work-related upper-limb disorders...some of these disorders can also be caused by work and are then...
TRANSCRIPT
OC
CU
PAT
ION
AL
DIS
EA
SE
WORK-RELATED UPPER-LIMB DISORDERSOCCUPATIONAL DISEASE GUIDE 5
1
Occupational disease series – Guide 5
Contents
Introduction
1. Insurance coverage
2. The Portal and Pre-action Protocol
3. Damages and Reserves
4. Employer’s duty
5. Investigations
6. Medical causation
7. Medical expert evidence
8. Liability expert evidence
9. CRU
10. Making a decision
Appendix 1 – Disease and Illness Pre-action Protocol
Appendix 2 – Upper Limb disorders and the link to work
Appendix 3 – Investigations – WRULD Manual handling claims
Appendix 4 – Investigations -DSE claims
Work-related
Upper-limb Disorders
2
Introduction
There are a whole range of disorders which affect the soft tissues (muscles, tendons, ligaments, nerves soft tissue
and joints) of the upper limbs. These are collectively known as Upper Limb Disorders (ULDs) and can arise
naturally as a constitutional process or be caused by injury, sport or hobbies.
Some of these disorders can also be caused by work and are then known as Work-Related Upper Limb Disorders
(“WRULDs”) or occasionally as Repetitive Strain Injuries (RSI). Usually they arise from repetitive, forceful work
over a period of time where there is a poor work posture, typically on a production line or at display screen
equipment (DSE). See Appendix 1.
Cumulative back injury claims (e.g. from manual handling) are not WRULDs but can be and often are handled in
the same way. These claims are dealt with in the BLM Cumulative Back Injuries mini guide.
Even if an employer is in breach of its duty, cases can be and often are defended successfully on the issue of
causation. It is key to look at the biomechanical relationship between the nature of the work being undertaken
and the nature of the upper limb condition. In many cases there is no link between the two. The work may not
place strain upon the specific muscle/tendon which is linked to the upper limb problem suffered by a claimant.
There are often real concerns for the insured that the floodgates may open if a concession is made and that
further claims will follow as upper limb disorders of a constitutional nature are common in the general
population.
In this guide we will discuss how to investigate these claims and assess breach of duty, medical causation,
quantum and other issues that arise in cases of this nature.
3
1. Insurance coverage and co-ordination
1.1 WRULDs are classified by most insurers as ‘short tail’ disease claims.
1.2 Under the Industrial Disease Claims Working Party Handling Guidelines, manifestation (that is when the
condition was actually or was capable of being diagnosed) should be the trigger.
1.3 The insurer ‘on risk’ when symptoms first become manifest, or are capable of being diagnosed, handles the
claim.
1.4 If there is on-going breach of duty during any subsequent insurer’s time on risk, which makes a material
contribution to injury, then such an insurer should contribute to damages and costs on a simple time-on risk
basis.
1.5 The decision as to when manifestation occurs is likely to be based to a large extent on medical and work
records. For example, where records contain a note indicating that symptoms have been present for one
month, manifestation should be taken as one month prior to this entry.
1.6 Some insurers, who are not a party to the IDCWP agreement, will wish to deal with such cases on a time
exposure basis with all appropriate insurers on risk during the period of exposure contributing accordingly
to the claim on a time-on risk basis.
1.7 The onus is on the insurer to demonstrate a ‘cut-off’ date of culpable exposure during their period of risk,
that is the point at which their liability ceases. If the handling insurer can show there was no culpable
exposure during its time on risk, the claim for contribution can be refused.
4
2. The Portal and the Disease and Illness Pre-action
Protocol (PAP).
2.1 The Portal is a website through which certain claims must be run. The following is key information about
the Portal and the PAP for WRULD claims:
The portal applies to employers liability WRULD claims where there is one defendant and the claim has a
value up to £25,000.
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). 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.
The CNF should be acknowledged within 24 hours. If by post the insured/insurer should acknowledge as
soon as possible.
The defendant (insurer) has 30 business days from the date the CNF is sent to investigate and make an
admission to obtain the benefit of Stage 1 and 2 costs ( as set out in CPR 45). 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.
It is unlikely that any decision can be made on liability without access to Personnel and Occupational
Health (OH) records. If there is an active insured they can disclose personnel records to you or your
representatives in accordance with Section 35 of the Data Protection Act. This provides an exemption
where disclosure of records is necessary for the purpose of obtaining legal advice or is otherwise
necessary for the purposes of, or in connection with any legal proceedings —including prospective legal
proceedings. You will need a form of authority to secure OH records from the OH provider.
An 'admission of liability' means admitting breach of duty, limitation, that there is no contributory
negligence alleged and that the insured accepts they caused some loss to be quantified (admitting
causation). All key elements of a claim are conceded if such an admission is made.
The claimant is required to provide a settlement pack, containing all of the medical and quantum
evidence, if an admission is made by you, within 15 days of approving his/her expert report(s). The
defendant (insurer) has 15 days to consider this and make an offer and there is a further 20 day
negotiation period.
If damages cannot be agreed, the claimant can issue Part 8 proceedings to ask the court to determine
the amount of damages that remain in dispute between the parties. Assessment of damages by the
court can be determined on the papers or at an oral hearing. (See CPR Practice Direction 8B)
If an admission is made but you are not satisfied with the medical evidence provided in the settlement
pack at Stage 2 (or if any other new evidence comes to light) when served, you can allow the claim to
exit the Portal. The normal rules upon withdrawing an admission of breach of duty and causation applies
under CPR Part 14. Note: it is possible to withdraw the causation admission leaving breach of duty and
the limitation admission in place by doing so within 15 days of receipt of the settlement pack.
If no admission is made or you resile upon causation at Stage 2, the claim will exit the portal and then
be governed by the Disease and Illness Pre-action Protocol (PAP), with the CNF serving as a letter of
claim. You will have 3 months from the date of the CNF to respond to the claimant’s allegations.
Reasonable extensions can be agreed. (See the attached Appendix upon the PAP).
Claims that exit the Portal process will not be governed by a Fixed Recoverable Costs regime and the
claimant’s solicitors will be able to recover reasonable costs and disbursements incurred.
5
3. Damages and Reserves
3.1 It is important to get a handle on how much the claim is likely to be worth. The three heads for damages are
Generals (for pain suffering and loss of amenity), Specials for quantifiable past and future financial losses
and Disadvantage on the open labour market, also known as a Smith v Manchester award.
3.2 Note that reservations need to be made for both defendant and claimant’s costs. This will generally be
reflective of how many and how complex the issues in the case are. Figures for costs are almost always ‘best
estimates’.
General damages (PSLA)
3.3 The JC Guidelines (Chapter 7: Orthopaedic Injuries (K) Work Related Upper Limb Disorders. Which is
prefaced with the following:
The level of the award is affected by the following considerations regardless of the precise condition:
i. are the effects bilateral or one sided (and, if one-sided, whether it is the dominant hand)?
ii. the level of symptoms, i.e., pain, swelling, tenderness, crepitus;
iii. the ability to work and the effect on domestic and social life;
iv. the capacity to avoid the recurrence of symptoms;
v. surgery;
vi. age;
vii. which, if any, of the symptoms would have been suffered in any event and when.”
3.4 Bear in mind that cases to which QOCS apply will be the subject to a 10% uplift on general damages, which
is reflected in the figures below:
Extent of injury (PSLA) Damages
With 10% uplift
(a) Continuing bilateral disability with surgery and loss of
employment
£16,650 £17,575 £18,320 to £19,330
(b) Continuing, but fluctuating and unilateral symptoms. £11,300 to £12,425 £12,430 to £13,670
(c) Symptoms resolving in the course of up to three years £6,575 to £8,175 £7,230 to £8,990
(d) Complete recovery within a short period (of weeks or a
few months)
£1,675 to £2,675 £1,840 to £2,940
Apportionment
3.5 If the claim is based on cumulative exposure over a long period of time, then arguably the principle of
apportionment applies, with a reduction of damages to reflect:
Other periods of employment(s) which are causative;
Other exposure to risks outside of the workplace (DIY, social, recreational).
3.6 Consideration should always be given to any pre-existing vulnerability or disease; you will need to establish
whether the injury would have arisen in any event, even without the work activity? Is this a case of
aggravation, exacerbation or acceleration? If so, there may be a ‘cut off’ to past/future losses.
6
3.7 In many cases the work may not have caused the condition but rather exacerbated, aggravated or triggered
at an earlier stage a condition which would have arisen in any event. In this case, damages will be based on
the extent and period of actual exacerbation, aggravation or acceleration over and above what would have
been suffered in the absence of exposure to the alleged negligent system of work.
Special damages/future losses
3.8 If you are dealing with the aggravation of a constitutional ULD condition you may be able to argue that a
large element (if not all) of the special damages claim would have been incurred by the claimant in any
event.
3.9 In severe and permanent conditions of WRULD’s there may be significant claims for past and future loss of
earnings and possibly for care and medication. In such circumstances you may seek the assistance of an
employment and/or care expert to advise upon the claimant’s ability to work and/or the extent of his/her
future care needs.
Smith v Manchester awards
3.10 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 the upper limb condition they have to avoid heavy or
repetitive employment. However, if the claimant had a pre-existing upper limb disorder which has been
exacerbated by the employer’s breach then any such claim may well be groundless.
3.11 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
themselves on the open labour market;
The Claimant’s disability would place them at a disadvantage by comparison with an able-bodied
contemporary.
3.12 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:-
3.13 “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”.
3.14 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. Typically when
taking this approach the number of years has been much lower. In Moeliker the multiplier was just 6
months. Factors to assist in assessing the multiplier include:-
The level of employment restriction caused by the claimant’s upper limb condition.
The claimant’s work experience and ability to retrain.
The claimant’s salary and the availability of work at that level of pay.
If any other medical or life events may have affected his ability to work regardless of his/her upper
limb condition.
7
4 The employer’s duty of care
4.1 Most claims are based on allegations of common-law negligence and (up until 1 October 2013) breach of
the Manual Handling Operations Regulations (MHOR) 1992 (Revised 2002) which came into effect on 1
January 1993.
4.2 It should be noted that a civil claim can no longer be founded for breach of the MHOR: under the
Enterprise and Regulatory Reform Act 2013 (ERR Act) a claimant cannot found a cause of action on
breach of ‘Health & Safety’ Regulations. Therefore, if a claimant’s exposure post-dates 1 October 2013 the
claim can only be founded on common law negligence. Breaches of the regulations however will be
evidence of likely negligence on the part of the defendant and will be given weight by a court when
considering the negligence allegations.
4.3 In determining whether the work is associated with a risk of ULDs, employers should consider whether it
involves:
excessive repetition
poor working postures
excessive force
excessive duration of exposure to such factors
4.4 It is generally a combination of these factors that can cause WRULDs. Guidance can be sought from HSE
publications such as Upper Limb Disorders in the Workplace HSG60 (rev) which advises employers upon the
2 stage risk assessment that ought to be undertaken and also advises employers upon control measures
they can take to reduce the risk of injury. The guidance sets out the HSE ART tool which can also assist in
establishing the risk of injury. Working with VDUs (INDG 36) is also very informative guidance to employers
upon complying with the DSE regulations and the control measures which ought to be in place.
4.5 The HSE L23 guidance document for compliance with the Manual Handling Operations also provides
guidance and you are referred to Appendix 2 of the Cumulative back mini guide setting out the most up to
date guidance upon risk assessments and HSE tools available.
Negligence
4.6 Without rehearsing the history of the common law principle of negligence, it’s useful to remember the
basics of establishing negligence: there must be a duty of care which is breached, and that breach of duty
must have caused or materially contributed to a reasonably foreseeable injury.
4.7 The ‘threshold question’ is “whether the injury to the particular employee was reasonably foreseeable”.
‘Foreseeability’ as a question has to be answered by asking what the employer knew or ought reasonably to
have known.
4.8 If the harm pre-dates October 2013 you will need to decide if the Manual Handling Regulations apply,
namely that:
The claimant must have been performing ‘manual handling operations’. This means, any transporting
or supporting of a load (such as lifting, putting down, pushing, pulling, carrying or moving) by hand
or by bodily force. A ‘load’ includes any discrete moveable object including any person or animal.
8
The manual handling operation undertaken must have involved ‘a risk of being injured’. This does
not mean that the risk has to be a reasonably foreseeable one, but it must be a real risk and more
than speculative or fanciful.
4.9 Under the MHOR there is a hierarchy of duties (see the diagram below) requiring employers to:
avoid the need for employees to undertake any manual handling, with a risk of injury, so far as is
reasonably practicable (Regulation 4(1)(a))
if it cannot be avoided assess the risk of injury from the manual handling task (Regulation 4(1)(b)(i));
and
reduce the risk of injury to the lowest level reasonably practicable (Regulation 4(1)(b)(ii)).
Hierarchy of duties under MHOR 1992
Assessing the risk
4.10 If there is a risk of injury, there has to be a ‘suitable and sufficient’ assessment following the factors as
identified in the Schedule of the HSE Guidance to the regulations (Manual Handling, L23) and taking into
account namely:
The task;
The load;
The work environment;
Individual capability and physical suitability of the employee;
Whether movement or posture is hindered by personal protective equipment or by clothing;
Knowledge and training of the employee;
9
Results of any relevant risk assessments under the Management of Health and Safety at Work
Regulations 1999 and whether the employee is within a group of employees identified by that
assessment as being especially at risk;
the results of any health surveillance.
Avoiding manual handling
4.11 If the manual handling cannot be avoided/eliminated, would it have been reasonably practicable for the
operation to have been automated or mechanised?
4.12 The numerical guidelines in Appendix 1 effectively set out weights below which;
“… the load is unlikely to create a risk of injury sufficient to warrant a detailed assessment … Whilst
application of the guidelines provide a reasonable level of protection to around 95% of working men and
women they should not be regarded as safe weight limits for lifting. There is no threshold below which
manual handling operations may be regarded as ‘safe’. Even operations lying within the … guidelines
should be avoided or made less demanding where it is reasonably practicable to do so.”
4.13 Claims can still be defended in the absence of a manual handling risk assessment. If it can be said that the
risk assessment (if undertaken) would not have identified any significant risk or steps to prevent/reduce the
risk, that were not already in place, the absence of an assessment would not be causative of the injury.
Reducing the risk of injury
4.14 Potential steps can include:
providing adequate levels of manpower/manual assistance;
mechanisation of some aspects of the work;
providing mechanical lifting appliances/ aids and enforcing the use;
adopting an ergonomic approach; can the workplace design be changed to eliminate/reduce manual
handling injuries?
improving layout/work routine – providing a sufficient number of breaks/job rotation/adequate
space/reducing frequency, distance and height of lifting and awkward postures;
making the load lighter/less bulky/easier to grip/more stable/labelled with weight and centre of gravity;
training in relation to manual handling methods and risks;
health surveillance of employees.
10
5 Investigations
5.1 The Disease and Illness Protocol applies to WRULD claims.
5.2 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.
Disclosure documents
5.3 The following documents will be relevant:
In all cases:
The claimant’s personnel file (including the contract of employment and job description/job profile).
GP, hospital, physiotherapy and occupational health records.
The work:
Documentation to show the claimant’s hours of work including overtime and work levels/performance
targets, if appropriate.
Documents showing the breakdown of the claimant’s daily activities. This could include diaries,
calendars, rosters (both electronic and manual), and job descriptions.
Documents to show ‘output’ of the claimant – copy correspondence/documents produced over a given
period.
If excessive keyboard work is alleged, documents to show the keystroke rate.
Any documentation showing a system of rotation of employees, variation of duties, frequency and
duration of rest breaks.
Documentation to show systems of monitoring/supervision of the claimant’s work.
Knowledge of risk/assessments:
Documents held by the insured in respect of their knowledge of WRULDs including details of previous
WRULD claims, if any.
Minutes of any relevant health and safety meetings where WRULDs are addressed.
Risk assessments ( including MAC/PAPP/ART tool assessments) and documents to confirm
implementation of any control measures to avoid/reduce/minimise risk.
Workstation self-assessments under the Health & Safety (Display Screen Equipment) Regulations (DSE
Regulations).
Re-assessments following changes in workstation/systems of work.
Any reports of engineers/ergonomists in relation to the insured’s system of work and control measures.
Documentation relating to relevant software and workstation equipment provided.
Training:
Training records in respect of DSE Regulations and how to perform self-assessments and guidance on
workstation requirements.
Training records for relevant job/tasks including safe systems of work, if available.
11
Documents to demonstrate warnings regarding the risks and instructions given upon correct use and
compliance with control measures in place.
Insured’s health and safety policy/manual/employee handbook.
Literature/slides/videos in respect of the training provided.
Complaints:
Details of any written/oral complaints made by the claimant or other employees of symptoms arising
out of the system of work undertaken by the claimant.
Accident book entries/first-aider report/surgery record/HSE communications and RIDDOR reports.
Documentation detailing insured’s investigations and response to complaints, including any changes to
the system of work.
Documentation showing absences and sickness.
Lay witness evidence
5.4 Witness statements are key to effectively dealing with the allegations in respect of WRULD cases and will
also assist the medical experts to look at the link between the nature of the work and the specific WRULD
alleged.
5.5 The statements must be thorough and contain detailed accounts of all of the insured’s working practices.
They should include details of the system of work and commentary on all the relevant documents and the
safety procedures in place to illustrate compliance with the MHO or DSE regulations and deny any such
negligence alleged.
5.6 See Appendix 2 and 3 setting out in more detail the investigations and the contents of witness statements
required when dealing with WRULD from manual handling and DSE respectively. In brief you will need to
identify the following employees to take statements from:-
The claimant’s line manager/supervisor regarding the work the claimant undertook, including the
safe systems of work and enforcement of these;
Employees who carried out the same/similar work as the claimant over the relevant period to
illustrate how the work is undertaken and compliance with safe systems of work;
Anyone to whom the claimant may have made complaints and with knowledge of insured’s
response;
Health and safety officers/advisors/risk assessors- dealing with risk control, training, implementation
and compliance with control measures, warnings of the risks and the need to report symptoms,
health surveillance and risk assessment preparation;
Members of personnel and occupational health departments – illustrating health surveillance
procedures, in addition to steps taken following the onset and report of the claimant’s symptoms.
12
6 Medical Causation
6.1 ULDs are conditions affecting the muscles, tendons, ligaments, nerves and other soft tissues of the upper
limbs – particularly the shoulders, elbows, arms, wrists, hands and fingers.
6.2 There are a number of recognised medical conditions (see Appendix 1) which can all arise naturally and are
constitutional in origin. Some may be caused by injury, hobbies and sport or caused/exacerbated by work.
The British Orthopaedic Association (BOA) and HSE have both undertaken a review of the published
epidemiology to determine which conditions can be caused by work – although they are not entirely in
agreement on this issue.
6.3 Claims are sometimes made for non-specific conditions typically termed ‘diffuse RSI’ or fibromyalgia or
regional pain complex. The common features of such conditions are that the symptoms are diffuse and
non-specific and often only subjective pain is exhibited. Usually, the diagnosis is more tenuous and many
experts do not accept that there is a proven link with work or that such conditions actually exist. Some
believe they are physical representations of some underlying psychological problems.
6.4 In determining whether there is a causal link between a condition and work, consideration should be given
to the following:
Is there a biomechanical link between the work complained of and the specific injury diagnosed?
Is there a temporal association? Symptoms will usually develop after a short period of time (a matter of
months) from starting new or unaccustomed work.
For an employee carrying out a long-standing job then a temporal association between some change in
the work (a ‘trigger’) and manifestation of symptoms suggests a causal link.
6.5 Even if work is not the primary cause of the condition, consideration must be given to an
exacerbation/aggravation/acceleration claim both as a result of the work itself and/or a failure to act
appropriately when symptoms were reported to the insured. e.g. moving a claimant to light duties or
changing the nature of the work they undertake.
13
7 Liability Expert Evidence
7.1 Expert evidence on both breach of duty and causation is often necessary to determine if the work has been
risk assessed correctly and appropriate control measures were in place to reduce the risk of injury to the
lowest level reasonably practicable.
7.2 Reasonably practicable is a task of weighing up the risk versus the financial costs to implement such a
control measure. If the risk of injury is very low, the insured would not be expected to invest large sums of
money in control measures which may have little (if any) effect upon risk. Conversely the insured are
expected to implement suitable control measures, at cost, if there is a high risk of injury.
7.3 Evidence is often obtained from an ergonomist – an expert in ergonomics. Ergonomics is the science
concerned with the fit between people and their workplace and aims to ensure that tasks, equipment,
information and the environment are safe for employees to work in. Ergonomists are competent to
consider and will advise whether there is a biomechanical link between the work and the alleged condition.
7.4 Ideally, liability experts should view the work processes and equipment used by the claimant, with the
claimant present. It is usually helpful for the expert to make a video of the work process.
7.5 The evidence of any liability expert should be seen by the medical experts to enable them to properly
consider the nature of the work and medical causation.
7.6 Ideally you should seek to instruct your own expert as opposed to a joint expert as the CPR does not permit
any communication with the expert without the claimants solicitors being present or a party to
correspondence sent to them.
14
8 Medical Expert Evidence
8.1 When considering which expert to instruct, check the discipline of the treating hospital consultant.
Generally orthopaedic surgeons (specialising in upper limbs) or rheumatologists are used. Medico-legal
experience is essential.
8.2 For certain conditions, were a cervical spine nerve impingement is a potential cause of upper limb
symptoms a neurologist may be more appropriate. Occasionally, where non-work-related factors are
important and there is concern regarding a psychological component to the symptoms, a consultant
psychiatrist or a pain management consultant may also need to be instructed.
8.3 Ensure that the medical expert is sent the claimant’s full medical records and has a proper understanding of
the work and chronology of events (through disclosure lay evidence and preferably video footage of the
work. The video will be disclosable if the expert’s report is disclosed.
8.4 The medical expert will need to examine the claimant and deal with the following:
A diagnosis of the ULD;
Onset and history of symptoms, biomechanical link with work and temporal association;
Causation of the ULD;
Prognosis and past/present/future capability for work and any disability on the open labour market;
Period of acceleration or aggravation of symptoms caused by work.
15
9 CRU
9.1 WRULD is an occupational disease for which claimant may seek Industrial Injuries Disablement Benefit (IIDB)
and Incapacity Benefit (IB) from the Department of Work and Pensions (DWP).
9.2 Where a defendant is responsible for the claimant’s injury, the DWP’s Compensation Recovery Unit (CRU)
will seek to recover the money paid to the claimant from the defendant (insurers). The defendant can offset
IIDB and IB from a loss of earnings claim and other aspects of loss; see the link below.
9.3 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 correct
amount for the benefits.
9.4 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.
9.5 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.
9.6 If it’s 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;
i. The first is to seek a ‘review’ of the certificate. This can be done throughout the proceedings pre-
settlement and is a request for the CRU to consider whether the sums paid to the claimant were done
so appropriately and as a result of the injury which is the subject matter of the claim;
ii. Once the matter is concluded, if you want to challenge the certificate you must first request a
mandatory reconsideration, 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. Having taken that step, if refused 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. Time limits are in place to seek such reviews, see guidance upon this in the link below.
9.7 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”) of the benefits or after the deduction of benefits (“net”). If you settle
gross of benefits, upon a successful appeal, the benefits reimbursed should be sent to the claimant. If you
settle net of CRU and appeal successfully the reimbursement will come to you. For this reason when you
make your offer and/or sign a consent order you need to ensure it is clear who shall benefit from a
successful CRU review. (See guidance at www.gov.uk)
16
10 Making a decision
10.1 Having considered the employer’s duties (whether under statute or common law negligence), the evidence
(both documentary and lay witness) of the defendant’s practices, plus any liability/medical evidence it’s time
for you to decide on the defendant’s prospects of defending breach of duty, alleging contributory
negligence and/or denying medical causation. Bear in mind the following questions:
Are you the only insurer on risk? If not, are the other insurers involved signatories to the IDCWP? Is the
claim to proceed in accordance with IDCWP agreement as a short-tail claim or outside of this on a
time/exposure basis.
Are there any other insurers who need to be notified before settlement discussions can commence?
Is the claim registered with the CRU and do you have an up to date certificate?
Is limitation an issue and does it need to be taken as a preliminary point before settlement is
considered?
Do you have all of the disclosure and lay evidence you need? If not what’s missing?
Do the allegations of exposure to the said system of work pre-date 1st October 2013 and
implementation of the Enterprise and Regulatory Reform Act 2013.
With reference to HSE guidance has the insured complied with their obligations under the MHO and
DSE Regulations? Do you believe the insured can deny the allegations of negligence. If no, were those
breaches causative of the claimant’s condition and the losses alleged?
Is expert liability evidence required from an ergonomic evidence required to determine compliance with
the regulations and defend the claimant’s allegations?
Having obtained copies of the claimant’s full occupational health and medical records - has the
claimant’s medical expert considered the full range of opinion, do you need to put questions to the
claimant’s expert or do you wish to secure your own expert evidence? Note: you can always get a
medical report on the papers should the claimant refuse to be examined by your expert pre-litigation or
prior to court permission in a litigated case.
Assess any schedule of loss and request documentation and evidence in support.
Do the insured have significant floodgate concerns and consider the impact of settlement of the claim
upon any other potential claims.
10.2 If there is no basis on which to defend the claim and you have carried out a valuation of the likely general
and special damages, consider your strategy to settle the claim.
10.3 Make sure, if you intend to make a Part 36 offer that your offer complies with the rules in Part 36. Is your
offer gross or net of CRU?
17
Appendix 1- the Disease and Illness Protocol
Unlike the Civil Procedure Rules the protocols are less prescriptive. The point of the protocols is to guide
handlers in dealing with matters pre-action. Using the protocols effectively will give you a great advantage
when dealing with complex claims such as work related upper limb disorders.
The protocol is available here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_dis
It will stand you in good stead to develop a working knowledge of the protocol. You should be ready to
highlight which parts of the protocol you say you are complying with; whenever you get the opportunity,
whether in a letter or on the telephone, make clear to your opponent that you and your client are working
to comply with the Pre-action Protocol for Disease and Illness.
It’s in your and your clients’ interest to deal with things fairly and swiftly, because when things go awry you
will have ammunition to put before the court of how you have been working to comply, even if you have
fallen short in some way, and those contemporaneous documents work to persuade judges.
The key parts of the protocol:
The Aims (1.2): more contact between potential parties, better exchange of information, better
investigations (ON BOTH SIDES), ability to settle fairly and sooner;
Timetable and arrangements for disclosure (2.6): this should been seen as flexible, if the circumstances
of the case require the deadlines to be varied, seek alterations, but remember to be collaborative:
explain the circumstances (what steps you have taken, why the deadline is not achievable, what further
steps need taking, why and how long you estimate it will take). Remember the more open and detailed
your correspondence with your opposite number the more ammunition there is before a court to show
your reasonable conduct. This cuts both ways, seek explanations from your opposite number, “why do
you need that” is a useful question to ask;
Litigation is a last resort (2A.1): there’s mention of alternative dispute resolution in the PAP, but the key
point here is:
“The Courts take the view that litigation should be a last resort, and that claims should not be
issued prematurely when a settlement is still actively being explored. Parties are warned that if the
protocol is not followed (including this paragraph) then the Court must have regard to such
conduct when determining costs.”
The above is a useful thing to point out when claimants’ solicitors are threatening to issue proceedings
and also when they threaten to issue Pre-action disclosure applications (also bear in mind the General
Aims of the Protocol 3.1: to resolve as many disputes without litigation as soon as possible).
In the General Objectives 3.2: it’s expressly set out, one of the aims of the protocols is:
“to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of
meritorious claims”
18
Make sure to point out, if a claim does not have good merits. In discouraging unmeritorious cases you
are complying with the protocol.
Understanding the claim 4.2: The claimant’s must provide sufficient information: so you need clear
details of:
Who the claimant is;
Who the alleged defendant is;
What the claimant’s symptoms/condition is;
When the claimant first became aware of the symptoms;
When the claimant alleges employment;
Where the claimant worked and when;
What the allegations are in relation to breach;
What the claimant alleges is the basis of his cause of action;
What documents/records the claimant intends to rely on;
What the claimant’s position is on causation.
If the claimant hasn’t given you sufficient information to investigate their allegations they have not
complied with the protocol. If they haven’t complied with the protocol, you should use this opportunity
to point out that the claimant has not complied and how: also point out the court is unlikely to consider
the protocol period has begun to run (if not protocol compliant), and that any applications which follow
would be flawed.
Deadlines:
4.3: If a request is made for occupational records by the claimant to the defendant, you have 40
days from the date the letter is sent to comply:
7.1: If a letter of claim is sent you have 21 days from the day it is posted to acknowledge it; and
Within 30 days of the acknowledgement you must identify any other relevant insurers; and
Within 90 days of the acknowledgement you should provide a position on liability, if you are
denying liability or any part of the claim you should provide documents in support of your position
which are relevant to the material issues.
Disclosure & documents:
Parties pre-action are entitled to seek relevant disclosure and inspection of documents to aid in
determining the strengths and weaknesses of their cases.
There are lists of what are considered standardised disclosure for personal injury matters, which are
found in Annex C in the Pre-Action Protocol for Personal Injury Claims. Note that the list is intended as a
starting point and just because documents appear in those lists does not make it reasonable or proper
in every case to disclose them. Claimants often cut and paste those lists into their letters of claim
without a second thought. The converse of that is there are likely to be documents, not set out in the
annex which may be relevant to the issues in your case and need to be disclosed.
Go through the list to determine if the request for disclosure is proper and/or proportionate. The test for
what will constitute disclosure is under C.P.R. 31.6 (standard disclosure):
“what documents are to be disclosed
Standard disclosure requires a party to disclose only—
19
the documents on which he relies; and
the documents which—
adversely affect his own case;
adversely affect another party’s case; or
support another party’s case; and
the documents which he is required to disclose by a relevant practice direction.”
It’s a fairly broad test. But it will often be a useful exercise to ask whether the documents that are
requested will fall to be disclosed under standard disclosure. Bear in mind broad requests for documents
relating to other employees or ‘similar incidents’ are likely to be considered inappropriate ‘fishing
expeditions’.
Bear in mind 3.2 of the protocol: Parties are required “to communicate promptly where any of the
requested information is not available or does not exist”.
Extensions:
If further time is required to secure documents, the protocol allows for this: but reasons must be given.
If there is a dispute on whether the time for complying with the protocol has begun to run, be careful.
Don’t deny the time has begun to run and then seek an extension. Instead, hold to your position that
the protocol has yet begun to run but make clear that you are investigating but are hindered by the lack
of information or cooperation on the part of your opponent.
Bear in mind that the court does not look favourably on failures to comply with extensions. If you cannot
comply with an extension explain why that is and seek another extension, ideally this will be done in
plenty of time before the expiry of the extension.
Typical disclosure documents and the matters to be covered by lay evidence are set out below.
Disclosure documents (Claimant)
Request disclosure of:
GP, hospital and occupational health records.
Inland Revenue employment schedule.
Claimant’s full personnel file.
Refer the claimant to Para.6.6 which places such disclosure requirements upon the claimant once the
letter of claim is acknowledged.
20
Appendix 2 Upper-limb disorders and their association with work
Condition Location of injury Occupational link and symptoms
Beat hand General inflammation of the hand causing
pain and swelling.
Generally associated with labouring
work involving severe or prolonged
friction or pressure on the hand.
Bursitis Inflammation of the soft pad of tissue
between skin and bone or bone and
tendon. It can occur at the elbow (beat
elbow) or the shoulder (frozen shoulder).
The HSE says it can be associated with
repeated local trauma from prolonged
leaning, pressure or friction over the
elbow.
Cellulitis Infection of the palm of the hand. Not associated with work.
Carpal tunnel
syndrome
Compression of the median nerve as it
passes through the carpal tunnel (a small
fibrous channel of the wrist). This can cause
pain, numbness and pins and needles in the
thumb, index, middle and ring fingers as
well as weakness in the hands (see figure 2,
4.1).
The BOA says that the vast majority of
cases are not caused by work. If the
condition is present then certain tasks
may exacerbate it. The HSE says it is
associated with:
highly repetitive forceful work
hand-arm vibration.
However, recent epidemiology
suggests no association between work
and CTS. For example, Dias et al.
Carpal Tunnel Syndrome and Work,
Journal of Hand Surgery, 2004,
concluded that there was ‘no clear
association between carpal tunnel
syndrome and work’. According to
research by Lozano-Calderon et
al. (see 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.
In the Social Security (Industrial
Injuries) (Prescribed Diseases)
Regulations 1985 (as amended) CTS is
prescribed for:
21
Condition Location of injury Occupational link and symptoms
(1) (a) The use, at the time the
symptoms first develop, of hand-held
powered tools whose internal parts
vibrate so as to transmit that vibration
to the hand, but excluding those tools
which are solely powered by hand; or
(b) repeated palmar flexion and
dorsiflexion of the wrist for at least 20
hours per week for a period or periods
amounting in aggregate to at least 12
months in the 24 months prior to the
onset of symptoms,
where ‘repeated’ means once or more
often in every 30 seconds.
Cervical
spondylosis
Chronic degeneration of the cervical spine
including the cushions between the neck
and vertebrae (cervical discs) and joints
between the bones and the cervical spine.
This can eventually lead to compression of
nerve roots causing increasing pain in the
neck and arm, weakness and changes in
sensation.
The BOA says it is generally
constitutional but certain occupations
involving awkward posture could
predispose a person to symptoms
from degenerative changes.
Cubital-tunnel
syndrome or ulnar-
nerve tunnel
syndrome
Entrapment of the ulnar nerve at the elbow.
This can cause weakness of the hand and
pain in the ring and little fingers.
The BOA says it is not work-related.
The HSE says it can be associated with
direct pressure or trauma.
De Quervain’s
disease
Tenosynovitis of the tendons of the thumb
as they pass over a bone in the wrist. It is a
more localised form of tenosynovitis, not a
distinct condition.
The BOA says it is rarely caused by
occupation. The HSE says it can be
associated with occupations where risk
factors of force, repetition and poor
posture are present.
Dupuytren’s
contracture
A thickening of the deep tissue passing
from the palm onto the fingers which
causes shortening of the tissue which pulls
the fingers into the palm.
The BOA and HSE say it is not work-
related.
Lateral
epicondylitis
(tennis elbow) &
medial
epicondylitis
(golfers elbow)
Degenerative condition of tendon/muscle
as it joins the bony prominence
(epincondyle) of the elbow. At the outer
elbow it is known as lateral epicondyylitis.
At the inner elbow it is known as medial
epicondylitis.
The BOA says the condition is not
clearly associated with any particular
working activity. When it does occur it
will be more troublesome in those
carrying out manual work. The HSE
says the conditions can be associated
with work where the combination of
risk factors of force, repetition and
poor posture are present.
Frozen shoulder
(shoulder
capsulitis)
The cause is unknown but probably involves
an underlying inflammatory process and
restricts shoulder movement.
The BOA says it is not associated with
work.
Ganglion A cyst usually occurring on the back of the Both the BOA and HSE say it is not
22
Condition Location of injury Occupational link and symptoms
hand or wrist. related to work.
Peritendinitis
crepitans
Inflammation of the junction of the muscle,
tendon and surrounding tissues in the wrist
and forearm.
The BOA says it may be caused by
work and it is a prescribed condition.
Rotator-cuff lesions
(shoulder) or
impingement
syndrome
Injury to the rotator cuff (a group of
muscles and tendons that hold the shoulder
joint in place) manifesting in a reduced
ability to lift the arm and reach overhead.
The BOA says it is common in
sportsmen – such as swimmers – who
lift their arms overhead. No strong
evidence of occupational link. The HSE
says it can be associated with highly
repetitive work involving shoulder
postures greater than 60 degrees
flexion or abduction.
Tenosynovitis Inflammation of the synovial sheath
(covering the end of tendons as they join
bone) usually at the hands and wrists. It
causes aching or shooting pain up arms,
swelling, creaking tendons and restriction of
movement.
The HSE says it can be associated with
work which has a combination of risk
factors or repetition, force and poor
posture.
Trigger finger
(stenosing
tenosynovitis) and
trigger thumb
Inflammation and thickening of the tendons
(tendonitis) of the fingers or thumb.
Symptoms can include pain and clicking
sensation when finger/thumb is bent.
The BOA says the conditions are not
associated with occupation. The HSE
say there is a possible association with
work involving overuse of
fingers/thumb.
23
Appendix 3
Generic schedule of investigation – WRULD claims arising from
manual handling
Introduction
These cases typically focus on: excessive repetition; poor working postures; excessive force; and excessive
duration of exposure.
Schedule of investigations
Lay evidence
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.
the employees to whom the claimant may have made complaints and with knowledge of the insured’s
response.
health and safety officers/advisors/risk assessors/members of personnel and occupational health
departments dealing with knowledge and risks of MSDs, risk assessments and risk control factors,
training, warnings, monitoring and support for employees.
Witness evidence should address the following:
The work:
Detailed chronology outlining periods of employment, department(s) and job(s) worked, general nature
of work for the period leading up to first manifestation of symptoms.
Days and hours of work, formal and informal rest breaks (frequency/duration) and overtime.
A detailed description of nature of work carried out by the claimant including any work not involving
manual handling and a percentage breakdown between all types of work and upper limb movements.
Degree of autonomy enjoyed by claimant and how much control they have over the way in which they
work. Is the workload machine driven? How is the claimant supervised?
Estimate of time spent manual handling including estimates as to uninterrupted periods of this work – in
other words was there natural variation within work duties and if so, details of the same including
frequency/duration.
Details of any targets/deadlines/minimum work levels. Identify any variation in intensity of tasks, e.g.,
month end, regular deadlines, slow business periods, etc.
Working environment:
Obtain photographs of workstation and a video of an employee carrying out same/similar manual-
handling tasks to the claimant. Measure any relevant height/distances of manual handling.
Description of workstation, production lines, conveyors, tables, shelving, etc.
Are there any slopes, ramps, gradients to overcome? Are there any variations in floor level, steps or
ladders?
Are the floors uneven, slippery or unstable? Are they well maintained?
24
Are there obstructions that increase the need for twisting or leaning?
Is the work area sufficiently large and clear and well maintained to move around easily?
Are there low work surfaces or restricted headroom resulting in stooped posture?
Is there a good standard of housekeeping to keep workplaces clean and tidy?
Are there extremes of temperature or humidity?
Risk assessment and control measures:
Is it reasonably practicable to avoid/eliminate the manual handling?
If not, is it reasonably practicable that the process be mechanised or automated?
If the manual handling cannot be eliminated or mechanised, then has a sufficient and suitable risk
assessment been made and, if so, is there a real risk of ULD’s from the work?
What risk factors and risk-control measures were identified from the assessment? Have these been
adopted? If not, why not, and is there a good reason why not?
Has there been any ergonomic design of the workplace/system of work?
Is mechanical assistance available and practicable and accessible – hoist, trolley, sack truck, roller
conveyor, cranes, etc.? If so, are employees trained on its proper use, is it well maintained, are
employees instructed to report defects?
The task:
Does the task include the following and how are these risks controlled:
Reaching upwards.
Considerable lifting or lowering distances.
Considerable carrying distances.
Considerable pushing or pulling of the load.
Repetition.
Force.
Awkward posture.
Frequent or prolonged physical effort
Insufficient rest or recovery periods
A rate of work imposed by a process
Individual capability and training:
Was there pre-employment assessment of capability for work?
Is there health surveillance?
Is the physical suitability/gender/age of the employee taken into account?
Does the job require unusual strength, height, etc.?
Has information and training on manual-handling risks and prevention been provided, such as how to
carry out manual handling safely, use of mechanical aids and reporting of any MSDs?
Is there monitoring of employees to encourage the workforce to adopt appropriate techniques?
25
Complaints/absences:
Has the claimant a relevant medical history? Is there a previous history of injury or symptoms?
Did the claimant make complaints of the work/symptoms? If so, what was the nature/gist of these and
when, where, how and to whom were they made.
What was the insured’s response to such complaints, if any?
When did the claimant’s symptoms begin and what work was being undertaken at this time?
Was there a delay in the claimant reporting symptoms?
How many other employees carry out the task(s) complained of? Have others made complaints/suffered
injury?
Identify periods of holiday, sickness and other absences (training, etc.).
For the guidelines for manual handling and risk assessment filter, please see Appendix 2 of BLM mini handling
guide, Cumulative back injuries.
26
Appendix 4 Generic schedule of investigation – DSE claims
Introduction:
These cases involve considerable investigation to obtain full disclosure, lay evidence and to inspect the
workstation itself. The Health and Safety (Display Screen Equipment) Regulations 1992 are the principal
regulations of relevance. It is recommended that claims inspectors be familiar with the HSE Guidance to the
Regulations (Work with Display Screen Equipment L26).
Preserving equipment:
An investigator’s first priority is to ensure that the insured preserves the actual (or at least the same/similar
examples of) workstation equipment.
The insured should be asked to notify of any plans to dispose of equipment so that an inspection can be
arranged beforehand (even if all disclosure and witness evidence has not been obtained).
Lay evidence:
Statements of fact should generally be obtained from the following:
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 the insured’s
response.
Health and safety officers/advisors/risk assessors/members of personnel and occupational health
departments dealing with knowledge and risks of WRULDs, risk assessments and risk-control factors,
trainings, warnings, monitoring and support for employees.
Witness evidence should address the following:
The work:
Detailed chronology outlining periods of employment, department(s) and job(s) worked, general nature
of work for the period leading up to first manifestation of symptoms.
Is the claimant a ‘display-screen equipment user’ as defined under the DSE Regulations (a person who
habitually uses display screen equipment for a significant part of their work). Some examples of DSE
users are word processors, secretaries/typists, data input operators, journalists, telesales operators and
graphic designers.
Days and hours of work/formal/informal rest breaks (frequency/duration)/overtime.
A detailed description of the nature of work carried out by the claimant including any work not involving
DSE (filing, copying, printing, faxing, telephone calls, meetings and travel, etc.) and percentage
breakdown between all types of work.
Degree of autonomy enjoyed by claimant and how much control they have over the way in which they
work. How is the claimant supervised?
27
Estimate of time spent at both workstation and using any other DSE. Estimates as to uninterrupted
periods of time spent using the DSE – in other words was there natural variation within work duties and
if so details of the same including frequency/duration.
Estimate of key stroke rate per minute/hour. Is there a system of monitoring for this or software that can
estimate the rate?
Details of any targets/deadlines/minimum standard levels/work systems. Identify any variation in
intensity of tasks, e.g., month end, regular deadlines, slow business periods, etc.
Period of time on job(s) complained of prior to manifestation of symptoms. Is there a temporal
association between the new job/work or a ‘trigger’ for symptoms – in other words, was there any
material change in the work level/system of work in the period leading up to manifestation?
Workstation:
Does the workstation meet the minimum requirements as set out in Annex A to the Guidance to the DSE
Regulations (diagrams from HSE guidance reproduced in section 4) as follows:
Display-screen equipment:
Can the display screen swivel and tilt easily to suit the needs of the user?
Is there a separate base for the screen or an adjustable table?
Is the screen free from reflective glare?
Workstation:
Description of workstation (desks, work area, chair, monitor, keyboard and mouse, footrests, wrist
support, waist supports, document holders, telephone/telephone headset, lighting, software).
Obtain photographs of workstation and a video of a DSE user carrying out same/similar task to the
claimant.
Work-desk surface:
Is it sufficiently large and does it allow a flexible arrangement of the screen, keyboard, documents and
related equipment?
Is there a document holder? If so, can it be positioned to allow the user to adopt comfortable and clear
reading of documents?
Work chair:
Is it stable? Does it allow the user easy movement and a comfortable position?
Is it adjustable in height? Is the seat back adjustable in both height and tilt? Has the claimant requested
a footrest? If so, obtain details.
Is there sufficient leg room and clearance to allow postural changes?
Keyboard:
Can it be tilted and separated from the screen so the user can find a comfortable working position?
Is there sufficient space in front of the keyboard to provide support for the hands/arms?
28
Risk assessments/training:
Was the claimant trained on the requirements of the DSE Regulations, essentially:
- to understand the nature/potential of WRULDs and how to recognise and report any typical symptoms
- how to conduct a workstation self-assessment
- how to minimise the risk by adopting a comfortable working posture (by ‘ergonomic setup' of
workstation).
- variation/rotation of tasks/rest breaks.
Were risk assessments other than those conducted by DSE users performed?
Were assessments made following major changes in workstation, software and duties?
What remedial action was identified from any assessment – i.e., overcoming postural problems through
adjustments to workstation/ensuring rest breaks/variations in tasks, etc.?
Complaints and absence:
Was the claimant instructed/warned that the work was associated with a foreseeable risk of
musculoskeletal disorders? Was there instruction on how to recognise typical symptoms and report
these immediately? Was there instruction on seeking medical advice/assistance?
When, where, and to whom did the claimant make complaints? What was the nature/gist of complaints?
What was the response, if any, to complaints?
Identify periods of holiday, sickness and other absences (training, etc.).
The inspection:
At an inspection, ensure the attendance of any witnesses who will be able to comment on the claimant’s
workstation/work.
If there is a conflict of evidence on any aspect of how the workstation was set up and used, ensure that
investigations cover both scenarios.
Identify precise models of actual workstation equipment, e.g., computer, monitor (including risers),
keyboard, desktop calculators, mouse, chair (and backrest), desk, pedestal, footrest, wrist rest,
telephone, document holders, etc.
Investigate all the workstations throughout the time of the alleged period of breach. The claimant
should specify the precise periods of alleged breach and locations of workstations in issue (including at
home) to avoid needless investigations.
Recreate the workstation as it would have been used by the claimant, ideally with the claimant there or
at least someone of similar size. Place papers, files, stationery, etc., on the surfaces. If claimant is present,
ensure also the presence of a colleague who can point out any inaccuracies in the claimant’s
recollection.
Measure the height and area of work surfaces, height of chairs and any other distances relevant to the
tasks complained of, e.g., stretching to the back of the desk or over to drawers.
Note the adjustment controls on the chair and monitor and check how easy they are to operate.
Note the position of the chair in relation to the desk. Do the arms of the chair (if any) fit comfortably
under the desk? Can the claimant move around the work space comfortably and with variation of
movement?
Note the monitor display. Are the characters a reasonable size, stable and easily distinguishable? Does
viewing involve an awkward posture?
Note the position of the keyboard. Can it be tilted? Is there enough space in front of it for the hands to
move and rest comfortably?
29
Note the position of the mouse. Can it move freely? Can the user use it with their elbow resting on the
desk?
Note the lighting conditions, e.g., is there any glare or reflection from the monitor, keyboard, lights or
windows? Are the monitor controls (contrast, brightness, etc.) easily adjustable?
Note the levels of background noise and temperature. Are there distractions to the user?
Note how easy it is to move the various items of work equipment around the workstation. Are there
short cables? Is the space cramped? Is there ‘junk’ on, under or around the desk?
Take photographs or, better, video footage of a workstation user demonstrating the tasks alleged to
have caused injury with particular attention to their posture/keystroke rate.
Compare the claimant’s working position and workstation to the HSE diagrams reproduced as follows.
Figure 3: Minimum requirements for workstation as set out in HSE Guidance (L26) to DSE Regulations.
1 Adequate lighting.
2 Adequate contrast, no glare or distracting reflections.
3 Distracting noise minimised.
4 Leg room and clearances to allow postural changes.
5 Window covering.
6 Software: Appropriate to task, adapted to user, provides feedback on system status, no undisclosed
monitoring.
7 Screen: Stable image, adjustable, readable, glare/reflection-free.
8 Keyboard: Useable, adjustable, detachable, legible.
9 Work surface: Allows flexible arrangements, spacious, glare-free.
10 Work chair: Adjustable.
11 Footrest.
30
Figure 4: Seating and posture for typical office tasks as set out in HSE Guidance L26.
1 Seat back adjustability.
2 Good lumbar support.
3 Seat height adjustability.
4 No excess pressure on underside of thighs and backs of knees.
5 Foot support if needed.
6 Space for postural change, no obstacles under desk.
7 Forearms approximately horizontal.
8 Minimal extension, flexion or deviation of wrists.
9 Screen height and angle should allow comfortable hand position.
10 Space in front of keyboard to support hands/wrists during pauses in keying.
31
Contacts
HEAD OF DISEASE PRACTICE Nick Pargeter 020 7865 3361
Belfast & Derry
Aine Tyrrell
028 9032 7388
Birmingham
Val Hughes
0121 633 6625
Bristol and Cardiff
Matthew Harrington
02920 447 621
Dublin
Gavin Campbell
+3573 1 261 2166
Glasgow
Andrew Gilmour
0141 307 6734
Leeds
Deborah Procter
0113 218 5571
Liverpool
Tanya Cross
0151 471 5454
London
Michelle Penn
020 7865 8541
Manchester
Claire Lawlor
0161 838 6971
Southampton
Andrew West
023 8038 2647
For full details of all BLM offices, please visit our website www.blmlaw.com