DECISION OF THE SOCIAL SECURITY COMMISSIONER

CI/3767/2002

1.	This appeal is allowed.  The decision of the Chesterfield Appeal Tribunal given on 24 April 2002 is set aside and the case is remitted to be heard by a new tribunal in accordance with the directions given below.   

2.	The appeal is brought with the leave of a commissioner, who raised the question whether the tribunal was entitled to rely on a paper by the director of the Yorkshire Regional Scoliosis and Complex Spine Centre at Leeds which had not been disclosed in evidence.  

3.	I doubt that in this case the tribunal was doing more than cite one of the sources for the expert view of its medical member.  Since it is plain that in relation to industrial injuries benefits claimants can be examined by the medical members and that the medical members can form their own expert views as to the nature and cause of the claimant’s injuries, it seems to me to follow that they must be able to rely on the reports and papers they have read in order to acquire their expertise, and unless there was a medical expert acting for the claimant, one would not expect that non-disclosure of any of those papers at the hearing would in any way prejudice the claimant.  I am unable to see why a reference to one of them should prejudice the claimant more than if it had been relied on for a proposition without being cited as the source of that proposition.

4.	If the matter rested there, I would have had no hesitation in dismissing this appeal.

5.	However, my reading of the decision leaves me unclear how the tribunal came to the conclusion to which it did come for the reasons set out below.  On that account, I conclude that the tribunal’s reasoning was so unsatisfactory as to constitute an error of law, and its decision must be set aside.

6.	The claimant had suffered an injury to the soft tissue in her lower back in June 1998.  Although she stated that she had suffered intermittent pain from that injury in the subsequent months, she had managed to go about her daily business, and there were signs of improvement until one morning in May 1999, shortly after she had changed her job from school dinner lady to cleaner/caretaker.  On 5 May 1999 she had woken in the morning with severe pain, since when her ability to do things appeared to have become very restricted and her pain much greater.

7.	The claimant had been referred to the orthopaedic department at the local hospital, and its report at pp.25-25A of the file states that an x-ray showed what was in essence a normal spine.  No physical reason was found for the pain suffered by the claimant, and a subsequent bone scan showed no abnormalities.  Various treatments also failed to produce any improvement.

8.	In effect the tribunal concluded that the claimant’s pain was real but was independent of her accident in June 1998.  The essence of the tribunal’s findings is in the penultimate paragraph of the statement of reasons.  It reads –

“The Tribunal found as a fact that [the claimant] suffered a soft tissue injury on 09.06.98 which would of itself have been self-limiting.  She continued to live a full life after this but the Tribunal found she was susceptible to spinal pain from “wear and tear” – part of the normal aging process.  She had a flare up of back pain eleven months later in May 1999 but this could not in any way be connected to a soft tissue injury.  The medical view is that a small everyday movement or action is capable of causing a degenerating spine to become symptomatic and troublesome; trauma is less likely to cause damage to an otherwise healthy spine (see paper of Robert. A. Dickson MA ChM FRCS DSc, Director Yorkshire Regional Scoliosis and Complex Spine Centre, Leeds).”

9.	The problem is that in the present case the evidence from the orthopaedic consultant at the local hospital was that his investigations had revealed that the claimant had a healthy spine with no abnormalities.  The only damage to the area was the soft tissue damage suffered in June 1998.   If the paper referred to is to be prayed in aid of the tribunal’s conclusions, it would have, in effect, to be stating that the normal spine of a 44 year old woman was not a healthy spine for this purpose because of the wear and tear it had suffered.  It seems to me perfectly possible that the paper was comparing a spine with identifiable signs of degeneration beyond the norm with one with no such signs.  Also, the issue here is not whether the movement or action which caused such problems in May 1999 caused damage to the claimant’s spine, but whether the damage was caused, or was as severe as it was, because of the after effects of the injury suffered in June 1998, which does not seem to have been to the spine itself.

10.	It may be that these points could have been properly explained, but in my view the statement of reasons in this case is not a sufficient explanation, and the tribunal was in error of law in failing to provide a coherent explanation.

11.	As Professor Marshall Devor stated in delivering the 3rd Pain Relief Foundation Annual Lecture on 18 October 2002 (not on this file), “The real challenge to today’s pain science and medicine is chronic pain, pain with intensity out of proportion to the injury sustained, and that long outlasts any obvious tissue abnormality.”  He draws attention to accumulating evidence in this area that the pain may be caused by damage to the pain system itself.   Professor Patrick Wall, the co-inventor of the TENS machine, in Chapter 7 of his last book, Pain the science of suffering, points out that there are 85% of patients with back pain with no apparent cause, which produces a very large social, medical and personal problem. He suggests various possible causes including neural damage which present diagnostic systems cannot detect and poor posture resulting from earlier pain.

12.	The absence of any clear cause of pain makes the task of a tribunal a difficult one.  In many cases the issue may be whether the pain is real or exaggerated, or whether it has a physical cause.  In the present case it is whether the claimant’s loss of faculty resulted from the accident in June 1998.  That will depend on the view which the new tribunal takes of the cause or causes of the claimant’s back pain, a matter on which I express no opinion.  The appeal is allowed and the case is remitted as indicated in paragraph 1 of this decision.

(signed)	Michael Mark
		Deputy Commissioner

		16 January 2003