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	UK Social Security and Child Support Commissioners' Decisions
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[1998] UKSSCSC CI_13238_1996 (28 September 1998)

MJG/TC

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CI/13238/1996

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER M J GOODMAN


 


1. I allow the adjudication officer's appeal against the decision of the social security appeal tribunal dated 6 September 1995 as that decision is erroneous in law and I set it aside. My decision is that, in relation to the claim (received on 16 August 1994) for disablement benefit for prescribed disease A10 (occupational deafness), the claimant has not shown that he worked in employed earner's employment in a prescribed occupation for a period or periods amounting in the aggregate to not less than 10 years - Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985, S.I 1985 No. 967 ("the 1985 Regulations"). The claim to disablement benefit for occupational deafness must therefore fail: Social Security Administration Act 1992, section 23.
2. This is an appeal by the adjudication officer against the unanimous decision of a social security appeal tribunal dated 6 September 1995, which allowed the appeal of the claimant (a man born on 25 March 1937) against a decision of an adjudication officer issued on 21 September 1994, in similar terms to my decision in paragraph 1 above.
3. On 16 August 1994, the Department received a claim for disablement benefit for occupational deafness (prescribed disease A10). That meant that in the first instance only occupations in which the claimant had worked for the five years before 16 August 1994 could be considered as to whether or not they came within one or more of the prescribed occupations in paragraph A10 of Schedule 1 to the 1985 Regulations.
4. It would appear that during those five years the claimant had worked as a foreman asphalter on road etc. repair and construction work. By the time the case got to the tribunal, he claimed (through his representative) that he came within sub-paragraph (b) of paragraph A10 in the First Schedule to the 1985 Regulations, which reads:

"A10(b) Any occupation involving.. the use of pneumatic percussive tools on metal, or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used." (My underlining).

5. The tribunal made as a finding of fact,

"Through his working life, the claimant worked as an asphalter, which involved the breaking up of surfaces prior to laying the asphalt. In breaking up the surfaces the claimant used pneumatic percussive tools on metal contained within the concrete surfaces."

6. In coming to that finding of fact the tribunal must have accepted the evidence given by the claimant's representative as follows,

"By virtue of his work as an asphalter, the claimant came within paragraph (b) of the second column in the Schedule to the Prescribed Diseases Regulations. Prior to laying asphalt, the claimant (who was in charge of a gang) had to rip out the previous surfaces - these were made of reinforced concrete and were broken up with pneumatic drills/compressor which struck the metal contained within the concrete."

7. The adjudication officer's appeal is based on the ruling in a decision of a Commissioner (myself) on file CI/540/1994 which distinguished an earlier case on file CI/37/88 on its facts and also because the words "for at least an average of one hour per working day" had been deleted from the relevant prescribed occupation. In CI/540/1994, it was said, (paragraph 11),

"Moreover, sub-paragraph (b) like all the sub-paragraphs of A10, is subject to the requirement that the prescribed work must be in 'any occupation involving....'. That in my judgment does imply that there must be a point at which the use of the pneumatic percussive tools on metal is so incidental and so momentary that it cannot really be said that the claimant was employed in 'any occupation involving.... the use of pneumatic percussive tools on metal'. In plain parlance here the claimant was not working in any such occupation. He was working in an occupation which involved breaking up concrete flooring. The momentary or occasional contact with a metal reinforcing rod was minimal."

That decision does not appear to have been cited to or at least alluded to by the tribunal in this case.

8. The claimant's representative has made to the Commissioner detailed and careful representations in support of the claimant's case, as follows,

"It is my opinion that the [adjudication officer] has wrongly relied upon Commissioner's decision CI/540/1994 paragraph 11 [quote above]... I do not consider that there is any analogy between flooring and roads. Whilst the Commissioner considered re-enforcing rocks [the present claimant] gave evidence regarding the make up of concrete road. He stated that the concrete was held together by metal net which was approximately 12 inches square. Because of this [the claimant] stated that a different drill was required. For the breaking of concrete only a round drill was required for breaking concrete. With metal re-enforcement a longer pointed drill was required as the round drill would not cut through the metal. I submit that because the make-up of concrete roads is not the same as the make-up of concrete flooring that [the claimant] does work in an occupation involving the use of pneumatic percussive tools on metal and therefore the decision of the tribunal was correct. I have enclosed a supporting letter from a Mr John Sumbland who is the District Secretary of the [Transport and General Workers Union] and who has responsibility for road workers throughout the U.K."

9. The letter from Mr John Sumbland dated 22 September 1997 reads as follows,

"Having served as a full-time official for the TGWU for the past 12 years, I have had responsibility for that period of time for representing our members covered by the Civil Engineering and Construction Industry National Working Rule Agreement of which Road Construction is a part. Reinforced concrete road surfaces, either sub-structure or main surface, was the mode of application up to a decade ago. Its widespread use has now diminished and its application is only relied upon given certain geographical conditions i.e. bridge spans and certain ground structures. This fact is borne out by what many motorists witness whilst negotiating motorway contraflows whilst new surfaces are being laid, i.e. one witnesses many layers of different size aggregates, loose and in macadams. Previously, many roads were laid in concrete sections with the concrete encasing meshed reinforcing wire for added strength. This reinforcing material was approximately quarter inch round steel wires welded together to form a matting of squares. Where repairs were needed to this concrete structure or whatever lay beneath, then dependent on the job in hand, air compressor driven road hammers (drills) would be used or heavy JCB mounted hammers. Both these methods would invariably involve the drill or bolster bit striking the steel mesh whilst attempting to break up the concrete."

10. This additional material was put to the adjudication officer now concerned, whose response (dated 22 July 1998) is to submit that the ruling in CI/540/94 still applies in the present case, even to the new facts as put forward by the trade union on the claimant's behalf. That officer submits that the claimant's real occupation was that of an asphalter not that of a person using pneumatic percussive tools on metal. I can understand why the tribunal came to the conclusion that it did, as doubtless the claimant's occupation was an extremely noisy one and I appreciate the point made about the metal mesh netting in concrete road surfaces. Nevertheless, I must say that I consider that the ruling in CI/540/94 applies in the present case and I accept the adjudication officer's submission to that effect.
11. Moreover, it should be noted that Statutory Instrument 1990 No. 2269 inserted a definition into regulation 1(2) of the 1985 Regulations, as from 13 December 1990, reading as follows,

"'Metal' for the purposes of the disease number A10 in Part I of Schedule 1 to these Regulations, does not include stone, concrete, aggregate or similar substances for use in road and railway construction."

This definition is not cited by the parties in the present appeal but clearly has some bearing on it. The definition was inserted by the 1990 Regulations, in effect to reverse a Commissioner's decision which had held that the word "metal" could include the substance commonly known as "road metal", though not of course having a metallic content. The definition of "metal" indicates clearly the purpose of the regulations, namely that "stone, concrete, aggregate or similar substances for use in road.. construction" are not to be regarded as "metal" for the purposes of paragraph A10. That reinforces my decision that the ruling in CI/540/1994 should apply to this case.

12. There is an entirely distinct matter which deserves mention, although it does not on the present facts enable the claimant to succeed. That arises from the fact that paragraph 6.6 of the local adjudication officer's written submission to the tribunal refers to the use of the word "underground" in sub-paragraph (c) of paragraph A10 referring to, "the use of pneumatic percussive tools for drilling rock in quarries or underground..". The claimant here had stated that he had "worked in the New Mersey Tunnel" though dates do not appear to have been given. Paragraph 6.6 of the local adjudication officer's submission then adds,

"Commissioner's decision R(I)4/84 states that 'underground' should be given its ordinary meaning 'below the surface of the ground'. Any contention that the work can be applied to work in places below ground level but open to the air is for rejection. I would submit that as the Mersey Tunnel is open to air at either end it does not satisfy the meaning of underground for occupational deafness."

However at the hearing before the tribunal, the presenting officer is recorded as saying,

"I would disassociate myself from paragraph 6.6 of the adjudication officer's submission - I don't think this is correct."

13. I asked for a further written submission from the adjudication officer now concerned on this point. At paragraph 4 of his submission of 22 July 1998, that officer says,

"With regards to the meaning of the word 'underground' I would submit that the presenting officer was correct to disassociate himself from the original adjudication officer's submission. This is because in R(I)4/84 the Commissioner held that the term 'underground' is restricted to a place where the surface of the earth is physically immediately above and which is thus not open to the air. Accordingly I would submit that work in the Mersey Tunnel, although being open at either end, is work 'underground'."

14. In R(I)4/84 (a decision of mine) it was held that work in deep trenches open to the air could not be said to be 'underground'. However, I am quite prepared to accept the adjudication officer's submission that work in the New Mersey Tunnel could be regarded as work 'underground'. Moreover, as from 10 October 1994 amending instrument, S.I. 1994 No. 2343, added into sub-paragraph (c) of paragraph A10 the words in square brackets in the following quotation,

"(c) The use of pneumatic percussive tools for drilling rock in quarries or underground or in mining coal [or in sinking shafts or for tunnelling in civil engineering works] or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used;" (My underlining)

Amendments to a prescription can be given effect to on adjudication even where the claim was before the date of the amendment as here (claim 16 August 1994 - amendment 10 October 1994 - R(I)4/84). Consequently, it would seem that the time spent by the claimant with pneumatic percussive tools drilling rock (if such was the case) in the Mersey Tunnel was "for tunnelling in civil engineering works".

15. However, as I see it, none of this can assist the claimant because of the overall requirement that, for a claim to disablement benefit for disease A10 there has to have been employment in employed earner's employment "amounting in the aggregate to not less that 10 years.." in one or more of the prescribed occupations (regulation 2(c)(ii) of the 1985 Regulations). There is no suggestion that the work in the Mersey Tunnel lasted as long as 10 years and, as the other work of the claimant as a foreman asphalter did not qualify, the claim to disablement benefit still has to fail.

(Signed) M J Goodman

Commissioner

(Date) 29 September 1998