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Neutral Citation Number:	2011 UKUT 294 AAC
Reported Number:
File Number:	CI 2407 2010
Appellant:	JL
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	20/07/2011
Date Added:	13/09/2011
Main Category:	Industrial diseases
Main Subcategory:	other A diseases (physical agents)
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 15. Industrial disease – prescribed disease A14 (osteoarthritis of the knee in coal miners) –replacement of affected knee by artificial joint Osteoarthritis of the knee was prescribed as industrial disease A14 in respect of certain categories of coal-miner with effect from 13 July 2009. The claimants in the two appeals both made claims shortly after that date for industrial injuries disablement benefit in respect of loss of faculty resulting from that disease. Both had had operations replacing all or part of their knee joints with artificial joints some considerable time after contracting the disease but before the disease was prescribed. In both cases the decision-maker assessed disablement from 13 July 2009 on the basis that the claimants had the prescribed disease at that date. Both claimants appealed against their assessments and in both cases the First-tier Tribunal took the view that it was not possible to have osteoarthritis in an artificial joint. As a result the tribunal in the case of total replacement decided that the claimant did not have the disease and the tribunal in the case of partial replacement decided that loss of faculty in the unreplaced part of the knee only was to be considered. Both claimants appealed to the Upper Tribunal. It was common ground at that stage that the First-tier Tribunal’s approach had been wrong in law. The Upper Tribunal judge received medical evidence that there is usually some residual lower limb impairment following knee replacement surgery. Held, allowing the appeals, that: 1. applying section 103 of the Social Security Contributions and Benefits Act, the question to be determined was whether the claimant suffered from loss of physical or mental faculty and then whether that loss of faculty was as the result of the relevant disease. Therefore both tribunals had gone wrong in looking for a current medical diagnosis of osteoarthritis at the date of decision, rather than focusing on the loss of faculty and then asking what had caused it (paragraphs 15 to 17); 2. subject to the evidence in any particular case, it would not in general be appropriate to regard knee replacement operations which go ahead without complications as breaking the chain of causation between the original osteoarthritis and such loss of faculty as a claimant may continue to experience. In the present cases there was no evidence on which a tribunal could properly conclude that the chain of causation was broken (paragraphs 18 and 19); 3. it was at the stage of assessment of the degree of disablement that any improvement in lower limb function resulting from replacement of the knee joint fell to be taken into account and the possibility of an assessment of disablement above 0 per cent was not excluded merely because a claimant’s knees had been replaced; rather, the matter fell to be considered on a case-by-case basis (paragraph 21); 4. in both the present cases there was sufficient doubt about the basis for the First-tier Tribunal’s assessments for the cases to be remitted to a differently constituted tribunal for rehearing (paragraphs 24 to 26).
Decision(s) to Download:	[2012] AACR 15bv.doc [2012] AACR 15ws.doc