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Compensation

If you are suffering RSI caused by your work there are two main avenues for seeking compensation. The first is to sue your employer under common law and the second is to seek compensation for industrial injury under the Department of Social Security scheme. Neither avenue is simple and there is no guarantee of success.

Suing your employer

As well as their duties under criminal law, employers have duties under common law. Common, or civil, law is the law declared by judges and has evolved based on custom and precedent. Under common law employers have a duty to take reasonable care to safeguard employees from foreseeable risk. This has been interpreted by the courts as a duty to provide a safe system of work, which covers competent staff, adequate material, a proper system of work and effective supervision. Most cases brought by employees against their employer under common law are for negligence.

If you wish to sue your employer the onus is on you to prove that your employer was negligent. You will need to show that:

• you have an injury
• the injury was caused by your work
• there was a known risk of injury
• the employer should have known of the risk
• the employer could reasonably have done something to prevent the risk
• the employer failed to do anything to prevent the risk

The sort of evidence you will need to establish your case includes expert medical testimony, reports from your GP, a description of your symptoms, details of your work, the system of work, any bonus or performance schemes, the work rate, whether adequate breaks were provided, accident book entries by you and any other RSI sufferers, sickness records, records of problems being raised with management, letters from the union etc, evidence of management’s failure to remedy a problem that had been drawn to their attention, evidence that inadequate information, instruction and training about the risks of RSI was given, etc. You will also need to show that you took reasonable care of yourself and followed any advice that was given to you.

An action for damages against your employer must be initiated within three years of the injury taking place, a limit which the courts are strict in enforcing. To have any chance of success it needs to have an authoritative medical opinion that the injury was work-related and it also needs to be handled by a lawyer with experience of personal injury claims. Unfortunately the London Hazards Centre has seen many cases of individuals who have consulted local solicitors and

spent large sums of money they can ill afford only to find they did not have a strong enough case to proceed. Legal aid is becoming increasingly less of an option.

Damages

If you bring a successful action against your employer a court will award damages which are supposed to compensate you for all you have lost and suffered. Damages fall into two main classifications as follows.

General damages. These are intended to compensate for pain and suffering, disablement, loss of the pleasures and amenities of life and future loss. Each case is viewed on its own facts and although the judge takes account of previous court awards the awards vary enormously from a few hundred pounds to several thousands. They are never enough to compensate and are often insulting.

Special damages. Special damages are awarded in respect of the actual financial loss and actual expenses incurred by the employee, as accepted by the judge. The awards may be paid in relation to an earnings period of a few weeks or of several years. Again awards vary widely and each depends on the facts of the individual case.

Because legal proceedings are expensive most claims are settled out of court between the parties before the case comes to trial.

Damages in personal injury cases tend to be very low and in no way compare with the huge amounts paid out, for example, to the rich and famous in libel cases. And however large the amount, money is never sufficient to compensate for the pain and suffering, the damage to family and social life and the wrecking of career prospects caused by RSI.

The process of suing your employer is lengthy and stressful and may not be something that you wish to contemplate at a time when you may be feeling at your lowest ebb. However, since this avenue of redress is open to workers it may still be worthwhile pursuing it as the pressure from insurers may give extra impetus to employers to start taking prevention seriously, and you do have three years from the time you were first aware that your condition was work related in which to bring the claim. The insurers’ voice is strong; according to the TUC over £3 million a year is paid out by insurers to RSI sufferers, mainly in out of court settlements.

Case law

There have been a number of legal cases in the last few years but the situation is still not clear cut. As already mentioned, most cases are settled out of court and there have been some well publicised large awards, for example, to PTC members Kathleen Tovey and Kathleen Harris, both typists at the Inland Revenue, who were awarded £82,000 and £79,000 respectively, or to Kath Watson, giro processing machine operator and CPSA member at the Benefits Agency, who was awarded £38,000 on the eve of the court hearing. UNISON won an out of court settlement of £60,000 for a council chainsaw worker. USDAW achieved two settlements of over £30,000 for check-out operators in the north-east of England and MSF won £72,000 for an industrial radiographer in Scotland.

According to the TUC, around 2,000-2,500 claims for RSI are pursued each year but only a handful proceed as far as a court hearing. The cases which are most likely to succeed are those in which there is a clearly diagnosed localised condition such as tenosynovitis or epicondylitis. Cases of diffuse RSI remain difficult to prove. The pronouncement by Judge Prosser in the Mughal v Reuters case that, "RSI does not exist," was unhelpful in this respect. Although the Prosser judgement was generally accepted by experts to be a maverick one, out of step with most current opinion, the fact remains that there have since been only two successful cases relating to diffuse RSI and they were won by industrial workers (Franklyn v Sun Valley Poultry and Montenay and others v Bernard Matthews). A further keyboard case of diffuse RSI (Moran v South Wales Argus) was, like Mughal v Reuters, lost. However, in the case of Pickford v ICI a secretary won her case for writer’s cramp caused by keyboard work at the Court of Appeal.

At a briefing on RSI given to the London Hazards Centre in February 1996, Tom Jones of Thompsons Solicitors, one of the leading firms used by trade unions, stated that in his view diffuse RSI cases were likely to remain difficult. Effort had to be put into targeting doctors and consultants in areas where there were high RSI-risk workplaces to ensure they were fully briefed on RSI and were able and willing to recognise the symptoms.

He further warned that compensation awards were remaining pathetically low. The £1,000 limit below which no solicitors' costs would be awarded by a court meant that solicitors were becoming hesitant about taking on cases. The £1,000 limit, combined with the DSS recovery limit for benefits of £2,500, meant that many cases were either not being litigated or were limited in value. The cost of taking a claim often outweighed the likely compensation limit.

The London Hazards Centre has been alerted by RSI sufferers to the fact that solicitors are increasingly reluctant to take on their cases. Our advice to sufferers is to change their solicitor if this happens and they still wish to pursue their claim. One way to do this is to contact the Law Society's Personal Injury Panel on 0171 242 1222

No fault compensation schemes

One solution to the problem of compensation would be for the government to introduce a national no fault compensation scheme such as exist in other countries, eg the Netherlands. In the absence of a national scheme, trade unions may be able to negotiate a local no fault compensation scheme with their employer. These schemes allow compensation to be paid quickly and without the stress, legal costs and uncertainty of litigation through the courts. The disadvantage of the schemes are that there is less pressure on employers to put prevention first and the amounts paid out tend to be lower.

At present there are few such schemes in the UK which cover RSI. An LRD survey in 1996 reported one scheme in existence at Aga Raeburn. The Inland Revenue have also introduced a scheme following the record awards to two of their employees and in the light of a further outstanding 200 claims being processed through the tax workers’ union, PTC. The scheme covers all repetitive strain injuries, including diffuse RSI, associated with VDU and keyboard activities, including the use of a mouse.

Summary of compensation agreement on keyboard and workstation- related upper limb disorders between Inland Revenue and PTC

• Members wishing to apply under the scheme submit a completed application form to the union. This is checked to ensure that it meets the requirements of the scheme and is then forwarded to the Inland Revenue.
• The Revenue then have an opportunity to accept or reject the application as falling within the scheme.
• If accepted, the case is then referred to one of an agreed panel of medical experts for a report. The report will address whether the injury falls within the qualifying list, the attributability to work, problems experienced by the individual as a result of the injury and the likely prognosis. The medical evidence forms the basis for calculating compensation under the scheme.
• There are provisions for either the Revenue or the applicant to challenge medical reports - up to three may be obtained in any one case, though the intent of the scheme is to use one agreed medical report.
• Within six months of the disclosure of relevant medical reports, compensation must be agreed, in accordance with an agreed formula and based on common law damages principles. Cases where the amount of compensation is disputed are to be referred to arbitration.

• The scheme covers all cases diagnosed as an upper limb disorder caused or aggravated by work within Inland Revenue - this overcomes one of the major problems in most WRULDs legal cases.
• The scheme cuts out much of the adversarial nature of the present claims process, providing a balanced approach to instructing medical experts. It presents a fair alternative to court-based litigation.
• The scheme will ensure that cases can be resolved, and compensation paid quickly, with far less delay than going through the full common law procedures.
• The scheme does not affect members’ entitlement to take their own case through normal legal channels - though it does restrict the circumstances in which the union can provide financial backing for such cases.
• The scheme has a schedule of legal costs laid down, limiting the exposure of both parties to large legal fees in addition to compensation payments - a significant saving with cases of such complexity which usually require the involvement of many specialists.
• The scheme will enable many cases to receive compensation that might otherwise have only obtained it after lengthy and expensive court battles with disputes because of uncertainties over the medical or other evidence.
• The scheme has been framed to include within it all the 200+ cases that are presently outstanding, providing that the member involved agrees.

Negotiating a compensation agreement

Some employers have accepted their responsibility for causing RSI and have been prepared to negotiate compensation terms for employees. One such was the Financial Times, where there was a huge incidence of RSI amongst journalists in 1987-1990. The NUJ was involved in protracted negotiations and the threat of strike action and management finally imposed the following terms in 1992:

• final decision on who should leave to be made by the company in the light of medical reports, including consultation with physiotherapists and other treating professionals
• ill-health pension, which is based on the actual service to date and potential service to normal retirement age, and on present salary, for those in the pension scheme
• a cash payment by the FT of at least 12 months’ salary
• additional payments of £15,000-27,000 in several cases, depending on individual circumstances
• insurance benefit of 75 per cent of salary, less equivalent of state invalidity benefit, for the one person not in the pension scheme, plus payment of 24 months’ salary
• an option to stay on staff for an additional six months, with a corresponding reduction in payment on departure
• a commitment to re-employment at the FT, subject to reasonable conditions, on full recovery
• membership of private medical scheme until the end of February 1993
• if in alternative employment, pension reduction which avoids a pound for pound cut and with no cut in the first year of re-employment
• no pension reduction if retraining
• no pension reduction for the one person near normal retirement
• assurances of the company’s intentions on final pension when normal retirement age is reached, subject to Inland Revenue rules at the time
• professional career counselling and financial advice
• possible job interviews at other FT-related companies

The Financial Times is obviously a special case, but these terms could be used as a bargaining lever against an employer who is trying to retire staff on medical grounds.

Suing for unfair dismissal

If your employer has dismissed you because of your RSI, you may be able to take your case to an industrial tribunal and sue for unfair dismissal . However you need to seek legal advice from your trade union or a law centre about this since, if you are unfit to do the job for which you were employed, and your employer went through the accepted procedures, your dismissal may be deemed fair. Even if the dismissal is found to be unfair you cannot win your job back.

The Disability Discrimination Act 1995, which recently came into force, may be of benefit to RSI sufferers in the future as it requires employers to consider reasonable adjustments to the workplace, workstation or working arrangements where an employee is defined as disabled. So the Act should be used to press the employer to find alternative work or working arrangements for employees who have been disabled with RSI by their work rather than resort to dismissal.

In a somewhat different case, an Industrial Tribunal found that a TGWU safety representative at a poultry company had been unfairly dismissed for advising staff about the risks of RSI. The representative had given the advice when workers were processing 12,200 birds an hour whereas the agreed speed of the line was 9,500 birds an hour. The company had claimed he had told them to go slow. The company was ordered to pay the representative £8,750 in damages.

Seeking state compensation

The second source of compensation is the state benefits system which is administered by the Department of Social Security. Again claims can be difficult and long drawn out.

Industrial Injuries Benefit

This is paid to people who have been injured or made ill through their work. It is only paid if you are suffering a prescribed industrial disease ie a disease prescribed by the Industrial Injuries Advisory Council and officially recognised as work related. Not many RSI conditions have been prescribed. Those that have are shown in Table 3.

In order to claim under the scheme you must fill in the appropriate form, BI 100B, which can be obtained from your local DSS office. You have to show that you are suffering from the prescribed disease, that you are in an occupation prescribed for that disease and that the disease was caused by that occupation. If you have not entered the details in your employer’s accident book you may have difficulty proving the claim. If the claim is accepted you will have a medical examination to assess the extent to which you are disabled by the disease. Benefit is only paid where disability is 14 per cent or more and the amount depends on the percentage. Even sufferers of RSI so severe that they cannot lift a toothbrush to brush their teeth are generally assessed at between 8 and 12 per cent disabled. However, it is worth submitting a claim even if you think your disability is less than 14 per cent because future benefits may be affected. There are time limits for submitting claims, usually six months, so you will need to check carefully and act promptly.

Table 3: Prescribed Diseases And Related Occupations

Clawback

The Conservative Government introduced an extremely meanminded and unfair requirement that benefits must be paid back in full if you subsequently receive a civil compensation award of more than £2,500. In a reply to an MP’s question it was reported that the DSS Compensation Recovery Unit was clawing back £0.25 million a year from RSI sufferers’ compensation awards. The Government later announced plans for reform but these did not go far enough.

Other benefits

Other benefits to which you may be entitled are

• incapacity benefit (replaced sickness benefit and invalidity benefit from April 1995) - if you are not capable of working
• disability working allowance - if you can work but your earning capacity is limited by your disability
• disability living allowance - if you need help with personal care or mobility

You should also check your entitlement to sick pay under your employer’s own scheme and to statutory sick pay. Your employer may also have a personal health insurance scheme which covers you so you should check that too.

Prevention not compensation

Obtaining compensation by whatever route is long, complex and likely to yield inadequate results at the end. In any case money is no real compensation for the pain and damage to career prospects, home and social life. It is no recompense for the loss of the job you loved, for the inability to pick up and cuddle your own baby, for the loss of freedom to continue to pursue recreational interests without pain, for the inability to carry out the everyday tasks that everyone else takes for granted, and for the anxiety of being dependent on the continued support of family and friends. While the struggle for improved compensation for victims must, of course, continue, this must never become a substitute for the fight for proper preventive measures in the workplace by employers.

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