CCR/3482/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal.  I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 18 May 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	The claimant injured himself when he fell from a stationary lorry while in the course of his employment on 21 August 1995.  He sued his employers and the case was settled in June 1999 when £3,500 was paid to the claimant.  The Secretary of State recovered from the compensator benefits totalling £14,129.84.  The compensator appealed against the certificate of recoverable benefits.  The tribunal dismissed the appeal.  The compensator now appeals against the tribunal’s decision with the leave of the chairman.

3.	The Secretary of State had submitted to the tribunal that they were not entitled to go behind the awards of benefit when considering whether or not the benefits had been paid otherwise than in respect of the relevant accident.  The tribunal accepted that submission.  In the light of the decisions of the Tribunal of Commissioners to be reported as R(CR) 1/02 and R(CR) 2/02, the Secretary of State concedes that the tribunal were wrong to do so.  However, he submits I should nonetheless accept the tribunal’s conclusion that the accident was an effective cause of the payments of benefit.  In the circumstances of this case, I cannot accept that submission.

4.	The compensator had submitted to the tribunal two medical reports suggesting that the claimant had been suffering from degenerative disc disease, degenerative tendinitis of the left rotator cuff and degenerative osteoarthritis of the left hip and that, although the relevant accident had brought forward the onset of symptoms, the claimant would, at some time before the end of the relevant period, have become just as disabled as he was in his back, shoulder and hip, even if the accident had not occurred.  In one report, it was doubted whether the claimant had injured his shoulder in the relevant accident at all.  There was also evidence that the claimant would have become incapable of work due to cardiac problems by 1997, even if the accident had not occurred and that was the ground on which the compensator had appealed to the tribunal.  That ground of appeal was misconceived because, as I held in CCR/5336/95 and R(CR) 1/01, if a claimant is rendered permanently incapable of work by an accident and then suffers from an unrelated illness which would have rendered him incapable of work even if the accident had not occurred, the claimant is still to be regarded as incapable of work in consequence of the accident.  However, if the medical reports submitted by the compensator were accepted, the back, shoulder and hip conditions had arguably ceased to be attributable to the relevant accident before the end of the period covered by the certificate of recoverable benefits.  That would have implied that disablement benefit had wrongly been awarded to the claimant because the authorities appear to have been unaware of any underlying constitutional causes of disability.  The tribunal simply refused to consider the point because they considered they were bound by the medical appeal tribunal decisions that had led to the awards of disablement benefit.  They were wrong to do so.  For the same reason, their decision in respect of incapacity benefit is flawed.  They were entitled to conclude that, “had it not been for the heart condition the appellant would have continued to be paid incapacity benefit by reason of ‘back injury – neck and shoulder pain’”, but that was irrelevant if the back, neck and shoulder pain was no longer attributable to the relevant accident.  This case must therefore be considered by another tribunal.

5.	I draw attention to the fact that there is a suggestion in one of the medical reports that the claimant’s back, shoulder and hip problems did not actually render him incapable of work.  A tribunal is entitled to take the view that a claimant ought not to have been paid incapacity benefit or that an award of incapacity benefit ought to be attributed solely to some cause other than the relevant accident.  However, actual incapacity for work is not a condition of entitlement to incapacity benefit.  If it is to be argued that incapacity benefit was paid otherwise than in respect of a relevant accident during any period when it is accepted that the claimant had symptoms that were attributable to the relevant accident, regard must be had to the precise legal basis on which incapacity benefit was actually paid.

(signed)	M. ROWLAND
Commissioner
10 April 2002