CCR/4307/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal in part.  I set aside the decision of the Manchester appeal tribunal dated 4 August 2000 and I substitute my own decision. £13,194.75, representing £1,023.17 statutory sick pay (i.e., 80% of the amount paid from 2 November 1992 to 19 May 1993), £6,379.60 invalidity pension and allowance (paid from 20 May 1993 to 12 April 1995), £1,333 statutory sick pay (paid from 13 April 1995 to 6 September 1995) and £4,458.98 disablement pension (paid from 17 February 1993 to 15 April 1997), is recoverable from the compensator by the Secretary of State.  Incapacity benefit paid from 7 September 1995 and disability living allowance are not recoverable.

REASONS

2.	I held an oral hearing of this appeal at which the compensator was represented by Mr Andrew Axon of counsel, instructed by DLA, solicitors of Sheffield, and the Secretary of State was represented by Ms Shaheen Rahman of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to both counsel for their helpful submissions.

3.	This appeal arises out of the recovery from the compensator by the Secretary of State of benefits paid to the claimant following an accident at her place of work on 2 November 1992.  The claimant was working in a casino as a trainee cashier.  She was kneeling down to count money in a safe when a colleague dropped a heavy plastic tray used for gambling chips onto the back of her head, pushing her forward into the safe.  She was dazed but did not lose consciousness and she attended the accident and emergency department of her local hospital on the following day.  X-rays were taken and a fractured skull was diagnosed.  She subsequently complained of pain radiating from her neck to her left arm and the left side of her face and forehead.  In February 1993, she said she had fainted with headache and nausea on one occasion and she said that she suffered from a continuous background headache with tinnitus, nausea and dizziness on getting up.  There was numbness in the fingertips on her left hand.  An audiogram suggested some hearing loss and a concussional injury to the middle ear was suspected.  However, investigations showed no intracranial abnormality and did not reveal any organic cause for her symptoms.  Post-traumatic stress disorder was diagnosed but it appears that it was later decided that the claimant did not have that condition.  The symptoms all persisted.

4.	On 5 April 1993, the claimant had a second accident which she said occurred when she suffered an acute dizzy spell when getting out of a car.  She fell to the ground and suffered a comminuted fracture of the left radial head, leaving her with some substantial disability in her left arm.

5.	In February 1995, it transpired that the claimant had not in fact suffered a fracture to the skull in her first accident and this led Mr R A Cowie, a consultant neurosurgeon, to state that it was difficult to explain any of the claimant’s symptoms on an organic basis, save that she had minor degenerative changes in the discs of her neck that were consistent with the changes one would have expected in a person of her age.  The ear, nose and throat specialists were divided as to whether the claimant had any hearing loss at all and, if so, whether it could be attributable to an accident of the type the claimant had suffered, with a further dispute as to whether the accident could be said to have caused a whiplash injury, but by November 1999 it was common ground that any continuing hearing and balance problems were psychological.  The psychiatrists were also divided.  They agreed that the claimant suffered from a psychiatric disorder following the accident and that for a period it was due to the accident.  However, they disagreed as to the length of time for which she suffered from symptoms of depression and for which the depression she did suffer was due to the relevant accident.  The position is further complicated by the fact that, after the relevant accident, the claimant had two strokes (one before January 1995 and one in December 1995) and developed Bell’s palsy.  There is no evidence before me that these strokes and the Bell’s palsy, a paralysis of the left side of her face, are results of the accident of 2 November 2002, although it appears that Mr Cowie did postulate a connection in a letter dated 11 January 1995 to Dr P D Mohr, a consultant neurologist.

6.	The claimant sued her employers in respect of the accident that had occurred on 2 November 1992 and she received compensation on 18 November 1999.  The case appears to have been settled at a late stage in the proceedings upon payment of a substantial sum, suggesting that both parties had regard to the risks of litigation but neither the claimant nor the compensator abandoned their positions on the central issue as to whether the claimant was suffering disablement attributable to the accident.

7.	The Secretary of State then recovered from the compensator the social security benefits paid to the claimant during the first five years after the accident.  The certificate of recoverable benefits in the papers before me is dated 26 January 2000 but appears to have been issued in the preceding November.  It lists statutory sick pay, invalidity benefit and incapacity benefit paid in successive periods over the whole five year “relevant period”, disablement pension paid from 17 February 1993 to 15 April 1997 and the mobility component of disability living allowance paid at the lower rate from 22 May 1996 to 30 July 1996.  The total amount paid to the Secretary of State by the compensator was £21,955.05.  The compensator appealed to the tribunal against the certificate of recoverable benefits on the ground that not all the benefits had been paid in respect of the accident.  The tribunal allowed the appeal to a limited extent, finding that disablement benefit, incapacity benefit and disability living allowance had all been paid in respect of the accident but that there was no evidence as to the reason why statutory sick pay and invalidity benefit had been paid and that that benefit was accordingly not paid in respect of the accident.  The compensator appeals with my leave, submitting that the tribunal had wrongly refused to consider whether the claimant was in fact suffering from disability due to the accident throughout the relevant period.  The Secretary of State concedes that the decision of the tribunal is erroneous in point of law but effectively cross-appeals and submits that the tribunal erred in finding that the statutory sick pay and invalidity benefit had not been paid in respect of the accident.

8.	This is yet another case where the certificate of recovery of benefits appears to contain a fairly obvious mistake.  It is apparent from docs 108 and 120, and also from the Secretary of State’s submission to the tribunal, that a final assessment of 18%. disablement for life was made on 5 June 1997 in respect of the claimant’s claim for disablement benefit and that disablement pension was awarded accordingly.  I would have expected disablement pension up to the end of the relevant period to have been included in the certificate, because it has been the Secretary of State’s case that all the benefits paid during that period are recoverable.  I also have difficulty in believing that disability living allowance was awarded for only ten weeks.  The documents do not show any award at all as all that has been produced to me is a claim form and the report of an examining medical practitioner (the latter of which suggests that entitlement to the lowest rate of the care component might have been at least as appropriate as entitlement to the lower rate of the mobility component).  However, this appeal has proceeded on the basis that the certificate accurately reflects the benefits paid to the claimant following the accident and I am prepared to determine this appeal on that assumption, which is favourable to the compensator.

9.	I accept the submissions of both parties that, in the light of R(CR) 1/02, the tribunal erred in law in refusing to consider going behind the awards of benefit.  I also accept the submission of the Secretary of State that the tribunal erred in their reasons for holding that statutory sick pay and invalidity benefit were not recoverable form the compensator, given that it was common ground that the claimant had been disabled as a result of the accident for a period of six months and that there were in the file medical certificates from the claimant’s doctor dated 24 November 1993 and 18 November 1994 (doc 118), each advising the claimant to refrain from work for 12 months due to a neck injury caused by an accident at work, and an adjudication officer’s decision dated 7 June 1994 (doc 15), awarding invalidity benefit to the claimant notwithstanding her lack of contributions because the adjudication officer accepted that her incapacity for work was due to an industrial accident.  The tribunal’s decision must therefore be set aside.

10.	It is common ground that I should substitute my own decision for that of the tribunal, as all the medical reports are before me.  There does not appear to be much dispute about the law.  The question posed by section 11(1)(b) of the Social Security (Recovery of Benefits) Act 1997 is whether the benefits listed in the certificate of recoverable benefits were paid “in respect of” the relevant accident or, in other words, whether the accident was an effective cause of the payment of benefit.  The burden is on the compensator to show that the benefits were paid “otherwise than in respect of” the relevant accident but the Secretary of State can be expected to produce a prima facie justification for the inclusion of the benefits in the certificate in the first place.  The relevant accident need not be the sole cause of the payment of benefit (Hassall v. Secretary of State for Social Security [1995] 1 W.L.R. 812 (also reported as R(CR) 1/95) but it must be an effective cause (R(CR) 1/01).  Therefore, if benefit is payable solely due to a subsequent event, novus actus interveniens, it is not paid in respect of the relevant accident.  In considering whether benefit was paid in respect of the relevant accident, the view of the authority awarding benefit is not conclusive (R(CR) 1/02).  Regard must be had to any decision of a court awarding compensation, although that is not conclusive (section 12(3)), and regard may also be had to the basis on which a claim for compensation was settled, although that will be of less weight.  In the present case, it is common ground that the settlement does not assist in the determination of the question before me because it was clearly a compromise rather than being based on an acceptance by one party that the other was right.

11.	Mr Axon argued that the evidence showed that the blow to the head did not cause a fracture but that the claimant had continued to maintain that she had suffered a fracture after the error had been discovered.  He also submitted that there was no objective evidence of a neck injury or of hearing loss or dizziness and that, on the contrary, the evidence showed that the claimant had deliberately exaggerated her symptoms.  He therefore submitted that the injury to the claimant’s elbow on April 1993 could not be attributed to the relevant accident.  Insofar as it might be accepted that the claimant suffered from a psychiatric disorder, he relied on the view of Doctor Cooling that the shock of being told that her skull had been fractured was a significant stressor but submitted that the results of that misdiagnosis could not be attributed to the accident.  Ms Rahman, on the other hand, submitted that the question of the claimant’s honesty was important.  If she was not dishonest, her symptoms could, she submitted, be attributed to the relevant accident.  There was no requirement that there be an organic cause for the claimant’s symptoms; if they could be ascribed to an emotional reaction to the accident amounting to psychiatric disorder, the resulting disablement could be attributed to the accident and it mattered not that the claimant might have been more susceptible to such a reaction than other people.  If the accident on 5 April 1993 was caused by dizziness and loss of balance due to the accident on 2 November 1992, the disablement resulting from the second accident could also be attributed to the first.  She also submitted that the misdiagnosis was not a new cause of disablement.  If it had been, she argued, the compensator would have brought the hospital in as a third party in the compensation proceedings.  Mr Axon replied that the compensator was quite entitled to avoid clinical negligence proceedings against the hospital and would have been entitled to argue in the proceedings brought by the claimant that the chain of causation had been broken without bringing the hospital into those proceedings.  He submitted that he was equally entitled to argue on this appeal that the chain of causation had been broken.

12.	The differences between the parties are primarily based upon different interpretations of the evidence.  Mr Axon helpfully identified five possible areas of contention.  I will adopt his approach but consider the areas in a different order.  

13.	Firstly, there is the question whether the claimant suffered any injury to her neck in the relevant accident.  It seems to me plain that it is not possible to identify any damage to her discs that is attributable to the accident.  The consensus is that any changes were consistent with those one would expect in anyone of the claimant’s age.  On the other hand, it also seems plain that her head was pushed forward by the tray so that her neck was suddenly flexed.

14.	Secondly, there is the question whether she suffered a fractured skull or, more importantly, whether she suffered any physical damage to her brain.  Again, the consensus is that she did not.  It appears that the diagnosis of the fractured skull arose from a misreading of an X-ray the day after the accident and from a misreading of a CT scan some weeks later.  In the absence of such a fracture and in the absence of any other sign of intracranial abnormality, it is impossible to conclude that there was any physical damage to the claimant’s brain.  I note that Mr I J Mackenzie thought on 18 March 1998 that there might be high centre damage to the brain but that that would be difficult to prove.  In any event, I am satisfied that any pain in the neck and pain radiating from the neck and any headaches due to the relevant accident would have been fairly short-lived unless they were due to a psychiatric reaction.

15.	Thirdly, there is the dizziness and tinnitus.  Mr Axon produced a joint statement by Mr F H Jones, a consultant ear, nose and throat surgeon and Mr I J Mackenzie, a consultant audiological physician.  The latter had not signed it but I presume it was drafted accurately to reflect his views.  They were agreed that the claimant had no significant abnormality of the eardrums and they could find no evidence of abnormality on otoneurological examination, although they recorded that she was reluctant to co-operate with that examination.   The hospital records showed that she had complained to the orthopaedic department of dizziness and tinnitus on a number of occasions.

13.01.93	noise in the ears.
20.01.93	occasional nausea.
27.01.93	no neurological deficits.
09.02.93	fainted with headache, nausea and tinnitus.  Feels sick.  Dizzy if gets up rapidly or on stairs … when trying to sleep kept awake by tinnitus.
09.02.93	continuous tinnitus and extreme dizziness.
07.04.93	a fall while dizzy with a fractured elbow.
02.06.93	headaches and dizziness.
08.12.93	dizziness and “while in the clinic that day suddenly became very dizzy almost on the verge of falling down … tells me that she had been having severe headaches and dizziness over the last six or seven months”.

She was seen in an ear nose and throat clinic on 19.02.93 complaining of left sided tinnitus, hearing loss and dizziness with a gushing feeling in her head but “no rotational vertigo”.  The otoneurological examination was normal.  She was seen on nine more occasions up to 19 April 1996.  Mr Jones was firmly of the view that any tinnitus was not organic.  Although he considered that injuries in the neck could precipitate tinnitus on the basis of a predisposition to develop tinnitus, he would have expected that to occur within around four weeks of the accident, whereas the claimant in this case is first recorded as having mentioned it on 9 February 1993, just over three months after the accident and he would also not have expected such tinnitus to worsen months or years afterwards.  As to the vertigo, Mr Jones was more equivocal.  His statement says that “a great deal of the ‘dizziness’ in this case is not organic” but later he appears to state that none of it is organic, although he also says that the “vertigo is difficult to judge because of the non-organic component”.  What he is clear about is that the accident could not have caused acute vestibular injury because the claimant would have been unable to drive home afterwards if it had.  On the other hand, he accepted that a neck injury could cause brief vertigo on rapid neck movement, although that should improve with time.  Mr Mackenzie essentially agreed with Mr Jones save that he considered that there might have been some hearing and balance problems which had settled so that, by 1999, most of the problem was psychological.  He took that view because he considered that she had suffered a whiplash injury.  It is not entirely clear whether he included tinnitus within the term “hearing … problems”.

16.	It seems to me to be likely that the accident did cause some temporary loss of balance consequent upon the neck injury.  In his report of 16 November 1999, Mr Jones had said –

“A sharp blow on the head could make anyone dizzy for a day or so.”

He also accepted that, although loss of function of a balance organ is usually compensated for within a few weeks, compensation may fail due to anxiety or other psychiatric problems.  I am not convinced that the fact that the claimant did not mention vertigo before 9 February 1993 did not mean that she was not suffering from it before that date.  She subsequently mentioned having suffered from nausea and actually been sick while driving home after the accident.  However, I accept the consensus that, after a fairly short period of time, any vertigo was psychological.  Mr Axon drew my attention to the fact that the claimant had complained of dizziness in the 1970s but that does not appear to advance the case very far in either direction.

17.	I am rather less sure that there was ever any organic cause of tinnitus, but I note that Mr Jones wrote on 7 November 1999 that –

“It is possible that wrenching of the neck in the accident caused some tinnitus and imbalance for a short period of time after the accident which would not have occurred if the accident had not occurred.”

Accordingly, I accept that any tinnitus probably had an organic cause for a short period but was thereafter psychological.  However, although the vertigo is an important feature in this case, the tinnitus is not because it does not appear to have been taken into account in the awards of disablement pension or disability living allowance and, if it was taken into account in the awards of other benefits, it cannot have made any difference.

18.	Fourthly, there is hearing loss, which is a matter also dealt with by Mr Jones and Mr Mackenzie.  They agreed that there was no hearing loss in the right ear and, indeed, the claimant had not said there was.  A number of audiograms showed hearing loss in the left ear but an evoked response audiogram on 1 December 1995 showed that her hearing was actually normal although volunteered responses again showed a loss.  Mr Jones said that if her hearing had been damaged in the accident it would have been immediately apparent and the fact that her hearing was shown to be normal in 1996 showed that any hearing loss had almost certainly never been organic.  He also said that whiplash injury was not an accepted cause of hearing loss.  Mr Mackenzie disagreed with that view and thought that a whiplash injury could have caused some hearing problem although that had settled.  It is apparent from Mr Jones’ report of 16 November 1999 that he did not believe that the claimant had suffered a whiplash injury but there is some support for Mr Mackenzie in the report of Mr Cowie on 12 April 1995 because he reported that the claimant’s “head and neck were forcibly flexed”.  Also, Mr Jones noted that the orthopaedic surgeon had said that he was “treating this as a whiplash type injury to the neck” on 16 December 1992.  That, of course, does not help to resolve the dispute as to whether whiplash injuries can cause hearing loss.  It is also not clear to me whether Mr Mackenzie had resiled from his view, expressed on 18 March 1998, that the claimant had suffered from hearing loss as a result of concussion but that such a loss would resolve spontaneously.

19.	On balance, I accept that there was some actual hearing loss for a short period of time.  I take this view because it seems to me that it is likely that any psychological reaction will have operated in the same way for hearing loss as for tinnitus and vertigo; that is by causing the claimant to feel that a genuine disability that had resolved was continuing.  Again, I am not convinced that the fact that it was not mentioned until 19 February 1993, when she saw Mr Hardcastle, the ear, nose and throat consultant to whom the claimant was first referred following her complaints to the orthopaedic department, means that she did not have the deafness before then.  The neck injury, which could have caused the tinnitus, could also have caused the hearing loss.  However, the disablement resulting from the loss of hearing was minor.  The claimant’s hearing in the other ear was above average and her complaints about her hearing would have been more prominent had it been as serious a problem as her headaches, neck pain and dizziness.  Neither of the doctors who examined the claimant in connection with her claim for incapacity benefit (in 1995 and just after then end of the relevant period in 1997) found her to have any significant hearing loss. 

20.	The fifth of Mr Axon’s contentious areas is the claimant’s psychiatric state.  This is important for two reasons.  Firstly, there is a question as to whether the claimant was deliberately and dishonestly exaggerating her symptoms.  Secondly there is the question whether any psychiatric condition is attributable to the relevant accident.

21.	Mr Jones expressed considerable doubts about the claimant’s veracity.  He pointed to the fact that, although the claimant had been told in February 1995 that her skull had not been fractured, she had subsequently stated to him that she had suffered a fracture.  He also argued that the discrepancy between the results obtained by evoked response audiometry and pure tone audiometry showed that the claimant had consciously exaggerated responses to the latter and therefore consciously claimed to have a hearing loss when she did not.  He suggested that her claims to suffer tinnitus and vertigo could equally well be false.  Dr N J Cooling, a consultant psychiatrist, has agreed with that approach in a letter dated 16 November 1999 and said that her complaints of depression must also be considered unreliable because they had been regarded as being secondary to physical damage.

22.	I accept that the claimant was an unreliable informant in the sense of not being an accurate informant.  She was plainly a poor historian and there are instances when there has been some conscious exaggeration of her symptoms.  I do not consider that the question whether she was dishonest is determinative.  What is important is whether the exaggeration was conscious.  Regard must be had to the claimant’s undoubtedly depressed state but I accept that a person who is depressed may consciously exaggerate his or her woes.  Some account must therefore be taken of the claimant’s unreliability as a witness both because she is sometimes mistaken and because she sometimes consciously exaggerates the extent of her disabilities.  On the other hand, it does not follow that she had no disablement at all as a result of the relevant accident.  Most of the many doctors who have examined the claimant have acknowledged that at least some of her disablement is genuine.  It cannot seriously be suggested that the claimant suffered no injury at all on 2 November 1992 and the injury was plainly sufficient to cause the claimant to attend hospital long before there can have been any thought of compensation.  The physical effects of the injury may not have been long-lasting but I see no reason to suppose that they, and the misdiagnosis, were not serious enough to give rise to a psychiatric reaction.  I do not agree with Dr Cooling, who, having noted Dr Johnson’s opinion that the claimant’s alleged psychological problems were a secondary consequence of her physical injuries, said “[i]t is now apparent that there is no physical basis for her complaints and therefore it must necessarily follow that her psychological complaints can only be the product of conscious exaggeration”.  There remains a physical basis for some of her complaints for some of the time.

23.	Following a telephone conversation on 14 September 1999, Dr Cooling and Dr D A W Johnson had signed an agreed statement to the effect that the claimant had been a vulnerable personality before the relevant accident although she had not suffered from any formal psychiatric illness, that following the accident she had suffered an emotional reaction amounting to a psychiatric disorder, that there had been an improvement between 1995 and 1998 but that she still had symptoms of anxiety and depression at the end of 1997 and that the cause of her depression depended on the precise diagnosis of her physical health problems.  Dr Cooling believed that any emotional reaction to the experience of the accident lasted for less than six months although he accepted that the claimant suffered from a continuing psychiatric disorder which he considered was due to other independent causes.  In a report dated 21 January 1998, he had attributed the reaction to the stress caused by being told, wrongly as it transpired, that she had a fractured skull rather than directly to the accident itself.  Dr Johnson, however, believed that the continuing psychiatric disorder remained related to the accident and its consequences.

24.	I entirely accept Dr Cooling’s opinion that, in view of the claimant’s previous history, she “cannot be regarded as being a lady of normal fortitude prior to the accident under consideration”.  However, as Mr Axon acknowledged, the fact that a person is more susceptible to a particular type of injury does not lessen his or her entitlement to compensation if the injury is incurred.  Furthermore, it increases the likelihood that a claim that the person has been injured in that particular way is genuine.  I also accept Dr Cooling’s opinion that there were other stressors after the relevant accident and the misdiagnosis, notably the accident of 5 April 1993 and the strokes.  However, the fact that the claimant was still complaining about the effects of the relevant accident suggests to me that that, or the subsequent misdiagnosis which was intimately connected with the accident, remained at least a cause of the continuing depression, even if the subsequent events were also factors.  Dr Johnson wrote on 9 October 1995:

“I fear that the reactive depression is influencing her total clinical state.  I believe we now have a vicious circle where her psychological state is influencing her physical symptomatology and vice versa.”

That seems wholly consistent with the history of complaints following the relevant accident and with the opinion that vertigo may fail to resolve where there is anxiety.  Mr Axon suggested that Dr Cooling’s view was to be preferred because he had changed his mind in the light of the evidence from Mr Jones but had nonetheless not completely written off the claimant’s complaints.  However, I prefer Dr Johnson’s view because Dr Cooling has not, to my satisfaction, provided an adequate explanation for the cause of the claimant’s continuing psychiatric condition having wholly changed after six months.

25.	In summary, therefore, I am satisfied that the accident on 2 February 1992 resulted in the claimant suffering pain in her neck, particularly when moving her head, and that she also suffered from headaches, vertigo, tinnitus and mild hearing loss in her left ear.  As the organic cause of these symptoms resolved, the symptoms nonetheless continued and the claimant suffered from some depression.

26.	I accept that that psychological reaction was due to the stress caused by the misdiagnosis rather than directly by the accident.  It is not surprising that the claimant should have feared that she had suffered some brain damage.  I also accept that Mr Axon is entitled to argue that the misdiagnosis was the only effective cause of the disablement even though third party proceedings were not brought against the hospital.  However, in my view, disablement due to the misdiagnosis is attributable to the accident.  Had it not been for the accident, no X-ray would have been required.  If the misdiagnosis had been shown to be due to negligence, it might have been arguable that the resulting disablement would not have been attributable to the relevant accident, although negligence does not always extinguish the causative potency of an earlier tort (Rahman v. Arearose Ltd [2001] Q.B. 351 at [29]).  As it is, the interpretation of X-rays and CT scans is not an exact science and I am not satisfied that the misdiagnosis is itself sufficient to show negligence on the basis that res ipsa loquitur.  There is no other evidence of negligence.  The misdiagnosis must therefore be taken as a mere complication, the consequences of which are attributable to the relevant accident.

27.	I also accept, as the adjudicating medical authorities did, that the accident of 5 April 1993 was caused by vertigo, which in turn was caused by the relevant accident.  Accordingly, the consequences of the accident on 5 April 1993 are attributable also to the accident on 2 November 1992.

28.	Against that background, I turn to the question whether the benefits listed in the certificate of recoverable benefits are recoverable.  This involves consideration of the basis upon which the benefits were awarded

29.	The claimant’s general practitioner plainly regarded the claimant as being unable to work due to the injury to her neck and it is apparent that statutory sick pay and invalidity benefit were paid on the strength of his certificates.  Following the replacement of invalidity benefit by incapacity benefit, the claimant was initially deemed to be incapable of work for the purpose of incapacity benefit (see regulation 31(1) and (2) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995) as long as she was actually incapable of work.  It seems to me that the claimant was quite reasonably regarded as being incapable of work due to the symptoms attributable to the relevant accident, whether their cause was organic or not.  I have no doubt that statutory sick pay, invalidity benefit and incapacity benefit up to 7 September 1995 were paid in respect of the relevant accident.  

30.	However, after 7 September 1995, which was the date when the claimant was first assessed under the all work test, the position is more complicated.  Regulation 21(1) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 provided:

“Subject to paragraph (2), a person entitled to a transitional award of long-term incapacity benefit in respect of a personal injury of a kind mentioned in section 94(1) of the 1992 Act shall cease to be so entitled when the incapacity for work is no longer as a result of that injury.”

As the claimant’s entitlement to incapacity benefit was derived from her previous entitlement to invalidity benefit, which was based on her having suffered personal injury due to an industrial accident because she had not satisfied the contribution conditions for sickness benefit, regulation 21(1) had the effect that her entitlement to incapacity benefit would end if her incapacity for work (as assessed under the all work test) ceased to be due to the relevant accident.  Unfortunately, there is no evidence before me that either the examining medical practitioner who examined the claimant on 7 September 1995 or the adjudication officer who subsequently allowed the award of benefit to continue paid any regard to regulation 21(1).

31.	Only disabilities caused at least in part by the relevant accident should have been taken into account when assessing the claimant under the all work test.  There are a number of findings on 7 September 1995 that do not appear to be attributable to the relevant accident, such as a 50% reduction in hip movements and knee movements.  Pain in the claimant’s neck and the after effects of the second accident contributed to a number of the material disabilities.  However, comparing the findings of the examining medical practitioner assessing the claimant in respect of the all work test with the findings of the adjudicating medical authorities assessing the extent of the claimant’s disablement for the purposes of her claim for disablement benefit reveals a number of discrepancies.  Some of these may be attributable to the adjudicating medical authorities noting a number of exaggerated responses but some seem to me to be attributable to the adjudicating medical authorities rigorously confining their assessments to the consequences of the relevant accident.  A major part of the claimant’s disability was due to her headaches, her vertigo and her depression but those did not contribute to her entitlement to incapacity benefit under the all work test.  The effects are not recognised in the “physical” descriptors and she did not score enough points in respect of “mental” descriptors (see Parts I and II of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995).  On the limited evidence before me, which does not include evidence from the claimant or detailed evidence from a medical practitioner differentiating between the effects of the relevant accident and other disabilities and relating the former to the provisions of the all work test, I am not satisfied that she would have scored 15 points in respect of the “physical” descriptors if only the effects of the relevant accident had been taken into account.  On the other hand, it is clear that she would have scored 15 points even if the effects of the relevant accident had been ignored.  Accordingly, I am not satisfied that the relevant accident was a cause of the claimant satisfying the all work test.  It follows that the compensator has succeeded in showing that, from 8 September 1995 (or from 7 September 1995 in order to give a decision in complete weeks), incapacity benefit was paid otherwise than in respect of the relevant accident.
 
32.	The documents relevant to the claim for disablement benefit are in complete disarray but it is possible to piece together most of the material history.  The claimant was initially assessed on 30 April 1993 as 30% disabled (20% in respect of impaired concentration due to restricted movements of the neck and headaches and 10% in respect of the injured left elbow caused by the fall on 5 April 1993 which was found to be a consequence of the accident on 2 November 1992) for the period from 14 February 1993 to 14 November 1993.  On 15 October 1993, she was assessed as 18% disabled from 15 November 1993 to 14 May 1994 and, on 12 April 1994, another assessment was made at 18% from 15 May 1994 to 14 November 1994.  The basis of the first of those assessments is not revealed in the documents but the second was calculated on the basis of 15% in respect of impaired concentration due to “painful head movements causing dizziness, headaches” and 3% in respect of the elbow.  The effects of the former condition were listed as including loss of confidence and a deaf left ear.  On 13 October 1994 another 18% assessment was made from 15 November 1994 to 14 October 1995.  This was a global assessment.  The injury was said to be a fractured skull and subsequent fractured left elbow, giving rise to painful head movements causing dizziness and headaches, and reduced movement of the left elbow, leading to impaired concentration and limited carrying and lifting in the left arm and deafness in the left ear.  This assessment was continued for another year on 6 November 1995 after the adjudicating medical authority had described the case as bizarre and had called for hospital case notes. The injury was described as a “soft tissue injury to head and neck with subsequent fracture of left elbow” and the loss of function was described as “impaired cerebral function, head movement and left elbow movement”, causing “impaired concentration, head turning, lifting, carrying (left arm), hearing (left ear)” with the result that the claimant suffered “headaches, loss of confidence, reduced social contact, inability to lift heavy weight (left arm)”.  A further assessment of 18% for six months from 14 October 1996 to 13 April 1997 was made on 9 October 1996 and that took into account impaired concentration, turning of the head, hearing and facial movements.  The adjudicating medical authority asked that a report be obtained before the next examination from the consultant neurologist treating her, Dr Mohr.  That was duly obtained (and is in the documents, out of sequence, at doc 191).  Dr Mohr said:

“… I am afraid this is a complicated case.  She originally had a head injury in 1992 when she was at work, she wasn’t knocked out but she was dazed.  She was initially suspected as having a fractured skull though some time later this was shown not to be the case.  She came to see me in February 1995 in connection with this head injury and I diagnosed at the time that she had post-traumatic syndrome but no actual brain damage.  A review of her radiology confirmed that she had in fact not had a fractured skull.  I reviewed her on 20th March, 1995.  I discussed all that with her and I thought she was making some improvement from her post-traumatic syndrome.

“The situation is complicated because she represented to my clinic on the 23rd January, 1997.  This time she had a definite left sided weakness which had come on in December, 1995.  It was quite clear that she had in fact had a stroke and this was confirmed on a CT brain scan which showed a small infarct in the right hemisphere.  She was admitted to Hope hospital from the 13th – 18th February for investigation.  This confirmed the old stroke but didn’t show any other particular abnormality or occluded blood vessel.

“She has certainly got some residual left sided weakness from the stroke and has been referred to Whalley Rehabilitation Hospital for further management of that.

“I think I should point out that the recent left sided weakness and stroke are not in any way connected with the original head injury in 1992.  I think she will be left with some weakness of the left side.”

In the light of that information and his clinical findings, the adjudicating medical authority made a final assessment of 18% for life from 14 April 1997.  Despite the fact that the consultant explained that there had been no fracture of the skull, the injury is described by the adjudicating medical authority as “fracture skull with subsequent fracture left elbow”, causing “impaired cerebral function and movements neck and left elbow, impaired movements to face”, leading to “reduced concentration and social contacts”.  The assessment was, however, at the same level as the previous one in which it had been recognised there was no fracture of the skull.  It was expressly stated that the effects of the strokes had been ignored.

33.	Thus, the disablement resulting from the relevant accident had been assessed at 30% up to a date approximately a year after the accident on 2 November 1992 (and seven months after the second accident) and at 18% thereafter.  Only disablement attributable at least in part to the relevant accident was relevant to entitlement.  I accept that disablement due to the Bell’s palsy was wrongly attributed to the relevant accident and should not have been included in the assessments but it seems clear that the disablement attributable to that condition would have been only 1% or 2% and so would not have made any difference to the amount of benefit paid.  (It seems unlikely that the assessment in respect of the deafness would have been any greater.)  The amount of benefit paid depends on the degree of disablement but there are bands of assessment within which the amount paid is the same.  The material ones in this case are 25% to 34% and 14% to 24%.  Assessments within those bands were perfectly justified on the evidence in this case and on my findings as to the extent to which the claimant had been disabled by the relevant accident.  It must be remembered that an assessment of 100% connotes something very much less than total disablement.  An assessment of 14% is modest, representing, say, the loss of an index finger or the loss of a great toe with no complications (see regulation 11 of, and Schedule 2 to, the Social Security (General Benefit) Regulations 1982, as amended).  I am not satisfied that it was obtained by exaggeration on the part of the claimant.  The adjudicating medical authorities noted exaggerated responses and so will have discounted them.  Accordingly, I am not satisfied that the disablement benefit listed in the certificate of recoverable benefits was paid otherwise than in respect of the relevant accident.  It is recoverable.

34.	The documents relating to the award of disability living allowance are unhelpful and again in disarray but I presume the lower rate of the mobility component was awarded in the light of the examining medical practitioner’s view that, when walking outdoors “[the claimant’s] husband needs to accompany her due to anxiety and fear of falling” (doc 176).  There is nothing to suggest that an award was appropriate for only ten weeks.  The most likely explanation for the period being limited is that an initial award for a longer period was reviewed.  In the circumstances of this case, that implies that an adjudication officer decided that the award should never have been made in the first place.  It may be that the view was taken that the evidence did not justify a finding that the claimant required “guidance” or “supervision” rather then mere accompanying when walking outdoors (see section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 and CDLA/42/94).  In any event, that is my view of the evidence.  Furthermore, by 1996, the claimant had had her strokes, which were the cause of her general unsteadiness.  The claimant had not previously claimed to require supervision on account of her vertigo whenever she was walking outdoors.  I am satisfied that the disability living allowance listed in the certificate of recoverable benefits was paid otherwise than in respect of the accident and so is not recoverable.

35.	Therefore, my conclusion is that the statutory sick pay, invalidity benefit, part of the incapacity benefit and the disablement pension are all recoverable.  The rest of the incapacity benefit and the disability living allowance are not recoverable.  This decision is slightly more favourable to the compensator than was the tribunal’s.  

36.	I have not found this an easy case to decide and I apologise for the delay.  It may be material that this appeal was originally brought before R(CR) 1/02 was decided and the evidence on both sides was less focused than it might otherwise have been.  On the compensator’s side, submissions and medical evidence need to be directed to the statutory grounds upon which benefits are paid.  On the Secretary of State’s side, submissions need to be directed to rebut the arguments of appellants.  There may be occasions when the Secretary of State needs to advance new evidence and there may be cases where the Secretary of State should consider asking the claimant to attend as a witness.  In all cases it would be helpful if there were evidence of the actual awards of benefit made – even if it is only in the form of computer records – and it would also be helpful to know why awards have ceased.  While I appreciate that certificates of recoverable benefits are issued in a hurry, the collection of adequate evidence about awards before certificates are issued might result in fewer mistakes being made in them.

(signed)	MARK ROWLAND
Commissioner
27 November 2002