WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - King - v - Coopers and Lybrand Ltd

Date	Court	Claimant(s)	Task	Injury	Judgment for
10 Apr 2001	Leeds County	King	DSE use: typing	WRULD	Defendant

The Claimant, a female in her late thirties, was employed as a group secretary for the Defendant from February 1990. She had worked for about three and a half years before the alleged onset of her problems. In about May/June 1993 she claims to have experienced aching in both hands and wrists, intermittent at first, gradually becoming constant and radiating up her arms. In August 1993 she consulted her GP with the symptoms - he suggested rest and she took two weeks' certificated leave. Symptoms persisted upon returning to work. Her GP referred her to a Consultant Rheumatologist, who on 17 January 1994 diagnosed "upper limb work-related disorder". When he saw her again in May 1994 there was some improvement. When she saw her GP in August 1994 her symptoms had deteriorated resulting in certificated sick leave. The Claimant did not return to work thereafter.

The Claimant's case was that she was expected to type excessively long hours on a regular basis, often typing through or delaying her lunch hour; staying until 7.00pm (instead of 5.30pm); breaks were either not permitted or discouraged. In addition the workload was excessive and constant with deadlines to meet. Staff shortages, e.g. maternity leave, contributed to the pressure of work. She says she complained but not a lot happened. The work station was "old-fashioned" and aids such as wrist rests, foot rests, ergonomic keyboards and armchairs were not issued.

The expert medical evidence was polarized. The Claimant called Professor Bird who was of the opinion the Claimant had suffered a "work-related upper limb disorder" of "non-specific" origin. He could not point to any specific disease or injury giving rise to the symptoms such as tenosynovitis, carpal tunnel syndrome, epicondylitis or spondylosis, but nevertheless standard textbooks of Rheumatology recognised the phenomenon. He encountered it often in self-employed dancers and musicians with no hope of compensation. The precise cause of the condition remains a mystery. He agreed there is a respectable body of opinion which subscribes to an alternative "psychological" theory; that it is difficult to distinguish the theories and that this is not a classic or typical upper limb disorder case.

Mr Kay, an Orthopaedic Surgeon, gave evidence for the Defendant. He was a strong advocate of the well-documented school which believes that if no specific organic cause can be identified for alleged symptoms then there can be no diagnosis of an upper limb disorder or Repetitive Strain injury, let alone attributable to work. He stated such a diagnosis is pure speculation. What begins as perhaps a minor, transitory episode suddenly takes on a life of its own. Not because it is a diagnosable organic condition but for one or more other speculative reasons, e.g. psychological, and/or compensation neurosis and/or exaggeration, and/or malingering. Given the options, he speculated the Claimant was malingering, adopting a pain behaviour pattern and feigning symptomatology for gain.

In his Judgment, Mr Recorder Fairwood states:

I reject any suggestion that the Claimant is a calculating malingerer. I do, however, find she is prone to exaggeration, lack of confidence and willpower. I find that the environment the Claimant and her colleagues worked in was busy but unremarkable between 1990 and 1992, save for particularly busy periods each January to March. From January 1993 I accept that for a combination of reasons the typing workload on the Claimant increased to one of constant but not excessive pressure. I find the Claimant has exaggerated the position, for example I am satisfied the overtime she worked was unexceptional, the lunch breaks she missed were intermittent rather than routine. Whilst I accept breaks were not positively provided, encouraged or enforced, I do not accept they were "not permitted" as the Claimant puts it. It seems to me the Claimant chose not to take them whilst her colleagues felt no such compunction. I am not satisfied that any complaint was made by the Claimant to her employer prior to August 1993 and the documentation bears this out.

Towards the end of his Judgment, Mr Recorder Fairwood states:

Each case must turn upon its own facts. The combination of facts and medical evidence in this case lead me to conclude that neither the condition nor its relation to work has been proved satisfactorily. In my judgement there are too many imponderables and too much speculation safely to draw an inference in the Claimant's favour. Professor Bird's diagnosis is based on a 'precipitating factor' something out of the ordinary. I have found there to be no such feature ergonomic or otherwise. Even he concedes this is not a typical case. Mr Kay is entitled to query why there is no atrophy in the left arm and why the symptoms persist six years after the event and to point to the Claimant's emotional state (as evidenced in the GP notes) at the critical time in 1992/3. I cannot say why the Claimant has experienced what she has over the last 6 years; it must in my view remain in the realm of mystery and speculation.

Mr Recorder Fairwood found in favour of the Defendant.

V2.01

Last updated: 16/10/2009