Developments in VWF, HAVS and CTS claims?
Is the tide turning in Vibration White Finger (VWF) / Hand Arm Vibration Syndrome (HAVS) claims?
Is the tide turning in Vibration White Finger (VWF) / Hand Arm Vibration Syndrome (HAVS) claims?
Claims for VWF/HAVS have risen in recent years, following years of declining numbers. Thanks to apparently Claimant friendly decisions, claims management companies appear to have targeted this type of claim as a source of income. But “times they are a- changing” and recent developments in this area may require new strategies on the part of insurers to maximise indemnity spend savings.
On 21st November 2005, whilst giving the leading Judgment of the Court of Appeal in the case of Montracon v Whalley, Lady Justice Janet Smith hit the nail on the head when she said:
“... in recent years...it has become well known among groups of working men that compensation is available for HAVS. Rightly or wrongly, the insurance industry believes that it is faced with many fraudulent claims made by workmen who do not have the condition at all but who have learned from others what the symptoms are and how to give a convincing account.”
Insurers suspicions are in our view entirely justified in a situation where there is no diagnostic test to prove that an individual is suffering from the condition. Additionally, 5% of men and 15% of women in the general population suffer indistinguishable vascular symptoms with no exposure to vibration.
Despite those concerns, the Court of Appeal implicitly approved a 3 stage test for the diagnosis of HAVS/VWF:
- A history of exposure to vibration sufficient to cause a risk of development of the condition;
- A clinical history and description of symptoms which is consistent with one or more of the components of HAVS; and
- The absence of any constitutional explanation of the symptoms complained of.
The “test” has been adopted by Claimants and put forward by them as the “liability test” for HAVS/VWF. Since that decision, any Claimant alleging symptoms of HAVS/VWF, exposed to pretty much any vibration since 1977 has considered their case one which ought to succeed.
VWF has been the most commonly prescribed industrial disease over the last 10 years and HSE data confirms that whilst IIDB claims for vibration fell year on year for 6 years up until 2006/7, thereafter there was a sharp rise in notifications. From a timing point of view it could be argued that this rise coincided with the licensing of claims management companies, looking for claims to find and sell and perhaps perceiving VWF claims post Whalley as a lucrative income stream.
Defendants have often struggled to defend historic claims in the absence of evidence as to vibration levels and exposure times, tool maintenance and training. As a result, Insurers dealing with volumes of claims have inevitably and quite rightly developed strategies to weed out and settle those claims with no reasonable prospects of success.
This recent development should cause insurers to consider and possibly amend those settlement strategies.
The first of those is the important decision of the Court of Appeal in the case of Vance-Daniel v Corus UK LtdEWCA Civ 274 (09 February 2010). Here, the Judge at First instance found as facts the following:
- The Claimant (C) was suffering from HAVS/VWF.
- C’s HAVS/VWF had been caused by using vibrating tools whilst employed by the Defendant (D).
- Just over 30 minutes a day for 2 days per week to vibration from an impact wrench; and
- Around 4 hours per day on no more than 1 day per week to vibration from an angle grinder.
- There had been no previous similar injuries to put D on notice.
- The relevant guidelines were the 1987 British Standard, which established the action level of 2.8 m/s2.
- Vibration created by the grinder exceeded the action level.
If the “Montracon test” was a liability test then this would doubtless have attached (on the basis that exposure was in excess of 1m/s 2 and therefore created a risk of injury) but it did not.
The proper question was whether D should reasonably have foreseen the risk to C. There was no history of previous similar vibration injury to have put D on notice. Waller LJ said this:
“What this case ultimately turns on is what a reasonable employer should have discerned from the British Standard Guide BS6842 dated 1987. It is however right to put that British Standard in context in that, prior to that time, there had been a Guide DD43 (1975) “Guide to the evaluation of Exposure of the Human Hand-Arm system to Vibration”
DD43 had explained that VWF resulted from regular, prolonged use of vibrating tools in industry, with a regular user subjected to at least 120 minutes cumulative exposure per day. BS6842 contains constant references to the word “daily”, and indeed the table which sets out the level of vibration and length of time after which 10% of the population would probably have symptoms has a note to it which reads:
“The values represented in table 5 are based on exposures which are regularly repeated on a daily basis.”
D contended that the exposure was not daily or regular and that in those circumstances D ought not to have foreseen a risk of injury to C. The Court at First Instance accepted that argument and held D not liable, which reasoning was upheld by the Court of Appeal.
What can we deduce from this?
- The Montracon diagnosis test is simply a diagnosis test and not a liability test.
- Exposure of an employee to levels between 1 and 2.8 m/s prior to the advent of the Control of Vibration at Work Regs 2005 does not, of itself establish liability.
- DD43 is unlikely to be the relevant guidance for an employer to consider.
- Forseeability needs to be proven by C and will be considered in each case on its own facts.
Yet further assistance to insurers may come from an experimental new cold provocation test, first outlined in an article by Salem et al in the “Journal of Hand Surgery” October 2009 edition. The test involves cooling a subject’s hands in a water bath to 15 degrees Celsius and then allowing them to passively rewarm whilst taking time/ temperature measurements.
This development was the subject of an article by Jim Byard in our last disease e-bulletin. However by way of a reminder the main points are :
Three groups of subjects were tested:
- Those with no symptoms of VWF at all.
- Those with symptoms of VWF but no vibration exposure (ie those with primary Raynaud’s syndrome); and
- Those with symptoms of VWF and a 5 year minimum history of vibration exposure, (ie those with HAVS/VWF).
There were statistically significant findings:
- HAVS/VWF patients rewarmed most in the first 30 seconds compared with the other groups;
- Primary Raynaud’s took longer to rewarm than other groups;
- A temperature difference of >7.5 0 centigrade (c) digit and room was unlikely in Primary Raynaud’s or HAVS/VWF; and
- A temperature gain of 2.2 0 C or more in the first 30 seconds and low baseline temperature was strongly suggestive of HAVS/VWF.
If this test receives broad approval from medico legal experts then it can be used to weed out those Claimants who have no vascular symptoms at all and those with non vibration related vascular symptoms (Primary Raynaud’s), leaving only the genuine HAVS/VWF sufferers.
Insurers can then consider whether the insured, as a reasonable employer should have foreseen risk of injury by reference to previous similar injuries and BS6842. It will take some time to alter the expectations of Claimant’s lawyers and adjust their behaviours accordingly, but the long term savings which might be made thereby are likely to be significant.
Trial success on clinical causation in Carpel Tunel syndrome (CTS) claims
Our Disease team have had a further recent success on the causation front, this time in relation to CTS in a local authority gardener. The issue of clinical causation was dealt with as a preliminary issue at the final hearing with each party having its own evidence from a Vascular Surgeon. Breach of duty had been conceded and limitation was not an issue. Importantly, both medical experts agreed that the Claimant did not have HAVS/VWF. The Claimant had undergone a CT release operation on one wrist with complete success.
The Defence had 2 limbs. Firstly, that recent medical opinion as set out in the research paper of Lozano-Calderon et al, cast doubt upon the evidential link between vibration exposure and the development of CTS in any event, finding as it did that genetic factors (such as age, sex, race, diabetes and obesity) played a much greater part in the development of CTS than occupational factors such as vibration which played a much more debateable role.
Secondly, according to the research papers the claimant had 3 factors each of which might have caused CTS being (in order of importance) diabetes, BMI >25 and vibration. It was our contention that the appropriate causation test was that set out in the case of Wilsher v Essex Area Health Authority  AC 1074, such that the Claimant had to prove on the balance of probability that vibration had caused the CTS rather than either of the other 2 conditions and that the same was impossible given the current state of medical knowledge; i.e. his case must fail.
Shortly before trial the Claimant’s expert produced a paper which established that the rate of CTS in the general population was 2%, but the rate of CTS in the diabetic population was 14%, a sevenfold increase. This was important because the evidence relied upon by the Claimant in support of causation generally, being the recommendation of the Industrial Injuries Advisory Council (IIAC) that CTS should become a prescribed industrial disease and the later review of causation evidence carried out by K T Palmer et al both referred to a doubling of risk of the development of CTS in the presence of vibration. Therefore, on any view diabetes (and/or obesity) was a more likely cause of CTS in this case than vibration.
When giving evidence the Claimant’s expert did attempt to alter his position to deal with both limbs of the Defence. Firstly, he tried to discredit the independence of the paper by Lozano Calderon on the basis of bias, on the grounds that prior to the publication of the paper on causation in relation to CTS, Lozano Calderon had published an article criticising Newspapers for their use of what he called “Stigmatising Language” in which he had called upon:
a) The medical profession to put as positive an interpretation as possible on any condition consistent with scientific knowledge and;
b) Newspapers not to sensationalise and give conditions names associated with work tasks.
The Claimant’s expert therefore concluded that Lozano Calderon was biased against the link between upper limb conditions (in this case CTS) and work related factors (in this case vibration). On that basis he preferred the Palmer report.
So far as bias was concerned we had some balancing evidence and the Claimant’s expert was forced to concede in cross examination that the report upon which he relied (that of K T Palmer) was written by a man who actually sat on the IIAC at the time when it recommended that CTS should become a prescribed industrial disease and that his research was funded by the IIAC. He was forced to concede that it was possible that the Palmer paper was also biased. In the end the Judge accepted that there were 2 conflicting views arising from reviews of essentially the same pool of evidence, both from reputable institutions.
Secondly, and after having agreed that the risk factor posed by diabetes was far greater than the risk from vibration, the Claimant’s expert attempted to suggest that diabetes was unlikely to be the cause of CTS in this case as he would have expected a much longer time to have passed between the onset of diabetes and the development of CTS (here around 18 months had passed between diagnosis of diabetes and the first complaint of symptoms of CTS). The Judge commented that the date of diagnosis would not have been the date when the diabetes commenced. Further, the medical literature provided did not support these comments and they had not been contained in the expert’s written report in any event.
Having heard the Claimant’s evidence we elected not to call evidence from our own expert since we felt that despite the Claimant’s experts best endeavours our earlier assessment that the claim could not succeed at law was still valid.
In his summing up counsel for the Claimant attempted to suggest that the correct causation test was that set out in the case of Novartis Grimsby Ltd v Cookson  EWCA Civ 1261, such that all that the Claimant had to show was that the vibration exposure had made a material contribution to the development of the condition. Novartis, as readers will remember concerned cancer which had arisen as a result of exposure to amines. The Claimant had been exposed to amines in the workplace, but amines had also occurred in his body as a
by-product of smoking. Here there was a single cause of injury (amines) and the Court had to decide whether the negligent exposure (at work) or the non negligent exposure (smoking) had caused the cancer to develop. That was medically impossible but the Court held (following the line of authority from Bonnington Castings Ltd v Wardlaw ) that the negligent exposure had made a material contribution and the Defendant was therefore liable.
In our case the Judge accepted that Wilsher was the appropriate test because there were several different possible competing causes (c.f. Novartis where there was a single causative factor) and the Claimant had to establish on the balance of probabilities that vibration was the probable cause and he could not do so, not least because his expert had said in evidence that diabetes was a more likely cause of CTS. The Claimant’s case was dismissed and he was ordered to pay the Defendant’s costs.
This case serves to highlight the distinct differences between those claims where CTS only is alleged and those where HAVS/VWF or CTS with HAVS/VWF is alleged. Where HAVS/VWF is alleged there is a legal diagnosis test (per Smith LJ; Montracon Ltd v Whalley  EWCA Civ1383 and see the article in our last e-bulletin) and there is a clear dose relationship between vibration and HAVS/VWF. Because there is no (known) dose relationship between vibration and CTS and because there is no evidence that vibration has an additive effect to other potential causative factors; then in the presence of other causative factors a Claimant will struggle to prove causation in compliance with the test in Wilsher.
We would then strongly recommend that where CTS only is alleged as a result of vibration exposure that those cases are “weeded out” for special attention. Are other potential causative factors present, such as those mentioned above? If so there is a potential for a strong defence in relation to clinical causation. A full set of the claimant’s medical records, including GP, hospital and OH records should be obtained in these cases at the earliest opportunity and reviewed to look for these factors. In these cases the early instruction of Solicitors for the Defendant can be justified since detailed and specific questions to the Claimant’s expert may head off claims prior to issue.
Paul Debney, Partner, Weightmans LLP