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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

or it could be mental.  It should not be assumed, that because no physical cause has been identified, that the underlying cause is necessarily mental or psychological.  Symptoms such as pain, weakness, fatigue and dizziness may be due to physical causes, but in those cases where no clear physical cause is found, a mental cause should be considered.  If a mental health disorder has been identified it is reasonable to presume that the cause of the symptom is psychological.  Each case needs to be considered on the basis of the medical evidence.  In many medical conditions the presentation is of a combination of physical and mental symptoms, albeit with a predomination of one category of symptoms.  Absence of a clearly identified physical cause does not rule out the possibility that the physical symptoms have an underlying physical aetiology.”

146.The effect of the evidence of Dr Ford is that the fact that no physical cause for (in particular) back pain has been identified, even after extensive examination and tests, by no means rules out the possibility that the pain does have a physical cause.  (This underscores the difficulties for decision makers and appeal tribunals in relation to causation referred to above: see paragraphs 102 to 112).  It seems that “mechanical back pain”, without anything more specific, can for that reason be a meaningful diagnosis implying an underlying physical cause.

147.The appeal tribunal in Mr B’s case seems to have admitted the possibility that there may have been something physically wrong with his back.  The tribunal’s reasoning seems to have been that, even if there was, that defect (whatever it was) could not (owing to the lack, despite extensive investigations, of an identified specific physical cause) have been sufficiently serious to result in pain of the degree which the claimant experienced.  We refer again, in particular, to the following sentences in the tribunal’s statement of reasons:

“It may well be that his psychological problems do contribute considerably to his walking problems. However, looking at the physical reasons for any inability to walk we consider that these are not such as to render him virtually unable to walk out of doors taking account of time, distance, speed and manner of walking before the onset of severe discomfort.” (emphasis added).

148.We do not feel able to say that the tribunal erred in law in making that finding of fact.  In our judgment it was entitled on the evidence to do so, and sufficiently explained its reasons for doing so.

149.However, the tribunal’s reasoning assumes that where there is an underlying physical problem, any exacerbation of the pain by reason of psychological problems must be left out of account.   For the reasons set out in paragraphs 102 to 112 above, we do not consider this to be the correct approach.  

150.We therefore allow the claimant’s appeal and set aside the tribunal’s decision.  We remit the matter for redetermination by a differently constituted appeal tribunal.   The new tribunal will award the higher rate of the mobility component if it finds that the claimant is virtually unable to walk and if it finds that a physical disorder (i.e. mechanical back pain) is a material cause of that inability - i.e. contributes to that inability to more than a minimal extent.

CDLA/2899/2004 (Mrs H’s case)

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