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CIB/712/2006

 

This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.

http://www.osscsc.gov.uk/aspx/view.aspx?id=1998

CIB/712/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER




1. This is an appeal brought with my leave from a decision of the Neath Appeal Tribunal given on 4 November 2005 dismissing the claimant’s appeal from the decision of a decision maker issued on 15 November 2004 superseding an earlier decision awarding incapacity benefit to the claimant on the ground that she could no longer be treated as incapable of work. For the reasons given below, this appeal is dismissed.

2. The claimant, who was born in 1978, had previously been examined for the personal capability assessment on 1 July 2003 when she had been diagnosed with post natal low back pain. On that occasion an EMP considered that the claimant scored 3 points on each of the sitting, rising from sitting, bending or kneeling, standing, walking and stairs descriptors. This gave a score of 15 points using only one of the walking and stairs scores. That assessment was presumably accepted by a decision maker at that time.

3. The EMP had expressed the view that the post natal low back pain should improve over the following 12 months.

4. In July 2004 the claimant completed a further form IB50, describing herself as having low back pain (sciatica). Her description of the way her back pain affected her ability to perform the descriptors indicated that she could do significantly less than she was found by the EMP to be capable of doing in July 2003. Her GP reported that there had been no significant change since 24 July 2003 (file, p.4A). By letter dated 19 November 2004 (p.1A), the GP wrote confirming the evidence the claimant had given in her claim form, but at the same time indicating that, at least by the date of the letter, her ability to perform the descriptors were slightly greater than she had indicated in the claim form.

5. This letter followed a further examination by an EMP on 26 October 2004, who found that the claimant scored only 3 points on the personal capability assessment. That report was adopted by the decision maker who superseded the award of incapacity benefit.

6. The claimant’s appeal first came before a tribunal on 3 March 2005, when her appeal was dismissed. On 30 August 2005, I allowed the claimant’s appeal from that decision and remitted her case to a new tribunal.

7. In my decision on that occasion, I indicated that the claimant may wish to seek further evidence from her GP explaining what tests he had carried out, why the painkillers used by her were only moderate, why there had been no further investigations or follow up given the view he had formed as to the way the pain affected her, whether he agreed or disagreed with the new EMP report that some of the pain displayed by the claimant was inappropriate, and if inappropriate whether it was nevertheless genuine. It would appear that further evidence was sought and a further letter from the claimant’s GP was submitted in evidence before the new tribunal. This indicated that an X-ray on 1 July 2003 showed that the disc spaces were well maintained as was alignment, that painkillers were moderate “because they helped to ease her pain”, that no further investigations were deemed relevant, and that everyone had a different pain threshold but in his opinion the claimant’s pain was genuine.

8. The claimant attended the new tribunal hearing and gave evidence. The new tribunal accepted that her pain was genuine, and gave her the same scores on the descriptors as the original EMP had done in 2003 except that it awarded no points for sitting. This resulted in a score of 12 points, which was below the 15 points required for a finding that the claimant was incapable of work.

9. The tribunal concluded that the claimant most of the time suffered from chronic moderate low back pain with periods of exacerbation when the pain was severe and radiated into her left buttock and left leg. There was an element of exaggeration in her account and although the limitations claimed by the claimant might apply during periods of exacerbation, most of the time her limitations were less than claimed. The tribunal concluded that the claimant suffered periods of exacerbation for between one and two days a week.

10. The statement of reasons raised two issues which the tribunal found raised difficulties. It had some difficulty understanding how a tribunal was to consider the expertise of an EMP in the area of pain, but proceeded on the basis that all EMP’s are trained in the application of the personal capability assessment and the assessment of pain was part of that training. In my judgment, that approach is correct, although it is always necessary to bear in mind that the fact that a person has been trained in a particular area does not mean that his or her assessment or diagnosis is necessarily correct. There are many reasons why the opinion evidence of an expert witness, such as an EMP, may not be accepted. For example, it may be based on a misunderstanding of the claimant’s condition, it may be based on ideas which have been discredited or it may be based on a misunderstanding of what has been learned during training. There may also be areas which are in truth outside the expertise of the EMP.

11. The representative of the secretary of state on this appeal has helpfully directed me to the Incapacity Benefit Handbook for Approved Doctors, which is published on the internet by the DWP, and has provided me with extracts from it relating to variable and fluctuating conditions. The foreword to the Handbook makes it clear that this is not the only training which an EMP receives. However, I am unable to find anything in the Handbook which deals with the question whether alleged pain is appropriate or inappropriate or how to determine whether it is genuine. While I have no doubt that medical practitioners generally receive training in this, it does not follow that every medical practitioner is familiar with modern theories of pain and its causes, or that training as to this is provided to EMP’s. It does not seem to me that expertise in that limited area should be assumed without evidence. I agree with what was said by Mr. Commissioner Jacobs in CDLA/902/2004, at paragraphs 14-15:


“14. Medical experts on pain no longer believe that there is a direct and proportionate relationship between (a) a disease or injury and (b) the nature and level of pain that a person experiences. This is reflected in the definition of pain by the International Association for the Study of Pain:
‘An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.’
15. Now that those medical professionals who are expert in pain do not recognise a direct link between clinical findings and pain, it is no longer rational for tribunals to reason simply from the clinical findings on examination to the level of pain that a claimant experiences. Tribunals must investigate the evidence of the claimant’s pain and explain how they have dealt with it. As there is no direct causal link between disease or injury and pain, the only direct evidence of pain can come from the claimant. This raises potential difficulties.
16. An immediate problem, for both claimants and tribunals, is that of language. There is a large vocabulary of pain. The McGill pain questionnaire contains a detailed analysis of that vocabulary. It divides the aspects of the language of pain into three:
• sensory, which describes the sensation itself – e.g. shooting or stabbing;
• affective, which describes the effect of the pain on the patient – e.g. sickening or blinding;
• evaluative, which describes the extent to which the patient is suffering – e.g. distressing or unbearable.
It then provides 66 different words to describe those three aspects of the experience of pain. The words assigned to each aspect of pain are then subdivided into categories, each of which can be scaled for intensity.

17. However, claimants may not have that full range of words in their useable vocabulary. Nor may they have the imagination or command of language to deploy to its best effect the vocabulary that they do use. In order to convey accurately to a tribunal the pain that they experience, most claimants will need help from a representative or the tribunal. That help must come in the form of questioning that is designed to enable the claimants to give the fullest and best account possible of their pain.
18. When the evidence has been obtained, it has to be evaluated and interpreted. This can be more difficult than obtaining the evidence. A claimant may say something like: ‘Every step I take is agony.’ Tribunals often reject such evidence as incredible or as inconsistent with the fact that the claimant does not use painkillers or has not been referred to a specialist or a pain clinic. This approach takes the evidence at face value. A better approach is to try to get beyond the language used to what that language conveys. This may reveal evidence that is both credible and reliable. Take the example I have just given. ‘Agony’ may be used comparatively with the claimant’s experience of pain. It may convey that the pain is beyond the claimant’s previous experience of pain in its intensity, its nature, its duration or its effect in restricting activity. It is possible that the language will also convey, and contain, the claimant’s reaction to the pain and to the resulting disablement.
19. This does not mean that the tribunal has to accept the claimant’s evidence. Even when analysed as I have suggested, it may still be unreliable or incredible. It may even be dishonest. What I am saying is this. If pain is an issue, the tribunal must obtain the best evidence that it can of that pain and its effect on the claimant, and it must then interpret that evidence realistically. Only then, is the tribunal in a position to decide whether or not to accept it.
20. In deciding whether to accept the claimant’s evidence of pain, the tribunal must consider the whole of the evidence relevant to the claimant’s disablement.”
12. Mr. Commissioner Jacobs then went on to consider the range of evidence that might be relevant including evidence of the activities undertaken by the claimant, the claimant’s medication, other treatments or referrals, actual and considered, informal observation of the claimant’s functional ability and activities and the opinions of EMP’s.

13. In the present case, the tribunal rejected the view of the EMP that the claimant’s pain was inappropriate, which it took to mean that the EMP considered that the pain was not genuine. It found that the pain was genuine, but, taking into account all the evidence, it assessed the level of pain as moderate except during periods of exacerbation. I can find no error of law in that approach.

14. In CIB/1648/2005, I had noted the finding of the previous tribunal that the claimant’s condition was aggravated by sitting, standing and walking, and I stated that I was unclear whether that tribunal had considered the question of the extent to which the claimant could perform each of the descriptors with reasonable regularity. The statement of reasons for the decision of the new tribunal stated that the tribunal had difficulty in applying the concept of reasonable regularity to the activities of sitting, standing and walking. It pointed out that these activities had descriptors offering a wide range of times and distances and were unlike activities over a very short time span, such as those involving the upper limbs, rising or bending and kneeling. The tribunal did not find that sitting, standing and walking exacerbated the claimant’s condition, but from a common sense point of view, the pain was likely to increase the more an activity was performed.

15. The tribunal found that the claimant could sit for more than one hour but not for more than 2 hours without having to move from the chair, that she could stand for more than 10 minutes but not for more than 30 minutes before having to move around, and that she could walk more than 200 metres but not more than 400 metres without stopping or severe discomfort. It is plain that one is not looking to see if, for example, a claimant who has just sat for over an hour before having to rise can within a few minutes sit down again for another hour and then another one. A claimant who has just left a chair because the pain has made it impossible to continue sitting cannot be expected to do so again without an opportunity for the pain to go, and should not be regarded as unable to sit for more than an hour just because the activity cannot immediately be repeated.

16. The personal capability assessment is a general assessment of the way in which a claimant can perform the stated activities in the course of a typical day. The question of reasonable regularity is to be determined not by considering simply the frequency with which a person can perform a particular activity, but by asking whether normally, in the course of an ordinary day, taking into account other activities, a person would generally be capable of performing that activity. The regularity relates to the regularity with which the claimant could perform the activity if asked to do so in the normal way. He or she is likely to be expected to rise, stand for a few minutes, use stairs, or bend and kneel more frequently in a normal day that he or she might be expected to walk 800 metres or stand or sit for two hours. It is a matter for the judgment of the tribunal whether a claimant could reasonably be said to be capable in general of performing the activity.

17. It is self-evident that if pain prevents one from continuing to sit or stand, the descriptor cannot require that the activity should immediately be repeated several times. The use of the expression “reasonable regularity” by Commissioners in their decisions is simply to explain that the test is not whether an activity can be carried out once regardless of the consequences for the rest of the day or longer, but whether overall, and in the context of carrying out the other activities of which he is capable, and of carrying out the descriptor in question as he might reasonably be expected to, a person is generally able to perform the descriptor in question. In my judgment, this was also the approach of Mr. Commissioner Howell in CIB/13161/1996 and CIB/13508/2006 to which the claimant’s representative has referred me.

18. In view of the finding by the present tribunal that sitting, standing and walking did not aggravate the claimant’s condition but that she would only suffer the increasing pain or discomfort which ultimately was required by the descriptor to cause her to rise, move around or stop walking, it is clear that the tribunal found nothing to indicate that, except during the periods of exacerbation to which it referred, he claimant could not perform those descriptors.

19. I therefore conclude that there was no error of law in this aspect of the tribunal’s decision, and that, despite the tribunal’s own doubts, it did not err in law.

20. With regard to the first of the specific points raised on the claimant’s application for leave to appeal, I did not direct in my previous decision that the tribunal should make specific findings of fact in relation to each descriptor. Indeed, I stated in paragraph 17 of that decision that it was not necessary to do so, except insofar as the general findings left any issue unexplained or inadequately explained. I then indicated that it would be the safer course for the new tribunal to make specific findings on the rehearing in relation to each of the descriptors in issue. That did not mean that it was an error of law not to do so, only that it was a precaution to reduce the risk of it being contended that the tribunal failed to give adequate reasons for its decision.

21. It is true that the tribunal did not spell out in detail the reasons for its conclusions in relation to each descriptor, but it is clear from its finding that the claimant had most of the time only moderate back pain, meant that it did not consider that, most of the time, the claimant’s activities were as restricted as she claimed. There was no suggestion that she needed more than moderate painkillers and no further follow up or treatment was considered necessary by her GP (tribunal decision, paragraph 10). It seems to me that the tribunal was entitled to conclude that her back pain, although chronic, was only moderate. The tribunal also concluded that performing the descriptors chosen by them would not exacerbate her condition, and it would follow that its impact on her ability to perform the descriptors would not be as great as she claimed. I am satisfied that the tribunal made adequate findings of facts.

22. It is then said that the tribunal failed to give adequate reasons for its decision in that it had not explained why walking would not aggravate the claimant’s condition, particularly under the concept of reasonable regularity. Reference is made to the EMP’s assessment that back pain is aggravated by sitting, standing and walking”. It is said that the tribunal failed to explain its conclusion that the claimant could walk 400 metres without exacerbating her condition. Similar submissions are made in relation to sitting.

23. In my judgment, the tribunal clearly explained that it accepted that the claimant’s back pain would be made worse by these activities and this ground of appeal is based on a confusion by the claimant’s representative between “aggravation” in the sense of an increase in pain and “exacerbation” in the sense of the problem being made worse not just while carrying out the activity but afterwards. Not all lower back pain gets worse as a result of walking 200-400 metres, but the tribunal found that the claimant’s back pain did get worse at some point between those distances (not at 400 metres as the representative suggests) to the extent that she would have to stop or suffer severe discomfort. That did not mean that she could not repeat the exercise, except during periods of exacerbation, in a normal way. The same point applies to the standing and sitting descriptors.

24. The statement in the application for leave to appeal that the tribunal accepted that the claimant suffered from genuine pain to the sciatic nerve is incorrect. It accepted that her pain was genuine, but there is no finding that this was due to any problem with her sciatic nerve. Indeed, the finding was that the pain was confined to her back except during the periods of exacerbation when the pain was severe and radiated into her left buttock and leg.

25. Contrary to the submissions in the application for leave to appeal, there was no finding by the tribunal that the claimant had no difficulties with sitting for up to 2 hours. The finding was that she could sit for more than one hour before having to move from the chair because the degree of discomfort made it impossible to continue sitting. While that is longer than her GP, who estimated 30 minutes, I can find nothing perverse in a finding that a person with moderate back pain can sit for more than an hour before the pain makes it impossible to continue sitting.

26. I also reject the submissions by the claimant’s representative that tribunal relied too heavily on the EMP’s report and dismissed other evidence too readily. The tribunal did not accept everything in the EMP’s report and in particular, unlike the EMP, accepted that the claimant’s pain was genuine. I can find nothing in the statement of reasons to suggest any error of law, and I dismiss the appeal.



(signed on the original) Michael Mark
Deputy Commissioner
23 June 2006