PLH                                                                               Commissioner's File: CI 3379/02

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Disablement Benefit
Appeal Tribunal:  	Barnsley
Tribunal Case Ref:  	U/01/001/2001/04042
Tribunal date:	7 May 2002
Reasons issued:	30 May 2002

1.	This claimant’s appeal must be dismissed, as despite the fact that it is supported by the Secretary of State I cannot see any error of law in the decision of the Barnsley appeal tribunal sitting on 7 May 2002, when they confirmed an earlier decision of the Secretary of State that the claimant was not entitled to reduced earnings allowance since he had not shown that the loss of earning capacity for which he was claiming was likely to be permanent.  
2.	The claimant is a man now aged 47, whose regular occupation at which he worked until 1998 was in conveyor maintenance in the mining industry in the South Yorkshire coalfield.  As the years went on he found he was having problems with his hands and forearms which he attributed to the constant work with machinery.  On  16 May 2000 he made a claim for disablement benefit on the ground that he was suffering from both vibration white finger and carpal tunnel syndrome, prescribed diseases A11 and A12.  
3.	On medical examination under the industrial injuries scheme it was found that he was not suffering from vibration white finger as prescribed and his claim for that disease was accordingly rejected; but he was found to have been suffering from disease A12 carpal tunnel syndrome, due to the nature of his employment, with a degree of disablement finally assessed at 5% for life from the date of onset of that disease, determined as having been 1 January 1980.  Those medical findings were not challenged, and thus became conclusive as to the diagnosis of the disease from which he was suffering, the date of its onset and the extent of his resulting disablement.  
4.	The appeal to the tribunal arose out of the further claim he made on 28 February 2001 for reduced earnings allowance based on that assessment: pages 33 to 45.  Reduced earnings allowance under the industrial injuries scheme is, as the name implies, an additional insurance benefit to compensate for a loss of earning capacity suffered as the result of the relevant accident or disease for which a claim for the main disablement benefit has also been made.  In order to qualify for the further allowance, the claimant has to show that the accident or disease has rendered him incapable of carrying on earning in his former regular occupation, and that he has been caused a continuing loss by now being able to undertake only less paid work.  
5.	For this purpose he has to meet in particular one of two alternative conditions under paragraph 11 schedule 7, Social Security Contributions and Benefits 1992, that either his incapacity for carrying on in his former regular occupation is likely to remain permanent (the permanent condition), or he has in fact been continuously so incapable at all times since the end of the period of 90 days after the date of the relevant accident or onset of disease on which his claim is based (the continuous condition).  
6.	The report of the examining doctor for the purposes of the reduced earnings allowance claim for carpal tunnel syndrome recorded that the claimant described symptoms of being unable to handle vibrating tools because of difficulties with his grip from the problems in his wrists, and on examination that because of the carpal tunnel condition the median nerve in his wrists was affected with sensory impairment and reduced grip.  However the doctor recorded that the claimant had been incapable of following his former regular occupation from this cause only from 15 February 1998, and there is no dispute that he had in fact managed to carry it on for the 18 years until that date despite the original onset of the carpal tunnel syndrome at the start of 1980.   The doctor’s medical assessment was that the current incapacity for that occupation was not likely to be permanent, or to last beyond a six year period to 15 February 2004.  He recorded that the claimant was currently capable of remunerative employment and was in fact in full‑time employment, and explained the reasons for the limited assessment of incapacity for his former occupation as follows:  
“If he has surgery for the condition he could get complete recovery.  He has seen a surgeon and has the option to have surgery – he said he may consider it in the future”.  
7.	On that basis a decision was given on behalf of the Secretary of State on 11 August 2001, that the claimant was not entitled to reduced earnings allowance from the date of his claim as he had not shown that he met either the permanent condition or the continuous condition of incapacity for his former regular employment.  The claimant appealed to the tribunal against that decision, on the ground that it was wrong to say his incapacity was other than permanent when he had a life assessment of 5% disablement from carpal tunnel syndrome. If he elected to have decompression surgery to his wrists it could work, but equally it could not, and in any case there was no realistic prospect of his being able to return to his former job after having once had a period of incapacity from that condition:  no mining employer would take him on with that history.  
8.	He submitted specialist medical reports and evidence (pages 57 to 60) which showed he actually had two separate problems: one of intermittent elbow pain in particular in his right elbow which was the condition giving him the most trouble, and the other his carpal tunnel syndrome from which he had a mild left median nerve entrapment and reduction of sensation in both hands, his consultant orthopaedic physician having recommended alternative treatments on 4 April 2000 as follows:
“For the wrist I have supplied him with a night splint with general advice and would be happy to see him either for injection or for surgical decompression.”
9.	The tribunal sitting on 7 May 2002 consisted of a legal chairman and a consultant orthopaedic surgeon.  They confirmed the Secretary of State’s decision that the claimant could not have reduced earnings allowance, because neither the permanent condition nor the continuous condition was shown to have been met.   They explained the reasons for this conclusion with great accuracy and clarity in the statement issued to the parties on 30 May 2002 at pages 66 to 67, in the following passages in particular:  
“	1.	On 28 November 2000 the appellant was given a disablement assessment of 5% from 1 January 1980 for life for prescribed disease A12 (carpal tunnel syndrome).  The date of onset was 1 January 1980.  The appellant accepted that decision and has not appealed against it.
	2.	On 28 February 2001 he claimed reduced earnings allowance (REA).  The appellant was examined by a medical adviser on 30 April 2001 and the doctor was of the opinion that he was not capable of his regular occupation and had not been capable of it since 15 February 1998.  However, the doctor was also of the opinion that the appellant’s incapacity for his regular occupation was not likely to be permanent and that the incapacity was likely to last only to 15 February 2004.  The doctor stated that if the appellant had surgery for the condition he could get complete recovery.  The appellant had seen a surgeon and had the option of having surgery.
…..
	5.	The appellant’s regular occupation is conveyor maintenance man and he worked in that occupation until February 1998.  It is not in dispute that since that date he has been incapable of carrying on his regular occupation.
	However, he has been given the option of having surgery for his carpal tunnel syndrome and if he elects to have the surgery there is every prospect of a successful conclusion if the diagnosis is correct.  The condition is not, therefore likely to be permanent even though he was given a life award for it.  He does not, in our opinion, meet the permanent incapability requirement of the regulations and with the release of the condition by surgery he would be capable of carrying out his regular occupation.
	The date of onset of the disease was 1 January 1980.  The appellant worked for 18 years in the regular occupation after that date.  He does not, therefore, meet the further requirement that he has been incapable of following his regular occupation at all times since the period of 90 days after the date of onset of the PDA12.
	The appellant does not meet the requirements of either of the alternatives set out in the regulations so his appeal fails.”
10.	Against that decision the claimant appeals on the grounds set out in his notice of appeal dated 20 June 2002, saying that he had been overruled when he wanted to dispute the date when his symptoms had started. A tribunal chairman granted leave to appeal on that notice, stating that “The issue is the date of onset of PD regarding an REA claim”: pages 80 to 82.  The observations of the Secretary of State on the issues raised by the appeal were obtained in the usual way, and as explained in the submission of Mr Brylov dated 19 September 2002 at pages 85 to 86 he now supports the appeal, not on the claimant’s ground or that given by the chairman when granting leave but for the third reason that the tribunal (and, by implication, the Secretary of State himself in the original decision) had
 “erred in law by basing their decision on the probable outcome of an operation when there is no evidence that the claimant is actually going to have the operation”.  
That, it is submitted, renders the tribunal’s decision invalid since it was not open to them as a matter of law to reach the decision they did about the question of permanence without there being such evidence.  On behalf of the Secretary of State it is therefore suggested that the case must be reheard by a further tribunal to make some further findings about the claimant’s likely treatment.  The claimant makes no further observations in reply on any of the three points raised.  
11.	Having considered each of them I have not been persuaded that any discloses an error of law on the part of the tribunal such as to necessitate (or for that matter permit) my setting the tribunal’s considered decision aside.  The point raised by the claimant that he was not permitted to reopen the previously determined date of onset of his prescribed disease does not amount to an error of law by this tribunal, since as correctly explained by the chairman in the course of the hearing (see the record of proceedings at page 64) the determination of the date of onset had been by a previous decision which had been accepted, and was not within the scope of the appeal presently before the appeal tribunal. That was concerned only with any entitlement to reduced earnings allowance on his claim of 28 February 2001 based on the final disablement assessment already made.  
12.	The reason given by the (different) tribunal chairman for granting leave to appeal that “the issue was the date of onset of PD regarding an REA claim” does not I think identify an arguable issue of law that is actually relevant to this case.  It was no doubt done (quite understandably) because of a large number of other cases potentially affected by a then pending decision in the Court of Appeal in case CI 6027/99 Whalley v Secretary of State, but the questions involved in those other cases are different and I am satisfied they do not arise here. 
13.	That leaves the fresh point raised by the Secretary of State’s written submission, that it was an error of law for the tribunal to have decided the case as they did based on the evidence before them about whether the claimant’s condition was likely to be permanent.  Obviously one does not reject a departmental concession of this kind without careful thought, but here I am satisfied that the submission does not show any basis in law that can undermine the findings of the tribunal.
14.	As was held by the Commissioner in reported decision R(I) 7/53 to which Mr Brylov’s submission helpfully draws my attention, the question of whether a claimant is likely to remain permanently incapable of following his regular occupation for the purposes of reduced earnings allowance is one to be assessed by the tribunal, on the probabilities of the case, and having regard to the evidence before them. As the Commissioner says in paragraph 10, the burden of proving that he is likely to remain permanently incapable rests on the claimant; or as I would for my part prefer to put it in an inquisitorial jurisdiction, the tribunal must be affirmatively satisfied on the evidence before them that he is so incapable, on one test or the other, before they can hold him entitled to the benefit. 
15.	In the present case, the evidence before the tribunal in the form of the medical examination report on his REA claim and the further specialist medical advice and reports he adduced himself was to the effect that he had a relatively good prognosis, with the options of either continued treatment by the physician with injections, or surgical decompression which could release the condition completely and give him a complete recovery.  The claimant had said he might consider having such surgery, and there was nothing in the evidence to suggest any special reason (such as a rooted objection on reasonable grounds to having surgery at all: cf. R(I) 2/86) such as to justify excluding the possible benefit of this treatment from the overall assessment of probabilities on whether the claimant was “likely” to have to suffer the incapacity for the rest of his life.  
16.	In my judgment, the assessment of probabilities the tribunal is required for this purpose to make in accordance with R(I) 7/53 is no different in principle from any other judgment of fact and degree on the nature, extent and likely duration of a medical condition or incapacity that the tribunals charged with making these decisions on disablement issues are required every day to determine.  Particularly on a medical issue where as here the tribunal included a medical expert in the field who was able to bring his own specialist knowledge and experience to bear, a Commissioner on an appeal confined to questions of law must be slow to interfere:  the only grounds on which it would be proper to do so here would be if it could be said that there was no evidence before the tribunal to justify the conclusion they reached, or that the conclusion they did reach was so unreasonable having regard to the evidence actually before them that they must have misdirected themselves in law so that the result has to be set aside as perverse.  
17.	By those standards, it cannot be in my judgment be said that the decision reached by the tribunal in this case is one with which I can properly interfere as a matter of law.  There plainly was evidence before them, in the form of the examining doctor’s assessment that with reasonable treatment this was only a temporary incapacity and the specialist’s reports showing a live possibility of surgery with a good prospect of complete recovery, on which (coupled no doubt with the consultant member’s own experience of the relatively straightforward surgery involved, and the likely outcome) any reasonable tribunal could properly base a conclusion that the “permanent” condition was not, on a balance of probabilities, shown to be satisfied. Nor could he be entitled via the alternative “continuous” condition when on the undisputed evidence he had in fact managed to carry on working at his old occupation for 18 years.  On that basis it necessarily followed that he had failed to establish entitlement to REA.
18.	The tribunal’s conclusion to that effect being in my judgment properly based on the evidence before them, impossible to characterise as unreasonable or perverse, and clearly and adequately explained in their statement of reasons, there is in my view no error of law to warrant setting it aside and I therefore dismiss this appeal.

(Signed)
P L Howell
Commissioner
20 February 2003