Many parts of the world have experienced a period when infection status testing became reliable and meaningful. However, the expected success of the much awaited vaccines, now about to be approved, will inevitably create testing uncertainty, provide greater opportunities for false claims and create new costs for liability insurers. Regulators should consider making a requirement for double testing. This would not only protect citizens from unwarranted restrictions of personal freedom and associated costs but would create reasonable certainty of facts at common law. A Limitation period of three years will create ample opportunities for claims supported by doubtful evidence.

Science is not the decider of fact. For example, cancer is probably the result of an accumulation within a given cell, of seven or so genetic changes, but the courts decide that any given cancer does not have a cumulative cause. The scientific probability of it not being cumulative in nature is very small indeed but the legal fact (following the Phurnacite case) is that it is not. For example, among those who make a claim for whiplash if 65% are actually injured and the test is 80% accurate then the Bayesian odds of making a diagnosis is six to one. The inference is that 86% will be diagnosed! Yet if a random sample of the population is assessed (annual prevalence ~ 1%), the odds are worse than eleven to one (against) that anyone given a whiplash diagnosis actually has such an injury. Given these scientific ‘facts’, the court would be forgiven for deciding either there was no such thing as whiplash or in the alternate, that everyone who makes a claim must be injured and it

Evidence from: Weightmans 4th May 2006. “CIT Robberies raise PI claims” USEPA “High Production Volume Information System” PD Darbre. J Applied Tox. (2006) Vol.26 p 191 -197 “Metalloestrogens: an emerging class of inorganic xenoestrogens with potential to add to the oestrogenic burden of the human breast” Food Standards Agency Project T07011 “Immunochemical reactivity to peanuts and nuts in allergic individuals” EFSA Scientific Report (2006) Vol.84 p 1 – 102 “Dimethoate” USEPA “Ships as Artificial Reefs” Further detail: 6#5-6 54 BB

Sleep disturbance is known to affect safety performance in drivers. Some forms of sleep disturbance are innate and should lead to reassessment of suitability to hold a commercial vehicle license. Evidence from: CHEST (2006) Vol. 130 p 902 – 905 “Sleep Apnoea and Commercial Motor Vehicle Operators” Well managed obstructive sleep apnoea should not be a bar to holding a license. The guidance provides an incentive to drivers to engage with medical help (which has been shown to be very effective in these cases) and demonstrate compliance with prescription. Further detail: 6#5-6 32

Evidence from: H Boggild. Scand J Work Env Health (2006) Vol. 32(1) p 20 – 21 “Ischaemia and low-back pain – is it time to include lumbar angina as a cardiovascular disease?” D Ambroise et al. Scand J Work Env Health (2006) Vol. 32(1) p 22 – 31 “Update of a meta analysis on lung cancer and welding” RG Ellis-Behnke et al. PNAS March (2006) Vol.103(13) p 5054 – 5059 “Nano neuro knitting: Peptide nanofiber scaffold for brain repair and axon regeneration with functional return of vision” DA Moneret-Vautrin et al. Allergy (2006) Vol.61 p 507 – 513 “Probiotics may be unsafe in infants allergic to cows milk” Further detail: 6#3-4 46BB  

Evidence from: US EPA Feb 2006 EPA 600/R-05/004aF “Air Quality Criteria for Ozone and Related Photochemical Oxidants” FSA Press Release 16th March 2006. “Farley’s Recalls Soya Formula” Neutral Citation Number: [2006] EWHC 166 (QB) Case No: HQ 04X03327 “Between C and D” KM Venables et al. Occup Environ Med (2006) Vol.63 p 159–167. “Occupational health needs of universities: a review with an emphasis on the United Kingdom” JM teWaterNaude et al. Occup Environ Med (2006) Vol.63:187–192. “Tuberculosis and silica exposure in South African gold miners” MH Ward et al. Epidemiology (2006) Vol.17 p 375 – 382. “Risk of Non-Hodgkin Lymphoma and Nitrate and Nitrite From Drinking Water and Diet” SJ Chang et al. J Occ Env Med (2006) Vol.48 p 394 – 399 “Electrocardiographic Abnormality for Workers Exposed to Carbon Disulfide at a Viscose Rayon Plant” Further detail: 6#3-4 42BB

Evidence from: Industrial Injuries Advisory Council Position Paper 17 “Interstitial Fibrosis in Coal Workers” HA Cowie et al. Occup Environ Med (2006) Vol.63 p 320–325. “Dust related risks of clinically relevant lung functional deficits” Friends of the Earth May 2006. “Nanomaterials, sunscreens and cosmetics: small ingredients big risks” Further detail: 6#3-4 41BB

This very small study found evidence that could one day be used as part of an objective evaluation of hand-arm vibration syndrome. Nerve damage of this sort is not reversible but could have many alternate causes. Loss of sensory nerves in the skin, to this degree, on its own, would usually lead to mild impairment. Evidence from: HW Liang et al. J Occ Env Med (2006) Vol.48 p 549 – 555 “Reduced Epidermal Nerve Density Among Hand-Transmitted Vibration-Exposed Workers” Further detail: 6#3-4 38

Voice loss is a very general term including a wide range of impairments. There is detailed guidance on the prevention of voice loss but this is based on expert opinion and is untested in field research. IIAC concluded that diagnosis, causation and impairment were all too uncertain to warrant inclusion as a prescribed disease. Evidence from: Industrial Injuries Advisory Council (IIAC). Position Paper 16. March 2006. “Occupational Voice Loss” Further detail: 6#3-4 37

The report confirms a causal link between exposure to contaminated metalworking fluids and extrinsic allergic alveolitis. Evidence from: DWP IIAC Cm6867 “Extrinsic Allergic Alveolitis” EAA is a very rare disease and can almost always be traced to an occupational exposure. When a disease could arise from several possible causes IIAC look for evidence of a doubling of risk associated with an occupational cause. No such statistical evidence was available for EAA in respect of metalworking fluids; IIAC relied upon the rarity of the disease to conclude that it was too much of a coincidence that one workplace would have more than one case. Further detail: 6#3-4 35

‘Well being’ is not the opposite of ‘ill being’. Causes for one are not necessarily mirror images of causes for the other. Evidence from: CD Ryff et al. Psychother Psychosom (2006) Vol.75 p 85–95 “Psychological Well-Being and Ill-Being: Do They Have Distinct or Mirrored Biological Correlates?” The problem is that duty of care will be established on the basis of linear logic: if x is a cause of stress then stop doing x or provide more of the opposite of x. The logic has been assumed rather than validated. This research shows the assumption is unsound in more ways than it was sound. Further detail: 6#3-4 34

Further evidence that cortisol levels are an unreliable witness for stress, undermining earlier confidence in their role in disease causation, related to stress. Evidence from: PMC Mommersteeg et al. Psychoneuroendocrinology (2006) Vol.31 p 216 – 225 “Clinical burnout is not reflected in the cortisol awakening response, the day-curve or the response to a low-dose dexamethasone suppression test” Seventy five burnout cases were compared with thirty five controls. The cortisol response upon wakening was identical in both groups as was the response to dexamethasone (the test here is of the responsiveness of the endocrine system). Further detail: 6#3-4 33

The research aimed to develop a commonly agreed framework for the determination of a case of work related stress. The framework would primarily be used for research work but it was hoped that it could also be used in occupational health and compensation. In our view, the framework is generally applicable but actual validity depends on the specification of the tools used and the assumed thresholds. It seems highly unlikely that a single set of tools and thresholds would be of general validity. In our view, expert (not GP) assessment is required for occupational and compensation-related determinations, but these could follow the framework suggested here. Evidence from: T Cox et al. HSE Research Report RR449 (2006) “Defining a case of work-related stress” The framework is logical but more work is needed to determine sensitivity and specificity. Further detail: 6#3-4 32

The Industrial Injuries Advisory Council has given detailed consideration of the prescription of work related upper limb disorders (PDA 4 to PDA12). Minor modifications are suggested. Other diagnoses were considered e.g. fibromyalgia but there was insufficient evidence on which to base new proposals. Non-specific arm pain does not meet the requirement that there be a positive diagnosis, as opposed to a diagnosis by exclusion. Views on several disorders could be informative for the determination of liability issues. Evidence from: DWP IIAC Cm6868 July 2006. “Work-related upper limb disorders” Extensive detail: 6#3-4 29

Diagnosis of pain problems depends very much on whether there is or ever has been tissue damage. Diagnostic methods will depend on causation assumptions and in turn, knowledge about causation depends on diagnostic method. the potential for circularity is apparent. In this setting, researchers attempt to identify diagnosis and causation. Evidence from: M Bennet. Pain. May (2001) Vol.92 #1-2 p 147 The diagnostic method in which variables were combined was found to have a sensitivity of 83% and specificity 87% with a corresponding positive predictive value of 86% and a negative predictive value of 84%. The test would tend to be used as evidence of tissue damage in RSI and back pain cases. The Radar report is available to subscribers: SK 1#5 2 Evidence from: C Meng et al. Journal of Rheumatology. June (2001) Vol. 28 #6 p 1271. Blood flow may be a response to or a cause of muscle pain. Either way its variation with MSD risk factor exposure would be of interest. This proof-of-principle study

OSHA (USA) have published a framework and supporting tools for the prevention and management of work-related musculoskeletal disorders. The approach is essentially one of responding to significant symptoms by first deciding if they are significant and then, caused by work. the latter includes cases where the initial injury was not at work but where work could slow recovery or aggravate the injury. By responding to symptoms, the standard selects the most vulnerable rather than the average worker. Evidence from: OSHA Ergonomics Standard and supporting evidence review. SK 1#2 1 Evidence from: Occupational Health Review May/June 2001 p 3 Confirmation that the “Ergonomics Standard” which was accepted in the last few days of the Clinton administration, has now been revoked. The standard has been discussed in detail in a previous issue of The State of Knowledge journal Vol. 1#2. The argument against the standard seems to have revolved around the economic burden on business. It is not clear th

This review was created at the outset of the Radar project. The summary here covers diagnosis, causation, foreseeability, duty of care, prognosis, rehabilitation, mitigation, exposure variation. Evidence from: Andrew@reliabilityoxford.co.uk Early attempts to audit stress risk were conceptually flawed. The Radar report is available to subscribers: SK 1#1 3

This review was created at the outset of the Radar project. A summary of the findings for diagnosis, causation, foreseeability, duty of care, prognosis, rehabilitation. Evidence from: andrew@reliabilityoxford.co.uk The Radar report is available to subscribers: SK 1#1 1

These draft guidelines cut through the unfounded professional attitudes to back pain including: bogus diagnoses, illegitimate statements about causation, alarmist prognoses, prognoses based on bio mechanical models and so on. Application of the guidelines should see greater accuracy of medical care and reductions in liability exposure, but only if they are used. Evidence from: N Bogduk. Draft- Evidence-Based Clinical Guidelines For The Management Of Acute Low Back Pain Table 6.1  of the draft guidelines is reproduced in the Radar report. It details which factors really do influence prognosis. The Radar report is available to subscribers: 1#12 1

Whiplash cases were compared with asymptomatic persons. For common law purposes this is the wrong control group unless, on the balance of probabilities, the claimant can show they had above average health prior to the index event. This choice of asymptomatic control group is of some interest to medics but even here the choice has limited application. It would be useful if a specific lesion can be identified in whiplash cases and ruled out in all other neck pain cases. Evidence from: PT Dall’Alba. Spine. October (2001) Vol. 26 #19 p 2090. A report of a study of Range of Movement (ROM) for whiplash neck injury victims who are symptomatic after 3 months but before two years from the date of injury. Reduced range of motion was detected vs. control group. Comment Although a computerised measurement system was deployed, the technique could be criticised for failing to ensure there could be no contribution from torso rotation. A more complete study would have measured fear of movement and, at

If BMI is a risk factor for asthma then it should also be a risk factor for atopy. But it isn’t, according to this study. The suggestion is that either atopy or asthma may be being misdiagnosed. Atopy is diagnosed by objective tests. Evidence from: E von Mutius et al. Thorax. November (2001) Vol.56 #11 p 835. Does body mass index (BMI) correlate with diagnosis of childhood asthma? 7505 children aged between 4 – 17 took part in the study. Extensive background details and medical exam for status. Physician diagnosis or treatment for asthma was used to identify asthmatics. Relative to lowest quartile, BMI, top quartile OR = 1.77 (95% CI = 1.44 to 2.19) BMI was not correlated with atopy. Comment Possible explanations include a high rate of false diagnosis (activity intolerance is used by many physicians as a clear sign of asthma or direct effect of being overweight on breathing or sensitisation of an inflammatory mechanisms?

The report provides some evidence that fear of movement is a good predictor of continued disability with back pain. This remained true even after correction for actual impairment and disability. Evidence from: JM Fritz et al. Pain. October (2001) Vol.94 #1 p 7. There are standard questionnaires to assess fear of movement. Degree of pain, and volitional disability would probably work just as well. The Radar report is available to subscribers: 1#10 7

Nerve function is affected by carpal tunnel syndrome (CTS). This paper suggests that testing nerve function before CTS is diagnosable will identify some of those who are on the path to injury. This would allow intervention if the cause was subject to a duty of care. The test will not be added to surveillance requirements until it is fully characterised. Evidence from: RA Werner et al. Muscle and Nerve. September (2001) Vol.24 #11 p 1462. The Radar report is available to subscribers: 1#10 5

Neck pain is commonplace and usually trivial. This paper reports the most common risk factors in people who are asked to think about neck pain. Being involved in a car accident often leads to people being asked to think about neck pain. Evidence from: PR Croft et al. Pain. September (2001) Vol.93 #3 p 317. The data provides a baseline against which the rate of whiplash claims can be estimated, assuming that causation is not needed before a claim is made but that there is some disability. This should be an extreme upper limit. For example, if there were 1 million RTAs per year the maximum number of non-cause claims would be 100,000. The Radar report is available to subscribers: 1#10 4