Social Security Medical Appeal Tribunal

Case number:

[2017]TRS006

 

 

Date:

23 Mar 2017

Held at:

The Jersey Tribunal Offices, Bath Street, St Helier

Before:

Deputy Chairman B.I. Le Marquand, Dr B. Kellett and Dr N. Charles

Nature of Claim:

Long Term Incapacity Allowance (LTIA)/Short Term Incapacity Allowance (STIA)

Hearing Type:

Social Security Medical Appeal

 

 

Appellant:

“F”

Respondent:

The Minister for Social Security

 

 

Background

1.        The Appellant has suffered from back pain for a number of years with the claim starting on 12th June 2008 and in later years making reference to lower limb pain and on 30th April 2014 the LTIA assessment in relation to this was increased to 30% with a further review date being set for 30th April 2016. On 24th November, 2015, a safe fell on to the Appellant's right leg, particularly on to his right knee and his back was also wrenched at the same time. Medical certificates were issued in relation to his right knee for the period 1st December 2015 to 3rd February 2016 and STIA was paid in relation to this for that period.  On 26th April 2016 a further assessment was made of his condition which led to a continuing assessment of 30% for LTIA in relation to mechanical low back pain and lower limb pain. In August 2016 the Appellant was operated on in relation to the condition of his right knee and his GPs then issued a number of medical certificates in relation to that operation and in relation to the recovery period. By a statement dated 10th August 2016 the Appellant confirmed that the claim under certificate number 593715 was not linked to his claim for LTIA. As a result of this STIA was paid to him for the period from 3rd August 2016 to 3rd November 2016. If it had been understood that there was a link to the LTIA claim then by virtue of a procedure which has been developed between the doctors on the medical boards and the Department it is likely that the LTIA award would have been increased for this period to 100%.

 

2.    When a further medical certificate was issued for the period up to 4th December 2016 the Social Security Department sought further information from the Appellant's GP upon the basis that this certificate related to knee pain which was part of the claim for LTIA. On 17th November 2016 the GP responded as follows:-

 

“End November 2015 – right knee injury when safe fell off wall on to knee. Seen in surgery 4/12/15 – referred to orthopaedics. Had MRI of knee March 2016 under orthopaedics. August 2016 arthroscopy of knee. Pain worse since arthroscopy, unable to stand for long periods. Difficult to sleep due to pain, sore to weight bear. Awaiting further orthopaedic appointment and possible further operation.

 

Subsequently, the Appellant's GP wrote a letter dated 11th January 2017 which stated that the Appellant:

 

“Sustained an injury to his right knee when a safe fell off the wall on to it whilst on holiday in Las Vegas. This knee injury and ongoing pain since his arthroscopy in August 2016 are separate to his long term back pain that he had been experiencing for a number of years. He is due to have pre op assessment under orthopaedics on 30 January 2017 before likely unicompartmental right knee replacement.”

 

3.    The matter was then referred to a Medical Board and the assessing doctor concerned responded on 2nd December 2016 that the claim for the period up to 4th December 2016 should not be paid as the Appellant had been on LTIA in relation to the knee condition, the assessment of which would take into account exacerbation. The Appellant was not happy with this decision which was notified to him by letter dated 5th December 2016. The matter was subsequently referred to a second medical board and the second assessing doctor concerned maintained the previous decision. There was an issue as to whether the knee condition had been worsened due to a fall but the second assessing doctor had not seen any evidence of this.

 

4.    The Appellant lodged his Notice of Appeal on 4th January 2017. The notice of appeal is expressed as being in relation to Long Term Incapacity Allowance – Medical Certificate for the period 31st October 2016 to 4th December 2016. Unfortunately, the Appellant appears to have misunderstood that the previous payments for the period up to November 3rd 2016 were made as STIA payments. To do justice to the Appellant the Tribunal has considered both the STIA aspect and the LTIA aspect of the case.

 

The Law

5.    The LTIA appeal was brought under Article 34B of the Social Security (Jersey) Law 1974 as amended, (the Law) the Tribunal having the power to confirm, reverse or vary the decision of the medical board (Article 34B (4)).

 It was noted that, whilst Article 34B (3) (a) prevented such an appeal within   2 years of a provisional assessment, this provision has ceased to apply to appeals. Such appeals proceed by virtue of the powers given to the Minister under Article 34C of the Law by way of reference to the Tribunal.

 

6.    The relevant provisions of the Social Security (Assessment of Long Term Incapacity) (Jersey) (Order) 2004 (the Order) are as follows:   Article 3 (1) (a) states that the incapacitation to be taken into account shall be the whole of the loss of faculty to which .. the claimant may be expected to be subject as compared with a person of the same age and sex whose physical and mental condition is normal and Article 3 (1) (b) states that the question whether or not any incapacitation involves loss of earning power or additional expense shall be immaterial.   

 

7.    Here are some relevant sections from the Social Security (Jersey) Law 1974 as amended;-

Article 15 Short term incapacity allowance

       (1) Subject to the provisions of this Law, a person who –

                    (a) is under pensionable age on any day for which benefit is claimed;

                   (b) is not entitled to a reduced old age pension under Article 25(1A); and

                   (c) satisfies the relevant contribution conditions,

  shall be entitled to short term incapacity allowance in respect of any day of incapacity for work during a period of incapacity for work.

(2) Where in respect of any period of incapacity for work a person has been entitled to short term incapacity allowance for 364 days (including, in the case of a woman, any day for which she was entitled to a maternity  allowance), he or she shall cease to be entitled to that benefit for any subsequent period of incapacity for work falling within that period.

 

(3) A person shall not be entitled to short term incapacity allowance for any period in which he or she works. 

 

(4) Subject to the provisions of this Law, where a person who is under pensionable age and is not entitled to a reduced old age pension under Article 25 (1A) ceases by virtue of paragraph (2) of this Article to be entitled to short term incapacity allowance –

(a)   if he or she satisfies the requirements of Article 16, he or she shall be entitled to long term incapacity allowance; or

(b) if he or she satisfies the requirements or Article 17, he or she shall be entitled to an incapacity pension.

 

Article 16 Long term incapacity allowance

(1) Subject to the provisions of this Law, a person who –

                     (a) is under pensionable age;

                    (b) is not entitled to a reduced old age pension under Article 25(1A);

                    (c) as a result of the relevant disease or injury is suffering from a loss of physical or mental faculty which is likely to be permanent; and

                    (d) satisfies the relevant contribution conditions,

        shall be entitled to long term incapacity allowance.

(2)   The assessment of a claimant’s incapacitation for the purposes of long term incapacity allowance shall take into account the period during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty.

(3)  If the claimant is receiving or has received short term incapacity allowance in respect of the relevant disease or injury, the period to be taken into account under paragraph (2) shall not begin earlier than the end of the last period during which he or she received that allowance.

(4)  If, having regard to the possibility of changes (whether predictable or not) in the condition of a claimant, it does not allow of a final assessment being made up to the end of the period which is to be taken into account under paragraph (2) –

                   (a) a provisional assessment shall be made, taking into account such  shorter period as seems reasonable having regard to his or her condition  and the possibility of changes; and

                   (b) on the next assessment, the period to be taken into account shall  begin with the end of the period taken into account by the provisional assessment.

       (5)  The assessment –

                   (a) shall specify as a percentage the degree of incapacitation resulting from the loss of faculty;

                    (b) shall specify the period taken into account by the assessment; and

                    (c) shall state whether the assessment is provisional or final.

        (6)  In the assessment of a claimant’s incapacitation –

                    (a) the percentage and the period to which paragraph (5) refers shall not  be specified more particularly than is necessary for the purpose of determining the claimant’s rights in          relation to long term incapacity allowance;

                   (b) if the percentage so specified is lower than 5%, the claimant shall not be entitled to long term incapacity allowance in respect of that                                                     incapacitation; and

                    (c) a percentage which is higher than 5% but is not a multiple of 5 shall be treated as being the next highest percentage which is a multiple of 5.

  (7) Subject to the other provisions of this Article, provision may be made by order for the definition of the principles on which incapacitation is to be assessed.

       (8) Any such order may in particular prescribe that a specified loss of faculty  shall be treated as resulting in a specified percentage of incapacitation.

 

Article 9 of the Social Security (Claims and Payments) (Jersey) (Order) reads as follows:-

If a person who has made a claim for long term incapacity allowance wishes, with a view to withdrawing his or her election to treat a short term incapacity allowance period as having come to an end, to withdraw his claim, he or she may send to or deliver at the Social Security Department written notice signed by him or her withdrawing the claim, and such notice so given shall, if it is received at that office before the claim has been finally determined, operate to withdraw the claim on the date of its receipt at that office.

 

Evidence

For the Minister

8.    The representative of the Social Security Department gave a very helpful opening statement which outlined the background to the appeal. The representative explained that the Department had paid STIA in relation to the medical certificates from August 2016 onwards because it had not been understood that these certificates related to the Appellant's right knee and because of the written statement from the Appellant dated 10th August 2016 but that if this had been understood then under the procedure described at the end of paragraph 1 of this decision, the Appellant would, in any event, have received 100% LTIA for the same period. As the amount of money paid for STIA or 100% LTIA was the same, the Appellant had not received an over payment. The representative explained that there were two possible ways in which the Tribunal could effectively find in favour of the Appellant as follows:-

 

a)       The first was by finding that the medical problem in relation to the knee which led to the issuing of medical certificates from August 2016 onwards was sufficiently different from the medical problem, in relation to which the Appellant had been in receipt of LTIA from April 2016 onwards, to warrant a continuing STIA payment; or

 

b)       That under the procedure described at the end of paragraph 1 of this decision, the Appellant should have continued to receive 100% LTIA for the period to which this appeal relates.

The representative explained that there had been difficulties with the computer system run by the department in relation to the recording of detail in relation to the precise medical conditions in relation to which LTIA claims were being paid.


The representative confirmed that the Medical Boards which had made the decision, against which this appeal is being made, decided that the problems in relation to the Appellant's right knee were covered under the LTIA assessment from April 2016 onwards, had not seen the Appellant but had relied upon the information from the Appellant's GP which was set on pages 35 and 37 of the bundle of documents before the Tribunal and which is set out in paragraph 2 of this decision.  

 

9.    The doctor who had been on the second medical board gave the following evidence:-

a)       That it was not practical for a medical board to examine a person who had made a claim for STIA which might be disallowed as relating to a matter in relation to which LTIA was already being paid.

 

b)      That the situation of the case as at 28th December, 2016, when this doctor had first considered the matter, was set out in their Memorandum of that date. The doctor then had the information from the Appellant's GP dated 17th November 2016 but  was expecting further information from the GP in relation to the need for a further operation.  When the second doctor made a decision on 27th January 2017, the letter from the GP dated 11th January 2017 was also available.

 

c)       The decision which was made on 27th January 2017 was that the condition of the Appellant's knee had been considered at the time when the assessment of LTIA at 30% had been made on 26th April 2016. The LTIA assessment gave room for fluctuations and flair ups and the current situation then was assessed as falling within this.

 

d)      That because the GP's letter had mentioned a deterioration since the Appellant's arthroscopy in August 2016, the second doctor was of the opinion that there should be an early review of the LTIA assessment of 30%.

 

e)      After the Appellant had lodged his appeal the matter was referred back to the second doctor and this doctor wrote a further memorandum dated 8th March 2017 when maintaining the previous opinion. The first paragraph of this memorandum includes the following in relation to the Appellant's knees:-

  “In the LTIA of 2012, there was mention of pain in both legs and the 'possibility' of arthritis in his knees. Both his lower limbs were included in the LTIA then as they were felt to be linked to his back pain. In the LTIA of 30.4.14 his knees were included and his ankles, again with a note that his ankles and knees may be due to osteoarthritis.”

f)         The doctor accepted that there had not in the LTIA assessment in 2016 been a clear diagnosis of osteoarthritis.

 

g)      That information had not been received that the Appellant had not made a substantial recovery after the arthroscopy and the GP had not given further information about this.

 

 

h)       That the Tribunal were referred to the details contained in the LTIA assessment dated 26th April 2016 and in particular the following:-

 I) The references in section 2. to the diagnosis including Lower limbs pain with the right side being worse than the left side and to the fact that the Appellant was awaiting a right knee arthroscopy and to the injury when the safe fell on to the right leg , particularly the right knee and wrenched the back at the same time;

 

      II)  The reference in Section 7. (Diagnosis) to Mechanical low back pain and limb (lower) pain and in Section 8. to the loss of faculty being impaired spinal and lower limb function;           and

 

            III) The reference in the Back Examination Report to only 15° straight leg raising on the right side.

 

For the Appellant

 

10.     The Appellant gave the following relevant evidence:-

a)       That when the doctor who had made the LTIA assessment on 26th April 2016 had first seen him that the doctor had indicated that they were seeing him in relation to his back and not in relation to his right knee.

 

b)      That the Appellant had always understood that the LTIA claims had related to his back and when he had received a letter from the Department dated 27th April 2016 which referred to lower limb pain, he did not understand this. Similarly, when he received the letter from the Department dated 5th December 2016 indicating that his current claim for STIA was being refused because the claim related to his current LTIA assessment he had rung up the Department to query this.

 

c)       That that was why he had made the statement on 10th August 2016 that the current medical certificates did not relate to his claim for LTIA.

 

d)      That the Department had twice lost the letter from his GP dated 11th January 2017.

 

e)      That he had around 1984 suffered a serious injury to his right knee due to playing football which had required the removal of cartilage but that he had recovered from that sufficiently to be fully active.

 

f)         That the unsuccessful arthroscopy in August 2016 had greatly worsened the condition of his right knee and that as a result of this he had not been able to return to work since and his GP had continued to issue certificates up to 30th April 2017 and he was due to go into hospital on 6th April 2017 for a knee replacement operation. 

 

Decision

 

11.     The first decision which the Tribunal had to make was as to whether what occurred as a result of the arthroscopy in August 2016 fell within the ambit of the LTIA assessment in relation to the lower limbs or whether it was sufficiently different in order to give rise to an STIA claim as detailed in the various medical certificates issued by the Appellant's GP. The Tribunal was aware that if that were its conclusion then it would not, as presently constituted, be able to deal with the issue.

 

12.     If the Tribunal decided against the Appellant on this then it would have to go on to consider as to whether and when the Appellant had made a sufficient recovery from the effects of the arthroscopy in order to the 100% LTIA payments to cease.

 

13.     The decision of the Tribunal is that the arthroscopy not only greatly worsened the Appellant's condition but also brought to light for the first time a very serious arthritic condition in the Appellant's right knee, so serious that a knee replacement operation is now required. Once that has been successfully completed the Appellant's condition should improve and he should be able to return to work with a further LTIA assessment then being made in relation to his back condition alone and a new claim to LTIA being made for the knee condition if a loss of faculty due to that condition remains.

 

14.     The Tribunal noted that when the safe injury to the right leg occurred, that the Department treated this as giving rise to a valid STIA claim notwithstanding that part of the issues in relation to the 2014 LTIA assessment had related to lower limbs. The Tribunal considers that the serious and continuing worsening of the Appellant's condition for the first time, together with the first clear diagnosis of a serious arthritic condition in the right knee should be treated in a similar way. The Tribunal considers that serious worsening is short term if the pending knee replacement operation is successful and can more suitably be dealt with by STIA.

 

15.     The Tribunal has carefully considered the details of the LTIA assessment which was made in April 2016 and comments as follows:-

 

a)       that assessment was made before the deterioration which followed the arthroscopy and there was at that time no clear diagnosis of chronic arthritis in the right knee;

 

b)      the 2016 assessment and some previous assessments had been made at a time where although there was some reporting of lower limb pain, it was not clear as to whether that was referred pain related to the back condition or something else;

 

c)       that in the 2016 assessment, the section 2. material merely sets out the clinical history and the sections 7. and 8. information is general in nature in relation to the lower limb pain and do not indicate the probable cause of this and the material in relation to the reduced straight leg raising capacity of the right leg is contained in the section which relates to the Back Examination Report; and

 

d)      that the dominant aspect of the 2016 LTIA assessment is clearly the back pain/impaired spine.   

 

 

16.     The Tribunal is well aware of the difficulties which are created for the Department and for the doctors on medical boards in making this type of assessment. Indeed, the Tribunal, as presently constituted, within the last year made the opposite decision in relation to a fairly similar case. In that case the Tribunal concluded that after an exacerbation of an injury to the back that the ongoing condition had probably related to the same area of the back. Here, although the present problems relate to the right knee, there is a new and much more specific and severe diagnosis in relation to the right knee. So in looking at making such decisions, it is not merely a case of deciding whether it is the same part of the body which is affected but of deciding whether this is a different condition with a different diagnosis to that which existed before.

 

17.     The Tribunal therefore concluded that this is a new claim which should properly be dealt with as a STIA claim. STIA is a short term benefit for those who are not then able to work and LTIA is a long term benefit for those who may be able to work. Apart from the other considerations, it is clear that the present claim fits much more satisfactorily within the STIA regime and within what the Tribunal sees as being the underlying purpose of the two schemes. 

 

 

18.     Finally, because of the nature of this decision, the Tribunal did not go on to consider as to whether the 100% LTIA claim would have been upheld. From the information before us it is likely that the Tribunal would have concluded that the Appellant had not made the necessary substantial recovery from the effects of the arthroscopy during the period of the current claim and arguably still has not made that recovery, but the Tribunal did not actually go on to make that decision.  

 

   

                           

 

 

Advocate B.I. Le Marquand                                                       25th April 2017

 


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