Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/3786/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The claimant’s appeal is dismissed.

 

 

REASONS FOR DECISION

 

1. This is an appeal, brought by the claimant with the permission of the First-tier Tribunal, against a decision of the First-tier Tribunal dated 11 February 2014 whereby it dismissed the claimant’s appeal against a review decision of the Secretary of State to the effect that he was entitled to two awards under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) at Level 13 on the basis that he was suffering from “Non-freezing cold injury which has caused or is expected to cause neuropathic pain and significant functional limitation or restriction for 26 weeks, with substantial recovery beyond that date” (Table 2, Item 55 in Schedule 3 to the 2011 Order).  One award had been made in respect of his hands and another (discounted by 20% as a “second award”) in respect of his feet (see note (a) to Table 2).

 

2. The procedural history of this case is helpfully set out by Ms Galina Ward of counsel in her submission on behalf of the Secretary of State and I need not repeat it here.  Suffice it to say that it is common ground that the claimant suffered non-freezing cold injuries while on tactical exercises in September and October 2007 as part of his basic infantry training, as a result of which he was discharged from the Army on 26 June 2008.  He made a claim under the Armed Forces Compensation Scheme and the review decision of the Secretary of State that was challenged before the First-tier Tribunal was made on 2 November 2011.

 

3. The claimant appealed on the ground that his condition had got worse and he was still suffering pain four years after the injuries had occurred.  It is common ground that the First-tier Tribunal correctly identified the issue before it as being whether the correct descriptor had been applied or whether the claimant satisfied the conditions for an award at Level 10, in respect of either his hands or his feet or both, on the basis that he was suffering from “Non-freezing cold injury with persistent local neuropathic pain and severe compromise of mobility or dexterity, and evidence of permanent damage to small nerves on thermal threshold testing.” (Table 2, Item 27).

 

4. The claimant did not appear at the hearing of his appeal but Mr Duffy of the Royal British Legion appeared on his behalf.  So far as is material, the First-tier Tribunal’s statement of reasons says –

 

“6. … the Tribunal decided that it was fair to continue [in the claimant’s] absence:

·         Proper notice of hearing was given and no satisfactory explanation for absence is provided.

·         The Tribunal decided that in all the circumstances it was not in the interest of justice to adjourn.

The Appellant was slow to return his Listing Questionnaire when asked by the Tribunal office to do so. Eventually he returned it saying he would attend and had no dates to avoid over the next 3 months (i.e. November 2013). The case notification was sent to the Appellant on 20/12/13. The Appellant representative told us today that the Appellant has failed to respond to requests by the organisation for him to attend a pre-hearing 'clinic'. The Appellant has failed to respond to telephone calls from his representatives. We find that all reasonable steps have been taken to notify the Appellant of the hearing and it is in the interests of justice to proceed with the hearing under Rule 29.

…

9.   Having considered and assessed the evidence before it the Tribunal finds the following material facts:

a. The non-freezing cold injury to his hand and feet arose from his service activity in September/October 2007. The injury was caused by service. The Appellant has been granted two awards and Item 55 of Table 2 of the Tariff. He has an award in respect of his hands and an award in respect of his feet. The descriptor under Item 55 provides for neuropathic pain and significant functional limitation or restriction at 26 weeks with substantial recovery beyond the date.

b.    The Appellant submits in this Appeal that his condition has not improved as expected. He claims that recent investigations have indicated that "my nerve endings have completely gone ....Causing permanent disability." In his Appeal form (dated 26/4/13) and the attached letter the Appellant state that his condition has "deteriorated to the point where my mobility has been affected." He says that he is restricted from "doing things, especially with my daughter" and that swelling in his hands and feet and discomfort prevent him getting "my shoes on my feet at time."

c.    We have considered carefully the medical evidence. Following the initial injury the Appellant was limited duties and prescribed medication. In due course he was medically discharged in June 2008.

d.    We note the Report of Dr Oakley date 19/11/09. Dr Oakley was a Specialist at the Institute of Naval Medicine. At that time tests showed the hands much better, near normal, although the feet continued to exhibit a "mild to moderate degree" of cold sensitivity. In general terms the Appellant is recorded as "much better".

e.    A later Medical Report (from Mr R P Craig dated 20/11/09) shows the Appellant to have a reasonable walking ability although his fee are "always cold" and now much more painful than his hand." The Appellant was working at that time. The neuropathy is described as "severe".

f.     We have considered the recent expert evidence in the form of this Report of Dr Pambakian dated 29/3/13. The Appellant still has "severe residual neurological symptoms." He had "pins and needles in the tips of his finger and toes ..." His numbness in his fingers restricts his ability to play the saxophone. The Appellant's stance is recorded as "normal" — when walking. The Appellant tended to walk on the outer aspect of his feet..." He could stand and walk on his heels (although no ton his toes). He would tandem walk.

g.    The award contended for on behalf of he Appellant is Item 27 of Table 2. We would accept that there is evidence of persisted local neuropathic pain. There is evidence of damage to small nerves-although here is no evidence that this was recorded as a result of thermal threshold testing. Furthermore, the Appellant's case fails to meet the criteria under Item 27 because the evidence of compromise of mobility fall or dexterity show that the level which these facilities are compromised fall well short of "severe". As described above, the Appellant has a significant walking ability and his dexterity also remains substantially useful. The circumstances of this case therefore fail to meet the criteria set out in any higher award within the Tariff. The award(s) under Item 55 remain appropriate.”

 

5. The claimant now appeals on grounds drafted by his solicitors, Kinas.  Neither party has asked for an oral hearing and I am satisfied that one is not necessary.  The Secretary of State has suggested that the case be stayed to await the third report of the Independent Medical Experts Group.  That suggestion was made some time ago and the report has now been published (in March this year).  I have looked at it but, although there is an interesting discussion of non-freezing cold injury and there are recommendations for the descriptors to be amended (to one of which I refer below), I do not consider it necessary to obtain further submissions in the light of it.  In particular, it is to be noted that the proposed amendment to item 27 of Table 2 (which would include increasing the level of an award to Level 9) would still require there to be “severely compromised mobility and,or dexterity”.  I also understand that the case on file CAF/2735/2014, which the Secretary of State also mentions, has already been the subject of an oral hearing and raises a slightly different point from this case.

 

6. The claimant’s first ground of appeal raises a natural justice issue.  He says that he did not attend the hearing because he did not receive notice of it until after the hearing and he also says that he did not authorise Mr Duffy to represent him. 

 

7. It is true that the claimant had not personally given Mr Duffy instructions, but he had nominated the Royal British Legion as his representative in his notice of appeal and so the First-tier Tribunal would have sent the documents in the case to the Royal British Legion and Mr Duffy did have the claimant’s written authority to act on his behalf insofar as he could without instructions.

 

8. When I issued case management directions, I said –

 

“2. In relation to the claimant’s non-attendance at the hearing, it is open to the claimant’s solicitors to obtain evidence from the Royal British Legion as to what steps were in fact taken to contact the claimant before the hearing.  It is for him to prove that there was a breach of the rules of natural justice.  I draw attention to Cooke v Glenrose Fish Co. [2004] I.C.R.1188, in which the Employment Appeal Tribunal suggested that an employment tribunal should always at least consider telephoning an appellant who has failed to appear before proceeding in his absence, a practice that has been adopted by some parts of the First-tier Tribunal.  Perhaps the War Pensions and Armed Forces Compensation Chamber should adopt the same practice, as might representatives, although it is currently my view that the First-tier Tribunal was entitled to proceeding in the claimant’s absence in the present case. 

 

9. The Secretary of State points out that it appears from the notes made by the members of the First-tier Tribunal that in fact they were told that Mr Duffy had tried to contact the claimant on the morning of the hearing and that reinforces my view that the First-tier Tribunal was entitled to proceed in the claimant’s absence in this case.

 

10. Of course, if the claimant did not in fact receive notice of the hearing, the decision would still be flawed through no fault of the First-tier Tribunal.  However, I am satisfied that he did receive the notice. Although his denial is reiterated in his reply, no further evidence has been submitted despite my comments.  A copy of the notice of hearing is in the documents before me (doc 103) and it is correctly addressed.   There is nothing to show that the Royal British Legion, who presumably had received his address from the First-tier Tribunal, had been trying to contact him at the wrong address.  I note that the mobile telephone number given to the Upper Tribunal by the claimant is different from the one given to the First-tier Tribunal but if he had changed it he should have informed the First-tier Tribunal so that that information could be passed on and, anyway, I doubt that the Royal British Legion was relying only on the telephone and did not also write to the claimant.  Having regard to the fact that he did not respond to the “listing questionnaire” within the time requested and did not respond to the Royal British Legion, I am satisfied that it is more likely that he simply ignored the notice of hearing than that the notice, which was dated 20 December 2013, was delayed and received by him only shortly after the hearing itself, which was on 11 February 2014.  On the balance of probabilities, I am not satisfied that there was any breach of the rules of natural justice.

 

11. In paragraph 7 of the grounds of appeal, the claimant draws attention to an error in the First-tier Tribunal’s finding as to the date on which he joined the Army.  However, that is not a material error.

 

12. The claimant’s second main ground of appeal is the ground mentioned in the First-tier Tribunal’s grant of permission to appeal where it was said that, in the light in particular of paragraph 11.2 of a report dated 20 November 2009 by Mr R P Craig MD FRCS FFAEM, it was “arguable that the tribunal failed to explain adequately why they did not regard the compromise of [the claimant’s] mobility and dexterity as ‘severe’”.  The claimant also relied in his grounds of appeal on paragraphs 11.3 and 11.6 of Mr Craig’s report and a passage from a report by Dr Pambakian, a consultant neurologist, and, in his reply, on paragraphs 6.2, 6.7, 10.3, 10.5, 10.6 and 10.7 of Mr Craig’s report.  However, the Secretary of State submits that the First-tier Tribunal did not err in law. 

 

13. The passages from Mr Craig’s report relied upon are –

 

“6.2.  I have great caution about this because he can't feel the temperature of' the water in the foot spa and on one occasion was pouring boiling water from a kettle to try and warm it up he then tested the water against the back of his hand and realised that it was extremely hot. There is a very real danger that he may burn his feet, if this goes on.

…

6.7. I am not really sure whether the foot spa is doing any good and neither is he, and certainly I would he extremely concerned about the possibility of him burning his feet because of the lack of sensation.

…

10.3 Romberg’s sign was positive and he fell over trying to stand on tip-toe on his left foot and had to be caught by me.

…

10.5 His feet were freezing from the mid-tarsus distally and all ten toes were totally numb with no feeling or pinprick sensation whatsoever.  Pinprick was established around the tarsus.  Joint position sense was inaccurate in response and vibration sense although normal over the metatarsophalangeal joints was absent in the toes.

10.6 His dorsalis pedis pulses were bounding but as is usual I was unable to palpate his posterior tibial pulses.

10.7 His tendon jerks in his knees and ankles were entirely normal but there was no plantar response whatsoever.

…

11.2 The clinical findings in this case in terms of neuropathy are about as severe as I have ever come across before.  Equally, by palpation the vasospasm would strike me as being highly significant.

11.3 I am quite sure that the Claimant reasonably requires protection by way of hand wear and footwear, particularly the latter, and this means in effect that he needs something like sealskin gloves and Gore-tex lined boots as well as arctic socks whenever the temperature drops to the point of him developing symptoms.  Because of the multiplicity of factors which go into the production of symptoms I wouldn’t like to give a specific temperature or wind speed on this, but generally speaking the Claimant himself is the clearest indication of when he is having trouble.

…

11.6 I doubt that he would be employed by the Police, Fire Service or Prison Service in this country, although perhaps he might follow his father if he returns to Grenada.  I see no need for a Psychiatric or Pain Management input in this case.

…

11.8 The propensity of Afro-Caribbeans of whom he is one to the exigencies of so-called temperate climate in this country has been recognised for many years. …”

 

The claimant’s father was a police inspector in Grenada.

 

14. The relevant passages from Dr Pambakian’s report, which was dated 29 March 2013, are –

 

“On examination his stance was normal.  While walking he tended to walk on the outer aspect of his feet because the folds of his feet were so painful.  He could stand and walk on his heels but he could not stand or walk on his toes.  He could tandem walk and Romberg’s was negative. ….

 

My impression is that he clinical examination documents ongoing damage to the peripheral nerves in his upper and lower limbs, which is impacting on his mobility and also interfering with the use of his hands while conducting activities of daily living.”

 

15. It is first submitted by the Secretary of State that the question whether there had been a severe compromise of the claimant’s mobility or dexterity was not determinative of the case because the First-tier Tribunal had in any event held that there was no evidence that his nerve damage had been recorded as a result of “thermal threshold testing” as required by the terms of the descriptor at Item 27 of Table 2.  The difficulty with this submission is that it is not clear whether there had been thermal threshold testing since the claimant’s discharge from the Army – or at least since 2009 – and therefore, had the lack of that test been determinative, it is arguable that the First-tier Tribunal should have at least considered directing that such a test should be carried out, particularly having regard to Mr Craig’s view as to the severity of the neuropathy and, more importantly, to Dr Pambakian’s view of the claimant’s condition five and a half years after the injuries occurred.  (I also observe that the Independent Medical Experts Group recorded in their third report (Topic 3, para 20(a)(3)): “Both the Montgomery Group and Dr Oakley [who in fact examined this claimant before his discharge from the Army and again in 2009] suggest that especially in Afro-Caribbean personnel there must be doubts about the use of Infra-Red Thermography for claims assessment at all.  Thermal Threshold Testing can be used as an adjunct but alone, it does not establish the diagnosis nor confirm NFCI severity.”)  It is therefore necessary to consider the Secretary of State’s other responses to the claimant’s arguments.

 

16. The Secretary of State then submits that, although the word “severe” itself is not defined, it must be construed in its statutory context which carries two implications.  First, as a matter of ordinary language, “severe” connotes something more serious than “significant”, and article 5(7)(b) of the 2011 Order provides that functional limitation or restriction is “significant” where the functional limitation or restriction “has an extensive effect”.  Secondly, items in the various tables in Part 1 of Schedule 3 to the Order must be construed so as to give effect to the obvious aim of the Order that injuries attracting the same level of award should be broadly equivalent in their disabling effect.  The Secretary of State further points out that the word “severe” describes only the compromise of mobility or dexterity and that the fact that the claimant’s condition may properly be described as severe in other respects does not lead to the conclusion that he satisfies the terms of item 27 of Table 2.  In those circumstances, it is submitted, the First-tier Tribunal’s statement of reasons is sufficient to show why it decided as it did and that it did not err in law.

 

17. With one reservation to which I will return below, I accept the Secretary of State’s submission as to the general approach to be taken to the word “severe” in item 27 of Table 27 and I also accept that much of the evidence relied upon is concerned with the nerve damage and loss of sensation but not with the extent to which the claimant’s mobility or dexterity were compromised.  Indeed, the particular parts of the reports relied upon by the claimant barely mention the extent of the loss of function in the claimant’s hands and, while other parts do, I do not consider it to be remotely arguable that the First-tier Tribunal erred in law in considering that there had not been a severe compromise of the claimant’s dexterity.

 

18. However, the effects of the injury on the claimant’s mobility could be described as severe as a matter of ordinary language and it is necessary to consider whether, in its context, the First-tier Tribunal’s decision tends towards the perverse.  In this regard, the Secretary of State draws attention to all the other descriptors at Level 10 in Tables 2, 3, 5, 6, 7, 8 and 9 and invites me to consider that the facts found by the First-tier Tribunal show that the claimant was less disabled than a person suffering from those relating to injuries to the foot.  My preference is to look at the Schedule more broadly and, in particular, all the other descriptors primarily involving foot injuries at Levels 10 to 13 so that it can also be considered whether the findings suggest that the claimant was under-assessed at Level 13. 

 

19. At the material time, the most relevant descriptors appear to have been –

 

Item	Level	Descriptor
Table 2
26	10	Complex injury covering all or most of the foot, with complications, causing permanent significant functional limitation or restriction.
45	12	Complex injury covering all or most of the foot, with complications, which has caused, or is expected to cause, significant functional limitation or restriction at 26 weeks, with substantial recovery beyond that date.
Table 5
24	10	Loss of both great toes.
30	12	Loss of great toe.
31	12	Loss of two or more toes, other than great toe, from each foot.
39	13	Loss of two or more toes, other than great toe, from one foot.
40	13	Partial loss of each great toe.
Table 6
25	10	Permanent foot or wrist drop.
Table 8
3	10	Fractured heels of both feet causing permanent significant functional limitation or restriction.
7	11	Fractured heel of one foot causing permanent significant functional limitation or restriction.
8	11	Fractured heel of both feet which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks.
10	11	Fracture or dislocation of great toe of both feet, which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks.
11	11	Fractured tarsal bones of both feet which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks.
26	12	Fracture or dislocation of great toe on one foot which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks.
27	12	Fractured tarsal bones on one foot which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks.
28	12	Fractured heel of one foot which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks.
29	12	Fractured heel of both feet from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks.
31	12	Fractured metatarsal bones on both feet which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks.
34	13	Fractured tarsal or metatarsal bones on both feet from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks.
35	13	Fractured metatarsal bones on one foot which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks.
36	13	Fracture or dislocation of great toe of both feet from which the claimant has made or is expected to make a substantial recovery within 26 weeks.
43	13	Fractured heel of one foot, from which the claimant has made, or is expected to make a substantial recovery within 26 weeks.
52	13	Fractures or dislocations of two or more toes, other than great, of both feet which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks.

 

20. My reservation about the Secretary of State’s submission arises because I am not convinced that the phrase “severe compromise of mobility or dexterity” used in item 27 of Table 2 necessarily indicates something more serious than the phrase “significant functional limitation or restriction” which appears not only in item 55 of Table 2 but also a large number of the other descriptors including, for instance, item 1 of Table 2, at Level 5: “Complex injury covering all or most of the area from thigh to ankle or shoulder to wrist, with complications, causing permanent significant functional limitation or restriction”.  Plainly the degree of functional limitation or restriction to be expected from an injury within the scope of item 1 of Table 2 is greater than that to be expected from an injury within the scope of, say, item 35 of Table 8, so the meaning of “significant functional limitation or restriction” must take its colour from the context of the particular injury concerned.  It seems possible that the words “severe compromise” partly because the descriptor requires the function to be specified as it does not refer to specific parts of the body and partly because it was intended that mere loss of sensation should be disregarded.  Thus it may be reasonable to read “severe compromise” as simply meaning “significant loss”.  It is also important to bear in mind that one of the differences between items 27 and 55 of Table 2 is that the disablement in one case is expected to be “persistent” whereas in the other it is expected that there will be a “substantial recovery” after 26 weeks.  The term “substantial recovery” in Item 55 of Table 2 clearly does not mean complete recovery but there must presumably be a recovery to the extent that the functional limitation or restriction has ceased to be “significant” and so has ceased to have an “extensive effect”.  If “severe compromise of mobility or dexterity” had a very different meaning from “significant functional limitation or restriction”, there would be something of a lacuna in the legislation for those with long-term disablement that was significant but not severe.

 

21. In any event, there seems no very obvious reason why a person suffering from the results of a non-freezing cold injury should be more restricted in his functioning if he or she is to be entitled to an award at Level 10 than a person suffering from the result of a “complex injury covering all or most of the foot, with complications” (Table 2, Item 26) or “loss of both great toes” (Table 5, Item 24) or “permanent foot … drop” (Table 6, Item 25) or fractured heels of both feet (Table 8, Item 3) and this seems the surest way of judging whether a non-freezing cold injury has caused a severe compromise of mobility or dexterity.  The question that might be put in the present case is therefore whether the disablement suffered by the claimant was comparable to that of a person suffering from those other injuries.

 

22. Alternatively, was the claimant’s disablement comparable to that of a person suffering from a long-term condition that nonetheless attracts an award at only a lower level, say, either “loss of two or more toes, other than great toe, from each foot” (Table 5, Item 31) or “fractured metatarsal bones on both feet which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks” (Table 8, Item 31), both of which would have attracted an award only at Level 12, or else “partial loss of each great toe” (Table 5, Item 40) or “fractures or dislocations of two or more toes, other than great, of both feet which have caused, or are expected to cause, significant functional limitation or restriction beyond 26 weeks (Table 8, Item 52), both of which would attract an award at level 13.  Other Level 13 descriptors in Table 8 apply only where the injury is only to one foot or the significant functional limitation or restriction to both feet is expected to be temporary, but it is important to note that there are these Level 12 and 13 descriptors where significant functional limitation or restriction is expected to be permanent or at least long-term.

 

23. The First-tier Tribunal was handicapped in that not only had the claimant not appeared but also the Secretary of State had not made a proper written submission to the First-tier Tribunal but had left it to be implied that he relied on the reasoning of the “Lay Certificate” dated 6 October 2013 which, having set out some of the medical evidence, said “… the totality of the evidence does not, in the Secretary of State’s opinion, constitute severe compromise of mobility or dexterity as required to enable a higher award to be made”.  There was no further analysis of the evidence save to make the point that Dr Pambakian had recorded that “his recent excessive consumption of alcohol will compound the damage to peripheral nerves and exacerbate his pain and numbness”.  Nowhere had any findings been made as to the extent to which the claimant’s mobility had been compromised beyond those in the parts of the medical evidence to which I have referred.  The claimant had not been asked to give a detailed answer to that question and did not take the opportunity to give evidence to the First-tier Tribunal.  Nor had any doctor been asked specifically to advise on that question.

 

24. Nonetheless, the First-tier Tribunal’s statement of reasons shows that it considered the available evidence in some detail and had in mind the correct statutory test.  Its judgement that the claimant had “significant walking ability” must be read in the light of paragraph 11.6 of Mr Craig’s report in which he said “I doubt that he would be employed by the Police, Fire Service or Prison Service in this country, although perhaps he might follow his father if he returns to Grenada”, which to my mind implies a very substantial walking ability.  The claimant’s own grounds of appeal, which are in very general terms, do not appear inconsistent with that.  He plainly had difficulties as a result of his injuries and both his mobility and dexterity were affected, but Dr Oakley’s evidence showed that there had been an improvement in the claimant’s condition by late 2009.  Although the claimant complained of worsening, that was presumably the effect of the post-injury drinking noted by Dr Pambakian and it is also to be noted that it was the loss of sensation, rather than loss of mobility, which led him to consult Dr Pambakian.

 

25. I am not satisfied that the evidence was such as to show that the First-tier Tribunal took too narrow an approach to the word “severe” and reached a perverse conclusion having regard to the other comparable descriptors in Schedule 3 to the 2011 Order to which I have referred above.  As I have said, there are Level 12 and 13 descriptors where “significant functional limitation or restriction” in the feet is expected to be permanent or at least long-term.  

 

26. For these reasons, I am satisfied that the First-tier Tribunal reached a decision that it was entitled to reach on the evidence before it and for which it has given an adequate statement of reasons.  Accordingly, I reject this ground of appeal.

 

27. Finally, the claimant seeks disclosure of a report by Dr Oakley.  Clearly there would have been a breach of the rules of natural justice had the First-tier Tribunal had regard to a medical report that had not been disclosed to the claimant.  However, it is plain that the report to which the First-tier Tribunal referred – that of 19 November 2009 – was that comprised of docs 81 to 89 of the bundle before the First-tier Tribunal and before me, with the citations in paragraph 9(d) of the First-tier Tribunal’s statement of reasons being drawn from Dr Oakley’s notes on doc 82.  There therefore does not appear to be any report that was before the First-tier Tribunal and has not been disclosed.

 

28. I am satisfied that the First-tier Tribunal did not err in law on any of the grounds raised.  I therefore dismiss this appeal.

 

 

 

Mark Rowland

11 June 2015