CI_12525_1996 [1996] UKSSCSC CI_12525_1996 (07 December 1996)


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UK Social Security and Child Support Commissioners' Decisions
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URL: http://www.bailii.org/uk/cases/UKSSCSC/1996/CI_12525_1996.html
Cite as: [1996] UKSSCSC CI_12525_1996

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[1996] UKSSCSC CI_12525_1996 (07 December 1996)

    R(I) 8/98

    Mr. A. T. Hoolahan QC CI/12525/1996

    17.12.96

    Prescribed disease A12 (carpal tunnel syndrome) - steering wheel of a bus - whether a "hand-held vibrating tool"

    The adjudication officer decided that the claimant's employment as a bus driver did not involve "the use of hand-held vibrating tools" and so was not a prescribed occupation in respect of prescribed disease A12. The claimant's appeal to a tribunal was dismissed on that issue. He appealed to the Commissioner, arguing that the steering wheel of a bus was a tool, because it manipulated the bus, and that it was a vibrating tool, because the vibrations of the engine were transmitted to the steering wheel.

    Held, dismissing the appeal, that:

    a steering wheel was not a "tool", within that word's ordinary meaning, and it could not be a "hand-held vibrating tool" because it did not contain within it the source of vibration.

    [Note: In Janicki v. Chief Adjudication Officer (6 December 2000, on appeal from CI/13188/1996) [to be reported as R(I) 1/01], the Court of Appeal held that a tool could be a "hand-held vibrating tool" even if it did not contain within it the source of vibration. However, the schedule of prescribed diseases was amended by SI 1996 No. 425, so that, from 24 March 1996, the occupations prescribed in respect of prescribed disease A12 were those involving "the use of hand-held powered tools whose internal parts vibrate so as to transmit that vibration to the hand, but excluding those which are solely powered by hand".]

    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. I disallow this appeal by the claimant. The decision of the social security appeal tribunal dated 25 August 1995 was not erroneous in law.

  2. The claimant was born in 1946. He is a bus driver. On 11 February 1995 he made a claim for industrial disablement benefit for prescribed industrial disease A12 known as carpal tunnel syndrome. The entry for prescribed disease A12 in Schedule 1 Part 1 of the Social Security (Industrial Diseases) Regulations was, at the date of the claim (i.e. before the amendment as from 24 March 1996), in the following terms: "A12 Carpal tunnel syndrome. The use of hand-held vibrating tools." The Department asked the claimant's employer, the bus company, if the claimant's job involved the use of hand held vibrating tools, to which the employer replied "No".

  3. By a decision issued on 15 March 1995 the adjudication officer decided that prescribed disease A12 (carpal tunnel syndrome) was not prescribed in relation to the claimant "because the claimant has not been employed on or after 5 July 1948 in employed earner's employment in any occupation including the use of hand-held vibrating tools".

  4. The claimant appealed and by letter dated 24 April 1995 he stated:

    5. "I am writing to appeal against the decision of your adjudicating officer in that although the injury suffered is described as not having been caused by a hand-held vibrating tool it is our contention that the vibration transmitted by the engine to the steering wheel via the steering column amounts to significant. vibrational cause to induce prescribed disease A12 carpal tunnel syndrome.
    May I also refer you to my employment at H.W.B. Builders ... between April 1971 and May 1972. When employed as a driver labourer I worked regularly with pneumatic drills whilst on contract to the British Gas Board for over twelve months.
    Therefore we feel that the conditions of regulation 2(A), Schedule 1 are met."
  5. At the hearing before the appeal tribunal it was contended by and on behalf of the claimant (a) that a steering wheel was a hand-held vibrating tool and (b) that in his work at the builders he used pneumatic drills and jack hammers "which are hand-held vibrating tools". The appeal tribunal upheld the appeal so far as it related to the work done by the claimant in his employment by the builders, and they referred that claim for consideration by the medical authority. They made no reference to the appeal in relation to the employment by the bus company but in their reasons they stated that they did not accept that a steering wheel was a tool and rejected that claim.

  6. On 27 November 1995 the claimant was medically examined and was diagnosed as suffering from prescribed disease A12 from September 1994 to date and the examining doctor's opinion was that the disease was not due to his employment as a driver/labourer for the builders. On 22 May 1996 the matter came before an adjudicating medical authority. The claimant was medically examined again and the adjudicating medical authority decided that although the claimant's work as a driver/labourer from April 1971 to May 1972 was a prescribed occupation, that employment was unlikely to have been a causative factor of his symptoms.

  7. The claimant now appeals, with my leave, against the decision of the social security appeal tribunal dated 25 August 1995 that his employment as a bus driver did not satisfy the prescription test for prescribed disease A12 (carpal tunnel syndrome).

  8. On 23 October 1996, at the request of the claimant, I held an oral hearing. The claimant was present. He was represented by a friend, Mr. P. McHugh. The adjudication officer was represented by Mr. Sriskandarajah of the Solicitor's Office of the Department of Social Security.

  9. Mr. McHugh referred to the definition of "tool" at page 1285 of the Concise Oxford Dictionary as being:

    10. "any device or implement used to carry cut mechanical functions whether manually or by a machine."

    He submitted that the steering wheel of a bus was a "tool" because it "manipulates the bus", that is to say that it was used to turn the bus, that it was hand-held, and that it transmitted the vibration from the engine. It was therefore, he submitted, a hand-held vibrating tool.

  10. Mr. Sriskandarajah for the adjudication officer submitted that a steering wheel was not a tool, but even if it was it was not hand-held and vibrating. He referred to CI/156/1994, CI/696/1994 [starred 70/95 and reported as R(I) 2/96], and CI/474/1995 [starred 22/96]. Reference was also made to CI/160/1994 [starred 55/94 and reported as R(I) 3/95]. None of those cases concerned a steering wheel.

  11. In CI/160/1994 [R(I) 3/95], the claimant was a sewing machinist and Mrs. Commissioner Heggs held that that occupation did not involve the use of hand-held vibrating tools. Mrs. Commissioner Heggs referred in paragraph 8 of her decision to the definition of "tool" in the Shorter Oxford Dictionary as:

    12. "any instrument of manual operation ... a mechanical implement for working upon, as by cutting, striking, rubbing, or other process, in any manual art or industries; usually, one held in and operated directly by the hand, but including certain simple machines, as the lathe."

    In paragraph 14 of her decision the Commissioner held that a hand-held vibrating tool applies only to the "particular kind of vibrating tool which is portable and held manually. It does not extend to the use of tools of any kind in which some part of the operation may involve hand steadying or control."

  12. CI/156/1994 also concerned a sewing machine. In paragraph 12 Mr. Commissioner Mesher said:

    13. "12. ... A tool like a sewing machine does not qualify as a hand-held vibrating tool when vibration is directly transmitted to the operator through merely having to have a hand in contact with the machine. An occupation involving the use of such a tool is not prescribed for prescribed disease A12."
  13. CI/696/1994 [R(I) 2/96] concerned the use by a cleaner for an omnibus company of a scrubbing or buffing machine. It was used to clean up the concrete floor of a garage and also the inspection pit. It was a heavy machine and had to be carried by two people. It was in fact conceded by Ms. Smith on behalf of the adjudication officer that the machine was undoubtedly "vibrating" and that it was a "tool". In paragraph 8 of his decision Mr. Commissioner Goodman referred to CI/160/1994 [R(I) 3/95] and stated that Mrs. Commissioner Heggs:

    14. "... also indicated that it was an essential of a tool being 'hand-held' that it should be 'portable' but in a more recent decision (on Commissioner's file CI/156/1994) at paragraph 11, another Commissioner (Mr. Commissioner Mesher), also dealing with an industrial sewing machine, stated 'it may be that the criterion of portability will need further consideration in other cases concerning different kinds of tools.'"

    Mr. Commissioner Goodman held that the machine in that case (the scrubber or buffer) came within the prescription but he emphasised that his decision was, so to speak, a "supplement" to CI/160/1994 [R(I) 3/95] and that he was not in any way dissenting from the emphasis that the learned Commissioner placed upon the essentially narrow nature of the prescription of "hand held vibrating tools". He concluded:

    "11. ... However, it does follow, there being a substantial factual element in my decision, that it is not necessarily a precedent for other types of machine or tool."
  14. In CI/474/1995 the claimant assembled vehicle wiring harnesses and her job "involved the use of a hand-held tie gun to tighten up and cut the plastic wiring ties that held the harnesses together". The question was whether or not the tie gun did or did not count as a "hand-held vibrating tool". Mr. Commissioner Howell QC stated in paragraph 8:

    15. "8. As explained in the Commissioners' decisions in case CI/160/1994 ... and CI/156/1994, the class of tools whose use brings an occupation within the prescribed zone for disease A12 is a restrictive one and it is not every hand-held tool that does so. I do not think the point can be summarised better than it is in CI/156/1994 para. 12: to count as a 'hand-held vibrating tool' in this context the tool must contain in it a source of vibration. It is not enough that the tool merely transmits vibration from something else, though admittedly it is not a requirement that the tool must be powered."

    In paragraph 10 of his decision the learned Commissioner said:

    "10. It is not necessary to decide in the present case whether the apparent view of the Commissioner in case CI/227/1994 that the description can include any hand-held tools whose use involves shock or vibration being transmitted to the operator's hand or arm (such as a hammer and chisel, punch or drift) is correct. It is to be noted that this would involve an extension of 'vibrating' to include a completely inert piece of metal which, like most materials, responds to being struck, and bring in a class of tools of a rather different order from the hammer drills, grinders, sanders and so on which are obviously the primary target of the regulation because they both vibrate and need repeated or continuous pressure from the hand and wrist to hold them in position against the work during use."

    Finally, he concluded in paragraph 12:

    "12. ... In my judgment the requirements are satisfied when the way the tool operates gives rise to an appreciable vibration in use, so long as this is due to the operation of the tool itself rather than merely the passive transmission of impacts or vibrations from something else."
  15. In their reasons for their decision, in form AT3 box 4, where they considered whether "a steering wheel is a hand-held vibrating tool", the appeal tribunal stated:

    16. "4. ... we have regard to a basic rule of statutory interpretation that the grammatical, ordinary and natural sense of words is to be used. We have had regard to the meaning of the word 'tool' as set out in the Shorter Oxford Dictionary 'an implement for working upon something as by cutting, striking, rubbing or other process in any manual art or industry.
    We do not accept that a steering wheel is a tool, giving that word its ordinary meaning."

    I agree with those observations. However, the claimant, in his grounds of appeal submitted that the appeal tribunal had misdirected themselves by using the Shorter Oxford Dictionary to define the word tool. And he indicated to me at the oral hearing that a number of bus drivers were intending to make similar claims. Approaching the matter, as I must, as one of law and not merely as one of common sense, I adopt and apply the words used by Mr. Commissioner Howell QC in paragraph 8 of his decision:

    "to count as a 'hand-held vibrating tool' in this context the tool must contain within it a source of vibration. It is not enough that a tool merely transmits vibration from something else though admittedly, it is not a requirement that the tool must be powered."
  16. The steering wheel of a bus does not contain within it a source of vibration, it merely transmits vibration from something else. I appreciate that a steering wheel must be held in order to steer the bus and that as a general rule of good driving both hands must be placed on the wheel. But the steering wheel is not the source of any vibration, it merely transmits vibration from something else. I have no doubt that a steering wheel is not a "hand-held vibrating tool". If the claimant has carpal tunnel syndrome, his claim does not come within prescribed disease A12.

  17. I therefore disallow this appeal.

    18. Date: 17 December 1996 (signed) Mr. A. T. Hoolahan QC

    Commissioner


     

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