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Neutral Citation Number:	2012 UKUT 208 AAC
Reported Number:
File Number:	CI 3316 2011
Appellant:	GV
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	20/06/2012
Date Added:	25/07/2012
Main Category:	Industrial diseases
Main Subcategory:	other A diseases (physical agents)
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 3. Prescribed disease A14 (osteoarthritis of the knee) – coal miners – definition of osteoarthritis of the knee – whether includes kneecap The appellant was a 62-year-old man who worked as a coal miner between 1974 and 1986. On 15 October 2009 he claimed industrial disablement benefit for prescribed disease (PD) A14 (osteoarthritis of the knee). He said on his claim form that he had started having problems with his knees in 1980. On 19 May 2010 a doctor examined the appellant on behalf of the Department for Work and Pensions (DWP) and diagnosed PD A14 but recorded the loss of faculty from 1 January 1995 (not 1980). On 28 July 2010 a DWP decision-maker assessed the resulting disablement at two per cent, on the basis of the doctor’s report, and so no benefit was payable. The appellant appealed and submitted medical records from January 2009 including an x-ray report from August 2009. On 15 August 2011 at the First-tier Tribunal (F-tT) hearing the appellant was warned that he might be unable to establish a causal connection between his occupation and the onset of the arthritis, given the 23-year gap between them. The appellant confirmed that the problems with his knee started in the 1980s, that he had first received medical treatment in 2009 and that the condition had worsened in recent years. The F-tT dismissed the appellant’s appeal and issued a revised decision in place of the Secretary of State’s. It accepted the appellant suffered from osteoarthritis but decided that the conditions for receiving benefit were not satisfied as in its view there was no causal connection between his occupation and the onset of the osteoarthritis. The appellant applied for permission to appeal to the Upper Tribunal (UT) on two grounds, namely that (1) he had not been clearly told he would need to produce evidence of the link between his former occupation and his condition and (2) the date of onset was earlier than the original award. (He provided documentary evidence from a former colleague.) A UT judge gave the appellant permission to appeal and identified two further issues for consideration: (3) whether the F-tT had ensured that the appellant had properly understood the significance of the warning; and (4) whether bilateral patella-femoral osteoarthritis (as identified in the x ray report) could fall within the definition of the knee for the purposes of PD A14. Held, allowing the appeal, that: 1. the F-tT erred in law because it had failed to explain adequately its decision not to accept the appellant’s evidence that his knee problems started in 1980, including what it made of that account and what significance, if any, was to be attached to it. Diagnosis of PD A14 is difficult for a variety of reasons, including the long latency period for its development, but this failure by the F-tT undermined its conclusion and demonstrates the importance of taking a full occupational and social history in such cases (paragraphs 18 to 23); 2. the question of whether the appellant’s osteoarthritis of the knee was caused by other factors than his former work was a brand new point which the appellant was not expecting. It is unclear what opportunity he was given to consider the implications of the tribunal’s warning and an adjournment should be offered in appropriate cases. This is because it provides an appellant with a meaningful opportunity to meet the changed nature of the case. In this case the appellant subsequently obtained further evidence from a former supervisor, who might be a witness, so providing further grounds for the need to offer an adjournment (paragraphs 24 to 28); 3. the meaning of the statutory expression “osteoarthritis of the knee” appears unambiguous in the absence of any further definition or clarification within the regulations and/or case law. It does not define the site as being within the knee but means any osteoarthritis of the knee. If it was intended to exclude those claimants with patella-femoral osteoarthritis then those responsible for drafting the legislation could have said so. They did not. Therefore, there was a further error of law by the F-tT as it appears to have assumed it was only the early osteoarthritis of the lateral compartment of the knee which was relevant to the diagnosis of PD A14 (paragraphs 29 to 37). The case was remitted to a different tribunal, subject to the judge’s directions.
Decision(s) to Download:	CI 3316 2011-00.doc [2013] AACR 3ws.doc