Investigations in Asthma & Respiratory Disease Claims

In previous editions of BC Disease News, we have presented investigations conducted in the course of NIHL (here), cumulative back injury (here) and dermatitis (here) claims. This week, we produce a feature article on investigations conducted in the course of asthma and respiratory disease claims.

GENERAL BACKGROUND TO ASTHMA & RESPIRATORY DISEASE CLAIMS

Asthma is a common long-term condition that can cause coughing, wheezing, chest tightness and breathlessness.  It is relatively common, affecting approximately 1 in 12 adults in the UK, and is caused by inflammation of the bronchi airways[1].

The symptoms of asthma can vary widely in severity. Most patients only experience occasional symptoms, though a small minority will have problems a lot of the time. 

Work-related asthma may be either occupational asthma (the onset of new adult asthma), or work-aggravated asthma (increase in symptoms of existing asthma, or recurrence of remitted childhood asthma).  It is estimated that 9-15% of cases of asthma in adults, including new asthma symptoms and childhood asthma returning, are caused by work-related factors.[2] 

There are two types of occupational asthma: allergic occupational asthma and irritant-induced occupational asthma.  Allergic occupational asthma is the most common, responsible for around 90% of cases, and is caused by allergens in the workplace that increase the sensitivity of the airways.  Irritant-induced occupational asthma is much less common, and generally only occurs following a spill of a chemical such as chlorine or ammonia.  

The incidence of occupational asthma in the UK is generally decreasing, according to the SWORD (Surveillance of Work-related and Occupational Respiratory Disease) and IIDB (Industrial Injuries Disablement Benefit) schemes. SWORD estimates that across all industries and occupations collectively, the annual incidence is around 1 in 100,000 workers, though this is likely to be a significant underestimate.  

The main pieces of legislation relevant to occupational asthma/work aggravated asthma are the Control Of Substances Hazardous to Health (COSHH) Regulations 2002 and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013.

What is Asthma?

Asthma is a disease of the respiratory system.  The respiratory system is responsible for exchange of gases in the human body, by the process of breathing (or ventilation).  Inhaled oxygen is transferred to the blood, so it can travel around the body and combine with food products to produce energy.  Carbon dioxide, a waste product, is transferred from the blood to the lungs, and exhaled.

The main features of the respiratory system are the mouth, nose, trachea, lungs, bronchi (singular bronchus), bronchioles and alveoli.  Asthma is caused by inflammation of the bronchi.  The respiratory system is shown in the figure below:

3.png

(Source: Wikipedia)

When air is inhaled through the mouth or nose, it travels down the trachea, or windpipe.  The trachea splits into two tubes, known as bronchi, one of which travels to each lung.  Inside the lungs, the bronchi divide into many small, branching tubes known as bronchioles.  At the end of each bronchiole is a small ‘sac’ or cavity, known as an alveolus (plural alveoli), which is surrounded by many small blood vessels, into which the oxygen passes, and from which carbon dioxide is released.  Inhalation and exhalation are caused by contraction and relaxation of the diaphragm muscle respectively.

Causes of Asthma

Asthma symptoms are likely to be caused by a combination of factors, including environmental ‘trigger’ factors.  A trigger irritates the lungs, causing an inflammation of the bronchi (i.e. the airways narrow, the surrounding muscles tighten, and mucus production increases).  This is shown in the figure below:

4.png

(Source: Wikimedia Commons)

The onset of symptoms can be caused by:

  • An allergic reaction when the patient comes into contact with an allergen (substance that triggers an allergic reaction, such as dust, animal fur or pollen).  Allergens can cause changes in the airways, making them ‘hypersensitive’.  This is known as allergic asthma;
  • Breathing in an irritant, such as cigarette smoke or pollution, or factors such as exercise or cold weather.  This is known as non-allergic asthma.

Asthma Symptoms

The symptoms of asthma can vary widely in severity.  Most patients only experience occasional symptoms, though a small minority will have problems a lot of the time.

The main symptoms are:

  • Wheezing (a whistling sound with breathing)
  • Shortness of breath
  • Tightness in the chest
  • Coughing

Symptoms can tend to be worst at night and early in the morning, and can develop or increase in severity in response to a particular trigger.  

Asthma attacks can appear suddenly, or develop slowly over a period of up to several days.  Signs of a particularly severe attack include:

  • Worsening of symptoms described above, for example, wheezing, coughing and chest tightness becoming severe and constant
  • Normal inhaler medication being less effective than usual
  • Being too breathless to eat, speak or sleep
  • Increased breathing rate
  • Rapid heartbeat
  • Drowsiness, exhaustion, dizziness
  • Lips and fingers turning blue (cyanosis)

Various lung function tests, such as spirometry, peak expiratory flow testing and airway responsiveness tests may help with the diagnosis and management of asthma.       

Work-Related Asthma 

There are two types of asthma that are work-related.  They are:

  • Occupational asthma: Adult asthma caused by workplace exposures and not by factors outside the workplace; and
  • Work aggravated asthma: An individual already has asthma, and asthma is aggravated by non-specific work factors.

Occupational Asthma

Occupational asthma is the most common cause of adult onset asthma, and makes up 9-15 % of cases of asthma in adults of working age[3]

There are two types of occupational asthma: allergic occupational asthma and irritant-induced occupational asthma. 

Allergic occupational asthma is the most common, responsible for around 90% of cases, and is caused by allergens in the workplace that increase the sensitivity of the airways.  Some common triggers of allergic occupational asthma are listed below: 

  • Isocyanates (a family of chemical found in spray paint)
  • Flour and grain dust
  • Cutting oils and coolants
  • Colophony (a substance found in solder fumes)
  • Latex
  • Animals
  • Wood dust

Those with allergic occupational asthma have their symptoms triggered by inhalation of one of the allergens listed above.  

As it takes more time for the immune system to become sensitive to an allergen, claimants may have been doing their job for even years before allergic asthma symptoms develop.  However, once sensitivity to an allergen is established, symptoms can be triggered by even small amounts of the allergen.

Irritant-induced occupational asthma is less common, and generally only occurs following a spill of a chemical such as chlorine or ammonia.  Irritant-induced occupational asthma normally develops after an accidental single high dose exposure at work to an inhaled irritant.  This might cause asthma symptoms to develop within 24 hours and persist for at least three months after the single exposure.  A proportion of these claimants may consequently develop persisting asthma. 

Substances Known To Cause Occupational Asthma

HSE provides a complete list of substances that can cause occupational asthma, which is regularly updated. 

The most common causes of occupational asthma reported by SWORD[4] and the IIDB scheme from 2008 to 2013 are shown below:

5.png

Both SWORD and the IIDB scheme found that isocyanates were the most common cause of occupational asthma, followed by flour and grain.  Other common causal agents are wood dust, welding fumes, latex, soldering fumes and exposure to animals. 

The occupations and industries most at risk are those with highest exposures to the most common causal agents; vehicle spray painters (exposure to isocyanates), bakers, woodworkers, solderers, healthcare workers, animal handlers, agricultural workers and engineering workers.  Below is a breakdown of what each employee/worker may be exposed to:

  • Spray painters

The main source of isocyanate exposure is paint spraying.  It may also occur from cleaning the spray gun and from paint curing.

  • Bakers

In a bakery environment, dust clouds arise from throwing flour, disposing of empty flour bags and brushing.  Bag emptying, sieving, dough making and dusting tasks all create a lot of dust.   

  • Woodworkers

Woodworking tasks such as sawing, sanding, assembly and housekeeping can produce a lot of dust, and settled dust is easily raised.  Wood dust can contain bacteria, fungi and moss spores.

  • Solderers

Without effective control, solder fume rises vertically, and is likely to enter the breathing zone of the solderer.  Fume may drift and accumulate in the workroom, exposing other employees in addition to the solderer. 

  • Healthcare workers

Latex gloves and diathermy procedures are sources of occupational asthma in healthcare workers. 

  • Animal Handlers

Animal fur, feathers, dander, dried urine and saliva dusts arise through animal handling or transportation, cage or enclosure cleaning and changing filters in ventilated areas.  These dusts contain proteins, ‘animal aeroallergens’, that can cause occupational asthma. 

  • Agricultural workers

The most common cause of occupational asthma amongst agricultural workers is as a result of exposure to agricultural dusts, such as grain dust and poultry dust.  They can contain organic and inorganic materials such as fungal spores, bacteria, mites, animal dander and faeces, plant dust, soil, feed and feed components, agrichemicals, etc. 

  • Engineer workers

Metalworking fluids may be a cause of occupational asthma.  Fluids sometimes referred to as suds, coolants, slurry or soap are used during the machining of metals to provide lubrication and cooling and to remove debris such as fine metal particles.  Inhalation of mists or aerosols is possible near metalworking machines, in operations involving high speed tools or deep cuts, at machines where the process is not enclosed and where there are inadequate ventilation arrangements.

Work Aggravated Asthma

Work aggravated asthma is pre-existing asthma in which the symptoms are worsened by workplace conditions.

The four diagnostic criteria for WAA are as follows: (i) the presence of pre-existing or concurrent asthma (ii) a temporal relationship between asthma and work, (iii) conditions at work that can exacerbate asthma and (iv) that occupational asthma is unlikely.[5]  

Triggers can include inhaled agents (allergens and non-allergens), physical exposures (for example cold air) and behavioural states (for example stress).  

The latency period in WAA cases, that is the time it takes for symptoms to develop following exposure, will generally depend on the extent of the exposure and what the cause of the aggravation is.  For example, the 2013 study Wiszniewska et al found that in work aggravated Baker’s lung cases (the cause being flour and grain dust) there is an average latency period of 13.3 +/- 9.7 years.  In cases involving isocyanates, however, symptoms of WAA may begin merely several minutes or hours after exposure began.          

GUIDANCE FOR EMPLOYERS ON CONTROL OF SUBSTANCES HAZARDOUS TO HEALTH REGULATIONS AND ASTHMA

The legislation relevant to occupational asthma is the Control of Substances Hazardous to Health (COSHH) Regulations 2002 and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013.

The COSHH Regulations first came into force in October 1989 and were updated in 1994, 1999 and 2002.

In the unlikely event you receive a claim that pre-dates October 1989, the law that applies depends on where exposure took place.  Nonetheless, it is likely that that the Factories Act 1961 would be relevant, specifically sections 4, 29 and 63. 

COSHH REGULATIONS 2002 

COSHH apply to any substance hazardous to health within the workplace.  All substances which cause occupational asthma fall within this definition.    

Under COSHH there is a hierarchy of duties requiring employers to do the following:

  • The first requirement is to prevent exposure to all substances hazardous to health.
  • Where exposure cannot be prevented then any exposure must be adequately controlled.

1. Can exposure be prevented?

Employers first need to have considered whether exposure to the substance can be prevented.

  • Can you avoid using a hazardous substance or use a safer process therefore preventing exposure.  
  • Can you substitute it for something safer – e.g. Latex gloves and diathermy procedures are sources of occupational asthma in healthcare workers; so can the insured use powder-free, low-protein latex gloves, or non-latex gloves?

2. Are the risk assessments adequate?

The purpose of carrying out a ‘suitable and sufficient’ risk assessment is to identify areas of concern and control measures that can be put in place to reduce the risk.

A competent person should assess the risk of exposure to hazardous substances at regular intervals.   The risk assessment should consider whether it is reasonably practicable to prevent exposure.   If prevention is not practicable then the assessment should identify how to ensure adequate control.  

The risk assessment should take account of the following: Hazardous properties of the substance, possible health effects, frequency and duration of exposure, type of work, effectiveness of controls to minimise risk, results of any monitoring data or health surveillance.

3. Is the exposure adequately controlled?

Where exposure cannot be prevented then any exposure must be adequately controlled.

Regulation 7(1) of COSHH requires employers to ensure that employees’ exposure to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.  This duty requires the employer to be active in investigating the risks to its employees inherent in its operations, to stay up to date with industry guidance and take appropriate action where necessary.

The control measures to be adopted will be specific to the operations carried out. 

The HSE’s Guidance paper on working with substances hazardous to health lists gives guidance on choosing appropriate control measures in order of priority as follows:

  • Eliminate the use of a harmful product or substance and use a safer one.
  • Use a safer form of the product, e.g. paste rather than powder.
  • Change the process to emit less of the substance.
  • Enclose the process so that the product does not escape.
  • Extract emissions of the substance near the source.
  • Have as few workers in harm’s way as possible.
  • Provide PPE such as a respirator. PPE must fit the wearer.

Personal protective equipment:  For example, masks and respirators.  PPE should be regularly checked and maintained, and replaced if damaged.   

Another control measure specific to asthma may be Pre-employment screening. Those with a history of atopy may be more susceptible to occupational asthma, and should be identified and counselled to change to tasks in which they will not be exposed to dust/fumes. 

Regulation 7 (7) and Workplace Exposure Limits

Regulation 7(7) was introduced by SI 2004/3386, which launched the Workplace Exposure Limits (WELs).  Approximately 500 substances have been assigned WELs and are listed in the HSE publication EH40 Workplace Exposure Limits. 

These are occupational exposure limits set for substances that have the most serious health effects, such as dermatitis and occupational asthma.  For control to be adequate, a WEL must not be exceeded. 

In relation to certain substances, such as carcinogens, exposure must not exceed the relevant WEL, but must also be reduced as far as is reasonably practicable.            

Regulation 9

The insured must ensure that all control measures (referred to above) are maintained in an efficient working order and are in good repair.  In cases of ventilation systems, they should be examined and tested every 14 months.  

Records to show compliance with Regulation 9 should be kept for at least five years.  

Regulation 11

In relation the Regulation 11, health surveillance is necessary when asthma associated with the substance in use.  The HSE website states that health surveillance should be a regular planned assessment of one or more aspects of worker’s health (i.e. lung function or skin condition or both).         

Regulation 12

The HSE provides guidance in relation to Regulation 12 and the provision of information, instruction and training.  Employees must understand the outcome of any risk assessments carried out and what it means for them.  The HSE website says that employees must be told:

  • What the hazards and risks are;
  • About any workplace exposure limit;
  • The results of any monitoring of exposure;
  • The general results of health surveillance;
  • What to do if there is an accident or emergency.

Employees must have access to safety data sheets and kept informed about planned future changes in processes or substances used.  An employer should keep basic training records. 

RIDDOR Regulations 2013

RIDDOR requires employers to report to the Health and Safety Executive (HSE) any medically confirmed cases of asthma caused by exposure to substances at work. 

RIDDOR 2013 came into force on 1 October 2013 and replaced RIDDOR 1995, which was initially introduced on 1 April 1996. 

Medical Causation 

Diagnosing Occupational Asthma/Work Aggravated Asthma

There are three initial steps to take when diagnosing occupational asthma/work aggravated asthma:

  1. Differentiate asthma from other causes of respiratory symptoms, such as Chronic Obstructive Pulmonary disease or emphysema. 
  2. Differentiate asthma caused by occupational exposure from constitutional (non-occupational) asthma.
  3. Differentiate asthma caused by occupational exposure from an exacerbation of pre-existing asthma.

Asthma and Other Causes

Spirometry as well as other tests (referred to above) can be used in the diagnosis of asthma to distinguish it from other respiratory conditions, such as Chronic Obstructive Pulmonary disease.

Constitutional and occupational asthma

Four main risk factors for occupational asthma were identified in the paper Nicholson et al., 2005 as follows: the causative factor of exposure to an agent at work; predisposing atopy (i.e. the generic tendency to develop allergic conditions such as asthma, rhinitis and eczema); predisposing genetics; and cigarette smoking. 

Cigarette smoking can increase the risk of developing occupational asthma with some sensitising agents.  Further, the risk of developing occupational asthma is highest in the year after the onset of occupational rhinitis.[6] 

Symptoms of constitutional and occupational asthma are the same and it can be difficult to differentiate between the two.  For example, the main symptoms for both are: wheezing (a whistling sound with breathing), shortness of breath, tightness in the chest and coughing.        

Some of the following may be signs that a patient has occupational asthma rather than non-occupational:

  • Asthma symptoms appear in an adult who has not previously had asthma;
  • Asthma symptoms appear in an adult who had asthma as a child, but appeared to ‘grow out’ of it;
  • Other symptoms such as sneezing, itching, runny nose, conjunctivitis;
  • Symptoms improve when not at work, such as at the weekend or during holidays;
  • Symptoms increase after work, and may disturb sleep after work.

Tests that can diagnose occupational asthma are serial peak flow measurements, skin prick testing, blood tests, and bronchial provocation testing.  However, none of these tests are conclusive.  

A number of factors to look out for when determining whether the claimant’s asthma is in fact constitutional (non-occupational) are:   

  • Lack of a temporal link between exposure and onset of symptoms;
  • The claimant’s symptoms continue to deteriorate after exposure at work has ceased;
  • A history of repeated chest infections in the medical records;
  • Asthma coming on shortly after a chest infection;
  • Any previous suggestions of wheezing in the medical records;
  • There is no improvement in the claimant’s symptoms when he is not at work, such as weekends or during holidays;
  • The claimant having provided a history that suggests an alternative cause.

Occupational Asthma and Work Aggravated Asthma 

Obviously, the main step in distinguishing work aggravated asthma from occupational asthma is to clarify whether or not the claimant already has asthma.[7]  However, this is not always as easy as it sounds.  A previous history of asthma is not significantly associated with occupational asthma.[8] Sometimes the claimant may have had childhood asthma but has been symptom free during adulthood.  In such circumstances it will have to be determined whether the claimant’s symptoms are an aggravation of this previous condition, or if the present symptoms are wholly new and coexist separately from the previous ailment.      

Other information that may assist in making the distinction is (i) the presence of a latency period might support a diagnosis of occupational asthma (rather than work aggravated asthma)  and (ii) exposure to a known cause of occupational asthma.[9]   

The claimant may have also only been exposed to a substance, such as chlorine and sulphur dioxide, that can aggravate a person’s asthma, but is not thought to actually cause asthma. 

TEMPLATE SCHEDULE OF INVESTIGATIONS IN AN ASTHMA CLAIM

Detail any preliminary enquiries made with the insured, setting out what information the insured has provided to date. Then concisely summarise what else needs to be investigated / clarified by identifying the main issues in dispute which require further investigation. For example:  

Lay Evidence

The Claimant

  • What was / is the claimant’s (C) job role and periods of employments?
  • What site(s), departments, lines, operations & processes does / did the C work at with relevant dates for the same?
  • What was C’s days and hours of work, including any regular overtime?
  • Obtain a broad timeline of what happened. When did C first:
    • Start the work complained of?
    • Raise any problems concerns regarding his work?
    • Develop symptoms?
    • Go absent from work (if at all)?

[Further details on complaints and absences etc. requested below]

Control of Substances Hazardous to Health

  • Is it accepted that the work carried out by C involved Hazardous Substance(s)?
  • What substance(s) did C use during the course of employment?
  • What was the substance used for?
  • What was the chemical name (if appropriate)?
  • In what quantities was the substance used?
  • Were there any Hazardous Substances that C did not use directly in work activities but were generated by his/her work activities?
  • Were there any naturally occurring Hazardous Substances (i.e. grain dust) within C’s working environment?   
  • Is it accepted that COSHH would apply?
  • Are you aware if the Hazardous Substance was assigned a Workplace Exposure Limit in accordance with the HSE publication EH40 Workplace Exposure Limits?
  • If it was, was the Workplace Exposure Limit exceeded? 

Preventing Exposure As Far As Reasonably Practicable

  • Have the insured considered whether exposure to the hazardous substance can be avoided?
  • If so when and how was this considered and by whom?
  • What was the conclusion reached and why?
  • Why was it not reasonably practicable to avoid exposure to the substance?

Risk Assessment

  • Have the insured carried out risk assessments regarding the operations / process?
  • Is there a specific COSHH assessment relating to use of the particular substance(s)?
  • When and how were these risk assessments carried out and by whom?  Where they carried out by a ‘competent person’?
  • Where the risk assessments suitable and sufficient?
  • If the risk assessments were not suitable explore reasons / why not?
  • Has the risk assessment considered whether it is reasonably practicable to prevent exposure?
  • If prevention is not practicable then has the risk assessment identified how to ensure exposure is adequate controlled?
  • How often were risk assessments reviewed and why?
  • Details of insured’s general Health and Safety structure and policies and procedures.

Control Measures

  • What control measures were identified by the risk assessments to adequately control exposure to the hazardous substance?
  • Have these been implemented? If not, why not?
  • If they have been implemented, then when where they implemented and how and by whom?
  • Where they in place at the time of C’s alleged exposure?
  • Obtain details of the existing control measures in place and throughout the C’s employment and reasons for any changes e.g. containment of the substance via design and engineering controls, use of ventilation systems, use of appropriate respiratory PPE, health monitoring etc. 

The Work

[Note: Some of these questions may overlap with the above.]

  • Please take a video of the work carried out by C.
  • If possible please take photographs of the labelling of any substance container or warning labels (if appropriate).
  • If possible, please take photographs of the ventilation systems in place at the insured’s premises and how they control exposure at the source.   
  • Obtain full details of the nature and extent of the work as follows:

The Substances to Which C Was Exposed - Used Directly in Work Activities

  • What substances did C use/ come into contact with?
  • What are they used for?
  • In what quantities are they used?
  • Are there any safer alternatives?
  • Does the risk assessment require access control i.e. restricted to competent personnel?
  • Was C competent to handle the substances?
  • Where there any special operating procedures in place?

The Substances to Which C Was Exposed – Generated by Work Activities or Naturally Occurring

  • If the substances were generated by C’s work activities or were naturally occurring substances rather than substances C directly used, how were these substances generated/created?
  • What were the substance(s) generated/created?
  • Was there a process in place that attempted to reduce these substances being generated?
  • Was there a way in which these substances could not be generated at all by C’s work activities? If so, why was that process/procedure not in place?
  • Does the risk assessment require access control (i.e. restricted to competent personnel) to the work activities that generated the substance(s)?
  • Was C competent to carry out these work activities?

Duration and Frequency

  • The frequency of the exposure to the substances per minute / hour / over the course of a working day;
  • The duration of each individual exposure;
  • The cumulative duration of exposure in a working day;
  • How many days per week -daily and regular task / weekly and irregular etc.

Engineering Control Measures

  • Are there any engineering control measures in place? i.e. containment of substance.
  • Where all control measures periodically inspected and adequately maintained.

Ventilation systems

  • What local extraction/ventilation systems were in place to remove dust/fumes?
  • What was the make and model of the ventilation system?
  • When was it introduced?
  • Was it regularly maintained and tested and, if so, by whom and when?
  • Did the ventilation system control the exposure to the substance at the source and if so, how?
  • Was the ventilation system being used by employees as designed?
  • What enforcement procedures were in place to ensure that employees used the ventilation system correctly?

PPE

  • Is any PPE required? Was it worn?
  • What type of PPE was provided to C?
  • Specify model/type of PPE provided.
  • If required, was the use enforced?
  • What maintenance and inspection procedures were in place to ensure that PPE was working properly?

Training

  • Please detail the training provided to the C in relation to the work generally and the tasks carried out in department;
  • Details of any induction and/or refresher training provided to the claimant in relation to the risks of exposure to hazardous substances. What exactly did the training cover-for example:
    • Nature of substance and hazardous properties;
    • Handling and storage requirements;
    • Emergency procedures;
    • How injuries can occur;
    • How to avoid injuries;
    • How to use substances safely;
    • How to use engineering control equipment safely;
    • How to use the ventilation systems safely;  
    • How to use PPE safely;
    • When and how to report any accidents and health problems and seek medical advice & assistance?
  • When, how and who carried out the training and what qualifications/experience did they have?

Complaints / Occupational Health

  • Obtain details of the insured’s system relation to injury complaints;
  • Identify whether C made any complaints about the nature of the work and/or his injury to managers/supervisors/ other employees;
  • If complaints made then when and to whom and nature/gist of the same?
  • How C’s complaints were dealt with-when and by whom-and what was the outcome? Did C carrying on with work complained of?
  • Details of the insured’s occupational health arrangements / policy;
  • Was monitoring in place? i.e. periodic occupational health assessments and / or any monitoring of personal exposure values?
  • Was C referred to Occupational Health-if so how, when and by whom?
  • What was done following the referral including the occupational health advisor’s recommendations and whether these were followed);
  • Were there any previous complaints from others? If so when, from whom/ what action taken?

Absences and Returns to Work

  • Dates of absences from work and reasons?
  • Any assessment of capability for work on return?
  • Graduated return to work / any restrictions imposed / different work carried out?
  • Did C return to same work-if so when?
  • Were there any subsequent complaints by C after the injury / absence? If so when and to whom and nature / gist of the same? How was this dealt with and what was the outcome?
  • Identify in retrospect whether anything could have been done differently.
  • Was C’s employment terminated? If so when and for what reason(s)?
  • Was C placed on different work which effected income? Obtain full details.

Documents

This Checklist is intended only to be a guide and it is not exhaustive.

NB: IN CASES WHERE SUCH DOCUMENTS ARE NOT AVAILABLE IT IS VITAL TO CLARIFY WHETHER (I) THEY NEVER EXISTED, OR (II) IF THEY DID WHAT BECAME OF THEM AND WHEN?

The Injury

  1. Accident Book entry for the Claimant’s symptoms and any other relevant incidents.
  2. Form F2508 (submitted to the Health & Safety Executive).
  3. Any HSE investigations or correspondence in relation to this claim, any other similar incidents or the system of work in general.
  4. Any other investigation reports or forms, including any statements taken or memos sent.
  5. First Aid/Treatment Book entry.
  6. Sick Notes submitted by the Claimant.
  7. Any documents completed for the purposes of the DSS.
  8. Documents relating to any other similar claims or Accident Book entries etc.

Production Information

  1. In relation to the period about which the Claimant is complaining, documentation to show:
    1. The Claimant’s Day Work Sheets (including details of basic hours worked and any overtime);
    2. A breakdown of the Claimant’s daily activities;
    3. The Claimant’s performance targets and their actual achievement/production levels;
    4. Average speed of the process (e.g. in terms of units per minute or per hour or per shift);
    5. If the Claimant was above or below average, documents to show this (e.g. statistics or a comparator employee’s Day Work Sheets etc.).

Risk Assessments COSHH Assessments and Health & Safety Records

  1. Health & Safety Committee Meeting Minutes which refer in any way to the subject matter of this claim.
  2. The Company’s Health & Safety Policy.
  3. Any other relevant internal Health & Safety documents, including memos and e-mails, relating to asthma. 
  4. Maintenance, inspection and/or repair records for all relevant equipment, plant or tools used by C. 
  5. Risk Assessments and COSHH assessments — for the period of C’s employment and also one year before and after, in relation to:
    1. The COSHH Regulations;
    2. The Management of Health & Safety at Work Regulations;
    3. Personal Protective Equipment at Work Regulations;
    4. Any re-assessments following any changes (e.g. to the work station, to systems of work or following any accidents or health surveillance);
    5. Any other relevant, general risk assessments.
  6. Documents showing any other sources of information obtained, such as:
    1. Manufacturers’/suppliers Product Safety Data Sheets;
    2. Independent health & safety reports commissioned; work surveys;
    3. Air monitoring surveys;
    4. Documents obtained from HSE, trade associations, health & safety industry journals.

Personal Protective Equipment

  1. Manufacturers’/suppliers’ product information (e.g. catalogues, marketing information etc.) for all respiratory PPE provided (e.g. masks and respirators), including the name and make.
  2. Any manuals in respect of the use of the PPE. 
  3. Purchase records to show how often and how many items are typically purchased (e.g. each month).
  4. Documents showing what respiratory PPE the Claimant received and when (e.g. signed receipt forms).
  5. Documents relating to suitability (e.g. trials, discussions with suppliers etc.).
  6. Documents relating to the maintenance, testing and repair of all respiratory PPE provided (e.g. repair and maintenance records).

Other Control Measures

  1. Documents showing what other steps have been taken, if any, to prevent or adequately control exposure to hazardous substance(s) (other than PPE). In particular, relating to:
    1. The implementation of any control measures by engineering means (e.g. automation or dispensing systems);
    2. Ventilation systems (e.g. extractors);
    3. The manufacturer’s specifications (e.g. catalogues, product information);
    4. Any systems of review, maintenance and testing of the above;
    5. The rotation of employees, the variation of duties and the taking of rest breaks.
  2. Any documents which explore the possibility of the above.

Training and Enforcement

  1. Health & Safety Handbook/Manual — preferably the copy signed and dated by Claimant to acknowledge receipt.
  2. Documents showing all training, instructions and warnings (e.g. certificates, course notes, course registers, internal memos, publicly displayed warning notices, handbooks/booklets, notes of guidance and any other literature etc.) given to the Claimant in respect of relevant matters such as:
    1. The risk of occupational asthma;
    2. The correct use and upkeep of PPE;
    3. The importance and enforcement of the use of PPE;
    4. Recognition of symptoms;
    5. The need to report symptoms and seek medical assistance.
  3. The Claimant’s Training Records for all aspects of their work and, in particular, in respect of COSHH and PPE.
  4. Documents relating to enforcement procedures, including warnings given and disciplinary procedures taken against employees (particularly the Claimant) for failure to wear PPE and to follow the health and safety policies generally.

Health Surveillance

  1. Documents detailing any system of health surveillance (e.g. undertaken by who, when, how often and in respect of what).

Complaints or Comments and Action Taken

  1. Documents relating to any written or oral complaints or comments made by the Claimant or any other employees about symptoms or the system(s) of work.
  2. Documents detailing the insured’s response to any such complaints or comments and what action was taken, if any.
  3. All correspondence passing between the insured and the Health & Safety Executive regarding this incident or any other similar matters. 

Wages, Benefits and Absences

  1. Details of the Claimant’s net weekly pre-absence earnings for a period of 13 weeks.
  2. Details of all payments made to the Claimant during any periods of absence from work due to the alleged injury.
  3. Details of any Permanent Health Insurance scheme and, where applicable, details of any payments made.
  4. The Claimant’s Absence Record (including all absences due to sickness, holidays, training etc).
  5. If the Claimant was moved to alternative work:
    1. Details of the pay in the new job compared with the old job (including differences in shift allowances and bonuses).
  6. If the Claimant’s employment was terminated:
    1. The date on which the employment ceased;
    2. All letters and documentation relating to the termination.
  7. If the Claimant was made redundant:
    1. All documents relating to the redundancy, including the selection procedure, details of payments made etc.
  8. Pension details, if applicable:
    1. Pension Handbook;
    2. Pension Statements;
    3. Copy correspondence confirming details of how the pension would be affected (if the Claimant’s employment was terminated or made redundant).

Confidential Records

  1. Works’ Medical Records/Occupational Health Records.
  2. Personnel File (including Contract of Employment and job description).

 

[1] www.asthma.org.uk

[2] www.asthma.org.uk

[3] www.asthma.org.uk

[4] SWORD is the Surveillance of work-related and occupational respiratory disease, a scheme which aims to determine the scale and patterns of work-related respiratory disease in the UK.  418 respiratory physicians participate in reporting occupational respiratory disease.  In 2002, SWORD plus several other schemes were relaunched as THOR, The Health and Occupational Asthma in Great Britain 2014, HSE.    

[5] Henneberger PK, Redlich CA, Callahan DB et al. An official American Thoracic Society Statement: Work Exacerbated Asthma. Am J Respir Crit Care Med. 2011; 184:368-378.

[6] Nicholson et al. 2005

[7] HSE, ‘Work aggravated asthma: A review of reviews’; Lisa Bradshaw and David Fishwick, Health and safety Laboratory

2014; RR1005 Research Report   

[8] Nicholson et al. 2005

[9] HSE, ‘Work aggravated asthma: A review of reviews’; Lisa Bradshaw and David Fishwick, Health and safety Laboratory 2014; RR1005 Research Report