Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CI/1653/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.      This is a supported appeal with the permission of an Upper Tribunal Judge.  Under section 20(3)(a) of the Social Security Act 1998, “At a hearing before the First-tier Tribunal except in cases or circumstances prescribed by Tribunal Procedure Rules, the tribunal – (a) may not carry out a physical examination of” the claimant.  Regulation 25(2) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 (“The Tribunal Procedure Rules”) provides that “At a hearing an appropriate member of the Tribunal may carry out a physical examination of a person if the case relates to” certain specified disabilities.  “Hearing” is defined by rule 1(3) of those Rules as an oral hearing.

2.     The present case relates to the claimant’s entitlement to industrial injuries benefit and fell within regulation 25(2) so that a physical examination could be carried out by an appropriate member of the Tribunal.  The Tribunal consisted of a judge and a medical member.  It is common ground that the appropriate member is normally, and is here, the medical member and not the tribunal judge.

3.     A medical examination was carried out by the medical member.  Such examinations are commonly carried out in a separate examination room and it would appear that at least in Newcastle upon Tyne most judges do not attend the examination. The judge in the present case, however, has stated that it is his practice to watch the examination in some cases but without taking any part in the examination, although he does not recall if he attended on this occasion, and the medical member has indicated that it was entirely possible that the judge was there, as, unlike other judges, he had been present and watched his examinations on a number of occasions from a distance.  

4.     On this basis, I have no hesitation in accepting the evidence of the claimant that the judge was present.  I also accept the express evidence of the medical member, and the implicit evidence of the claimant, that the judge did not ask the claimant to consent to his presence. The claimant simply states that he was asked if he agreed to a medical examination by the doctor, to which he said yes, and on commencement of the examination the judge entered the examination room and was present throughout the examination.  The fact that the judge might attend does not appear to have been explained prior to the examination, and I am unclear if anybody else, in particular the claimant’s representative, was present.

5.     Finally, I note and accept the evidence of the medical member, which has not been contradicted in the present case by the claimant that the when the judge has attended examinations “he always stands well back, close to the door and I have always had the impression that his purpose was to observe the process of the examination rather than the specific clinical findings themselves.  He never speaks during the examination and at no time has his presence ever compromised the effectiveness of the examination or caused me to adjust the manner in which I have conducted it.”

6.     The principal ground of appeal, and the one which is supported by the Secretary of State, is that the judge ought not to have been present and that his presence constituted an error of law or procedural irregularity which meant that the decision ought to be set aside and the matter remitted to a new tribunal for rehearing.  It is not suggested that the judge did more than observe the examination. 

7.     In giving permission to appeal, Upper Tribunal Judge Bano observed that it may be arguable that the tribunal judge’s presence in the examination room, in a position to observe the examination, was in breach of section 20.  That argument is adopted by the Secretary of State.

8.     While it appears to me that the matter is one which plainly deserves consideration by the Upper Tribunal, no reasons are given by the Secretary of State for the adoption of a point which Judge Bano merely described as arguable.  I am satisfied that simply by coming into the examination and viewing the examination from a distance in silence in the manner described, the judge was not taking any part in that examination and there was no breach of the requirements of section 20(3)(a) of the Social Security Act 1998.  He was in no different position in that respect from the position he would have been in had he later watched a video recording of the examination or the position that, for example, the claimant’s representative would have been in had he stood next to the judge to watch the examination.   

9.     Secondly, even if the judge ought not to have watched the examination, this does not automatically mean that the tribunal decision should be set aside.  For that to happen it would still have to be shown that evidence unlawfully obtained from the examination was relied on in coming to the decision (CDLA/433/1999), or that the presence of the judge was such a procedural irregularity as to prejudice the hearing in some way.  I have some difficulty in seeing what evidence in the present case can have been unlawfully obtained by the medical member, or how the hearing can have been prejudiced, just because the judge entered the examination room.  It is only if the judge had taken part in carrying out the examination that the evidence obtained from it would have to be disregarded.

10. What this case does reveal is a lack of clarity in the Tribunal Procedure Rules as to the basis on which an examination is carried out by the medical member.  There is no provision in those Rules for the examination to be in private, although that is understandably what commonly happens.  Rather they provide for the examination to be “at a hearing”.  The purpose of the examination is to obtain evidence for the tribunal to take into account in reaching its decision.  The evidence is obtained directly by the tribunal member.  Where evidence is being provided directly to a tribunal member, it might be argued that the claimant’s representative and, where there is a presenting officer, that presenting officer, ought to be entitled to be present when the evidence is given.  There is nothing in the rules which precludes the examination from being seen by them, or indeed by the tribunal judge, so long as he takes, and can be seen to take, no part in carrying out the examination.

11. On the other hand, in many cases a claimant could be seriously embarrassed if asked to submit to an examination in front of the judge and the representatives – the public, if there were any, could always be excluded from that part of the hearing by a judicial direction.  In accordance with the overriding objective set out in rule 2 of the Tribunal Procedure Rules, to deal with the matter fairly and justly, it appears to me that the tribunal should consider under what conditions the examination should best be carried out by the medical member, so as to ensure that there was a proper and fair hearing, and to avoid, so far as practicable, embarrassment to the claimant, leading to a possibly legitimate refusal to be examined.  It should also ensure that the claimant is aware of those conditions and has the opportunity to comment on them before the examination takes place.

12. Judges do not usually attend the medical examination.  There is the risk of them being seen to participate in the examination if they do attend.  However, so long as it is clear that they are not participating in any way, but are only observing, so that there is no apparent contravention of section 20(3)(a), my provisional view is that there is nothing in the Tribunal Procedure Rules which prevents them from doing so in cases where that is in accordance with the overriding objective.  As the point has not been argued before me, and it is a difficult issue which is not necessary for my decision, I express no concluded view on it.  If it is the case that the judge can attend the examination, and wishes to do so, then that intention ought to be made clear in advance and any objections considered sympathetically bearing in mind the overriding objective.

13. It appears to me that, even if he was entitled to attend and watch, the judge ought to have made it clear in this case before the examination that he was proposing to attend and ensured that the claimant had no objection to this or that any objection was ruled on with a view to ensuring, so far as practicable, that the parties were able to participate fully in the proceedings and that the special expertise of the tribunal member was used effectively.  No explanation has been offered by the judge why it was in the present case that he considered it appropriate to attend the examination when that was not his universal practice.  That was a procedural irregularity but not such as to affect the outcome of the case in any way.  Nor was it one which appears to have been objected to by the claimant’s representative at the time.  In all the circumstances it does not give any ground to set aside the decision.

14. I therefore turn to the remaining criticisms of the decision.  It appears to me that, despite the claimant’s criticisms of the statement of reasons, and although some parts of that statement are difficult to follow, the basic reasons why the claimant lost are clear.  The claimant had previously been found to have suffered an industrial injury on 30 November 2005, when he was said to have damaged his shoulder when dealing with scaffolding.  The claimant’s GP’s medical records had been produced to the tribunal at its direction, and had not been seen either by any examining medical practitioner or by an earlier tribunal which had found in his favour, was that his shoulder problems already existed prior to the date relied on as the date of the accident.  Indeed an entry for 25 October 2001 refers to him attending the GP with glenohumeral joint dysfunction due to years of strain as a scaffolder.  This was followed by a shoulder x-ray a few weeks later.  The shoulder problem appears to have cleared but to have recurred by 19 March 2002.

15. Those records also showed that the claimant had not received any treatment from his GP in connection with any shoulder problem after the accident, but had sought a sick note on 5 December 2005 because of hip pain and had been signed off work by the GP because of his hip and uncontrolled hypertension.  His hip had been x-rayed two days later, and again on 22 December 2005 there is a record of his right hip getting pain with heavy lifting and a lot of climbing.  High blood pressure readings are also recorded in December and January.  It is only on 24 April 2006 that he is recorded as consulting the GP in relation to shoulder pain.

16. Further, when making the original claim in June 2007, the claimant is recorded as saying both that the injuries were over a period of time on oil platforms in the North Sea, leading to an accident at 5pm on 30 November 2005 (file, p.4), and in response to the question “What was the accident and what were you doing?” the claimant is recorded as replying “Dismantling scaffolding with seized fittings on Dunbar platform.  Progressive damage to my right shoulder and knee erecting and dismantling scaffolding heavy manual labour.”  The injuries were described as right shoulder joint damaged and right knee damaged (p.5).

17. An unsigned statement by him dated 5 September 2007 stated “On 30/11/05 I was dismantling a series of scaffolding joints which were old and seized when I felt a pain in my (R shoulder.  I was able to carry on with work and finish my shift that day…  My GP found I had high blood pressure & I was not able to return to the rig” (p.19).  The medical report on p.20 found no difference in shoulder movements between the left and right shoulders except for a minor reduction in right shoulder abduction, although pushing and pulling was declined by the claimant due to a painful right shoulder.  The medical examiner concluded that there was no relevant loss of physical faculty as a result of the accident on 30 November 2005 but that there was general arthritis unrelated to the accident.

18.  This decision was overturned by a tribunal on appeal on 11 December 2007.  The tribunal found that impaired movement of the right upper limb resulted from the accident on 30 November 2005, and disablement was assessed at 20% from 15 March 2006 to 14 March 2009.  The record of the proceedings on that occasion, at p.46 of the file, records the claimant as stating that near the end of his shift on 30 November 2005 he was undoing some very stiff bolts and felt a pain in his shoulder and that by the time of the hearing he could not lift or carry anything above 2kg and could not raise his arm above his chin.  He had had a shoulder x-ray in 2001 because of tenosinovitis and it was clear.  He had had no pain in his shoulder prior to the accident.  The incident stopped him working.  He saw the GP immediately after the accident (I note that the words “9 months after” had been crossed out).

19. It was on the basis of that evidence that that tribunal concluded, as set out in its statement of reasons at p.45, that the claimant had suffered a rotator cuff injury on 30 November 2005. That evidence conflicts, however, with that in the GP records, which shows that he had also consulted the GP in March 2002 about his shoulder, and more significantly it fails to explain that when he had consulted the GP after the accident it was about his hip and uncontrolled hypertension, and not his shoulder.  The GP records also indicate that as early as 2001 the claimant’s shoulder problems were regarded either by him or by the GP as due to years of strain as a scaffolder, which appears to accord with the statements at p.5 that the damage both to his shoulder and to his knee was progressive.

20. There were also medical reports before the tribunal now under appeal as to the claimant’s shoulder indicating that in May 2006 there was minimal degenerative change at the acromioclavicular joint and slight irregularity of the greater tuberosity, but no other bone or joint abnormality and no soft tissue calcification (pp.72-73).

21. In addition there were medical reports prepared in relation to this industrial injury claim in 2009 and 2011.  A letter from his GP dated 27 January 2009 stated that there was x-ray evidence of damage to his right shoulder which had developed between 2001 and 2006.  The letter went on to note that his job had involved him in carrying heavy objects on his right shoulder and that this may be one of the precipitating causes of the current changes visible on his x-ray.  Again I note that the GP, who would appear from his initials to have been the GP who saw him in December 2005, makes no reference to any accident causing the problem. 

22. On 5 May 2009 the claimant had told the medical examiner that his shoulder had worsened since his last assessment, which appears to have been that in 2007.  I note that his right shoulder movements as recorded on this occasion at p.30, were significantly more limited that those recorded on 5 September 2007, but significantly better than those recorded at a further examination on 6 January 2011 (p.36).  I also note that in January 2011 the medical examiner, who reduced the degree of disablement from 20% to 10%, specifically noted that there was no evidence of muscle wasting.  These examiners proceeded on the assumption that the injury was caused by the supposed accident on 30 November 2005 in assessing loss of function.

23. A further letter from the claimant’s GP dated 27 May 2011 specifically refers to the diagnosis of glenohumeral joint dysfunction in 2001 as being related to his occupation as a scaffolder, and to the x-ray of his shoulder as being normal.  It went on to refer to the 2006 and 2011 x-rays and to the claimant’s complaints over the previous 5 years of pain in his shoulder.

24. The claimant was represented at the tribunal hearing on 5 January 2012 and gave evidence.  He was warned that the tribunal could remove all entitlement but proceeded.  The relevant parts of the GP’s medical records were put to him.  He stated that after the accident on 30 November 2005 he had seen the GP straightaway.  He was asked why, if his shoulder and knee were so bad, was nothing recorded about them?  He stated that he kept referring to his shoulder but the GP kept saying that he needed to get his blood pressure under control.  He also stated that he fell on his shoulder, which was not something that appeared in any earlier evidence.  The claimant had also stated in evidence that he had received an insurance payout as a result of the 2001 shoulder injury.  The record of the proceedings concluded with the results of the medical member’s examination, which showed no obvious wasting but with flexion, abduction and internal and external rotation seriously reduced compared with all previous reports.

25. The tribunal concluded that from 15 March 2011 there was no loss of faculty resulting from the accident and that the accident on 30 November 2005 aggravated a pre-existing degenerative condition which had continued to degenerate.  It also concluded, and this is not the subject of any appeal, that at no stage did the accident cause any disablement to the right knee or right hip.

26. The lengthy statement of reasons points out that the tribunal had the benefit of the GP’s medical records, which the previous tribunal did not have. They showed that the claimant had had problems with his shoulder going back to 2001 and that he had had an exacerbation in May 2005.  I am unclear where the date of May 2005 comes from as there is no medical record to that effect.  The tribunal considered that he had generalised osteoarthritis, a degenerative condition.  The medical opinion of the medical member was that the significant deterioration in his condition between 2007 and 2011 was not due to soft tissue injury but to degenerative changes.

27. The statement of reasons goes on to state at paragraph 15, contrary to the findings of the previous tribunal that the evidence showed that he did not have rotator cuff problems.  It does not immediately explain what evidence showed this bearing in mind the contrary opinion of the previous tribunal, but some reasons appear subsequently at paragraphs 20-21.  It concludes that the claimant suffered a soft tissue injury to the muscle of the shoulder at the time of the accident.  It also concludes that symptoms suffered by the claimant appeared to be significantly out of proportion to the x-ray changes but also notes that there was no hard and fast correlation between x-ray changes and symptoms.

28. The tribunal rejected the evidence of the claimant that he had consulted the GP about his shoulder in the light of the evidence of the medical records.  It rejected the claimant’s evidence as to why the GP did not look at his shoulder as not making sense.  It also pointed out a conflict between what he had said at p.18 in 2007, that he had carried on after the accident and finished his shift and what he had told them that he had had to stop and rest.  It found that time had played tricks with his memory and that his account at the hearing was not accurate.  That is a finding of fact that it was fully entitled to make on the evidence before it.  It also gave further reasons in paragraphs 34 and 35 of the statement of reasons as to why it considered the claimant’s evidence to be exaggerated and unreliable and again I can find no fault in that reasoning.

29. I have less confidence in the reasoning in paragraphs 38 and 39, based on the claimant’s explanation on 22 December 2005 that his right hip got pain with heavy lifting and a lot of climbing, that the claimant continued to carry heavy weights and do a lot of climbing after 30 November 2005.  That would seem to overlook that he had been signed off work at least from 5 December as a result of his hip problem and hypertension and had probably not been at work on the rig since 30 November.  That does not detract, however, from the earlier conclusion, which in my judgment was one that the tribunal was fully entitled to come to, based on the evidence previously referred to, that the claimant suffered only a minor muscle injury on 30 November 2005.  It was also fully entitled to come to the conclusion to which it came that any problems with his joints were the result of degenerative changes and the consequence of longstanding heavy manual work.

30. Moreover, this conclusion would seem to be irresistible even ignoring the evidence from the examination at the hearing in the light of the evidence that (a) the claimant had had shoulder problems prior to 2005 which had been attributed to such work, (b) the claimant had stated in 2007 that he had had a pain in his shoulder but had been able to continue and finish his shift, (c) that he had been signed off at the time because of other problems and, as would appear from the GP’s notes, he had not even consulted his GP about his shoulder problem for almost 5 months after the accident (if there was one) despite seeing his GP at least 8 times in that period about other problems.

31. The appeal is therefore dismissed.

(signed) Michael Mark

Judge of the Upper Tribunal

22 August 2013