Please note: Information contained in this article is of a general nature
and should not be used as a substitute for independent legal advice.
This Article was written by Chris Patterson, Employment Law Solicitor,
Hesketh Henry, Auckland
and published in the Employment Law Bulletin pp93-96 incl.
Each one of the three Employment Acts on our New Zealand Statute books,
and their legal implications in relation to OOS are discussed.
The Health and Safety Employment Act (HSE Act)
The Accident Rehabilitation Compensation & Insurance Act 1992
(ARCI Act)
The Human Rights Act 1993 (HR Act)
OCCUPATIONAL OVERUSE SYNDROME
AND THE LAW
Occupational Overuse Syndrome ("OOS") is a debilitating injury which, in its extreme, can render its sufferers incapable of performing normal everyday tasks without severe pain and discomfort. Some employers have had first-hand experience dealing with an employee who is suffering from an OOS-related injury. Very few employers are fully aware of their legal obligations relating to OOS. The District Court has made it clear that:
"It is the employer's job to ensure, as far as is reasonably practicable by the provision of appropriate office furniture, supervision and open systems of communication between the staff and designated persons, that the development of this debilitating and it seems in many cases semi-permanent set of symptoms are avoided." {1}
Our statute books contain three Acts, which have legal implications for employers in relation to OOS. Those Acts are the Health and Safety in Employment Act 1992 ("the HSE Act"), the Accident Rehabilitation Compensation and Insurance Act 1992 ("the ARCI Act"), and the Human Rights Act 1993 ("the HR Act"). Each of those Acts and their implications are discussed below.
Broadly, the HSE Act contains two main obligations, which are relevant to an OOS injury. Those obligations are contained in s6 ("Employers to ensure safety of employees") and s13 ("Training and supervision").
Ensuring Safety
Section 6 prescribes that:
"Every employer shall take all practical steps to ensure the safety of employees while at work; and in particular shall take all practical steps to -
(a) Provide and maintain for employees a safe working environment; and"
OOS is a well-recognized injury that can arise from improper use of a visual display unit ("VDU"). {2} The Courts have accepted that improper VDU use is a hazard that employers are bound to "take all practical steps" to ensure does not injure their employees. For employers, the questions to be addressed are:
What does "all practical steps" mean? and How must they discharge the obligations imposed by s6 of the HSE Act?
So far there have been five Department of Labour prosecutions of employers for failing to "take all practical steps to ensure that their employees did not develop OOS.{3} The injuries in each case arose from the improper use of a VDU. In each case, the defendant employers all pleaded guilty to breaching the HSE Act.
The District Court first considered a breach of s6 of the HSE Act in Department of Labour p FAI Metropolitan Life Assurance Company of NZ Ltd [1995] 1 ERNZ 317. The employee in the FAI case bad only been employed for four days as a keyboard operator before being diagnosed as suffering from OOS. The Court found that the speed in which the injury developed went to establishing the significance and seriousness of the hazard.
The Court held that FAI had failed to "take all practical steps" to ensure the safety of its employee. Particularly, FAI failed to check the employee's eyesight, provide the employee with proper ergonomically-correct equipment, and correctly structure her work process. However, the Court did acknowledge that FAI had taken some practical steps to ensure its employees' safety.
The Court credited FAI with having addressed the question of hazards arising out of the use of VDUs, as they had contacted the Department of Labour prior to the injured employee developing OOS. FAl had also employed an occupational health consultant to conduct workstation assessments and training sessions. The workstation assessments resulted in FAI ordering new ergonomically correct equipment and the establishment of a health and safety committee. However, FAI admitted that it had not recognized the application of the hazard with respect to the injured employee and had failed to comply with the Department of Labour's code of practice for the safe use of VDUs.
The Court in Stewart (Health and Safety Inspector) v Price Waterhouse Administration Ltd [1997] ERNZ 360 found that the employer had failed to "take all practical steps" despite having provided the injured employee with the latest ergonomically-correct equipment. Prior to her injury the injured employee had been promoted to full-time secretary. and was responsible for five people. The Court held that Price Waterhouse had breached s6 through its failure to:
Training
The District Court in all five prosecutions has held that S 13 (b) of the HSE Act had been breached by the defendant employers. Section 13 (b) prescribes that:
"Every employer shall take all practical steps to ensure that every employee who does work of any kind, or uses plant of any kind, or deals with a substance of any kind, in a place of work -...
(b) Is adequately trained in the safe use of all plant, objects, substances, and protective clothing and equipment that the employee is or may be required to use or handle."
In both FAI and Price Waterhouse, the Court found that the employer's failure to adequately train the injured employee in the correct use of a VDU amounted to a breach of s13(b). In the FAI case, MacLean DCJ stated:
The Court has no difficulty, on the basis of the information available to it, in concluding that the harm which occurred was directly related to the employee's work-related activity and further that had it not been for the Inadequacy of the training (to which the defendant pleaded guilty), together with the failure to take particular steps, (checking eyesight, assuring proper ergonomic set-up and in particular structuring of the work process), that the harm would not have occurred." (p320)
The Court in Price Waterhouse held that a failure to provide adequate training aggravates an already dangerous situation, but may not necessarily be causative of an OOS-related injury.
Penalties
An employer is liable to a penalty under the HSE Act if it is proved beyond reasonable doubt that one of its employees developed OOS through its failure to "take all practical steps" to ensure his or her safety, and/or provide them with adequate training. Section 50(d) provides a maximum penalty of $50,000 for serious harm, and s50(e) provides a maximum penalty of $25,000 for all other types of harm.
"Serious harm" is defined in cl.1 of the First Schedule to the HSE Act to be:
"Any of the following conditions that amounts to or results in permanent loss of bodily function, or temporary severe loss of bodily function: ... [including] musculoskeletal disease..."
In FAI MacLean DCJ summarized the requirements for a finding of "serious harm":
"It was also common ground that in the context of this particular case, the harm experienced by the employee could only amount to `serious harm' in terms of the Act if it could be established to the necessary standard that the syndrome amounts to `musculoskeletal disease' and, if musculoskeletal disease is found to exist, that condition additionally amounts to or results in either permanent loss of bodily function or temporary severe loss." (p320)
The Court went on to hold that OOS is musculoskeletal disease, and that the employee had suffered a "temporary severe loss of bodily function". Therefore, serious harm had been established. The Court ordered PAI to pay an $8000 fine.
In Price Waterhouse, all the medical evidence suggested that the injured employee was suffering from a musculoskeletal disease. Willy DCJ held that the injured employee had suffered:
"... a temporary severe loss of bodily function. In coming to that conclusion, I have taken account for the pain and the general feeling of malaise accompanied by insomnia, of which the employee complained. I have also had regard to the effect on her social life and her inability to perform the occupation for which she was trained and employed for sustained periods of time. I have not the slightest doubt that, when viewed in the round, these consequences can only be described as severe." (p376)
After finding that serious harm had been established, Willy DCJ ordered Price Waterhouse to pay a $15,000 fine.
Summary
The HSE Act places a positive obligation upon employers to "take all practical steps" to ensure that their employees do not develop OOS. Employers are required to provide employees with adequate training in the use of equipment, which may be causative of OOS. The case law suggests that employers are required to not only provide employees with ergonomically correct equipment, but also to train, monitor, and counsel employees in OOS avoidance. A failure to meet the requirements contained in the HSE Act and the case law may result in an employer being exposed to a substantial fine the largest imposed by the Courts to date being $15,000.
A conviction for a breach of the RSE Act may provide an employer with protection from being exposed to an exemplary damages claim -see Daniels v Thompson, 12 February l998, CA 86/96, noted in Morritt v Jespersen, Askelund & Panners, unreported, ACC 52/97, where the Chief Judge awarded a legal secretary $20,000 in exemplary damages after she developed OOS primarily from an unergonomic workstation.
Severe cases of OOS can result in an employer losing a valuable employee, and the employee losing their remuneration by way of a salary or wages they would have earned but for their injury. If an employee is unable to work due to their injury they are, as a general rule, entitled to compensation pursuant to the ARCI Act.4 {4}. If an employee's claim is accepted by the Accident Rehabilitation and Compensation Insurance Corporation ("ACC"), then the relevant employer's premiums will increase due to a change in their experience rating.
Gradual Process Injury
To qualify for compensation for loss of earning due to OOS the injured employee must satisfy the three-stage test contained in s7(1) of the ARCI Act. Section 7(1) provides:
"Personal injury shall be regarded as being caused by gradual process, disease or infection arising out of and in the course of employment only if:
(a) In respect of a period that ended on or after the 1st day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and
(b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and
(c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment."
A claimant for cover must establish that paras (a) and (c) can be answered in the affirmative and para (b) in the negative. The District Court has accepted that employees who are employed to operate VDUs require repetitive keyboard use, which is a "particular property or characteristic", and can be causative of an OOS injury (s7(1)(a)). It is now well accepted that the risk of VDU operators suffering OOS in the hands, wrists and arms is "significantly greater for persons performing that employment task in the environment than for persons who do not perform that task in that environment" (s7(1)(c)).
In Tuerlings v ARCIC (1995) 1 BACR 128, the appellant unsuccessfully appealed against ACC's decision to decline her application for compensation. The appellant suffered from OOS caused by a history of repetitive movements. The appellant was at the time of her injury employed as a waitress and a polytechnic tutor while she completed her BA degree.
Lovell-Smith DCJ held that the "property or characteristic" which caused her OOS injury was to a material extent found in her non employment activities as a student. Lovell-Smith DCJ found that her OOS injury was triggered by "a bout of essay writing" for her BA degree, and, but for the essay writing, she could well have avoided developing OOS.
The Tuerlings case is a good example of the importance of considering each of the three requirements of s7(1). A number of employers have had their premiums increased due to having an employee in receipt of compensation for OOS. Employers who have been notified of a claim for compensation due to an OOS injury should consider the three requirements of s7(1).
Section 14 of the ARCI Act provides that only ACC can be a party to any claim for injury compensation. The door to directly claiming lost earnings compensation against an employer may be opened if ACC decline to provide cover for a workplace injury.
Non-physical stress
Section 7(4) of the ARCI Act provides that compensation for a gradual process injury is not available if it is solely related to non-physical stress. Therefore, employees are not covered for "occupational stress" Some theories suggest that OOS is caused solely through non-physical stress.{5} Such theories appear to be at odds with the expert evidence of Dr Dryson during the Price Waterhouse case. Willy DCJ noted:
"Dr Dryson was of the firm view that occupational overuse syndrome:
`cannot therefore be considered an "imaginary" of (sic) psychological condition. Fibromyalgia is a condition of painful muscles and widespread detectable tender points, which was defined by the American College of Rheumatology in 1990. The term supersedes an earlier term fibrositis. It occurs more commonly in women (at a ratio of 10:1), is associated with debilitating fatigue and widespread stiffness. It has a poor outlook.'
The doctor goes on to say that one of the authorities regularly relied on reports that only a small number of those affected `will go into remission (defined as absence of pain or aching for at least two months)'. He considers that the causative factors associated with the onset of the condition include not only stress but also physical factors such as trauma and overactivity." (p370)
The District Court has yet to consider the application of s7(4) exclusion for non-physical stress in relation to a claim for compensation for fibromyalgia.
Summary
OOS sufferers are generally covered by s7(1) of the ARCI Act, which provides a three-stage test for when a personal injury will be regarded as being caused through a gradual disease. A successful application for compensation will result in an increase of the employer's premiums. An employee may be entitled to sue their employer for damages if their application for compensation is declined.
Section 21(l)(h) of the HR Act makes disability a prohibited ground upon which to discriminate against a person. Section 22 ("Employment") makes it unlawful to refuse to employ, offer less favorable terms and conditions of employment, terminate employment, cause an employee to retire or resign, by reason of that person's having a disability.
Employers who discriminate against OOS sufferers will in some cases be unable to rely on s29, which provides exceptions in relation to disability. The s29 exception provision will only apply if an employer can establish that an unreasonable disruption will be caused to the workplace in order to take measures to reduce the risk of harm to the employee. The District Court's approach in this area clearly establishes that the risks associated with VDU use can be reasonably reduced to a normal level without unreasonable disruption.
Discrimination by reason of disability is a new ground of discrimination, and, as such, there has not been any relevant New Zealand case law. However, the Equal Opportunity Tribunal of Victoria in Cummoudo v Aerospace Technologies Pty Ltd (1990) EOC 92-316, held that arthritis was an impairment for the purposes
of the State's legislation.
Summary
It is likely that an employer will be liable for breaching the HR Act if they discriminate against an employee or prospective employee because they are suffering from OOS.
The HSE, ARCI and HR Acts all contain provisions, which have a number of implications for employers dealing with the issue of OOS. The HSE Act places a positive obligation upon employers to prevent and minimize the rise of employees developing an OOS-related injury. An employer who fails to discharge their obligations under the HSE Act may be liable to a sizable fine.
Employees with OOS are generally entitled to compensation under the ARCI Act, which will affect their employer's ACC premiums. Employees not entitled to compensation under the ARCI Act may be able to sue their employers for general damages.
Employers are not entitled to discriminate against an employee or prospective employee on the basis that they are suffering an OOS-related disability. It is unlikely that an employer would be able to claim an exception to the prohibition against discrimination by reason of disability.
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[1997] ERNZ 360, at p379, per Willy DCI.
Please note: Information contained in this article is of a general nature
and should not be used as a substitute for independent legal advice.
___________________________________________________________________________________________________
This Article was written by Chris Patterson, Employment Law Solicitor,
Hesketh Henry, Auckland
And published in the Employment Law Bulletin pp93-96 incl.
______________________________________________________________________________________________