[2008] UKSSCSC CAF_2792_2006 (12 February 2008)

CAF/2792/2006

DECISION OF THE PENSIONS APPEAL COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Plymouth Pensions Appeal Tribunal (ref: ENT/867/2005) dated 9 March 2006 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	At the Secretary of State’s request, I held an oral hearing of this appeal.  The claimant was represented by Ms Emma Baldwin of the Free Representation Unit and the Secretary of State was represented by Mr Steven Kovats of counsel, instructed by the Treasury Solicitor.  I am very grateful to both representatives for their helpful submissions.

3.	The proceedings before me have a lengthy history.  I need not set it out in full.  On 28 April 1951, the claimant lost control of the motorcycle he was riding and crashed.  On 26 October 1994, he claimed a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (S.I. 1983/883) in respect of injuries arising out of the crash.  Various decisions were made following the claim and they resulted in the payment of a disablement pension on the basis of assessments of disablement that began at 40% but were increased to 70% from 26 November 1997.  It had been accepted that the claimant was suffering from bilateral noise induced sensorineural hearing loss due to service but the assessment in respect of that was less than 20% and so did not contribute to the 70% assessment upon which entitlement to benefit was based.  On 19 May 2005, the Secretary of State decided not to alter a decision given on 10 April 2003 to the effect that the claimant was suffering from bilateral sensorineural hearing loss that was not due to service noise exposure but that that hearing loss was neither attributable to, nor aggravated by, the claimant’s service.  On the same day, the Secretary of State refused to review the 70% assessment of disablement and also decided that there were no grounds for reviewing the date from which disablement benefit had been awarded.  The claimant appealed against all three decisions.  The appeals in respect of the hearing loss and the date of claim were dismissed by the Pensions Appeal Tribunal on 16 March 2006.  I subsequently granted leave to appeal against both of those decisions and I heard the two appeals together.  My decision in the date-of-claim appeal (on file CAF/2868/2006) will be given in due course when I have received further submissions.  The appeal against the assessment of disablement was heard by a Pensions Appeal Tribunal on 8 May 2006 and resulted in a reduction in the assessment from 70% to 30% with effect from 30 June 2004 to 2 May 2008.  I need say no more about the decision of 8 May 2006, because no appeal lies to a Commissioner from it, save that I will record that judicial review proceedings are pending.

4.	There is no doubt that the claimant suffers from bilateral sensorineural hearing loss.  To the extent that it is due to service noise exposure, it has already been accepted as attributable to service.  To the extent that it may be due to noise exposure since the claimant’s service, it is plainly neither attributable to, nor aggravated by, his service.  Accordingly, the issue before the tribunal was whether any of the hearing loss was due to something other than noise exposure and, more particularly, whether it was attributable to the road accident in 1951.

5.	What the tribunal said in paragraph 7 of its decision was –

“The condition relates to a road traffic accident in 1951 near Northampton.  The contemporary medical records say that he was unconscious for about ½ minute and do not record any complaint of hearing loss.  Later records from Headley Court treatment similarly relate no hearing problem.  These findings are inconsistent with any significant degree of acquired hearing loss attributable to a head injury in the road traffic accident of 1951.  Audiometric evidence of 1987, 1999 and 2002 shows a pattern of hearing loss typical of noise induced hearing loss.  It does not demonstrate a severe hearing loss through all frequencies, such as would support a conclusion that in 1951 he hit his head in such a manner as to produce post-traumatic sensorineural hearing loss, not consistent with hearing loss due to a head injury in 1951.  Perusal of the evidence leads us to conclude that it is most improbable that the Appellant acquired any significant degree of hearing loss in the road traffic accident of 1951.  The evidence shows that the brain injury sustained in that accident was probably relatively minor in nature.  We do not, given the above conclusions, agree with or accept the Consultant’s opinion of 4.10.2002.  We accept the conclusion of Dr Finucane in her Opinion in the papers.”

6.	Ms Baldwin’s first two submissions develop a point I raised when granting leave to appeal.  She argues first that the significance of the severe hearing loss not being through all frequencies was a new issue that the claimant had not had the opportunity of commenting on and secondly that the tribunal had not dealt with the relevance of the claimant’s hearing loss being asymmetric, which was a point upon which the claimant’s medical evidence had laid much emphasis.

7.	The background is that Mr F P Houlihan FRCS, a consultant ENT surgeon, had submitted a report dated 4 October 2002 concluding that the claimant’ hearing loss had two components –

“1.	That of a bilateral sensorineural loss which is more marked on the left than on the right due to his severe head injury.

2.	This loss is compounded by a noise induced hearing loss factor associated with exposure to aircraft engines.

These hearing levels will, at this stage, have an age related factor present.”

The asymmetry of the hearing loss was a major factor in Mr Houlihan’s thinking.  He said –

“I understand that the injury was to the left side of the skull and the above findings are in keeping with the greater sensorineural loss being on the left side with a less of an effect on the right side.  These findings are well documented and acceptable with the inner ear hearing loss associated with head injury.”

8.	It appears that Mr Houlihan was then shown a letter dated 9 January 1987 written to the claimant’s general practitioner, Dr Bellamy, by the clinical assistant to a another consultant ENT surgeon, recording that tests showed some noise induced hearing loss and adding –

“The left ear shows a sensory neural loss of about 50% in the higher frequencies.  I am unable to explain why this should be so.”

Mr Houlihan reiterated his view that –

“the original injury seems to have caused a hearing loss, which was more marked on the left than the right.  The loss at the time was static and not progressive but obviously other factors such as exposure to loud noise and of course age related deafness will be contributory factors.  I think this is borne out clearly by the series of audiograms that have been taken over number of years.”

9.	The claimant also submitted a medical report dated 8 July 2004, from a French ENT specialist, Dr S Etienne, who said –

“The patient says that in 1951 he suffered a severe cranial trauma with loss of consciousness and coma, and was hospitalised for a period of one year in England.

He currently presents with perception hypoacusis with predominance on the acute frequencies, more pronounced on the left than the right.

His clinical examination is absolutely normal.

The appearance of the curve suggests to me presbyacusis aggravating an earlier perceptional deafness, which may well square with the cranial trauma that [the claimant] suffered in 1951.

Therefore at present he is affected b y deafness that is clearly more pronounced than the presbyacusis that is normal for his age, because of his trauma case history.”

10.	The opinion of the Veterans Agency Medical Services dated 4 July 2005 was written by Dr UA Finucane MB, ChB, MRCPsych, DDAM.  She commented –

“2.	…  given the high frequency hearing loss and [the claimant’s service noise exposure, an element of the sensorineural hearing loss is due to service noise exposure.  …

4.	The consultant ENT Surgeon’s letter dated 9.1.87 shows that whilst noise induced exposure was deemed to be a cause of the hearing loss the Consultant felt unable to explain the asymmetry, there being a greater loss in the left than in the right ear.  However, such asymmetry is not uncommon in those who have fired guns, the ear that is more affected being that opposite the shoulder from which the gun is fired.”

She also said –

“In none of the service evidence is there any reference to any damage to, or symptoms or signs in respect of, the ears and hearing.  Nor does that evidence in our opinion support a notion that the in-service head injury was severe or that it resulted in more than a brief loss of consciousness at the time.  …  The service medical records also show that at the Release Medical examination no disablement relating to the ears or hearing was claimed by [the claimant] or noted by the examining Medical Officer.”

11.	I should add that it appears to be common ground that the claimant’s use of firearms during his national service was too limited to have caused noise induced hearing loss but that he did shoot recreationally after his national service and that he was exposed to other noise including aero engines during his national service.

12.	It is convenient to deal with Ms Baldwin’s second point first.  As Mr Kovats submits, Dr Finucane’s opinion was written in the light of the other reports and as an answer to them.  It seems to me that her answer was twofold.  First, she suggested that the asymmetry might have another cause but, secondly, she suggested that the lack of any record of deafness for some years after the injury and the apparently minor nature of the injury meant that it was beyond reasonable doubt that the deafness was not caused by the 1951 accident.  Mr Houlihan has commented that the claimant’s hearing was probably not tested when the claimant was in hospital in Northampton and that may well be right, but the claimant had service medical examinations which appear not to have detected anything.  It seems to me that the tribunal would have been entitled to take the view that, whatever the cause of asymmetry, the asymmetry alone was not sufficient to show that the accident might have caused any deafness when no deafness had been found for several years after the accident and the injury had been relatively minor.  (Mr Kovats made the point that the consequences of the injury were not as severe as Dr Etienne appears to have understood.  The claimant, understandably does regard the injury as having been serious as, no doubt, to a layman it would be.  It was serious enough for the claimant to spend 169 days at Headley Court.  However, “serious” and “minor” are relative terms and the issue here is whether it was serious enough for deafness to be a consequence.)  It also seems to me that acceptance of Dr Finucane’s opinion and rejection of Mr Houlihan’s, together with specific reference to the lack of deafness immediately following the accident and to the relatively minor nature of the injury, would have been a sufficient explanation for the decision, without any specific reference to the asymmetry.

13.	However, that was not quite the tribunal’s approach.  The tribunal relied also on the fact that the audiometric evidence did not show a “severe hearing loss through all frequencies, such as would support a conclusion that in 1951 he hit his head in such a manner as to produce post traumatic sensorineural hearing loss”.  That was not a point that had been made by Dr Finucane or anyone else.  Mr Kovats draws attention to the fact that Dr Finucane had referred to high frequency hearing loss in paragraph 2 of her opinion, but she was dealing with an entirely different issue.  I am satisfied that the point relied upon by the tribunal was an entirely new one.

14.	Mr Kovats and Ms Baldwin both agree that, in the light of Evans v. Secretary of State for Social Security (reported as R(I) 5/94) and Butterfield v. Secretary of State for Defence [2002] EWHC 2247 (Admin), if a tribunal perceives a possible medical objection to a claimant’s case that has not previously been taken and of which the claimant has not had notice, the claimant must be given an opportunity to deal with the point and fairness may dictate that there must be an adjournment so that the claimant may seek the view of his or her medical advisors.  In this case, the tribunal was considering the case in the claimant’s absence, having rejected a request for a postponement, and so, if it was necessary to give the claimant an opportunity of dealing with a new point, an adjournment was inevitable.  

15.	I would not hold a tribunal to have erred in law for failing to give a claimant an opportunity to deal with a new point if the point was not one that made a difference to the tribunal’s decision or if the claimant could not have answered the new point.  However, in this case, it is impossible to say that the audiometric evidence was not material to the tribunal’s decision and Mr Houlihan does not agree as to its significance.  Although the tribunal could have decided the case against the claimant without reference to the audiometric evidence, it does not follow that it would have done.  It is particularly important to bear in mind that the claimant had only to raise a reasonable doubt.  It is not unreasonable to think that the tribunal referred to the audiometric evidence because it regarded it as significant and it may well be that that evidence removed a doubt there would otherwise have been.  Mr Houlihan has referred, in a letter dated 21 March 2007 (doc 1015-6), to Differential Diagnosis in Otolarynology (1993) and says –

“On pages 62 to 63 Hans Heinz Naumann refers to sensorineural hearing loss associated with head injury and gives a series of audiograms found in such cases.  It is only in the very extreme cases that a flat audiogram is to be found.  In the milder head injuries it is a high frequency hearing loss that is seen on the side of impact with a lesser degree of a high frequency hearing loss on the contra-lateral side.”

I take that to be an expression of disagreement with the tribunal’s view that post-traumatic sensorineural hearing loss is necessarily through all frequencies.

16.	In those circumstances, I am satisfied that the tribunal’s decision is erroneous in point of law because it did not give the claimant the opportunity to comment on the significance of the hearing loss not being through all frequencies.  This makes it unnecessary for me to deal with Ms Baldwin’s other grounds of appeal, which were that the tribunal had misstated the standard of proof, that it had failed to take material matters into consideration and that the statement of reasons for the decision was inadequate, all of which are linked to her first two grounds of appeal to a greater or lesser extent.  I refer the case to another tribunal because there are medical issues to be considered and I do not accept Ms Baldwin’s submission that Mr Houlihan’s evidence necessarily raises a reasonable doubt in the claimant’s favour: a tribunal, which will have among its members a doctor, could reject the evidence.

Bundles of documents

17,	As a postscript, I wish to add something about the bundles of documents prepared for hearings before tribunals, which are then adopted as the bundles before Commissioners.  In this case, the documents before me run to just over 1,100 pages, of which about 800 were before the tribunal.  Relatively few of them were relevant to the specific issue before the tribunal.  When he received the Statement of Case, the claimant complained to the President of the Pensions Appeal Tribunals in England and Wales that he was overwhelmed by the documents.  The President replied to the effect that he could not comment because at he had not then had sight of the documents.  By the time the documents were sent to the tribunal, it was too late to do much about the state they were in.

18.	I acknowledge that it is not easy for a respondent to produce a bundle of documents where an appellant is acting in person because it must disclose documents that might be of assistance to the appellant as well as those upon which it wishes to rely itself.  I also acknowledge that some of the difficulties in the present case were caused by the claimant’s desire to see his whole file and also by the addition of more documents after the original bundle had been put together.  I further acknowledge that it is not appropriate for a disproportionate amount of effort to be put into preparing a bundle.  However, what I now have is a vast bundle in which most of the documents do not appear in any logical order and to which there is an inadequate index.  Worse, like the tribunal, I have two such bundles because that on file CAF/2868/2006 is almost identical to the one in the present case.  The consequence is that the tribunal and I have had to spend more time reasoning the documents than should have been necessary and the same presumably goes for the claimant and the representatives on both sides.  Ms Baldwin helpfully produced a core bundle containing just the key documents for the hearing before me.

19.	I suggest that the Veterans Agency and the President should review the guidelines for the production of bundles.  Rule 5 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (S.I. 1980/1120) requires the Secretary of State to produce a Statement of Case, containing “information” including the relevant facts and, in the case of an entitlement appeal, the reasons for making the decision.  He must send that to the claimant, who may provide an answer and documentary evidence.  The Secretary of State may comment on the answer and must then send the Statement of Case, the claimant’s answer and evidence and the Secretary of State’s further comments to the tribunal.  There is no specific mention of documentary evidence on which the Secretary of State relies, but the legislation appears to assume that that is included within the scope of the term “information”.  I suggest that the Statement of Case should contain just that: the first document should be the claimant’s letter of appeal and the second should be a statement of the Secretary of State’s case, setting out the salient facts as he sees them and, save perhaps in an assessment case, the reasons for resisting the appeal (including references to the relevant law), just as is done in social security cases, so that both the claimant and the tribunal can immediately see what the main issues are.  That should then be followed by the relevant documentary evidence.  Currently, the Secretary of State’s key argument is often buried in medical advice to be found in the middle of the bundle.  Producing the sort of logical submission I have suggested might occasionally have the additional value of drawing the Secretary of State’s attention on issues that have been overlooked.

20.	 Some thought could also be given to the utility of transcribing documents rather than merely copying them.  The existing procedure has its value when documents are handwritten but it appears to be used to a greater extent that has really been necessary since the invention of the photocopier and the widespread adoption of word-processing.  Some thought could also be given to the possibility of being more selective when bundles are over a certain size.  There may be scope for a procedure that involves the Secretary of State disclosing to the claimant all the documents in a file, identifying those that are considered relevant and asking the claimant whether he wishes any more of the documents to be placed before the tribunal.  As long as there has been full disclosure to the claimant, it may not be necessary to put all the documents before the tribunal.  Where more than, say, 300 documents are in the bundle but only a few of them are really important, thought could be given to the production of a core bundle for use at a hearing.  Indexes should be made more useful.  In the present case there is a single entry for “Medical history – [pages] 9-586”.  That is useless and the lack of utility is merely highlighted by each subsequent document being listed individually.  I appreciate that the bundle was created from a Statement of Case in a previous appeal, but that is not a reason for not producing a proper index for nearly 600 pages.  Moreover, trying to produce an index might have encouraged the person concerned to try to sort the documents into some coherent order and perhaps to weed some out altogether.

21.	These are, as I have said, matters primarily for the Veterans Agency and the President but, as a user of these bundles, I feel entitled to express some dissatisfaction with the present arrangements.

22.	If Ms Baldwin continues to represent the claimant before the tribunal in this case, she and the Veterans Agency may be able to agree the contents of a slimmer bundle for use at the hearing.

	(signed on the original)	MARK ROWLAND
		Commissioner
`		12 February 2008