Decision No: C2/01-02(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, by the claimant, leave having been granted by the Chief Commissioner, against a decision dated 13 April 2000 of an Appeal Tribunal sitting at Belfast.  That Tribunal had been dealing with the claimant’s appeal in connection with her claim for Industrial Disablement Benefit.  The claimant was claiming that Benefit on the basis that she had suffered and was suffering from a disease, Prescribed Disease C3 in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986.  The prescription disease as set out in the said Regulations is as follows:

“Poisoning by phosphorus or an inorganic compound of phosphorus or poisoning due to the anti-cholinesterase or pseudo anti-cholinesterase action of organic phosphorus compounds.”

2.	The claimant had already been accepted by the Department as having worked in an occupation prescribed by the said Regulations in relation to that disease, being an occupation which involved the use or handling of or exposure to the fumes, dust or vapour of, phosphorus or a compound of phosphorus, or a substance containing phosphorus.

3.	The significance of this was that, if the claimant was diagnosed as suffering from the disease in question, she had the benefit of a presumption (Reg 4 of the said Regulations) that the disease had been caused by the occupation.  The fact that she worked in an occupation prescribed in relation to that disease did not of itself create a legal presumption that she suffered from the disease though it could, of course, be part of the relevant history.
4.	The Tribunal, which consisted of a Legally Qualified Chairman and two Medically Qualified Panel Members decided that the claimant had not at any time suffered from the relevant disease and disallowed her appeal.  I set out below the Tribunal’s reasons for its decision:

“The Tribunal accepts the Departments submission that the claimant was employed in an occupation which is prescribed in relation to Prescribed Disease C3, that is, an occupation involving the use or handling of, or exposure to the fumes, dust or vapour of phosphorus or a compound of phosphorus or a substance containing phosphorus.  She was employed from February 1987 to June 1988.

Having taken account of all the evidence presented to the Tribunal, we conclude that the claimant is not, on the balance of probabilities, suffering from poisoning, within the terms of C3, for the following reasons: -
	
1.	The evidence does not suggest any history of acute toxic poisoning, without which chronic symptoms do not usually occur.  The claimant worked in the factory for 14 months in total, only some of the sheepskins would have had remains of sheep dip on them and the claimant could only have been exposed to this by inhalation of dust or fumes through the open windows where she was working.  At best, Dr J..., whose report is relied on in support of the claimant’s case, is able to say only that “it is possible that she may well be suffering from the long term effects of exposure to neurotoxic substances, particularly those absorbed through the skin.”  It is unlikely that the claimant experienced much exposure in this way, as by the time the skins had been washed, chemically processed and dyed, and reached the final stages of the production process, at which she was handling them, it seems probable that most organo-phosphorus would have been washed off.

2.	The claimant has had a wide variety of physical symptoms, at different times, including tiredness, weakness, “pins and needles”, headaches, nausea, loss of balance, epigastric pain, food allergies, pains in her legs and lower back.  When she first consulted Dr Ja.., some 6 weeks after the onset of symptoms, she was discovered to be pregnant with the first of her two daughters, which could have accounted for some symptoms, including nausea.  The back pain, which has been a frequent feature, could be accounted for by a prolapsed lumbar disc shown by MRI scan at the Ulster Hospital in 1999.  Despite extensive investigations no other diagnosis has been made apart from anaemia and no abnormality otherwise noted.  Dr J... found no abnormality, and the autonomic nervous system tests carried out by Dr Ju.. revealed only evidence of borderline muscle sympathetic tone, selective damage of autonomic targets in the skin, in large blood vessels.  Whilst Dr Ju.. concludes that these abnormalities are probably due to (unspecified) toxic origin, they would not explain the symptoms complained of by the claimant.  She has also suffered from psychiatric symptoms, the first referral being in 1990.

3.	Whilst the claimant complains of limited mobility and excessive fatigue, these symptoms being present since the outset, objective testing in the form of a treadmill test in July 1995 concluded that she had “good exercise tolerance” which is not compatible with the claimant’s estimate of her capabilities.”

5.	The claimant appealed to me, her grounds of appeal being set out in a letter dated 23 April 2001.  Observations were made on the application by Mrs Gunning of the Decision Making and Appeals Unit of the Department for Social Development by letter dated 23 August 2001 and further comment on the Department’s observations (an extension of time for the making of these further comments having been granted) was made by Mr Stockman of The Law Centre (NI) by letter dated 8 October 2001.

6.	I directed that the parties submit and exchange skeleton arguments within five weeks from the date of that letter.  Mrs Gunning submitted same by letter of 14 March 2002 and sent a copy to the claimant and to the Law Centre.  Due, I understand to staffing difficulties, Law Centre’s skeleton argument was not received until 9 May 2002 (the day before the date for the oral hearing).  However, Mrs Gunning indicated at hearing that she was not prejudiced by this delay and was prepared to proceed.  I therefore decided to proceed with the hearing.

7.	The claimant attended the hearing, with Mrs Carty of the Law Centre as her representative (Mrs Carty having recently taken over the case).  Mrs Gunning also attended.  I am grateful to Mrs Carty and to Mrs Gunning for their assistance.

8.	Essentially the arguments on behalf of the claimant were, firstly, that the Tribunal had been wrong in concluding that the claimant had not shown that she was suffering from Prescribed Disease (PD) C3 as the medical evidence which she had adduced was sufficient to satisfy the standard of proof on the balance of probabilities.  In particular reliance was placed on a report  by Dr.Ju.. dated 13 October 1999 and by Dr J... dated 22 February 2000.

9.	The Law Centre secondly submitted that the Tribunal gave undue weight to the issue of exposure in dismissing the evidence adduced by the claimant.  Its third submission was that the Tribunal had erred in linking symptoms and exposure as that link went to the issue of loss of faculty rather than diagnosis.  The Law Centre’s fourth argument was that the Tribunal had erred in basing its decision on the results of the claimant’s treadmill tests.  The Law Centre submitted that while the extent of the claimant’s mobility and fatigue was relevant to the degree of loss of faculty, it was not a basis for rejecting the claim that she suffered from a prescribed disease.

10.	Mrs Gunning opposed the appeal.  She submitted that Dr J...’s report, on which the claimant relied as evidence, was somewhat vague as to his conclusions and that the Tribunal was entitled to decide as it did.  She submitted that the Tribunal’s explanation for its decision was adequate and that the Tribunal was entitled to take account of the extent of exposure.  As regards the final point of the Law Centre’s argument Mrs Gunning submitted that this was an assessment of credibility in that the Tribunal apparently considered the claimant’s contentions as to her symptoms were not borne out by the treadmill test.  Mrs Gunning submitted that the balance in this case was not tipped in favour of the claimant and as she had to prove her case on the balance of probabilities, she must fail.

11.	As regards Mrs Carty’s point in relation to the issue of loss of faculty, Mrs Gunning did not think that could be separated completely from diagnosis because, under the legislation, to be diagnosed as suffering from a prescribed disease a claimant must have an assessment of 1%.  Mrs Gunning submitted that the Tribunal was giving its view that the abnormalities found by Dr Ju.. (whose report the claimant had submitted to the Tribunal and on which Dr J... had reported) did not explain the symptoms on which the claimant based her claim.  She considered that his findings did raise a possible issue of toxic poisoning but submitted that the Tribunal’s reasoning was adequate to cover this matter.

12.	Mrs Carty raised a further issue, that the claimant had relied on an MS17 document in her application for leave to appeal.  This document appeared to have been handed in by the claimant’s representative at the Tribunal and was considered to be very important.  Mrs Carty considered that the Tribunal should have referred to this document in its reasoning but conceded that without a Record of Proceedings (same not having been sought within the requisite time limit in this case) she could not comment on what actually happened.  Mrs Carty submitted that the findings of Dr Ju.. did of themselves raise the issue of toxic poisoning.  The claimant’s occupation was a prescribed occupation and a link to toxic poisoning was therefore established.  Her symptoms thereafter should only be considered in connection with the issue of the extent of disablement.

REASONING

13.	The Tribunal in this case had to decide on the diagnostic question of whether or not the claimant had suffered at any time or was still suffering from PDC3.  It is important to note that the prescription of the disease required not only that she be found to be suffering from poisoning but that this poisoning be by particular substances.  That being so I fail to see how the Tribunal erred in giving the weight it did to the issues of exposure to such substances.  It would have been difficult for the Tribunal in this case to explore properly the issue of whether or not the claimant suffered from a disease prescribed with relevance to exposure to particular substances without fully exploring the extent and nature of that exposure.  The claimant’s occupation had been accepted as involving such exposure but that was not necessarily the end of the matter.  The extent, type and length of exposure could all be relevant to the question of diagnosis and indeed the claimant’s own medical evidence mentioned this.  I can find no merit in the second ground of appeal.

14.	This is linked to the first ground put forward by Mrs Carty.  The Tribunal did not dismiss the medical evidence produced by the claimant.  It considered whether all the medical and accepted other evidence together established on the balance of probabilities that the claimant suffered from the relevant disease.  It stated, quite correctly, that Dr J..., whose report the claimant relied on and who had before him the autonomic nerve system tests results (these tests having been carried out and reported by Dr Ju..) could say only that “it is possible that she may well be suffering from the long term effects of exposure to neurotoxic substances.”  This is very far from diagnosing toxic poisoning and even further from diagnosing that there was poisoning by the relevant substances.

15.	Dr J...’s report contains, in the section headed “Opinion”, certain passages which I think are important.  First, he alludes to the claimant’s symptoms.  Second, he mentions (and in his history section has mentioned in some detail) the extent of exposure to certain substances.  He refers also to the normal findings on neurological and neurophysical examination but says “ the normality of these does not necessarily [my emphasis] exclude the possibility [my emphasis] of chronic intoxication by the chemicals that she had been exposed to and it is possible that she may well be suffering from the long term effects of exposure to neutrotoxic substances”.

16.	Commenting on Dr Ju..’s findings and interpretation of them as being probably of a toxic origin, he says:

“I would support Dr Ju..’s interpretation that the changes seen are, on the balance of probabilities, caused by (the claimant’s) long term exposure to toxic substances particularly those absorbed through the skin.  This could result from the effects of either pesticides or solvents such as n – butyl keytones”.

17.	It is quite obvious from the above that Dr.J... and I think also Dr. Ju.. relied   on a history of considerable exposure to certain chemicals.  It is also quite apparent that the Tribunal accepted Dr Ju..’s findings.  However, it did not consider the evidence, established on the balance of probabilities, that the claimant suffered from the relevant disease.

18.	As regards Dr Ju..’s report, the Tribunal had commented on the abnormalities found by him.  It noted that he did not specify the toxic origin which he considered to be the probable explanation and noted also that the changes he found would not explain the symptoms complained of by the claimant.  No contention has been made that the Tribunal was wrong in its conclusion that the findings of Dr.Ju.. did not explain the claimant’s symptoms.

19.	Mrs Carty is correct  that symptoms can relate to loss of faculty once a disease is diagnosed but they are obviously relevant to diagnosis.  The claimant was basing her contention that she suffered from the relevant disease on both a history of exposure and on symptomatology.  She had had no diagnosis that she was suffering from the relevant disease despite intensive investigation.  Whilst there was no doubt and the Tribunal noted that Dr Ju.. had found some abnormalities which he considered to be probably due to an unspecified toxic origin, the Tribunal was of the view that these would not explain the symptoms.  These symptoms were one of the main reasons (if not the main reason) for the claimant’s contention that she suffered from the relevant disease.  As Dr Ju..’s findings and Dr J...’s report were adduced in evidence by the claimant it appears to me that the Tribunal was quite correct in considering whether Dr Ju..’s findings explained the symptoms which the claimant was putting forward as being indicative that she suffered from this prescribed disease.  The Tribunal has obviously concluded that they did not. 
 
20.	It is the Tribunal’s view on diagnosis which is important.  It is not bound by the opinion of any medical specialist though it must of course consider their views.  In this case the Tribunal, in considering Dr J... and Dr Ju..’s reports, has expressed the view (which it seems to me it was entitled to do so) that the claimant was unlikely to have had much opportunity to have absorbed the relevant substances through the skin.  This appears to be one of the bases for Dr Ju..’s report and certainly for Dr J...’s opinion.  I therefore consider the Tribunal was entitled to consider whether the basis for the (albeit tentative) medical opinions were accurate.  

21.	 It appears to me, reading the reasoning as a whole, quite clear why the Tribunal (which had a considerable body of medical expertise) was unable to find that the claimant, on the balance of probabilities, was suffering from PDC3.  It has obviously taken all the accepted evidence into account including the claimant’s medical evidence.  It has taken into account the extent of the exposure, the nature of it, the history, the typical (though not necessarily universal) history of chronic toxic poisoning, the symptomatology, the possible alternative explanations for the symptomatology, the investigations done and their results.  Its decision is clearly explained by reference to all these matters and I do not consider that there is any error of law in it, whether as contended by the claimant or otherwise.  As regards the point raised about the MS17 document, without the Record of Proceedings, I do not know what was handed in to the Tribunal nor what, if any, reliance was placed on this document.  The reasons for the decision do, however, indicate that all the evidence was taken into account and they do, as previously stated, adequately explain the decision. 

22.	 I do not consider that the Tribunal was unreasonable in concluding that the medical evidence and other accepted evidence did not satisfy the standard of proof that the claimant did suffer from PDC3.  I can find no error in the Tribunal considering symptomatology in relation to exposure.  Diagnosis of a disease of this nature will be dependent on a variety of factors and salient amongst these will be a link between exposure and symptoms.  If no such link is established it would be difficult to diagnose a disease.  The claimant herself was relying on her symptoms as one of the factors which should lead to a diagnosis that she suffered from the relevant disease.  The Tribunal concluded that the only abnormal findings that were made were not explanatory of the claimant’s symptoms.  No issue was raised or is apparent to me that it erred in reaching this conclusion.  I do consider that the conclusion was relevant to whether or not diagnosis of the disease could be made and can ascertain no error of law in relation to the Tribunal’s approach to this matter. 

23.	I am in agreement with Mrs Gunning as regards the final leg of the Law Centre’s argument.  It does appear to me that the Tribunal was saying that the claimant underestimated her capability (as indicated by her performance on the treadmill test) and that therefore her estimate of her symptomatology in relation to limited mobility and excessive fatigue was not reliable.  This is also relevant to the diagnosis question, these being some of the symptoms put forward by the claimant as indicative that she suffered from the relevant disease and alluded to in her medical evidence as being of some significance.

24.	The Tribunal’s decision appears to me to be reasonable on the accepted evidence.  

25.	I can ascertain no error of law in it.  I therefore dismiss the appeal.

(Signed):  M F  BROWN

COMMISSIONER

24 JUNE 2002