While the frequency of antibiotic resistance continues to rise, the effect on liability loss mitigation remains unclear. Academic and official interest in antibiotic resistance has been focussed on long term public health risk assessment  but fails to express the problem in terms that could assist with liability exposure risk assessments. There are two extremes which are obvious. 1) every infected liability-related injury fails to respond to all known antibiotics. In this case the claimant relies on their own immune system to fight off infection. Surgery and boosting immune competence could assist if provided in the early stages. For liability insurers there would be increased medical costs and a more severe injury to compensate. 2)  when one antibiotic fails, another one is tried and works. In this case the effect on liability exposure is a marginally more severe loss to the claimant and a small increase in medical costs. Should liability insurers be worried? The answer really depends

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

The ELD introduces a common framework for the assessment of damage, standards and financing of remediation. Many of the provisions already operate in England, Wales and NI. New defences are proposed but, in our view, would have limited scope if the directive is transposed as described in this consultation. New liabilities for remediation following release of micro and macro organisms are identified. New options of complementary and compensatory remediation are likely to be introduced. The Government proposes to resist the use of a “permit” and “development risk” defences. The ELD creates the possibility of using these defences but each jurisdiction can define the scope that applies. The choice of scope could be challenged. In our view, insurance against the costs of remediation would not experience a step change as a result of this directive and the way the UK government intends to transpose it. Liabilities to third parties would probably be unaffected though there may be more scope fo

In our view, that CBT works at all tends to confirm the relative immateriality of factual events such as a viral disease or an RTA in the aetiology of these affective disorders. They are probably illnesses of belief and perception. Evidence from: D Chambers et al. Journal of the Royal Society of Medicine. (2006) Vol.99 p 506-520 “Interventions for the treatment, management and rehabilitation of patients with chronic fatigue syndrome/ myalgic encephalomyelitis: an updated systematic review” Further detail: 6#7-8 28

The report identifies best practice for case management and finds good evidence that this approach is cost effective. It is an approach that is increasingly being adopted by the larger firms. Evidence from: HSE Research Report RR493 “The costs and benefits of active case management and rehabilitation for musculoskeletal disorders” The report lays out the key qualities of a case manager. Further detail: 6#5-6 51

Research clearly shows that being out of work leads to reduced health. Return to work leads to improved health. Evidence from: G Waddell and K Burton. The Stationery Office 2006. “Is work good for your health and well-being?” When people return to work from unemployment their health improves. Returning to work from unemployment improves health by as much as unemployment damages it. Further detail: 6#5-6 50

Epidemiological research of work related neck and upper limb problems showed that effective prevention, retention and rehabilitation of upper limb symptoms is probably much more complex than hitherto allowed for. Evidence from: PM Bongers et al. J. Occup. Rehabil (2006) Vol. 16 p 279 – 302 “Epidemiology of work related neck and upper limb problems: Psychosocial and personal risk factors (Part I) and effective interventions from a bio behavioural perspective (Part II)” For upper limb pain, a consensus approach to problem solving has been promoted by HSE for several years now. Guidance for this [HSG60 (2002)] however, still relies on extrapolations made from high exposure situations and may unduly encourage the view that physical exposures are the main problem. Further detail: 6#5-6 49

Although hampered by a lack of evidence on effective secondary prevention, the conference concluded that a team approach to retention and rehabilitation was theoretically justifiable. This response seems to reinforce the idea of maintaining professional boundaries; the current evidence is that case managers are better at enabling rehabilitation than are teams of delineated professionals. Evidence from: M Feuerstein et al. J Occup Rehabil (2006) Vol. 16 p 401 – 409 “Secondary prevention of work-related upper extremity disorders: recommendations from the Annapolis conference” There is also a proposal that the apparent failure of ergonomic interventions could be due to the highly dynamic nature of work organisation and circumstances i.e. it would not be surprising to find that an intervention failed if the system of work it was designed to meet was changed a week later. Further detail:6#5-6 48  

A review of research into work hours and postures while using a computer keyboard. The review finds that hours and posture are associated with adverse upper limb symptoms often enough to consider that an association is meaningful. Symptoms are not the same as injuries. Evidence from: F Gerr et al. J Occup. Rehab. (2006) Vol.16 p 265 – 277 “Keyboard use and musculoskeletal outcomes among computer users” The authors conclude that exposure measurement is a key weakness of studies of proposed links between keyboard use and upper limb symptoms. As it stands there is a slight balance in favour of a conclusion that longer hours of use increase the rate of adverse hand/arm symptoms. Further detail: 6#5-6 38

The department of health provides for the formation of multidisciplinary teams to manage musculoskeletal disorders. Coordination of rehabilitative efforts seems to have been left to chance; leaving an opportunity for private case managers to exploit. Evidence from: Department of Health June 2006 “The Musculoskeletal Services Framework” The Framework identifies a lack of organised provision of rehabilitation services and interventions. This provides an opportunity for the private sector to step in. Where the disorder is work-related this could involve a liability insurer. Further detail. 6#5-6 37

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  

Interventions at six to 26 weeks of sickness absence did not improve the return to work rate. Evidence from: DWP RR342 “Impacts of the Job Retention and Rehabilitation Pilot (JRRP)” This was a complex trial of state-of-the-art interventions for people at risk of long term worklessness as a result of medical status. One possibility is that medical status and work place risk factors were not the real reason why people became workless. Insurers should hesitate to assume that medical service providers can contribute to indemnity. Further detail: 6#1 43

Tackling work-related stress: a managers’ guide to improving and maintaining employee health and well-being. The new guide provides seven broad categories of management that could influence a person’s sense of well being. These are: • culture, • demands, • control, • interpersonal relationships, • change, • role clarity, and • individual factors such as training/skills/previous episodes. Evidence from: HSG 218. Comments While it may be that stress itself is the adverse outcome HSE seeks to address, stress is not in fact an injury. In short, standards for prevention of stress may have only a tenuous link with prevention of injury and as such would arguably be of little relevance to liability assessment. The experience of stress cannot be objectively measured, nor can it be precisely related to injury outcomes. The Radar report identifies several opportunities for defence should these guidance notes be used in evidence in claims. The Radar report is available to subscribers: SK 1#6 6 HSE

Causation of mental breakdown has been accepted in some circumstances. Researchers usually study lower degrees of distress, and assume that causation would translate to the more serious outcomes. Causal direction and correction for personality traits is usually unclear. Even so, this is the research used by policy makers to define duty of care standards and  performance targets. Evidence from: J deJonge et al. Journal of Occupational and Organisational Psychology. Mar (2001) Vol.74 #1 p.29. The most interesting result is that emotional exhaustion predicted high, perceived job-demand and not the reverse. Emotional exhaustion could be anticipated to play a role in the development of psychological ill health. But this study seems to show that perceived job demands were not causal. The Radar report is available to subscribers: SK 1#3 6 Evidence from: A Tsutsumi et al. Scandinavian Journal of Work, Environment and Health. Apr (2001) Vol.27 #2 p 146. The authors conclude that job strain and

Duty of care standards apply to primary prevention and response to failure of primary prevention. Mitigation is regarded as a matter for the claimant. This may be more effective if done with the assistance of the tortfeasor/insurer. Evidence from: STalo et al. International Journal of Rehabilitation Research. March (2001) Vol.24 #1 p25. Pain management programmes have variable success in chronic pain cases. The study was designed to test whether cognitive behavioural therapy (CBT) would work, and for whom. The Radar report is available to subscribers: SK 1#3 2   Evidence from: JB Prins et al. The Lancet. March (2001) Vol. 357 #9259 p.841. This study provides convincing evidence that training in CBT can be effectively provided to non-specialists and that CBT can make significant improvements in functional activity. The Radar report is available to subscribers: SK 1#3 3   Evidence from: C Marhold et al. Pain. March (2001) Vol.91 #1-2 p.155. CBT treatment worked to a statistical

Identification of risk factors is a sensible precursor to designing interventions and seeing if they work as expected. It would seem obvious then that if a supposed risk factor turns out not to be valid then it should not feature in intervention studies or duty of care standards. Evidence from:  M.Hakkanen et al. Occupational and Environmental Medicine (2001) Vol.58 #2 p.129. Results show that the most significant risk factor for absence with diagnosable arm, neck and shoulder disorders is age: Age 30-40 Risk Ratio = 2.9 (95% confidence interval 1.2 to 7.1). High physical load was protective. The Radar report is available to subscribers: SK 1#2 5 Evidence from: G.A.M.Ariens et al. Occupational and Environmental Medicine (2001) Vol.58 #3 p.200. Among those sitting, neck pain (but not a diagnosis) was more likely if the neck was flexed by 20 degrees for more than 70% of the time. The Radar report is available to subscribers: SK 1#2 6 Evidence from: RSI conference 2nd March 2001. RSI was

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

Seeking a diagnosis of asthma depends on how severe it is. This study avoided self selection by following a cohort for 22 years. It found that symptoms of asthma (not diagnosed) and atopy were predictive of adult asthma. The implied defence is that adult asthma was very likely to happen regardless of any specific negligent exposure. Evidence from: HL Rhodes et al. Journal of Allergy and Clinical Immunology. November (2001) Vol. 108 #5. p. 720. A longitudinal study of early life risk factors for adult asthma. Cases of adult onset asthma should regarded as having a potential environmental cause. However, increased severity of asthma in adult life may have an innocent explanation. Risk factors for adult asthma may be useful in deciding the degree to which other causes are investigated. This was a prospective cohort study of 100 babies, born to atopic parents. Bronchial hyperresponsiveness was measured at 11 and 22 yrs. Annual check-up in first 5 years. 73 were followed up at 5 years, 67 a

People with COPD can become increasingly disabled by frailty associated with muscle wasting. early opinions about this are presented in the report. It may be possible to intervene. Claims for COPD should include some element of anticipation of prolonged infirmity. Evidence from: MB Reid. American Journal of Respiratory and Critical Care Medicine. October (2001) Vol. 164 #7 p1101. Editorial on COPD and muscle wasting. Muscle loss commonly occurs in COPD. This is partly because of the effects chronic inflammation (Am. J. Resp. Crit. Care. Med. 2001 vol. 164#8 p1414) but partly because of metabolic imbalances. But are these cause or effect? The editor favours effect, possibly due to prolonged inactivity/deterioration. But according to Am. J. Resp. Crit. Care Med. 2001 Vol. 164#9 p 1712 muscle loss is selective, the diaphragm remains strong preferentially. This argues against a genetic cause of muscle wasting. It would also seem to argue against the distal effects of chronic inflammation.

Compared with GP directed care, care at a special rehab clinic was cheaper,and more effective at preventing transition to chronicity. The clinic made greater use of local pain killing injections rather than general systemic pain killers. Evidence from: B McGuirk et al. Spine. December (2001) Vol. 26 #23 p2615 The Radar report is available to subscribers: 1#12 2

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

In principle, the NHS+ service will broaden reasonably practicable access to health screening, pre placement medicals , rehabilitative expertise and guidance on prevention. There will be less acceptance of SME’s not doing the right thing. A small change in liability insurance exposure is foreseeable. NHS+ Launch 19th November 2001 NHS+ is an Occupational Health service now being offered by NHS Trusts to their local communities in exchange for money. Any profits should be reinvested in the local service, there is no central organisation taking money out of the local schemes. When the NHS was established, occupational health services were not included in the core requirements, even though the health/work link was a strong feature of the debate at the time. For many years, NHS staff had limited occupational health support for their own needs, but staff shortages, under performance, sickness absence and ill health retirement costs have led to the creation of comprehensive services wh