CI 701 1993
| Jurisdiction | UK Non-devolved |
| Judge | V.G.H. Hallett |
| Judgment Date | 03 November 1994 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CI 701 1993 |
| Subject Matter | Industrial diseases |
R(i) 1/97
Mr. V. G.H. Hallett CI/701/1993
3.11.94 CI/738/1993
Prescribed disease D4 (inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour) - medical appeal tribunal deciding “diagnosis” question - whether it is relevant whether or not the condition was caused by the claimant’s work
B and G both claimed disablement benefit in respect of prescribed disease D4. Adjudicating medical authorities decided that they were not suffering from the prescribed disease. They then obtained consultant’s reports, supporting their claims and suggesting that disablement be assessed at 17.5% in B’s case and 15% in G’s case. B appealed to a medical appeal tribunal who decided that he was suffering from prescribed disease D4, because there was “some evidence of irritation of the mucous membrane as a result of dust and fumes at work” but assessed disablement at only 1%. G appealed to a medical appeal tribunal who decided that he was not suffering from prescribed disease D4 but from a “severe degree of allergic rhinitis of constitutional origin”. B and G both appealed to a Commissioner who heard their appeals together
Held, allowing both appeals, that
1. the tribunals had erred in considering whether the claimants’ conditions were caused by their work as those “attribution” questions were matters for adjudication officers and were irrelevant to the “diagnosis” questions before the medical appeal tribunals
2. in G’s case, the tribunal had erred in failing to consider whether the claimant’s condition was produced by dust, liquid or vapour;
3. in B’s case, the tribunal had failed to give adequate reasons for assessing disablement at 1%, having regard in particular to the claimant’s consultant’s assessment, and had erred in assessing disablement from the date of onset rather than from a date 91 days later;
4. where a medical appeal tribunal allowed an appeal from an adjudicating medical authority who had decided the “diagnosis” question against the claimant:
(a) they were entitled to determine the disablement questions notwithstanding that the “attribution” question had not been decided by an adjudication officer;
(b) it would be helpful if they expressed a view on the “attribution” question, particularly where there was no presumption that the prescribed disease was attributable to the prescribed occupation;
(c) if they were of the view that the disease had not been caused by the occupation, they might wish to adjourn the hearing until the adjudication officer had decided whether the claimant had worked in a prescribed occupation and had also decided the “attribution” question.
DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CI/701/1993
Decision
1. This claimant’s appeal succeeds. My decision is that both the decisions of the medical appeal tribunal (MAT) dated 7 June 1993 namely (a) that on the diagnosis question and (b) that on the disablement benefit question are erroneous in law. I set them aside and refer the case to another MAT for determination in accordance with my directions.
Representation
2. I held an oral hearing of this appeal (which I shall refer to as “Blackwell”) and of another appeal the reference to which on Commissioner’s file is CI/738/1993 and which I shall refer to as “Greer”. In each of these cases, the claimant was represented by Mr. Richard Drabble, of Counsel, instructed by Messrs. Mortons, Solicitors, and did not attend the oral hearing. The Secretary of State was, in each case, represented by Mr. W. Howard Connell of the Solicitor’s Office, Departments of Health and Social Security.
Nature of the appeals
3. Both appeals relate to claims for industrial disablement benefit for prescribed industrial disease D4 (inflammation of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour). Their background is explained in my decision in Greer’s case a copy of which accompanies this decision.
4. The appeal in Blackwell relates to the decisions of the MAT assessing disablement at 1% (the minimum assessment where a loss of faculty has been found: see section 103(5) of the Social Security Contributions and Benefits Act 1992). That assessment was made on the decision on the diagnosis question and is then referred to in the decision, on a separate form, relating to the disablement question. So both decisions are the subject of the appeal. They give rise to the question whether, in a case where (as happens with PD D4) there is no presumption that, unless the contrary is proved, the disease is due to the nature of the claimant’s employed earner’s employment, there is jurisdiction to decide the disablement question and, if so, whether it ought to be exercised, before any decision has been given by the statutory authorities (who include the adjudication officer) that the prescribed disease was attributable to the prescribed occupation. If the answer is that there is jurisdiction which ought in the circumstances to be exercised, the question whether reasons must be given to explain the percentage awarded falls to be decided. Both are questions of general importance.
The relevant law
5. The relevant statutory provisions relating to the jurisdiction issue are set out in the appendix to this decision. Those relating to the prescribed disease, the prescribed occupation and the provisions relating to the statutory presumption are set out in the appendix to my decision in Greer’s case.
The claim
6. On 23 April 1992, the claimant (a man born on 25 April 1953) claimed industrial disablement benefit for prescribed industrial disease D4. He stated that he considered that the work which caused his disease was shipbuilding and engineering at Sunderland Shipbuilders’ and Wear Dock Engineering Deptford Works, Welding Department, in the occupation of welder. He stated his disablement began in 1984 and that he was doing such work to date.
The adjudication officer’s decision
7. A factual report was obtained from the claimant’s general practitioner who stated that the condition had not been diagnosed in his patient at any time and that the patient had been suffering from seborrhoea dermatitis, appendicitis and minor ailments. Following receipt of this report an adjudication officer decided that the claimant was not suffering from PD D4 and disallowed the claim. The claimant appealed to an adjudicating medical authority (AMA) against this decision.
The AMA’s decision
8. The AMA had before them the factual report and a statement that benefit was claimed from 1 January 1984 and that his employment as a welder with Sunderland Shipbuilders was from 3 September 1968 to date. Their decision, which was given on 29 September 1992, after examining the claimant, was that they found no evidence of past or present PD D4, that his history and examination suggested vasomotor rhinitis and that he was not suffering from a prescribed disease and that he had not suffered from a prescribed disease at any time since 1 January 1984.
9. The claimant appealed against this decision to an MAT. He supported his appeal with a report dated 25 November 1992 from Mr. V.H. Oswal, F.R.C.S., consultant ear nose and throat surgeon, who after examining the claimant expressed the opinion that the claimant’s nasal symptoms were due to a combination of hypertrophy and damage to the nasal mucosa from exposure to various industrial pollutants, culminating in occupational rhinitis and gave an estimation of the claimant’s percentage handicap as totalling 17.5%.
The Secretary of State’s observations
10. The Secretary of State submitted that in the light of all the medical evidence the decision of the AMA was correct. However, if the MAT decided that the claimant had suffered from PD D4, they were asked to go on to determine to what extent and for what period any disablement resulting from the disease or a sequela thereof should be assessed (regulation 30(3) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1975). If the MAT decided that the date of onset of the prescribed disease was on or after 6 April 1983, the earliest date an assessment could begin was the day following the last day of the period of 90 days (excluding Sundays) starting with the date of onset. [Note: The 1975 Regulations were revoked by the Social Security (Prescribed Diseases) (Industrial Injuries) Regulations 1980 SI 1980, No. 377, which came into operation on 6 April 1983. After various amendments, the current Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 came into force. There is no similar provision in these regulations. That provision has, since 1986, appeared in regulation 47 of the Social Security (Adjudication) Regulations 1986.]
The MAT’s...
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