Out on a limb

One in 50 workers suffers from symptoms of upper limb disorder and 5.4 million days were lost in sick leave during 2001 as a consequence. These alarming figures come from the TUC's own research and has driven the organisation's campaign to raise the profile of such workplace afflictions.

The TUC's campaign coincides with the publication of a major revision of the HSE's guidance to employers, Upper Limb Disorders in the Workplace.

Work-related upper limb disorders (ULD) is now the preferred expression in place of the more familiar repetitive strain injury or RSI. The recognition of the condition has resulted in much research and there are studies which suggest a link between workplace activities and ULDs. However, evidence clearly demonstrating this link is scant.

Medical evidence
Loughborough University ergonomist

Brian Pearce says: "Unfortunately, there is a distinct lack of high quality epidemiological studies of most of the upper limb disorders which are popularly understood to be worked-induced."

Evidence indicating a positive link between keyboard use and carpal tunnel syndrome in particular is extremely weak. Whatever the strength, or otherwise, of the medical evidence, the HSE's guidance is treated by the courts as best practice which employers are expected to follow.

They are required to be satisfied only that a causal link exists on the "balance of probabilities". Employers and their insurers should appreciate that it is not difficult to find a medical expert who will happily conclude that there is a causal relationship between a claimant's work and his upper limb disorder symptoms.

The most contentious condition of all the upper limb disorders is diffuse RSI. In such cases, the claimant typically complains of non-specific pain and discomfort in the upper limb, but no anatomical changes can be identified and so no specific clinical condition, such as carpal tunnel syndrome, is diagnosed. The condition has its "believers" and "non-believers".

Generally speaking, rheumatologists tend to be "believers" and hand surgeons and consulting orthopaedic surgeons "non-believers", although there are exceptions.

Unfortunately for insurers, the courts have ordered damages for diffuse RSI, the most notable recent case being Gallagher v Bond Pearce [2001]. The decision of Judge Tyzack was rather controversial.

He accepted that the claimant's symptoms were real, in the absence of any identifiable pathology. In short, the claimant succeeded without proof of injury, because the defendant was unable to put forward an alternative explanation for her symptoms.

Good investigation
Even claimants' solicitors have suggested that this approach appears to demonstrate an "unhappy shift in the positioning of the burden of proof ".

When defending ULD claims, care and attention to detail are vital. They are not easy to win. Nigel Tomkins wrote in a recent TUC guide: "RSI cases are difficult, but many are not impossible to win. Successful RSI claims need good investigation, committed lawyers and a lot of hard work."

Significant initial investment by claimant's lawyers is needed when pursuing a claim before a realistic estimate of the prospects of success can be made.

And the twin hurdles of breach of duty and medical causation may make claimant's solicitors reluctant to run them under a conditional fee arrangement (CFA). On the medical side, the search is still on for a credible explanation for diffuse RSI.

Against this background, it will frequently be in insurers' interests to hold their nerve and defend such claims intelligently. They would, however, be well advised to ensure that their insureds are fully conversant with the new HSE guidance and maintain documentation proving their commitment to it.

Greg Woods is associate solicitor in the insurance group at DLA

What the HSE recommends

Understand the issues and commit to action
Both managers and employees should be aware of the nature of upper limb disorders and the risks posed by various work activities. Management must take a lead role in developing an effective health and safety policy and, crucially, translating that policy into reality.

Create the right organisational environment
Effective communication across all levels of the company will assist in the planning of work systems and their monitoring. The company's programme to prevent ULDs requires not only serious commitment from senior management, but also the participation of staff.

Assess the risk of ULDs in your workplace
A one-page checklist identifies those tasks which potentially give rise to the risk of ULD and, therefore, require a more detailed risk assessment. It considers repetition, working posture, force and duration of exposure and seeks to recognise the impact of environmental, psychosocial and individual risk factors.

Reduce the risk of ULDs
Having assessed and prioritised risks, employers must aim to eliminate or reduce those risks so far as possible. Risks should be prioritised and the workforce involved in the development of solutions. The guidance cautions against the imposition of ergonomic solutions and encourages giving workers "ownership" of risk-reducing systems.

Educate and inform your workforce
All workers, supervisors and managers should receive education on ULDs so that the early warning signs are recognised. Employers must take training of staff seriously. Proper training will require periodic refresher courses and ongoing evaluation.

Manage any occurrence of ULDs
Employees should be actively encouraged to identify symptoms and report them as soon as possible without fear of prejudicing their job or position. Employees absent with what is believed to be a ULD should be followed up promptly
and their return to work planned, with the assistance of a medical professional if necessary.

Regularly check the effectiveness of your ULD programme
Regular monitoring is required to identify, for example, disturbing trends in ULD-symptom reporting. In addition, the HSE expects a good employer to undertake a thorough review of ULD management systems on a regular basis. Naturally, the conclusions of any such review need to be acted upon.