OUR REF: LGR 79/2/294
DATE: 17 JUNE 1998
356 INDEX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)
THE LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)
1. I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted on behalf of Mrs XXX under regulation J5 of the 1995 regulations against the decision of XXX ("the council") that she is not entitled to payment of an annual injury allowance under regulation L3 of the 1986 regulations.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 24 October 1995, 15 January 1996 (incorrectly dated 1995), 17 May and 22 June, 3 August and 14 September, 22 October, 22 November and 18 December 1996, 25 October and 5 November, 5 December 1997, a facsimile of 13 March 1998; to Mrs XXX's letters of 22 October 1996, 12 April and 5 December ; to the council's letters of 27 March and 22 July 1996, 23 September and 29 November 1996, 4 and 7 November 1997, 4 March 1998; to Dr XXX's letters of 14 January 1996 (incorrectly dated 1995), 1 December 1997; to the Benefits Agency facsimile's of 12 May and 3 June 1997; and to all the copy correspondence enclosed with those letters.
3. The question for determination is whether when Mr XXX ceased to hold employment with the council as a result of a permanent incapacity, it was caused by an injury sustained as a result of anything she was required to do in carrying out her work, so as to entitle her to payment of an injury allowance.
4. From the evidence submitted the following facts have been established:
(a) Mr XXX is aged 63;
(b) she commenced employment with the council as a School Secretary from 1971;
(c) she alleges that in November 1992 during the course of her work she developed pain to the right side of her neck. The condition progressed to her shoulder, arm and hand on her right side, including wrist and fingers during the proceeding ten months;
(d) on 16 September 1993 at her own request she was examined by Dr XXX, the council’s Occupational Health Physician, who advised Mr XXX to commence a period of sickness absence;
(e) Mr XXX was again examined by Dr XXX on 14 October, 24 November, and on 23 December 1993, at which time Dr XXX recommended that Mr XXX retire on the grounds of permanent ill-health due to work-related Upper Limb Disorder;
(f) on 27 March 1994 she applied for an injury allowance which was subsequently refused by the council;
(g) on 20 May 1994 Mr XXX retired from her employment due to ill-health; and
(h) on 24 October 1995 you appealed to the Secretary of State against the decision of the council not to award Mr XXX an annual injury allowance.
5. You maintain that Mr XXX’s duties at XXX School caused her upper limb disorder and this led to her enforced early retirement on ill-health grounds. The council do not accept that Mr XXX's duties at XXX School have been proven to be the cause of her permanent incapacity. They also maintain that Mr XXX's own actions may have contributed to her medical condition.
6. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mr XXX’s rights under the regulations, as fell to be decided in the first instance by the council. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.
7. The relevant provisions of the 1986 regulations which deal with the question of awarding an annual injury allowance are as follows:
"L2.- (1)...... this Part applies to a person employed in a relevant employment if he -
(a) sustains an injury, or
(b) contracts a disease
as a result of anything he was required to do in carrying out his work.
L3.- (1) If as a result of an incapacity which is likely to be permanent caused by the injury or disease a person to whom this Part applies ceases to be employed in a relevant employment (.....), he shall be entitled to an annual allowance.
(2) The allowance is to be paid by the relevant body and is to be of such amount as a body may from time to time determine.
8. To assist the Secretary of State reach a conclusion, Mr XXX underwent an Independent Medical Examination (IME) on 6 January 1997 by Mr Mr XXX, Consultant Orthopaedic Surgeon.
9. In his report, copies of which were sent to both the parties, Mr Mr XXX felt that the global weakness of Mr XXX’s arm, glove and stocking type hyperaesthesia from the shoulder downwards did not fit with usual patterns of neurology. He commented that this sort of presentation really falls into the category of abnormal pain behaviour and he felt that there was a distinct functional psychological overlay. Mr XXX expressed the view that Mr XXX’s emotional and psychological state clearly had a bearing on her physical presentation. He maintained that given the nature and severity of Mr XXX’s reported symptoms he did not feel that she could have carried out efficiently the duties set out in the job description, and he accepted that her condition was permanent. But because Mr XXX’s presentation did not fall into the usual recognised pathological patterns, Mr XXX felt unable to give an exact diagnosis and he commented that this has been a recurring theme in the investigation of Mr XXX’s symptoms over the years. He concluded that he was far from convinced that her secretarial duties were the causative factor of her symptoms but certainly her posture may have been an aggravating feature. He suggested obtaining a psychology assessment.
10. Both parties were subsequently invited to present psychological evidence on Mr XXX’s medical condition. Mr XXX provided further evidence from Dr XXX, her GP, dated 1 December 1997, and from Ms Mr XXX, Chartered Psychologist, dated 24 November 1997. The gist of Ms Mr XXX’ evidence is that Mr XXX has suffered a normal and not obsessive depressive reaction to particular difficult episodes in her life, that she is resilient and able to cope, but has a similar personality type to others who have fallen ill with RSI which may make her vulnerable to exploitation and overwork.
11. The council indicated their intention to submit psychological evidence on Mr XXX, this being dependent on an independent psychological assessment. However, after two unsuccessful approaches to consultants by the council you requested the Secretary of State to determine Mr XXX’s appeal on the evidence currently before him. The Secretary of State considers that if an appellant will not agree to an examination on behalf of the council he may not fairly be able to determine the question; however, in the circumstances of this case he considers that further psychological evidence is unlikely to assist him in reaching a proper conclusion, and that he is able to do so on the basis of the medical evidence now available.
12. The Secretary of State has carefully considered all the medical evidence. He notes that all parties accept that Mr XXX was suffering from a permanent incapacity which resulted in her termination of employment. The issue in contention which he has to resolve is whether this incapacity was caused by an injury sustained or a disease contracted as a result of anything Mr XXX was required to do in carrying out her duties.
13. Concerning the medical evidence up to and including the IME, on the one hand there is the evidence of Dr XXX, the Council’s Occupational Health Physician, Dr Mr XXX, Consultant Physician, and Dr XXX, Mr XXX’s GP. Mr XXX’ view (Autumn 1993) was that Mr XXX was undoubtedly suffering from work-related upper limb disorder directly attributable to her work on display screen equipment. Dr Mr XXX found (August 1994), among other things, that she was suffering from cramp of the right hand, and he quoted Department of Social Security documentation on Industrial Injuries Disablement Benefit to the effect that cramp of the hand or forearm due to repetitive movements is a prescribed occupational disease which can occur in a job involving long periods of eg typing, and occurs in eg typists; it is presumed to be due to the nature of the occupation unless there is evidence to the contrary. He considered there were features of Mr XXX’s work which made development of the condition more likely and he thought it was more likely than not related to her occupation. Dr XXX (January 1996) considered that Mr XXX was suffering from persistent pain in the right side of her neck, shoulder and upper limb with some stiffness and weakness and had no doubt that injuries suffered or disease contracted in November 1992 were the only effective cause. In addition the Secretary of State notes a comment by the Council’s Acting Head of Environmental Health (October 1993) that “the typical RSI conditions were well-established”, and various Industrial Injuries Disablement Benefits assessments by the Department of Social Security referring to prescribed disease A4 having caused an impaired function of Mr XXX’s right arm.
14. It is noted that the council have produced no medical evidence to dispute these contentions, but do not accept that Mr XXX’s duties have been proven to be the cause of her condition and suggest that her own actions may have contributed to it.
15. On the other hand, there is the evidence of Mr XXX, the independent medical examiner. His conclusions are summarised above, but in short he was not convinced that Mr XXX’s permanent incapacity was caused by her secretarial duties, although it may have been aggravated by her posture. He was unable to give an exact diagnosis of her condition but suggested that it might have a psychological basis.
16. The psychological evidence provided by Ms Mr XXX, Chartered Psychologist, on behalf of Mr XXX, is summarised above. Dr XXX has also commented to the effect that Mr XXX’s condition was genuine and physical and the main cause was her employment involving computer and keyboard work.
17. Although the council were invited to give psychological evidence, the Secretary of State accepts that through no fault of their own they have been unable to undertake a recent psychological assessment of Mr XXX. They have however been afforded the opportunity to comment on the evidence provided on behalf of Mr XXX. The Secretary of State notes that the council felt it was difficult to comment on the psychological evidence presented by Mr XXX, but he also notes that they did not, either in the medical processes which led up to Mr XXX’s early retirement or during the presentation of their case, suggest that the problems causing her permanent incapacity were psychological ones.
18. The Secretary of State notes Mr Mr XXX’s view that “work-related upper limb disorder” is not a pathological diagnosis but a descriptive term for the way a patient has presented, and his doubts about causation. However, taking all the medical evidence into account, the Secretary of State is satisfied that Mr XXX is suffering from a permanently incapacitating condition and he believes that the weight of the medical evidence indicates that, on the balance of probability, it is more likely than not both that her condition was caused by an injury within the meaning of the regulations and that the injury was caused by her secretarial duties. The Secretary of State notes the council’s contention that Mr XXX’s own actions in relation to her duties and workplace may have contributed to her condition. This does not, under the terms of regulations L2 and L3(1), affect the entitlement to an injury allowance although the council may decide to take it into account under regulation L3(6) in determining the amount of such an allowance.
19. The Secretary of State accordingly concludes that Mr XXX is entitled to an annual injury allowance under regulation L3 from the time she ceased her employment on 20 May 1994.
20. The Secretary of State determines as set out above and allows the appeal.
21. A copy of this letter has been sent to the council.
22. The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it unless instructed to by a judgement of the High Court. Because of this, officials may not discuss the matter further.
23. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).