[2006] UKSSCSC CI_421_2006 (28 June 2006)

CI/421/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the Claimant, brought with my permission, against a decision of the Barnsley East Appeal Tribunal made on 21 November 2005. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted appeal tribunal. I draw the attention of the new tribunal to paragraphs 20 to 24 below. 

2.	The Claimant is a man now aged 44. He worked as a miner between 1978 and 1987, using power tools, and then used power tools in other employment between 1999 and 2004. 

3.	On 17 June 1999 he was examined by an EMP in connection with a claim which he had made for disablement benefit in respect of prescribed disease A11 (vibration white finger). He told that doctor that while he was working in the mining industry he started having problems with loss of sensation in his fingers and with fine movements. He further said that “if it’s cold I get white lines down them – down the backs.” That doctor expressed the opinion that the Claimant was not suffering from vibration white finger because the Claimant described “no complete blanching.” 

4.	On 21 February 2001 a report was produced by a doctor acting for British Coal. The Claimant told that doctor that he experienced attacks of whiteness in the distal phalanges of all his fingers on both hands, and in all the phalanges of the index finger of his right hand. He said that he first noticed this in 1983, and that he was experiencing about 70 attacks a week in the winter and 30 attacks a week in the summer. That doctor conducted the battery of tests commonly carried out on behalf of British Coal, including a “cold provocation test.” That appears to have been a test involving subjecting the hands to a temperature of 15 degrees Centigrade for 10 minutes, and then measuring the time taken for the temperature in each of the four fingers to rise to a certain level. Points are scored only if the time taken is more than 5 minutes. The Claimant scored no points, as the temperature in all his fingers rose to the specified level within a maximum of about 4 minutes. 

5.	On 10 January 2005 the Claimant made a fresh claim for disablement benefit in respect of vibration white finger. On 28 April 2005 he was examined again by an EMP. He told that doctor that the whiteness affected all the fingers of both hands to the second knuckle, and that it occurred very frequently in cold weather and less in the summer. The doctor noted on examination that both the Claimant’s hands were cool and that he had poor capillary return. He advised that the Claimant was not suffering from vibration white finger, commenting: “History has changed from his original Board and also the HAVS assessment in 2001.” On 9 May 2005 a decision was accordingly made that the Claimant was not suffering from prescribed disease A11, and that he was therefore not entitled to disablement benefit. 

6.	In his letter of appeal the Claimant relied on the Coal Board report, and also stated: “I asked your doctor to put my hands in cold water and he would see my white finger which I will demonstrate at this appeal.” 

7.	The Tribunal, by its decision on 21 November 2005, dismissed the appeal, following an oral hearing at which the Claimant was examined. Also heard at the same time were an appeal against a decision in respect of an industrial accident in which the Claimant injured his back and an appeal against a decision in relation to carpal tunnel syndrome. 

8.	By a letter to the Appeals Service received on 2 December 2005 the Claimant said:

“I wish to appeal against your decision. My hands were not examined due to them saying the facilities were not good enough but they are good enough for other people to be examined. As I have suffered from the early eighties I offered to stand outside to show I had white finger but [the Chairman] said he did not think this worked. But this is a main factor in my white finger …………”

9.	That letter appears to have been treated as a request for a Statement of Reasons, which was written on 9 December 2005. In it the Tribunal said that “the Appellant agreed to be medically examined and the medical examination took place after the evidence had been taken although in this type of case decisions invariably depend on the history given by the Appellant.” The essence of the Tribunal’s reasoning was that the Claimant relied on the 2001 Coal Board report, but that report (and in particular p.13, which set out the effect of the Claimant’s replies to that doctor as to the extent of his blanching) showed that he did not suffer blanching of the middle or proximal phalanges of at least three fingers on either or both of his hands, but only on the index finger of his right hand. The Claimant therefore did not fall within the statutory definition, for industrial injuries disablement benefit purposes, of vibration white finger. Nothing was said in the Statement of Reasons about the Claimant’s allegation that he had asked to stand outside in the cold in order to demonstrate the blanching. 

10.	In a letter received on 11 January 2006, seeking leave to appeal, the Claimant said:

“If they look at my pit reports which they have chosen to use for another matter it tells them I have white finger. It was a very cold day when I went to this tribunal. [The chairman] asked me about the whitening in my fingers. I told him if I stood outside for a couple of minutes he would see the whitening in all my phalanges in all my fingers. He replied I don’t think cold is a factor in white finger. …………….So all I want is a fair hearing with a fair board. Facilities to have my hands tested.” 

11.	The Secretary of State’s representative submits in this appeal to me that if the Claimant did, as he alleges, ask the Tribunal to permit him to stand outside in the cold, in order to demonstrate the blanching effect, he “may well have been denied natural justice” in being denied that opportunity. However, he submits that the probability is that the Claimant did not make any such request. He points out that neither the Record of Proceedings nor the Statement of Reasons make any mention of that request being made, and one would expect it to have been recorded. He also submits that it would be surprising if the Chairman had said that cold was not a factor in vibration white finger. 

12.	However, I am inclined to accept the Claimant’s version of events in this respect. I do so mainly because the Claimant did in his letter of appeal to the Tribunal say that he would “demonstrate” his vibration white finger at the appeal. That seems to me to render it likely that the Claimant did ask at the hearing for some form of cold provocation test to be carried out, but there is no mention anywhere in the Record of any suggestion to that effect by the Claimant. It therefore seems to me to be likely that the Record was in this particular respect not a complete record of the hearing. The Secretary of State’s representative, in his submission in this appeal, raised the possibility of further inquiries being made of the chairman, the medical member or the clerk as to exactly what happened. However, it is now some 7 months since the hearing. I would not expect any of those persons to have any reliable recollection of the actual hearing. Further, the chairman had the opportunity, at the time of producing the Statement of Reasons, when the matter would then still have been reasonably fresh in his mind, to comment on what the Claimant had said in his letter received on 2 December 2005, and a further such opportunity arose on receipt of the Claimant’s letter received on 11 January 2006.

13.	On the footing that the Claimant did ask to be allowed to stand outside in order to show that blanching occurred, there was in my view a breach of natural justice in him being denied that opportunity. 

14.	Although the evidence which was before the Court in R (on the Application of NACODS) v. Secretary of State for Work and Pensions [2003] EWHC 607 suggested that a cold water provocation test is not much use as a diagnostic tool, since it produces “too many false positives and false negatives to be reliable” (see the evidence of Dr. Susan Reed cited at para. 41), the position of the Secretary of State in that case was (see para. 43) that “a positive result from an NPDP test [i.e. immersing hands in very cold water] should be used to support a favourable diagnosis of PDA 11 but a negative result should not be taken as any support for an unfavourable diagnosis. In other words, a positive result would assist a claimant whose history or symptoms was inconclusive but a negative result could not support an unfavourable diagnosis.” 

14.	Pitchford J. in that case said (at para. 107): “I decline to pronounce on the issue whether the NPDP cold water provocation test is obsolete. That is a matter for medical and departmental review and not, in my view, for me. The Claimant, in the light of evidence submitted and submissions made on behalf of the Secretary of State, does not invite me to go that far.” 

15.	Following the NACODS case the relevant part of the Notes on the Diagnosis of Prescribed Diseases (issued by the DWP Corporate Medical Group) were amended, on 21 May 2003, so as to read as follows:

“Medical Advisers (MAs) are reminded that the basic cold water provocation test (CWPT) is of limited value, as are the more sophisticated cold provocation tests. 

The use of the test should be avoided in cases where there is a clear, consistent history, and clinical findings on which to form the opinion that PD A11 is or is not diagnosed. 

The CWPT can be of benefit to an individual claimant who is unable to articulate his/her history of symptoms in that a positive result could assist a claimant whose history is inconsistent by demonstrating that they do suffer from blanching. 

However a negative result should not be given any significance, and the opinion as to whether PD A11 is diagnosed or not should be made on the basis of the history and clinical findings.” 

16.	However, I note that in May 2004 the Chief Medical Adviser issued a statement as follows:

“As medical understanding of the causes and effects of prescribed diseases is constantly changing, it is difficult to keep the Notes on the Diagnosis of Prescribed Diseases up to date. Thus there are no plans to revise the Notes in the foreseeable future. 

Medical Services’ Medical Advisers should seek advice from Corporate Medical Group on a case by case basis to ensure that the advice they give is not only up to date medically, but also in accordance with current legislation and case law.” 

Whether the advice in the amendment referred to in para. 15 above is one of the aspects of the Notes now thought to be out of date, I do not know. 

17.	In October 2005 Medical Services issued a revised version of the Industrial Injuries Handbook for Medical Advisers. Para. 4.6.7 includes the following advice:

“In the course of investigation for any of the above differential diagnoses, tests may have been carried out and those results made available to the PDA11 Decision Maker.  Many tests have been developed in attempts to aid the diagnosis of HAVS and some are used in civil claims. The tests are not truly ‘objective’ as they rely on the patient’s co-operation with the testing procedures and the responses can be learned. The test results have many false positive and false negative results.
As there is no Gold Standard test to diagnose any aspect of HAVS, a battery of tests are used and include the following:
•	Vibro tactile threshold testing.
•	Thermal aesthesiometry.
•	Purdue pegboard tests.
•	Cold Water Provocation tests.
•	Finger Systolic Blood pressure testing. 
•	Finger skin temperature testing and
•	Jamar grip strength dynamometer tesing.
At best they are diagnostic tools, to be considered along with the history and results of formal and informal observations when making the diagnosis. Tests that take a considerable length of time and require a controlled environment are not considered appropriate for use in IIDB.  While the tests may help confirm the diagnosis of HAVS, they are-at this stage of their development- of no assistance in the assessment of disablement in PDA11.”  

18.	There is no scientific evidence before me other than what is set out in the NACODS judgment. I do not therefore think that I could properly hold, on the material before me, that even if the Claimant had stood outside in the cold, and blanching had occurred to the required extent, the Tribunal would have been bound to ignore that evidence. In my judgment, therefore, on the material before me, the Claimant should have been given that opportunity if he requested it, as I find he did. 

19.	It is in my judgment not an objection to that conclusion to say that the Claimant’s evidence to the Tribunal was to confirm the description of the degree of the blanching which he had given to the Coal Board doctor (p.13), and that that did not allege blanching to the required degree, so that there was no point in allowing him to stand outside. One reason why that is not an answer is that the Record of Proceedings records the Claimant as saying: “P.13 is correct but I think that index and middle fingers of both hands are the worst.” It therefore appears that the Claimant did not wholly accept what was recorded by the Coal Board doctor on p.13. Furthermore, he had said to the EMP in 2005 that the blanching was more extensive than is shown on p.13. 

20.	In an earlier Direction in this appeal I raised the question whether, if I were to allow the appeal and direct a rehearing, facilities for conducting a cold water provocation test should be available at the rehearing. By a “cold water provocation test” I mean a test  of the type previously carried out by medical advisers and (according to the evidence in the NACODS case) by appeal tribunals in some cases, involving simply immersion of the hands in very cold water in order to see whether blanching occurs. There is, it seems to me, no warrant for suggesting that the new tribunal should carry out more sophisticated tests of the nature carried out by the Coal Board doctor, involving (as I understand it) measurement of changes in temperature in the fingers

21.	The Secretary of State submits in this appeal that “cold water provocation testing is known to be unreliable due to the fact that it is not repeatable – it is known to give both false positive and false negative results. I submit that if the case were to be remitted to a new tribunal it should be decided in the usual manner, i.e. clinical and occupational history and by scrutiny of the medical reports on file.” 

22.	However, if facilities for such a test are not made available at the rehearing, and the Claimant is unsuccessful before the new tribunal, that would no doubt give rise to a further appeal by the Claimant on the basis that, having requested a test, he should have been given the opportunity to have one. That might involve a Commissioner deciding, presumably on the basis of scientific evidence, whether it was reasonable for the medical member not to carry out such a test even in a case where it is specifically requested. I tentatively suggest that it may be preferable for the Appeals Service, in this particular case, to have available some iced water (as I understand it that is all that is required) with which the medical member can carry out such a test, but I give no actual direction to that effect. It would then be a matter for the new tribunal to determine what, if any, significance to attach to the result. 

23.	For the avoidance of any possible doubt I am not in this case deciding that a cold water provocation test must necessarily be carried out by a tribunal in any PDA 11 diagnosis case where the existence or extent of blanching is in issue and where the claimant requests such a test, still less in a case where no such request is made. (Nor, however, am I deciding that if a claimant does request such a test, his request can necessarily be ignored).

24.	In his submission in reply the Claimant says that he would like this case “held back” because he has asked for but not received a Statement of Reasons in relation to his unsuccessful appeal in respect of carpal tunnel syndrome (heard on the same day as this appeal). If there were any possibility of a rehearing being directed in relation to the carpal tunnel syndrome appeal, it might well be sensible to delay the rehearing which I have directed so that it could be heard at the same time as the rehearing in relation to carpal tunnel syndrome, but there has been no application to a Commissioner for leave to appeal in relation to the carpal tunnel syndrome appeal. I have to-day set aside the Tribunal’s decision in relation to the 2003 industrial accident, and it may be desirable that that rehearing takes place at the same time as the rehearing which I have directed by this decision. 

25.	The Claimant requested an oral hearing of this appeal, but I consider that I have been able properly to determine it without an oral hearing, and therefore refuse that request. 

	(signed on the original)	Charles Turnbull
		Commissioner
		28 June 2006