The Health & Safety Executive (HSE) describes musculoskeletal disorders (MSDs) as the most common occupational illness in the UK, affecting 1.1 million people a year.
Where muscles join bone or bend joints, there is potential for over-stretching or straining. Muscular overload is easily achievable in most areas of work by reason of the nature of the work done. Even a so-called restful sitting position has possibilities for engendering MSD.
The sort of injuries that come within the category of MSD include back strains or postural problems leading to intervertebral maladjustments whose presence is signalled by low back pain. However, any joint in the body is liable to strain unless there are optimal working conditions. Joint injuries and repetitive strain injuries are endemic in the workplace requiring effective sickness management systems.
Legal liability
Preventing and coping with MSD is an essential part of management processes both in terms of physical working arrangements and working hours.
The Working Time Regulations 1998 (SI 1988 No 1833) control the length of time the working body can be subjected to physical strain but the health and safety aspects are whittled down by the ability in UK law for workers to opt-out of the 48-hour maximum working week. Nevertheless, employers should be wary of imposing long working hours because of the risk of causing or exacerbating injury.
The Management of Health and Safety at Work Regulations 1999 (MHSWR) (SI 1999 No 3242) impose a duty on employers to carry out a suitable and sufficient assessment for risk. In conjunction with the Working Time Regulations, the two features of excessive working hours and physical overload could and should be corrected.
The over-riding legislation is, of course, the Health and Safety at Work Act 1974, which makes it a criminal offence for the employer to fail to provide a safe system of work.
None of the criminal legislation is likely to give direct help to an employee who has suffered injury at work. The courts have the power to award compensation to the affected individual but, in as much as money can compensate an injured person for any pain and suffering, effective damages are only awarded by the civil courts. In order for an employee to succeed in civil litigation, he must prove on the balance of probabilities that it was reasonably foreseeable that harm would arise, that the employer knew or ought to have known of the risk to which the employee was subjected and that harm in fact occurred.
In the well-known case of Walker v Northumberland County Council [1995] 1 All ER, Walker, a social worker, claimed compensation for psychological injury arising from stresses caused by uncontrolled, long working hours and an intolerably high case load.
The case forms an interesting parallel with the effects of physical stress on muscles, bones and joints.
The judge said, “The question is whether [the Council] ought to have foreseen that Mr Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect [an employee] in his position with a really heavy workload … it is clear law that an employer has a duty to provide his employee with a reasonably safe system of work or to take reasonable steps to protect him from risks which are reasonably foreseeable… the standard of care … must be measured against a yardstick of reasonable conduct … the practicality of remedial measures must clearly take into account the resources and facilities at the disposal of the … body owing the duty of care and the purpose of the activity which has given rise to the risk of injury…”
Compensation
The Judicial Studies Board Guidelines sets out a broad tariff for compensation for injuries, describing each injury and the parameters of severity. Psychological and physical injuries are covered. MSDs are often made worse by anxiety or depression, particularly where a condition is not responsive or is slow to respond to treatment.
General damages pay for that which money cannot buy: the effect is supposedly to compensate for pain, suffering and loss of amenity. Special damages cover quantifiable losses such as loss of income, the cost of equipment to help people cope with temporary or permanent disability and payment for domestic or other assistance.
Examples of general damages
- Moderate back injury, such as disturbance of ligaments and muscles giving rise to backache, surgery required, 6,750 – 15,250
- Minor back injury, (sprains, prolapses) for which surgery is not required, five-year recovery period, 4,250 – 7,500
- Minor back injury for which surgery is not required, two year recovery period, up to 4,250.
The law’s attempts to reduce MSDs
When large numbers of blacksmiths and similar artisans walked the earth and hammered out their trades, there was no legal protection from the conditions giving rise to work-related MSDs as we know them today.
The injuries of the Industrial Revolution tended to be more of the sort that left a person maimed or dead rather than suffering muscle and tendon strains. Nowadays, the upper limbs of the modern workforce are – or should be – protected from strain and superstrain.
The Health and Safety (Display Screen Equipment) Regulations 1992 (SI 1992 No 2792) apply to those seated at their computers throughout the working-time-regulated day. Additional support concerning seating and general working conditions is provided by the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992 No 3004).
Employers of the sedentary workforce will look at the HSE revised guidance, Upper limb disorders in the workplace, to learn the lessons needed to take reasonable steps for prevention of MSDs affecting the upper arms and lower back. A particularly important recommendation is that regular checks should be made on the effectiveness of current measures for risk management.
Serious as the consequences are of unrestrained repetitive movements during the course of work, the dangers of manual handling of heavy objects should not be underestimated. More than a third of accidents giving rise to absence of more than three days from work and reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (SI 1995 No 3163) arise from the manual handling of loads, notwithstanding the requirements of Manual Handling Operations Regulations 1992 (SI 1992 No 2793 as amended by SI 2002 No 2174) and the risk assessment provisions of MHSWR.
Revised Manual Handling guidance was published in March 2004 and is essential reading for OH personnel. The revision brings it up to date, with improvements in the knowledge of the risks from manual handling and how to avoid them. Back injuries can develop suddenly, as in tripping, slipping and sudden impact movements. They can also be of slow, insidious onset as a result of regular overload rather than specific accidents.
In 2000, Unison reported: “Lifting heavy objects can also cause back pain … refuse collection workers, caretakers, porters, cleaners and gardeners are particularly vulnerable …”1
Back injuries are particularly damaging both to health and morale because of the prolonged period of recovery required. In legal terms, this means that the affected person is likely to have serious loss of income for which they may well have recourse to the courts to achieve compensation. Even if the ‘value’ of the condition is modest in terms of general damages, as with any injury, loss of income will probably form the bulk of any claim. ‘Backs 2005!’ is this year’s HSE campaign to reduce the incidence of back pain at work with a focus on manual handling.
The employer has a duty of care
The impact of regulations has been to increase levels of awareness of the risk of injury and the need for training.
A worker who ignores training may fail in a claim for compensation because he may be taken by the court to have voluntarily assumed the risk of injury or to have contributed to a greater or lesser degree to the injuries suffered by using incorrect methods or equipment contrary to any training offered. However, there is little doubt that the onus is on the employer to provide a safe place and system of work and to train staff properly to deal with the work they are required to do.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
There are several useful case studies on MSDs on the Securing Health Together page at the www.ohstrategy.net website, all of which point to the importance of knowing the limitations of the human frame and recognising the ingenuity of those who manage to find ways around the system in which they have been trained. There are always injuries waiting to happen.
Any enquiry about this article may be made to Joan Lewis at [email protected]
CASEBOOK
Sweet and Maxwell publish the personal injury encyclopaedia entitled Kemp and Kemp: Personal Injury Practice. This has short reports on numerous cases which are not necessarily formally reported in the legal journals, such as the following in which the level of damages is up-dated to today’s value.
Glorman v Ford Motor Co Ltd (1996)
Glorman suffered VWF (vibration white finger syndrome) caused by the use of vibrating equipment between 1981 and 1986. The symptoms developed in 1988 and reached stage II/III on the Taylor Pelmear Scale with all fingers subject to blanching to the palmar crease even in the summer. Although he had reduced grip and dexterity and was unable to participate in snooker and darts, he had no difficulty with his present work duties. General damages: 9,300.
Condra v Norcros (1993)
Condra developed vibration white finger syndrome over a 14-year period while working for the defendants as a window fixer and glazier using drilling and impact equipment for around two hours a day. The little and ring fingers of the right hand were affected and the ring, middle and index fingers on the left hand. His ability to decorate was seriously affected and his hobbies of golf and swimming curtailed. General damages: 9,100.
Kacsmarek v South Crofty Plc (2002)
Kacsmarek was a tin miner who settled an earlier claim for VWF syndrome in 1988 but the defendant continued to permit the use of vibrating drills, which K used until 1997, when he stopped work after sustaining a different injury in a rock fall. His new claim for damages was for the worsening of the condition between 1988 and 1997 including aching, numbness and tingling in his hands, leaving him unable to undertake any fine manipulative tasks including keyboard use. He was also unfit for work that involved any significant amount of writing. The agreed medical evidence was that the exposure since 1988 was substantially likely to have caused progression of the existing symptoms. General damages: 8,950.
Cole v Birmingham City Council (1996)
Cole was a care assistant who suffered a strain of the lumbar spine whilst helping to lift a patient in a wheelchair. She took four months sick leave and attended work intermittently over the next twenty months until she was unable to continue to work as a care assistant. She could do sedentary work thereafter but could no longer do gardening or carry out her previous household tasks without assistance. Her injuries interfered with her everyday activities and that the symptoms, “while fluctuating, permeated all aspects of her life”. Her award for general damages would today amount to 16,000
Stimpson v Beevor Castings (1996)
Stimpson’s work involved repeatedly lifting heavy, bulky castings. He contracted Carpal tunnel syndrome in 1990, for which he had a “constitutional predilection” but symptoms were only brought on when work practices changed to require him to hold the castings for longer, increasing pressure on the median nerve.He lost his employment with BC in 1991 and then suffered depression. He had to give up subsequent employment as a trainee ambulance man because of continuing wrist pain and was unemployed at the date of trial. Recent surgery to both wrists gave him an excellent prognosis. His general damages would amount today to 13,000. He was also award 18,387 for past loss of earnings and 7,500 for loss of future earning capacity.
Turner v Owens Corning Fibreglass UK Ltd (1997)
Turner sustained a strain injury to his lower back as a result of trying to pull a heavy trolley in his duties as a factory worker. He was treated by three weeks hospital bed-rest and after a further four months absence from work was fit only for “light duties” on return. He was diagnosed as suffering acute strain to the lumbar spine and minor damage to a lumbar disc causing nerve root irritation. The initial acute pain subsided over the next 12 months to a permanent nagging pain “like toothache” requiring daily painkillers. He did daily exercises but mobility in the lower back was restricted by 25%-50%. He could walk up to a quarter of a mile but could not carry out his former hobbies of DIY and gardening. His sleep was frequently disturbed and sexual intercourse was impossible. He would not be able to carry out any work which involved bending, lifting or carrying. He was compensated by an award of 7,500 (equivalent to six months’ net earnings) for handicap on the labour market by reason of the restriction on his capacity for work. His award for general damages at today’s rates would amount to 17,500.
