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Neutral Citation Number:
Reported Number:	R(I)2/06
File Number:	CI 535 2005
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	27/04/2006
Date Added:	23/05/2006
Main Category:	Industrial diseases
Main Subcategory:	A11 (vibration white finger)
Secondary Category:
Secondary Subcategory:
Notes:	Prescribed disease A11 Vibration White Finger - assessment of disablement The appeals were brought on behalf of former underground coal miners who were exposed to vibration from their work tools. Each had been found to suffer from vibration white finger, a prescribed disease for the purposes of industrial injuries disablement benefit (IIDB). Each contended that in his case the percentage disablement awarded by the appeal tribunal was too low, because the tribunal’s approach to the issue of percentage disablement resulting from this condition was wrong in law. There is no prescribed degree of disablement set out in Schedule 2 to the Social Security (General Benefits) Regulations 1982, but regulation 11(8) of those Regulations requires the Secretary of State or an appeal tribunal to have such regard as may be appropriate to the prescribed degrees of disablement set out in that Schedule. A Tribunal of Commissioners was directed to consider the correct approach to assessment of disablement in such cases. Held, formally allowing the appeal in CI/535/2005 and dismissing the appeal in CI/1814/2005, that: 1. in an exercise of judgment and evaluation such as is involved in the assessment in percentage terms of an individual claimant’s degree of functional disablement, there is inevitably a band within which an assessment would be reasonable, and the reasons why a particular percentage has been arrived at rather than a point or two higher or lower may be impossible to state with exact precision. In the present cases the tribunals had given adequate reasons by setting out the factual basis upon which the assessment had been made; namely what disabilities were taken into account by the tribunal in concluding that a particular percentage disablement was appropriate (paragraphs 44 to 51); 2. it was clear that the tribunal in each case had (following R(I) 3/02) correctly taken into account, and reflected in its percentage assessment, all relevant sensorineural aspects of the claimant’s vibration-induced hand condition, and not just those involved in the episodes of blanching (paragraphs 52 to 55); 3. the advice in CI/2553/2001 to have proper regard to judicial guidelines on assessment of damages did no more than direct the tribunal to take into account certain specific criteria referred to in those guidelines, namely the length and severity of the claimant’s attacks and symptoms, the extent and/or severity and/or rapidity of deterioration of his condition, and his age and prognosis. Such matters can be taken into account on the assessment of a person’s functional disablement without any express reference to the judicial guidelines. It was clear that both tribunals had taken these matters into account (paragraphs 56 to 58); 4. there was no objective clinical diagnostic test for PD A11, and the Stockholm scale for measurement of sensorineural symptoms did not focus on the measurement of functional disability, so that there was no inconsistency between the tribunal’s acceptance of medical reports containing evidence of those measurements and the levels of functional disablement actually found to exist when that and all the other evidence about the practical loss of functional ability suffered by each claimant was considered and taken together (paragraphs 59 to 63); 5. the claimants’ contentions against the percentage assessments of disablement therefore failed, although the Commissioners formally allowed the appeal in CI/535/2005 to the extent of varying the tribunal decision on the statutory “date of onset” of the disease and the related start of the disablement assessment period, to accord with the requirements of the legislation as explained in R(I) 5/04 (paragraphs 64 to 66); 6. questions of assessment of an individual’s percentage level of functional disablement are primarily matters of factual judgment entrusted by the legislation to the specialist tribunals best qualified to decide them and it would be contrary to the intent of the legislation to attempt to construct a scale, or to set recommended or suggested percentage levels of assessment of disability from prescribed disease A11 or from any other prescribed disease where the legislation itself does not do so (paragraphs 67 to 78).
Decision(s) to Download:	R(I) 2-06 bv.doc