CI/1489/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Blackpool appeal tribunal dated 8 January 2003 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	This appeal raises a short point under the Pneumoconiosis, Byssinosis and Miscellaneous Diseases Benefit Scheme 1983, made under the Industrial Injuries and Diseases (Old Cases) Act 1975.

3.	The claimant was employed as a coalface worker in a pit in Scotland from 1934 until 1940.  After service in the Royal Marines, he was employed as a meat porter in Oldham for thirty years and then he was a publican there for sixteen years before he retired to Blackpool.  His work as a miner had naturally exposed him to coal dust and when, after his retirement, he developed a lung disease, he claimed benefit in respect of the disease on the ground that it was caused by his employment as a miner.

4.	Because the relevant employment was before 5 July 1948, his claim was considered under the 1983 Scheme, rather than under Part V of the Social Security Contributions and Benefits Act 1992, although I do not think that affected the result.  The Scheme provides for benefit to be paid where a person who has been employed in a relevant occupation is totally or partially disabled as a result of pneumoconiosis, byssinosis or one of the cancers and other malignant conditions listed in Schedule 1 to the scheme.  The claimant’s claim was made in respect of pneumoconiosis.  It was disallowed on the ground that he was suffering from fibrosing alveolitis, which the Secretary of State’s medical adviser said was constitutional in origin, and not from pneumoconiosis.  The claimant appealed but his appeal was disallowed by the Blackpool appeal tribunal, who considered X-rays and a CT scan and said –

“4.	…  The Tribunal agreed with the diagnosis of chronic Fibrosing Alveolitis.  The Appellant is not suffering from pneumoconiosis.

“5.	Fibrosing Alveolitis is not a prescribed disease for the purposes of the Pneumoconiosis, Byssinosis and Miscellaneous Diseases Benefits Scheme.”

The claimant now appeals with my leave.

5.	Article 1(2) of the Scheme provides that, for the purposes of the Scheme –

“pneumoconiosis” means fibrosis of the lungs due to silica dust, asbestos dust or other dust and includes the condition of the lungs known as dust reticulation …”

The definition in section 122(1) of the Social Security Contributions and Benefits Act 1992 is in the same terms.

6.	The claimant appeals, through his daughter, on the ground that the tribunal stated at the hearing that they did not doubt that his condition was related to dust inhaled during his time in the mining industry and that, as silicosis is included within the scope of pneumoconiosis, the tribunal erred in referring to “their stated list” and not noting the “similarities” of the claimant’s condition.  I granted leave to appeal on the ground that it was arguable that fibrosing alveolitis fell within the scope of the statutory definition of pneumoconiosis.  That is, perhaps, just a slightly different way of putting the case advanced on behalf of the claimant.  I also raised the question whether the Scheme required a finding that the disease have been contracted as a result of employment in the relevant prescribed occupation.  The Secretary of State submits that there is no such requirement and that there is therefore, in effect, an irrebuttable statutory presumption that a disease suffered by a claimant who has been employed in a relevant prescribed occupation has been caused by the occupation.  However, he submits that, in the light of the decision of the Tribunal of Commissioners to be reported as R(I) 3/03 and the decision of Mr Commissioner Jacobs in CI/2426/01, the tribunal cannot be said to have erred in law in distinguishing between fibrosing alveolitis and pneumoconiosis.  The claimant’s daughter has not replied to that submission.

7.	The medical evidence given by Dr S Kiberu MD FRCPath PhD to the Tribunal of Commissioners in R(I) 3/03 was to the effect that fibrosing alveolitis “does not usually arise from coal dust” (paragraph 52).  The medical dictionary entry submitted by the claimant’s daughter says –

“alveolitis n. inflammation of an alveolus or alveoli.  Chronic inflammation of the walls of the alveoli of the lungs is usually caused by inhaled organic dusts (external allergic alveolitis: see BIRD-FANCIER’S LUNG, FARMER’S LUNG) but may occur spontaneously (crytogenic fibrosing alveolitis).  The latter may be associated with connective tissue diseases, such as rheumatoid arthritis or systemic sclerosis.  Both types of alveolitis may progress slowly to a state of fibrosis, and both types usually respond to corticosteroid therapy.”

My understanding is that coal dust is not regarded as an organic dust, in which case there is no inconsistency between the evidence of Dr Kiberu and the medical dictionary entry but, in any event, in stating that the fibrosing alveolitis in the claimant’s case was constitutional in origin, the Secretary of State’s medical adviser was indicating that he had found that the claimant was suffering from the type of alveolitis that arises spontaneously rather than the type that is caused by dust.  The Secretary of State was plainly entitled to reach the decision he did in the light of his adviser’s opinion and, had the tribunal adopted the opinion in full, their decision would have been beyond criticism.

8.	However, I do not accept the Secretary of State’s submission insofar as he appears to suggest that fibrosing alveolitis is necessarily to be distinguished from pneumoconiosis as a matter of law.  I agree that it cannot be argued that a condition falls within the statutory definition of pneumoconiosis unless it is caused by dust of some sort, as Mr Commissioner Jacobs emphasised in CI/2426/01, but, if there in fact exists the exceptional case that Dr Kiberu’s evidence suggests might exist where fibrosing alveolitis is caused by coal dust, the disease would, in that particular case, fall within the statutory definition.  Furthermore, if the apparent fact that allergic alveolitis leads to fibrosis means that the term fibrosing alveolitis might be used so as to include allergic alveolitis, there may be a number of cases where a person suffering from that condition is to be regarded as suffering from pneumoconiosis for the purposes of the 1983 Scheme.   

9.	The question whether or not the claimant’s condition was caused by dust was a question of fact for the tribunal to determine and the tribunal were entitled to rely on the expertise of the medical members.  An appeal to a Commissioner lies only on a point of law.  However, the problem in the present case is that the tribunal, unlike the Secretary of State’s medical adviser, did not record any finding as to whether the fibrosis of the claimant’s lungs had been caused by dust or not.  The finding that the claimant was suffering from fibrosing alveolitis does not, in my view, conclusively answer the statutory question and, particularly in the light of the claimant’s daughter’s understanding of what the tribunal said to her father, there seems to me to be a real possibility that the tribunal did not address the issue of the cause of the fibrosis and construed the word “pneumoconiosis” too narrowly.  As was said in paragraph 19 of R(I) 3/03, experts differ in their use of that term.  It is therefore important for a tribunal to ensure that their decision is written in terms that reflect the statutory definition.

10.	Accordingly, I must allow this appeal.   The Secretary of State may well be correct to state that there are a number of aspects of the evidence that support the view that the fibrosis in this claimant’s case was constitutional and was not caused by dust.  However, I consider that the claimant is entitled to have the matter determined by a tribunal with doctors among its members and so I refer this case to another tribunal.

11.	This decision is not to be taken as deciding that, as a matter of fact, fibrosing alveolitis is capable of falling within the statutory definition of pneumoconiosis.  My decision is based only on my view that the statement of reasons for the tribunal’s decision does not make it sufficiently clear that the tribunal in this particular case had that statutory definition in mind.

	(Signed)	MARK ROWLAND
		Commissioner
		15 September 2003