RSI RULING FAVORS EMPLOYERS

LONDON -- Employers and insurers are relieved by a landmark House of Lords judgment denying a secretary's repetitive strain injury claim.

Pickford vs. Imperial Chemical Industries P.L.C. is the first RSI case to be heard by the House of Lords, Britain's highest court, and its ruling that the plaintiff had failed to prove that her condition was caused by a physical injury or that it was work-related likely will set an important precedent for future RSI claims.

"It is a resounding victory for future (RSI) defendants. The judgment showed that it is for the plaintiff to prove that the injury is a physical injury caused by work rather than it being psychogenic," or all in the mind, said a spokesman for leading employers liability insurer Commercial Union P.L.C.

In light of the ruling, Commercial Union is considering appealing a recent decision in which policyholder Midland Bank was found liable for RSI injuries sustained by several employees (BI, June 8), said the spokesman.

Derek Howie, liability underwriter with insurer Eagle Star P.L.C., said, "It is a very, very important decision, which, without a doubt, is going to have an impact" on future cases.

"We have judges saying that RSI is of no diagnostic value as a disease. Any plaintiff planning to start an action against an employer will have to have absolute sound medical evidence and will have to prove a specific causation," said Mr. Howie.

"We are pleased that the judgment vindicates the company's position," said a spokesman for Zeneca Ltd., the now demerged former pharmaceutical section of ICI.

Zeneca offers employees plenty of ergonomic advice, the spokesman pointed out.

The judgment "would seem to be good news from an employer's point of view," said Marion Houghton, insurance manager for the London-based publishing group Reed Elsevier (UK) Ltd.

Nevertheless, the judgment will not change the company's attitude toward risk prevention, Ms. Houghton said, pointing out that Reed Elsevier takes "RSI very seriously and believes that risk management helps enormously."

For example, the company, which has "received only a few isolated RSI complaints," provides all employees with workstation assessments in which an ergonomic expert checks the layout of the desk for each employee. Staff members also get information related to back, eye and RSI problems and are encouraged to bring any problems to occupational health officers within the company, said Ms. Houghton.

Meanwhile, personal injury lawyers are disappointed with the judgment.

"We are very concerned that this could be used by defendants as a precedent and that the judgment could be a setback to other people suffering from RSI," the Nottingham, England-based Assn. of Personal Injury Lawyers announced.

One leading plaintiffs lawyer predicts, however, that the case will not halt the increase in RSI-related cases.

The condition Ms. Pickford is alleged to have suffered, that of writer's cramp, is a "very difficult condition to define and medically prove, making it a difficult condition to pursue in court," said Simon Allen, managing partner of the Sheffield, England, office of personal injury law firm Russell Jones & Walker.

In the time since the condition was listed as an injury by the government Department of Health and Social Security many years ago, other medically definable RSI conditions, such as carpal tunnel syndrome, have been recognized, he said. These types of injuries would be easier to medically prove in court, he said.

As a result, the ICI case is not likely to impact any of the law firm's 500 or so RSI cases currently filed in court, said Mr. Allen.

However, he expressed concern over the Law Lords' ruling that employers are not obliged to issue warnings about the risk of contracting writer's cramp.

"Lord Hope suggested that an intelligent employee should be able to plan his or her day to incorporate breaks and should be aware of the dangers without company warnings," Mr. Allen noted.

"I think it odd that the House of Lords took so robust a decision. Warnings can be very effective, and both employees and employers realize that information about dangers and hazards are beneficial to both parties," said Mr. Allen.

Four of a panel of five Law Lords ruled June 25 that the Court of Appeal had no right to overturn the original trial judge's ruling that Ann Pickford had failed to prove that the cramp in her hand had a physical cause or that it was caused by her typing work as a secretary for ICI.

Ms. Pickford worked as a full-time secretary for London-based ICI's pharmaceutical section in Macclesfield, south of Manchester, England, from January 1984 to May 1990. As the secretary to three section managers, typing took up about 50% of her work time. In May 1989, she complained to her doctor of pain in her hands. Her doctor could find no abnormality but signed her off work for several weeks. She was seen by a company doctor, who noted that the volume of typing seemed to be the problem but was unable to find any organic, or physical, explanation for the pain.

After seeing several specialists, she was placed on long-term disability in November 1989. Ms. Pickford returned to work in May 1990 but left three days later. The company ended her employment in September 1990 because there was no work available for which she felt she was fit.

Ms. Pickford then sued ICI, claiming the company's negligence had caused her to sustain Prescribed Disease A4, listed by the government's Department of Health and Social Security as a cramp of the hand or forearm due to repetitive movements.

She argued that the complaint was organic in origin, that it had been caused by a large amount of typing without breaks, and that her employer was negligent in failing to warn her of the risks of developing PDA4 if she did not take breaks.

The trial judge decided the plaintiff had failed to prove the complaint had a physical cause or that it was caused by her typing. He also ruled that the employer was not obliged to specify breaks because her duties provided natural breaks from typing, such as telephone calls and speaking to managers. He also noted that it is not the practice in business in general to warn of the risks of RSI because that could prompt more people to claim they have the condition.

The Court of Appeal, with one judge dissenting, reversed the trial judge's decision, ruling that Ms. Pickford should have been warned of the risk and that in not doing so, ICI was negligent.

However, the House of Lords ruled that the Court of Appeal was wrong to overturn the trial judge's decision and to put the burden of proof on the defendant. According to the judgment, the medical issues were controversial because the condition was so mysterious, with two conflicting medical views -- one that the disease's origin is organic in cause, and the other that it is psychogenic, or in the mind.

Meanwhile, the defendant's employers said PDA4 had never occurred among typists on their premises and that no medical understanding of changes in the tissue had yet been demonstrated for the condition. When medical evidence alone is insufficient to show the precise cause of a plaintiff's injury, a trial judge is entitled to consider other evidence, the Law Lords ruled.

They also agreed with the trial judge that an employer is not negligent in failing to warn a secretary -- whose work involves other duties aside from typing -- that she should take breaks. In conditions such as PDA4, which are not easily identifiable and not well-understood, caution should be taken about any warnings, the Law Lords noted.