

 

13. In certain circumstances there may be a presumption that a disease is due to the nature of the employment in question.  Those circumstances are set out in regulation 4(1) of the 1995 Regulations.  The presumption does not apply to all prescribed diseases (although in principle it can apply to A14).  However, the presumption applies “unless the contrary is proved” and, most importantly, only where the person is treated as having developed the disease either whilst working in the relevant occupation or within one month of leaving such employment.  Such a rule is of little value in the case of conditions – such as osteoarthritis of the knee – which are known to be latent conditions (i.e. the effects of the underlying condition do not manifest themselves until some years later).

 

The First-tier Tribunal’s approach

 

14. In the present case the tribunal explained why it did not accept that the appellant’s knee problems had started as early as 1968, when he had been working as a miner.  Based on his evidence to the tribunal, and the GP medical records, it concluded that the problems started 10 to 15 years ago (i.e. between 1995 and 2000), a decade or so after the appellant had been made redundant from the mines in 1986.  On that basis the statutory presumption in regulation 4 could not assist him.

 

15. In the absence of that presumption, the burden was on the appellant to show that he met the conditions of entitlement.  It was clear that the appellant met the “10 year test” in Schedule 1 to the 1995 Regulations.  The tribunal also accepted that he had osteoarthritis of the knees.  However, the tribunal explained why it had decided that the appellant’s condition was due to degenerative changes rather than to his occupation.

 

16. There is, of course, nothing to distinguish knee disorders in miners from those found in the population at large.  Moreover, as IIAC recognised, “a major risk factor in osteoarthritis of the knee is increased age; most people will have some symptoms of osteoarthritis by the time they are 70” (Osteoarthritis in the knee in coal miners (Cm 7440, August 2008), paragraph 26).  So there is no clinical or radiological test which can differentiate osteoarthritis of the knee due to work as a coal miner to osteoarthritis of the knee caused by other factors (e.g. old age, previous knee injury, obesity etc.).  In the absence of any such precise test, tribunals have to do the best they can on the basis of the medical evidence and the occupational history in the particular case.  This tribunal did just that and its approach shows no error of law.

 

17. There is, however, one aspect of the tribunal’s approach to the causation issue which is somewhat troubling.  The tribunal seems to have assumed it was faced with a binary choice: either the appellant’s osteoarthritis of the knee was due to degenerative changes or it was caused by his former occupation.  However, given the absence of any specific diagnostic features to distinguish one cause from the other, it seems to me the choice was actually three-fold.  First, the condition may have been caused by degenerative changes.  Secondly, it may have been caused by his former occupation.  Thirdly, both factors may have been in play.

 

18. However, I am not convinced that the tribunal erred in law in the particular circumstances of this case.  Even allowing for possible latency in the development of his knee problems, there was a very long gap between the appellant ceasing work in the mines (1986) and his osteoarthritis developing (1995-2010).  On those facts the tribunal was entitled to approach the causation question on an “either/or” basis.

 

The assessment of disablement

 

19. As the tribunal found that the appellant’s osteoarthritis was not due to his former work, it did not need to make a decision on the level of disablement.  However, even if the tribunal had found the condition to be occupationally-related, it does not follow that it would necessarily have made an assessment of disablement at a particular percentage.  IIAC commented as follows on the nature and severity of the condition (at paragraph 63 of their 2008 report):

 

“… The diagnosis of knee osteoarthritis is relatively straight forward and usually supported by objective verifiable radiological evidence of disease. However, such changes become increasingly common with age, and mild degrees of osteoarthritis may be considered a normal finding in the elderly population from whom many claimants would be drawn; under these circumstances risks would no longer be doubled relative to the general population and there could well be little or no assessable disablement in comparison to a person of the same age and sex in those above age 70 with knee OA.”

 

The proper form of wording to be used where causation is not established

 

20. The tribunal’s decision notice confirmed the Secretary of State’s decision in the following terms: “at no time since 13/07/2009 has the appellant suffered from Prescribed Disease No A14”.

 

21. This was the wrong way of putting the point.  If a decision maker or tribunal finds that there is no occupational cause for the condition, then the proper approach is to find that the claimant has PD A14 but to refuse benefit because the condition does not arise by reason of an occupation listed in column 2 of Schedule 1 to the 1995 Regulations.  This is because A14 is not one of the conditions (such as A10) which expressly include the “due to” criterion in column 1 of the Schedule.  So, as explained above, a miner of 10 years or more who has osteoarthritis of the knee from whatever cause has A14 but will not qualify for industrial disablement benefit if he fails the test in section 108(1) of the SSCBA 1992 (i.e. the requirement that the prescribed disease is “due to the nature of his employment” in his case).

 

22. However, despite this error, I do not find that the tribunal’s decision involves an error of law.  The tribunal’s decision notice and the statement of reasons have to be read together.  Taken as a whole, the tribunal clearly accepted that the appellant had osteoarthritis of the knee (A14) but decided that it had not been caused by his former occupation.  It would be a pointless and hollow victory for the appellant for me to allow his appeal, set aside the tribunal’s decision and then simply re-make the decision to the same effect.

 

Conclusion

 

23. I conclude that the decision of the First-tier Tribunal does not involve a material error of law and dismiss the appeal.

 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 29 March 2011 Judge of the Upper Tribunal