Shake-up in the law

It may not have had the high profile of other occupational illnesses such as asbestosis, repetitive-strain injury or stress, but hand-arm vibration syndrome is an area in which liability claims have been growing for some time. Now, with the advent of the Control of Vibration at Work Regulations 2005, employers will have to take notice. The new legislation will place risk management at the forefront of dealing with the problem.

As with many liability issues, it is a difficult area, but one in which the reduction, and even prevention, of risk is a realistic goal. Many insurers are tackling the issue through the provision of information about the legislation, guidance on risk assessments, and practical risk-management help and advice. Insurers are also working hard to help clients manage the risks in terms of compliance with the new legislation but, more importantly, to reduce the number of claims. And, clearly, brokers have an important role to play in communicating this information and advice to their clients, so that they are fully up to date with the problems of hand-arm vibration, the new legislation, and ways to reduce the risk.

Exposure to hand-arm vibration can lead to damage to the structure and tissue of the hands and eventually lead to full-blown HAVS. Symptoms of HAVS can include impaired circulation, leading to vibration white finger; reduced sense of touch; numbness and tingling; stiffness of the joints; and reduced strength and dexterity. HAVS is commonly associated with tasks involving hand-held power tools, hand-guided equipment and the holding of materials or workpieces presented for machining.

There have been a number of developments in the law in recent years in relation to hand-arm vibration and HAVS. Awards at court have increased significantly and scheme settlements are becoming less attractive to claimants.

The new legislation

The Control of Vibration at Work Regulations 2005 will introduce all-new duties from the EU's Physical Agents (Vibration) Directive, to protect employees from exposure to vibration at work. The current position is that vibration at work is covered under various items of legislation relating to health and safety at work, the provision of work equipment, the safety of machinery, etc. The new legislation sets out explicit duties that are only implicit under current provisions.

The regulations introduce two new exposure values. The first is an exposure action value (EAV). This is the level of daily exposure for any worker and, if this is exceeded, specific action is required to reduce the risk.

The second is an exposure limit value. This is the level of daily exposure for any worker that must not be exceeded.

It should be noted that there are no established safe levels for vibration exposure. As such, the new EAV does not constitute a 'safe' exposure value below which damage cannot occur. HAVS claims can still be successful even below this level.

In addition, there has been a change to the way in which the standard method for measuring vibration - the so-called 'A(8) value' (see box below) - is measured. This is the standardised method for determining the average daily exposure level and establishes the maximum period a given task can be undertaken in relative safety.

The new regulations also require an employer to carry out suitable and sufficient risk assessments, then implement appropriate controls to eliminate or control vibration to below the EAV and/or to accommodate employees who are found to be particularly susceptible.

Finally, employers must keep surveillance on those at risk, as well as supplying relevant information, instruction and training to affected staff.

Risk-management strategies

In order to prevent HAVS and to ensure the framework is in place to successfully defend associated allegations of negligence in future, a management system is required that must adhere to a strict criteria (see box, above right).

The key defences used by insurers in HAVS claims will involve arguments based on these areas. In all of them, insurers are offering advice and help, and brokers can support their clients by bringing this knowledge and expertise to their attention, to enable them to manage the hand-arm vibration risk.

It is recommended that a further technical risk assessment be undertaken for any activity where there is a risk of HAV, so that accurate, field-condition exposure levels can be established. Furthermore, periodic reassessments will be required to prove the continued validity of the original assessment.

When considering the various activities, tools, employee numbers and different materials worked upon, it is fair to say that delivering risk assessments that are suitable and sufficient will be a challenge. Once again, this is an area where insurers can help with expertise and advice.

An evidence-based approach with high standards of documentation and records will be critical, particularly given the time lag between initial exposure and claims. This will be especially critical in cases where the process in question is no longer undertaken by the business. Employers should look to establish a safe system of work (SSOW), which will identify a task methodology that ensures a consistent, safe approach is adopted.

From a claims-management perspective, documented safe systems can be vital for demonstrating that a formal procedure is in place, the principal points of which have been communicated to employees during formal, task-specific training.

Restricting power-tool operators' trigger times, for example, by job rotation, is a method often adopted where exposure to higher-vibration tasks is unavoidable. While commendable, this option presents an additional burden if a claim has to be defended, as it would have to be proved how that particular element of the work had been managed. A SSOW, therefore, needs to consider not only how to restrict trigger times, but also how this is to be evidenced and archived.

It is vital that employers can prove that employees are competent, by proving how an individual has been given the appropriate information, instruction and training to enable them to complete the task in a safe manner. As such, the provision of ongoing information, instruction and training is critical, and should be supported with evidence, details of the training provided and how competence has been validated.

The core elements of a training programme for any task should include the following: a reference to the task risk assessment and documented SSOW; explanation of the hazards and their risk associated with the task, detailing principal findings of technical surveys; explanation of controls adopted to minimise risks including documented SSOW; demonstrate the safe manner to undertake the task; validation of the trainee's understanding; validation of competence and authorisation to undertake the task; and on-the-job, trainer validation that the individual is carrying out the task as per the SSOW.

It is important to maintain equipment in good condition, as tools that become imbalanced and worn can lead to increased levels of vibration.

Ideally, a regime of routine, condition-based monitoring and/or planned preventive maintenance should be in place. Records of equipment maintenance are critical when defending HAVS claims.

Since the Vibration at Work Regulations 2005 do not specifically stipulate the need for a technical risk assessment in every case, neither do they explicitly stipulate any reassessment period. Our view is that the assessments should be repeated annually. This would ultimately be determined by a risk-based programme that is governed by, and can react quickly to the following: changes in work patterns and/or equipment usage; trends in the measured standard vibration levels; and incidence or deterioration of HAVS symptoms.

Monitoring health

Where HAVS is identified at an early stage, reducing exposure is likely to delay the development of worse symptoms. Health surveillance is therefore a critical component of the employer's reactive risk-management system.

It is also a specific requirement of the Vibration at Work Regulations 2005 and its supporting guidance, where the categories for inclusion are: employees exposed above the EAV; employees at risk due to a link between their exposure and HAVS; and employees who have been diagnosed with HAVS (even when exposed below the EAV).

However, it is the authors' belief that all personnel who are frequently exposed to HAV should be included in a risk-based health surveillance programme so an objective clinical assessment can be made, rather than relying on the employee to report what may be perceived by them as unrelated or trivial symptoms.

When defending claims, it is vital that an employer can show all reasonable steps have been taken to prevent and detect the onset of HAVS. Surveillance needs to be employer-driven, not employee-led. Early assessment of newly exposed workers is also essential. Susceptible individuals can develop symptoms in six months or less, so an effective health-surveillance programme needs to be established and operated by occupational-health professionals who are suitably competent in HAVS. Without the assistance of an occupational-health provider, a company occupational doctor or similar, health surveillance by the employer is deemed to be inadequate.

Long-term benefits

Compliance with the legislation will reduce the long-term incidence of HAVS, with a consequent reduction in future associated claims once historical, related exposure claims have subsided. It is, therefore, in everyone's interest to manage the hand-arm vibration risk and reduce claims. Insurers have considerable expertise in this area, covering risk identification, compliance with the new legislation, and risk-management advice and practical help relating to training, risk assessments and health surveillance.

Employers that have hand-arm vibration activities in their workplace, and who operate a risk-management system to embrace these elements, will eventually see a reduction of HAVS claims and will be much better placed to defend those that do arise. As a result, those organisations will be a more attractive proposition to the insurance market, and employers' liability insurers in particular.

THE CONTROL OF VIBRATION AT WORK REGULATIONS

The principal elements of the new regulations include:

- Introduction of an exposure action value - the level of daily exposure for any worker. If this is exceeded, specific action is required to be taken to reduce the risk.

- Introduction of an exposure limit value - the level of daily exposure for any worker, which must not be exceeded.

- A change to the basis of the standardised method for measuring vibration, the so-called 'A(8) value'.

- The employer will be required to carry out suitable and sufficient risk assessments, then implement appropriate controls to eliminate or control vibration to below the EAV and/or to accommodate employees who are shown to be particularly susceptible.

- Health surveillance is to be established for those at risk.

- Affected employees are to be provided with relevant information, instruction and training.

Statistics from the HSE show that, by the late 1990s:

- Over four million workers were exposed to vibration at work.

- Of those, 1.2 million were exposed over the action levels.

- 300,000 workers had been diagnosed with HAVS, with 36,000 at severe levels of injury.

- Risk assessments are suitable and sufficient.

- Systems of work minimise exposure.

- Employees are properly informed and trained.

- Work equipment is suitable for the task and properly maintained.

- The health of those at risk is monitored.

- Record-keeping systems are in place to retain evidence of each of the above.

FURTHER INFORMATION:

- www.hse.gov.uk/consult/condocs/cd191.pdf

- www.hse.gov.uk/ria/vibrate/hav.pdf

- www.hse.gov.uk/vibration/index.htm.