CCR/3645/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal.  I set aside the decision of the Liverpool appeal tribunal dated 19 May 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	This appeal arises out of a payment of compensation made to the claimant in respect of an accident that she alleges occurred on 15 April 1994 while she was turning a patient in the course of her employment as an auxiliary nurse.  On 17 August 1994, the claimant claimed disablement benefit, stating that the accident had occurred on about 22 or 23 April 1994, but amended that to 15 April 1994.  On 23 September 1994, she reported the accident to her employers for the first time, stating that she had not reported it when it occurred because she “thought it would pass”.  The employers told the Department of Social Security that they were satisfied that an accident had occurred but the adjudication officer decided on 24 October 1994 that it had not been established that there had been an event which was itself identifiable as an accident or that there had been a particular occasion when the claimant had suffered personal injury that might constitute an accident.  The claimant appealed to a social security appeal tribunal who allowed her appeal on 24 August 1995 and found that she had suffered an industrial accident.  Disablement was subsequently assessed at 15 per cent. under a number of provisional assessments and then under a final one for life.  Disablement benefit was therefore awarded.  The claimant had been off work since the date of the alleged accident and invalidity benefit was paid from 14 November 1994 to 12 April 1995, after which it was replaced by incapacity benefit.  The claimant sued her employers.  Her claim was settled on payment of £3,000 compensation.  The Secretary of State recovered £19,525.56 from the compensator, in respect of all the disablement benefit, invalidity benefit and incapacity benefit paid to the claimant up to 30 October 1998.

3.	The compensator appealed against the certificate of recoverable benefits, relying on reports of Mr J C Dorgan, a consultant orthopaedic surgeon, and a Dr Hay.  In a report dated 6 January 1998, Mr Dorgan reviewed the claimant’s medical records and noted that there had been a substantial history of back trouble before April 1994.  He also noted that, the initial G.P. note dated 21 April 1994 stated “low back pain for 1 week”, that a junior doctor who admitted her for surgery on 1 June 1994 stated “no injury” and a clinic letter of 1 June 1994 referred to “a 6 week history of low back pain” but there was no reference to an accident.  His opinion was that the claimant had merely developed a constitutional low back problem and HE said:

“I believe this is another case of a patient who at a later date has tried to blame a constitutional disorder on an apparent incident that occurred at work.”

He also thought she would be capable of light work, but not normal nursing work.  In a covering letter, also dated 6 January 1998, which was submitted with the appeal to the tribunal but which seems not to have been copied into the bundle of papers on this appeal, Mr Dorgan said:

“You will see from my report that I believe the medical records do not support [the claimant’s] contention that she has had an accident at work.  There is no mention of that at all anywhere in the initial medical records.  I believe if she had an accident at work that she felt was responsible for her symptoms then she would have mentioned this to at least 1 of the doctors who saw her but we have the G.P., Mr Piggott, Mr Lynch, the admitting junior doctor who have all failed to make any mention at all of any possible link with a specific lifting accident at work.  I note the incident was not reported until 23.9.94 and I think this is yet another case of a person who has had a constitutional low back problem who then at a later date tries to blame it back on an incident that may or may not have occurred at work.

“I don’t think [the claimant] is trying to exaggerate her present condition in any way at all.  In fact she strikes me as a lady who is trying to get on with life and do the best that she can.  She was bitterly disappointed when she was finished from work on medical grounds by Walton Hospital and she still hopes that she can find work in a lighter capacity, such as clinic reception work etc.

“With regard to the reports provided by Mr Dovey on behalf of the plaintiff, he has only reviewed a few of the G.P. records.  However I think there is nothing particularly contentious in his reports.  We both accept that [the claimant] has had a prolapsed intervertebral disc that required surgical treatment and that she has still got ongoing problems with her lower back."

That letter is in the tribunal file and was plainly before the last tribunal because the chairman quoted from it in the statement of reasons for the tribunal's’decision.  In a further letter dated 13 November 1998, Mr Dorgan said:

“If it is accepted that an accident did occur then I think that the surgery that followed should be regarded as having been brought on by this accident.  However I think that by the time the note was made that she was going back to work on 27.2.95 she would be regarded as having recovered from the effects of the accident in question.  There was then a recurrence of her back pain on 9.3.95 with no precipitating factors.  I believe symptoms arising from March 1995 therefore should be regarded as merely constitutional and the sort of symptoms she would have had in any event even if this lifting incident had not taken place in April 1994.”

4.	The tribunal dismissed the compensator’s appeal, saying:

“The report from Dr Hay we found inconclusive and the case rested quite clearly on the assertion of Mr Dorgan that no accident had occurred.

“The tribunal did not accept that opinion.  It is not clear on what it was based except that the medical records do not support the contention that her lower back problem is due to the accident that occurred on 15th April 1994.

“The same question as to whether there had been an accident was raised by the Adjudication Officer and the injured person’s claim for Disablement Benefit was refused initially on the grounds that there had been no accident.  This issue was itself the subject of an appeal tribunal hearing on the 24th August 1995 at which the appellant was present and gave evidence and was questioned.  On that occasion the Adjudication Officer was represented as was the injured person.  The unanimous decision of the tribunal was that an accident had occurred on the 15th April 1994.  We find this much more conclusive than the opinion of a consultant that an accident did not occur; it is not clear whether the consultant raised those concerns with the injured person and he seems to have based his opinion on the chronological record of the injured person’s Medical Reports.  We don’t find this convincing.

“There was no other evidence that the appellant’s back problems did not relate to the accident and we are satisfied that the benefits referred to in the certificate of recoverable benefits were all paid in respect of the accident, injury or disease.  Section 12(3) of the Social Security (Recovery of Benefits) Act 1997 states that:-

‘In determining any question referred to it under subsection (1), the tribunal must take into account any decision of a court relating to the same or any similar issue arising in connection with the accident, injury or disease in question.’

“We note that the compensator paid the sum of £3,000 to the injured person.  We were told that even though the compensator did not accept an accident had occurred it was nevertheless considered more appropriate to make a payment of compensation rather than to take that issue to trial..  As the court order was a consent order we place no direct reliance on the fact that a payment of compensation was made as evidence that there was an accident and we rely mainly on the decision of the appeal tribunal in April 1995 which directly considered this particular issue.”

5.	The compensator now appeals with the leave of the tribunal chairman.  The application to the tribunal chairman was made on the basis that the decision of the tribunal concentrated solely on the question whether an accident had occurred without considering what injury had been sustained if an accident did occur.  The grounds of appeal expand on that point, challenging the decision that there had been an accident and submitting that if there was it caused no injury.  The Secretary of State submits that the tribunal were entitled to find that there had been an accident, and in particular, that they were entitled to rely on the finding of the social security appeal tribunal on 24 August 1995, but appears to express doubts as to whether there was evidence that the claimant’s incapacity for work was caused by the accident, at least from the date of an all work test assessment in September 1996.

6.	An appeal to a Commissioner lies only on a point of law.  Only if there is an error of law in a tribunal’s decision may a Commissioner go on and substitute his own judgement on questions of fact for the judgement of the tribunal.  I agree with the Secretary of State’s submission that the tribunal were entitled, on the evidence before them, to find that there had been an industrial accident, in the sense of some untoward event arising out of, and in the course of, the claimant’s employment.  Mr Dorgan’s judgement on that question was not a medical judgement and the tribunal were entitled to point to the fact that the social security appeal tribunal had heard the claimant’s evidence on the point whereas there was no suggestion that Mr Dorgan had put his doubts to the claimant.  Furthermore, there was evidence that, if there was such an event, it caused personal injury because the claimant’s incapacity for work dates from that time.  However, the compensator is entitled to comment that the 1995 social security appeal tribunal’s reasoning is virtually non-existent and they made their decision in the light of an assertion by the claimant’s representative that there was no evidence of a degenerative cause of her problems.  That statement may well have been made in good faith but the evidence available to the tribunal sitting in 2000 was to the contrary.  The compensator can therefore argue that the 2000 tribunal should have given more reasons for their decision and should not have relied on the 1995 decision.  In response it could be argued that knowledge that the claimant had a pre-existing condition would probably not have made any difference to the 1995 tribunal’s decision, which, given section 60(3) of the Social Security Administration Act 1992 (now section 30 of the Social Security Act 1998), was concerned only with the question whether there had been some sort of event which, if it was a cause of disability, was such that it could properly be said that the disability was caused by industrial accident.  I need not determine the point because there seems to me to be a more fundamental error in the tribunal’s approach.

7.	The argument that there had been no accident was based substantially upon the evidence that the claimant’s disability was caused by a pre-existing condition.  If there was an accident, that seems to me inevitably to raise the question whether, or to what extent, the claimant’s post-accident symptoms arose out of the accident.  That was material because benefit cannot be regarded as having been paid in respect of an accident unless the disablement giving rise to entitlement to the benefits is due to the accident.  The tribunal said that there was “no other evidence that the appellant’s back problems did not relate to the accident” but that overlooks Mr Dorgan’s opinion of 13 November 1998, suggesting that, if the accident did occur, the effects would have been limited and that symptoms would thereafter have been attributable to the underlying degenerative disease.  Even if the tribunal took the view that the accident continued to be a contributory factor in the disease, there was a real question whether disablement benefit could be said to have been paid in respect of the accident.  Under regulation 11(3) of the Social Security (General Benefit) Regulations 1982, where disablement is due both to a relevant accident and a constitutional cause, the assessment of disablement due to the accident is made on the basis that it does not include disablement from which the claimant would have suffered if the accident had not occurred.  Under section 103 of the Social Security Contributions and Benefits Act 1992, disablement benefit is payable only if disablement is assessed at at least 14 per cent.  The claimant’s disablement was assessed at 15 per cent. by adjudicating medical authorities who appear not to have asked her whether she had had any pre-accident history of back trouble.  Had they been aware of that, it is quite possible that they would have attributed at least part of the claimant’s disablement in respect of at least part of the relevant period to her underlying condition and applied an offset that would have brought the net assessment below 14 per cent.

8.	None of this was considered by the tribunal.  Nor did the tribunal consider the question whether the claimant was incapable of work, as Mr Dorgan sugested, which raised the question whether invalidity benefit and incapacity benefit should have been paid and, if she was, whether that incapacity was at least partly due to the relevant accident.  That may have been because the Secretary of State submitted that they were not entitled to go behind the awards of benefit – a submission now accepted as being wrong in the light of the decisions of a Tribunal of Commissioners to be reported as R(CR)1/02 and R(CR) 2/02.  Or it may be because the case was not clearly presented in that way by the compensator who may have been unwisely placing too much reliance on the argument that there had been no relevant accident at all.  I do not entirely understand the Secretary of State’s current half concession in relation to incapacity benefit.  If the claimant was incapable of work and that was due to her back condition and that in turn was due to the accident, it does not seem to me to matter that the incapacity was not expressly attributed to the accident at the time of the award.  It is illogical for the Secretary of State to abandon his case in relation to incapacity benefit but not in relation to disablement benefit if both are due to the same back condition and it is his case that that condition was incapacitating.  However, both the question of incapacity and the question whether it was in fact attributable to the relevant accident throughout the relevant period were raised by the appeal.  Those issues were fundamental and should have been considered by the tribunal even if the case was not presented to them as clearly as it might have been.

9.	I am satisfied that the tribunal’s decision is erroneous in point of law.  Having found there to be an accident, they should have considered whether, in the light of the evidence of a pre-existing degenerative condition of which the authorities awarding benefit had been unaware, the benefits had been properly paid in respect of that accident throughout the relevant period.

10.	The compensator suggests that this is a straightforward case and in many respects that is so.  However, I do not consider it to be obvious that the compensator should be entitled to “a full refund” as is submitted.  It seems to me plainly to be arguable that there was an accident that may have at least contributed to the claimant’s disability for at least part of the relevant period.  I consider that this matter should be considered afresh by another tribunal.  It is, of course, open to the parties to reach a compromise before any such hearing.  Mr Dorgan’s suggestion of 13 November 1998 was that the claimant’s symptoms up to the end of February 1995 were attributable to the relevant accident.  Mr Heath’s suggestion is that they might be attributable to the relevant accident up to the end of September 1996.  If the case is not settled, all matters will be at large before the tribunal.  The tribunal might find there was no relevant accident or they might find that all or part of the benefits are recoverable.

(signed)	M. ROWLAND
Commissioner
8 May 2002