With an increasing number of Claimants now pursuing claims against employers in a complicated area whic his generally known as “RSI”, we look at the potential for success in such claims.
What is RSI?
The term ‘Repetitive Strain Injury’ describes a wide range of different symptoms suffered by employees. The term itself, however, is misleading in that it actually represents a wide variety of differing causes. Some may be identified such as tenosynovitis, tendonitis, carpal tunnel syndrome and tennis elbow. It is also used to describe unidentified non-specific symptoms which is known as ‘Diffuse RSI’.
The ready use of the term RSI has led to confusion and disappointment for a number of Claimants displaying what would seem to be classed as RSI symptoms. Whenever an employee first sees their GP a misleading diagnosis can be made which implies that the injury has been caused by something to do with their work.
On further investigation by an expert medical Consultant, it often transpires that the condition cannot be diagnosed precisely and may be constitutional in nature, that is, it may in fact relate to a pre-existing problem which had never shown itself before. In such circumstances, it is almost impossible to bring a claim against an employer.
What redress do I have against my employer?
The basis of bring an RSI clima is similar to bringing any other claim for personal injury at work. An employee is owed a duty of case by the employer to, amongst other things, provide a safe workplace.
If that duty is then breached, it is possible that the employee has a case to bring. This, however, is not sufficient in itself.
In addition, it must be proven a) that the employer had or should have had knowledge that the work presents a risk of injury to the employee and also that b) the employer then failed to take reasonable steps to remove or reduce the risk of injury and c) to warn the employee of that risk.
Does RSI exist?
One of the first steps in dealing with a claim of this sort is to establish that there is a medical link between the symptoms and the work practice undertaken. As there is such a wide divergence of medical opinion sbout the causes of various different conditions, difficulties can arise here as well.
If it is not possible to prove on the balance of probabilities that the synptoms were caused directly by the work practice, then once again, it becomes difficult to proceed with a claim.
In 1991 the British Orthopaedic Association (BOA) attempted to categorise a number of common upper limb disorders into prescribed diseases. However, only two were placed into the category of ‘prescribed diseases’. There were : PDA4 – cramp of the hand / forearm ; and PDA8 – tenosynovitis / peritendonitis crepitans.
Since that time, only carpal tunnel syndrome has been classified as a prescribed disease but only in very specific incidences where vibrating tools are involved. This problem is compounded yet further where the condition cannot be diagnosed. The condition is then referred to as ‘Diffuse RSI’ and instances where Claimants have been successful in providing occupational causation in such cases are few and far between.
When can I claim?
More difficulties arise if Claimants do not bring a claim swiftly. Some employees fear reprisals from their employers or may simply wish to struggle on at work in spite of their symptoms, hoping that matters will resolve themselves.
This delay can be severely detrimental to a possible claim. The Limitation Act 1980 states that Court proceedings must commence within 3 years of the date an employee first suspected that s/he had suffered an injury and that his or her employer may be responsible as it had been caused by their work process.
If Court proceedings are not commenced within that 3 year period, then the claim cannot be brought, except in very specific circumstances. For this reason, therefore, it is imperative that an employee takes legal advice as swiftly as possible.
Should the employers have known of the risk?
Nowadays it is almost impossible for an employer to allege that s/he was not aware of the risks of injury involving repetitive work. There have been a number of well-reported Court cases and the Health & Safety Executive (HSE) has produced literature on the subject since 1977.
In 2002 the HSE published a revised paper entitled ‘Upper Limb Disorders in the Workplace’. This document provided up to date comprehensive advice to Employers concerning potential risks.
However, it is still necessary to prove that the injuries suffered were foreseeable. Clearly if other employees performing the same task have reported similar injuries or even brought claims then it is possible to prove that an employer is on notice of the problem. In failing to take action once on notice, the employer may be liable.
RSI can occur in many different types of employment, from working on a factory production line to typing on a keyboard. Long periods without job rotation, insufficient breaks and poor posture are typical factors to look out for.
Also, jobs with bonus or pay schemes related to output have a very strong implication for RSI, where the employer’s failure to warn employees about RSI can impact their output and consequently their potential bonus.
RSI – The Future
RSI claims are now much more common in the litigation field and although there are difficulties in pursuing a claim, the duties upon the employer are clear. Claimants certainly now have more encouragement and with Trade Union support are more willing to pursue cases further.
- RSI Claims are rarely simple and straightforward
- Claims can, and do, succeed against employers
- Good, strong medical opinion is paramount
- Just taking the Strain, may leave you with more Pain!