A5/96(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INDUSTRIAL DISABLEMENT BENEFIT

Application by the claimant for leave to appeal
to the Social Security Commissioner
on a question of law from the decision of
the Medical Appeal Tribunal
dated 1 March 1996

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Medical Appeal Tribunal sitting at Belfast; whereby it was held that there was no loss of faculty resulting from the accident which occurred in 8 February 1979, and that the claimant's condition was a result of osteomyelitis which recurred in 1988.

2.	The grounds of the claimant's application for leave to appeal are as follows:-

"I wish to appeal on the following point of law - made a decision supported by no or insufficient evidence, breached the rules of natural justice, failed to apply correct law, wrongly interpreted the legislation, failed to give proper or adequate or comprehensive reasons for its decision in writing.  See attached sheet -

The Decision made on the 31st(sic) day of March, 1996 was made on insufficient evidence.

Referring to:

1.	R(I) 13/63 paragraph 7 - "appropriate medical authorities" must be considered by the Medical Appeal Tribunal in assessing the loss of faculty.  Such evidence was not considered in Mr McC...’s case, the Tribunal did not see evidence from his G.P. and Musgrave Park Hospital.  Therefore, the claimant did not have the opportunity to show he was incapable of following his regular occupation.

2.	R(I) 29/61 paras 16 & 17 Mr McC... should have been adequately "heard" other evidence, ie that not obtained from the hospital and his G.P. might have pointed to a different conclusion.

3.	R(I) 14/68 - Natural Justice In the interests of Natural Justice, it should have been drawn to Mr McC...’s attention that they did not have all the medical evidence, so that he had a "fair opportunity of dealing with it, and of knowing exactly the nature of the case against him.

As far as natural justice is concerned, there must also be a question mark over the fact that there is no record with either Mr McC…’s G.P. or Musgrave Park, of his records being asked for.

The Medical Evidence also points to an incorrect conclusion on the part of the Tribunal:

Dr A… and Dr B… both say he is incapable of carrying out his usual occupation.

Mr O H A M… (Consultant Surgeon) write out Mr McC... is incapable of labouring and he can not suggest any alternative work which would be suitable."

3.	The initial grounds of appeal, as set out above, are couched in general terms and merely repeat the examples of points of law given in the printed application form.  As such they are of little assistance in determining whether or not there are valid grounds for holding that the decision of the Medical Appeal Tribunal might be erroneous in point of law.  The "attached sheet" appears to contain the specific grounds upon which the claimant alleges that the Tribunal erred in law.  The substance of his criticism is that the Tribunal proceeded with the hearing and determination of the appeal without having before them evidence from his General Practitioner and from the Musgrave Park Hospital.  Having studied the case file I am at a loss to understand how these allegations have come to be made.  The first hearing of the claimant's appeal was adjourned on 16 October 1995 for the express purpose of obtaining the additional medical evidence, and from the record of the further hearing on 1 March 1996 it is clear that the Tribunal had "notes from claimant's General Practitioner including letter from the Consultant at Musgrave Park Hospital".  It is further recorded that Mr L, one of the medically qualified members of the Tribunal, explained the contents of these notes.  In these circumstances I do not see how it can be alleged that the Tribunal did not have before them the medical evidence referred to in the claimant's notice of application for leave to appeal.

It occurs to me that the hearing by the Medical Appeal Tribunal on 1 March 1996 may have been confused with the hearing by the Adjudicating Medical Authority on 31 March 1995.  This application is only concerned with the decision of the Medical Appeal Tribunal, and the circumstances surrounding the decision of the Adjudicating Medical Authority on 31 March 1995 are not relevant.

4.	It is also alleged that the Tribunal failed to deal fairly with the issue of the claimant's capacity for either his regular or alternative employment.   I would point out that this is not a primary issue in an appeal of this nature.  The question of a claimant's capacity for work only arises where it has been established that disablement has resulted from the relevant industrial accident.  In this instance the Tribunal did not decide that the claimant was fit for work of any kind.  They expressly recorded that he had "a disability of the ankle at present but this must be attributed to the osteomyelitis as opposed to the accident".  In such circumstances it was wholly unnecessary for them to express any view on the claimant's capacity for work.

5.	For the reasons given in paragraph 4 above the overall conclusion which I have reached is that the grounds upon which the claimant relies in support of his application for leave to appeal are without substance.  I have also considered whether there is any other valid ground for holding that the decision of the Medical Appeal Tribunal is or may be erroneous in point of law and have reached the conclusion that there is not.  Leave to appeal will accordingly be refused.

(Signed):  R R Chambers

CHIEF COMMISSIONER

25 September 1996