UK Social Security and Child Support Commissioners' Decisions

[1995] UKSSCSC CI_696_1994 (27 September 1995)

 


R(I) 2/96


Mr. M. J. Goodman CI/696/1994
27.9.95

Prescribed disease A12 (carpal tunnel syndrome) - rotary scrubbing machine - whether "hand-held vibrating tool"

The claimant was employed as a cleaner by a bus company between February 1970 and April 1993. To clean the floor of the garage and inspection pit she used a rotating scrubbing/buffing machine. It was a heavy machine which needed two people to carry it but it was operated by one person pushing it around the floor. The machine vibrated considerably and had to be tightly gripped in order to manoeuvre it about. An adjudication officer decided that prescribed disease A12 (carpal tunnel syndrome) was not prescribed in relation to the claimant because she had not been employed in an occupation involving the use of hand-held vibrating tools. A social security appeal tribunal allowed the claimant's appeal. The adjudication officer appealed to a social security Commissioner.

Held that:

on the facts of this case the rotating scrubbing machine was a "hand-held vibrating tool" because it was mobile and required considerable and constant grip to operate it. Thus the claimant had been employed in a prescribed occupation for prescribed disease A12.

[Note: The description of the prescribed occupation for disease A12 was changed on 24 March 1996 by SI 1996 No. 425, to "The use of hand-held powered tools whose internal parts vibrate so as to transmit that vibration to the hand, but excluding those which are solely powered by hand".]


DECISION OF THE SOCIAL SECURITY COMMISSIONER


1. I allow (to the limited extent indicated below) the adjudication officer's appeal against the decision of the SSAT dated 29 June 1994 as that decision is erroneous in law and I set it aside. My decision is that prescribed disease A12, known as carpal tunnel syndrome, is prescribed in relation to the claimant because the claimant has been employed on or after 5 July 1948 in employed earner's employment in an occupation involving the use of hand-held vibrating tools. I direct the adjudication officer to refer to the appropriate adjudicating medical authority the resulting diagnosis and disablement questions: Social Security Administration Act 1992, section 23.
2. This is an appeal by the adjudication officer against the unanimous decision of a SSAT dated 29 June 1994, which allowed the claimant's appeal from a decision of the adjudication officer to the effect that prescribed disease A12 (carpal tunnel syndrome) was not prescribed in relation to the claimant because the claimant had not been employed in an occupation involving the use of hand-held vibrating tools. Although I have allowed the adjudication officer's appeal on the ground that the tribunal's findings of fact and reasons for decision are not sufficient to satisfy regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986, I nevertheless hold, making the appropriate findings of fact, that the claimant was in fact employed in a prescribed occupation for disease A12 and I give details of that below.
3. The appeal was the subject of an oral hearing before me on 24 August 1995 at which the claimant was present and gave evidence to me. She was represented by Mr. J. Owen of Derbyshire County Council. The adjudication officer was represented by Ms. J. Smith of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to all those persons for their assistance to me at the hearing. I also heard at the hearing another similar case (though a claimant's appeal) on file CI/514/1995 and I have given a separate decision in that case.
4. Prescribed disease A12 was added to the list in Part 1 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, SI 1985 No. 967, by SI 1993 No. 862, as from 19 April 1993. The relevant entry reads simply:

"Prescribed disease or injury Occupation

Any occupation involving: …

A12. Carpal tunnel syndrome. The use of hand-held vibrating

tools".

5. The claimant in the present case had for many years worked as a cleaner for an omnibus company using what is known as a scrubbing or buffing machine (details below). She last did that work in September 1992 but she states that as from early 1990 she was suffering problems with both hands in that she had loss of dexterity, loss of grip and was unable to perform manual tasks. On 6 May 1993 she made a claim (on form BI1OOB) for carpal tunnel syndrome. Her employers in answer to the question "Did [her] job involve the use of hand-held vibrating tools?" answered "No". It appears that they afterwards said in response to a Departmental enquiry that the claimant used a "Vax" machine.
6. There appear to have been some problems over the evidence in this matter but I accept the claimant's evidence to me at the hearing on 24 August 1995 that she in fact did use a rotary scrubbing machine and used it to clean up the concrete floor of a garage and also the inspection pit. She stated that this was a heavy machine which could be carried about only by two people, that it had to be held by both hands in a kind of handlebar in which was a clutch which needed constant pulling up (rather like that of an electric lawn mower) to operate the machine. There was also technical evidence before me in a report from K. Limited, Occupation Hygiene and Ergonomics Consultants, to the effect that there is considerable vibration with these machines and that, if they are not carefully held and manoeuvred about, they have a tendency to wander of their own accord. Pressure was also needed on them e.g. to remove stubborn patches of oil on the garage floor. There is no doubt that these machines vibrate considerably, that they have to be tightly held, gripped, and steered about and that the kind of machine that the claimant was using was heavy in nature, though it could be lifted about by two people and to that extent was portable.

7. It was conceded, in my view properly, by Ms. Smith on behalf of the adjudication officer, at the hearing before me, that the machine was undoubtedly "vibrating" and that it was a "tool". I accept those concessions in the present case though the definition of "tool" sometimes gives rise to difficulties (see R(I) 8/76; R(I) 13/80; and R(I) 6/83). Consequently the only issue before me was whether or not this "tool" was "hand-held", within the meaning of the regulation. The SSAT made a finding of fact that the claimant was employed by the bus company between February 1970 and April 1993 as a cleaner and that her duties included the regular use of hand-held vibrating tools, namely a rotary cleaning machine. That finding of fact is all right as far as it goes, though it in point of fact merely repeats the language of the statutory prescription in the regulation. The tribunal's reasons for the decision were simply that they preferred the evidence of the claimant and a former work colleague who gave evidence to the tribunal to that of the employer but did not otherwise give reasons for their conclusion that the tool was hand-held. For that reason, I must set their decision aside as erroneous in law.

7. To be fair to the tribunal, it should be pointed out that there was not then available a recent starred Commissioner's decision on file CI/160/1994 [now reported as R(I) 3/95] in which the learned Commissioner went exhaustively into the question of what is meant by "hand-held" tool and came to the conclusion in that case that an industrial sewing machine that communicated considerable vibration to the operative's hands was not a hand-held tool. The learned Commissioner cited extensively from the report of the Industrial Injuries Advisory Council which led to the prescription of this disease, (Cmnd. 1936, May 1992), and concluded that the narrower rather than the wider meaning of "hand-held" was applicable. She also indicated that it was an essential of a tool being "hand-held" that it should be "portable" but in a more recent decision (on Commissioner's file CI/156/1994) at paragraph 11, another Commissioner, also dealing with an industrial sewing machine, stated "It may be that the criterion of portability will need further consideration in other cases concerning different kinds of tools".
8. I have come to the conclusion that this is one such case. Here we have a buffing etc. machine or tool which is movable and has to be moved to do its job. Admittedly it is heavy but then so would be for many people a pneumatic road drill, which undoubtedly would come within the description of hand-held tool. Moreover, the buffing machine requires considerable gripping, firm holding and steering. I note that in their Report, the Industrial Injuries Advisory Council stated (paragraph 26):

"Four studies have indicated a doubling of the risk of carpal tunnel syndrome among people working with hand-held vibrating tools, although it is unclear how far the disorder is a consequence of the vibration, and how far of the posture and grip required to use such tools - many of which are heavy or cumbersome".

The Council therefore clearly did not regard the heaviness of a tool or its cumbersome nature as preventing it being "hand-held".

9. I also note the reference to "grip required to use such tools". Undoubtedly in the case of the present type of machine there is a considerable and constant grip need to hold the clutch in, steer the heavy machine and place pressure upon it when necessary. In my judgement, all of those factors clearly bring this machine within the prescription and in substance the tribunal's decision was therefore correct.
10. I should emphasise that I regard my decision therefore as so to speak a "supplement", to the starred decision of the Commissioner on file CI/160/1994 [R(I) 3/95] and I am not in any way dissenting from the emphasis that the learned Commissioner placed upon the essentially narrow nature of the prescription of "handheld vibrating tools". I note also that the Industrial Injuries Advisory Council in their Report did make a further recommendation for a wider prescription for carpal tunnel syndrome based on an individual basis by clinical tests. The fact that they did so is an indication that they intended only a comparatively narrow prescription for hand-held vibrating tools. I would emphasise that my decision is given on the facts of this particular case and the nature of this particular machine, as to which I have had considerable evidence and on which I have therefore felt able to arrive at a decision myself without the need to remit the matter back to another SSAT. However, it does follow, there being a substantial factual element in my decision, that it is not necessarily a precedent for other types of machine or tool.

Date: 27 September 1995 (signed) Mr. M. J. Goodman Commissioner