CI_397_1989
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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1990] UKSSCSC CI_397_1989 (01 November 1990) URL: http://www.bailii.org/uk/cases/UKSSCSC/1990/CI_397_1989.html Cite as: [1990] UKSSCSC CI_397_1989 |
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[1990] UKSSCSC CI_397_1989 (01 November 1990)
R(I) 4/91
Mr. V. G. H. Hallett CI/397/1989
1.11.90
Prescribed disease C 23 (primary neoplasm) - jurisdiction of Medical Appeal Tribunal - whether belief that claimant was not working in a prescribed occupation relevant to the diagnosis question
Claimant claimed industrial disablement benefit for prescribed industrial disease C23. The adjudication officer decided that C23 was prescribed in relation to the claimant but referred the diagnosis question to the Medical Board. The Medical Board decided the claimant was not suffering from prescribed disease C23 or any sequela of that disease. The adjudicating officer decided disablement benefit was not payable. The claimant appealed to the Medical Appeal Tribunal. The Medical Board's decision was upheld, and in reaching their decision, the Medical Appeal Tribunal considered whether the claimant could only be suffering from prescribed disease C23 if he had been engaged in an occupation involving exposure to substances listed in Schedule 1, paragraph 23 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. The claimant appealed.
Held that:
- the question whether a claimant is suffering from a prescribed disease is a diagnosis question and falls within the powers of a Medical Appeal Tribunal when determining such a question (regulation 40(3) Social Security (Adjudication) Regulations 1986);
- the question whether a disease is prescribed is not a diagnosis question. It is for the statutory authorities (the adjudicating officer, the social security appeal tribunal, and the Commissioner) to determine the question whether the relevant disease is prescribed (regulation 41 of the Social Security 49 (Adjudication) Regulations 1986);
- where a claimant is suffering from a prescribed disease, it is open to the adjudication officer to seek to show that the disease in question was not due to the nature of the claimant's employed earners employment (regulation 4 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decision
Representation
Nature of the appeal
The relevant law
The claim
Decisions relating to the claim
"Prescribed disease number C23 is prescribed in relation to the claimant."
"Papillary transitional cell tumour of bladder (multifocal and recurrent)."
He wrote that he was unable to fill in answers to the questions whether the claimant was, or had since 1 January 1968, been suffering from PD C23 and if so whether that disease was due to the nature of his employment, because he was not quite sure whether the oil the claimant described as being used in his industrial process was in fact carcinogenic or could be implicated in his disease process. He considered that smoking could and there was a possibility that the use of Magenta and maybe contact with rubber might have been a risk factor.
"The Board agrees with the Consultant's report."
The decision of the MAT
"The tribunal are asked to consider whether [the claimant] has suffered at anytime from the prescribed disease since 1 January 1968."
"Since 1970 the appellant has suffered from a bladder tumour which from time to time has been treated and recurred."
The minority member considered the claimant suffered from primary neoplasm of the epithelial lining of the urinary tract in consequence of exposure to rubber dust and that he had since 1 January 1968 suffered from PD C23. One majority member considered Magenta was not a qualifying substance for the purpose of the appeal and that his exposure to beta naphthylamine was not exposure to the raw material and in the circumstances the claimant was not suffering from the prescribed disease. The other majority member decided that beta naphthylamine was not used in the manufacture or that the claimant had been exposed to it. All three members decided that Magenta was not a prohibited substance.
Was the decision of the MAT erroneous in law?
(2) The question whether a claimant is suffering from a prescribed disease listed in column 1 of Part I of Schedule 1 to the Prescribed Diseases Regulations 1985 is a diagnosis question: see regulation 40(3) of the Social Security (Adjudication) Regulations 1986. Such a question usually (see decision R(I) 4/80 at para. 10) requires a medical report (regulation 42). There are provisions for reference, or an appeal, to a medical board and from there, under regulation 46, to a MAT. The quite different question whether the disease listed in column 1 is prescribed, under column 2, in relation to the claimant is not a diagnosis question: see regulation 40(3). Nor does it fall within the powers of an MAT when determining such a question: see regulation 47.
(3) It is therefore for the statutory authorities (the adjudication officer, the social security appeal tribunal and the Commissioner) to determine the question whether the relevant disease is prescribed in relation to the claimant under the provisions of Part III (adjudication) of the Social Security Act 1975: see regulation 41(2)(a).
(4) This division of jurisdiction under which the medical authorities decide the diagnosis question, namely whether the claimant is suffering from a prescribed disease (column 1), and the statutory authorities decide whether the disease is prescribed in relation to the claimant (column 2) is well settled. The law has been consistently so interpreted by the Commissioners in this way: see, for example, decision R(I) 5/57 at paragraph 13 and decision R(I) 3/74 at paragraph 16.
(5) For completeness, it should be added that it is open to an adjudication officer, in a case where a claimant is suffering from a prescribed disease (column 1) and the disease is prescribed in relation to him (column 2) to seek to show that the disease in question was not due to the nature of the claimant's employed earner's employment, in terms of regulation 4 of the Prescribed Diseases Regulations 1985. Cases relating to this question take the statutory authority route (adjudication officer, social security appeal tribunal and Commissioner): see, for example, decisions R(I) 37/52 and R(I) 38/52 (both of which are decisions of tribunals of Commissioners). The medical authorities (who include the MAT) have no jurisdiction to decide these questions, which fall within regulation 41(2)(a), not regulation 40(3) or 47 of the 1986 Adjudication Regulations.
Directions to the new MAT
"Primary neoplasm (including papilloma, carcinoma-in-situ and invasive carcinoma) of the epithelial lining of the urinary tract (renal pelvis, ureter, bladder and urethra)."
If the answer to this question is yes, I direct the MAT to find that the claimant is suffering from PD C23. If the answer to this question is no, I direct the MAT to find that the claimant is not suffering from PD C23.
the affirmative. If this is so, the claimant has been kept waiting for a favourable decision, in circumstances for which he was in no way at fault, for three years.
Date: 1 November 1990 (signed) Mr. V. G. H. Hallett
Commissioner
THE APPENDIX
SOCIAL SECURITY (INDUSTRIAL INJURIES) (PRESCRIBED DISEASES) REGULATIONS
PART I (cont.)
Prescribed disease or injury | Occupation |
C23. Primary neoplasm (including papilloma, carcinoma-in-situ and invasive carcinoma) of the epithelial lining of the urinary tract (renal pelvis, ureter, bladder and urethra) |
Any occupation involving: (a) Work in a building in which any of the following substances is produced for commercial purposes: (i) alpha-naphthylamine, beta-naphthylamine or methylene-bis-orthochloroaniline; (ii) diphenyl substituted by at least one nitro or primary amino group or by at least one nitro and primary amino group (including benzidine); (iii) any of the substances mentioned in sub-paragraph (ii) above if further ring substituted by halogeno, methyl or methoxy groups, but not by other groups; (iv) the salts of any of the substances mentioned in the sub-paragraphs (i) to (iii) above; (v) auramine or magenta; or (b) the use of handling of any of the substances mentioned in sub-paragraph (a)(i) to (iv), or work in a process in which any such substance is used, handled or liberated; or (c) the maintenance or cleaning of any plant or machinery used in any such process as is mentioned in sub-paragraph (b), or the cleaning of clothing used in any such building as is mentioned in sub-paragraph (a) if such clothing is cleaned within the works of which the building forms a part or in a laundry maintained and used solely in connection with such works. |