[2007] UKSSCSC CAF_2190_2006 (19 December 2007)

CAF/2190/2006

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1.	My decision is that the decision of the Pensions Appeal Tribunal is erroneous in point of law.  I set aside the tribunal’s decision and refer the case for rehearing before a differently constituted tribunal.  

2.	This is an appeal against the decision of the tribunal given on 8 February 2006, dismissing the appellant’s appeal against the rejection of the condition “suppurative otitis media left“ as attributable to service.  I gave leave to appeal against the tribunal’s decision following an oral hearing held on 10 January 2007, at which the appellant was represented by Mr Peter Derrick, of the Royal British Legion.  The appeal has been opposed by the Secretary of State in a written submission dated 6 February 2007.

3.	The appellant served in the Army from 12 August 1954 to 11 July 1957, although there is evidence that he had been rejected for service on medical grounds earlier in 1954.  The copy of the appellant’s entry medical examination report which has been supplied to me by the Secretary of State in the course of this appeal has an entry of “nil” against “history of otorhea” and “NAD” against “Other Diseases” (i.e. of the ears, nose and throat).  The copy of the document in the statement of case before the tribunal simply shows “NAD” against “Ear, Nose and Throat”, although both documents show a hearing distance of 10 feet for each ear in the forced whisper test.

4.	The appellant qualified as a paratrooper and saw active service in Cyprus from August to December 1956, during which he claims that he sustained a perforation of his left ear drum.  On 1 April 1957 he was referred for outpatient treatment for chronic otitis, and the clinical notes in respect of that referral state that he had suffered from recurrent left otorrhoea and otalgia since the age of seven.  He attended for treatment again on 15 April 1957 and the notes made on that occasion record:

“First had otorrhoea during 1944 after swimming-ears discharged for some months.  In 1954 was turned down for a regular engagement on account of Lt. Ear.  Was accepted later in 1954 for regular engagement.
Six months after entry to the army the left ear discharged and he ahs had several recurrences of this.”

5.  On 6 May 1957 the appellant was discharged from service on the ground of chronic suppurative otitis media of the left ear which was accepted as attributable to service, with disablement assessed at 20%.  The personal statement prepared in connection with the invaliding Medical Board records a statement by the appellant that he had received hospital treatment for chronic otitis media in 1944, and the Board record states:

“First had otorrhoea during 1944 after swimming; ears discharged for some months.  In 1954 was turned down for a regular engagement on account of Lt. Ear.  Was accepted later in 1954.  Six months after entry to the army left ear discharged and he had several recurrences.” 

6.	On 6 July 2005 the appellant applied for a review of his award, claiming that his condition had deteriorated and had been caused by military service in 1956.  That claim was rejected on the basis of the opinion of Medical Services stating that the appellant had signed the Medical Board personal statement that he had suffered from the invaliding condition since 1944, and referring to the clinical notes made on 1 April 1957.  

7.	The invaliding Board personal statement does not in fact appear to have been signed, and in the course of his appeal the appellant has pointed out a number of other unsatisfactory features in the documents relied on by the Secretary of State as showing that the appellant was already suffering from the relevant condition when he entered service.  The tribunal noted the appellant’s contentions with regard to the documents, but nevertheless dismissed the appeal for the following reasons:

	“The tribunal accepts that the standard of some of the documents are less than fully satisfactory.  However, there were several documents, at different dates, all of which refer to pre‑service otorrhoea.  These documents are far closer to the dates of the events than the oral evidence before the tribunal.  The tribunal finds the totality of the documentary evidence compelling.  The tribunal find that the appellant suffered pre‑service otorrhoea and aggravation is an appropriate label.”

8.	Article 4(3) of the 1983 Service Pensions Order (now Article 40(4) of the 2006 Order) provides:

	“Subject to the following provisions of this Article, where an injury which has led to a member’s discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.”

I gave leave to appeal because I considered that the tribunal’s failure to refer to the entry medical, which showed the condition of the claimant’s ears as normal, raised a doubt as to whether it had proper regard to that provision.  The Secretary of State has however opposed the appeal on the grounds that the documents showing the appellant to have suffered from otorrhoea since the age of seven establish that it was a pre‑service condition.

9.	It is clear that the statutory presumption created by Article 4(3) of the 1983 Order, usually referred to as the “compelling presumption”, applies when entitlement is in issue, even though a condition has been accepted as aggravated by service.  In Paul v. The Minister of Pensions 2 WPAR 633 the appellant applied for a disablement pension on the ground that his anxiety state was attributable to service.  The Minister accepted the disease as aggravated by war service, but rejected the claim as to attributability.  In allowing the claimant’s appeal against the tribunal’s decision upholding that rejection, the Second Division of the Court of Session held that where the Minister had accepted anxiety state as having been aggravated by war service (thereby establishing causation between the disease and war service), in order to rebut the compelling presumption beyond reasonable doubt that the condition was attributable to war service, the evidence must firmly establish not merely predisposition, but that the anxiety state had a specific earlier onset or substantive existence. 

10.	I have come to the conclusion that Article 4(3) of the 1983 Order was not applied correctly in this case.  As Mr Derrick has pointed out, the tribunal chairman deleted the paragraph relating to Article 4(3) on the standard proforma recording the tribunal’s decision, and the reasons make no reference whatever to the record of the entry medical examination. The condition “suppurative otitis media” is associated with perforation of the ear drum, but the tribunal’s reasons for its decision did not deal with the issue of  why the entry medical report failed to mention perforation of the ear drum if that condition existed at the date of the appellant’s enlistment.   

11.	The tribunal’s reasons for dismissing the appeal are very brief, but the chairman gave much fuller reasons for the tribunal’s decision when refusing the application for leave to appeal.  Assuming that I am entitled to take those reasons into account as supplementing the reasons given immediately following the hearing (which I very much doubt), I am still not satisfied that they establish that Article 4(3) was correctly applied.  Although those reasons do refer to the absence of any indication of abnormality in the record of the entry medical, they simply treat that as one piece of evidence, which is then weighed with the other documentary evidence.  Since Article 4(3) of the 1983 Service Pensions Order created a compelling presumption in favour of the appellant that he did not have that condition on entering service, the correct approach was for the tribunal to consider whether the other documentary evidence was of such cogency that it displaced the compelling presumption and established beyond reasonable doubt that the appellant was in fact suffering from suppurative otitis media before entering service.  In considering that question, the tribunal had of course to take into account the appellant’s reasons for disputing the reliability of those documents.  

12.	For those reasons, I consider that the decision of the tribunal was erroneous in point of law and I therefore set the decision aside.  In order to decide the question of entitlement, it will be necessary to consider how likely it is that a perforated eardrum would not have been detected when the appellant entered service, particularly if the examining doctor knew that the appellant had previously been rejected for service on medical grounds.  Since that question requires medical expertise, I consider it necessary to refer this case for rehearing before a differently constituted tribunal.  The new tribunal should consider the manuscript entry medical report which has been submitted by the Secretary of State with the observations on this appeal (page 181).

13.  For those reasons, my decision is as set out in paragraph 1.

14.  I apologise for the length of time it has taken to deal with this appeal.

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					(Signed on the Original)	E A L Bano
									Commissioner 

					(Dated)			19 December 2007