PLH                                                              Rhif ffeil/ Commissioner’s File:  CI 4249/03

DEDDFAU NAWDD CYMDEITHASOL 1992-1998
SOCIAL SECURITY ACTS 1992-1998

APÈL YN ERBYN DYFARNIAD TRIBIWNLYS APÈL
YNGHYLCH CWESTIWN CYFREITHIOL
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DYFARNIAD Y COMISIYNYDD NAWDD CYMDEITHASOL
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Cais am/Claim for:	Reduced Earnings Allowance 
Tribiwnlys/Appeal Tribunal:	Cardiff
Rhif achos/Tribunal Case Ref:	U/03/188/2003/02436
Dyddiad/Tribunal date:	30 July 2003
Rhesymau/Reasons issued:		9 September 2003

[GWRANDAWIAD/ ORAL HEARING]

1.	This claimant’s appeal has to be dismissed, as in my judgment there was no error of law in the decision of the Cardiff appeal tribunal sitting on 30 July 2003 confirming that the claimant was not entitled to reduced earnings allowance on the claim he made on 15 July 2002 for being disabled from pursuing his regular occupation of an underground grade 1 road repairer in the mining industry from 1985 onwards through vibration white finger.  The tribunal were entitled to find as they did that the “regular occupation” for assessing any relevant loss of earning power for the purposes of this claim was that of a grade 1 road repairer already described.  
2.	They were further correct in law in holding that as the date of onset of the claimant’s vibration white finger had already been determined by a medical appeal tribunal on an earlier claim for disablement benefit as 1 January 1985, and the claimant had already been awarded the maximum rate of reduced earnings allowance from that year onwards on a separate claim for being disabled from carrying on the same regular employment by the effects of an industrial accident the claimant had suffered on 20 October 1983, he could not establish an entitlement to a second lot of compensation for the same loss of earning power on his later claim.  
3.	I held an oral hearing of the appeal which had been directed by another Commissioner.  The claimant appeared and presented his case in person and the Secretary of State was represented by Vaughan Lewis of the solicitor’s office, Department for Work and Pensions.  
4.	The claimant is a man now aged 68 who in the course of his career in the difficult and dangerous conditions in the coalmining industry suffered a succession of misfortunes.   The only ones which concern this appeal were that on 20 October 1983 he suffered an accident at work when a piece of steel flew into his eye causing permanent damage to his sight and continuing headaches, though fortunately he did not lose the sight completely.  He claimed and was awarded reduced earnings allowance for this from June 1985 onwards, receiving a succession of awards at the maximum rate as shown in the copy Departmental records at pages 6 to 10.  The situation is complicated by the fact that he was not actually at work for an extended period in 1984 to 1985 because of the miner’s strike and he had already been having trouble carrying out his regular duties before then, but there is no doubt that the basis of this claim and the reduced earnings allowance award made on it was accepted and agreed by all parties, including himself.  It was that the “regular occupation” for which he was compensated for being unable to pursue by reason of the accident was that of a grade 1 repairer working underground: see his own claim form signed on 3 June 1985 at pages 6 to 7.  
5.	On 28 February 1996, while in receipt of full rate reduced earnings allowance under that award, the claimant made a further claim for disablement benefit in respect of prescribed disease A11 Vibration White Finger, from which he claimed to have been suffering since 1985.  His claim form indicated that he also wished to claim reduced earnings allowance for that, again giving his occupation for the purposes of the claim as that of a “repairer”: see pages 11 to 13.  That was corroborated by his employment record at the colliery which showed his occupation as that of a repairer from 28 October 1980 onwards, down to May 1985 when he moved to the lighter duties of a dust sampler until his eventual redundancy on 6 May 1989: page 16.  
6.	On 10 March 1999 it was determined by a medical appeal tribunal that the claimant was suffering from prescribed disease A11, and had been so suffering since 1 January 1985 with a loss of faculty from that date identified as “impaired upper limb function” and a disablement assessment, after the expiry of the statutory 90 day period, of  2% from 16 April 1985 for the rest of his life: pages 17 to 18.  That assessment was subsequently increased to 4% for life from 8 November 2000 on the ground of a subsequent adverse change in his condition which had not been taken into account in the original assessment: see the decision notice dated 26 November 2001 at page 33 recording the increased disablement assessment from 8 November 2000 in respect of the same loss of faculty and disease he had been suffering since 1 January 1985.
7.	The claim which gave rise to this appeal was a further claim for reduced earnings allowance completed and signed by the claimant on 11 July 2002 and submitted on 15 July 22: pages 53 to 65.  Although making clear that he was expecting to receive the benefit only from September 2001 onwards, the form identified the disease for which he was claiming reduced earnings allowance as the vibration white finger from which he had been suffering ever since 1984 to 1985.  In response to the question “what was your job at the time of the accident or onset of the disease?” the claimant put “colliery repairer (underground)” and gave a description of the drilling rigs and other vibrating tools he had used in his regular job, identifying the reasons why the disease had stopped him doing this as “loss of control sensitivity numbness dexterity constant dull ache and pain” and adding “I was grade class top repairer”.  
8.	There can be no possible doubt therefore that although the claimant was only asking for a further award to be made to him from a relatively short period before the date of this new claim, what he was claiming for was compensation for the drop in earning power through being unable to continue his original job of a grade 1 underground colliery repairer because of the vibration white finger which had to some extent disabled him from the start of 1985.  Since that was the same loss of earning power for which he had already received a full compensatory award of reduced earnings allowance as a result of the earlier accident to his eye, his claim was rejected; and the issue the tribunal which heard his subsequent appeal on 30 July 2003 had to consider was whether that rejection had been right.  
9.	The claimant, who appeared before the tribunal in person as he did before me (having been abandoned by the firm of consultants which had previously encouraged him to pursue claims for this industrial disease) now maintained that he was not pursuing a second claim for the same occupation.  Rather, he was concerned with the position after his disablement had been reassessed at 4%, and the fact that he had suffered a further drop in earnings in about 1987 or 1988 after carrying out reduced duties underground for a couple of years.  That was the time when he had had to give up underground work altogether and take even lighter duties on the surface at a lower rate of pay again: see the record of his oral evidence at pages 117 to 118.  
10.	The tribunal however held that what they were concerned about was the regular occupation in which the claimant had been engaged at the date of onset of his prescribed disease, which had already been determined as 1 January 1985; and they recorded as a fact that despite his not being at work on that date due to the coal strike, his regular occupation at that time was a grade 1 road repairer.  They recorded that this was clear from the evidence in the papers, the evidence from the employer and the claimant’s oral evidence to the tribunal themselves: the date of onset had been confirmed by two medical appeal tribunals and also appeared in a hand-arm vibration syndrome assessment report submitted by the claimant.  They continued: 
“A decision made on the date of onset for the purposes of a claim to a prescribed disease is final and binding in respect of a claim for reduced earnings allowance … the date of onset so determined for disablement benefit is closely related to that which must be established for the purposes of entitlement to REA.  Entitlement to REA depends on relevant loss of faculty as a result of a prescribed disease which itself developed before 1/10/90.  
[The claimant] ceased his job as a grade 1 road repairer due to the ongoing effects of the industrial accident.  Only one award of reduced earnings allowance can be made in respect of [his] regular occupation.  As [his] regular occupation at the onset of his vibration white finger was the same as his regular occupation at the time of the 1983 accident, only one award of reduced earnings allowance may be made – R(I)2/56.  For the above reasons we dismissed [the claimant’s] appeal”.
11.	In my judgment, the tribunal’s statement of reasons showed that they directed themselves entirely correctly on the relevant law, and their finding of fact that the “regular occupation” by reference to which any loss of earning power had to be measured for the purposes of a reduced earnings allowance claim in respect of his vibration white finger was that of a grade 1 road repairer, in which he had been engaged at the date of onset of the disease on 1 January 1985, is consistent with the evidence before them and unchallengeable.  
12.	As explained by the Commissioner in paragraphs 8 to 9 of decision CI 1052/2001 to which my attention is drawn, for the purposes of reduced earnings allowance, a person’s regular occupation is his occupation at the date of the accident or the date of onset of the disease.  The fact that there may be a lapse of time before a person becomes incapable of following that occupation because of the disease is not a bar to his being paid reduced earnings allowance on a claim made only at a later date, but as held by the Commissioner in a long established decision under the Industrial Injuries Act in reported case R(I)2/56, the statutory provisions clearly indicate the intention that for one loss of capacity to follow his regular occupation, a man is entitled only to one payment in respect of the same period.  Hence where a claimant had made separate reduced earnings claims in respect of an accident and vibration white finger, and his regular occupation had been the same at both the date of the accident and the date of onset of his vibration white finger, he was not entitled to more than one award at the maximum rate in total; so that as an award had already been made at the maximum rate in respect of the accident, it was correct that he could not claim a further one in respect of vibration white finger.  
13.	In my judgment, the same principles and the same result must apply here.  The tribunal on 13 July 2003 were correct to take the date of onset of the prescribed disease as the relevant date for the purpose of determining the regular occupation in respect of which the claimant was entitled to claim, and were also correct in taking that date of onset as 1 January 1985.  They were bound to do that, because the date of onset had already been finally determined for the purposes of all his claims in respect of that disease by the decision of the medical appeal tribunal given on his first claim: see regulation 6 Social Security (Prescribed Diseases) Regulations 1985 No. 967.  
14.	As Mr Lewis correctly submitted, it was a straightforward question of fact what his regular employment was on that date; and the tribunal’s finding that this was as a grade 1 colliery repairer was soundly based on all the evidence before them, including the employment records to which they referred.  That being the case, it had to follow that there could be no separate entitlement to reduced earnings allowance on the fresh claim. I do not accept the claimant’s contention that the fact that his benefit had been reduced to “retirement allowance” under paragraph 13, schedule 7 Social Security Contributions and Benefits Act 1992 after he attained pensionable age can make any difference to that result, or give rise to any fresh entitlement to reduced earnings allowance in respect of his vibration white finger.
15.	For those reasons, I dismiss this appeal.

(Signed)

P L Howell
Commissioner
9 March, 2004