But we have already decided in the case of Winters v. Addie that when a medical referee says “I allow an appeal subject to the following note,” we are bound to read the note along with the finding in order to see what he has really done. Now when I read the whole thing here I cannot read this determination by the medical referee as saying that the certifying surgeon ought never to have given any certificate at all. What the medical referee says is that the man is suffering from nystagmus, but that the nystagmus is not due to the nature of the employment in which he was engaged. In other words, I think the effect of this appeal is not to say that there ought to have been no certificate given, but that the certificate ought to have had the addendum which the certifying surgeon here did not put in.
The result is, in my view, that this case must go on, but with no presumption in favour of the workman. On the contrary, it will be for him, if he is to recover, to show affirmatively that the disease of nystagmus from which he is certified to be suffering really arose from his employment and did not arise from other disease, such as sclerosis, a possibility which the medical referee points out.
That is the opinion to which I am driven by the way in which I find nystagmus mentioned in the schedule, where it is mentioned as purely and simply nystagmus. Here the certifying surgeon says that the man is suffering from nystagmus, and that being so I cannot read this addendum by the medical referee that the man is not suffering from industrial disease as ending the case. I come to that conclusion with great regret, because I am quite certain that the real view of the medical referee is that he is not suffering from an industrial disease. But the fault is the fault of the Home Secretary and not mine. The fault is that nystagmus is put in the schedule as being nystagmus instead of being put in as miner's nystagmus.
I do not know that I have any right to know these matters, and if my judgment turned upon it I should not consider that I had any right to say anything upon it. But, by the best advice I have got upon the question there seems to be no question that miner's nystagmus—that is to say, nystagmus induced by the position in which, to do his work, the miner has to keep his eye—is a pathological condition of the eye which is idiopathic, while all other forms of nystagmus are not so, but are the symptoms of other diseases of which this sclerosis is one, and there are several others. Now, if the Home Secretary had been awake to that and had put the disease in the schedule as “miner's nystagmus,” then a pronouncement such as the medical referee here has given would be a pronouncement that the workman is not suffering from an industrial disease.
I think one can get a very good illustration of that in the next disease that happens to come in the schedule. The next disease is scrotal epithelioma—chimney-sweep's cancer. I have no doubt whatsoever that a certificate that a man was suffering from cancer would never be a good certificate under section 8, because cancer is not an industrial disease, although chimneysweep's cancer is. I cannot help thinking that nystagmus ought to have been treated in the same way. But as it is I have to look at the schedule and I find nystagmus, and I am told by the medical referee that this man has nystagmus. That seems to be equivalent to an industrial disease in spite of his note, with the additional
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My opinion, therefore, upon the whole matter, is that the case must go down to the Sheriff-Substitute that he may allow the matter to go on in order to let the man prove if he can, because he has no presumption in his favour, that the nystagmus from which he is suffering is a nystagmus which arose from the nature of his employment and not from sclerosis or any other cause.
If he has obtained a certificate without any qualification, then under the second sub-section of the clause he is to be deemed to have satisfied that other requirement that the disease is due to the nature of the employment. That raises a presumption which the employer is allowed to rebut, and if the case stops there and the employer does not succeed in rebutting the presumption the workman is entitled to his compensation. But then if there is a qualification inserted, and if the surgeon says that the man is suffering from the disease, but that in his opinion it is not due to the nature of the employment, the condition of the first sub-section—that the disease must not only be established by the certifying surgeon's certificate but also that it must be due to the nature of the employment in which the man is engaged—has still to be satisfied. He must go on to show not only that he has the disease but, inasmuch as the certifying surgeon has said that the disease is not due to the nature of the employment, he must go on to show that it is.
Now I quite agree with your Lordship's view that when the statute provides that the certificates of the certifying surgeon may be appealed at the instance of either party to a medical referee whose decision shall be final, it puts the decision of the medical referee to all effects in the place of the certificate of the certifying surgeon. If he sustains the certificate of course there is no question. If he allows an appeal he may allow it to the effect of refusing a certificate altogether or to the effect of qualifying its terms if he thinks that the certifying surgeon has erroneously granted it without qualification.
Now it is upon the effect of the medical referee's decision upon the appeal with reference to these conditions that my difficulty arises. I think the question is—whether he means to recall the certifying surgeon's certificate altogether and put nothing in its place, or whether he means to recall it as expressed and insert a qualification which he thinks the certifying surgeon ought to have inserted and failed to insert. I agree with your Lordship that upon the fair construction of the medical referee's note the latter of these two views must be taken to be what he meant. If he meant to say that this man is not suffering from nystagmus but from a different disease—sclerosis—which causes certain affections of the eye which may be mistaken for nystagmus, but which in reality are only the symptoms of sclerosis, and the certifying surgeon has gone wrong because he has mistaken the symptoms of sclerosis for the industrial disease of nystagmus—if that were the true meaning of his decision I should say it recalled absolutely the certificate and put nothing in its place, and therefore that the primary condition of the workman's case had gone. But then he does not do so, as your Lordship has pointed out. He says, in the plainest words, that the man unquestionably has nystagmus. He begins with that explicit statement and he ends with a repetition of it. But then he qualifies it only in this way, that he says he does not think it is miner's nystagmus, that is to say, he does not say there is one disease called nystagmus which corresponds with the industrial disease in the schedule, and something which does not correspond with that description but is a mere symptom of a different disease. He says—“There is nystagmus, but I do not think it is the nystagmus which is caused by the miner's employment.”
Accordingly I think the Sheriff-Substitute puts quite reasonably the question of law which he thinks arose upon the medical referee's decision when he says—Was the medical referee entitled to allow the appeal and recall the certificate on the ground that the nystagmus from which the appellant suffered was not due to the nature of his employment as a miner?
I must say, although not without considerable difficulty, I consider the decision in the same way as the Sheriff-Substitute considered it. I think, with all the information we possess judicially, we cannot read the deliverance of the medical referee as meaning that the man is not suffering from the disease specified in the schedule as nystagmus, although he considers that it is not due to his employment as a miner. Now whether it is due to his employment as a miner or not is not a question which is submitted by the statute to the final decision of the medical referee. It is a question of fact which must be proved by one or other of the parties, the employer
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The result is that the workman is entitled to go on and prove that, notwithstanding the medical opinion, his morbid condition of the eye was caused by his employment. And accordingly I agree with your Lordship in the course you propose.
If one was in a position to consider the certificate of the medical referee as being equivalent to this, that the workman was not suffering from industrial disease, then, of course, that would be equivalent to finding that there never had been any accident and there would be no need for any further procedure. It is just because I do not feel that, judicially, one has sufficient knowledge of where the medical referee passes from the region of science into the region of fact that I am unable to construe the certificate in that way.
I agree with your Lordship's observation that probably the whole difficulty in the case has arisen from the way in which the Order in Council was framed, and that, had it been framed so as to apply to miner's nystagmus only the difficulty in this case would not have arisen.
The Court answered the first question of law in the negative and the second in the affirmative; recalled the determination of the Sheriff-Substitute as arbitrator; and remitted the cause to him to allow parties a proof of whether the nystagmus from which the appellant was certified to be suffering was or was not due to his employment with the respondents, and to proceed as accords.
Counsel for the Appellant— Moncrieff. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents— Russell. Agents— W. &. J. Burness, W.S.