CCR/4117/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Manchester appeal tribunal dated 15 May 2000 and I refer the case to a differently constituted tribunal.

REASONS

2.	The claimant appears to have suffered severe back pain while at work as a warehouseman on 27 September 1995 and to have had continual back problems since then.  He was off work for five weeks, returned for one week and then was off work again until his employment was terminated.  He worked for a year as a self-employed security guard, before claiming incapacity benefit in early 1997.  It is not disputed that he was then suffering from sponylosis or a prolapsed intervertabral disc and he had surgery later that year.  He also claimed disability living allowance, the care component of which was awarded at the lowest rate, and disablement benefit, which was awarded in respect of the incident on 27 September 1995, on assessments of 20 per cent. from 29 January 1997 to 27 January 1998, 40 per cent. from 28 January 1998 to 29 June 1998, 20 per cent. from 30 June 1998 to 29 December 1998 and 15 per cent. from 30 December 1998 for a year.  The incident of 27 September 1995 had been accepted by an adjudication officer as being an industrial accident.  He or she found:

“The claimant had lifted a 3 metre worktop onto a pallet and was bending over marking another worktop when he felt a sharp pain in his lower back and down his right leg.”

The claimant sued his former employer who obtained medical reports from Mr J F Haines FRCS, a consultant orthopaedic surgeon.  He took the view that the claimant’s disablement was wholly constitutional in origin.  He said:

“In this case there is no reference to any physical injury and it would appear to have been constitutional.”

The claimant obtained a report from Dr Michael Clark, in which the development of pain is described as coming on “whilst lifting a heavy worktop”.  The possibility of the condition being constitutional was not mentioned and neither was any diagnosis.  Mr K H Suraliwala, a consultant orthopaedic surgeon, also provided a report for the claimant.  He described the pain as coming on when the claimant was “leaning onto a pallet” and puts the date of the incident as December 1995.  He also does not consider the possibility of the condition being constitutional or give a precise diagnosis.  Dr Clark and Mr Suraliwala both stated that the claimant had told them that he had had no back problems before the incident on 27 September 1995.  Mr Haines obtained the claimant’s general practitioner notes which referred to back injuries in 1990 and a right lumbar strain in 1993.  The compensator also obtained some video surveillance evidence suggesting that the claimant was not quite as disabled as he had claimed.

3.	A payment into court of £2,000 was accepted by the claimant in May 1999.  The Secretary of State recovered from the compensator all the benefit paid from 1997 to the date of settlement, totalling some £11,735.60 after a refund had been made.  The certificate of recoverable benefits appears to contain an error in favour of the compensator as to the amount of disablement benefit paid from April to June 1998 but it is too late to correct that now.  The compensator appealed to the tribunal on the ground that the benefits had been paid otherwise than in respect of the relevant accident, injury or disease (see section 11(1)(b) of the Social Security (Recovery of Benefits) Act 1997).  Reliance was placed on Mr Haines’ opinion.  The tribunal allowed the appeal.  Having summarised the issue before the tribunal the reports of Mr Haines, Dr Clark and Mr Suraliwala, the chairman recorded in the statement of reasons for the decision –

“The Tribunal found that Mr Haines’ evidence by way of his medical eports was preferable both in detail and content.  In particular, we refer to Mr Haines’ report of 15/07/98, which states that [the claimant] told him on that date that he was ‘just bending down at the time’ of the incident and sustained severe pain.  As such, there does not appear to have been any actual injury [tribunal’s emphasis].  ….  We prefer the findings of Mr Haines, in that this is a constitutional problem related to degenerative changes in the discs.  Pain can occur spontaneously or sometimes can be precipitated by external force such as physical injury but, as stated earlier, this was not the case.  At best, this was a short-term exacerbation of a previously symptomatic back due to constitutional degeneration.  Mr Haines also refers in his report of 25/09/98 to the credibility of [the claimant], following video evidence, and the Tribunal duly noted this.  It is also noted that Mr Suraliwala did not have the advantage of previous medical reports on [the claimant].

The Tribunal concluded, therefore, that the first essential prerequisite for consideration, did [the claimant], as a result of the occurrence on 27/09/95, suffer an injury, sickness or disease – and the answer is in the negative.  Benefits paid to [the claimant] did not realistically flow from that incident and the amount of benefit shown on the Certificate of Recoverable Benefits is not recoverable in accordance with the legislation.”

The Secretary of State now appeals with my leave, which I gave on two grounds.

4.	Firstly, it seemed to me to be arguable that the tribunal erred in finding there to have been no injury in this case.  However, this depends on how the tribunal’s decision is read.  Plainly the claimant was suffering from an injury or disease after 27 September 1995 but, on reflection, the tribunal do not appear to have suggested otherwise.  In the earlier part of their decision that I have set out, they adopted Mr Haines’ finding that there had been no injury, but what he was saying was not that the claimant did not suffer from any condition after 27 September 1995 but that that condition was not precipitated by any trauma.  In the latter part of their decision, they said that the claimant was not suffering from any injury, sickness or disease “as a result of the occurrence on 27/09/95”.  They did not say that he was not suffering from any injury, sickness or disease at all.

5.	What this does highlight is that the statutory question posed by section 11(1)(b) of the Social Security (Recovery of Benefits) Act 1997 – whether benefits listed in a certificate of recoverable benefits have been paid otherwise than in respect of the accident, injury or disease in question – requires consideration of the basis upon which the claimant sought compensation from the compensator.  In this case, compensation was sought on the basis that the claimant’s injury was caused by accident on 27 September 1995.  The payment of compensation cannot be regarded as having been made in respect of any injury beyond that caused by any such accident.  Equally, although the payment did not involve any admission that there had been such any accident or, indeed, that the claimant had suffered any injury at all, it has never been in dispute that the tribunal were entitled to find that there had been an accident or had been an injury for the purpose of deciding which benefits should have been included in the certificate of recoverable benefits.  The practical result was that the tribunal had first to consider whether, during the period in respect of which benefits were paid, the claimant was suffering from any injury caused by an accident on 27 September 1995.  That is precisely the question they did ask themselves and which they answered in the negative.

6.	The second ground upon which I granted leave to appeal was as to the adequacy of the tribunal’s reasons.  The Secretary of State has raised a number of points in relation to this, some of which seem to me to amount merely to criticisms of the tribunal’s conclusions on points of fact rather to the adequacy of their reasons.

7.	Essentially, the tribunal had two competing views before them.  Mr Haines had said that it was his opinion that the claimant’s back trouble was wholly constitutional because the pain came on when the claimant was just bending over which, in his view implied that there was not the sort of injury that might have induced the disablement.  I have already suggested that the word “trauma” might have been less confusing than the word “injury”.  His view was important for two reasons.  Firstly, he ruled out any causative link between the occurrence and the subsequent back problems.  More fundamentally, his approach suggested that there had been no “accident”, or relevant incident, at all, contrary to the view taken by those considering the claimant’s claim for disablement benefit.  In Chief Adjudication Officer v. Faulds [2000] 1 W.L.R. 1035, Lord Clyde made the point that there is always a distinction to be drawn between an accident and an injury, even where the accident comes about through the claimant’s own activity and even where the activity causes an injury only because the claimant has some disease, weakness or other predisposition.  Thus, there will be an accident where a claimant has a heart attack at work due to exertion but not where he has an entirely spontaneous heart attack at work.  Mr Haines was of the view that the onset of pain in this case was wholly spontaneous.  The adjudication officer and the adjudicating medical authorities, who were not bound by the adjudication officer’s decision (see section 60(3) of the Social Security Administration Act 1992, now section 30 of the Social Security Act 1998), were plainly, albeit implicitly, prepared to accept that, although the claimant was merely bending when he felt the pain, the pain was caused either by the bending or by the exertion involved in lifting a heavy worktop immediately before he bent down.  Mr Suraliwala did not address the question of the cause of the pain.  It is unclear whether Mr Clark was aware that the pain came on while the claimant was bending down between lifting worktops rather than when actually lifting one.

8.	The compensator submits that the tribunal were entitled to accept Mr Haines’ view.  I do not doubt that that is so.  However, a statement of reasons for a decision must give an adequate explanation for accepting one piece of evidence rather than another.  I am prepared to accept that Mr Haines implicitly considered and rejected the possibility that merely bending could have caused the pain experienced by the claimant.  However, it is not clear to me that he considered and rejected the possibility that the exertion involved in lifting could have caused the pain suffered by the claimant when he then bent down.  Had he expressly rejected that possibility, it would have been clear why the tribunal preferred his opinion to that of the adjudicating medical authority who did not expressly consider the significance of the claimant having experienced the pain when not actually lifting anything.  Had it been self-evident that the pre-accident symptoms, of which the adjudicating medical authorities were unaware, were crucial, it would also have been clear why the tribunal preferred his evidence.  In the absence of such obvious reasons for accepting Mr Haines’ view, it was incumbent on the tribunal to give reasons for preferring his approach to that of the adjudicating medical authorities.  They did not do so.  They gave reasons for not placing any weight on the evidence of Dr Clark and Mr Suraliwala but they did not mention the adjudicating medical authorities at all.  It is, of course, true that the adjudicating medical authorities had given no more reasons for their views than had Mr Haines.  Neither had considered the other’s approach.  However, the tribunal were entitled to use the expertise of the medical member to give their own reasons for preferring one approach to the other.  Alternatively, they could have asked the parties to obtained reasoned opinions.

9.	I am reinforced in my view that Mr Haines’ opinion, while possibly right, is not obviously so both by the fact that it was expressed rather tentatively and by the fact that the tribunal contemplated the alternative possibility that the incident on 27 September 1995 exacerbated the claimant’s constitutional injury.  The tribunal found that any such exacerbation would have been short-term but they have given no reasons for that view.  That may have been because that view was only an alternative to their primary view that the incident on 27 September 1995 was not really a cause of subsequent disablement at all.  However, as it is not self-evident that, if that incident was a cause of subsequent disablement, it had ceased to be so by 1997, the tribunal ought to have given a reason for their view.  The failure of the tribunal chairman to record an adequate statement of reasons renders the tribunal’s decision erroneous in point of law.  I must set the decision aside and refer the case to another tribunal.

10.	At least part of the problem in this case seems to me to have been caused by the Secretary of State’s submission to the tribunal, now accepted to have been wrong, that the tribunal were not entitled to go behind the award of disablement benefit.  That led the Secretary of State to fail to grapple with the factual issues in the case and to seek any opinion in response to Mr Haines’.  The consequence was that the Secretary of State’s case on the facts was not presented clearly to the tribunal and the compensator, in turn, did not obtain further evidence to answer it.  In the light of my decision, both parties may wish to seek reasoned opinions from their medical advisors in order to assist the tribunal to whom this case is referred.

(signed)	M. ROWLAND
Commissioner
11 April 2002