R v Medical Appeal Tribunal (North Midland Region)ex parte Hubble
| Jurisdiction | England & Wales |
| Date | 1958 |
| Court | Divisional Court |
National Insurance - Industrial injuries benefit - Jurisdiction of medical appeal tribunal - Appeal by claimant - Power to set aside award of medical board in claimant's favour -
(1) The claimant, a coal miner, sustained an injury to his back in an accident on July 14, 1955, arising out of and in the course of his employment. After a series of provisional assessments of the extent of his disablement the medical board made a final assessment of the extent of his disability at five per cent. for life from May 13, 1957. The claimant appealed against the smallness of the percentage assessment of the extent of his disablement to a medical appeal tribunal under section 39 (2) of the National Insurance (Industrial Injuries) Act, 1946.F1 There was no reference to the tribunal by the insurance officer on behalf of the Minister under section 39 (3) of the Act of 1946, and the only contention before the tribunal was that the award was too small. By their decision of July 15, 1957, the tribunal set aside the award of the medical board finding that any loss of faculty that may have been received was due to an aggravation of a pre-existing condition and that the aggravation had ceased by May 12, 1957.
A report by a surgeon dated June 28, 1957, had been tendered to the tribunal on the claimant's behalf stating that it was too early to estimate the final assessment of the disability.
(2) Subsequently, on August 2, 1957, the claimant had a further examination by the surgeon, who in his report stated that an operation which the claimant had undergone on July 5, 1957, disclosed the presence of a disc injury, that the disability was the result of an injury, and that the permanent disability would be more than 5 per cent. On the basis of this report the claimant asked for a review of his case under section 40 (1) of the Act of 1946. The reviewing medical board made a provisional assessment of 10 per cent. from May 13, 1957, until June 16, 1957, and of 100 per cent. from July 17, 1957, until October 17, 1957. The decision of the reviewing medical board was referred by the Minister to the medical appeal tribunal under section 39 (3) of the Act of 1946. By their decision of October 28, 1957, the tribunal set aside the reviewing medical board's assessments, finding that the further report of the surgeon was not fresh evidence within section 40 (1) of the Act of 1946.
On applications by the claimant to quash both decisions of the medical appeal tribunal:—
Held, (1) that the medical appeal tribunal had jurisdiction to set aside the award of the medical board, even though there was no contention that the loss of faculty was not caused by the accident; when a case came before it, whether on an appeal by a claimant or on a reference by the Minister, its function was to determine the whole case de novo.
(2) That the further report of the surgeon of August 2, 1957, did not constitute fresh evidence and therefore there was no power to review the decision under section 40 (1) of the Act of 1946; “fresh evidence” was evidence which could not with reasonable diligence have been made available at the hearing, and bore a meaning similar to that which it had under the
APPLICATIONS for orders for certiorari to remove into the court two decisions dated respectively July 15 and October 28, 1957, of the Medical Appeal Tribunal (North Midland Region), made pursuant to the National Insurance (Industrial Injuries) Act, 1946.
The following facts are taken from the judgment.
First decision. — On July 14, 1955, the applicant, Horace Hubble, a coal miner, employed at Hucknall Colliery, Notts, sustained an injury to his back by accident arising out of and in the course of his employment. The injury was diagnosed as a prolapsed intervertebral disc, and he drew injury benefit for the various periods for which he was absent from work until the injury benefit period expired on January 12, 1956. Thereafter, the appropriate medical board at Mansfield made a number of successive provisional assessments of the extent of his disablement for relatively short periods, ultimately expiring on May 12, 1957, and on April 24, 1957, the medical board made a final assessment of the extent of his disability at 5 per cent. from May 13, 1957, for the period of his life, and found that the loss of faculty in respect of which the assessment was made resulted from the accident of July 14, 1955. The effect of the finding was to entitle the applicant to a disablement gratuity under section 12 (6) of the National Insurance (Industrial Injuries) Act, 1946, of an amount which worked out at £67 10s.
On April 30, 1957, the applicant was again off work owing to his back condition and remained off work until on June 17, 1957, he was admitted to Harlow Wood Hospital where, on July 4, 1957, he underwent an operation for removal of a prolapsed disc.
On June 5, 1957, while awaiting admission to hospital, he appealed under section 39 (2) to the medical appeal tribunal against the medical board's decision of April 24, 1957, assessing the extent of his disablement at 5 per cent. The relevant regulations did not require a notice of appeal to be a formal document, but it had to contain a statement of the grounds on which the appeal is made. The applicant's notice of appeal was in the following terms:
“Dear Sirs, I wish to appeal against the final assessment of 5 per cent. awarded to me on 24.4.57. I have only worked 4 days since 24.4.57 and am now awaiting admission to Harlow Wood Hospital. Yours faithfully, H. Hubble.”
This was an appeal against the smallness of the percentage assessment of the extent of his disablement on the grounds that on the medical facts 5 per cent. was too little.
Although the regulations did not provide for the Minister's submitting any written statement to the medical appeal tribunal, there were in fact submitted some written observations by the Minister concluding with a submission that
“having regard to the medical evidence (a) the [applicant's] back condition is only partly attributable to the relevant accident, and (b) the relevant loss of faculty has been correctly assessed.”
The applicant's case was heard by the medical appeal tribunal on July 15, 1957. By that date the claimant had already undergone the operation of July 4, 1957, and was still in hospital. He was represented before the tribunal by a trades union official, who tendered a report by Mr. Malkin, a surgeon who had examined the claimant in hospital on June 28, 1957, before the operation, and expressed the view that it was too early to give an estimate of what the final assessment of the extent of his disablement should be. It appears from Mr. Malkin's report that the claimant had in fact suffered from pain in his back as early as December, 1954, some seven months before the relevant accident of July 14, 1955.
At the hearing before the tribunal, the respective contentions of the applicant and the Minister were advanced. On July 24, 1957, the tribunal notified the claimant of their decision in the following terms:
“Dear Sir, With reference to your claim for disablement benefit the medical appeal tribunal, which considered your case on 15.7.57, decided that (1) from May 13, 1957, there is no loss of faculty resulting from industrial accident on July 14, 1955. The findings of the tribunal are summarized as follows: Mr. Hubble is in hospital but we heard Mr. Clarke of the National Union of Mineworkers with the medical report of June 28, 1957, by Mr. Malkin. It is clear from the medical evidence before us, including the hospital notes, that any loss of faculty which may have resulted from the relevant accident was only an aggravation of a pre-existing condition, which aggravation had ceased by May 12, 1957. We set aside the assessment of medical board of April 24, 1957.”
Second decision. — After the tribunal's decision of July 15, 1957, which was notified to the applicant on July 31, 1957, the applicant remained in hospital and was, on August 2, 1957, examined again by his surgeon, Mr. Malkin, who reported that the operation has disclosed that a disc injury was present. He expressed his opinion that the applicant's disability was the result of an injury, and that his permanent disability would be more than 5 per cent. This report did not differ substantially from his previous report of June 28, 1957, except that he had now obtained positive confirmation of his previous suspicions that a disc injury was present, and he was now prepared to say that the permanent disability would be more than 5 per cent. Armed with this report...
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