CCR/3806/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal.  I set aside the decision of the Liverpool appeal tribunal dated 14 April 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	This case arises out of an accident the claimant suffered at work on 3 June 1995.  The claimant was a nurse and suffered a back injury when lifting a patient.  She returned to work after a couple of days.  She ceased work in March 1996, although she had had three intervening periods off work certified as due to migraines.  She sued her employers.  Her case was eventually settled in July 1999 on payment to the claimant of just £2,000.  The Secretary of State recovered from the compensator incapacity benefit paid from 14 October 1996 and disablement benefit paid from 14 August 1996, totalling £16,858.34.  The compensator appealed against the certificate of recoverable benefits, arguing that the claimant had suffered a trivial injury and that her subsequent problems had been constitutional in nature.  There does not seem to have been any doubt that, before the relevant accident, she had already experienced symptoms of degenerative disc disease and it was pointed out that, although the consultant instructed on her behalf had originally concluded that the relevant accident had aggravated that condition for 12 to 15 months, the consultant’s subsequent report, made after reviewing the reports of the consultant instructed by the compensator, had not been disclosed to the compensator and the case had been settled for a very small sum.  The Secretary of State argued that the tribunal could not go behind the awards of benefits which were plainly made on the basis that the claimant was suffering from a back condition which the claimant had attributed to the relevant accident and, at least in the case of disablement benefit, had been attributed to the relevant accident by the authorities.  The compensator opted for a paper hearing before the tribunal.  In fact an oral hearing was held but the compensator was not represented at the hearing.  No doubt the view was taken that the argument was sufficiently clearly spelt out in the written documents.

3.	The tribunal dismissed the compensator’s appeal.  Having set out the background, the chairman recorded the following reasons for the tribunal’s decision.

“The tribunal considered two medical reports prepared for the purpose of assessing entitlement to incapacity benefit, dated 28th November 1996 and 23rd January 1998.  In the first of these, the examining medical officer records that the claimant started with lower back pain in June 1995, which of course is the time that the accident was sustained.  In the later examination report, the examining medical officer records that the claimant has had back pain for some 2½ years now (Back injury).

Clearly, industrial injuries disablement benefit is only paid in respect of an injury sustained in the course of employment.  It is not in dispute that a percentage of the claimant’s award in this respect related to an injury so sustained.  In the adjudicating medical authority’s report it is noted that the injury caused niggling pain which is getting worse.

Facts found

On the basis of the evidence, we found on the balance of probabilities that the injury had featured as one of the causes of payment of both incapacity benefit and industrial injuries disablement benefit in that the injury is either directly referred to in all reports or the onset of pain coincides with the approximate date of the injury.

The law applied

The tribunal applied the decision of Commissioner Skinner in which it was said that the effect of an injury arising from the relevant accident does not have to be the sole cause of payment of the benefits concerned; the benefits will be recoverable under the Scheme provided that the accident was one of the causes of payment of those benefits (CCR/1/93).

Whilst the tribunal accepted in this case that the claimant clearly did suffer from constitutional back pain, there was sufficient evidence to indicate that incapacity benefit had certainly been paid partly as a consequence of the relevant accident in combination with the constitutional condition.  It does not matter how small a contribution the relevant accident made, so long as it was a cause as stated.”

The compensator now appeals with the leave of a tribunal chairman.

4.	The Secretary of State rightly concedes that, in the light of the decisions of the Tribunal of Commissioners to be reported as R(CR) 1/02 and R(CR) 2/02, the Secretary of State’s submission to the tribunal was misconceived.  However, it appears to be suggested by the Secretary of State that the tribunal nonetheless applied the law correctly and that their decision is not erroneous in point of law.  I am unable to accept that suggestion.

5.	It seems to me to be of some significance that it is not recorded that the tribunal rejected the submission made to them by the Secretary of State.  It is at least possible that the tribunal in fact accepted the submission and that that accounts for their not giving adequate reasons for rejecting the compensator’s arguments on the facts.  Their reasoning on the facts does not grapple with the compensator’s argument and, indeed, seems to misunderstand it.  The compensator accepted that the claimant had suffered an accident but, contrary to what the tribunal appear to have believed, it was not accepted that the accident caused any continuing disablement, at any rate from August 1996 which is the date from which benefits were recovered.  I do not doubt that, if the claimant had first suffered back pain on the date of the relevant accident and had then continued to suffer from it, that would have been a powerful reason for attributing at least part of the continuing disablement to the relevant accident for at least a significant period.  However, it was the compensator’s case that the claimant had had back pain before the accident and that the medical reports made in connection with the claims for benefit were made in ignorance of that fact.  When being examined in connection with her claim to incapacity benefit, the claimant attributed her back pain to the relevant accident.  She did not mention her earlier symptoms.  When first examined in connection with her claim for disablement benefit, the claimant is recorded as expressly having told the adjudicating medical authority that she had had not previous back troubles (doc 112).  Her medical notes, as recorded by the consultants, show that she had had considerable problems in the year before the relevant accident.  At the very least it was insufficient for the tribunal to rely upon the apparent acceptance by those examining doctors of the claimant’s attribution of her troubles to the relevant accident, without explaining why they rejected the compensator’s argument that the evidence of the claimant’s pre-accident symptoms undermined the evidence.  Furthermore, if, as appears to be the case, the tribunal were of the view that the claimant’s disablement was due both to the relevant accident and to constitutional causes, they should have considered whether the assessment of 16 per cent had properly been made by the adjudicating medical authorities, having regard to regulation 11(3) of the Social Security (General Benefit) Regulations 1982 (requiring there to be taken into account only disablement to which the claimant would have been subject if the relevant accident had not occurred), and therefore whether disablement benefit had properly been awarded to the claimant.  I am satisfied that the tribunal’s decision was erroneous in point of law and that this case should be considered afresh by another tribunal.

6.	The tribunal relied upon CCR/1/93, which was upheld by the Court of Appeal in Hassall v. Secretary of State for Social Security [1995] 1 W.L.R. 812 (also reported as R(CR) 1/95).  It is important to observe what the issues were in that case.  Before the relevant road traffic accident, the claimant had been in receipt of benefit on the basis that he had been unemployed.  After the accident, he was in receipt of benefit on the basis that he was incapable of work.  The main question was whether the post-accident benefit was paid in consequence of the accident if the claimant would have been entitled to benefit even if the accident had not happened.  The argument was rejected because the “post-accident benefits that were paid were clearly paid on the strength of the medical certificates dealing with the injuries caused by the accident and the applicant’s recovery from those injuries”.  It was not suggested in that case that the claimant’s incapacity for work was not due to the relevant accident.  Had it been, the certificates would not have been conclusive (R(CR) 1/02).  As it was, the accident was plainly an effective cause of payment of the post-accident benefit.  Indeed, it might have been said that there was no certainty that the claimant would have continued to be in receipt of the pre-accident benefit had the accident not occurred, because he might have obtained employment.

7.	In the present case, it was not doubted that the claimant had genuine back pain and there appears to have been no challenge to the award of incapacity benefit, although, as I have indicated, there was an implied challenge to the award of disablement benefit.  What was in issue was whether the relevant accident was an effective cause of the back pain during the period in respect of which the relevant benefits were paid.  As in R(CR) 1/01, that was an issue the tribunal were obliged to determine and they were obliged to give proper reasons for the determination.

(signed)	M. ROWLAND
Commissioner
9 April 2002