[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2007] UKSSCSC CCR_2232_2006 (21 March 2007) URL: http://www.bailii.org/uk/cases/UKSSCSC/2007/CCR_2232_2006.html Cite as: [2007] UKSSCSC CCR_2232_2006

[New search] [Printable RTF version] [Help]

 


[2007] UKSSCSC CCR_2232_2006 (21 March 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The injured person's appeal to the Commissioner is disallowed. The decision of the Nottingham appeal tribunal dated 17 February 2006 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. The appeal tribunal was concerned with the injured person's ("the claimant's") appeal under section 11 of the Social Security (Recovery of Benefits) Act 1997 ("the 1997 Act") against the certificate of recoverable benefits issued on 8 June 2005, valid to 27 September 2005, in the sum of £18,734.91. The breakdown of the benefits included identified payment of incapacity benefit from 28 May 2001 to 28 March 2005 (£14,005.81) and of disability living allowance (higher rate mobility component and lowest rate care component from 30 May 2001 to 4 February 2003 (£4729.10)). The ground of the appeal was that benefits that were paid otherwise than in respect of the accident, injury or disease in question had been brought into account.
3. Section 1(1) of the 1997 Act provides that the Act applies where:

"(a) a person makes a payment (whether on his own behalf or not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other, and

(b) any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident, injury or disease."

Section 1(2)(a) provides that the reference there to a payment in consequence of any accident, injury or disease is (apart from payments under motor accident compensation schemes) to "a payment made by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the accident, injury or disease". Section 1(1)(a) applies to payments including settlements (section 1(3)). There is no further definition of "accident, injury or disease" in the Act. Under section 6, any person who makes a payment within section 1(1)(a), a compensation payment, is liable to pay to the Secretary of State for Work and Pensions an amount equal to the total amount of recoverable benefits, benefits as specified in section 1(1)(b), as listed on a certificate.

The background

4. The compensation history in this case is quite complex. The claimant broke his right leg quite severely in a fall at home on 25 or 26 January 2001. There has never been any question of anyone being liable to pay compensation in respect of that accident. He was taken to the Good Hope Hospital in Sutton Coldfield, where x-rays showed a fractured neck of the fibula and a comminuted fracture of the distal third of the tibia. All the problems stem from the second fracture. He had an operation for an open reduction and internal fixation on 30 January 2001. Unfortunately, after the claimant's discharge from hospital it was observed that the bone had been fixed so that there was an outward rotation of the foot of about 30(. He was referred through his GP to consultants at the Royal Orthopaedic Hospital in Birmingham, where a corrective procedure was carried out on 20 May 2002, involving the application of an external frame until August 2002. A further operation had to be carried out on 26 July 2004.
5. The claimant made a formal complaint to the Good Hope Hospitals NHS Trust ("the Trust") on 19 March 2001. An in-house investigation found that the outcome following the surgery was unacceptable. A letter of apology was sent to the claimant. A letter to his solicitors on 2 November 2001 seems to have admitted that there had been a breach of the Trust's duty of care in "not correcting the rotation at the time of [the claimant's] operation for open reduction and internal fixation of a comminuted spiral fracture of the right lower tibia". The claimant's solicitors sent a letter of claim to the Trust on 19 February 2003 giving full details of the claim. That letter was based on the admitted breach of duty. The solicitors accepted that if the operation of 30 January 2001 had been performed to an acceptable standard the claimant would have required a healing period of up to six months. For negotiation purposes no claim was therefore made for the period prior to 1 August 2001. But a claim was made for the loss of earnings, cost of care and general damages for pain and suffering and loss of amenity stemming from the condition of the claimant's right leg from that date onwards. The acceptance that the nature of the claimant's injury would have required a six-month healing period was apparently based on the views of Mr Richard Gibson, a consultant orthopaedic surgeon, who had provided reports on the claimant.
6. The letter of response dated 10 December 2003 from the Trust's solicitors withdrew the previous admission of breach of duty, after an interview with the surgeon who carried out the operation and obtaining the views of another consultant orthopaedic surgeon, Mr A J P Henry. The line taken was first that it had been reasonable for the surgeon to prefer a procedure that would produce a stable position of the fracture, rather than any of the alternatives, and that even if the degree of malrotation had been identified on 30 January 2001 it was reasonable to leave it uncorrected then to avoid the risks of sepsis, infection and delayed or non-union of the bone from further immediate intervention. Second, it was denied that any of the subsequent corrective surgery and impairment of function was the result of the alleged (and denied) negligence in the surgery performed on 30 January 2001, rather than being a complication of the fracture sustained on 25 January 2001.
7. I am not sure of the precise course of the procedure and negotiations. At some point particulars of claim were prepared and served and a formal defence was received. Expert evidence was exchanged. Breaches of duty of care were alleged on behalf of the claimant in the planning and carrying out of the operation on 31 January 2001, in a failure to identify and correct the malrotation in the course of that operation and in a failure to take adequate steps after the operation towards the deformity being corrected within the shortest reasonable time. It was said that if the claimant's case had been properly managed, he would have been able to return to work and recreational activities within about six months. All of those allegations were denied on behalf of the Trust. In particular, Mr Henry's opinion was that the surgeon had adopted the appropriate procedure, in the course of which and immediately afterwards it would have been very difficult to assess the degree of rotation in the leg, and that once the operation was completed it would have been very unwise to have attempted any further corrective operation until there was adequate union of the bone. His opinion was that the external rotation deformity was an unavoidable complication of a severely comminuted fracture. The claimant was predisposed to non-union by his previous heavy smoking and he might have needed hospital visits for 18 to 24 months until there was sound consolidation of the fracture even if there had been no rotational deformity, and no infection or delayed union.
8. Despite the denials of breach of duty and of causation, the Trust made an offer to the claimant of £50,000, less any deduction of benefits through compensation recovery, in settlement of his claim. The claimant, his solicitors and (for part of the time) Mr Gibson had a conference with counsel on 7 July 2005. Counsel made a very frank assessment of the weight that might be given to the reports of Mr Gibson and Mr Henry respectively and gave the opinion that the claimant's chances of success at trial were less than 50%. He advised acceptance of the offer. The claimant clearly understood counsel's evaluation of the expert evidence. The offer was accepted. The Trust's solicitors sent the claimant's solicitors a cheque for £31,265.09 on 1 August 2005 and confirmed that £18,734.91 had been paid to the Department for Work and Pensions in accordance with the certificate of 8 June 2005. There was therefore a reduction of the compensation payment under section 8 of the 1997 Act.
9. The benefit history is as follows. The claimant signed a claim form for incapacity benefit on 7 February 2001 and was awarded benefit from 26 January 2001. On the form he described his sickness as "broken leg". On 12 April 2001 he signed an IB50 questionnaire. He said that he had had to have a metal plate and screw to fix the bones of his leg together, but that the surgeon did not set the leg properly, so that his foot was 30... to 35( out in rotation and he would need a further operation to have it put right. His GP's Med 4 certificate gave the diagnoses of fracture of the right tibia and of internal fixation and plating, with the claimant still being in plaster of paris. The certificate noted that he still had significant deformity and would require further surgery. It seems then to have been accepted on medical scrutiny that the claimant would satisfy the personal capability assessment (PCA), so that payment of benefit continued. The same result followed a number of IB50s and GP's certificates. The claimant had described severe pain and the use of crutches. The final IB50 was signed on 19 January 2005. The impression from the questionnaire and a report from his GP was of some gradual improvement. This time he was examined by an examining medical practitioner (EMP) on 3 March 2005. The EMP, while acknowledging the history and the continuing use of an elbow crutch, found only mild restriction of standing, walking and climbing stairs and identified descriptors scoring the claimant only six points on the PCA. The decision-maker on 29 March 2005 accordingly superseded the decision awarding incapacity benefit and decided that the claimant was not entitled to incapacity benefit from and including 29 March 2005.
10. The claim for disability living allowance (DLA) was treated as made on 25 May 2001. On the form the claimant described his illnesses and disabilities as "broken R leg" and in the section on walking went on to describe the wrong setting causing the deformity, needing further surgery in 12 to 18 months. He described some difficulty getting about indoors, because of the use of crutches, and an inability to prepare food. He was examined by an EMP on 20 July 2001. By then he had had a letter of apology from the hospital, because the EMP saw it, and the claimant described the mistake made in the operation and what was being done. He was then in a below-the-knee cast on the right leg. The EMP found that he was unable to walk normally, having to use two elbow crutches and only slightly weight-bear on the right leg. He found inability to do most cooking tasks. The higher rate of the mobility component and the lowest rate of the care component, apparently on the main meal test, was awarded for the period from 25 May 2001 to 24 May 2002. A renewal claim was received on 3 January 2002. The claimant described his broken leg, its having been set incorrectly and his difficulty and pain in walking. A further award at the same level was made for the period from 25 May 2002 to 24 May 2003. The further renewal claim form received on 6 December 2002, described continuing difficulties, but of a lesser degree than before. His GP reported full range of movement in the right knee and ankle, with pain on walking 200 yards, with the likelihood of continued improvement. The decision-maker of 4 February 2003 somewhat unusually did not merely disallow the renewal claim, but superseded the decision awarding DLA down to 24 May 2003, deciding that the claimant was not entitled to either component from 4 February 2003 to 24 May 2003.
11. The certificate of recoverable benefits only covered the incapacity benefit paid from 28 May 2001 and the DLA paid from 30 May 2001. This, according to paragraph 3 of section 4 of the Secretary of State's written submission to the appeal tribunal, was to reflect an acceptance that the claimant would have been unable to work down to 27 May 2001 due to the effect of the original injury, even if all the medical treatment had gone as well as it could have done.

The appeal to the appeal tribunal

12. The grounds of the claimant's appeal, as initially formulated in the document attached to the appeal form and in his solicitors' letter dated 6 September 2005, challenged only the recoverability of the incapacity benefit and the mobility component of DLA. It was argued that the cause of the payment of those benefits was the injury sustained on 25 January 2001, not the Trust's alleged negligence. At worst, the Trust may have been in breach of duty in delaying the claimant's second operation by a number of weeks (as it was said that the Trust accepted), but it was argued that this had no causative effect on subsequent treatment or outcome. The solicitors stressed that the claimant's own advisers had given the claimant a less than even chance of succeeding at trial and had found the opinions of Mr Henry more persuasive. It was said that the offer had been made by the Trust "on an economic basis and in recognition of their change in position upon breach of duty some two years into the claim". It was also submitted that, as the claimant was unemployed at the date of the original accident, no part of the settlement related to loss of earnings, although the Trust had not been prepared to provide any breakdown of the elements going towards the total of £50,000.
13. The Secretary of State's written submission to the appeal tribunal rightly pointed out that he was not privy to negotiations between an injured party and a compensator and that questions of the breakdown of a settlement and the heads of loss covered was relevant only to the extent to which a payment to the injured party by the compensator could be reduced under section 8 of the 1997 Act, which was not a matter for an appeal to an appeal tribunal. The submission went on in paragraphs 31 and 32:

"It is submitted, however, that ... £50,000 is not an insignificant compensation payment and it is submitted that the compensator would not have paid that amount if it genuinely believed that there was no negligence involved in this case. It is further submitted that the fact that the Defendant was unwilling to provide a breakdown of its offer only serves to add doubt to their reasons behind the offer.

32. It is submitted that [the claimant] on his claims to Incapacity Benefit and Disability Living Allowance, has consistently stated that his problems were due to his leg being incorrectly set and the subsequent operations to correct it. ... Consequently, it is submitted that the benefits specified on the Certificate have, in their entirety, been correctly recovered in accordance with the legislation and the Tribunal is respectfully requested to record a decision that the appeal fails."

14. In a response dated 7 December 2005, the claimant's solicitors first indicated that they wished to challenge recovery of all the benefits listed in the certificate and provided some further evidence (including their letter of claim and the Trust's solicitors' response and some of the correspondence leading up to the settlement). The submission made on 7 December 2005 was that, objectively analysed, if an offer had not been made the claimant would not have been able to pursue his case against the Trust any further (as he probably would have lost at trial). Therefore, it was said:

"The fact that the Claimant actually received compensation in his clinical negligence claim does not alter the fact that all of the available medical evidence showed that on the balance of probabilities the Claimant received DLA for care and mobility and Incapacity Benefit, not as a result of the `accident, injury or disease' which was the subject of these proceedings, but as a result of the original fracture which he sustained on the 25th January 2001."

It was also submitted that it did not matter why the Trust thought it right to make its offer of settlement and that the claimant's own non-expert view of the cause of his disability was not borne out by the medical evidence.

15. The appeal was heard on 17 February 2006. Neither the claimant, nor his solicitors nor the Trust attended. It appears that the claimant's solicitors thought that there would therefore be a paper hearing, but the appeal tribunal properly proceeded with an oral hearing with a representative of the Secretary of State. That representative was evidently very helpful in guiding the appeal tribunal through the mass of paper. He drew attention to the points at which the claimant had linked his incapacity benefit and DLA claims to his medical treatment. He submitted that down to 30 July 2001 (ie about six months from the original injury) the claimant would not have recovered from the original injury, regardless of the medical treatment received, but that from that date onwards his condition was due to the clinical negligence, in accordance with his case, and the benefits were fully recoverable. That was in an acceptance of the opinion of Mr Gibson and indicated a small amendment of the certificate of recoverable benefit.
16. The appeal tribunal allowed the claimant's appeal with a small further amendment. It decided that the certificate of recoverable benefits was to be recalculated on the basis that only benefits from 29 October 2001, rather than 1 August 2001, were recoverable from the compensation payment. It took the view that in normal circumstances the claimant would have recovered from the original injury within nine months, but that beyond that period the ongoing failure to recover and entitlement to benefit resulted from the medical treatment. It found that the compensation had been paid because the medical treatment did not proceed as swiftly to recovery as would normally be expected, that the claimant had clearly attributed his claims to the fact of his leg being incorrectly set and the subsequent corrective operations and that there was a clear causal link between the slow recovery and the payment of benefit. But it found that, as the break was complex, normal recovery to pre-accident condition would have been nine months rather than the six months suggested by the representative of the Secretary of State. The appeal tribunal said this about the submissions of the claimant's solicitors:

"11. The Tribunal were not persuaded by [the solicitors'] arguments that had this matter gone to court due to the poor quality of [the claimant's] medical expert the probability was that he may have lost his case. The reality is compensation was paid.

12. [The solicitors] submit that it is necessary for the Tribunal to focus on the evidence of the reasons for payments of benefit. They state is unlikely on balance that any of the benefits on the certificate were paid as the result of negligent treatment, as distinct from his original fracture. The Tribunal was not persuaded by this argument."

The appeal tribunal found that the ongoing medical treatment and the operations in 2002 and 2004 was clearly linked to the payment of benefit and that the compensation was paid in respect of that treatment.

The appeal to the Commissioner

17. The claimant now appeals against the appeal tribunal's decision with my leave. Before granting leave I asked the claimant's solicitors what submissions or evidence could have been put forward if the appeal tribunal had offered them an opportunity to comment on its opinion that the normal recovery time from a fracture as complex as that suffered by the claimant would be nine months. In reply they submitted a copy of Mr Henry's liability and causation report dated 19 April 2005, which had not in its entirety been part of the papers before the appeal tribunal. There he estimated that it would have taken 18 to 24 months after the injury until sound consolidation of the fracture was seen. I then granted leave to appeal on the basis that a new point had arisen at the hearing on 17 February 2006, about the normal time for recovery from an injury such as the claimant's, raised by the change at the hearing in the submission for the Secretary of State, and that it was arguable that the principles of natural justice required that the claimant's solicitors be given an opportunity to comment on that point.
18. That suggestion was dealt with convincingly by Mr Cahill's submission dated 29 September 2006 on behalf of the Secretary of State. He submitted that the period for which the original injury would have impacted on the claimant even if his medical treatment had gone entirely smoothly was always part of the evidence and was bound to form part of the appeal tribunal's consideration, so that there was no new point raised by the change of position at the appeal tribunal by the representative of the Secretary of State and it was not unfair not to give the claimant's solicitors the opportunity to meet it. Indeed, I think on reflection that the natural justice point is actually weaker than that rejected by Mr Cahill. In paragraph 11 of his submission he said that the original submission by the Secretary of State had been that the relevant period for the purposes of the 1997 Act had started on 26 January 2001. But the certificate of recoverable benefits that was under appeal only brought into account benefits awarded from 28 May 2001, in recognition that the original injury would have had an effect regardless of treatment, as explained in paragraph 3 of section 4 of the written submission to the appeal tribunal. Thus, the representative's change of position on behalf of the Secretary of State at the hearing was merely a change in the period accepted for that purpose, from about four months to six months. The fundamental point had therefore already been raised before the hearing and the claimant's solicitors had had the chance to make submissions on it and put forward what evidence they wished. I accept that when the appeal tribunal had it in mind to adopt the period of nine months a new point did not arise that the principles of natural justice required be put to the claimant's solicitors for comment.
19. Mr Cahill's submission was that there was no other error of law in the appeal tribunal's decision. I agree, but find the matter somewhat more difficult than he suggested.
20. The difficulty and what I think is the essence of the claimant's case emerges from statements of principle by Mr Commissioner Rowland in decisions R(CR) 3/03, R(CR) 4/03 and R(CR) 2/04. In R(CR) 3/03 the claimant suffered from heart disease and chronic bronchitis. He developed asbestos-induced pleural thickening and received a compensation payment is respect of that. The compensator challenged the inclusion of five years' incapacity benefit in the certificate of recoverable benefit on the basis that at least for some of the period the claimant would have been incapable of work even if he had not developed the pleural thickening. The Commissioner held, in paragraph 20, that the Secretary of State "is not entitled to recover from compensators benefits that would have been paid to claimants even if the relevant disease had not ... developed or the relevant accident had not occurred." In R(CR) 4/03, the Commissioner rejected an argument that the amount recoverable under the 1997 Act should be reduced by the amount of other benefits (eg benefits based on lack of employment, rather than incapacity for work) that might have been paid if the claimant had not suffered the relevant accident, injury or disease. He confirmed that there should not be recovery when it could be shown that the particular benefit concerned would have been paid due to a pre-existing cause even if the relevant accident had not occurred, although concluding that the appeal tribunal there had not erred in law in deciding that had not been shown on the evidence. In R(CR) 2/04, the Commissioner decided that the same principles applied when the other cause of disablement or incapacity for work was a previous accident or injury rather than the development of some constitutional condition.
21. The difficulty then comes in applying those principles where the accident, injury or disease is of the kind in the present case and a settlement has been made in circumstances like those of the present case. Put at its very highest, the argument for the claimant seems to be that on an objective analysis of all the evidence before the appeal tribunal the claimant did not suffer any accident, injury or disease at all beyond the original injury to his leg on 25 January 2001. It was submitted that the most cogent and persuasive evidence was that of Mr Henry, effectively that what happened was within the range of possible outcomes of a complicated fracture properly treated. Thus, it could be argued that, regardless of the fact that a payment was made in settlement of the claim for negligence against the Trust, there was in fact no accident, injury or disease in consequence of which a compensation payment was made within section 1(1)(a) of the 1997 Act. A less ambitious argument, but leading to the same ultimate result, would be more in line with the express arguments by the claimant's solicitors. This would be that, regarding the claimant's injury on 25 January 2001 as a previous injury and the effects of his medical treatment as the accident, injury or disease in consequence of which the compensation payment was made, all the incapacity benefit and DLA awarded down to March 2005, or at least for a very substantial period, would have been paid as a result of the previous injury alone and so should not be recovered, in accordance with section 1(1)(b).
22. In my judgment, neither form of argument works. The key has to be identifying whether the payment of £50,000 gross by the Trust was paid in consequence of an accident, injury or disease. Mr Commissioner Rowland has already commented on the oddity of that phrase in paragraph 7 of R(CR) 4/03, where he noted that injury and disease are usually regarded as conditions suffered by a person in consequence of an accident or process. But section 3 of the 1997 Act, in defining the starting date of the "relevant period" by reference to the day on which an accident or injury occurred, seems to assume that a specific date can be identified. In my view, where a claim is made for compensation for personal injuries and a payment is made in settlement of that claim without there being anything to identify any specific elements making up the global payment, one must look to the claim as the primary factor in identifying what the payment was made in consequence of. Here, the claim was made in respect of the adverse physical effects on the claimant from 1 August 2001 onwards, said to have been caused by the negligence of the surgeon in the carrying out of the operation of 30 January 2001 and of other employees of the Trust in not taking reasonable steps after that operation to get the deformity corrected. That was the claim that was still in being when the settlement was agreed. The evidence before the appeal tribunal did not show that the claim had been limited in any way by that date (as opposed to the claimant's advisers having changed their views about the likely extent of any successful outcome or the Trust's advisers apparently having accepted an element of breach of duty in failing to take reasonable steps to get the deformity corrected after the operation of 30 January 2001). Nor, in the light of the Trust's refusal to say what it regarded the sum of £50,000 as made up of, was there any evidence that the payment was made otherwise than in consequence of the claim as then still in being. The word "injury" is wide enough to include those adverse physical effects on the claimant and is not in my judgment limited to an identification of particular acts or omissions that caused injury.
23. Then it does not particularly matter for the purposes of section 1(1)(a) whether as a matter of objective analysis those adverse physical effects can eventually be said to have resulted from the original injury, within the range of possible outcomes with proper treatment, or from treatment that was in some way outside acceptable limits or in breach of a duty of care. The fact is that a claim was made in respect of those physical effects alleging negligence on behalf of the Trust and the payment was made by the Trust in settlement of that claim. That is enough to bring the circumstances of the present case within section 1(1)(a). Thus the first form of the argument for the claimant does not work.
24. Nor does the second form of the argument work, for essentially the same reasons. The approach above makes it impossible to say that the claimant's incapacity benefit and DLA was not paid in respect of the injury in consequence of which the compensation payment was made. That injury took the form of the adverse physical effects on the claimant during the period from 1 August 2001 and the benefits were plainly paid in respect of those adverse physical effects. But in order to apply the principles mentioned in paragraph 20 above, it must be asked whether there was another cause of the payment of those benefits, in the present case a "previous injury". Then in so far as the claimant would still have been paid incapacity benefit or DLA even if the relevant injury had not occurred, the benefits could not be recovered. For this purpose, it is necessary, in the state of the evidence in the present case, to adopt an approach consistent with that in the claim still in being when the settlement was reached. In paragraph 16 of decision R(CR) 2/03, Mr Commissioner Rowland said that an appeal tribunal should be slow to accept an argument advanced by a compensator that was inconsistent with a section 8 deduction that it had made, unless agreed by the claimant. He also said there that an appeal tribunal should be slow to accept an argument advanced by a claimant that was inconsistent with the basis on which compensation was obtained or benefits claimed. I respectfully agree. In general, a claimant cannot complain too much or at all, when he has received compensation in settlement of a claim that a compensator has negligently caused his injuries from a particular date, if the question of recovery of benefits paid to him is determined on the same basis.
25. Thus the basis on which the appeal tribunal needed to operate in asking whether any of the benefits included in the certificate of recoverable benefits would have been paid even if the relevant injury had not occurred was the claim that the claimant would not have been suffering any adverse physical effects as a result of his injury of 25 January 2001 after about six months if it had not been for the medical treatment he received from the Trust. It was therefore plainly wrong for benefits paid before 1 August 2001 to have been brought into account in the certificate. That being the earliest date identified in the claim, the compensation payment cannot be regarded as having been made in consequence of any injury suffered before that date.
26. The question arises whether it was open to the appeal tribunal of 17 February 2006 to adopt the date of 29 October 2001 instead, on the basis that because of the complexity of the original fracture it would normally have taken nine months for the claimant to recover to pre-injury condition. On one view, I need not answer that question, because if the appeal tribunal were wrong that would not be a good reason for allowing an appeal by the claimant, rather than by the Secretary of State. But I think that making that change was within the area of judgment allowed to the appeal tribunal in determining the exact limits of the claim and of the payment in settlement. The claimant's solicitors started the claim from 1 August 2001 on the basis of Mr Gibson's opinion that with proper treatment with claimant would have recovered within six months. In the conference with counsel on 7 July 2005, Mr Gibson amended his opinion of the period before the claimant would have been capable of work to six to 12 months, perhaps taking account of the possible effects of the claimant's heavy smoking in the past. Although the Trust would not have known of that change of opinion, I consider that the appeal tribunal was entitled to take the view that the reality of the claim that was actually being pressed at the date of settlement was for the period starting about nine months after the date of the original injury.
27. Accordingly I conclude that the appeal tribunal's decision was not erroneous in point of law. The essential disallowance of the claimant's appeal against the certificate of recoverable benefits, subject to the small change in the dates, was correct in law. The appeal tribunal's explanation was brief, but adequate. In saying that the compensation was paid for the claimant's medical treatment not proceeding to recovery as swiftly as would normally be expected, the appeal tribunal was in my view fundamentally making the same point as I have made at greater length in paragraph 24 above. The compensation was paid for the adverse effects of the claimant's condition subject to the medical treatment he received. There was no breach of the principles of natural justice.
28. The claimant's appeal to the Commissioner must therefore be dismissed.

(Signed) J Mesher

Commissioner

Date: 21 March 2007