Greater Manchester Pension Fund · CAS-34344-K0D5

CAS-34344-K0D5

Ombudsman’s Determination Applicant Mr S

Scheme Greater Manchester Pension Fund

Respondent Manchester Airport Group (MAG)

Complaint Summary Mr S’ complaint is that he has been incorrectly refused the early release of his deferred pension on the grounds of ill health.1

Summary of the Ombudsman’s Determination and reasons

1 CAS-34344-K0D5 Detailed Determination Material facts

2 Mr S was informed that the spinal surgery could no longer be carried out with Warrington and Walton NHS Foundation Trust. Mr S transferred to Salford Royal NHS Trust and remained on the waiting list.

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• In his and colleagues’ experience the degree of symptomatic improvement from disc replacement surgery was highly unpredictable4.

• It was clear that there was a variation in the degree of improvement in patients’ conditions and while disc replacement could help, it was not a perfect cure and left many with very significant symptoms.

• Whilst he was happy to provide a report if required, given that Mr S’ clinical picture had not significantly changed and that it already had reports from Miss Morgan and Dr Gidlow, he doubted a further report would add to MAG’s perspective.

“My professional opinion regarding this case is that given his current clinical state, [Mr S] is highly likely to be permanently incapable of doing the job he was doing when he left employment.

He is unable to work gainfully currently, and is still awaiting a date of surgery for his disc replacement. Even assuming this was done promptly, he would still have a long period of rehabilitation before it would be clear how much (if any) improvement he was likely to have. As mentioned above, the degree and speed of improvement from disc replacement is unpredictable, and thus the balance of probabilities is clearly tilted towards saying that he remains highly unlikely to return to gainful [employment] period [sic] within 3 years of this application for his benefit.

On balance of probabilities, the likelihood of him being capable of any gainful employment between now and normal pension age are very slim.”

• The documentation provided: GP medical records to 19 June 2018, full medical records held by Healthworks and Dr Myneni’s report.

• Mr S’ current age, former role at MAG and that he had been unable to undertake any form of employment since February 2016.

• Mr S’ past medical history.

• Mr S had applied for the early payment of his deferred benefits on the grounds of ill health.

4 Dr Myneni provided links to two studies.

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• It was clear that Mr S was very dissatisfied with the way his ill health applications had been dealt with over the last two years.

• Mr S had difficulty mobilising and even sitting in a chair for more than 15 or 20 minutes. Mr S said all his activities of daily living were severely limited and he required help with personal care. Despite anti-depression and analgesia medication he continued to experience very low mood and significant pain in his neck and lower back. Mr S said depression was the main cause of his current functional disability, but it was clear that the pain Mr S was experiencing from neck and lower back were also making a significant contribution.

• Mr S had been advised that the surgical procedure planned for his neck would no longer go ahead at his local hospital but had been given options to be referred outside of the area. Mr S had decided not to undergo the surgical procedure and felt the only action that would resolve his symptoms and functional disability was the release of his pension benefits.

“It is clear that [Mr S] is currently significantly disabled because of the medical conditions affecting his neck and his lower back as well as his severe anxiety and depression. Hence, it is my opinion that he is currently unfit for all work.

I note that [Mr S] has decided that he does not wish to have any further treatment for his neck and does not want to take up the option from his local NHS trust to be referred to the…to explore alternative treatment for his medical condition. In addition it would appear from the medical records available to me that [Mr S] has not explored all the options to treat his psychological symptoms. I have recommended to [Mr S] that he consults his GP and ask for further in-depth assessment of his psychological health and possible referral to a psychiatrist in order to obtain a clear diagnosis and more targeted psychological therapies.

In my opinion, [Mr S] has not fully exhausted all the evidence based treatment for his cervical and lumbar spine condition as well as his severe depression and anxiety. …

In my opinion, [Mr S] is currently unfit for all work and on the balance of probabilities he is also permanently incapable to effectively discharge the duties with his former employer as an IT Communication Engineer. It is also my opinion that there are further treatment options available to [Mr S] which is likely to improve his functional

4 CAS-34344-K0D5 capacity and hence render him medically fit to undertake gainful employment. Appropriate duties [Mr S] could perform is light manual work and office based work.”

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• It was known that he had been on Employment Support Allowance (ESA) since February 2016. If it was unable to consider this information why was that?

• It was not his fault that Dr Gidlow was wrong in predicting that he would be capable of gainful employment within three years of his initial application. Maybe Dr Gidlow should have considered the availability of surgery and the complexity of the surgery.

• Dr Kisnha had failed to explain exactly why he considered he would be capable of gainful employment within three years of applying for the benefit. What did Dr Kisnha base this on?

• Dr Kisnha did not know the current clinical state of his cervical stenosis. This would not be known until an MRI scan and reassessment. Cervical stenosis was a degenerative condition. He had yet to be referred to a specialist. Dr Kishna did not know what, if any, treatment would be considered appropriate, offered, when it may be available, or its outcome, which was classed as complex spinal surgery.

• During the assessment he had raised issues about the surgery but Dr Kishna promptly left.

6 CAS-34344-K0D5 • He and his wife found Dr Kisnha very rude and condescending and subsequently complained to Healthworks. Dr Kisnha’s comment that there had been and were no issues with the availability of surgery was nothing short of ridiculous.

• In his report Dr Kisnha said he was pleased that he had now contacted W… Hospital. He had never not been in contact with the hospital and had responded to all correspondence and attended all appointments.

• Dr Kisnha said he had decided not to be seen outside the local area, have the surgical procedure performed, have any further treatment on his neck and did not want to take up the option of being referred to explore alternative treatment. This was false.

• He had serious symptomatic issues with his lower back. What exactly was Dr Kisnha basing the projected improvement on?

• Dr Kisnha failed to mention that he had received counselling for depression.

• He knew his body and mind far better than Dr Kisnha ever would. He would not be capable of gainful employment before his normal pension age. Dr Myneni’s report supported his view and referenced two medical studies regarding the surgery.

• In light of his incapability of employment for the past three years and now his resulting financial position he would be grateful to be contacted to discuss all options, even simply returning his contributions.

• Would he have no option but to accept and undergo complex spinal surgery (if offered) with associated risks in order to become eligible for the release of his pension?

• He understood that Mr S had passed the first part of the two-part test for ill health retirement.

• Mr S’ initial application had been made some time ago. At that time there may have been a possibility that Mr S could have undergone surgery, which may have meant that he could return to some form of employment. However, to date Mr S had not been able to do so due to ill health. Mr S had not been offered surgery and was still waiting for a referral. On assessment if the risks outweighed the benefits surgery might not be considered suitable.

• He understood it was approaching three years since Mr S was unable to continue working, he believed the release of Mr S’ pension should again be considered with respect to the second part of the test. 7 CAS-34344-K0D5

• He noted that Dr Myneni supported that Mr S was highly unlikely of being able to return to gainful employment within three years of his application and the likelihood of him being capable of any gainful employment before his NPA was very slim.

• Dr Myneni also stated that Mr S’ Orthopaedic Surgeon (Miss Morgan) had confirmed that Mr S was incapable of any form of work both currently and for the foreseeable future because of his disabilities.

• Mr S also wanted to know why he had not been considered for ill health retirement before being dismissed on medical capability grounds.

• Mr S’ complaint was a restatement of the same facts and grounds put forward in his initial application that had already been determined.

• Dr Kisnha found that Mr S was likely to be capable of further meaningful employment in the next three years, including light manual work and office-based work.

• Mr S’ depression was a new ground for ill health retirement that was not considered in his original application. Mr S had been asked for further information, but this had not been provided - albeit it was understood that Mr S had received, or was receiving, counselling and cognitive behavioural therapy.

• Mr S had asked whether he had no option but to undergo complex spinal surgery with the associated risks in order to become eligible for the release of his pension. Mr S had to satisfy the ill health early retirement condition that he was incapable of meaningful employment in the next three years.

• The Stage 1 decision-maker said his assessment of Mr S’ application was dependent on the medical evidence provided and the opinion of the IRMP. At present, it had been made clear that the neck surgery was a possible treatment for his condition and that Mr S did not satisfy the eligibility criteria for Ill health early retirement. It was reasonable for him to take into account this possible treatment and to conclude that Mr S remained ineligible for the early release of his pension.

• Regarding Mr S’ pension options, a refund of his contributions was not possible. He may apply for early retirement at age 55, but this would be discounted for early payment.

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5 Mr S submitted a letter from Dr Larner to his GP practice dated 10 May 2019. Dr Larner says most recent imaging has shown no definite changes in Mr S’ neck compared with the previous imaging of August 2016. “Hence there is no absolute indication for referral for a neurosurgical opinion, but if it is [Mr S’] wish to go forward with this then I am happy to make a referral”. 9 CAS-34344-K0D5

Summary of Mr S’ position

• MAG denied him the opportunity of an ill health pension from active status.

• Dr Kisnha’s assessment was a shambles. On two occasions he requested if he could leave following heated exchanges.

• Dr Kisnha’s comment that he did not want to be referred to W…Centre was a lie. He was referred there, hence Dr Larner’s subsequent report.

• It was not right that two IRMPs from HealthWork were used to carry out the assessments.

• The specific treatment for his neck is two-level cervical disc replacement. This surgery carries major risks and was still suspended at W…Hospital following several incidents including deaths. He does not believe that he should be expected to undergo surgery (that has not even been proposed) of this complexity and risk in order to fulfil the requirement of the Fund.

• Dr Gidlow was wrong when predicting he would be capable of gainful employment within three years of his initial application. MAG said it wanted Dr Gidlow to write to Miss Morgan to ask the likelihood of being offered surgery and the prospects post-surgery within the next three years. HealthWork informed him that this was not something Dr Gidlow would do. This was the main reason for his initial complaint not being upheld. What has changed in respect of his current application that is different to his previous application?

• Dr Larner clearly stated in his report dated 10 May 2019 that there was no absolute indication for referral for neurosurgery.

• If spinal surgery was offered and considered appropriate and recommended, he would obviously consider it. But to date it has not been.

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Summary of MAG’s position as presented by DLA Piper.

Dr Kisnha considered all relevant matters, was pushed on his position/opinion by MAG and re-confirmed his opinion.

Mr S says he has been denied the opportunity of an ill health pension from active status. I have set this point aside, as I considered this matter in Determination PO- 18493, not upholding Mr S’ complaint. I cannot revisit matters which have already been the subject of a previous Determination.

Mr S says it is not right that two IRMPs from HealthWork, Dr Gidlow (PO-18493) and now Dr Kisnha, have considered his application. But this is not contrary to the requirements under the 2013 Regulations.

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Dr Kisnha replied that he was pleased that Mr S had contacted his local hospital and was hopeful that he would be assessed and provided with treatment options. Again, Dr Kisnha did not say what these might be, when they were likely to be available, or comment on what outcome they were likely to produce for Mr S and how that would affect his ability to undertake gainful employment within three years.

It is also unclear to me from reading Dr Kisnha’s medical evidence, and I conclude that it cannot have been clear to MAG, the extent to which Dr Kisnha’s opinion was based on a belief that Mr S was in fact refusing suitable treatment. It is not wrong for a medical opinion to take such a refusal into account, and it may on some facts be proper to conclude that if only a person would undergo recommended treatment they would probably get better, but before a decision-maker can base a decision upon unreasonable refusal of treatment they must have some evidence from which to conclude that a particular treatment option exists, that it is recommended for the applicant, and that the applicant unreasonably declines to undergo it. In a case involving complex surgery that requires the evidence of a treating clinician.

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Karen Johnston

Deputy Pensions Ombudsman 22 April 2020

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