Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CAF/2735/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal disallows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Birmingham on 19 March 2014 under references AFCS/00472/2013 did not involve any error on a material point of law and is not set aside.

 

 

Representation: Glyn Tucker of the Royal British Legion for the appellant

 

Colin Thomann (instructed by Treasury Solicitors) for the respondent

 

 

REASONS FOR DECISION

 

Introduction

1.                   This appeal raises one central issue, namely what is meant by the word “persistent” in the statutory context of Item 27 of Table 2 in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the “AFCS Order 2011”).  The full Description of injury and its effects in Item 27 of Table 2 is:

 

“Non-freezing cold injury with persistent local neuropathic pain and severe compromise of mobility or dexterity, and evidence of permanent damage to small nerves on thermal threshold testing.”

 

 

This carries a tariff level of 10. The lower the tariff number the higher the level of award made under the AFCS Order 2011, and its predecessor. The tribunal found the appellant only satisfied Item 55 with a (lower award) tariff level of 13.

Background

 

2.                  By a review decision dated 17 July 2011 the Secretary of State placed the appellant’s claimed condition of “cold injury to hands and feet” in Item 55 of Table 2 in Schedule 3 to the AFCS Order 2011. The wording of Item 65 is:

 

“Non-freezing cold which has caused or is expected to cause neuropathic pain and significant functional limitation or restriction at 26 weeks, with substantial recovery beyond that date.” 

 

 

Item 55 carries a tariff level of 13.

 

3.                  The initial decision, made on 20 December 2010, had placed the claimed condition within Item 66 of Table 2 in Schedule 4 to the Order in place before the AFCS Order 2011.  That Item 66 covered “Cold injury which has caused….symptoms and significant functional limitation and restriction at 6 weeks, with substantial recovery beyond that date”.  The only other ‘cold injury’ recognised in that table was “Cold injury with persisting symptoms and significant functional limitation and restriction”.  Item 65 of Table 2 in Schedule 3 to the AFCS Order 2011 replicates the “6 weeks” descriptor that was under Item 66 of Table 2 in the previous Order.  It carries a tariff level of 14.  The “6 weeks”, “26 weeks” and “persistent” descriptors are the only ‘Items’ in Table 2 dealing with non-freezing cold injuries. 

 

4.                  As noted, the decision following review had accepted that the appellant’s non-freezing cold injury had caused neuropathic pain and significant functional limitation or restriction at 26 weeks rather than just 6 weeks, but with substantial recovery beyond that 26 week date.  It was accepted that the injury arose when the appellant was on military exercises in Germany in March 2008 and that the injury was caused by service after 6 April 2005. None of this is disputed.  The review decision noted that as both the appellant’s hands and his feet had been affected, and evidence including out patient records from November 2010 confirmed he was having symptoms in both his hands and feet beyond 26 weeks, two awards at tariff level 13 (under Item 55) were appropriate. The review decision, however, rejected a claim that the appellant’s cold injury to his hands and feet gave rise to an award under Item 27. The reasons for Item 27 not applying were stated in the  notice of the review decision to be as follows:

 

“In order for a higher tariff to be awarded it would have to be accepted there has been severe compromise of mobility or dexterity and evidence of permanent damage to small nerves on thermal threshold testing. Out Patient Records dated 15 July 2009 and 2 December 2010 show you are fit to deploy to Afghanistan or to warm counties only, it cannot be accepted that the criteria for the higher tariff to be awarded has been met.”  

 

The terms of the review decision on page 5 make it clear that Item 27 was found not to apply because “it cannot be accepted that that there has been a severe compromise of [the appellant’s] mobility”.  

5.                  The appellant in written argument on his appeal against this review decision, in a letter dated 26 July 2013, stated, inter alia, that he did suffer persistent pain and problems and was still so suffering in July 2013, and that he suffered pain in his hands and feet even at times in the summer months and especially in the transition from summer to winter (and vice versa). He did not address how his mobility had been affected directly but he did refer to a posting to Canada for four months from August 2012 to the end of November 2012. The appellant said that on his return he went for his last appointment and “it was a bad result making my injury worsened and getting back on pain killers”. He attached to his letter the “Medical Risk Assessment conducted”.  A number of documents were attached to this letter. The only document dating after his return from Canada is an Out Patient Record dated 28 November 2012.  This records:

 

“This 33yr old Cpl was reviewed today regarding his non-freezing cold injuries to his hands and feet. Since last seen in December 2011, he has completed 3 months in Canada.  He did find the occasionally got cold, but was able to go back indoors to rewarm. He does get the occasional niggle of pain in his feet during the winter months.”

The Plan in the Clinical Notes to this document set out, inter alia, that he was unfit to deploy to Afghanistan or Norway in winters, unless working indoors; he was fit to work outdoors when warm and dry; he was to be excused parades and outdoors PT on cold days, especially if the parades were to last longer than 15 minutes; and that he may need to take amitryptyline during the winter months for pain.

 

6.                  In response, the Secretary of State obtained the appellant’s up to date patient summaries and relied on what he called an out patient record dated 17 December 2012  (in fact it appears to be a referral for a grading confirmation), which said:

 

“[The appellant’s] initial symptoms were loss of sensation, pain and cold sensitivity which was managed with full issue of cold weather kit, regular foot spas and staying in warm environments. He does require amitriptyline for neuropathic in the winter, although he is normally pain free during the summer months. His most recent review at INM recorded some improvement in his condition although he still has mild-moderate cold sensitivity and it was the recommendation of Prof Oakley that he still be excused outdoor activities in the cold.” 

 

The grading then provided was that the appellant was someone whose duties should remain within the confines of designated main operating bases. However, it found, inter alia, in terms of his functional capacity on operations that he was able to run 100 metres, walk 3.2 kilometres carrying 15kg, and stand for 2 hours “in PPE with weapon”. Such deployment carried medium risks of worsening of his condition and his needing primary care, but a low risk of incapacitation: though all deployments were to be in summer or warm weather only and he was unfit for exercises in winter or cold weather.

7.                  Although acknowledging that the appellant may not have recovered fully from his injuries, the Secretary of State argued on this evidence that the award made on review remained correct and compensated the appellant for an injury from which he had made a substantial recovery. He also argued that based on the available evidence and the lack of evidence of “permanent damage to small nerves on thermal threshold testing”, the review award was still appropriate. 

 

8.                 The appeal was heard and decided by the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) in Birmingham on 19 March 2014 (“the tribunal”). The appeal was dismissed.  The tribunal accepted that the appellant had nerve damage on thermal threshold testing in relation to his feet but not his hands and therefore could not meet Item 27 in respect of his hands on the basis of thermal threshold testing. The decision in respect of hands was not disputed before me. Although compressed, the reasoning here must be referring to the closing part of Item 27 and the need for evidence of “permanent damage to small nerves on thermal threshold testing

 

9.                  Given the tribunal’s apparent acceptance that the appellant had evidenced by way of thermal threshold testing permanent damage to the small nerves in his feet (or at least one of them), it must have dismissed the appeal in respect of Item 27 applying to his feet either in respect of severe compromise of his mobility (which was the basis of the adverse part of the review decision under appeal) or because the neuropathic pain in the feet was not persistent, or both. Unfortunately, it is not entirely clear from the tribunal’s reasoning whether it found that the appellant did not meet either of these conditions. It clearly found, however,  that he did not meet the “persistent” test, because it said:

 

“A requirement of Item 27 is that the neuropathic pain is persistent. Both the medical notes and the appellant’s evidence is that the pain is seasonal and only affects the appellant in cold weather.  The Oxford Dictionary definition of persistent is “enduring, constant and repeating”. The tribunal finds that the appellant’s pain is neither enduring nor constant as the appellant can for several months [be] without pain. This is not to suggest that the pain is not debilitating or that it has a significant affect of (sic) the appellant’s lifestyle and career.” 

 

As the terms of Item 27 are cumulative, whether the appellant’s mobility was severely compromised[1], and more importantly whether the tribunal properly addressed this issue, will only become a material consideration if it erred materially in its approach to what I have termed the persistent test.

10.              What is meant by ‘persistent’ neuropathic pain was the reason Judge Bano gave permission to appeal, and the arguments have rightly focused on that issue. In giving directions on the appeal I asked “Does ‘persistent’ in this context mean enduring and constant or does it mean repeated or continuing to exist over a prolonged period? A person may on one analysis be said to have a persistent headache or persistent toothache but does that necessarily require the ache to be constant?”.

 

The respective arguments

 

11.               The Secretary of State referred to the view of the High Court in The Ramblers Association –v Coventry City Council [2008] EWHC 796 (Admin) that the word persistent is “an ordinary English word, commonly understood to mean “continuing or recurring; prolonged”, that does not require further definition”. That was in the context of considering the pre-condition “the existence of the highway is facilitating the persistent commission of criminal offences or antisocial behaviour” in section 129A(3)(b) of the Highways Act 1980 to a highway authorities making a “gating order” over a highway. The Secretary of State referred to the Oxford English Dictionary (2^nd edn, 1989) definition of persistent in respect of a condition as meaning “continued, continuous, constant; constantly repeated”, and to the view the Divisional Court in In re D. (Adoption by Parent) [1973] Fam. 209 that the adverb “persistently” in section 5(2) of the Adoption Act 1958 tended toward, or meant, in the particular statutory context with which it was concerned a quality of permanence.

12.              He further argued that in the context of neuropathic pain a distinction had to be drawn between “persistent” and “intermittent”, and the tribunal had been correct in finding the appellant’s neuropathic pain was not enduring and therefore not persistent as it was not present for a large part of the year.  The Secretary of State also drew attention to the use of the “persistent” elsewhere in Schedule 3 to the AFCS Order 2011 – for example, Item 4 in Table 6 in Schedule 3 “Brain injury with persistent vegetative state” – and argued that the word in this context plainly did not connote a recurring, intermittent injury.

 

13.              The appellant’s submission helpfully referred to the oft cited view of Lord Upjohn in Customs and Excise Commissioners –v- Top Ten Promotions [1969] 1 WLR 1163, at 1171 that:

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.”

14.              The appellant argued that the tribunal had misconstrued the scope of the word persistent.  Its formulation of the Item 27 wording had misplaced the comma by not placing it after the word “dexterity” and had missed out the “and” between “persistent neuropathic pain” and “severe compromise of mobility”, the effect of which, so the appellant argued, was that the tribunal had erred in not applying “persistent” also to “severe compromise of mobility”.  The appellant further argued that in the context of Table 2 the seriousness of all other injuries which may have varying effects over time were graded either by set intervals for substantial recovery or by the word “permanent”.  Reference was made to injury to abdomen and the increasing awards made from “substantial recovery within 26 weeks” (Item 67), “substantial recovery beyond [26 weeks]” (Item 56) and “injury…causing permanent significant functional limitation or restriction” (Item 19).  Based on this, the appellant argued that it was only non-freezing injuries that are qualified by the word “persistent” at the highest level tariff and it was clear that the word had been used in Item 27 to allow the common sequelae of non-freezing cold injuries to be taken into account whereas “permanent” would not.

 

Discussion and conclusion

 

15.               I broadly accept the arguments made by the Secretary of State and reject those made on behalf of the appellant. In my judgment, on the evidence before it the tribunal did not err in law in concluding that the appellant’s neuropathic pain was not persistent. It is therefore unnecessary to consider whether the appeal ought also to have failed on the ground that the appellant’s mobility was not severely compromised.

 

16.              I find the appellant’s construction of the wording of Item 27 and what in it the word persistent qualifies difficult; nor do I really understand why it was an argument that benefited him or why it was necessary for him to make it.   I can see that it makes perfect grammatical sense to read Item 27 as saying that the non-freezing cold injury carries with it two effects: first, persistent neuropathic pain; second, severe compromise of mobility. Moreover, qualifying the compromise of mobility with two adjectives is grammatically at least clumsy – persistent severe compromise of mobility – and it is difficult to identify what the word persistent would necessarily add or take away from an assessment of whether a person’s mobility is severely compromised. I observe also that it was no part of Judge Rowland’s decision in KA -v-SSD (AFCS) [2015] UKUT 337 (AAC) that the phrase “severe compromise of mobility” in Item 27 was qualified by the word “persistent”. On the other hand, absent such qualification it may be difficult to identify the period, if any, over which the mobility needs to be severely compromised, and the appellant’s reading would be more consistent with highest awarding non-freezing cold injury descriptor under the AFCS Order 2005.  However I deciding this point is not necessary in order to resolve this appeal because even on the appellant’s case the word “persistent” still qualifies “neuropathic pain” and its meaning must still be ascertained.  

 

17.               I also do not find determinative, or of much assistance, the argument made by the appellant about the word persistent being used instead of the word permanent so as to enable the sequelae of non-freezing cold injuries to be taken into account. This still leaves substantially unanswered what is meant by persistent and, more particularly, whether it covered the facts of the appellant’s case.  I do accept, however, that it must mean something other than, and less than, “permanent”.  On an overall reading of Table 2, and Schedule 3 more generally, it is apparent that the word permanent is used quite often and so could have been used instead of persistent. Indeed, it is used in the closing clause of Item 27 itself in respect of permanent damage to small nerves. Furthermore, and to pick up on one strand of the Secretary of State’s argument, it used to be the case that in terms of medicine and brain function the phrase “persistent vegetative state” was used in contradistinction to, and in respect of a slightly less serious condition, to “permanent vegetative state”; though this does not diminish the force of the argument that persistent does not mean intermittent[2].

 

18.              A difficulty in analysing the respective arguments and in trying to understand how the three non-freezing cold injury descriptors in Table 2 are to be construed is the lack of any detailed findings of fact made by the tribunal as to the onset of the injury and how it then progressed.  That perhaps is not a substantial criticism because the tribunal’s focus on the appeal before it was on whether Item 27 was met and not whether or how the appellant met Item 55. On the other hand if the distinction between these two descriptors, even in the broadest sense, is that the neuropathic pain continues after 26 weeks, then an understanding of how the pain remained in place up to 26 weeks but with a substantial recovery thereafter (both, presumably, in respect of the pain and the functional limitation) may well have informed the issues arising under Item 27. 

 

19.              Following on from this, I simply observe - though I emphasise that this is not a matter for decision by me - that it is not immediately obvious why the review decision found Item 55 satisfied in place of what had become Item 65 in Table 2, Schedule 3 to the AFCS Order 2011. I say this because the critical relevant test under both descriptors in this case was the injury causing neuropathic pain (and significant functional restriction) at 6 or 26 weeks (as the decisions were made more than two years after the date of the injury in March 2008 and therefore it was not a question of using foresight to decide the expected consequences of the injury).  The calculation of time for these purposes runs from the date of the injury: per article 5(4) of the AFCS Order 2011. Given the appellant suffered the non-freezing cold injury on or about 23 March 2008, six weeks forward from that date was 4 May 2008 and 26 weeks forward was 21 September 2008. However, a medical record complied by Dr Oakley on 8 July 2008 said this:

 

“Thank you for referring the Lance Corporal, who gives a clear history of sustaining non-freezing cold injury to his hands and feet when on his MPC in very cold and snowy conditions in Germany in March 2008.  He suffered 3 weeks of pain in his feet, and surprisingly was not given amitriptyline…..However his pain resolved spontaneously and since then he says that his hands and feet have been much better, with only the occasional bout of pain in them.”

 

 

It may be unfair to view this report in isolation, but on its face it is difficult to see the basis on which it evidences pain at, or expected to be at, 26 weeks (or even pain at 6 weeks), let alone significant functional limitation or restriction on, or expected to be on,  either of these dates[3].  And even by the time Dr Oakley say the appellant again on 19 January 2009 the only point recorded about pain was that the appellant was suffering from pain in his feet in bed on one or two nights a week, and by 24 November 2009 Dr Oakley was stated that the appellant “remains pain free and coping quite well”.

20.             It is perhaps instructive to note the legal and factual basis for the original decision dated 20 December 2010. This was made under Table 2 in Schedule 4 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the “AFCS Order 2005”). This Order only had two descriptors dealing with non-freezing cold injuries. I have set out their terms in paragraph 3 above. Neither dealt expressly with neuropathic pain (though presumably that may have fallen under “symptoms”), there was no reference to evidence of permanent damage to small nerves, and both were concerned only with significant limitation and restriction. (Quite why this “and” became an “or” in the AFCS Order 2011 is unclear, nor is it clear what difference it makes  or was intended to make.) Taking the two descriptors together it seems at least tolerably clear that the persisting symptoms and significant functional limitation and restriction under the then Item 62 were intended to cover symptoms and functional limitation and restriction in place after 6 weeks and where there had been no substantial recovery.

 

21.              I have traversed a little of the evidence relevant to the appellant above. The basis for the original decision was a medical officer’s report dated 4 August 2010 and a commanding officer’s report returned to the SPVA on 25 August 2010.  The latter was the officer’s reply to a question asking him to confirm that the injury occurred and how it had done so. The reply was that the incident had occurred before the officer was in post but his understanding was that it had occurred in January 2008 and that on presenting for medical advice the appellant was diagnosed as suffering from a cold weather injury.  The officer added that he could confirm that the appellant’s medical status in August 2010 listed him as suffering from this condition.  The medical report noted that the appellant first attended for the claimed condition of “cold injury hands and feet” on 31 March 2008, that he was still attending for the condition in August 2010, that treatment was still continuing and that the functional limitation or restriction persisted “beyond 26 weeks”.  The report described the significant limitation or restriction  (it is an “or” which is used by the SPVA in the report form) as “some pain and numbness in feet when cold”.

 

22.             The original decision maker’s decision based on this evidence  was that only the Item 66 test of “Cold injury which has caused….symptoms and significant functional limitation and restriction at 6 weeks, with substantial recovery beyond that date” was met and not the higher award test of “Cold injury with persisting symptoms and significant functional limitation and restriction”. It was stated that this was because “the [medical officer’s] report confirms that the claimant suffered from cold injury to both hands and feet, that this persisted beyond 26 weeks and that he still has pain and numbness when it is cold”. I confess not really to understand why that evidence did not satisfy the then higher awarding descriptor and only the lower awarding descriptor. It is not obvious what the substantial recovery was on this evidence.  The answer may be that the decision maker was not satisfied there was significant limitation or restriction after 6 weeks, though that is not stated. In addition, it is difficult to necessarily square the evidence the original decision maker relied on with the more contemporaneous evidence I have touched on in paragraph 19 above.

23.             Returning then to review decision under appeal and the AFCS Order 2011, in my judgment the correct starting point is that the word “persistent” is an ordinary English word. Seeking to define it further can lead to linguistic tail-chasing: per Top Ten Promotions above.  However it is also the case, as can be seen from the caselaw and the dictionary definition given above, that even in common or ordinary usage the word has shades of meaning.  For example, the third edition of the Shorter Oxford English Dictionary defines it as meaning, variously, “enduring” and, as above, “constantly repeated”. Those shades of common meaning, however, in my judgment shade more towards a sense or quality of permanence rather than an intermittent or sporadically recurring condition.

 

24.             The statutory context is also obviously important, and I touch on some features of that context below.  In the end, however, I find nothing in that context that drives away from the neuropathic pain needing be constantly repeated, enduring, or continually recurring; all of which I consider in this context usefully define, or are synonyms of, the word “persistent”. In other words, and despite some difficulty in identifying how the three non-freezing cold injury conditions in Table 2 fit together, I can find no convincing reason for the word not to carry that ordinary meaning in this statutory context. Nor, importantly, can I find any error of law in the way the tribunal applied that meaning to the facts of this case. 

 

25.              I should add that I found little to assist in trying to argue by way of analogy with the non-freezing cold injury descriptors in Table 2 of Schedule 4 to the  AFCS Order 2005. Not the least of the considerations here is that the language used in Table 2 in the AFCS Order 2011 is different and, as tool of statutory construction, must be assumed to have chosen so deliberately.

 

26.             In terms of Items 65 and 55, the increasing severity of the non-freezing cold injury condition is marked in terms of time, with significant functional limitation or restriction for 6 or 26 weeks and substantial recovery beyond these dates.  However, the fact that in one sense there may not have been substantial recovery after six months (for example, because the condition can return and lead to significant functional limitation in cold conditions for a couple of months in the winter), does not mean that Item 55 does not apply and Item 27 must apply. This is because for Item 27 to apply the non-freezing cold injury needs to carry with it persistent local neuropathic pain and severe compromise of mobility, and evidence of permanent damage to small nerves on thermal image testing. The underlined words are separate and cumulative conditions (i.e. all three have to be satisfied), none of which appear Items 55 or 65, or, I may add, in the descriptors for non-freezing cold injuries in the AFCS Order 2005.

 

27.              Whether or not a “substantial recovery” in this context means a non-freezing cold injury presenting after 26 weeks which falls short of one or more of the three conditions in Item 27, I do not need to resolve for the purposes of this appeal.  It would certainly seem possible on one analysis of the statutory scheme that a person who continues to have neuropathic pain and significant functional limitation after 26 weeks might be said not to meet Item 55 (because of no substantial recovery beyond 26 weeks), but also not meet Item 27 because either the pain is not persistent or local, or there is no severe compromise of mobility[4], or no evidence of permanent damage to the small nerves on thermal threshold testing.  There may, therefore, be an incongruity in the statutory scheme in this respect.  However this is not a matter I need to resolve because:

 

(a) The appellant was awarded under Item 55 and this is not disputed, nor is it before me, and I am satisfied that the tribunal was entitled on the facts to find that the appellant did not have persistent neuropathic pain ;

 

(b) the search for congruity, or understanding the reasons behind why it may not apply, between Items 55 and 27 in Table 2 does not cast any clear or decisive light on what is meant by “persistent”, nor does it indicate in my view that the core ordinary meaning which I have set out above ought not to be applied.  Even if “persistent” is intended to include neuropathic pain occurring after 26 weeks, that cannot be a complete or sufficient answer, in my judgment, because the pain may only occur for another six months or not occur again for six months and then only for two weeks, neither of which in my judgment would mean it was “persistent” (and even if, per KA, severe compromise of mobility need only mean a continuation of the significant functional limitation in place before 26 weeks). I therefore do not consider there is an easy read across such that a non-freezing cold injury which does not substantially recover after 26 weeks falls automatically within Item 27 in Table 2.

 

28.             I can see the force of Judge Rowland’s concern in KA about those with long-term disablement perhaps not qualifying under Item 27 even when their limitations continue after 26 weeks. In the end, however, that concern may need to yield to the statutory language even if it may restrict those with long-term disablement from qualifying.  To take the most obvious example, a person will not qualify under Item 27 even if their mobility is significantly limited or severely compromised and the neuropathic pain is persistent if there is no evidence of permanent damage to small nerves on thermal threshold testing.  Even if as  matter of medical fact one is unlikely to have the first two conditions and not the third, as a matter of law the third is a separate condition that must be established before an award can be made pursuant to Item 27.

29.             Further, it is important to apply the words of the statutory test and not a proxy for it.  I say this because on one analysis it may be said that the appellant’s non-freezing cold injury did not “go away” after 26 weeks and so the condition may be said to remain after that time because it can recur when exposed to cold. Cold sensitivity is recognised as a matter that can affect people who have suffered a cold injury in the past. However, the relevant part of statutory test is not “Non-freezing cold injury with local neuropathic pain when exposed to the cold”, nor is it “Non-freezing cold injury continuing after 26 weeks”.  The relevant part of the test requires more and an answer to the question “Does the appellant have persistent local neuropathic pain?”. Whether that test applies after or before 26 weeks from the injury may need to be resolved in another case, but on either analysis that issue is irrelevant here as I am satisfied that the tribunal was entitled to rationally find on the evidence that the appellant’s non-freezing cold injury to his feet was not accompanied by persistent neuropathic pain, in the sense of pain that was enduring or constantly recurring.  Indeed, given that the appellant was effectively pain free for most of the year, it very arguably would have been  irrational if the tribunal had found that pain for a couple of months in the winter amounted to persistent pain.

 

30.             In short, it was not whether the appellant’s medical condition persisted but whether the effects of that condition were such that he had persistent neuropathic pain. The tribunal were entitled to find on the evidence – indeed ought to have found on that evidence - that the appellant did not, that finding was decisive against Item 27 applying, and therefore the tribunal committed no material error of law in dismissing the appeal.

 

31.              I should add that – per Judge Rowland in KA – I can find nothing in equivalent  descriptors at the same tariff  figure of 10 that suggest the above reading of “persistent” unfairly excludes the appellant from a tariff 10 award.  For example, the Item 26 covers “Complex injury covering all of most of the foot” which in terms of functionality needs to cause “permanent significant functional limitation or restriction”.  Even reading “permanent” with its article 5(7)(a) qualification, the appellant’s condition, although it has not in one sense gone away, is not equivalent in terms of severity of function to Item 26. This comparison therefore provides no basis for his condition qualifying under Item 27.

32.             For information, I set out below the recommendations in the third report of the Independent Medical Experts Group published in March of this year. Those recommendations even if made into law and incorporated by way of amendment into Table 2 in Schedule 3 to the AFCS Order 2011 could not of course affect the decision under appeal to me as the tribunal had to apply the version of Table 2 in force as at the date of the review decision in June 2011. 

 

“Recommended descriptors

25. The recommended scope, format and elements for the three new descriptors are:

1) to cover both acute NFCI which resolves by 12 weeks, and acute NFCI with symptoms persisting after 12 weeks, but with recovery at 26 weeks:

• acute NFCI with resolution of symptoms and signs within 26 weeks of symptom onset

2) for chronic NFCI with persistent cold sensitivity:

• acute NFCI progressing to chronic NFCI at 12 weeks of symptom  onset with persistent cold sensitivity beyond 26 weeks.

3) for chronic NFCI with persistent cold sensitivity, neuropathic pain and severe functional limitation of feet or hands or both:

• acute NFCI progressing to chronic NFCI within 12 weeks of symptom onset with verified small fibre neuropathy, persistent cold sensitivity, neuropathic pain and severe functional limitation or restriction beyond 26 weeks.

 

26. Recommended revised AFCS descriptors

 

Item 65 Level 14

Non-freezing cold injury which has caused pain in the feet or hands or both, with functional limitation or restriction at 6 weeks and substantial recovery by 12 weeks. Continuing cold sensitivity may be

present beyond 12 weeks.

 

Item 55 Level 13

Non-freezing cold injury which has caused neuropathic pain in the feet or hands or both, with significant functional limitation or restriction at 26 weeks and substantial recovery beyond that time.

Continuing cold sensitivity may be present beyond 26 weeks.

 

Item 27 Level 9

Non-freezing cold injury in feet or hands or both, with small fibre neuropathy diagnosed clinically and by appropriate tests with continuing neuropathic pain beyond 26 weeks, and severely compromised mobility and, or dexterity.

 

 

 Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 26^th June 2015