Regulation 2 of the Social Security (Industrial Injuries) (Prescribed Disease) Amendment Regulations 2019, which was laid before Parliament on 9 September 2019 and is set to come in to force on 9 December 2019, is unlikely to have been on many legacy insurers’ radar but could pave the way for a new wave of legacy disease claims.
In a report published in 2014 the Industrial Injuries Advisory Council (‘IIAC’) recommended that Dupytren’s Contracture, an upper limb injury, be made a prescribed disease and so eligible for Industrial Injuries Disablement Benefit (‘IIDB’) if the condition has presented against a background of work for ten years or more requiring use of hand held tools. Regulation 2 of the 2019 Regulations implements that recommendation.
An increasing number of claimant firms have been advertising that compensation is available for Dupuytren’s Contracture as a result of vibration exposure, suggesting they believe it represents a revenue stream.
It is imperative that legacy insurers develop an effective claims strategy (and quickly).
Dupuytren’s Contracture arises following a thickening of the connective tissue in the palm of the hand which typically manifests as small, hard nodules under the skin of the palm. Over time, the nodules can thicken and form chords that can then contract. Where the chords form along the tendons in the palm, this can cause the finger to bend inwards, usually over a period of years. Disability can arise due to increased difficulties with day-to-day activities such as dressing, cooking and cleaning. The condition can also interfere with social activities and occupation.
Dupuytren’s Contracture is a relatively common condition in the UK general population (it’s estimated that 4% of people are believed to have it). Its precise cause is not known, however risk factors are thought to include age, family history, smoking, diabetes, and a history of previous trauma to the hand.
According to the NHS, ‘Dupuytren’s Contracture is generally not thought to be related to manual work or using vibrating tools’. The IIAC concluded in 2006 that, whilst there was some evidence of a relationship to vibration, it was insufficient to meet their criteria for prescription. However, in 2014 the IIAC subsequently concluded, on the basis of further medical literature, that there was sufficient epidemiological evidence that the use of vibratory tools doubled the risk.
Although the implementation of the IIAC Report to make Dupuytren’s Contracture a prescribed disease does not purport to evidence a pathological mechanism by which vibration can cause Dupuytren’s Contracture, it does give medicolegal experts an easy means of justifying the opinion that such an association exists.
Whilst the condition is usually idiopathic, there are no specific clinical features with which to differentiate so-called ‘vibration induced’ Dupuytren’s Contracture from any of its other potential aetiologies, presenting a temping prospect for claimants, particularly in the age of Qualified One Way Costs Shifting (QOCS).
Although there has yet to be a significant influx of claims, there appears to be signs that these claims are starting to be received by insurers.
Claims are likely to present much like your standard hand arm vibration case, but allegations of exposure should be closely scrutinised. The IIAC considered that Dupuytren’s Contracture ‘could arise, at least in part, from the manual aspects of using heavy industrial equipment and not solely or simply the vibration imparted to the hand.’ We might then see claimants seeking to hedge their bets between allegations of vibration and of repetitive strain?
The law compensates for multiple, cumulative causes, but not for multiple, possible causes. Establishing the lack of a dose-response relationship and of any cumulative effect amongst possible risk factors takes us away from the material contribution test to the traditional ‘but for’ test: So ask would the claimant have developed the condition ‘but for’ the alleged exposure?
It is pivotal that defendants have their own medical evidence to look for alternative explanations for the injury and for comment upon any competing risk factors. Claims for Dupuytren’s Contracture are far from straightforward as there is no defined dose-response relationship, no known effect of multiple risk factors, no known pathological mechanism by which vibration causes the condition and it is not known what specific aspect of using vibratory tools can cause/increase the risk of the condition.
Whilst Dupuytren’s Contracture is now a prescribed disease attracting IIDB payment this fact alone does not and should not equate to the establishment of medical causation, certainly not without challenge. The decision to prescribe the condition relies upon epidemiology, but as any disease lawyer will know the role of epidemiology in legal causation is contentious and so represents a fertile battleground for litigation. The potential is for a widening of the net in terms of the use of epidemiology and the definition of material contribution in the realm of industrial disease claims generally. Expert evidence will prove key in these claims.
The Defendant market will need to take a robust stance and keep a close eye on the success of the first wave of claims. These could be the thin end of the wedge.
Keoghs, with our unrivalled expertise in the field of disease litigation and proven track record of development and delivery of industry leading claims strategies, intends to be at the forefront of the fight in challenging these claims now anticipated in increasing number.
If you would like to discuss how we might be able to assist you in defending claims for Dupytrens Contracture and on how we might help you manage the potential implications upon the wider market of an influx of these claims then please do not hesitate to make contact.
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