- The decision of the Disablement Benefit Appeal Tribunal dated 11 September 2001 is erroneous in law. I set that decision aside and, as powered by Section 14(8)(a)(i) of the Social Security Act 1998, I give the decision which the tribunal should have given which is:-
The decision of the adjudication officer awarding Disablement Benefit from and including 13 September 1993 for life does not fall to be superseded on the grounds of change of circumstances.
- The claimant appeals, with the leave of the chairman, against the tribunal's confirmation of the Secretary of State's decision maker's determination that the claimant is not entitled to Disablement Benefit because the Prescribed Disease D12 has not been diagnosed.
- The claimant is a retired miner who at the time of the Secretary of State's decision maker's determination was aged 75. On 29 April 1994 an adjudicating medical authority diagnosed D12 in the claimant and assessed the disabling effects of that disease at 70%. The assessment was from 13 September 1993 for life. An adjudication officer awarded Disablement Benefit at the rate appropriate to a 70% assessment for the period of the assessment.
- At the date at which D12 was diagnosed in the claimant the prescription of the disease in schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 was:-
"Except in the circumstances specified in Regulation 2(d),
(a) chronic bronchitis; or
(b) emphysema; or
(c) both
where there is accompanying evidence of
(i) coal dust retention demonstrated by a chest radiograph to at least the level of Category 1 in the International Labour Office's Publication 'The Classification of Radiographs of Pneumoconiosis' Revised Edition 1980, 8th Impression 1992 published at Geneva; and
(ii) a forced expiratory volume in one second at least one metre below the mean value predicted in accordance with 'Lung Function: Assessment and Application in Medicine' by J. E. Cotes, 4th Edition 1979 published at Oxford by Blackwell Scientific Publications Limited (ISBN 0-632-00033-3) for a person of the claimant's age, height and sex, measured from the position of maximum inspiration with the claimant making maximum effort.".
On 5 April 1997 that prescription was amended by the deletion of the reference to coal dust retention demonstrated by chest radiograph and the addition of a forced expiratory volume (FEV1) less than 1 litre as an alternative to 1 litre drop in FEV1 from the predicted as the indicator for diagnosis.
- On 4 August 2000 the claimant applied for his disablement assessment to be increased on the grounds that he had more difficulty with breathing and less mobility than he had when Disablement Benefit was awarded in 1994. He was examined on 27 November 2000 by a medical adviser of the Benefits Agency Medical Services who found that on that day the FEV1 was less than 1 litre. The medical adviser reported that, in view of that finding, PD D12 could no longer be diagnosed. In the light of that report a Secretary of State's decision maker decided that the claimant was no longer entitled to Disablement Benefit on account of PD D12. The tribunal which heard the claimant's appeal against that decision conducted its own spirometry and found that on the day of the tribunal hearing the drop in the claimant's FEV1 from the predicted level was less than 1 litre. The tribunal concluded that the claimant satisfied all the conditions for the diagnoses of PDD12 except the drop of 1 litre or more in his FEV1, or alternatively a FEV1 of less than a litre, and therefore since 27 November 2000 could no longer be diagnosed as suffering from the prescribed disease.
- The claimant appealed on the grounds that the tribunal, in dealing with a claim for supersession on the grounds of unforeseen aggravation, had erred in law by conducting spirometry to establish whether or not the claimant was still suffering from the prescribed diseased. The disease had been diagnosed in 1994 and the only issue before the tribunal was whether or not the level of disablement resulting from it had increased. That argument is correctly rejected by the Secretary of State's representative in a written submission of
14 March 2002. As is stated in that submission, the primary and subordinate legislation which provided for review of disablement assessment decisions on the grounds of unforeseen aggravation has been repealed and revoked and replaced with the provisions of the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which provide for supersession of decisions on the grounds of mistake or change of circumstances. There is nothing in the new legislation to limit the change in the circumstances on which supersession can be grounded to worsening of the claimant's disablement. However, it is also argued in that submission that the tribunal, by virtue of regulation 12(8) of the 1998 Act, was not entitled to take account of any circumstance not subsisting at the date of the decision under appeal to it. The tribunal had, therefore, in basing its decision on the spirometry which it conducted on 11 September 2001 erred in law. The spirometry conducted on 27 November 2000 by the medical adviser justified the conclusion that the claimant is not suffering from the prescribed diseased. The tribunal had made, therefore, the right decision but for the wrong reasons.
- Subject to what I say in paragraph 16 below I agree with the Secretary of State's representative's submission as to the effect of Section 12(8). The relevance of the spirometry conducted by the tribunal is to confirm the likelihood that the spirometry conducted by the medical adviser was accurate but the circumstance, established by the tribunal's spirometry, that on the date the tribunal hearing the drop in the claimant's FEV1 was less than 1 litre could not in itself be the basis of the tribunal's decision. If no other consideration had occurred to me I would simply have replaced the tribunal's decision with my own decision to the same effect. However, it seemed to me that the implication of the spirometric results obtained by the medical adviser and the tribunal and the adviser's and the tribunal's respective conclusions that PD D12 could no longer be diagnosed was that the claimant had recovered either from bronchitis or from emphysema or his lung function had improved to such an extent that he had recovered from PD D12. As that seemed to me to be improbable I directed an oral hearing in order to hear submissions from the Secretary of State's solicitor.
- I heard the appeal on 21 May 2002. The claimant, who is ill and elderly was not present but was represented by Mr N. Jones, Solicitor, who was instructed by the National Union of Mineworkers and accompanied by Mr K. Stanley of the Union. The Secretary of State was represented by Mr J. Heath of the Office of the Solicitor to the Secretary of State for Work and Pensions. I am grateful to Mr Jones and Mr Heath for their oral submissions.
- Mr Jones said that the tribunal's decision must be an error because emphysema does not get better. The claimant felt that his condition had worsened in the late 90s. He was re-assessed in December 2000. The examiner failed him on the FEV1 test and benefit was withdrawn. Mr Jones referred me to the general practitioner's evidence at page 42 of the appeal bundle. The general practitioner urged re-instatement of benefit. At page 43 the report by the consultant cardiologist contains the opinion that the reduction in the claimant's exercise tolerance to approximately 50 yards on the flat is caused by occupational lung disease rather than the ischaemic heart disease from which he also suffers. FEV1 testing produces a variety of results. In a recent litigation the test was regarded as invalid because the patient could not complete it.
- Mr Heath referred to the written submission for the Secretary of State. He did not wholly accept the submission writer's view that the tribunal had erred in basing its decision that PDD12 was not diagnosed from 27 November 2000 on the spirometry which it conducted on 11 September 2001. He thought that in saying that the Secretary of State's representative was forgetting that there is a difference between circumstances and evidence. The spirometry conducted by the tribunal was evidence. To enable Mr Heath to respond to the Commissioner's direction of 8 April 2002 the Secretary of State's representative had obtained written advice from Dr Peter Wright, Medical Policy Adviser in the Department of Works and Pensions. The advice, said Mr Heath, was highly technical and, therefore, he was producing it to me in its entirety. He read it aloud. The advice seemed to suggest, said
Mr Heath, that there was something wrong with the spirometry reading obtained on
13 April 1994. However, that could be said to be a theory and relating to a past event. It seemed to him, as a non-medical person, that the only weak point in the statement of the tribunal's reasons for its decision was in the last paragraph where it is said that an adjournment for further medical evidence would be of no benefit. Mr Jones had made the point that the spirometry conducted by the tribunal showed a drop in the FEV1 of only 0.17 of a litre but the tribunal accepted that the claimant was disabled. One might ask if the tribunal was justified in its decision not to adjourn.
- Mr Jones agreed with me that it seemed odd that the claimant's level of disablement would have changed even if the reason for it had changed. There was no question of the claimant not having emphysema and bronchitis. The difference is in the results of the spirometry. His point was that the spirometry was always likely to produce varying results and would never give a result the accuracy of which was guaranteed sufficiently to discharge the burden of proof required to justify a supersession of a diagnosis. On reflection, I would say that the probable explanation for assessment of disablement being reduced is that what is assessed is disablement attributable to prescribed disease. I assume that the new 10% assessment is the disablement attributable to pneumoconiosis. The emphysema and bronchitis without the prescribed reduction in lung function is not a prescribed disease and the disablement caused by it is not aggregable.
- I agree with Mr Heath that Dr Wright's explanation of the significance of the variations in the spirometry results obtained from time to time from the claimant is a very technical, matter. For that reason I have annexed a copy of the written advice to this decision. However, I understand Dr Wright to be saying that my questioning of the likelihood of an improvement in the claimant's condition was justified. I understand him to say that the limitation on a patient's lung airflow caused by chronic bronchitis and emphysema does not improve except when there is an improvement following an acute exacerbation of disease, when there is coincidental asthma or if there has been a successful excision from an otherwise normal lung of tissue affected by a localised severe emphysema. None of those circumstances applied, thought Dr Wright, in the claimant's case.
- Dr Wright notes that in the claimant's case the only spirometry results which fell within the qualifying limits were those obtained by a medical board on 13 April 1994. There are four later results obtained on dates ranging from 24 January 1997 to 11 September 2001, the last being the tribunal results, all of which are incompatible with a diagnosis of PD D12. There were therefore two questions:-
1) Is it ever possible for a spirometric result to be artificially and erroneously too high and
2) Must the results of 13 April 1994 be correct or might they misrepresent the actual breathing capacity of the claimant at that time by under-estimating it?
- Dr Wright says that the commonest cause of a spirometric under-estimation of a patient's airflow is insufficient effort by the patient in blowing into the machine. That can be detected by the direct observation of the patient during the test but in this case the doctor who conducted the test on 13 April 1994 made no comment as to the claimant's effort. The other indication of lack of effort on the part of the patient is the shape of the expiratory spirogram curve. If the patient is making an effort sufficient to produce an accurate reading the curve will rise quickly to its peak. Where the effort is insufficient the peak is delayed. In the claimant's case there is a 0.4 second period during which there is only a slight rise in the curve. A later result on 27 November 2000 shows a delay of 0.25 seconds in the curve's rise to its peak. On the test conducted on 11 September 2001 there is no such delay. The results which were obtained in the spirometry conducted after 13 April 1994 are all, in Dr Wright's opinion, exactly what would be expected in someone with moderate chronic bronchitis and emphysema. The significance of the spirometry results considered together is that those obtained on 13 April 1994 did not adequately the reflect the claimant's breathing capacity. There, therefore, does not need to have been an improvement in the claimant's lung conditions to explain the improved spirometric results.
- I accept Mr Heath's point that the written submission for the Secretary of State may over simplify the effect of Section 12(8) of the 1998 Act and that the tribunal was entitled to use the evidence represented by the spirometric results which it obtained as evidence tending to prove that the results obtained by the medical examiner and leading to the decision under appeal were a satisfactory indication of the claimant's lung function. However, the statement of the tribunal's reasons for its decision does not make it clear that that is how the tribunal arrived at its decision. It reads as if the tribunal based its decision on its own spirometry, as distinct from the examiner's spirometry as evidentially supported by that of the tribunal. That is an error in law on account of which the decision has to be set aside. A second error, to my mind is that, as suspected, by Mr Heath, the tribunal should not have rejected an adjournment for further medical evidence. I say that because of the improbability, which I think Dr Wright accepts, of a claimant recovering from a degree of emphysema or bronchitis amounting to PD D12 to the extent that the prescribed disease is no longer diagnosable. The improbability of such an improvement together with the improvement in the spirometric results in this case implies that, rather than there having been the change of circumstances on which the decision maker purported to base his supersession decision, the original diagnosis had been mistaken. That implication should have been investigated. The issues relevant to the investigation, and which should have been the subject of adjudication, are whether or not the spirometry conducted by the examiner in 1994 was a satisfactory basis for a diagnosis of PDD12 or was, as Dr Wright suggests, likely to have been inaccurate as evidenced by the delayed peaking in the flow curve and inconsistency of the results with the subsequent inconsistent spirometry. In assessing the evidential value of the subsequent spirometry it would have been necessary to take into account whether or not the claimant's lung function might have been enhanced by medication. In assessing disablement it is legitimate to base the assessment on what the claimant can do when he has taken medication but for the purposes of diagnosis it is the unassisted function which is relevant.
- Normally I would have disposed of a case like this by remitting it to a new tribunal to decide the question of whether or not there should be supersessesion of the awarding decision on the grounds of mistake rather than on the grounds of change of circumstances. However, I think that in this particular case it is better to leave it to the Secretary of State to consider whether or not he wishes to make a supersession decision on the grounds of mistake. If he does initiate a new supersession procedure which results in a decision adverse to the claimant the claimant will have his right of appeal: but by leaving any further procedure to the initiative of the Secretary of State I avoid a further tribunal hearing if the Secretary of State does not wish to make out a case for supersession on the grounds that the awarding decision was based on a mistaken reading of the spirometry.
- For the foregoing reasons the claimant's appeal succeeds and my decision is in paragraph 1 above.
(Signed) R J C Angus
Commissioner
(Date) 12 August 2002
ANNEXURE
To: Jo Finch From: Dr Peter Wright
ACIB Medical Policy Adviser
Room GS36 Room 632
Quarry House Adelphi
26 April 2002
William Roe – LM 82 49 76 A
- Thank you for sight of this case. There seem to be two issues; medical ones, which I shall discuss; and ones on what evidence may be considered in connection with a claim for unforeseen aggravation (change of circumstance), which I shall leave to you and legally qualified colleagues.
- I would agree with the Commissioner that the airflow limitation associated with chronic bronchitis and emphysema does not improve, with three exceptions:-
- Acute exacerbations of the disease may be accompanied by a transient worsening of airflow, which then improves, but:-
- The exacerbation would normally be obvious and characterised by
- Increased production of muco-purulent sputum;
- In general, any material change of airflow would be accompanied by obvious illness which would make it unlikely that a claimant would attend for benefit assessment;
- There might be coincidental asthma, but:-
- This would normally be obvious from the history; and
- Patients with chronic bronchitis and emphysema are treated for asthma anyway, as they generally gain some relief from such treatment;
- If there is localised, severe emphysema in an otherwise normal lung, excision of the diseased part may improve lung function, but this did not happen to
Mr Roe.
- In this case, the only set of spirometry results which fall within the limits to qualify Mr Roe for benefit are those of 13 April 1994. The file includes results obtained on 24 January 1997, 1 May 1997, 3 July 2000, 27 November 2000, and 11 September 2001 all of which are incompatible with the benefit of criteria. I therefore suggest that an alternative way of looking at this is to ask:-
• whether it is ever possible for a spirometric result to be artificially and erroneously too high; and
• whether the results of 13 April 1994 must be correct, or might not represent the actual breathing capacity at that time by under-estimating it.
- The answer to the first question is that erroneously high results are impossible unless the apparatus has not been calibrated properly, or breaks down between calibration and use. There is no reason to believe that either exceptional set of circumstances applied to any of the five disqualifying results.
- The answer to the second question is that it is quite possible for a spirometric result to be artificially low. Potential causes include:-
• Machine dysfunction, but the apparatus was calibrated on the day of use, and this is a rare cause of problems;
• Leakage of air so that the measurement was incomplete, but this is unlikely with the Vitalograph Alpha machine, and should have been obvious to the doctor who carried out the test; he made no comment on it;
• Less than maximal effort on the part of Mr Roe, by far the commonest cause, so the one to consider at some greater length.
- There are two ways to recognise insufficient effort by the test subject:-
• Direct observation of the subject during the test; the doctor made no comment on this one way or another in relation to Mr Roe;
• The shape of the expiratory spirogram curve, which is recorded on the Vitalograph Alpha print-outs in two ways;
• As flow versus volume (F/V)
• Such curves are available for the records of 13 April 1994, 27 November 2000 and 11 September 2001. An F/V curve alone is available for 3 July 2000.
- Flow normally rises quickly to a peak, and then falls away gradually. The recording of 13 April 1994 shows a delayed rise to peak flow, as shown by the slight increase over the first 0.4 seconds on the V/T curve, and the jagged rise of the F/V curve. The other curves are what would normally be expected, with no such delay and jagged rise. The main difference is therefore that the early part of expiration is 'missing' from the curve of 13 April 1994. This part of the curve is known as the 'effort dependent part' because the subject must co-operate to produce it; later parts of the curve reflect the elasticity of the chest wall and are independent of voluntary effort. In addition, the fastest flow rates are obtained when maximum expiration starts after maximum inspiration; if a maximum expiration starts after the chest has only been half inflated, lower flow rates will be produced.
- It is extremely difficult to control flow to the very slight rise that occurred during this 0.4 second period. It would be quite impossible to do so simply by use of the diaphragm and chest wall muscles. There must also have been some closure of the upper airway, by closing the vocal cords of the larynx. During this time, the chest deflated slightly so that, when expiratory flow eventually rose, it was inevitably to a lower peak than if peak flow had been achieved earlier. Whilst FEV1 was reduced to 53%, PEF was reduced even more to 48%. A similar but lesser effect is seen on
27 November 2000 with a delay of 0.25 seconds and FEV1 74%, PEF 64%; on
11 September 2001 there is no delay and FEV1 is 64% and PEF 60%.
- It is, of course, not possible to impute motivation from the curve. All that can be said is that the later readings are all exactly what would be expected in someone with moderate chronic bronchitis and emphysema. The tracings suggest that the initial effort dependent part of the expiration was not adequately measured, notably on
13 April 1994 when the result did not adequately reflect the breathing capacity.
- It is therefore not necessary to require improvement in Mr Roe's chronic bronchitis and emphysema to explain the difference in the spirometric results.
Peter Wright
Peter Wright Tel: (020) 7712 2323
GTN 391 + 22323
Fax: (020) 7712 2330
e-mail: [email protected]
