Sat 13-Feb-10 07:16 PM by neilcoll

Have a client who fell and dislocated shoulder as well as having a fracture in shoulder area.

At WCA medical she still had arm/shoulder in restraints. Got only 6 points for manual dexterity (tap turn, one hand).

At appeal I am very confident of a futher 6 for lifting "bulky" item.

Difficulty thereafter.

However she was still attending specialist and undergoing intensive physiotherapy. Medical in July 2009, and only discharged by specialist and physio in Jan 2010. Planning on using Regulation 29 in that there would be a danger to her physical wellbeing if found fit for work.

Anyone have case law in such a case.....ie RECOVERY TIME for injusry or illness.

PS Will argue for 9 points on manual dexterity in that she could not cope with buttons.

What instructions had she been given about using the affected arm? You should not be treated as capable of performing and activity you have been sternly told by a doctor you must not try to do (eg, in my case, my ophthalmologist says that since my cataract operation I must never under any circumstances go bungee-jumping...)

Mon 15-Feb-10 09:53 PM by neilcoll

Not sure what instructions she was given.
Do however have a copy of letter from her orthopedic consultant to GP, dated 3 MONTHS after medical, stating that with specialist Shoulder Physio she is making "slow but steady progress". Still "experiencing siffness" and only" aprox 7 degree rotation". Having "extreme difficuly" with tasks like brushing hair."

This lady should surely have satisfied regulation 29 even if not given sufficient points???

I've recently seen quite a similar case (today, in fact). One problem is that it is very difficult to score 15 points on the WCA (just as it was on the PCA) for a problem affecting one arm only. In our case the letter from the consultant as well as describing the range of movements and the effects of physiotherapy (not unlike yours) said he was perfectly happy for her to use the arm as much as she could.
I have heard doctors say over and over again that just because a particular activity hurts doesn't necessarily mean it is doing you any harm, particularly when you are rehabilitating a damaged limb. If she had been told to avoid certain activities because it would impede healing or set her back, that would be something else.
Most people could manage to brush their hair with one hand only. What risk is she to herself or other people if found fit for work?
(I do enjoy being a devil's advocate....and I don't think our client stands a chance of overturning the Tribunal's decision confirming 12 points either)

Thu 18-Feb-10 10:44 AM by neilcoll

Appeal won

Manual dexterity increased for 6 to 9 on "small buttons" test.

6 awarded for lifting and carrying "bulky" item.

On the second point. Have had a few tribunals that have asked folk can they lift and carry an empty shoebox when assessing descriptor
5(c).!!!!!

The descriptor refers to a light but BULKY object. Not a shoebox.

I referred to commisioner Brown in 34/98 (DLA)......
"It is a fundamental rule of statutory interpretation that unless the context indicates otherwise a word or phrase is to be given its ordinary every day meaning."

Gave the Tribunal a printed sheet with the dictionary entry for BULKY...

1. Of relatively large and cumbersome bulk or size.
2. Large and unwieldly.

Synonyms
1. massive, ponderous, unwieldy, clumsy.

Only Coco the Clowns shoebox could be considered.

My view is that the descriptor has in mind a box that is roughly a standard 2 foot cubed box such as that used to convey boxes of, say cornflakes, from factory to supermarket. I would bet money that future case law says something similar.

I will raise you. I would say the type of big brown box you would find a TV in.

I believe it was meant to be something so big that it needed two hands, not because of the weight but the volume, even if one hand is only used to steady it..