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Industrial Injuries compensation appeal

 

Marionsh
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My client worked in a chocolate packing factory 30 years ago at a time when it appears there was minimal attention to health and safety and well-being.  She developed carpal tunnel in both arms and had to leave.  30 years later she has had 9 operations and still cannot function well with either hand. She gets ESA
Industrial Injuries turned down the application saying that she was not working in a prescribed organisation. We have appealed and the tribunal is next week.
Do any of you have any examples of success with carpal tunnel and Industrial Injuries and productions lines? I would be grateful
thanks

     
stevenmcavoy
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has the client had a medical or has the claim been refused out right?

a prescribed injury is only one way to qualify for idb.  the other is through an “accident” if you can show the client meets the % threshold of disability.

if there is no argument over there having been an accident in terms of the idb definition then the client will get a medical as part of the appeal.

if there hasnt been a medical then your first step is to get the tribunal to accept your client meets the accident criteria.

     
Chrissum
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Perhaps they are talking about A8 or A12 as an industrial disease? For A8 (traumatic inflammation of the tendons or associated sheaths) the “prescribed occupation” would be one involving manual labour or frequent or repeated movements of the hand or wrist. So arguably your client works in such an occupation. For A12 (carpal tunnel) the occupation would need to involve the use of powered tools that vibrate or repeated palmar flexion and dorsiflexion for set periods. They would then have to establish that these occurred at the time the symptoms first develop and have led to a loss of faculty and disablement. Other than that they could show they suffered an “accident” rather than a process i.e. the injury resulted from a series of events rather than just manual labour over a number of years
I can see how the DWP may see A12 as not applying in your client’s work, but can also see how it might involve repeated flexion / dorsiflexion.
Once you have got over this hurdle the degree of disablement needs assessing. Strong medical evidence identifying clear cause helps.
Sorry no specific experience of carpal tunnel, production lines and IIDB, it appears to be all about the type and repetition of the movements and establishing that that was what their work involved.

      [ Edited: 7 Feb 2019 at 04:09 pm by Chrissum ]
Andyp5 Citizens Advice Bridport & District
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See attached HCP’s IIDB handbook for prescribed industrial diseases for A8 page 48 onwards and A12 (B) page 66 onwards

     

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Peter Turville
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Chrissum - 07 February 2019 04:06 PM

Perhaps they are talking about A8 or A12 as an industrial disease? For A8 (traumatic inflammation of the tendons or associated sheaths) the “prescribed occupation” would be one involving manual labour or frequent or repeated movements of the hand or wrist. So arguably your client works in such an occupation. For A12 (carpal tunnel) the occupation would need to involve the use of powered tools that vibrate or repeated palmar flexion and dorsiflexion for set periods. They would then have to establish that these occurred at the time the symptoms first develop and have led to a loss of faculty and disablement. Other than that they could show they suffered an “accident” rather than a process i.e. the injury resulted from a series of events rather than just manual labour over a number of years
I can see how the DWP may see A12 as not applying in your client’s work, but can also see how it might involve repeated flexion / dorsiflexion.
Once you have got over this hurdle the degree of disablement needs assessing. Strong medical evidence identifying clear cause helps.
Sorry no specific experience of carpal tunnel, production lines and IIDB, it appears to be all about the type and repetition of the movements and establishing that that was what their work involved.

The prescribed diseases and occupations are set out in CPAG handbook Appendix 8 and the prescribed degrees of disablement in Appendix 7.

You need to establish what is at issue in the appeal. As Chissum’s says was you client in a prescribed occupation (essentially a question of fact - but facts of what your client actually did may be difficult to establish after such a long period of time?) or degree of disablement (which is a medical question) or both of which prescribed occupation comes 1st.

Remember unlike unlike ESA/PIP IIDB hearings /decisions are usually a medical question and as a representative your role is limited. Usually it is the preparatory work gathering the medical evidence that supports you clients case .

It is certainly possible to argue A8 or A12 - we used (a long time ago) to regularly see cases involving A8 in the days of for example manual typewriters or industrial sewing machines at the car factory - the constant pulling and stretching of real leather in the machining process to make car seat covers!.

     
ClairemHodgson
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preface: i spent 1989 - 2015 getting people compensation for vibration white finger and carpal tunnel syndrome, so know whereof i speak (sad, innit!)

You cannot win, IMHO

the decision on whether the person was in a relevant occupation for the prescribed disease is one for a DM; it is not a question for the HCP

the dmg is here

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774220/dmgch67.pdf

you can only get IIDB for A12, CArpal Tunnel Syndrome, if you used vibrating hand held tools:

Prescribed disease A12
67501 PD A12 carpal tunnel syndrome, was added to the list of PDs on 19.4.93. There is
no entitlement to benefit for this PD before this date1
.
1 SS (II) (PD) Amdt Regs 93; II (PD) Regs, Sch 1, part 1
Prescription
67502 Before 24.3.96 this disease was prescribed for people who had been employed in
employed earner’s employment on or after 5.7.48 in an occupation involving the use
of hand-held vibrating tools. From 24.3.96 prescription was changed to the use of
hand-held powered tools whose internal parts vibrate so as to transmit that vibration
to the hand, but excluding tools solely powered by hand1
. The revised prescription
does not apply to tools that have no internal vibrating parts.
1 SS (II & D) (Misc Amdt) Regs, reg 5(5)
67503 With effect from 6.4.07 the prescription was changed again. The revised
prescription1
means that, in order to satisfy the prescription test a claimant must
have worked in an occupation involving
1. the use, at the time the symptoms first develop, of hand–held powered tools
whose internal parts vibrate so as to transmit that vibrations to the hand, but
excluding those tools which are solely powered by hand or
2. repeated palmar flexion and dorsiflexion of the wrist for at least 20 hours per
week for a period or periods amounting in aggregate to at least 12 months in
the 24 months prior to the onset of symptoms, where “repeated” means once
or more often in every 30 seconds.
Note 1: The degree of flexion and dorsiflexion is not relevant when considering the
prescription. However, it may be relevant to causation or, as part of the occupational
history, to the medical condition2
.
Note 2: The work at 1. is known as occupation (a) and the work at 2. is known as
occupation (b).
67504 Prescription conditions in force prior to 24.3.961
continue to apply in the types of
cases set out in DMG 67523 - 67524. Also, prescription conditions in force prior to
6.4.072
continue to apply in the types of cases set out in DMG 67525.

So, given your client was not using vibrating hand held tools, she does not qualify for IIDB for A12.

The very first reported case on vibration white finger went to the court of appeal in 1947 (fitzsimons v Ford Motor Co, attached) - before there were prescribed diseases at all, only accidents - and the CofA decided, for the purposes of the workmen’s compensation claim in question, that the man had got the conditoin as a result of a series of accidents (every time the tool banged his fingers as it vibrated).  But you won’t get away with that now, at all.

      [ Edited: 7 Feb 2019 at 05:52 pm by ClairemHodgson ]

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Mike Hughes
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I’ve “got away” with that many times. Depends on the client and their anecdotal evidence - describing the specific actions of their role - but it’s certainly achievable. Long battle ahead though.

Very disappointing as I always thought working in a chocolate factory would be my idea job.

     
ClairemHodgson
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Mike Hughes - 08 February 2019 09:36 AM

I’ve “got away” with that many times. Depends on the client and their anecdotal evidence - describing the specific actions of their role - but it’s certainly achievable. Long battle ahead though.

impressed you did, that is why the Indsutrial disease scheme was introduced

but, unless the client was a fitter, it can’t help - not using vibrating hand held tools…

     
Mike Hughes
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ClairemHodgson - 08 February 2019 11:50 AM
Mike Hughes - 08 February 2019 09:36 AM

I’ve “got away” with that many times. Depends on the client and their anecdotal evidence - describing the specific actions of their role - but it’s certainly achievable. Long battle ahead though.

impressed you did, that is why the Indsutrial disease scheme was introduced

but, unless the client was a fitter, it can’t help - not using vibrating hand held tools…

Had numerous VBW and Pneumoconiosisis cases from the old Salford docks (Salford Quays nowadays) and back in North Wales (where VBW cases used to be sent to recuperate because it was warmer!!!) where it became easier to argue accident in consequence of a series of specified incidents than it was to argue about workplace etc.

     
ClairemHodgson
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are you saying the criteria for Carpal Tunnel isn’t as strict as set out?

I wouldn’t take such a case; and bearing in mind i have to charge people, i would tell them not to waste their money on me!

     
Andyp5 Citizens Advice Bridport & District
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Attaching the link below (its in Rightsnet case law), purely as a source of information (as per IIDB handbook). Its mentioned under A8 Sweet and Maxwell vol 1 page 1517.

CI/3745/2006
Assessment of prescribed diseases A8 (tenosynovitis) and A12 (carpal tunnel syndrome)

http://www.osscsc.gov.uk/aspx/view.aspx?id=2233