Nhs Injury Benefit Scheme · CAS-38314-K9K4

CAS-38314-K9K4

Ombudsman’s Determination Applicant Ms G

Scheme NHS Injury Benefit Scheme (the Scheme)

Respondent NHS BSA

Outcome

Complaint summary

Background information, including submissions from the parties The sequence of events is not in dispute, so I have only set out the salient points. I acknowledge there were other exchanges of information between all the parties.

Ms G was employed as a part-time Staff Nurse. She worked in a number of treatment suites (clinics) providing services for mental health users. Her employment ended in May/June 2015 on the grounds of ill health.

1 CAS-38314-K9K4 In December 2015, Ms G applied for a PIB. On form AW13, Ms G claimed tenosynovitis in her right arm caused by a vastly increased workload in February to May 2013 when her manager was absent from work.

In June 2017, Ms G appealed the decision invoking the Scheme’s two-stage Internal Dispute Resolution Procedure (IDRP). Ms G said:-

• She had “stage 3 severe (defused) RSI 1, fatigue and fibromyalgia”.

• She was permanently disabled and currently had a huge reduction in her overall standard and quality of life.

• There were no further improvements or treatments.

• She would never be capable of full-time employment.

• She had been diagnosed with asthma in 2013. She used an inhaler and sometimes was unable to leave her bed due to pain, shortness of breath, fatigue and lack of motivation.

• She sustained her injury at work through trauma, stress and rapid overuse of her upper limbs.

• She had been informed that it was not advisable for her to go back to mental health nursing as, if unfortunate circumstances arose, she would not have the strength, agility or reflexes to defend herself.

• It was clear that the work and pressures she was put through in February 2013, “managing, operating and running 3 clinics”, had a debilitating effect on her body.

• Her illness was aggravated in November 2014, during a phased return to work, using an archaic computer and mouse, despite instructing her employer (the Trust) four months earlier that she required an ergonomic assessment. Her manager was aware that she had soft tissue damage. RSI was diagnosed in June 2014.

• Her records showed she also had other “physical mosquito problems”, which all stemmed from the lack of good management by the Trust in February 2013.

1 Repetitive Strain Injury.

2 CAS-38314-K9K4 • As well as fibromyalgia and RSI her diagnoses included tenosynovitis, epicondylitis in both elbows (her right elbow had been operated on in 2017 and she was waiting for a date for her left elbow), trigger fingers, De Quervain’s disease and Reynaud’s syndrome “all caused by rapid overuse and lack of duty of care” by the Trust.

• Having considered Ms G’s appeal and the advice from the MA it was not satisfied that the injury for which Ms G had claimed a PIB was wholly or mainly attributable to her NHS employment.

• She had been in receipt of IIDB since 2014 “for loss of faculty, loss of power or function in my forearm, pain restricted movements of the right wrist with pain in right elbow”.

• At the beginning of 2013, she had already been referred to Occupational Health with anaemia, fatigue, fibroids and stress.

• She had been diagnosed with RSI in June 2014. It was a progressive condition. When NHS BSA made its decision, it failed to consider that it was at stage 3 (severe).

3 CAS-38314-K9K4 • Her RSI was brought on by the rapid overuse of her arms dealing with an increased workload while her manager was off sick in February to May 2013; and aggravated in October to November 2014 during a phased return to work.

• The pain had not gone away, instead it had developed into fibromyalgia and Sjorgen’s syndrome.

• The Trust failed to consider or acknowledge her injuries prior to her dismissal in 2015.

• She was currently receiving Employment Support Allowance (ESA).

• She was mentally and physically extremely ill. Raynaud’s syndrome, intersection syndrome, diffused RSI, De Quervain’s tendonitis, trigger fingers, IBS, fibromyalgia, Sjorgen’s syndrome, acute anxiety, depression and a stomach ulcer had been brought on by the overuse of her “physical being and extended emotional distress”, while completing her NHS role in February to May 2013.

• Her body was broken down due to trauma, stress and anxiety. She was now without a career and living with chronic pain, fatigue and anxiety every day. The whole situation was unfair and distressing.

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• An email dated 25 February 2013 from the Matron inviting Ms G and colleagues to a treatment suite meeting to discuss his role and how he could support and develop their services.

• Three emails dated 26 February 2013. The first from Ms G to the Matron and colleagues that she was not able to attend the meeting on her day off. Ms G says she is working at a clinic on her own today. She says this is not permitted and “goes beyond all our concerns and discussions with the union and management”. She says it is not acceptable and is causing undue stress for the team. The second and third emails are from the Matron. In the second the Matron asks two colleagues if either are available to cover the clinic. The Matron says he has enquired what is being done “to support around staffing” and asks for any other suggestions. In the third, the Matron confirms to Ms G that he has escalated her concern and asks Ms G to provide her contact details to that person.

• Emails sent in July, August and September 2013 pertaining to the team’s current work rota and cover.

• Emails dated 16 and 17 September 2015 pertaining to Ms G’s sickness absence, return to work and dismissal on grounds of ill health.

5 CAS-38314-K9K4 • Ms G’s email dated 3 January 2016 requesting a colleague to provide a statement about an incident on 25 September 2013.

• A six-week work rota beginning on 19 August 2013 and ending on 23 September 2013.

• Medical reports from Ms G’s treating clinicians pertaining to her health in 2019 and 2020.

NHS BSA’s position

2 Dr Parker’s (Occupational Health Physician) completion of Part C of Ms G’s ill health application form (AW33E). 6 CAS-38314-K9K4

Adjudicator’s Opinion

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The MA’s opinion was that there was no evidence that Ms G’s continuing upper limb symptoms had onset, or were attributable to a work injury, prior to 31 March 2013.

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The MA noted that further investigations in 2015 showed no evidence of tenosynovitis, epicondylitis or De Quervain’s disease. The MA agreed that there was no evidence to suggest that Ms G’s fibromyalgia and bilateral ulnar neuropathy were sustained during her NHS employment. The MA said the role of trauma as a trigger for fibromyalgia was disputed by the scientific/medical community. The current understanding was that physical trauma was not a significant causative factor in its development. Regarding ulnar nerve entrapment, nothing suggested that Ms G had undertaken unusual activities beyond the normal range of movements of the elbow joint as a nurse resulting in abnormal biomechanics. While repetitive movements of the elbow could exacerbate the condition there was no scientific evidence that it could cause the condition. On Ms G’s RSI claim, RSI was a progressive condition, but there was no definitive scientific evidence to suggest that RSI had a strong association with work activity.

For Ms G to pass the first question (Regulation 3) she had to demonstrate she had sustained an injury/contracted a disease prior to 31 March 2013. The MA’s doctors point to the fact that her first GP consultation was in 2014. The evidence she had presented seemed to consist of the emails from February 2013 which did not mention pain; just that she was working on her own. If, as she said, she was using Voltarol and whining in pain, the Adjudicator expected her to have mentioned this.

There did not appear to be a difference of medical opinion between Ms G’s treating doctors and the MA, but even if that was not the case, the Adjudicator was of the view that it was not sufficient for the Ombudsman to conclude that NHS BSA’s decision was not properly made.

There was nothing to suggest that any evidence had been ignored by NHS BSA and/or the MA, rather NHS BSA had given greater weight to the advice from the MA which it was entitled to do.

As Ms G’s claim did not satisfy the first part of the test for a PIB she could not have suffered a PLOEA in relation to the second part of the test as that question only arose if the first part of the test was passed.

Ms G did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. I have noted the additional points raised by Ms G but I agree with the Adjudicator’s Opinion.

9 CAS-38314-K9K4 Ms G’s further comments

Ombudsman’s decision

10 CAS-38314-K9K4 Ms G’s opinion clearly differs from NHS BSA’s and its MA. But, as the Adjudicator explained, a difference of medical opinion is not sufficient for me to be able to find that NHS BSA’s decision was not properly made.

I do not uphold Ms G’s complaint.

Anthony Arter

Pensions Ombudsman 2 March 2022

11 CAS-38314-K9K4 Appendix 1 The National Health Service (Injury Benefits) Regulations 1995 (SI1995/866) (as amended)

“3 Persons to whom the regulations apply

(1) Subject to paragraph (3), these Regulations apply to any person who, while he -

(a) is in the paid employment of an employing authority …

(hereinafter referred to in this regulation as “his employment”), sustains an injury before 31st March 2013, or contracts a disease before that date, to which paragraph (2) applies.

(2) This paragraph applies to an injury which is sustained and to a disease which is contracted in the course of the person's employment and which is wholly or mainly attributable to his employment and also to any other injury sustained and, similarly, to any other disease contracted, if -

(a) it is wholly or mainly attributable to the duties of his employment; …

(3) These Regulations shall not apply to a person -

(a) in relation to any injury or disease wholly or mainly due to, or seriously aggravated by, his own culpable negligence or misconduct;

(b) eligible to participate in a superannuation scheme established under section 1 of the Superannuation Act 1972.”

“4 Scale of benefits

(1) Benefits in accordance with this regulation shall be payable by the Secretary of State to any person to whom regulation 3(1) applies whose earning ability is permanently reduced by more than 10 per cent by reason of the injury or disease and who makes a claim in accordance with regulation 18A …”

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“It is noted that with regard to this Permanent Injury Benefit Application there can only be consideration of injury and onset of any related disease prior to 31/3/13.

[Ms G] had first sickness absence stated due to a musculoskeletal condition between 9/6/14 and 30/10/14. There was further absence due to this condition from 2/12/14 until 21/5/15 when her employed [status] ceased on such health grounds. The Employer states that there was no concern raised by [Ms G] about the above medical problem prior to the sickness absence process. She then states that in her opinion her wrist condition might have been caused by her work. There is no documentary record of an injury at work record.

[Ms G] has been accepted in July ’15 as meeting the criteria for an injury under the Industrial Injuries Disablement Benefit scheme and has been given an assessment from 26/12/14.

She applied for Ill Health Retirement in October ’15. In the Application form the Occupational Physician stated the condition contributing to incapacity was pain in the right hand and forearm since June 2014. It was added that evidence indicated that the cause of the forearm pain and functional problem with grip and dexterity was as yet undiagnosed and nerve conduction studies were awaited.

From the contemporaneous GP consultation records there was no consultation about an upper limb condition until 19/6/14 when it was noted [Ms G] had noticed a slowly growing lump in her right forearm of 8 months’ duration with intermittent numbness in her right hand. She was referred to Orthopaedics.

There have been varying diagnosis:

The Consultant Physiotherapist and Osteopath stated in November ’15 that [Ms G] had an 18 month history, (dating from mid 2014) of right upper limb problems and that previous investigation had not revealed evidence of

13 CAS-38314-K9K4 tenosynovitis or intersection syndrome. The opinion was offered that there could be a De Quervain’s Tenosynovitis.

In January 2016 the Plastic Surgery Doctor referred to a history given of pain and weakness in the right had which began in 2013. It was stated that treatment and investigation in 2015 had not demonstrated synovitis or tenosynovitis. The opinion was that she had intersection syndrome, De Quervain’s, triggering of right thumb and lateral epicondylitis.

In March’15 the GP stated that [Ms G] had suffered right forearm pain for almost a year, a resistant tendonitis problem.

There has also been evidence of an ulnar nerve condition.

It is acknowledged that [Ms G] has experienced upper limb symptoms leading to sickness absence from mid 2014. The contemporaneous GP records do not support the history, later given in 2016, that there were symptoms from 2013. The Occupational Physician does not refer to a work related cause for symptoms which had begun in June 2014. The Employer has no record of concerns being raised about an upper limb condition prior to sickness absence and there is no documented injury or incident at work.

It is therefore advised that there is no evidence that the continuing upper limb symptoms had onset, or are attributable to work injury, prior to 31/3/13.”

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“There is some uncertainty as to when [Ms G’s] symptoms began. The various medical reports contain conflicting information about this. The earliest entry in the GP records that appear relevant is an entry from 19 June 2014 when [Ms G] sought advice regarding a forearm swelling that she reported had been present for around 8 months. This would suggest that she first noticed symptoms in late 2013.

It is certainly the case that [Ms G’s] symptoms were first attributed to tenosynovitis. Many of the older medical reports refer to this diagnosis. This attribution appears to have been made on clinical grounds, i.e. on the basis of the findings on examination. However, imaging of [Ms G’s] forearm did not substantiate this diagnosis. The earliest imaging, an MRI scan of the right forearm undertaken on 23 July 2014, is reported by Dr Whitehouse as showing no tenosynovitis. A subsequent ultrasound scan undertaken in July 2015 and reported by Dr Kirwadi similarly shows no evidence of tenosynovitis, tendonitis or intersection syndrome.

It now appears more likely that [Ms G’s] symptoms are attributable to fibromyalgia and bilateral compression of the ulnar nerves at the elbows. The diagnosis of fibromyalgia was not made until this year. The neve compression was diagnosed in early in 2016. It is also possible that [Ms G] has an underlying connective tissue disorder as well that is contributing to her symptoms. However, there appear to be differing views on this. The key point is that there is no objective evidence that [Ms G] has, or has ever had, tenosynovitis.”

“Fibromyalgia is currently understood to be a disorder of central pain processing. The way in which it develops is not fully understood. It appears

3 Part C of Ms G’s Ill health retirement application.

15 CAS-38314-K9K4 likely that there is a genetic component as suggested by family studies. The role of trauma as a trigger for fibromyalgia has been highly contentious. However, numerous controlled investigations on this issue are now available. It is my understanding that the weight of this evidence does not support physical trauma as a significant causative factor in the development of fibromyalgia. Entrapment of the ulnar nerve is common. There are multiple factors that can give rise to it. Occupational activities that require repetitive extension and flexion of the elbow can exacerbate the symptoms of this condition. However, I am aware of no evidence that they actually cause it.

In summary, [Ms G’s] upper limb symptoms were originally attributed to tenosynovitis, which is the likely reason she was awarded IIDB for this condition. However, there does not appear to be a close temporal relationship between the reported work activity and the onset of [Ms G’s] symptoms and, in any event, with benefit of hindsight it is now considered more likely that her symptoms were actually the result of fibromyalgia and ulnar nerve entrapment.

Based on the evidence presented, I conclude that the applicant has NOT sustained an injury or contracted a disease wholly or mainly attributable to the duties of the NHS employment prior to 31 March 2013.”

“[Ms G] claims that she was referred to occupational health with anaemia, fatigue and stress at the commencement of 2013. Her fatigue could be related to anaemia. Anaemia is not work-induced. Therefore they are not related to fibromyalgia or ulnar neuropathy. I note that she has indicated that she has suffered from stress. Although stress can manifest as physical symptoms [such as] palpitations, headaches, it is not known to result in musculoskeletal symptoms.

[Ms G’s] symptoms were first attributed to tenosynovitis. The attribution appears to have been made on the findings of clinical examination.

4 As listed in paragraph 41 above.

16 CAS-38314-K9K4 Investigations undertaken have not substantiated the diagnosis. An MRI scan of the right forearm undertaken on 23 July 2014 did not identify any inflammation of the tendons. A further investigation undertaken (ultrasound scan) during July 2015, and reported by Dr Kirwadi shows no evidence of tenosynovitis, epicondylitis or De Quervain’s disease.

Based on the review of the medical evidence, there is nothing to suggest that [Ms G] has had tenosynovitis or a work-related musculoskeletal disorder.”

“As regards to entrapment of ulnar nerve, there is nothing to suggest that she undertook unusual activities beyond the normal range of movements of elbow joint as a nursing sister resulting in abnormal biomechanics. There is no scientific evidence to suggest that repetitive movements of the elbow can result/cause ulnar nerve entrapment. Although repetitive extension and flexion (bending and straightening) of the elbow can exacerbate symptoms of the above condition.

She has fibromyalgia. This condition is a disorder of pain processing. The role of trauma as a trigger for fibromyalgia is disputed by the scientific /medical community. The current understanding is that physical trauma is not a significant causative factor in the development of fibromyalgia.

And regards to her claim that RSI is a progressive condition, the existence of a condition with no physical findings is unique in medicine, and RSI fits in the above definition. There is no definitive scientific evidence to suggest that the RSI (non-specific upper limb pain) has strong association with work activity. The causation has not been proven by acceptable scientific methods, there is a lack of the strength of association (i.e. workers everywhere should get similar symptoms irrespective of their place of work/sector worked/country), and the length of symptoms after eliminating suspected trigger (work). Non- specific upper limb pain should respond to appropriate pain management, and therefore cannot be considered as progressive.

Based on the evidence presented to me, I conclude that the applicant has NOT sustained an injury or contracted a disease wholly or mainly attributable to the duties of the NHS employment prior to 31 March 2013.”

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