RJCA/SH/IW/9

           

THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CI/349/2001

SOCIAL SECURITY ACT 1998 

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER R J C ANGUS

1.	The decision of the Industrial Injuries Disablement Benefit Appeal Tribunal dated 22 August 2000 is erroneous in law.  I set that decision aside and, as empowered by section 14(8)(a)(ii) of the Social Security Act 1998, I substitute my own decision which is:-

	The claimant’s occupation is not prescribd in relation to the Prescribed Disease A4 specified in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.  

2.	The claimant appeals, with my leave, against the tribunal’s decision that the claimant does not work in an occupation involving prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm. 

3.	The claimant is employed as a school caretaker.  She claimed Disablement Benefit on account of Prescribed Disease A4.  The Secretary of State’s decision maker decided that the claimant’s occupation was not prescribed in relation to PD A4.

4.	PD A4 is specified in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 as follows:-

	“A4.	Cramp of the hand or forearm due to repetitive movements.”.

The occupation prescribed in relation to PD A4 is specified in the Schedule thus:-

	“Prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm.”.

5.	The case which the claimant put to the tribunal was that a large proportion of her time at work was spent on cleaning duties which involved long periods of flexing her wrists in the use of a “Swiffer“floor mop and wringing out a cloth used for wiping table tops and in other duties which involve prolonged periods of gripping and twisting and using her fingers.  The statement of the tribunal’s reasons for dismissing the claimant’s appeal includes the following:-

	“In considering the nature of the other repetitive movements of the fingers, hand or arm the tribunal were guided by Commissioner Rice in CI/6942/1995 who held that the words ‘other repetitive movements of the hands or arm in A4 are to be read ejusdem generis (as the same kind of nature) with ‘handwriting’ and ‘typing’ not at large to include repetitive movements of whatever kind so as to be available at large to those engaged in repetitive work.

	The Tribunal considered that the movements involved in handwriting and typing have a high degree of intensity.  Typing being an intense hammering or drumming type action involving the fingers, hand or arm.  Handwriting and intense gripping and flexing involving the fingers, hand or arm.  The tribunal considered what other types of movements might be ejusdem generis ‘handwriting’ or ‘typing’ and felt that a professional pianist or violin player’s actions would have a similar intensity as could that of a chef when preparing vegetables.  The tribunal was accordingly looking for intensity when considering the movements undertaken by [the claimant] in her occupation.

	The tribunal found [the claimant] to be frank and clear in her evidence and the tribunal thank her for this.  She brought with her to the hearing a ‘Swiffer’ which can be described as a small domestic version of the industrial dust mop that she uses daily to mop the polished floors and various parts of the school building.  The initial Swiffer enabled the tribunal to see the type of movements that [the claimant] makes daily and the tribunal made due allowance for the fact that the industrial versions will be considerably larger and heavier.  She also had a plan of the school and youth centre buildings and a cloth to demonstrate the wringing action.

	The tribunal noted [the claimant’s] daily routine and had no difficulty concluding that she spent most of her day undertaking the cleaning element of her occupation and that the time spent in repetitive movement is prolonged.  (Occurring more than once per day and on each occasion for over one hour in total.)

	[The claimant] demonstrated the movements involved in the daily dust mopping of the classrooms and corridor areas.  This is a sweeping movement of the arms from side to side (not forward and back as one would move when sweeping with a brush) with a twisting of the wrist.  These actions are undertaken with [the claimant] walking backwards holding the dust mop handle near the top with one hand above the other.  The hands are positioned in this manner to stop there being any strain on the back.  The mop head rests on the floor and glides across the floor but there is an element of pressure needed to be exerted to overcome friction.  The sweeping movement of the arms causes the dust mop to glide from side to side.  The twisting movement of the wrists causes the head of the dust mop to swivel or semi‑rotate.  

	Whilst this mopping is done with some speed the tribunal find that the actions of the fingers, hand or arm do not have the same intensity as those involved in handwriting or typing.  

	[The claimant] also demonstrated to the tribunal the wringing action that she undertakes possibly in excess of 200 times per day when cleaning/wiping the desks and chairs in the classrooms.  This involves dipping a cloth into a bucket of water, wringing the water from the cloth and then wiping the chairs and tables.  In the youth centre [the claimant] indicated that she would clean one table in a minute.  In the classrooms for the infants more intense cleaning may be required of the desks or tables where sticky plasticine or paint.

	The tribunal again considered whether these movements were of a sufficient intensity to be considered in general terms similar to those of handwriting or typing.  The tribunal considered that the movements used in the wringing movement would not be the same as those involved in handwriting or typing and the movements would not have a sufficient degree of intensity.”.

6.	The claimant’s grounds for appealing the tribunal’s decision to a Social Security Commissioner were, in summary, that the tribunal had erred in law in that it had purported to rely on Commissioner’s decision CI/6942/95 in arriving at its decision but, in the course of the hearing, all that it had before it was the synopsis of that decision given in a text book.  That deprived the claimant’s representative of an opportunity to consider the relevance of the whole of the Commissioner’s decision, in particular the Commissioner’s reference to paragraphs 32 and 33 of the 1958 report of the Industrial Injuries Advisory Committee on the advice of which committee the then new prescribed disease of A4 was included in Schedule 1 to the Industrial Injuries and Prescribed Diseases Regulations.  Had the Commissioner’s quotation from those paragraphs of the IIAC’s report been considered by the tribunal and the representative it may have been that the tribunal would have come to the conclusion that the claimant’s occupational activities were similar to those of the yarn twister whose “twister’s cramp” was a prescribed disease in terms of Schedule 1 to the 1948 Industrial Injuries and Prescribed Diseases Regulations.  

7.	In granting leave to appeal I observed that it appeared that the tribunal had not given the claimant or her representative notice that it considered that the intensity of the activities involved was a relevant consideration.  I asked if the intensity of the operations is a relevant consideration in deciding whether or not a particular occupation is prescribed in relation to PD A4.  I directed that the parties should attempt to explain what was involved in the occupation of twister prescribed in relation to PD 30 in Schedule 1 to the 1948 Regulations.  

8.	In Schedule 1 to the 1948 Regulations PD 30 is specified as “twister’s cramp”.  :The prescribed occupation is specified as:-

	“The twisting of cotton or woollen (including worsted) yarn.”.

The Secretary of State’s representative annexed to his written submission of 1 August 2001 a memorandum of 1 August 2001 describing the results of enquiries he had made of Mr E. Nicholson, the curator of Bradford Industrial Museum, information which he had downloaded from the internet and annecdotal evidence obtained from a member of the public who used to work as a twister in the West Yorkshire textile industry.  I gather from that memorandum that when yarn is first spun from wool it is a straight “thread”.  The straight thread is then twisted to give it strength.  There may be a different process now but at the time of the enactment of the 1948 Regulations and the 1985 Regulations the twisting was done on a machine which unwound straight yarn from bobbins onto other bobbins, imparting the necessary twist as it did so.  Each machine would have between 16 and 72 sets of bobbins.  The worker known as the twister was a machine minder.  His or her function was to ensure that the machine was kept supplied with bobbins of untwisted yarn and when the yarn broke in its passage from one bobbin to the other, which seems to have been a not infrequent occurrence, the twister stopped the two bobbins and repaired the break by twisting the broken ends together between the forefinger and thumb.  That twisting operation involved nimble fingers and for that reason many of the twisters were women.

9.	I heard the claimant’s appeal on 30 October 2001.  The claimant was present and was represented by Mr M. Crawford of Derby City Council Welfare Rights Unit.  The Secretary of State was represented by Mr J. Chang of the Office of the Solicitor to the Secretary of State for Work and Pensions.  I am grateful to Mr Crawford and Mr Chang for their careful submissions and to the claimant for her evidence about the activities involved in her work.  

10.	In the statement of the tribunal’s reasons for its decision and in the written and oral submissions made to me there are references to Commissioner’s decision CI/6942/1995.  That decision was reported as R(I) 3/97 and that is how I refer to it in the following paragraphs.

11.	Mr Crawford said that the Secretary of State’s decision maker had relied on the job description supplied by the employer to arrive at his conclusion that the claimant’s occupation was not prescribed in relation to PD A4.  The tribunal had made its own findings in fact as to the activities involved in the claimant’s occupation, relying on the claimant’s description of the floor mopping and buffing and the cleaning of tables with the associated wringing out of the wet cleaning cloths.  The tribunal accepted that a greater part of the claimant’s time was spent on cleaning duties involving those activities than was indicated by the employer’s job description.  Mr Chang said that the tribunal’s findings in fact were accepted.  

12.	Mr Crawford said that the tribunal had cited Commissioner’s decision R(I) 3/97 as the authority for its decision.  Seemingly, however, the tribunal had relied on a synopsis of that decision in Bonner’s text book on non‑contributory benefits.  The author of R(I) 3/97 had rejected the prolonged or repeated movements of the hand and wrist of a laboratory technician involved in the process of titration as coming within the prescription relevant to PD A4 because there was not the intensity in the activity thought by the Commissioner to be characteristic of the prescribed occupation.  Mr Crawford accepted that the synopsis on which the tribunal relied did include a reference to intensity of the relevant activity as a characteristic of the prescribed occupation.  He had suggested at first in his written submissions that the activities in the claimant’s work were similar to those in a twister’s work but he conceded now that there was no similarity.  

13.	Mr Crawford went on to say that now his second, and probably his main, argument was whether or not intensity is a relevant consideration and to ask if a twister would have succeeded if the reasoning of the author of R(I) 3/97 had been applied.  The tribunal thought that typing involved intensive drumming of the fingers and that writing involved an intense gripping.  The statement of reasons mentions the hand actions of pianists and chefs preparing vegetables as having a similar intensity to that of the typist and the writer and as being ejusdem generis.  It could be seen from paragraph 4 of R(I) 3/97 that the tribunal which heard that case referred to the need for there to be intensity of activity for the occupation in question to come within the PD A4 prescription.  The Commissioner refers to continual use of the fingers in typing or writing.  The action may stop but while it is being carried out it is intense.  The Commissioner had compared the wording of the A8 prescription of the relevant occupation with the wording of the prescription of the occupation relevant to PD A8 – “manual labour, or frequent or repeated movements of the hand or wrist.”.  The drawback for the claimant in this case is that while her occupation may well be prescribed in relation to A8 if there is no diagnosis of that particular prescribed disease there is no benefit to her even though she is suffering the pain and cramp which is characteristic of A4.  

14.	Neither the A4 nor the A8 prescription mentions intensity, said Mr Crawford.  That concept was imported by the tribunal in R(I) 3/97 in an attempt to limit the range of activities which could come within the A4 prescription.  He produced copies of the definitions of “intense” and “frequent” from the Shorter Oxford English Dictionary.  He suggested that in the prescription “repetitive” referred to the intervals between each action of the finger, hand or arm rather than the intervals between periods of activity.  He thought that “prolonged periods” indicated that what was relevant was the rate of repetition of the activity within each period of activity.  He questioned whether the yarn which was being overseen by the twister would break so frequently that the twister’s finger actions would be as repetitive as that of a typist.  He thought that the degree of repetition would be nearer to that of the chemical analyst carrying out a titration which the tribunal concerned had found to be about every 48 seconds.  That excluded the twister’s occupation from the A4 prescription if R(I) 3/97 applied to it.  Another point was that the twister would not hold his hand flexed as does a typist.  The question is in what sense is the word “intense” being used in the Commissioner’s decision.  The dictionary definition refers to the concentrated quality of an action.  Given that “frequent” and “prolonged” had been used by the draftsman of the prescription, “intensity” could refer to the effort involved and he thought that the tribunal in this case had used it in that sense.  

15.	Firstly, Mr Crawford argued, there could be force, for example the force exerted by manual typists, linotype operators, the chef or even the twister.  The claimant in this case applied force in wringing out the cleaning clothes and in wiping desks.  The tribunal talked about more intense cleaning involved in the removal of plasticine or paint in the infant classrooms.  Also there was the effort in the strain of maintaining the less forceful but controlled activity.  Was the tribunal correct to talk about the gripping of a pen.  Keyboard operators use a rest pad to achieve flexing of the wrists which are similar to the hand action of the Morse Code operators which he had seen in films.  The description of the twister’s work indicates  quick working with little resistance  It was the same with a chef chopping something soft.  The claimant’s activities could be in the same class as indicated by her description to the tribunal of her use of a mop.  It seemed to involve effort in maintaining the activity rather than in applying force.  The tribunal in R(I) 3/97 had referred to production lines involving the operators in repetitive actions similar to typing.  The tribunal thought the speed of repetition would be the same.  Mr Crawford doubted that it could be.

16.	Mr Crawford submitted that in the claimant’s case her occupation involved cleaning 200 desks with associated wringing of the cloth and wiping.  The chemical analysts titration and filtration would involve little expenditure of force.  The twister might not have to act more frequently than the titrator.  In paragraph 10 of R(I) 3/97 there is a suggestion that the A8 prescription is limited to keyboard operators but there had been little discussion of linotype operators or machine minders in textiles.  He wondered if the Commissioner was seeking to find a way of dealing with the case in front of him without his attention having been drawn to the full import of his decision for other occupations in the class envisaged by the Industrial Injuries Advisory Council.  Mr Crawford thought that intensity could be relevant but it depended on how one defined it.  It may be that the claimant’s activities were not intense in the sense of frequency but he thought that they were.

17.	On the validity of the tribunal’s decision, Mr Crawford said that there was the question of whether or not the point about intensity should have been put to the claimant’s representative.  He submitted that it could not be put to the representative without the tribunal enquiring into the representative’s experience.  He referred to R(I) 14/68 (Howarth in the Court of Appeal).  A new point had to be drawn to the claimant’s attention.  Otherwise there was a breach of the rules of natural justice.

18.	Mr Chang said that the Secretary of State did not support the appeal.  He submitted that the tribunal did not err in considering only the synopsis of R(I) 3/97 printed in the text book, Bonner et al on Non Means Tested Benefits Legislation.  The issue was whether or not the claimant’s case could be distinguished from that of the claimant in R(I) 3/97.  The Commissioner’s decision in that case was not confined to the facts of that case.  His decision had a wider application.  He referred to paragraph 5 of the decision and submitted that the Commissioner there was concerned with the question of law and the application of the rules of construction.  He submitted that the Commissioner’s conclusions applied in this case.  The claimant was claiming benefit on account of PD A4 so the question in issue was whether or not she was in a prescribed occupation.  The author of R(I) 3/97 said that it was a clear case of the application of the ejusdem generis rule.  Mr Chang endorsed that.  It was a well known rule of construction.  It applied in the case where there is a definition consisting of a list of particular descriptions and a catch all description.  The scope of the “catch all” is restricted to cases similar to those in the list of particularities.  The prescription of the occupation relevant to A4 is a classic case for the application of the ejusdem generis rule.  If the phrase “other repetitive movements …” had not been intended to be so limited the inclusion of the particularities of handwriting and typing would serve no purpose.  The prescription of the occupation relevant to A4 contrasted with that of the occupation relevant to A8.  If the prescription of the A4 occupation had been intended to be as wide as the prescription of the A8 occupation the latter prescription would have been sufficient for both.  The reference to typewriting was clearly intended to limit the meaning of the whole A4 prescription to occupations involving that type of activity.  There was no error in law in the tribunal’s decision.

19.	Regarding the Industrial Injuries Advisory Council report, Mr Chang submitted that the author of R(I) 3/97 was correct in his conclusion as to what paragraphs 32 and 33 of the report intended.  The class of occupation was not to be extended to all occupations involving repetitive hand and arm movements.  He accepted that it would have been preferable for there to have been before the tribunal the whole report of the R(I) 3/97 decision but the lack of that did not amount to an error in law.  With reference to my direction on granting leave to appeal, Mr Chang said that the concept of “intensity” was relevant to a consideration of whether or not a particular occupation fell within the A4 prescription.  In the tribunal’s reasons for its decision the tribunal was trying to decide if the claimant’s occupation was covered by the expression “other repetitive movements”.  The tribunal was looking at the characteristics peculiar to typing and handwriting.  “Intensity” was to be looked at in the context of the tribunal’s statement of reasons.  The statement refers to other occupations which would, by reason of the intensity of the characteristic activity, come within the prescription.  He submitted that the tribunal had set out what it was looking for and had not erred in law in doing so.  References to dictionary meanings did not assist.  He submitted that whether or not a particular activity fell within the A4 prescription was not an arthritmetical exercise in calculating the number of movements per minute.  The tribunal had to look at all the circumstances of the case and come to a conclusion as to whether or not the claimant fell within the prescription for which she contended.  Essentially, his case was that in referring to intensity the tribunal was merely applying the ejusdem generis rule. 

20.	Mr Chang said that there was no error in law in the tribunal’s not having given the claimant or her representative notice that it considered that the concept of intensity was relevant to the case.  In considering the intensity of the activities in question the tribunal had not introduced a completely new point.  What was under consideration had always been the same.  The claimant and her representative had made submissions to the tribunal and had given evidence of the activities involved in the claimant’s occupation.  The tribunal did not indicate every detail of the factors which would inform its decision but that did not prejudice the claimant in this particular case.

21.	In reply, Mr Crawford said that he thought that his submissions accepted by omission that the ejusdem generis rule was relevant.  The issue was whether or not the rule had been applied too strictly in this case and in such a way that it would exclude occupations envisaged by the Advisory Council when it proposed the then new prescription.  The tribunal’s error in law was that the ejusdem generis rule was not discussed at its hearing because a full text of CI/6942/1995 was not before the tribunal.  The inclusion of “prolonged” and “repetitive” in the wording of the prescription had the effect that the arithmetical approach is inherent.  Otherwise how would one decide what is repetitive or prolonged?  He could see that the whole activity had to be considered but arithmetic was needed to apply the wording of the prescription to the case.  He considered that the tribunal’s failure to give notice of the intensity point was an error because the concept of intensity was introduced by the tribunal which heard the case in R(I) 3/97 and adopted by the Commissioner who heard the appeal against its decision.  In this case the tribunal found that the claimant’s hand and arm movements were repetitive and prolonged but its decision turned on the question of intensity.  The intensity of the movements was not just one of the factors considered by the tribunal.  It was the major consideration.  It was not clear from the record of the tribunal’s proceedings that that point was put to the claimant and her representative for them to deal with it.  

22.	The claimant told me that the Swiffer which she used in her work had an oblong mophead about 6 inches wide and about 24 inches long attached to a shaft by a swivel joint.  It was about 3lbs in weight.  It was used with the length of the head running away from the operator’s body rather than across her body.  The operator gripped the shaft at the top end with both hands and flexed her wrists from left to right in order to move the mophead from left to right.  The purpose of the Swiffer was to gather dust from the floor without raising it as a brush would do.  The buffer which the claimant used had handle bar controls similar to those on a motor cycle and involved the forward and backward flexion of the wrist.  Force was needed to control the buffer.  Moving splattered glue from the sinks was done with a little green scouring pad and the activity was similar to handwriting because she had to grip the scourer and push it.  She could spend two hours cleaning a sink in this way.  She would use the Swiffer for 3 hours per day and the buffer for about 2 hours per day.  She washed 200 tables per day taking an average of one hour and a half per day depending upon the amount of help that she had.  She cleaned the table with a trigger operated spray and wiped the table with a cloth.  She would then wash the cloth, wring it out and move to the next table.  She was using her arm from the elbow to the fingers.  She also had to do some kneeling but she was not complaining about that.  Emptying bins involved gripping a sack and tipping the bin into it.  The strain was in handling the bin.  She also had to do minor joinery involving the use of a screwdriver after burglaries and other incidents.

23.	I think that the tribunal’s decision is erroneous in law in this way.  The Secretary of State’s decision maker’s disallowance of benefit was on the basis that the claimant’s occupation did not involve prolonged periods of repetitive movements of the fingers, hand or arm.  The tribunal accepted on the basis of the evidence given at its hearing that there were such periods but went on to found its disallowance of benefit on its own conclusion that the movements concerned were not ejusdem generis with handwriting or typing.  To my mind the claimant’s representative should have been given an opportunity to consider that point and to study the Commissioner’s decision which the tribunal was citing as authority for its proposed decision, that authority not having been cited by the decision maker in his submission to the tribunal.  I think that there has been a breach of the rules of natural justice in that respect and on account of that error in law I have to set the tribunal’s decision aside.  

24.	Having set the tribunal’s decision aside I have to consider whether or not the activities which the claimant described to the tribunal and to me are such as to bring her occupation within the prescription relevant to Prescribed Disease A4 in the Schedule to the 1985 Regulations.  It is quite clear from the claimant’s evidence that she spends a significant part of her working day in prolonged periods of handling the large Swiffer and the floor buffer, each involving repetitive movements of her wrists, and in prolonged periods of 
cleaning tables involving repetitive movements of the wrists and hands.  There is also other cleaning and maintenance work such as cleaning glue off the sinks and repairs to the fabric of the school buildings which involve her in repetitive movements of the arm, wrist or hand.  The A4 prescription does not mention movements of the wrist but, as the wrist is the joint between the arm and the hand, movement of the wrist involves the movement of either the hand or the arm in relation to the other.  The question is whether the movements of her fingers, hands or arms which the claimant makes in the course of those prolonged periods of activity amount to “other repetitive movements of the fingers, hand or arm” within the meaning of the prescription in the Schedule to the Regulations.  

25.	I have arrived at my conclusion for slightly different reasons from those given by the tribunal and by the author of R(I) 3/97.  I respectfully agree with the Commissioner who decided that the ejusdem generis rule is an aid to the interpretation of the Schedule 1 prescription of the occupation relevant to A4.  However, apart from their involving repetitive movements of the fingers, hand or arm, there is little in common between the activities of handwriting and typing which is apparent from the face of the prescription.  Because they are interpreting a regulation based code of law Commissioners and, I think tribunals, have always been entitled to go behind the text of the regulations and examine the background papers to ascertain what is the purpose of any particular provision which is under consideration.  The Commissioner who decided R(I) 3/97 looked at the report by the Industrial Injuries Advisory Council which considered the need to replace the prescriptions of telegraphist’s cramp, writer’s cramp and twister’s cramp, which were prescribed in paragraphs 28, 29 and 30 of Schedule 1 to the 1947 Industrial Injuries and Prescribed Diseases Regulations, and the relevant occupations with one prescribed disease and relevant occupation which would cover all those who suffered from hand and arm cramps as a result of working in employments involving the use of the fingers, hands or arms.  The Commissioner quoted most of paragraph 32 and all of paragraph 33 of the Committee’s report in which two paragraphs the need for a new prescription which would embrace the three cramps and relevant occupations which were then prescribed as well as the cramps experienced by those engaged in the occupations involving the use of keyboards which were then proliferating.  He did not quote the first sentence of paragraph 32 which identifies the characteristic which is common to all the occupations which the Committee had in mind.  That sentence is as follows:-

	“These diseases are characterised by spasm or other disordered action of muscles used in the performance of duties involving rapid and finely controlled movements of the hand of a repetitive nature.”.

Therefore, the activity which the Committee had in mind when it devised the current prescription of the occupation relevant to A4 is movement of the hands and arms which are approximately as rapid, as finely controlled and as repetitive as the movements employed by somebody operating a typewriter or writing by hand.  I do not think that there is any likelihood of the hand and wrist movements described by the claimant having the degree of rapidity, fineness of control and repetitiveness of the hand movements of a typist or somebody writing with a pen or a pencil.  I take Mr Crawford’s point that the twister in the textile industry would not be repairing broken yarns with the degree of repetitiveness with which a typist would be striking the keys of a typewriter but on a machine which could have as many as 70 pairs of bobbins the breaks in the yarn would be fairly frequent and I have no doubt that as the twister would be constrained to keep the pauses in the winding to a minimum the hand movements employed to repair the breaks, in particular the movements of the thumb and forefinger, would be very rapid and, to make effective joins, would be very finely controlled. 

26.	For the foregoing reasons the claimant’s appeal succeeds to the limited extent that I have set the tribunal’s decision aside but I have made my own decision which is to the same effect as that of the tribunal.  That decision is in paragraph 1 above.

					(Signed)	R J C Angus
							Commissioner

					(Date)		30 November 2001