Honeybee, Sorry, not familiar with 'stickies' - how do I find them? Thanks.

Hello everyone, I had a letter today from the Pension Service in Newcastle to say they have arranged for me to have a medical by the French authorities regarding the new ESA benefit. I have been on Incapacity Benefit since my accident at work in 2004 and a while ago I was sent the ESA50 form to complete. I didn't just tick boxes but explained as fully as I could how my pain and disability affect me. I had to go to my GP for her to complete a section and I even sent them a consultant's letter that states my disability is permanent. They obviously aren't satisfied. I have lost my industrial injuries benefit for which I am appealing and it looks as though my IB could be stopped, when going by the amount of claimants that get refused or have had their benefit stopped. I don't know how much more I can take. I had a reassessment here in France in 2009 for my IIDB and it was a fiasco but my benefit was stopped. I am therefore dreading having another French medical. This time I am taking a French friend with me who is fluent in English. Can anybody tell me how the 15 points are made up and why someone who is clearly not able to function in their everyday life is determined fit for work by the ESA assessment. Thanks all.

I'm sure they make it up as they go along. But I think they are saying this, even though it's not true, because there are so many injury cases and when people are having MRI scans that show some sort of degeneration or abnormality it is easy to say that this is causing the pain so that they don't have to pay out otherwise the cost would be astronomical. Apparently, the majority of the population have been found to have spinal abnormalities on MRI but are pain-free and don't mean they will lead to pain and disability. This has been known for a very long time by the medical community. The DWP just don't want to know or admit that this is true. When I had my tribunal in February, I felt intimidated by the doctor because I was challenging expert knowledge. I felt he was trying to bamboozle me with words. When I look back at the 'minutes' taken at the tribunal I think he was as confused as I was. At one point he actually said "There is a distinction between those who are symptomatic and those who are not". Err yeah like 'symptoms' maybe!!! I think the judge must have wondered what he was getting at because she called time and stopped the hearing but by that time my brain had gone to mush anyway.

I contacted the Tribunal Service as I had received an 'additional response', after sending in a new medical report that contradicts the Decision Maker's evidence. I wasn't sure what it meant so was told that they only take notice of expert opinions in the UK. I wasn't quick enough on the phone to say anything. You see as I live in France, for the purpose of a reassessment in 2009 I was sent for a medical here and this was arranged by the DWP. They were happy to accept that report, even though I complained in writing to them saying the medical was inadequate; the doctor had completed the form before we got there using the evidence the DWP had sent him, and he didn't speak a word of English unlike a lot of doctors here. So why say they won't accept this new medical report. I have therefore phoned the Industrial Injuries today and asked for my case to be looked at again, as I believe it can be looked at again at any time. I was told that even though I had been for a Tribunal appeal in February this year and lost I could still have my case looked at again. I will send in my new medical report and see what excuse they come up with this time. They are trying to say my condition is 'constitutional' and that even without the accident I would still be as I am now within a five year period from the date of the accident because I have an isthmic spondylolisthesis. The consultant I saw here in France told me, as I was pain-free before the accident my current condition has been caused by the accident and is not from a pre-existing condition. I have found an excellent book written by an eminent spinal specialist in England and he has written this book from his own experience, as well as reading from other people's experience. From what I have read regarding my own condition in this book it contradicts what the Medical Examiner, the Decision Maker and the Tribunal doctor have said. If my condition was 'constitutional' it would mean that it was genetic or I had inherited it. If I had this would be classed as 'primary' degeneration and so the decision that was made on me would be right. Because my condition was from a childhood accident which caused a fracture in a bone in my spine, any degeneration from that is classed as 'secondary' and so is not constitutional. Also, my condition stabilises in adulthood and doesn't cause a vulnerability or weakness or pain. Therefore the decision made on me is wrong. Although I have already given the Industrial Injuries peer reviewed research evidence that contradicts their evidence they say they don't accept this. I cannot understand why not when medical experts rely on what they read to gain their knowledge and quote them in tribunal case decisions. It seems one rule for them and another for us!!!

Thank you for your reply limasierra. I have tried to get an advocate but living in France now means that any funding for the CAB and other agencies in the UK can only help people living there. I am hoping that this new evidence from the spinal traumatology specialist that I recently saw will help, as the industrial injuries people have kept saying I haven't any fresh contradicting evidence in support of my case. I think it is a money saving ploy on the part of the DWP. I was awarded 60% disability and all the stress over the last 18 months since losing my benefit has made my symptoms worse and although I am normally a mentally strong person, I feel mentally drained. I don't need to tell you how draining being in constant pain is but as I cannot tolerate any medication (I was on 300mg of morphine twice a day) because the headaches/migraines I get several times a week since the accident, I don't get any respite. Can you please tell me, if you don't mind, how you presented your case and how your advocate helped at your appeal so that I may benefit from your experience. How did you challenge the opinion that was given you that your pain and disability was 'constitutional'?

Sorry, I meant the letter was translated into English from French.

I am so pleased for you. As I stated in an earlier reply, my industrial injury benefit was stopped 18 months ago and I have tried to appeal. I wasn't successful in February but have recently seen another consultant here in France who doesn't agree with Atos and the consultant in England that my current condition is constitutional. I have sent this letter to the IIDB team and also to the tribunal service. The doctor here speaks very good English and was kind enough to translate his letter into French and had his secretary type it up. I had a reply from the IIDB person dealing with my claim today and he is still trying to say my condition is constitutional. Unfortunately, I can't get any help from the CAB or such like as I now live in France but having my benefit stopped has made the last 18 months very difficult. Again, I would like to say how pleased i am for you. Well done for sticking with it.

Dear Honestbear, I understand how you must feel and how difficult it is trying to stand up for what you believe especially to doctors. I don't know the nature of your accident but if you started with pain after your accident then I believe you have a case. As I explained before, the majority of the population has some form of abnormality in their spine, including arthritis, but this doesn't mean it will lead to pain and disability. If you hadn't had your accident you may or may not have developed pain in the future and if you did, it may possibly have been at a much older age. Regarding the treatment you had, if you hadn't had your accident you wouldn't have needed to go for any so it shouldn't matter that your pain has increased. Most industrial injury claims are denied and go on to a tribunal appeal and the majority then succeed so if I were you I would go to appeal. By the way, the Government and the CAB have complained to the Department of Work and Pensions about the amount of claims that need to go to Tribunal and have then succeeded.

Hi, I wouldn't give up. I don't know how old you are but the majority of people have wear and tear changes in their spines as they age so yours could just be a coincidental finding and doesn't necessarily mean that they are causing your problems or that if you hadn't had your accident they would have become painful. If you enter into your browser 'magnetic resonance imaging of the cervical spine in asymptomatic people' you will find a number of research based evidence which you could send to the tribunal. Studies have been extensively carried out on people with no pain or symptoms whereby MRI scans have been performed and a large number of these asymptomatic people have been found to have abnormal findings on their scans.

Hi, I am sorry your benefit has been stopped. This happened to me in May last year. My benefit just stopped before receiving a letter telling me so. I had an accident in 2004 and injured my lower back. As I had a pre-existing spondylolisthesis from a childhood accident I was told that even if I hadn't had my accident I would still be disabled and in pain within a five year period. I do not believe this and so I appealed. I eventually went to tribunal in February this year and the doctor there said that it isn't my spondylolisthesis that is causing my problems but a slipped disc. At the appeal I gave evidence that showed that the natural history of a spondylolisthesis isn't painful and doesn't lead to disability. This is why I think the doctor changed the diagnosis. Two weeks after the accident in 2004 my upper back started with pain and back in 2007, not long after I started getting IIDB I appealed as I thought I was more disabled than the percentage that had been awarded. The tribunal back then included my upper back and increased my award from 30% (with 3% knocked off for the spondy..) to 57%. My appeal in February this year was unsuccessful and so I started the process of applying to the Upper Tribunal but before I could do that I first had to request a statement of reasons and then ask permission from the first tier tribunal judge to appeal to the Upper Tribunal. I received a letter yesterday saying they refuse. I can now apply directly to the Upper Tribunal. The reason I am appealing to the Upper Tribunal is because I don't think there is adequate explanation, in fact one important element hasn't been explained at all and that is regarding my upper back. In their statement of reasons, the judge and doctor state that they disagree with a previous medical doctor, who had said that my upper back pain is related to something rheumatological prior to my accident in 2004, as there is no evidence to support this. Then later in the statement of reasons they state that there is evidence of pain in 1995/6 which is further evidence of a constitutional weakness and vulnerability. These two statements contradict each other; in one hand they are saying that there is no evidence to support an upper back problem prior to my accident in 2004 and then they say there is. At the tribunal hearing I explained that I had an accident in 1995 to my upper back which was work related and this was backed up by my occupational health papers (which I didn't have with me at the appeal) but no mention of this was in the decision notice or the statement of reasons but was mentioned in the 'minutes' taken at the time of the appeal. I have no history of upper back pain prior to the accident in 1995 so it should have been explained how they arrived at their decision. I believe that a lot of the supporting evidence I have given has been ignored or maybe not even looked at. It is very difficult and as you say, I think they hope claimants will give up. I think it is important not to give up but try all avenues. It is made more difficult for me as I now live in France and don't have access to help or advice so am on my own with this. I hope you are successful but for me getting another doctor to say that they don't think my symptoms are constitutional seems impossible. Doctors don't seem to like to rock the boat so to speak. Good luck!