Diagnosed with HAVS - Council fined due to worker illness

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Rotherham Metropolitan Borough Council has been fined by the Health and Safety Executive (HSE) after a worker who repaired potholes was diagnosed with Hand Arm Vibration Syndrome (HAVS).

Hand Arm Vibration Syndrome (HAVS) is an occupational disease caused by repeated exposure to vibration tools. If an employer does not take the correct precautions to ensure workers are kept safe at work, they may be at risk of prosecution.

Diagnosed with HAVS

Sheffield Magistrates’ Court heard the employee worked in the road maintenance department, carrying out tasks including repairing potholes, for more than 20 years, using vibrating tools.

According to the Health and Safety Executive, prolonged and regular exposure to vibration can affect a worker’s health resulting in painful and disabling disorders of the nerves, blood supply, joints and muscles of the hands and arms.

Meanwhile, the risk of onset or worsening of HAVS increases with daily exposure and varies widely between individuals.

Legal obligation to report HAVS

Employers are legally obliged to report cases of HAVS to HSE. The HSE investigation revealed that despite the worker in question receiving this diagnosis in April 2005, he continued to work with vibrating tools for a further 14 years.

The employee had been subject to regular health surveillance whilst employed by the Council, which had included recommendations on limiting exposure.

However, despite the report of April 2019, little action was taken to address the issues identified. Only once the HSE investigation had started in late 2019 was the man told to stop using vibrating tools.

HSE Investigation

The investigation also found that other employees continued to work with vibrating tools after they had been diagnosed.

While a system of Occupational Health surveillance was in place, it was inadequate as there was either no implementation, or inconsistent implementation, of the recommendations and actions to be taken. Recommendations following health surveillance of employees wasn’t acted upon or used to identify risks.

The investigation found that the data used to calculate the vibration exposure grossly underestimated the vibration magnitude of the tools in use, and also relied upon accurate times being entered by staff.

Workers were incentivised to continue using vibrating tools through a bonus scheme and overtime work which inevitably led to high levels of exposure. Workers were allowed to work up to the recommended Exposure Limit value (ELV), and in light of the inaccurate data inevitably worked beyond it on a regular basis. They were then only moved to other tasks when their health deteriorated.

Rotherham Metropolitan Borough Council pleaded guilty to an offence contrary to Section 33(1)(a) of the Health and Safety at Work etc Act 1974, for their failure to ensure, so far as was reasonably practicable, the health, safety and welfare at work of their employees in accordance with section 2(1) of the Act. On Tuesday 17 December, the Council was fined £60,000 and ordered to pay full costs of £5,775.70.

Following the hearing, Kate Harney, enforcement lawyer for HSE said:

“Rotherham Council had been exposing employees to the risks arising from the use of vibrating tools for a significant period of time. They fell below expected standards and appropriate enforcement was taken by the HSE.

“This was also not an isolated incident, with other staff working in the council’s road maintenance division also exposed to risks to their health, due to an unhealthy working culture where these exposures inadequately monitored.

“We urge those responsible for work using vibration tools to please check our freely available guidance.”

HAVS Symptoms

Vibration white finger and hand-arm vibration syndrome describe a selection of symptoms with an underlying pathology. Workers regularly exposed to vibration may suffer from symptoms due to effects on the vascular system, nervous system, muscles, and other tissues.

Three Components of symptoms:

Neurological component – Numbness, tingling, reduced sensation (touch and temperature), reduced dexterity.
Vascular component – Episodic blanching of fingers (typical trigger is exposure to cold). Vibration does not precipitate symptoms, despite causing condition initially in tips of fingers (rarely thumbs, except in more extreme cases) – spreading into the whole finger and palm. This is often followed by redness and pain in fingers.
Pain/stiffness in hand and arm.

You do not have to have the full range of symptoms to be diagnosed as suffering from HAVS. Neurological symptoms often occur first, but this is not a set rule.

What is the duty of my employer to protect my health?

Under the 1974 Health and Safety at Work Act, every employer has a duty so far as is reasonably practicable, to ensure the safety and welfare of employees.

In 1975, a British Standards Institution Draft development publication referred to vibration magnitudes of below 1.0 ms2 as ‘acceptable vibration magnitudes’, and magnitudes above 10m/s2 as ‘unacceptable vibration magnitudes’.

In 1994, the HSE published guidelines that referred to a standard based on an action level of A8 of 2.8 m/s. The 2.8m/s is the average vibration level over the course of an eight hour day. At that level, ten percent of people exposed for eight hours a day for eight years would experience symptoms of finger blanching, and the exposure would be foreseeable.

Work with vibrating tools is rarely continuous, and as such the time of exposure (‘trigger time’) must be considered.

Vibration at Work exposure limits

In 2005, the statute the Control of Vibration at work Regulations 2005 was passed and implemented from the 6^th of July 2005. This act set two exposure limits:

Limit 1 – Exposure Action Value ( EAV) – 2.5 m/s (Reg 4(1)(b))

Limit 2 – Exposure Limit Value (ELV) – 5 m/s2 (Reg 4(1)(a))

The EAV is the maximum amount of vibration an employee may be exposed to before an employer is required to take certain action to reduce exposure. These actions may include (Reg 6):

Undertaking a review of the design/layout of the workplace.
Job rotation to eliminate or reduce vibration.
Provide suitable training and information to employees.
Appropriate work schedules with adequate work schedules.

The ELV is the maximum amount of vibration an employee may be exposed to in any single day (Reg 6 (4))

Example:

On a daily working basis, Mr. A will use a demolition hammer for half an hour, followed by hammer drills for three hours.

Demolition hammers: levels likely – 15 m/s exposure from this work for half an hour = 225 points.

Hammer drills: levels likely – 6m/s exposure from this work for three hours = 215 points.

The number of points together would exceed 400, and therefore it is likely the ELV is being exceeded or likely to be exceeded. This is an extremely useful tool to undertake an initial assessment on the level of daily vibration.

When to make a claim?

If you have read the above and feel that you may be suffering from any symptoms whilst exposed to repetitive tasks at work, call Oakwood Solicitors Ltd to speak to our dedicated Industrial Disease team and ask about our ‘No-Win, No-Fee’ agreement.

In order to run the majority of personal injury claims, you have to have started the claim within three years of the injury.

However, with Industrial Disease claims it may be that the injury started over a period of time and was only diagnosed within the last three years. We will be able to clarify this for you.

Will I lose my job if I make a claim?

If you are still working for the Defendants they can not dismiss you for making or proposing to make a claim. If your employer attempts to do so when you are likely able to make a successful unfair dismissal claim.

Generally, in our experience, the high majority of insurers understand their duties owed to you and the right you have to pursue a claim if this duty has been breached.

In the high majority of matters, the claim will normally be transferred from the Defendants directly to their insurers and it will be the insurers who will deal with the Defending of the action.

How long will my case take?

The length of time for a case can vary and can strongly depend on how Defendants and their insurers want to defend the action. Initially, it may be that we request certain documents from the Defendants/their insurers, such as risk assessments/job sheets to fully assess the claim before any formal claim is made.

Generally, these cases can take anywhere from twelve months up to three years to reach a conclusion.

Why should I use Oakwood Solicitors Ltd?

We have a very experienced and dedicated Industrial Disease team. They are able to identify whether a claim is likely to be viable at an early stage and give advice.

The team works with an extensive network of orthopaedic surgeons and hand surgeons. They have dealt with a number of claims in all areas of Industrial Disease and have achieved some excellent results.

If there are no risk assessments and the Defendants argue that the risk to your health was foreseeable (should have been known) a report from an Ergonomist may be required.

These experts would consider the systems in place and whether they were reasonable in all the circumstances. If required, this is something that we will arrange for in your claim.

Council fined after worker who repairs potholes diagnosed with HAVS