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ESA Descriptor 4c - meaningful mark with either hand, what is a meaningful mark?
Hi,
I attended a Tribunal yesterday with a client and argued he satisfied descriptor 4c as the client is right handed but now unable to use his right hand/arm/shoulder. The judge advised that a meaningful mark can be something as simple as a full stop which can be done with the left hand.
Does anyone have an explanation of what a meaningful mark is? I’ve had a look for some caselae but have been unsuccessful thus far.
Thanks,
Paul
A full stop is not a “meaningful” mark, by any stretch of the imagination, unless it is placed in context (it may be “meaningful” at the end of a sentence, in that it has some purpose). I am sure that any case law that could be obtained by appeal would, however, be that a very simple mark with your client’s left hand would probably suffice, such as a cross, or attempted signature
I did see something about this a very long time ago. The conclusion was something along the lines of “the ability to use a pen or pencil to any degree on a piece of paper is sufficient”. I for the life of me can’t think what function this addresses in a modern workplace. The ability to sign a contract perhaps?
I find myself reminded of the old saying that goes along the lines of if you put enough monkeys in front of keyboards for long enough one of them will come up with the works of Shakespeare….
To my mind, a ‘meaningful mark’ surely has to be something that does, indeed, have meaning for any lay person seeing it. I can’t see that a full stop or even a cross would fit the bill unless the circumstances are very specific.
and that was a legally qualified chair?
dear me.
Clearly there have always been people who for one reason or another have been unable to e.g. sign a document, whether through illiteracy/blindness/physical inability.
Historically, someone would then witness that person putting his “mark” -usually a cross - on said document, attesting that it was the person’s mark (in the same way that signatures are witnessed on deeds and the like).
These days - say for example I have a blind client who can’t read his statement/particulars of claim/whatever - that document has to be read to him by a legally qualified person, the client then “makes his mark” (whether it be signature or cross) and the fact that document has been read over and the client agreed to it etc is sworn to by the witness.
Frankly, the chances of a full stop being a meaningful mark in any context are non existent.
It would be different if, in your case, your client had learnt to use his left hand for something approximating a signature that he then adopted as a signature.
After that, it’s surely a question of what the purpose of the criteria is and the extent to which your client can meet that in the context of his disabilities.
off to UT with you, I would have thought….
off to UT with you, I would have thought….
And fingers crossed that the judge is fool enough to repeat what was said in the hearing about the full stop in the record of proceedings and statement of reasons. ;)
In the WCA handbook (not the law, of course, but a clear indication as to how HCP and Decision Maker will view the descriptor) it says -
This activity relates to hand and wrist function. It is intended to reflect the level of ability to manipulate objects that a person would need in order to carry out work-related tasks. Ability to use a pen or pencil is intended to reflect the ability to use a pen or pencil in order to make a purposeful mark such as a cross or a tick. It does not reflect a person’s level of literacy.
To what extent there is a substantial practical difference between “purposeful” and “meaningful” can be left to discussion, but I have always thought this a very low scoring descriptor for such a severe level of restriction.
I may be wrong here (gimme a break, its monday morning) but i thought a general principle of descriptor activity was based around the claimant being able to do something safely, reliably and repeatedly?
If you cant write a sentence (under reliably/repeatedly argument) then surely the descriptor should be awarded, and if the legal definition is “A (as in one) meaningful mark” then can it not be argued that the descriptor hasnt been designed properly?
Just a thought…..