Industrial diseases [2004] UKSSCSC CI_3625_2003 (13 May 2004)

CI 3625 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law, and I set it aside and replace it. But my own decision is not to the claimant’s advantage. 

2	The claimant and appellant (Mr W) is appealing with my permission against the decision of the Bristol appeal tribunal on 2 April 2003 under reference U 03 186 2003 00255.

3	I replace the decision of the tribunal with the decision that the tribunal should have taken. It is:

Prescribed disease B5 (tuberculosis) is not prescribed in relation to the claimant’s occupation in respect of his claim of 22 May 2002. 

REASONS FOR THIS DECISION

4	The decision under appeal to the tribunal is that the prescribed disease B5, tuberculosis, is not prescribed in relation to the claimant. Mr W’s claim for industrial injuries disablement benefit was therefore disallowed. The tribunal confirmed that decision.

5	The decision of the tribunal on the appeal was very clearly set out in the statement. I repeat the relevant findings, in anonymised form:

1 The appellant … moved  [at the age of 3] to [his current home area] … There, he was drinking milk from his local dairy and later delivered it. He was heating and cooling milk. He was unaware whether it was pasteurised.  

2 Bovine tuberculosis (bovine TB) is capable of being contracted during infancy, by humans, and can lie dormant, symptom-free, until discovered accidentally in the course of an investigation carried out coincidentally.

3 As an adult, the appellant had been employed as a teacher [elsewhere] from … 1975 to … 1986. During 1984/5 …  there was on the staff a teacher named [X].	

4 X ran a small herd of cattle, and tended to these animals on the way to school, arriving at school in the same clothes.

5 The appellant was unable to confirm whether the cattle referred to above were at the material time infected with bovine TB. He noted that there was a three year cycle for testing cattle, but was unaware of any results confirming the existence of that disease in that herd. 

6 Cattle can carry TB in their saliva glands although not in the bloodstream. In the light of the report set out below at paragraph 12, the tribunal concluded that it was more likely than not that bovine TB is not transmitted by a tick in the bloodstream.

7 During the early part of the autumn term 1984, the appellant developed symptoms described in his letter [of 30 July 2002]. The effects of the condition from which the appellant suffered were summarised in his application for industrial injuries disablement benefit [dated 21 May 2002].

8 In his claim for sickness benefit … a medical officer who examined him diagnosed anxiety and depression. He was also diagnosed as having tick toxoplasmosis in the earlier or the two claims in 1987. 

9 A medical certificate dated 19 May 1987 also referred to bovine TB debility, likewise on a further medical certificate of 19 January 1998.

10 The diagnosis of toxoplasmosis was made some time before the diagnosis of bovine TB.

11 It was accepted that toxoplasmosis was tick-borne, but not bovine TB. 
…
13	The process of bovine TB is different from human TB, there being only a very small number of cases, approximately 40 recorded. A patient would need to be in the proximity of infected cattle in order to contract bovine TB.

6	Based on these findings, the tribunal found that it was equally likely that Mr W contracted TB during his childhood or earlier working years and that the disease had lain dormant since then. It therefore found that Mr W had not established on the balance of probabilities that he contracted bovine TB in the way he contended, namely by being bitten by a tick brought to school on X’s clothes.

7	 I granted permission to appeal against that decision after an oral hearing in Cardiff at which the claimant and his solicitor attended. In the full reasons I gave for granting permission, I noted a number of problems with the conclusions drawn by the tribunal from its findings. The main issue was that the tribunal was asked to consider what is usually called a “prescription question”. Was Mr W’s occupation as a teacher prescribed for the purposes of PD B5?  The tribunal answered a different question, namely whether Mr W had contracted the disease from his employment as a teacher. That is part of a “diagnosis question”.  Further, careful as the tribunal had been with its findings of fact, it proceeded to deal with the issue without a decision or submission from the Secretary of State on the diagnosis question.

8	The Secretary of State was not represented at the oral hearing before me. I have since received a full and helpful submission from the secretary of state's representative about the case. This supports the views I took in granting permission at the oral hearing and also the arguments put forward for Mr W that the tribunal should have confined itself to the prescription question.  The submission also included expert notes from Dr Susan Reid and Dr Peter Wright of the Department for Work and Pensions Corporate Medical Group on the nature of prescribed disease B5 and the prescription issue for B5. Those notes referred me to relevant reports of the Industrial Injuries Advisory Council (IIAC), and in particular comments of the IIAC in Conditions due to Biological Agents, 2003, Cm 5997, paragraphs 68-80. 

9	The Secretary of State took a prescription decision and not a diagnosis decision. The tribunal had no power to deal with the latter on an appeal about the former even if it had decided the prescription question in favour of Mr W (which it expressly refrained from doing). The terms of prescription for prescribed disease B5 are somewhat out of line with other prescribed diseases, but this does not change the approach that should have been taken. For these reasons, I set aside the decision of the tribunal. But, given the clear findings of fact, and the evidence made available to me from both sides (including at the oral hearing) relevant to the precise question to be answered, I see no useful purpose in referring the matter to a new tribunal or holding a further hearing. It is expedient that I decide the question.

10	 I adopt the findings of fact set out above. I emphasise that they were made with a view to a decision on a question I am not deciding. It is for me to decide if the disease is prescribed for the claimant. If I find the disease is prescribed, then the case must then go back to the Secretary of State to decide the diagnosis question and, if it then arises, the disablement question. There are separate rights of appeal from each of these decisions. 

11	The formal terms of the prescription of prescribed disease B5 are:
Prescribed disease: 	B5 tuberculosis
Occupation: 		contact with a source of tuberculous infection.
It is not in dispute that this prescription covers both mycobacterium tuberculosis (human TB) and mycobacterium bovis (bovine TB) (IIAC Report, Cm 5997, paragraph 69).

12	 In Conditions due to biological agents (Cm 5997) the IIAC reviewed recent evidence of occupational risk factors for prescribed disease B5 at paragraphs 72 to 80. It concluded that there is increased risk of TB with healthcare personnel, including both clinical and laboratory staff (paragraph 74). It then looked at other occupations risks. The paragraphs dealing with bovine TB are as follows:

77 Reports of human TB due to mycobacterium bovis are rare in the UK. The majority of recent cases have been reactivations of previous infections, or infections acquired abroad or through person-to-person spread. However, mycobacterium bovis infections are increasing in cattle, and badgers are another important reservoir of the disease. In 1999, there was a human case of TB following contact with cattle, according to MAFF reports. Thus, potentially, workers in contact with infected sources could be at risk, such as farmers, veterinarians, abattoir workers, laboratory workers and gamekeepers.

 79 In the general population, there were 28 cases of mycobacterium bovis infection in the UK in 2000, 40 cases in 1999 and 25 cases in 1998, with the majority of those being reported in England. As stated previously, according to MAFF in 1999 there was one occupationally-acquired case, following exposure to infected cattle. 

13	Prescribed disease B5 is one of the diseases listed in regulation 4(1) of the Social Security (Prescribed Diseases) Regulations 1985 as not being a disease where a presumption operates that the disease arises from the nature of the employed earner’s employment. The regulation serves as a reminder that it is for Mr W to show that he is within the prescription. Regulation 4 (2) assists a claimant claiming for prescribed disease B5 with a presumption of occupational origin of the disease in defined circumstances once the disease has been prescribed for him or her, but not before. This only assists Mr W if he succeeds on the prescription question. Regulation 4(2) also bases the assumption on “the nature of” the employment. In R(I) 38/52, a decision of a Tribunal of Commissioners, the Tribunal noted that this use of terminology directed attention to those features of the employment that exposed the claimant to the risk of contracting the disease in respect of which the employment is prescribed. Rule changes since then have changed the rules on which other parts of that decision rested.

14	There are a considerable number of Commissioners’ decisions about tuberculosis in the period up to 1960. I can find none reported in the last four decades. Indeed, an electronic search of the Commissioners’ internal decision databases reveals no decision at all about this prescribed disease in the last ten years. And because of changes in the terms of prescription, the earlier cases are now of limited assistance. Nor is there any in the excellent but now sadly dated volume by Norman Lewis, Compensation for Industrial Injury, 1987, Professional Books, or (less surprisingly, given the absence of recent decisions) in the commentary on these regulations in the standard work Social Security Legislation, Non Means Tested Benefits, 2003, ed Bonner, Hooker and White, Sweet & Maxwell.  	

15	Mr W claims that he was within a prescribed occupation as a teacher for the reason identified by the tribunal. The original decision taken for the Secretary of State was that “teaching is not an occupation involving contact with a source of tuberculous infection”, and therefore the disease could not be prescribed for him. 

16	The supporting submission to the tribunal is that: “examples of the types of employment that involve contact with tuberculosis are doctors, nurses, ambulance crews and pathology technicians.” For Mr W it was pointed out that this submission in the papers put to the tribunal is a selective quotation from a Departmental leaflet and omitted a reference to social workers. The representative now acting for the Secretary of State has accepted with regret that this is so. The proper quotation, in Appendix 1 to the Department’s DB1 (A guide to Industrial Injuries Scheme Benefits) reads:
Contact with a source of tuberculous infection. For example doctors, nurses, ambulance crews, pathology technicians and social workers.
I see no reason whatsoever for four of those groups being cited in the order in which they are cited and not the fifth. This kind of selective submission succeeds only in making the work of tribunals harder because it undermines the reliance that tribunals can put on such submissions and also the confidence of claimants. It has to be said that the submission put to this tribunal falls short of the standard to be expected of submission writers.  

17	The Department’s medical advisers and the secretary of state's representative now acting accept that social workers may be in a relevant kind of occupation and that teachers may be akin to social workers in their potential contacts, as some are likely to be in frequent contact with similar groups of people.  More than one story in the national news media recently has shown that this does happen to some teachers, at least for the human form of the disease. The original decision that because Mr W was a teacher he was not in a prescribed occupation is clearly wrong.  

18	This does not establish the converse, namely that his occupation was prescribed simply because he was a teacher. A teacher must show, as a matter of fact and on the balance of probabilities, that the nature of her or his employment in employed earner’s employment as a teacher brought contact with a source of tuberculous infection. Mr W has a harder task. He has to show that this is so for bovine TB. I do not see how he can establish that his occupation is prescribed unless the risk is of contact with the form of tuberculous infection from which he suffers. 

19	Could B5 be tick-borne? I accept the evidence from Dr Peter Wright of the DWP Corporate Medical Group (based partly on the evidence of Dr Carolyn Woodhouse, now of ATOS Origin, that was before the tribunal) that:
“Transmission of tuberculosis through a tick bite has not been reported but cannot be ruled out as impossible”.
Mr W produced a considerable amount of medical and other literature on this topic. I accept Dr Wright’s expert view as the appropriate summary of that evidence. 

20	Mr W believes that his occupation as a teacher should be prescribed for contact with bovine tuberculous infection because, he asserts, a colleague kept cows. Those cows may have had tubercular infection; this may have caused a tick to carry that infection; this tick may have been carried on the clothes of that colleague to school; he may have been bitten by the infected tick and so infected with bovine tuberculosis. I use “may” advisedly in the light of the tribunal’s findings. There is evidence that Mr W was bitten on his left hand at school. There is evidence that he was subsequently diagnosed with toxoplasmosis and bovine TB. There is no other evidence proving the links or of any other such exposure to risk occurring at the school or of any other such incident occurring anywhere.  There is evidence of an alternative possible source, and possibly a work-related source, of Mr W’s TB. 
 
21	It is worth remembering why some diseases are prescribed as industrial diseases and others are not. The test is in section 108(2) of the Social Security Contributions and Benefits Act 1992:

A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –
(a) it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupation and not as a risk common to all persons; and
(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.

That is the background against which the terms of prescription of B5 are to be interpreted and applied, bearing in mind also any formal comment of the IIAC on the prescription to the Secretary of State. I have quoted the recent comments of the IIAC. 

22	Against that background, I find that Mr W fails to make out the case that his employment is prescribed in relation to bovine tuberculosis, prescribed disease B5. I do so without looking too closely at the details of the school and its catchment area, or his job as a senior teacher at that school. I do so because he puts the risk down to contact not with infected children or their families or home settings, but with a professional colleague who was not known to be infected, and not to contact with infected cows or badgers or individuals but with a tick on that colleague’s clothing. The tribunal found that Mr W had not satisfied it that the infection from which he was suffering was tick-borne. In other words, he failed to establish a source of infection. There is sound evidence for that and I accept that finding. That answers the question. But even if – hypothetically - I found that Mr W was right and X did carry an infectious tick, and that tick had bitten Mr W and caused bovine tuberculosis, what was it about his employment that put him at this risk? Why was he at risk as a teacher from that tick, in a different way to any member of X’s family, friends or any other contacts or, in the words of section 108, otherwise than “as a risk common to all persons”.  I find no such additional risk. On either analysis, Mr W fails to establish that his occupation was prescribed for prescribed disease B5 in the bovine form. His appeal must therefore fail.

David Williams
Commissioner
12 May 2004