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HAND-ARM VIBRATION SYNDROMEOCCUPATIONAL DISEASE GUIDE 2

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Hand-arm vibration syndrome

CONTENTS

1. Insurance coverage & the Portal 2. Reserves and awards3. CRU4. Employer’s duty5. Medical causation6. Investigations 7. The Expert evidence8. Making a decisionAppendix 1 – Stockholm workshop scaleAppendix 2 – measuring vibration

Occupational disease guide 2

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INTRODUCTION Exposure to vibration can give rise to one or a series of conditions in the hands and upper limbs collectively known as Hand-Arm Vibration Syndrome (HAVS) or more commonly Vibration White Finger (VWF).

The term HAVS is a catch all term for a condition made up of symptoms such as blanching (that is the fingers turning white) and the sensorineural symptoms (tingling and numbness) in the hands as well as loss of strength in the hands. These symptoms are caused by repeated exposure to excessive vibration. HAVS can also include vibration induced carpal tunnel syndrome (more on that at 5.11 below).

Vibration exposure at work can arise from the use of handheld power tools (such as grinders or hammer drills), hand-guided machinery (such as lawnmowers and plate compactors) and hand-fed machines (such as pedestal grinders).

HAVS became a prescribed disease (PD A11) in 1985 and, according to the HSE, over two million workers in the UK are at risk each day.

Vibration affects the small blood vessels and nerves of the hands and the musculo-skeletal systems of the upper limbs. When the body is exposed to cold temperatures, the extremities, such as the fingers and toes, lose heat. This is because the small blood vessels under the skin spasm, slowing down the blood supply that is helping to preserve the body’s core temperature.

In people with HAVS, the sensitive blood vessels overreact to cold temperatures and become narrower than usual, significantly restricting the blood flow.

In some cases, an underlying health condition can cause blood vessels to overreact. This is often a constitutional condition, usually referred to as Raynaud’s phenomenon or simply Raynaud’s and is not caused by exposure to vibration. However, the symptoms are identical.

The majority of cases of Raynaud’s are associated with autoimmune conditions, which cause the immune system to attack healthy tissue. Autoimmune conditions known to be associated with Raynaud’s include:• Scleroderma – a condition that causes hardening and thickening of the skin;• Rheumatoid arthritis – which causes joint pain and swelling;• Sjogren’s syndrome – where the immune system attacks the body’s sweat and tear glands;• Lupus – which causes tiredness, joint pain and skin rashes.

Blood-born viral infections, hepatitis B and hepatitis C, can occasionally trigger Raynaud’s in some people.

Raynaud’s can also be a side effect of taking certain medicines, including:• Some types of anti-migraine medication – such as sumatriptan and ergotamine;• Beta-blockers – which are used to treat high blood pressure and heart disease• Some chemotherapy medicines;• Decongestants ;• The contraceptive pill;• Medicines used in hormone replacement therapy;• Some types of medicines used to treat high blood pressure – such as angiotensin-converting enzyme (ACE) inhibitors

and clonidine.

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Use of illegal drugs, such as cocaine and amphetamines, can also contribute to the onset of Raynaud’s.

Raynaud’s sometimes results from a physical injury. Skin and tissue damage caused by frostbite can also lead to Raynaud’s. It can also affect musicians, people who type a lot, or other people who use their fingers and hands more than usual.

HAVS is usually a ‘cumulative’ and ‘dose-related’ disease – that is, its severity increases with exposure, but eventually reaching a plateau where symptoms stabilise.

HAVS is a ‘divisible’ disease meaning that the harm caused can be apportioned amongst those employers who have exposed an employee to vibration throughout the claimant’s career. A defendant is only liable to the extent that culpable exposure has contributed to the overall condition.

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1 INSURANCE COVERAGE AND THE PORTAL 1.1 HAVS claims are ‘long tail’; this means HAVS is a condition which is categorised as being ‘gradual in operation’ and

usually arises from cumulative exposure with ‘insidious manifestation of symptoms’. With long tail conditions like HAVS it is necessary to establish the identities of the insurers on risk during the period of alleged exposure.

1.2 For single defendant/multiple insurer claims, the last insurer on risk during culpable exposure handles the matter but with an option for an insurer with a greater interest to take over this role. This insurer becomes the handling insurer.

1.3 Where there are multiple defendants, then the last insurer on risk during the culpable period for each should handle the claim for that defendant, but the co-ordinating role should be taken over by the handling insurer for the defendant with the greatest exposure (if appropriate). The overall handling insurer should become the ‘co-ordinating insurer’.

1.4 The convention between insurers is to apportion damages and contribute on a ‘time-on-risk’ basis, with no ‘weighting’ for dose of exposure. Remember, the courts will not necessarily follow such a simplistic approach.

1.5 The onus is on any insurer to demonstrate a cut-off date of culpable exposure during its period of risk (ie a date after which its policyholder was not liable thereby reducing its time on risk period). If the handling insurer can demonstrate that there was no culpable exposure during their time-on-risk, the claim can be passed back to the previous insurer.

1.6 Where there is continuing culpable exposure, the ultimate cut-off date for the purposes of apportionment should be the date of the letter of claim to the last culpable defendant.

1.7 Between insurers, the generally accepted ‘date of knowledge’ for heavy industry is 1 January 1976 (although see section 4.12).

1.8 A claim for carpal tunnel syndrome (CTS) which is presented as a HAVS claim is treated as long tail. A CTS claim presented as a repetitive strain injury (RSI) will be treated as short tail (i.e. the insurer on risk when symptoms first manifest or are capable of diagnosis handles the claim).

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THE PORTAL 1.9 The Portal is a website through which certain claims must be run. The following is key information about the portal for

HAVS claims: • The portal applies to HAVS claims where there is one defendant and the claim has a value up to (25,000. (for claims

made after 31 July 2013). • An ‘admission of liability’ means admitting breach of duty: note that there should no limitation defence, contributory

negligence cannot be raised and that the defendant accepts they caused some loss (to be quantified). • The CNF should be sent to the insurer identified as the insurer last on risk for the employer at the material period

of employment (if the insurer’s identity is known). Note the insured will be unaware of the existence of the claim until the insurer or their representative tells them. The CNF can be sent to the defendant’s registered office albeit the claimant must make a reasonable attempt to identify the insurer and must have carried out an ELTO search.

• If a reasonable attempt has not been made, invite the claimant’s solicitor to register the CNF on the Portal (this has the effect of starting the timetable again).

• The CNF can be accompanied by a more detailed letter of claim and evidence such as the HMRC Schedule, completed forms of authorities, medical report.

• The CNF should be acknowledged within 24 hours. (Usually by the insurer) (if by post the insured insurer should acknowledge as soon as possible (Note if the insurer intends to instruct solicitors or any representative they must assign the case to them upon instruction.)

• Applies to claims involving more than one insurer. If the lead you must ensure that all insurers are notified of their interest.

• The defendant (insurer) has 30 business days to make an admission to obtain the benefit of Stage 1 and 2 costs. Diarise 30 business days.

• It is likely you will require the consent of any active insured to make any admission. • In some circumstances the CNF may not contain what you judge to be sufficient in the mandatory sections. You

can decide if this is a valid reason for the claim to exit the process (if the court agrees that there was insufficient information there are costs sanctions that can be imposed on the claimant).

• On receipt of a CNF that does not contain sufficient information you will give the claimant solicitors three days to serve a more detailed CNF. (See appendix 4 Portal Disease 1).

• If you still do not receive sufficient information: exiting the process will then be governed by the disease and illness PAP, the CNF serving as a letter of claim unless where the CNF did not contain adequate information.

• Claims that exit the process will not have a Fixed Recoverable Costs (“FRC”) regime. • If a claim is submitted that should have been notified via the Portal ensure that the claimant solicitors are put on

notice of this. They may then register the claim via the Portal. If so follow guidelines below. • If an admission is made but you are not satisfied with the medical evidence, (or if any other or particular new

evidence comes to light) when served, you can allow the claim to exit the Portal but Civil Procedure Rule 14 on resiling from an admission applies.

o Note that it is possible to resile from a *causation admission* leaving breach of duty and the limitation admission in place by doing so within 15 days (the consideration period) of receipt of the settlement pack. See Section 7.36 (b) of the Protocol.

• Register the claim with the Compensation Recovery Unit (see section 3) as usual (and potentially NHS charges). • If a decision is made on receipt, or very early on, that this is not a case where it is appropriate to make a stage 1

admission, contact the CS straight away. You can either deny in the portal or allow the claim to exit. • If a decision cannot be made to admit or deny ensure contact is made with the CS outside the portal (post/email)

to confirm that going forward the case will be dealt with in accordance with the D and I PAP before the 30 business days expires.

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First claim (or previous claims but not paid):

• This could be a first claim for the insurer but there may be other claims paid or live with other insurers for the same policyholder —check). Be clear that this is a first claim with potential for more claims before treating as a first claim.

• Active insured —>Can you investigate? —>Evidence of employment/records —>Instruct a CI or carry out own investigations/review any report within 30 days —>limitation/contributory negligence/causation a potential issue? Can you admit or appropriate to deny?

• Non-active insured —>Unlikely to be able to investigate —>Evidence of employment? Likely to require information under the Disease and Illness PAP —>deny —>Exit the Portal.

Previous claims (paid)

• Active insured —>previous claims paid —>Evidence of employment/records? Do you have sufficient information/are previous claims relevant? Can you investigate further? Limitation/contributory negligence/causation a potential issue? Can you admit or appropriate to deny?

• Non-active insured—>previous claims paid—>Evidence of Employment? Unlikely that you can investigate but do you have sufficient information that previous paid claims are relevant? Limitation/contributory negligence/causation a potential issue? Can you admit or appropriate to deny?

Limitation

• Some insurers will immediately reject the claim if exposure ended more than 25 years ago. Agreeing a consistent approach on this can depend on a number of contingencies and will be for you to explore with insurers.

Lead or follow? IDCWP Guidelines • Make sure to have a copy of the Industrial Disease

Claims Working Party (“IDCWP”) handling guidelines available to you. Following the IDCWP guidelines (if a signatory or consider it a sensible approach) can save time and money and gives a standard approach to dealing with HAVS claims. Make sure to agree to contribute, subject to the claimant proving employment, breach of duty, limitation and causation.

• The last insurer on risk will continue to be the Handling Insurer. • The CNF is likely to have been sent to the last insurers for the material period who may not have an interest/or

may not have a 50% interest. If a CNF is sent to an earlier insurer that happens to have a greater/majority interest then common sense should dictate that that insurer should handle. (If this is not agreed you will need to reallocate or re-assign. Check the Claims Portal BS2 reject claim and/or B3 re-assignment. Note if reassigned the timetable still starts from the original date the CNF was registered)

• See if you can find out whether the insured has dealt with any previous claims and who paid the matter and who handled it.

Evidence of employment (HMRC Schedule) • It is fundamental that you have evidence of employment. You will need to request that information if it has not been

provided through the portal. This request should not cause the claim to exit the portal. The key issue is that it may be an admission could be made, but there is still no evidence of employment. Any admission in these circumstances will be conditional upon disclosure of evidence of employment before settlement.

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Personnel file and occupational health records — DPA

• Under the Disease and Illness Pre-Action Protocol if a personnel file and occupational health records exist these should be disclosed. It is unlikely that any decision can be made without access to these records. If there is an active insured they can be advised what is required from them to disclose these records to you in accordance with the Data Protection Act 1998 (“the DPA”). Refer the insured to Section 35 of the DPA re. the exemption where disclosure of material, is necessary for the purpose of obtaining legal advice or is otherwise necessary for the purpose of in connection with any legal proceedings —including prospective legal proceedings.

Policyholders

• Permission of an active insured will be needed to make any admission in the portal. Where the insured is not only active but, say, a current policyholder it is crucial that they are involved in any decision to admit or deny.

Stage 3

• Note that arguments on quantum at Stage 3 of the portal can only be made if those arguments had been submitted into the portal at Stage 2.

• Section 7.38 of the Protocol explains what happens if parties cannot reach agreement on damages to be paid. See Sections 7.49 and 7.38 of the Protocol to ensure you are aware of how to protect the position at Stage 3 on quantum arguments. Also note PD86 which sets out the procedure. It’s sensible to ask the claimant’s solicitors to register the case on the Portal to obtain the benefit of FRC.

Funding/costs

• Stage 1 claims (1,000 — 25,000 FRC £300 (all claims) (Note to be paid 10 days after receipt of Stage 2 settlement pack);

• Stage 2 Claims £1,000 — £10,000 FRC £600 • Stage 2 Claims £10,001— £25,000 FRC £1,300

Plus disbursements allowed in accordance with rule 45.19 and if funding pre dates 1 April 2013 plus the success fee. The rules are unclear but it is likely if funding pre dates April 2013 disbursements will also include the ATE premium.

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2 THE INITIAL RESERVE Funding/costs

2.1 Calculating the figure which is appropriate for general damages is done by considering several relevant factors to the pain, suffering and loss of amenity by the claimant. If settlement cannot be agreed then the award of general damages is ultimately at the discretion of the court. The extent of the award will depend on:

• The claimant’s age and sex; • The severity and extent of symptoms – this is quantified in four stages according to one of two scales: the Taylor-

Pelmear Scale and the Stockholm Workshop Scale (see Appendix 1). The former scale is not now recognised by the courts although it continues to be used by some medical experts

• How symptoms affect work and social and recreational activities. • Whether the condition is permanent or transient and the impact on work and lifestyle generally.

2.2 The Judicial College Guidelines (Chapter 7 Injuries to Internal Organs (13th Edition) (7)) should be used as the starting point for reserving purposes. Bear in mind that cases which post-date the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will be subject to 10% uplift on general damages, this is reflected in the figure below. The JC Guidelines give the following guidance:

“Vibration White Finger and/or Hand Arm Vibration Syndrome, caused by exposure to vibration, is a slowly progressive condition, the development and severity of which are affected by the degree of exposure, in particular the magnitude, frequency, duration and transmission of the vibration. The symptoms are similar to those experienced in the constitutional condition of Raynaud’s phenomenon.

The Stockholm Workshop Scale is now the accepted table for medical grading of the severity of the condition. The Scale classifies both the vascular and sensorineural components in two complementary tables. Individual assessment is made separately for each hand and for each finger.

The vascular component is graded between Stage 0V (no attacks) through mild, moderate and severe to 4V (very severe) where there are frequent attacks affecting all phalanges of most fingers with atrophic change in the fingertips. The sensorineural component is graded between Stage 0SN (no symptoms) and 3SN (intermittent or persistent numbness, reduced tactile discrimination and/or manipulative dexterity). The grade of disorder is indicated by the stage and number of affected fingers on both hands.

Any interference with work or social life is disregarded in that grading.

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The assessment of damages is therefore not strictly tied to the Stockholm Workshop Scale grading. It depends more on the extent of the symptoms and their impact, having regard to the following factors:

i. age at onset;

ii. whether one or both hands are affected and, if only one, whether it is the dominant hand;

iii. number of fingers affected;

iv. extent of impaired dexterity and/or reduction in grip strength;

v. frequency and duration of painful episodes:

vi. effect of symptoms on work, domestic and social life.

Accordingly, depending on individual circumstances, a lower award might be made despite significant Stockholm Workshop Scale grading where, e.g., employment is unaffected, whilst a higher award might be attracted where there is a lesser grading but a greater impact on normal life.

In a severe case, the injury may be regarded as damaging a hand rather than being confined to the fingers.”

2.3 The bracket for damages is set out below:

Severity and description of condition General Damages (PSLA) (inc 10%)

Most Serious

Persisting bilateral symptoms in a younger person which interfere significantly with daily life and lead to a change in employment.

£26,460 to £32,120

Serious

In this bracket there will have been a marked interference with work and domestic activity. Attacks may occur throughout the year.

£14,030 to £26,460

Moderate

This bracket will include claimants in their middle years where employment has been maintained or varied only to remove excess vibration. Attacks will occur mostly in cold weather.

£7,230 to £14,030

Minor

Occasional symptoms in only a few fingers with a modest effect on work or leisure. £2,500 to £7,230

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2.4 Be aware that the Court of Appeal has recently decided a case in which the only condition which the claimants could show was sensitisation with no actual onset of symptoms. As a result the court stated that the claimants had only experienced pure economic loss and accordingly their claims were dismissed. See Greenway v. Johnson Matthey PLC [2016] EWCA Civ 408.

Smith v Manchester awards

2.5 Following the case of Smith v Manchester Corporation (1974) 17 KIR 1 a claimant may have a claim for handicap on the open labour market, if as a result of exposure to vibration they have to avoid future exposure or generally exerting employments. However, if the claimant had pre-existing Raynaud’s which was exacerbated by the employer’s breach then any such claim may well be groundless.

2.6 Bear in mind the two requirements for a claimant to be eligible for a Smith award: • There must be a substantial risk that at some point in the Claimant’s working life they will find them self on the

labour market; • The Claimant’s disability would place them at a disadvantage by comparison with an able-bodied contemporary.

2.7 There is no straight forward formulae for calculating a smith v. Manchester award. Browne LJ in Moeliker v Reyrolle & Co [1977] 1 WRL 132 stated :

“It is impossible to suggest any formula for solving the extremely difficult problems involved in the assessment. A judge must look at all the factors which are relevant in a particular case and do the best he can”.

2.8 In Foster v Tyne & Wear CC (1986) 1 ALL ER 567 The judge took the number of years of the Claimant’s pre-injury earnings as the basis for the calculation and awarded 5 times the Claimant’s salary.

2.9 Typically when taking this approach the number of years has been much lower. In Moeliker the multiplier was 6 months.

2.10 Awards for disability on the open labour market can be made if HAVS is between stages 2 and 4. The size of awards depends on:

• The severity of the condition • The claimant’s capability of working with vibratory tools and in wet, cold and outdoor environments • The claimant’s age, existing job security and likelihood of having to obtain other employment in future • The claimant’s income (awards typically being between six months and two years of net annual income).

2.11 Most reported awards are between £2,000 and £10,000.

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Past and future loss of earnings

2.12 Claims for past and future loss of earnings can be made. Where HAVS has led to a reduction in earnings capacity, such a claim can be combined with Smith v Manchester awards.

Apportionment

2.13 General damages may be apportioned to reflect: • Non-negligent exposure • Other employments with exposure to vibration • Vibration arising from unavoidable or inevitable exposure after the date of knowledge.

2.14 If exposure carries on after the employer’s date of knowledge and symptoms arise many years later, the courts may find the effect of non-negligent exposure is negligible. In Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, the CA made no deduction from damages for non-negligent exposure which amounted to 40% of overall exposure.

2.15 In Whitfield v Rugby Joinery (UK) Ltd [2005] EWCA Civ 561 the damages were only reduced by 20% for non-negligent exposure which amounted to 80% of the overall exposure.

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3 CRU 3.1 HAVS is an occupational disease for which a claimant may seek a disability disablement allowance from the

Department of Work and Pensions (DWP).

3.2 Where a defendant is responsible in whole or in part for the HAVS, the DWP’s Compensation Recovery Unit (CRU) will seek to recover the money paid to the claimant from the defendant.

3.3 When you receive notification of the claim you must register the claim with the CRU, the usual time to do this is once the letter of claim is received. Upon registering the claim you will be provided with a CRU certificate showing what money has been paid to the claimant, under what bracket of compensation and for how long. These are sums which the defendant will be expected to reimburse. Note that the certificate expires and you must ask for an up to date certificate in order to be sure you are reserving the proper amount for the benefits.

3.4 Be aware that the CRU does not take a nuanced view of the causation of occupational diseases. Their standard practice is to seek recovery of the full sums paid to the claimant without regard to the circumstances surrounding the claimant’s development of their condition.

3.5 Bear in mind that once settlement is reached you will be required to repay the sums on the certificate up until the date the damages are paid to the claimant.

3.6 If it is the defendant’s case that it did not cause all or part of the claimant’s condition it is open to the defendant to challenge the certificate of benefits. This is done in two ways;

• The first is to seek a ‘review’ of the certificate. This can be done throughout the proceedings and is a request for the CRU to consider whether the sums paid to the claimant were done so appropriately.

• Once the matter is concluded, if you want to challenge the certificate you must first request a review, setting out why you say the certificate contains benefits which the defendant should not be responsible for paying. This occasionally results in a reduction to the sums on the certificate but not often. Having taken that step you must prepare an ‘appeal’ which should be a detailed written submission, in which you will focus on the medical evidence and set out why all or part of the benefits were not caused or contributed to by the defendant. This is especially important if there is medical evidence of a pre-existing condition that has only been aggravated for a discrete period of time.

3.7 There is one very important thing to bear in mind about CRU, if you settle the claim you will need to specify whether it is inclusive (“gross”) the benefits or after the deduction of benefits (“net”). If you settle gross of benefits then the benefits remain the claimant’s. If you appeal successfully the claimant will be entitled to the recovered benefits. For this reason when you settle you must get a signed consent from the claimant confirming that the defendant is entitled to any sums recovered after appeal. Failure to do this will see those recovered sums go to the claimant.

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4 THE EMPLOYER’S DUTY OF CARE 4.1 When considering any claim the first question which must be asked is does/did the defendant owe a duty to the

claimant. Be aware that the duties between employer and employee arise in statute, common law and sometimes in contract.

4.2 The basis for most claims for HAVS will usually be either in statute or in common law (specifically in negligence).

4.3 It should be noted that a claim can no longer be founded for breach of the Control of Vibration at Work Regulations 2005: as under the Enterprise and Regulatory Reform Act 2013 (ERR Act) a claimant may not found a cause of action on breach of ‘Health & Safety’ Regulations following amendment to 47 of the Health and Safety at Work etc. Act 1974. Therefore, if a claimant’s exposure post-dates 1 October 2013 the claim can only be founded on common law negligence. Though breaches of the regulations will be evidence of likely negligence on the part of the defendant and will be given weight by a court when considering the defendant’s negligence.

Common law duty of care

4.4 The courts have generally held that where there is a foreseeable risk of HAVS, employers will owe a duty of care to monitor employees for likely symptoms and to advise employees to recognise and report any symptoms they develop.

4.5 The test for whether there is a risk of HAVS will come down to the levels of vibration employees are exposed to. If the daily dose of exposure (referred to as A(8)) reaches or exceeds 2.8m/s2 then the employer is likely to be expected to implement measures avoiding or reducing an employee’s vibration exposure as set out below.

4.6 Exposure below 2.8m/s2 is not considered ‘safe’

Duty of care How achieved

Technical measures of avoidance • Assess risk• Replace vibratory tools• Consider automation• Eliminate job

Technical measures of reduction • Isolate or reduce vibration by anti-vibration devices

• Job rotation; variation in tool use• Maintenance of tools and tool bits• Training on correct use• Personal protection equipment primarily

to keep warm

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Statutory duties

The Control of Vibration at Work Regulations 2005

4.7 On 6 July 2005, the Control of Vibration at Work Regulations 2005 came into force. These set new standards for daily exposure to vibration at 2.5m/s2 for hand-transmitted vibration and 0.5m/s2 for Whole Body Vibration (WBV).

4.8 There is no requirement for continual monitoring and recording of vibration exposure. What an employer must do is decide what a workers’ exposure is likely to be, as part of a vibration risk assessment. So a period of monitoring to understand how long workers use particular tools in a typical day or week may be necessary. Once it’s clear what exposure is likely to be (and whether it is likely to exceed either the Exposure Action or Exposure Limit Value) an employer’s focus can shift to investigating, and taking, practical steps to reduce the exposure and the risks.

4.9 Under the regulations there is a general duty to eliminate or reduce exposure to as low as is reasonably practicable. Employees should not be exposed above the Exposure Limit Value (ELV). Exposure should be reduced as far as reasonably practicable where it reaches the Exposure Action Value (EAV).

4.10 Action and limit values under the regulations are:

4.11 The main duties under the Control of Vibration at Work Regulations 2005 regulations are as follows:

HAVS WBV

Exposure Action Value A(8) 2.5m/s2 0.5m/s2

Exposure Limit Value A(8) 5.0m/s2 1.15m/s2

Regulation 5 Duty to risk assess

Regulation 6 Duty to eliminate vibration exposure at source or where not reasonably practicable, to reduce exposure to as low a level as reasonably practicable

Regulation 7 Duty to conduct health surveillance where risk assessment identifies risk or employees’ exposure is at or above Exposure Action Value.

Regulation 8 Where there is an identified risk or exposure at Exposure Action Value there is a duty to provide information, instruction and training about how to minimise risk, recognise and report signs of injury

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4.12 The following regulations may also be relevant to HAVS claims.

Foreseeability

4.13 The principal developments in knowledge of the risks associated with vibration exposure are as follows: • Vibration White Finger in Industry, Taylor and Pelmear: 1975. • British Standard Draft for Development, BS DD43: 1975. • Guide to Measurement and Evaluation of Human Exposure to Vibration Transmitted to the Hand, British Standard

6842:1987. • Health & Safety Executive Guidance Hand-arm Vibration, HS(G)88:1994.

4.14 Generally speaking, knowledge of the risks attributable to exposure to excessive vibration entered the public domain in 1975, and employers in heavy industry should have put protective measures in place by 1976/77.

4.15 However, many employers in medium and light industries may be able to argue that their ‘date of knowledge’ of risk arose after 1976. Knowledge depends on the type of industry and nature/type and extent of tools used. In the CA decisions of Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452 and Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147, the defendants were medium sized employers held to have dates of knowledge of 1989 and 1991/1992 respectively. In Maxfield v ATS North Eastern Ltd (Unreported, Leeds County Court, 11 March 2008), which concerned pneumatic impact wrenches, the date of knowledge for a national tyre-fitting company was held to be 1989.

4.16 In Vance-Daniel v Corus UK Ltd [2010] EWCA Civ 274 the claimant developed HAVS as a result of using vibrating tools between 1975 and 1995. However, the CA held that the defendant was not liable because, since the claimant was exposed to vibration above an A(8) of 2.8m/s² on only one day per week, it was not foreseeable that he would suffer injury. The CA’s analysis of BS 6842 in Vance-Daniel shows that the frequency, as well as the level, of exposure to vibration is relevant. Vance-Daniel suggests that where exposure to vibrating tools above an A(8) of 2.8m/s² took place on only one day per week, BS 6842 did not alert employers to the risk of HAVS.

The Management of Health & Safety at Work Regulations 1992 and 1999

Regulation 3: duty to assess the risks to the health and safety of employees

Provision & Use of Work Equipment Regulations 1992 and 1998

Regulation 4: duty to provide suitable work equipment

Regulation 5: duty to maintain and repair and train on use

Personal Protective Equipment Regulations 1992 Regulations 4 & 6: duty to provide suitable PPE

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4.17 It is also the case that an employer’s knowledge of the risks does not immediately become guilty knowledge: a period for implementation of protective measures can be appropriate (see for example Armstrong v British Coal Corporation [1997] 8 Med LR, Brookes and Maxfield).

Anger time

4.18 The duration of exposure to vibration is also known as ‘anger time’ – this is an estimate of the time the user is actually operating a tool and so exposed to vibration. Users can typically overestimate the anger time by 50% or more (see the HSE’s Implications of the Physical Agents (Vibration) Directive for SMEs), especially when engaged in intermittent tasks involving the use of several tools in combination.

Typical vibration levels

4.19 Vibration levels depend on many factors including: • The properties of the tool itself (size, weight, method of propulsion and drive mechanism) • The material worked upon (hardness, roughness, size) • The task being undertaken (cutting, drilling, grinding).

4.20 The extent to which those vibration levels are then transmitted to the hand/arm is influenced by: • The type and force of grip used • Orientation of the hand and arm • Tool maintenance.

4.21 Vibration levels may vary by factors of up to 4 - 5 between similar tools.

Calculating daily vibration dose (A(8))

4.22 To make a provisional assessment of the claimant’s daily vibration dose averaged over 8 hours – the A(8) – the following may assist:

• The supplier (including manufacturer, importer and tool hire firm) of powered hand-held tools should provide information about vibration risk under The Supply of Machinery (Safety) Regulations 1992 (as amended).

• Many users of hand-held power tools have already measured vibration for particular tools and the results may be available through relevant trade associations.

• Data from suppliers and some workplace data is available at: www.vibration.db.umu.se/Default.aspx?lang=en which provides vibration levels of over 2,500 commonly used power tools.

• Where the vibration levels and duration of exposure are known then the A(8) can be calculated by accessing the HSE nomogram on their website or according to the formula:

A(8) = vibration level (m/s2) x √time used (hours) 8 • The vibration levels of some common tools and duration of exposure required to reach an A(8) of 2.8m/s2 is

shown in Table 1 in Appendix 2.

4.23 A vibration calculator is a much swifter and more reliable method of calculating levels of vibration exposure: the HSE’s HAVS exposure calculator can be found at :www.hse.gov.uk/vibration/hav/vibrationcalc.htm

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Whole Body Vibration (WBV)

4.24 The HSE estimates that between 32,000 and 52,000 cases of back pain per annum are caused or exacerbated by regular exposure to WBV which mainly arises in the following 1.3 million vehicle drivers

4.25 According to the HSE the time taken to reach the action and limit values under the regulations are shown below:

4.26 It is likely that agriculture and quarrying will be the industries most affected. For workers exposed in excess of the limit, until manufacturing technology improves to the extent that vibration levels are drastically reduced, time restriction is likely to be the only way to reduce the exposure.

4.27 As with other cumulative back injuries, trying to establish the cause of the symptoms will be difficult, as will investigation, insurance coverage issues and apportionment between periods of employment. Reductions for non-negligent and non-occupational WBV are likely to be even more complicated than with HAVS.

Employment sector Workers affected

Road transport 500,000

Other transport 140,000

Agricultural/forestry 130,000

Construction 100,000

Service sector 70,000

Manufacturing sector 70,000

Upper process/plant operators 50,000

Sales 40,000

Stores 30,000

Security 20,000

Mining/quarrying 10,000

Other 140,000

Vehicle Emission level A(8) action level A(8) exposure limit

Small car 0.4m/s2 12 hours 30 mins Over 24 hours

Articulated lorry 0.7m/s2 4 hours 5 mins 21 hours 36 mins

Agricultural tractors 1.0m/s2 2 hours 10 hours 35 mins

Quarry/construction machinery 1.0m/s2 2 hours 10 hours 35 mins

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5 MEDICAL CAUSATION Vascular symptoms

5.1 As mentioned above, vibration causes damage to the small blood vessels in the hands and results in reduced blood flow in the fingers.

5.2 This manifests itself in episodic attacks of whitening (blanching) of fingers – typically lasting 5-30 minutes and followed by reddening of hands and pain as the blood returns. Blanching is usually precipitated by cold or wet weather conditions in early stages.

5.3 The vascular symptoms may be reversible in the early stages of disease. As the condition progresses the attacks become more extensive, affect more fingers and occur both in cold and warm weather conditions.

Neurological symptoms

5.4 Vibration can damage the nerves manifesting in neurological symptoms of tingling and numbness of the fingers. These symptoms are the first sign of HAVS – initially they appear at the end of the working day and disappear overnight and at weekends.

5.5 As the condition progresses the symptoms become more severe and are accompanied by reduced sensitivity, manual dexterity and grip strength. Symptoms are non-reversible and permanent.

Causation

5.6 The condition is dose-related and cumulative. There is typically a latency period between exposure and onset of symptoms – anything between months and years depending on the daily dose of exposure A(8) and individual susceptibility.

5.7 A daily exposure A(8) of 2.8m/s2 over eight years leads to stage 1 HAVS in 10% of the exposed population. The relationship between levels and daily duration of vibration exposure and the time taken to reach stage 1 HAVS is shown in Table 2 in Appendix 2.

5.8 If there is very rapid onset of symptoms after first exposure this may reflect some underlying and alternative non work-related cause.

5.9 There is a temporal association between exposure and symptoms – if symptoms first begin more than one to two years after cessation of exposure this again suggests an alternative non work-related cause.

5.10 Once exposure ceases the vascular symptoms may improve but generally the condition remains stable.

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Carpal Tunnel Syndrome (CTS)

5.11 The carpal tunnel is a narrow channel in the base side of the wrist formed by the wrist bones and a ligament. Running through this channel are various tendons which move the fingers and wrist and also the median nerve which controls muscles moving the thumb. CTS arises from compression of the median nerve due to swelling around the carpal tunnel. CTS is common in the general population with about 3:100 men and 11:100 women developing the condition at some point in their lives.

5.12 Symptoms include burning, tingling or numbness in the palm of the hand and fingers, decreased grip strength and, in chronic cases, wasting of the muscles at the base of the thumb.

5.13 Current scientific evidence is inadequate to implicate occupational factors in CTS. According to research by Lozano-Calderon et al: The quality and strength of evidence for etiology: example of carpal tunnel syndrome, Journal of Hand Surgery, 2008; 33: 525, the aetiology of CTS is largely structural, genetic and biological – environmental and occupational factors such as repetitive hand use play a minor and more debatable role. Lozano-Calderon concluded that there was insufficient evidence to implicate any kind of hand use as an important and direct cause of CTS.

5.14 Dias et al: Carpal tunnel syndrome and work, Journal of Hand Surgery, 2004, 29B, 4, 329 found no clear association between CTS and work.

5.15 Burke et al investigated the frequency of CTS in association with HAVS in a large group of miners and ex-miners (Carpal tunnel syndrome in association with Hand-Arm Vibration Syndrome: a review of claimants seeking compensation in the mining industry, Journal of Hand Surgery, 2005, 30B, 2, 199) and concluded that:

“it is not known whether vibration exposure is an aetiological risk factor for CTS or a risk factor for provocation of symptoms of CTS.”

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Diagnosis and treatment

5.16 There is no single diagnostic test for HAVS. The medical expert will obtain a working history of vibration exposure and a history of characteristic symptoms and eliminate other potential causes of these. Various tests can be supportive of a positive diagnosis however none of the tests are conclusive nor are they to be relied on as complete evidence of HAVS. The 5 primary methods of testing are:

• Vibrotactile Measures the threshold feeling to a vibratory stimulus. • Thermal threshold Measures the threshold feeling to hot and cold stimuli. • Purdue pegboard Functional test of manual dexterity. • Hand dynamometer Measures grip strength. • Blood pressure and skin temperature Indicates blood-flow rate in fingers.

5.17 There is no treatment for HAVS.

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6 INVESTIGATIONS 6.1 The Disease and Illness Pre-action Protocol applies to HAVS claims. The initial letter of claim should provide sufficient

information to commence detailed investigations. The protocol allows three months to investigate the claim and respond on breach of duty. The three-month period does not start to run until all the relevant information has been provided to properly investigate matters. Reasonable extensions of time can be requested.

6.2 Investigations are usually required to determine: • Foreseeability of injury • The claimant’s likely exposure to vibration • The employer’s measures to avoid/reduce exposure • The chronology of work undertaken/tools used, date of onset and reporting of symptoms and the employer’s

response thereafter.

6.3 Check for a claims history for the insured and any risk control file.

6.4 Be aware of the potential for ‘floodgate’ claims to follow.

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HR documents:

• The claimant’s full personnel file;• The claimant’s occupational health records (note you will need form of authority);• Warnings and disciplinary procedures taken against employees for failure to follow health and safety

policies/wear PPE.

Health and Safety type documents:

• Documentation to establish the employer’s date of knowledge in respect of HAVS • Tool/vibration data sheets; • Industry, HSE and trade association publications relating to risk; • Risk assessments to assess levels of vibration from tools, extent of employees’ exposure to vibration• Documents showing review of any risk assessments following changes in system of work or following

health surveillance.• Health and safety policy and training programme for employees on systems of work and health and safety issues • Any specialist health and safety reports commissioned to assess levels and dose of vibration and any documentation

obtained from suppliers/HSE/trade associations/health and safety and industry journals regarding typical vibratory levels

Documents on control of exposure levels:

• The need for, and any, control measures, such as engineering review and maintenance;• Details of any systems of rotation.

Where PPE is used as a control measure:

• Evidence of assessment of suitability; • Suppliers’ information for tools and PPE (note: anti-vibration gloves generally provide negligible attenuation of

vibration and are not recommended as a means of reduction of exposure – gloves and body warmers may help prevent injury by keeping the operator and their hands warm)

• Documents showing maintenance and testing; • Instruction and training on correct use and upkeep

Documents on employee training and awareness of risk:

• Training, instruction and warning of employees as to risk of exposure to vibration; • Training documentation including health and safety warnings and advice given to employees on correct tool use and

work practices to limit exposure• Training on recognition of symptoms; • Need to report symptoms and seek medical assistance; • Use of control measures to reduce risk of injury, eg, use/maintenance of PPE etc

Disclosure

6.5 Typical disclosure documentation includes the following:

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Documents responding to issues:

• Accident report book entry;• First aider report;• Foreman/supervisor accident report;• Complaints made (either by the claimant or any other employees) relating to exposure and respiratory problems;• Health and safety committee minutes which deal with vibration compliance and potential respiratory hazards;• RIDDOR notification forms;• Communication with DWP;• Communication with HSE.

Claimant’s disclosure:

• The claimant should be asked to disclose: – GP records; – Hospital records; – DWP records; – Inland Revenue Schedule of Employment.

Miscellaneous:

• Documents relating to programme of health surveillance (compliance with Regulation 11)• Documents relating to any HSE investigations

Lay evidence

6.6 Statements of fact should generally be obtained from: • The claimant’s line manager/supervisor and fellow employees. It will be important to identify at least one or more

person who has carried out the same/similar work as the claimant over the relevant period of time. • Employees to whom the claimant may have made complaints and with knowledge of insured’s response. • Health and safety officers/advisors/risk assessors/members of personnel and occupational health departments –

dealing with knowledge and risks of HAVS, risk assessments and risk-control factors, training, warnings, monitoring and support for employees.

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6.7 A generic schedule of the sorts of issues and areas that need to be dealt with in witness statements is set out below:

Work duties

• A detailed chronology outlining Claimant’s employment dates, department(s) location(s) of employment, and periods of employment in the same.

• The Claimant’s usual shift pattern and time at work each day set out in hours of work including shift work and/or overtime. Make sure to factor in rest breaks (frequency/duration and location) including cigarette breaks, bank holidays, weekends, annual leave and any sick leave during the period of employment. This sort of evidence will enable an expert to calculate more accurately exposure levels.

• Details of the days and hours worked by the claimant in a week including shift times and overtime.• The number and duration of formal rest breaks.• The number and duration of any informal rest breaks to include any ‘natural’ breaks within the work.• Detailed description of each and every duty carried out by the claimant including the frequency and duration of the

same in an average working day/week.• Detailed description of each and every duty in which the claimant was exposed to vibratory tools including: – The period(s) over which the tools were used – The frequency and duration of use in an average working day/week (the ‘anger time’ of use of each tool) – The purpose and manner in which the tool is used

The vibratory tools

• The type, description and manufacturer’s details of all vibratory tools used.• The system for maintenance/repair of the tools.• Any system for replacement/renewal of the tools and purchasing programme of new tools with lower levels of

vibration.• Any system for regular replacement/sharpening of tool bits (ie cutting parts) of the vibratory tools.• Has any risk assessment/measurement been carried out by the insured to assess the level of vibration from the tools

and similarly employees’ average exposure to vibration in a working day/week?• Discussions with suppliers/manufacturers.

Risk assessment

• When were/are risk assessments carried out?-by whom?• Was vibration monitoring undertaken and, if so, how and when was this done and by whom?

What happened to the test results?• What hazards/risks were identified?• What control measures were identified?-were they implemented?• What sources of information were relied upon (other assessments, information from manufacturers/suppliers, health

surveillance, HSE, trade associations, trade unions, employees etc)?• How and when were the control measures implemented?• Was there a regular review of the assessment following changes to systems of work/What were the results

of health surveillance?

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The insured’s knowledge of HAVS

• The nature of the insured’s business, its size, total number of employees, number of employees exposed to vibration.• Have there been any other claims for HAVS?• Is the insured aware of the risk of HAVS arising from exposure to vibration? If so, how and when did it obtain

this knowledge?• Has the insured received any visits from the HSE or HSE guidance with respect to HAVS?• Have there been any complaints made by employees with respect to upper-limb symptoms/problems associated

with the use of hand-held vibratory tools?• Have there been any health and safety meetings in which HAVS has been discussed/actioned upon?

Exposure

• The type, description and manufacturer’s details of all vibratory tools used.• The system for maintenance/repair of the tools.• Any system for replacement/renewal of the tools and purchasing programme of new tools with lower levels

of vibration.• Any system for regular replacement/sharpening of tool bits (ie cutting parts) of the vibratory tools.• Has any risk assessment/measurement been carried out by the insured to assess the level of vibration from the tools

and similarly employees’ average exposure to vibration in a working day/week?• Discussions with suppliers/manufacturers.

Protection from hand-transmitted vibration

• Has the insured taken any measures to reduce employees’ duration of exposure to vibration by means of the following:

– The introduction of more powerful tools to reduce duration of use; newer tools with lower levels of vibration. – Job sharing/rotation – the system of rotation can be formal or informal. Obtain details of number of employees

working in a team, the duration/frequency of each individual team member’s exposure. – Job enlargement to reduce duration of use/exposure. – Use of alternative tools with lower levels of vibration. – Providing instruction on the correct tools to be used for the job and tool and tool-bit maintenance. – Use of anti-vibration handles or other isolating devices eg clamps/stands. – Providing any training of correct tool operation including using minimal hand-grip forces, using minimal push forces,

adopting the correct posture for the job and recognition of abnormal levels of vibration.• What PPE has been provided by the insured including details of protective clothing and any gloves, including the dates

of issue and manufacturer’s details?• Has the insured taken any medical prevention measures, including pre-employment screening, to identify those with

primary Raynaud’s disease etc and regular monitoring of the workforce to identify those in the early stages of HAVS so that necessary prevention measures can be implemented?

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Control measures

• Set out full details of what measures were identified in the assessments to prevent or control exposure.• If prevention/elimination was not reasonably practicable then what control measures were in place?

What training was provided to employees as to

• Health and safety in general• Causes of blanching, tingling/numbness and hand symptoms• Recognition of typical signs and symptoms of occupational asthma• Reporting symptoms.

Miscellaneous

• Did the claimant or any other employees complain of respiratory symptoms/exposure? If so, obtain details of the nature/gist of such complaints, when they were made, where and to whom such complaints were made. What steps did the employer take thereafter?

• Have there been other cases/claims for respiratory illness? If so, obtain full details.• Identify any periods of holiday, sickness and other absences (training etc). • Has/is the claimant returning to work? If so, in what capacity?

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7 THE EXPERT EVIDENCE 7.1 Generally expert medical evidence will be required from a consultant vascular surgeon (with full access to GP, hospital

and occupational health records) if the claim is for VWF. If the claim is for some form of musculoskeletal injury than generally a report is required from a consultant orthopaedic hand surgeon.

7.2 Whilst agreed/joint instruction of a medical expert should be avoided; your own medical evidence may not be necessary if: • The insured have a known VWF claims history • The claimant’s exposure is proven • And the claimant has used a respected expert in the field.

7.3 Written questions can be put to an expert for further clarification of a report.

Engineering expert evidence

7.4 This may be required if there is a potential defence on foreseeability/breach of duty. Remember an initial estimate as to the daily exposure to vibration A(8) may be made.

7.5 All experts should have access to full and relevant disclosure and lay evidence when providing an opinion

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8 MAKING A DECISION 8.1 Were you on risk during the period of exposure?

8.2 Are there other insurers who need to be notified of the claim?

8.3 Do you know who is co-ordinating?

8.4 Have you registered the matter with the Compensation Recovery Unit?

8.5 Is limitation in issue?

8.6 Is there a foreseeable risk of HAVS (with reference to daily dose of exposure)?

8.7 If so, what duties of care did the insured owe?

8.8 Is there breach? Is engineering evidence required?

8.9 Is medical evidence required? Have medical records been obtained? Are there other causes of symptoms?

8.10 If HAVS is confirmed was the insured’s breach causative?

8.11 Are there issues of apportionment?

8.12 Does there need to be co-ordination with other employers?

8.13 The potential value of HAVS claims in comparison to many other diseases may seem small. However, where a risk is new with an unknown claims history then detailed investigations will be required. Whilst the costs may appear disproportionate to the value of the claim the potential for ‘floodgate claims’ must be considered.

8.14 Repudiate or settle the claim.

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8 APPENDIX 1 Stockholm Workshop Scale

A Vascular tier

B Sensori-neural stages

Stage Grade Description

0 – No attacks

1 Mild Occasional attacks on tips of one or more fingers

2 Moderate Occasional attacks affecting distal and middle phalanges (rarely proximal) of one or more fingers

3 Severe Frequent attacks – all phalanges, most fingers

4 Very severe As stage 3 – but trophic skin changes on tips (rare)

Stage Symptoms

0SN Exposed to vibration – no symptoms

1SN Intermittent numbness, +/- tingling

2SN Intermittent or persistent numbness, reduced sensory perception

3SN Intermittent or persistent numbness, reduced tactile discrimination and/or manipulative dexterity

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Taylor-Pelmear Scale with DSS (Disability Status Scale) annotation

*Figures given are for guidance only. They are not necessarily indicative of a DSS-Taylor-Pelmear Scale relationship although many awards would be

close to these estimates. Those qualifying for PD A11 would normally be stage 3, or more severe sufferers.

Stage Condition Work and social interference DSS*

0 No blanching of digits No complaints 0%

0T Intermittent tingling with activities

No interference 0-1%

0N Intermittent numbness with activities

No interference 0-1%

1 Blanching on one or more fingertips with or without tingling and numbness

No interference with activities 2%

2 Blanching of one or more fingers with numbness. Usually confined to winter

Slight interference with home and social activities. No interference at work

5%

3 Extensive blanching. Frequent episodes summer as well as winter

Definite interference at work, at home and with social activities. Restriction of hobbies

7%

4 Extensive blanching. Most fingers, frequent episodes, summer and winter

Occupation changed to avoid further vibration exposure because of severity of signs and symptoms

10% or >10%

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9 APPENDIX 2 Table 1

Typical vibratory levels of tools and time taken to reach action level A(8) of 2.8m/s2.

Table 2

Relationships between vibration levels (main body of table) and daily duration of exposure and time taken to reach stage 1 HAVS in 10% of population

Vibratory tools Typical vibration levels in m/s2

Time in minutes in a typical working day to produce dose A(8) of 2.8m/s2

Rotary drill 3 420

Hand-held grinder 4 240

Disc sander 5 150

Riveting hammer 8 60

Chipping hammer 9 50

Needle scaler 10 40

Road breaker 10 40

Jack hammer 20 10

Rock drill 20 10

Daily exposure 6 months 1 year 2 years 4 years 8 years 16 years

8 hours 44.8 22.4 11.2 5.6 2.8 1.4

4 hours 64 32 16 8 4 2

2 hours 89.6 44.8 22.4 11.2 5.6 28

1 hour 128 64 32 16 8 4

45 mins 256 128 64 32 16 8

30 mins 179.2 89.6 44.8 22.4 11.2 5.6

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