Light at the end of the tunnel on CTS case involving both vibration/manual handling and a short exposure period
Park Square BarristersAmrit Atwal, instructed by Usman Ibrahim at AWH Solicitors, represented the successful Claimant at a contested Carpal Tunnel Syndrome trial, attended by Dr Pritchard the Claimant’s Rheumatologist and Mr Logan the Defendant’s Orthopaedic Hand Surgeon. The Claim was contested on breach of duty, causation and limitation. The trial took place virtually over a two period before His Honour Judge James sitting in Cardiff County Court.
The medical experts disagreed as to whether or not the Claimant had suffered from bilateral Carpal Tunnel Syndrome as a result of her working practices which included repetition, the use of force, gripping and in addition the right hand also included the use of a hand held vibratory tool and included vibration exposure or whether her Carpal Tunnel Syndrome was constitutional in nature.
The Defendant’s expert had formed the view that this condition was constitutional given her symptoms commenced some 4-5 months after she started work for the Defendant and that her symptoms commenced too soon after her employment commenced to be due to either vibration or repetitive work practices. Further, that her symptoms were in keeping with the natural progression of CTS given she had night-time symptoms and she only used a vibratory tool in her right hand which would not account for the bilateral symptoms.
The Claimant’s expert had opined that the combination of the work she was undertaking had caused her to develop CTS as a result of work and that her individual susceptibility had to be taken into account, however, she had no intrinsic or extrinsic risk factors or other known causes of CTS and she was not at a age whereby the risk factor was high. In his opinion her age accounted for a 2% risk and in Mr Logan’s he put her age as a risk factor of around 6%. She was 39 years old when symptoms commenced. The Claimant’s expert formed the view that her bilateral CTS was caused primarily by repetitive work and that the vibration exposure in the right hand only increased her susceptibility. Dr Pritchard had considered the medical literature that was supportive and he provided his views that the IIAC guidelines whilst helpful do not provide rigid rules and as a consequence do not strictly apply to mean that in every case there needs to be 12 months exposure to repetitive actions to cause CTS and rather it depends on the significance of exposure to repetition or vibration.
The Claimant underwent decompression surgery, first on her left wrist (in October 2016) and following that surgery she had informed the Defendant’s representatives in HR. Thereafter she had decompression surgery on her right wrist in November 2017. Upon her return to work her working practices remained the same. She was not referred to Occupational Health until after her second operation. It was agreed by the medical experts that she had no long term symptoms of CTS and she was relatively symptom free.
The Claimant was employed by the Defendant from June 2015 to July 2021, the parties also benefited from a Single Jointly Expert, Mr Watts who provided his views on breach of duty. In his report in which he had also reviewed videos and formed the view that both hands involved significant repetitive movements and the right hand also had exposure to vibration which was measured in around 2.5m/s² until she returned to work following her second surgery whereby it was measured above 1/m/s². He was also of the view that a risk assessment should have been carried out and it was noteworthy that following her return to work there was no risk assessment. He formed the view that a risk assessment would have showed that her role required job rotation in order to give a break from the repetitive work being undertaken. In his opinion there was a foreseeable risk of injury and previous complaints would also be important to consider by the Defendant.
There was also an argument that the Claimant’s claim had been issued out of time as well and she should have linked her symptoms in December 2015 which would have meant the claim form was issued approximately 1 month out of time.
The case involved an analysis of some of the medico-legal literature which underpins the views of both experts along with consideration of the prescription for CTS to be recognised as a disease by the Industrial Injuries Advisory Council (IIAC).
The judgement was in favour for the Claimant on all issues. HHJ James made the following findings on the issues of breach of duty: that there was sufficient exposure in her left hand to pinching/gripping, rotation of her hand and there was repetition of work undertaken every 7.5 – 11 seconds, in addition to her right hand there was repetitive work, manipulation and vibration exposure as well. Overall, he relied upon the findings of the expert that there was an increased risk of an Upper Limb Disorder (ULD) occurring as a result of both repetitive nature of the role and the vibration exposure at or above 2.5m/s2 and upon her second decompression surgery her exposure was above 1m/s2 (in the right hand). The Defendant was criticised for failing to undertake a risk assessment following her decompression surgery and indeed they should have undertaken a risk assessment given the increased risk of injury. The initial risk assessment carried out was not suitable and a risk assessment would have properly identified there was a reasonably foreseeable risk of harm both pre and post the first decompression surgery. In considering this he made reference to the report of Mr Watts which outlined that it is important for an employer to take into account any complaints or problems an employee is having with respect to ULD’s given that if left to continue to work in the same working practices then the problem can persist and can become chronic.
In considering causation, HHJ James had heard the evidence from both experts and preferred the evidence of Dr Pritchard, his evidence was supported by the views of Mr Watts the jointly instructed expert on breach of duty and although the symptoms did not commence 12 months after employment given the highly repetitive work and vibration exposure the Claimant had which was 40 hours per week and not the 20 hours per week which is required from the purposes of prescription that he accepted her role did involve significant repetition in both hands, force, gripping and also vibration exposure in her right hand. (It is worth noting during cross examination Mr Logan had accepted the general view that increased exposure of 40 hours would not need 12 months exposure and if there was to repetition/vibration then the IIAC paper would not have to be stringently followed). HHJ James had also considered in his view there was no intrinsic or extrinsic risk factors identified by either expert which could have caused her CTS.
He opined the Claimant was not statute barred and if she was, he would have exercised his discretion under s.33 of the Limitation Act. Accordingly the Claimant was awarded damages.
Case comment
In terms of breach of duty, it can be seen here that the Defendant was criticised by the Court for failing to consider the Claimant’s exposure to repetitive work in both hands, which involved gripping as well, also included force and in the right hand the additional factor of vibration exposure. The Defendant was also criticised for failing to undertake a risk assessment, especially given the Claimant had reported symptoms. The joint expert had outlined the issues. Further, when there were no other known causes to cause CTS aside from a 2-6% risk due to her age.
Importantly, this case shows that there is no strict requirement of 12 months exposure for 20 hours a week to repetition for CTS to be caused by work. In this case, it was found that not only repetition but gripping, force and vibration were considered to have caused the CTS. The medical literature including the papers involving a meta-analysis were considered and showed an increased risk for any one factor (which was a view endorsed from the single joint expert for the purposes of undertaking a risk assessment).
There was of course the alternative argument and submissions on acceleration of a constitutional condition due to working practices or exacerbation following her first decompression surgery of the symptoms that was to be considered in the alternative by the Court. There has been support elsewhere when there has been an acceleration or exacerbation of constitutional CTS after a short period of exposure.
Amrit Atwal is an experienced disease practitioner, he has represented parties at numerous trials and hearings for Hand Arm Vibration Syndrome, Carpal Tunnel Syndrome, Asthma, Dermatitis, Work Related Upper Limb Disorders, Noise Induced Hearing Loss, Military Noise Induced Hearing Loss, Asbestos related claims, Carbon Monoxide Poisoning and he is comfortable at considering complex medico-legal issues and happy to provide advice to those instructing.
If you would like to instruct Amrit, please contact one of his clerks:
Senior Clerk – Andy Reeves on 0113 213 5252