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It is often tempting to assume workplace injuries are limited to more dangerous forms of employment such as working on construction sites, at height and so forth.  The reality is a lot of injuries result from more “everyday” forms of employment such as office work and can develop into injury claims.

Perhaps owing to the fact these types of work are not often considered dangerous, it is frequently the case not enough thought and consideration goes into the risks of such work.

A good example of this are desk-based injury claims, such as repetitive strain injuries from typing or using a computer all day.  Although using a computer or keyboard does not at first seem dangerous, the fact such work is often very repetitive, and performed at a rapid tempo, if the setup is not ergonomically ideal then over a period of time injuries can develop.

It is crucial employers undertake regular risk assessments of the employee’s workstation to find out whether everything it set out in a safe and comfortable way.  Remember: what might seem a minor discomfort can, if not dealt with, turn into significant injuries over the course of months and years.

The Health and Safety (Display Screen Equipment) Regulations 1992 require employers to undertake a risk assessment on all employees doing desk-based work.  If an employee highlights an issue, or if there are reasonable grounds for believing something could become a risk, expert input should be sought from an ergonomist.  Failure to do regular risk assessments, or to respond promptly to employee concerns, could leave an employer in a difficult position if the employee later suffers injury.

These types of injuries often take months or even years to develop.  At first the employee may not link the symptoms to work but any symptoms that could be related to work should be fully investigated before further harm is done.

The law in this area is mixed as it is not always clear as to whether symptoms can be linked to the work or not.   The below examples of cases heard in the courts illustrate the common debate as to whether symptoms are psychologically based or definitely caused by the work.

The key cases are:

Pickford v ICI [1998] 1 WLR 1187

Alexander v Midland Bank PLC [1999] IRLR 723

Mounteney v Bernard Matthews [1994] Med LR 293

Mughal v Reuters Ltd [1993] IRLR 571

Gallagher v Bond Pearce (A Firm) [2001] 6 QR 15

It is abundantly clear from those decisions that each case is fact sensitive i.e. decided on its own merits relative to the specific facts of the case.  Those facts include whether the law has been broken, what the condition suffered actually is and whether there is another potential cause for the Claimant’s condition.  Those competing causes were psychogenic or organic (meaning psychological/psychiatric or physical).  It is notable that those cases were either or, and not cases of a combination of the two.

In Pickford, the House of Lords restored the first instance decision wherein judgment was given for the Defendant.  The Claimant had failed to establish that cramp of the hands was an organic condition caused by typing as opposed to associated with typing.  In that case, the cause of the cramp was in issue and the court had to decide whether the cause was psychogenic or organic.  There were psychiatrists on both sides and the result was that the Claimant could not prove that the condition was a physical one.  This makes perfect sense.  If something is psychogenic in nature, it cannot be caused by typing.

In Alexander, the issue was very similar; physical or psychogenically caused disorder.  There was no reliable evidence of psychogenic cause hence the Claimants succeeded.

In Mughal, the court concluded that the Claimant’s complaints of injury were rooted in his psychological problems.  According to the findings of the court, the only medical witness for the plaintiff had been hesitant and unsure of himself with every answer he gave.  He appeared to have treated the plaintiff as a guinea pig not really knowing what he was suffering from and not knowing how to deal with it.  At the end of the witness’s evidence the judge considered he was none the wiser as to what the repetitive strain injury was meant to be.

In Mounteney, 4 claims succeeded because there was a pathological condition of tenosynivits.  The remaining 4 were found to have aches and pains beyond the norm for work, but that they had not established an actual injury.  This was as a result of the judge finding it unproven that a diffuse condition without pathology existed.  In other words, had the judge concluded on the medical evidence that there was a diffuse condition albeit without pathology, those claims would have succeeded.

In Gallagher, the Claimant’s expert considered that she had suffered a physical injury.  Initially, he had concluded that there was an injury amounting to tenosynivitis.  He later altered his view.  His opinion was that there was a physical cause of the arm and wrist symptoms of a typist, related to a WRULD, but that he could not explain the pathology.  It was essentially organic, with diffuse arm pain, but with no apparent pathology.  His approach was to exclude other possible causes, take a work history, ask himself whether the work was capable of causing the condition and then reach a diagnosis.  The Defendant’s expert’s position was that he accepted that the symptoms were real, that the Claimant was not malingering and he did not suggest that it was caused by a psychiatric condition.  Therefore, he did not know what caused the symptoms.

The judge found there to have been a breach of duty.  The evidence was that the Claimant worked as a secretary to a partner in a demanding company commercial team.  Her hours were 9am to 12.45pm and from 2pm to 5.15pm.  She often worked through lunch and after hours.  She was jealously guarded and favoured for work because she was a fast typist even with a heavy workload.  Despite commencing work in 1986, there was no audit until 1992.  It took place in 10 minutes.  It identified that she required a document holder, footrest and new chair.  The engineer and the ergonomist concluded the audit was manifestly inadequate.  For a start, as required by regulation 6 Health & Safety (Display Screen Equipment) Regulations 1992 (DSE), the Claimant had no training so as to be adequately informed to participate in the audit meaningfully.

The judge went further.  The Defendant delayed by over a year in implementing the limited recommendations.  From 1994, she worked overtime hours at a station which had not been audited.  It was an old wooden desk, with no footrest and a chair that was too high.  They did not factor in breaks or the like.  Regulation 4 required the Defendant to plan the activities of users at work in the undertaking that their daily work on display screen equipment is periodically interrupted by such breaks or changes of activity as reduce their workload at that equipment.  Even after the audit in 1992, the Claimant’s daily working routine continued as before.  Work was often urgent.  The Defendant was found to not have applied its mind properly to the need for rest breaks and regulation 4 was breached.

Yet further, the Defendant failed to provide the Claimant with information as required by regulation 7.  It had purported to do so, but could not establish that the Claimant was given it.  By the time the Defendant demonstrably provided it, the Claimant was already suffering from symptoms.  The Claimant requested wrist supports but the Defendant did not do so, instead instructing her to see the GP.  In the meantime, she continued to work.  In fact, she kept a diary of her work.  When eventually there was an intervention by the Defendant, she was still typing for over 5 hours per day in similar conditions.  When she was eventually moved to another department her condition was so far advanced that it would not reverse.

There were arguments about the delay in onset thereby suggesting that any condition was distanced from work.  These were rejected, the judge accepting that it can be prolonged (including referring to guidance notes to the DSE).

He accepted that in the absence of another cause, it was a genuine physical injury (albeit there were no physical signs of it) caused by a breach of duty and awarded damages.

Summary

There can often be a heated debate in desktop injury claims as to what the true cause of the symptoms is.  In order to succeed a claimant will need to prove to the Court, through expert medical evidence, their symptoms are a result of their employer breaking the law, rather than for another reason, such as psychological or stress-related.

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