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Factual background
Factual background
The appellant was a professional footballer who was born in 1946 and whose career spanned approximately 20 years from around 1966 to around 1988. He played for a number of prominent national teams and also for England.
During the course of his playing career he suffered various injuries, including to his head. The First-tier Tribunal in its decision noted that the appellant “was known within the game as a ‘warrior’ who was prepared to put his head where other people would not” and was “evidently a particularly competitive player”.
In later life, he has suffered loss of mental faculty. On a CT head scan in 2015 there was “evidence of a generalised cerebral atrophy with slight temporal preponderance”. A repeat CT scan in 2019 showed “progressive atrophic changes”. Such scan results are consistent with Alzheimer’s and also CTE.
As I understand the medical evidence, CTE is a diagnosis which depends on someone having suffered repetitive head injuries (RHI) and then having developed certain changes in the brain. An article in the bundle in this case (the Nowinski article (Footnote: 1)) expresses a conclusion with the “highest confidence” that RHI causes CTE, but recognises that the evidence on the link between RHI and CTE “will remain imperfect in perpetuity”.
It is not currently possible to be certain prior to a person’s death (and autopsy) whether a person with degenerative changes such as the appellant has is suffering from Alzheimer’s Dementia or CTE. The appellant accordingly has diagnoses of “probable Alzheimer’s Dementia” and “probable CTE”.
In the appellant’s case, the medical evidence in the bundle includes the following pertinent opinions about his condition:
Dr B Ganesan (Consultant in Old Age Psychiatry) in his letter of 12 March 2019 reviewed the changes in the appellant’s CT head scan between 2015 and 2019 and explained that:
“… the progressive atrophic changes to the mesial temporal lobes predominantly on the right would be more in keeping with Alzheimer’s although there are no reliable radiological signs to differentiate it from [CTE] at present….”
Dr B Ganesan in his letter of 22 April 2020 adds:
“[CTE] is a relatively new condition both for researchers and physicians. It is a progressive brain condition that is thought to be caused by repeated blows to the head. It usually begins gradually, and typical symptoms are often difficult to distinguish (short term memory loss, disorientation, changes in mood) from other degenerative brain conditions like Alzheimer’s Disease.
As far as I am aware there is currently no test to diagnose [CTE]. A suspicion of the condition is usually based on history of participation in contact sports, repeated head trauma along with the typical symptoms described above.
While in the current clinical understanding it is impossible to confirm the diagnosis of [CTE], Mr Watson’s history (ex-professional footballer who played as a centre back), initial presentation with short term memory problems complicated by episodes of paranoia, mood changes later on do raise the likelihood of this condition.”
Dr Tom Dening (Professor of Dementia Research & Honorary Consultant Psychiatrist) in his letter of 10 May 2022 states:
“Given that he has a history of repeated heading of a football as well as episodes of concussion and being knocked out during his playing career, there is no reason to doubt the contribution of CTE to his current cognitive impairment…”.
In August 2021 the appellant’s wife, acting on the appellant’s behalf, made ten claims for IIDB in respect of ten accidents involving impact to his head that occurred on specific dates between 4 December 1971 and 11 April 1983. Each of the claim forms gave the details of one specific head injury incident for which the appellant and his wife had documentary evidence, mainly in the form of newspaper cuttings in which the appellant’s injury was referred to as part of a report of the match in question. Passages from the appellant’s wife’s published memoirs were also provided in support of the claims. In many cases, the “witnesses” to the accidents were identified as the thousands of spectators who were watching the match. Each claim form included wording to the effect that the specific accident detailed in that claim form was:
“one of a number of similar ‘accidents’ sustained throughout my career, the cumulative effects of which are believed to have resulted in an early life neurocognitive disease – probable Alzheimer’s Disease; probable [CTE]”.
By decision of 11 January 2022 the Secretary of State refused the appellant’s claims and he appealed to the First-tier Tribunal.
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2) (a), (b)(i) and (3) of the Tribunals, Courts and Enforc
- REASONS FOR DECISION
- Factual background
- The First-tier Tribunal’s decision
- The law
- Industrial injuries benefits for prescribed disease or injury
- Relevant case law relating to IIDB
- Causation
- Injury
- Accident
- The approach of the Upper Tribunal on appeal
- Ground 2 - Failure to address/give reasons for concluding that the other ‘undocumented’ incidents that the Tribunal concluded were an effective cause of the injury were in law “process” rather than pa
- The parties’ submissions
- My conclusions on ground 2
- Ground 1 - Perverse and/or inadequately reasoned conclusion that the 10 specific documented accidents were not an ‘effective cause’ of the injury
- My conclusions on Ground 1
- Identification of the injury
- Identification of the effective causes
- Identification of the accidents
- Extent of disablement
- Ground 3 - Perverse and/or inadequately reasoned reliance on family history of cognitive impairment
- My conclusions on Ground 3
- Conclusions