Insurance Post

That kneeling feeling

The Industrial Injuries Advisory Council has recommended osteoarthritis of the knee be prescribed to the Department for Work and Pensions. Veronica Cowan reports on the issues facing insurers if the recommendation is acted upon

Osteoarthritis of the knee is a common, progressive and permanent disorder, not to be confused with bursitis or subcutaneous cellulitis of the knee (beat knee) which tends to be transient and is already a prescribed disease in miners. The Industrial Injuries Advisory Council, which recommends prescription to the Department for Work and Pensions for the purposes of disability benefit, has reconsidered its 1995 rejection of osteoarthritis of the knee in coal miners, and in August 2008 recommended that the condition be prescribed in relation to work as an underground miner for 10 years or more in aggregate; but any service from 1986 should be in specific categories of mining. The DWP has yet to act on this recommendation.

So, how significant is beat knee in relation to other occupational diseases? Commentators say there are practically no claims for beat knee these days, although there are claims for osteoarthritis. Yet there seems to be a degree of confusion. QBE's head of strategic claims management, Mike Noonan, comments: "Workers may label their condition as bursitis, and may or may not have had beat knee. Solicitors want to call it beat knee, as it is well known, which raises issues of wear and tear and is more vague."

David Kidman, a solicitor in the occupational disease team at Berrymans Lace Mawer, adds: "We very rarely get beat knee claims. Having spoken to one of our insurance clients, they have not seen any increase in such claims, which remain very rare, particularly outside the coal mining industry."

He adds that there is considerable scope for knee claims to be misdiagnosed. "A claimant with pre-existing osteoarthritis could suffer pain carrying out many different activities, including kneeling. A claim could be misdiagnosed as beat knee where the claimant suffers pain when kneeling, even though that pain actually arises from osteoarthritis."

While beat knee claims seem to have come and gone, Neil Hackett, manager of the disease and illness unit at loss adjuster Garwyn, points to a new generation of claims for osteoarthritic conditions of the knee, and wonders whether the IIAC's recommendation will provide fresh impetus for these claims in industries where there is no association with mining.

Mr Hackett confirms he is dealing with such claims, but declines to name the industry generating them on the grounds of client confidentiality. "They may be a trickle now but could be a tsunami in a couple of years," he warns, adding that the attempt to attribute degenerative changes to occupation should be a cause for concern. He says that claims handlers need to "marshal expert evidence, rather than making economic settlements, to avoid such claims filling the void left by pleural plaques".

Jim Byard, occupational disease partner at Weightmans, notes that the IIAC has put strict criteria on prescription "but it will bring it to attention and claims farmers could step in".

Meanwhile, the group litigation case (Davies and Others) in relation to claims for chronic knee injury against the Department for Business, Enterprise and Regulatory Reform - as successor to the British Coal Board - is of concern to insurers who fear the government will cave in because of union pressure.

Mark Treacher, insurance partner at law firm DWF, points out that the government faced around 15,000 beat knee claims from current and former coal miners in 2005. "It has come under sustained pressure from unions and solicitors to implement a compensation scheme. The test cases are clearly an attempt to impose such a scheme on the government."

An important issue

Peter Anson, a partner at DLA Piper, remarks: "The case should be robustly defended, but the government has not got a good track record - for example, on respiratory disease and vibration white finger." He points out that knee problems are an important issue, as osteoarthritis tends to be an old person's problem so it could be costly, and if the government pays this would set a precedent.

There is a worry on the part of insurers that the government will allow politics to get in the way, and pay compensation. However, it does not sound as if it is planning to, at least not yet. A spokeswoman for the department asserts: "It would not be right for the government to devise a compensation scheme without a legal judgment on liability first."

Defending the group action on the department's behalf is Nicola Loadsman, a partner at Nabarro, who is looking at a trial window of March 2009 to July 2010, and waiting for a High Court judge to be assigned so they can get substantive directions. She says beat knee is irrelevant as it is only temporary, adding: "Osteoarthritis is not to do with a one-off traumatic injury but the claimants are arguing that there has been repeated minor trauma over a sustained period, resulting in long-term consequences.

"They hope that formulating the claim in this way will get round the limitation point but miners have been aware of their ability to claim for one-off traumatic accidents linked to work for some time."

Mr Treacher observes that where the current crop of claims seems to differ from traditional beat knee cases is in the type of injury. Referring to the IIAC's list of prescribed diseases, he comments: "PD A6 describes bursitis as inflammation of the bursa, behind the kneecap. The test cases describe two knee conditions - osteoarthritis, in which cartilage is worn away, and damage to the cartilage tissue. Where traditional bursitis seems to be more directly related to repeated movement and trauma, these new cases may also be directly influenced by other factors."

As to more specific claimant details, Andrew Tucker, a partner at Irwin Mitchell, one of the firms behind the litigation, explains that the central claim is based on the demands of mining, which traumatises the knee and later becomes osteoarthritis, leading in some cases to knee replacements. Onset is from 40 years of age, and the aspects causing or contributing to the condition are kneeling, crawling, carrying heavy weights over rough ground, and heavy work in difficult conditions, putting pressure on the knee. While the IIAC recommendation does not prove anything, he remarks that, on the basis of past history of litigating industrial disease claims, where there is prescription, litigation tends to be successful. He notes that the DWP has not yet accepted the IIAC report but that it has the power to add the condition to the list by statutory instrument. While funding has been extremely difficult for group actions, Mr Tucker reports that the claimants have a mixture of public and union funding, with a fixed contribution of legal aid.

Causation and knowledge

Mr Hackett says the battleground in these cases will be principally on arguments of causation and knowledge. Do law firms agree? In Davies, causation, knowledge and apportionment are the main issues, says Ms Loadsman. Progression of osteoarthritis was not known until relatively recently, so the employer did not know of the mechanism behind it, nor could they be expected to. Moreover, even if they had known, what could have been done to prevent it? "The issue is not what is known now but what was known between 1954 and 1994," she says.

Unlike Mr Tucker, Ms Loadsman does not believe the recommendation for prescription will assist claimants, as there has not been much divergence of medical opinion. However, Mr Anson comments that claimants will see it as encouragement, despite the fact causation must still be shown.

If the test cases do succeed, the department may be keen to avoid further litigation and implement a scheme for sufferers, says Mr Treacher, adding: "To avoid another feeding frenzy for lawyers, it may simply exclude them from any scheme for knee claims, although a scheme would have to be simplified for it to be said that claimants did not require a lawyer to act for them."

There is not much guidance available to employers about the condition and Mr Kidman observes: "It would take a significant amount of time spent kneeling for a foreseeable risk to arise. In an epidemiological study by Kivimaki et al in 1992 they observed carpet layers kneeling for approximately 42% of the time. Not many jobs would require kneeling for such extended periods of time." Mr Hackett says medical research has generated few practical recommendations for industry on reducing the risk, and in respect to occupation and leisure activities, there have been few studies directed at the question of what type of activity, or what kind of use of the knee, might cause knee osteoarthritis. Ms Loadsman remarks: "Osteoarthritis is a multi-factorial disease, with obesity, family history, sporting activities and predisposition all playing a part. In addition, a claimant might have multi-sited osteoarthritis, which would demonstrate this."

Stumbling block

On the statute-barred issue, Mr Tucker does not believe the Limitation Act 1980 will be a stumbling block but his understanding is that the government is asking the court for a trial of the preliminary issue on limitation. Where there have been different employers, would asbestos-related cases like Fairchild be pertinent? Mr Kidman says not, observing that in relation to apportionment between different employers, the position would likely be similar to cumulative back injuries. "In some cases, you would just look to the present employer - for example, where there is a sudden increase in time spent kneeling and a rapid onset of symptoms. Whereas in many other cases you might look to previous employers as well, on the basis that the condition has slowly built up over time, with two or more employers potentially to blame. In that sense, it can be treated as a 'divisible' injury. It is entirely different to mesothelioma and the Fairchild case, where that condition is indivisible."

Those at risk are often given kneeling pads, so are there any risk management measures insurers would recommend? Mr Noonan says that such measures would include time limits and some kind of cushioning, although there is a debate as to whether the latter exacerbates or mitigates. In addition, cleanliness can help, and even surface engineering to take out unsafe posture and better ergonomics.

A crucial question for the insurance industry is which employment groups are emerging as potential casualties for the future? Ms Loadsman foresees issues around the construction and shipbuilding industries, and anyone working in a confined space. According to Mr Treacher, claims for knee-related damage have been infrequent and dealt with by insurers on an individual basis.

"Most current employers engaged in trades involving repeated crawling and kneeling issue knee-pads. Unless a trade involves activities comparable to mining, it is not clear that the test litigation or a government scheme will assist other workers. Many trades involve kneeling and squatting, such as carpet fitters, engineers, mechanics - the list goes on - but it is unlikely that employers will be liable for knee injuries except in the most extreme cases. Manual workers will have an uphill struggle to show negligence and causation in claims of this type."

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