my client lost her HRC/LRC award on renewal due to orthopaedic consultant report. they wrote a long letter detailing the care needs and mobility problems. Client has severe breathing problems as well as back problems (on morphine tablets for pain). DM has taken consultant's comments over client's evidence given his position and expertise.

is ther any commissioners rulings on this?

No Comm's decisions, although no doubt there are some, but below is an extract from the Decision makers guide - chapter 51 - which can be used quite effectively......

"51.3.2 Hospital Factual Reports (HFRs)
The Benefits Agency does not have to pay for individual HFRs. Hospitals are funded separately to provide this service but again this extends only to the provision of factual information. Although usually more detailed than GP records, hospital notes still concentrate on recording information on diagnosis, clinical findings and treatment. They may contain a great deal of detailed information about the various types of investigation which have been undertaken and which are usually of no relevance to the issues the adjudication
officer has to decide. In general therefore HFRs can provide similar
information to GPFRs. The hospital rather than the GP is likely to be the most appropriate source of information where the person suffers from an uncommon condition, where the diagnosis is complicated or where specialised forms of treatment are involved.

51.3.3 Consultants Reports
It is possible to ask a consultant to examine a person and to answer specific questions relating to the care and mobility needs. However, it has to be appreciated that such reports are expensive and take a long time to complete. More importantly though, it has to be recognised that a consultant's expertise will be concentrated in the areas of diagnosis, investigation and treatment. Whilst consultants usually provide excellent information in these areas, they often do not appreciate the full significance of questions relating to care and
mobility needs. Experience has shown that such questions are not answered as fully as adjudication officers would want. Consequently, the situations where a consultant's report is the most appropriate source of further evidence are likely to be few and will usually be confined to cases where the diagnosis is particularly uncommon.

R(M)1/93 requires the tribunal to give reasons for rejecting claimant's medical evidence or preferring one medical opinion to another.

I presume that the orthopaedic consultant in question was the one treating the client and not, for example, one instructed by an insurance company in a personal injury case.

For one thing, the orthopod is only likely to have detailed knowledge of those aspects (musculo-skeletal) that he is treating. He may not know much about every day effects unless either he has discussed with the client and made personal observations, or eg has infomration from someone like a hospital physiotherapist.

He will not be aware other than in passing of any disabilites for which she is likely to be under the care of other specialists - though if she has had surgery her breathing may have been brought to his notice though it is more likely that respiratory problems in the theatre would be the anaesthetist's concern.

Lastly - but not by any means least- surgeons are never happy about admitting that the outcome of their interventions has been anything but totally brilliant. So they may underplay any delays in recovery, ongoing complications or an outcome that is less satisfactory than they hope.

But I suppose he may genuinely think your client is not as disabled as she thinks she is. It can happen.

But certainly if the tribunal does not justify their choice of evidence any decision could be set aside for an error of law - not that that ever means another tribunal might not arrive at the same decision but explain it better!