UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CI_474_1995 (01 April 1996)


 


CI/474/95


Social Security and Child Support Commissioners

SOCIAL SECURITY ACTS 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:
Appeal Tribunal:

[ORAL HEARING]

1. My decision is that the majority decision of the social security appeal tribunal given on 8 September 1994, holding that the claimant had not been employed on or after 5 April 1948 in employed earner's employment in any occupation prescribed in relation to prescribed industrial disease A12 (carpal tunnel syndrome), was erroneous in point of law. I set it aside and exercise the power in s.23(7)(a) Social Security Administration Act 1992 to give instead the decision I consider the tribunal should have given. This is that the claimant was so employed during the time she worked assembling vehicle wiring harnesses when her job involved the use of a hand held tie gun to tighten up and cut the plastic wiring ties that held the harnesses together.

2. I held an oral hearing at which the claimant was present and represented by Mr J Beddow of the Amalgamated Engineering and Electrical Union, and the adjudication officer appeared by Mr D Jones of Counsel, instructed by the Solicitor to the Department of Social Security. I am grateful to all three of them for their help to me at the hearing.

3. The claimant is a lady now aged 46 who made a claim for industrial disablement benefit on 5 August 1993. She said she was suffering from prescribed disease A12, carpal tunnel sydrome, caused by repetitive work with hand held vibrating tools at a vehicle equipment manufacturers which she had last done in March 1991. Since about September 1990 she had been suffering from pain, swelling, pins and needles and numbness in her right hand which made her unable to use it.

4. The only issue on the appeal to the social security tribunal was whether the tie gun the claimant had used as an assembly worker putting wiring harnesses together did or did not count as a "hand held vibrating tool" for the purposes of para A12 of Part 1, Sch 1 Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No 967. If it did, then as her occupation had involved using it and she had done so as an employee, A12 carpal tunnel sydrome was a prescribed industrial disease under s.108 Social Security Contributions and Benefits Act 1992 in relation to her from 19 April 1993 (1993 SI No 862). The consequence of this would be to entitle her to disablement benefit if she was found to be suffering from the disease due to the nature of her work and to have a degree of disablement as a result. These further questions would have to be resolved by medical adjudication once she was shown to have been in a prescribed occupation. But if the tie gun was not a "hand held vibrating tool" she could not qualify for the benefit, even though suffering from the disease and disabled by it; so that on the basis of the tribunal's decision there was no point in any medical assessment, and none has in fact yet taken place.

5. The carpal tunnel is the space through the middle of the wrist through which pass a number of tendons and nerve fibres connected to the hand and fingers. The cross-section of the tunnel is greatest when the wrist is straight, but distorts and reduces in area when the wrist is bent, and this causes increased pressure on the tendon and nerve structures in the tunnel. Too many forceful and repetitive wrist movements increase the pressure further, and can actually cause damage to the fibres of these structures. The damage can cause pain, loss of sensation and inability to grip or use the hand and fingers normally. This group of symptoms is described medically as "carpal tunnel syndrome", and constitutes prescribed disease A12 for people whose work has involved the use of hand-held vibrating tools. (The above short summary of what I understand to be common ground is based on a helpful article on hand-arm vibration disorders by Prof. W. Taylor in Occupational Health Review July 1993 p.16, which Mr Beddow supplied to me at the hearing.) As noted by the Commissioner in case CI/160/94 para 14, the relevant report of the Industrial Injuries Advisory Council had concluded that work with such tools carries a particular risk of the disease because of the combination of the grip required, and the forceful and repetitive wrist movements such work involves.

6. The evidence before the tribunal apart from that of the claimant herself consisted of a description of the tie gun and a sketch drawing (copy annexed) to show how it operated, both prepared by the AEEU; two letters from former work colleagues of the claimant both referring to a vibrating sensation or vibrating motion when the tool was in use; and a short form completed by a personnel officer at the employers in which "No" was ticked in response to the question whether the claimant's job, described as "assembling leads and components" had involved the use of hand-held vibrating tools. The majority of the tribunal concluded that the gun did not fall within the expression "hand-held vibrating tool" because the tool by itself did not vibrate; it was operated by the person using it squeezing a handle or a trigger but this did not amount to the tool itself causing a vibration, and the fact that as the claimant's work colleagues had said there was a vibrating sensation when the tool was used did not make it a vibrating tool. The minority member disagreed, on the ground that the vibration to which the use of the tool by the operator gave rise was enough to bring it within the wording of the regulation.

7. Mr Jones submitted that I was not concerned to decide whether the majority or the minority were right in relation to this particular tool, since this was a question of fact to be determined on the evidence before the tribunal, and the majority could not be said to have acted unreasonably. I think however that this is an oversimplification. The real difference between the members of the tribunal was on whether a "hand-held vibrating tool" means only the kind of tool such as an angle grinder which is capable of vibrating away by itself separately from anything done to it by the operator, or also extends to tools which by themselves are inert but produce a vibrating sensation when in use, even if the energy that generates the vibration is supplied by the operator rather than from within the tool itself. This in my view is a question of the true meaning of the regulation and therefore a question of law.

8. As explained in the Commissioners' decisions in case CI/160/94 (referred to above) and CI/156/94, the class of tools whose use brings an occupation within the prescribed zone for disease A12 is a restricted one and it is not every hand held tool that does so. I do not think the point can be summarised better than it is in CI/156/94 para 12: to count as a "hand-held vibrating tool" in this context the tool must contain within it a source of vibration. It is not enough that a tool merely transmits vibration from something else, though admittedly it is not a requirement that the tool must be powered.

9. Applying that test it seems to me that a manual tool such as this one, containing a simple ratchet mechanism which gives off an appreciable vibrating sensation when operated, must fall within the expression "hand-held vibrating tool" in the regulation even though what causes the vibration to happen is the operator's own act in squeezing a trigger to work the mechanism, and even though the vibration is not continuous. As noted in case CI/156/94, there is no condition that the tool has to be powered and for para A12 there is no elaborate list such as in para A11 in the same schedule. Nor is there any requirement that the tool should give off any set level of vibration, or that this should be continuous.

10. It is not necessary to decide in the present case whether the apparent view of the Commissioner in case CI/227/94 that the description can include any hand held tools whose use involves shock or vibration being transmitted to the operator's hand or arm (such as a hammer and chisel, punch or drift) is correct. It is to be noted that this would involve an extension of "vibrating" to include a completely inert piece of metal which, like most materials, responds to being struck, and bring in a class of tools of a rather different order from the hammer drills, grinders, sanders and so on which are obviously the primary target of the regulation because they both vibrate and need repeated or continuous pressure from the hand and wrist to hold them in position against the work during use. There are bound to be difficult borderline cases with any test such as this, but that I think is unavoidable given that it was intended to limit the prescription to work with certain types of tool only, rather than all work involving hand and wrist movements that could cause this particular group of symptoms.

11. In the present case, it is common ground that the operation of the tie gun does produce a small but appreciable amount of vibration in normal use. This occurs when the serrated end of a cable tie is fed into the gun (at A on the diagram) and tightened up on the ratchet mechanism at B by the operator squeezing the trigger D. A more forceful pull on the trigger is then needed to make the mechanism cut off the end of the tie with a sharp snap. I was told that this operation had to be performed as many as two or three thousand times in the course of a shift, to make up some 300 harnesses each requiring up to 10 or 15 cable ties. Whatever the exact figures there can be no doubt that a great many repetitive and forceful movements of the hand and wrist were involved; and things were made worse for the claimant by having to work with an earlier and heavier version of the gun than the current one shown in the drawing, though the way it operated was the same.

12. For the reasons given above it seems to me that a hand-held tie-gun operating in the way described does fall within the expression "hand-held vibrating tool" in para A12 of the schedule, and that the majority of the tribunal adopted too narrow a view of the requirements when they held that it was excluded because the "source of the vibration" was the force applied by the operator rather than the mechanism of the tool. In my judgment the requirements are satisfied when the way the tool operates gives rise to an appreciable vibration in use, so long as this is due to the operation of the tool itself rather than merely the passive transmission of impacts or vibrations from something else.

13. The appeal is therefore allowed and I substitute the decision set out in para 1 above.

14. The case must now be referred for medical adjudication in the usual way to determine whether and how far the claimant is disabled by reason of carpal tunnel sydrome due to her former employment. For this purpose there is no further condition that the claimant's symptoms should have been caused by vibration alone rather than other aspects of the operation of the tie gun, such as the more forceful movement required at the end to make the mechanism bite through the plastic and cut off the surplus, which I can readily imagine must have contributed to the trouble.

P L Howell
Commissioner

1 April 1996