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Vibration syndrome: building a case on shaking grounds.

Grinding machines, chippers, bush whackers, impact wrenches, and dental drills are modem tools with a common hidden hazard. When used as intended, they produce vibration, which, slowly but steadily, often culminates in a crippling condition known as "vibration hand-arm syndrome" or "white finger."

In 1916, shortly after stonecutters in Bedford, Indiana, began using pneumatic drilling machines, hundreds of these workers developed a mysterious condition. Their hands became painful and Dumb, and their fingers inexplicably turned white.

Local physicians suspected that the strange malady was caused by the new tools and called the U.S. Department of Labor for assistance. The agency sent pioneering occupational medicine expert Dr. Alice Hamilton to investigate.

After examining 38 quarry workers, she calculated that 89 percent had developed a condition she called "dead hand." She attributed this to vibrations from the drills as workers ground through rock.(1)

Hamilton described "dead hand" in one of the workers:

He had been out of doors for over half an hour

and in order to be able to show me his hands in

a typical condition he had refrained from

rubbing them violently and swinging his arms

about, as he would ordinarily do to restore the

circulation. The discomfort, however, had

grown so intense in his fingers that he could not

bear it any longer and almost at once after I

arrived he began rubbing and kneading and

shaking his hands. The four fingers of his left

hand were a dead greenish white and were

shrunken, quite like the hands of a corpse.(2)

Since Hamilton's report in 1918, thousands of similar injuries have been documented in the forestry, shipbuilding, automobile, foundry, and glass cutter industries. By the 1960s, the number of injuries had reached such proportions that Sweden and other European countries began regulating permissible vibration exposure among forestry workers.3

Also in the 1960s, chain-saw manufacturers discovered that placing rubber isolation mounts between the saw and its handle resulted in a marked reduction in vibration--related injuries. Despite more information confirming the harmful effects of vibration--and availability of simple remedies--the pneumatic tool industry has generally failed to design safer tools or to educate the working public of the hidden dangers of these machines.

Consequently, thousands of workers continue to develop this condition each year. In 1985, large numbers of grinders at the General Dynamics/Electric Boat Shipyard in Groton, Connecticut, began reporting blanching of the fingers and numbness. Studies revealed that nearly 80 percent of the grinders in the shipyard had developed white finger. Since then, more than 400 lawsuits have been filed against codefendants Chicago Pneumatic Tool Co., Dresser Industries, and Stanley Air Tools Corp.(4) Other cases have been filed in Misissippi, Oregon, and Texas.(5)

Symptoms

Vibration-induced injuries have been called secondary Raynaud's phenomenon, in addition to white finger, dead hand, aid hand-arm vibration syndrome. While the names may vary, the symptoms are consistent and debilitating.

Early on, symptoms may be minor aid transient, producing only tingling and numbness in fingers. With continued exposure to vibration, blanching or whitening of the fingers may occur-usually lasting 15 minutes at a time. This occurs because the circulation of blood to the fingers is disrupted.

The length of this "blanching attack" will gradually increase and, in advanced cases, may last an hour or more. The attack is usually followed by a marked red flush of the hand as blood rushes back into the damaged fingers, causing intense pain. Tie flush usually appears in the palm, then can advance from the wrist toward the fingers. In severe cases, the hands may appear dusky and cyanotic.

Prolonged vibratory exposure may also result in damage to the nerves of the hand and wrist, causing workers to lose dexterity and sense of touch, including the ability to distinguish between hot and cold. The exposure may also cause or aggravate carpal tunnel syndrome or lead to gangrene and possible loss of the fingers. Since exposure, in part, results from the sympathetic nervous system's reaction to vibration, reflex sympathetic dystrophy may also develop.

Swedish manufacturer Atlas Copco reports in its book on safe tool design, Ergonomic Tools in Our Time, that high vibration amplitudes combined with high feed forces--the forces required to press the tool to the work surface--can also cause microfractures in bones and interfere with the supply of nutrition to joints.(6)

Since manifestations of the condition often do not occur until after three or four years of exposure to vibration and since the symptoms often are not correlated with the laborer's work, many doctors and workers fail to pinpoint the origin.

The National Institute of Occupational Safety and Health (NIOSH) estimates that nearly 1.5 million U.S. workers use vibrating tools and that the prevalence of white finger may extend from 6 percent to 100 percent of the exposed population.(7)

Development of the condition depends on the amount of vibration the worker is exposed to (measured in meters per second squared), the length of time the tool is used each day, and the length of time the tool is used over a worker's lifetime. Studies of chain-saw workers who use products lacking antivibration devices show that up to 90 percent of forestry workers develop the condition at the end of five years.(8)

Regulations

Several standard-setting bodies have established daily limits for exposure, but the effectiveness of these standards is questionable. In 1984, the American Conference of Governmental Industrial Hygienists adopted a threshold limit value (TLV) that sets permissible exposure at 4 meters per second squared for 4 to 8 hours a day, 6 meters per second squared for 2 to 4 hours, and 8 meters per second squared for 1 to 2 hours.

The TLV standard also sets permissible exposure at 12 meters per second squared for less than one hour per day. Most pneumatic tools routinely produce vibration exceeding these levels.

Many experts believe these standards are too liberal, since they are designed merely to avoid the most severe conditions in a majority of the exposed population.

The International Standards Organization (ISO) has promulgated a guideline that sets vibration measurement standards.(9) The guideline also predicts the effects of vibration on workers:

* At 2 meters per second squared, 10 percent of workers will get the condition within 15 years.

* At 5 meters per second squared, 10 percent of workers will acquire it within 6 years.

* At 5 meters per second squared, 50 percept will acquire it within 14 years.

Similar findings have been made by the American National Standards Institute.(10)

The debilitating nature of white finger has not escaped notice by the medical profession. Guides to the Evaluation of Permanent Impairment, en American Medical Association publication, is used to estimate the degree of impairment caused by an injury.(11) It provides ratings as high as 90 percent to 100 percent of the "whole man" for severe afflictions. This is significant, particularly in states where workers with injuries to their hands, arms, or "whole man" are given specific awards under workers' compensation statutes.

In the courts

Plaintiffs have partially prevailed in at least one lawsuit filed against pneumatic tool manufacturers who sold grinding machines to Electric Boat in Connecticut.(12) In May, the Connecticut Supreme Court remanded the case for a new trial to determine whether alleged post-sale modifications were the sole proximate cause of plaintiffs' injuries. However, the court noted, 'We conclude that the jury properly concluded that the defendants' tools had been defectively designed."(13)

Evidence in the form of meeting minutes and interoffice memos that were obtained in the discovery phase of this litigation revealed that industry officials were aware of vibration hazards since the early 1970s. Those officials worked for the Compressed Air and Gas Institute (CAGI), a trade association of U.S. pneumatic tool manufacturers, and their European counterpart known as PNEUROP.

The two organizations were united in in their belief that the introduction of vibration measurement standards and TLVs would hurt their industry. Documents obtained during litigation also suggested that the groups worked to discourage placing warnings on their tools.(14)

In the late 1970s, PNEUROP completed a test of the ISO measurement standard. The organization reported to CAGI that he standard was generally reliable and asked that a copy of its report be forwarded to U.S. government agencies charged with public health and safety to assist in public health tests.

High-ranking officers of American tool manufacturers, meeting as part of CAGI's pneumatic tool section, asked PNEUROP to withhold the report from NIOSH. At the same meeting, the manufacturers discussed recent tests NIOSH had performed that showed what were described as " "unrealistically high" vibration levels on he U.S. tools. In 1979, PNEUROP reported to CAGI that it would not send the report without CAGI's consent.(15)

The reason for this decision to withhold information from NIOSH became more apparent at later PNEUROP meetings. "It was clear that vibration white finger existed," PNEUROP's meeting minutes state. The manufacturers noted it would be pointless to prove that it was caused by substantially lower levels of vibration than the NIOSH data suggested.(16) Thus, PNEUROP assured CAGI that there would be no communications with U.S. public health agencies.

The industry has done little on the engineering front to reduce the vibration their tools produce. Although some companies investigated vibration isolation devices as early as 1950, only a few have incorporated safety features into their tools. Atlas Copco has produced an "Ergoline" of dampened grinders, and Chicago Pneumatic Corp. has recently introduced an antivibration two-handled vertical grinder.

At trial, the failure of the pneumatic tool industry to adopt simple engineering controls can be sharply contrasted with the early and effective use of isolators by some chain-saw and bushwhacker manufacturers. In fact, vibration reduction and isolation is a common part of all manufacturing processes. Cars, fans, and air conditioners have made use of this simple but effective technology.

Trial lawyers can refer to many articles and studies performed over the years showing that vibration-reduction technology has been available to tool manufacturers.(17) Patents are also a good source of information, in regard to both the industry's attempts at corrective action and its knowledge of the condition. Interestingly, many of these patents are owned by the very manufacturers who have refused to use the technology.

Attorneys handling these cases should be aware of U.S. and international standards relating to the measurement and exposure limits of vibration in hand-held tools. But it is important to remember that CAGI and other trade groups fought many of these standards and that the industry's imprint remains on documents obtained during litigation in Connecticut.(18) CAGI and PNEUROP worked long and hard during the 1970s and 1980s to confuse and delay even the publication of a standardized way to measure vibration. They feared that regulation was sure to follow.

Industry documents make clear that this strategy was intentional and designed to "sow the seeds of doubt."(19) Attorneys, therefore, should not merely rely on the published standards but should study the industry documents carefully. Foreign standards are also a rich source of information since most U.S. manufacturers have overseas operations and are aware of the extensive regulations adopted in Europe--particularly in Scandinavia.

Common defenses

Lawyers should be prepared to counter various industry defenses, including "alteration and modification." Since vibration injuries occur with prolonged use, manufacturers usually try to show that employers failed to properly maintain the tools and used substandard replacement parts to repair them. It is important to remind jurors that the product's defect is the lack of isolation devices and that the employer was not responsible for creating a defective product.

Defendants will likely argue that their tools were designed to the "highest standards and specifications and tolerances." However, they will not mention that these tolerances are irrelevant to the cause of injury. The tolerances deal with margins of error, acceptable variations, or acceptable failure rates, but not with the vibration produced by their machines.

Jurors are also likely to be less impressed with defense claims that the tools were built to the highest standards once they find out the manufacturers developed their own standards and fought hard for the lowest and least effective ones.

It has taken years for information on the causes of and remedies for vibration injuries to emerge. But facts favoring plaintiffs are readily available. By using careful discovery techniques and having the tenacity to see the litigation through to the end, trial attorneys will be able to hold manufacturers responsible for making products that are devastating to a vital segment of the work force.

Notes

(1.) BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, BULL. NO. 18 (Industrial Accident & Hygiene Series No. 19, 1918).

(2.) Id. at 56.

(3.) See, e.g., National Swedish Board of Safety, Health Regulation 71:1 (1971).

(4.) Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997).

(5.) Anderson v. Ingersoll-Rand Co., Indus. Tool Div., No. 96-CV-0663 (Tex., Galveston County Dist. Ct. filed July 11, 1996); Abney v. Ingersoll-Rand Co., No.93-3000(1) (Miss., Jackson County Cir. Ct. filed June 30,1993); Shea v. Chicago Pneumatic Tool Co., No.95-0906261 (Or., Multnomah County Cir. Ct. filed Sept. 7, 1995).

(6.) ATLAS COPCO, ERGONOMIC TOOLS IN OUR TIME (year unavailable).

(7.) NATIONAL INST. OF OCCUPATIONAL SAFETY & HEALTH, U.S. DEP'T OF HEALTH & HUMAN SERVS., PUB. NO. 89-106, CRITERIA FOR A RECOMMENDED STANDARD--OCCUPATIONAL EXPOSURE TO HAND-ARM VIBRATION.

(8.) THE VIBRATION SYNDROME (William Taylor, ed. 1974).

(9.) INTERNATIONAL STANDARDS ORG., NO. 5349, MECHANICAL VIBRATION--GUIDELINE FOR THE MEASUREMENT AND THE ASSESSMENT OF HUMAN EXPOSURE TO HAND-TRANSMITTED VIBRATION (1986).

(10.) ACOUSTICAL SOC'Y OF AMERICA, AMERICAN NAT'L STANDARDS INST., AMERICAN NATIONAL STANDARD: GUIDE FOR MEASUREMENT AND EVALUATION OF HUMAN EXPOSURE TO VIBRATION TRANSMITTED TO THE HAND [sections] 3.34 (1986).

(11.) AMERICAN MED. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (1993).

(12.) Potter, 694 A.2d 1319, 1335-36.

(13.) Id. at 1336.

(14.) Industrial Tools Technical Sub-Committee, British Compressed Air Soc'y (BCAS), Minutes from Meetings, London, Eng. (Oct. 21 & Dec. 16, 1982).

(15.) Engineering Committee (PTS), Compressed Air & Gas Inst., Minutes from Meeting, Cleveland, Ohio (Jan. 11, 1979).

(16.) PNEUROP Sub-Committee No. 8 Working Group on Vibration, BCAS, Minutes from Meeting, Helsinki, Fin. (May 29-30,1979).

(17.) See generally supra note 6.

(18.) See Potter, 694 A.2d 1319, 1335-36.

(19.) PNEUROP Sub-Committee No. 8 Working Group on Vibration, BCAS, Minutes from Meeting, Helsinki, Fin. (June 2,1975).

RELATED ARTICLE: Case selection in employment cases

Aside from the relationship with a spouse, few relationships exists that people take more seriously than their relationship with their employer. When that relationship ends through a forced termination, people experience emotions such as confusion, anger, resentment, and emotional distress. Frequently, they decide to consult an attorney.

Employment lawyers, like professional negligence lawyers, must try to separate the wheat from the chaff among prospective clients who approach them.

The more information you can procure before deciding to accept a case, the better you chance of properly evaluating it. Perhaps the most important document to acquire is the employee's personnel file. State laws vary regarding employees' right to copies of their personnel files before or after their discharge. If your state law grants employees access to their personnel files, tell a potential client to bring the file to the initial interview.

Other documents that may or may not be part of this file should also be brought to the initial interview so that you can assess liability. These include employee evaluations, written warnings and commendations, job descriptions, job offer and termination letters, and company handbooks or manuals. These documents help provide a clear picture of the employee's background as well as the culture of the company.

From a damages perspective, benefits booklets or other information published by the company regarding fringe benefits should be requested. If a union contract exists, the potential client should provide it. Also, he or she should bring several years of W-2s, documents reflecting efforts taken to mitigate damages, documents reflecting earnings since termination, and medical or psychological records if the claim involves emotional distress.

There is also information you can secure before the initial interview that will help you assess the claim. You should locate cases involving the defendant filed in federal or state court by searching records in the appropriate clerk of courts office or by using computer data bases. To get copies of administrative claims, you may have to request them under the federal Freedom of Information.

Other sources of information include the company's Web site, magazine and newspaper files, and company press reeleases, which are often puff pieces that may contain damaging admissions about the corporation. Federal securities libraries can provide annual reports and various financial reports that corporations have sent to their shareholders or the Securities and Exchange Commission.

After securing information like this. you can intelligently discuss the claim and properly assess its viability.

In deciding whether to accept the case, you should consider these factors:

Length of service. Long-term employees make for better clients, because usually a person does not survive for 20 years at a company without having some ability. By the same token, employees who lose their jobs after only a few months except for victims of sexual harassment who have been besieged by the employer--generate less empathy from a fact finder.

Prior employment history. This is a major factor. One damage you attempt to recover is future pay. If a client tends to switch jobs every few years? it is more difficult to argue that the client would have finished his or her career with the potential defendant.

Others similarly situated. How has the employer treated other employees in a similar situation? If several employees

Andrea Brenneke practices with MacDonald, Hoague & Bayless in Seattle. She thanks Katrin Prank and Mary Roberts for their help in preparing this article.
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Title Annotation:Worker Rights, Worker Safety
Author:Embry, Stephen C.
Publication:Trial
Date:Oct 1, 1997
Words:2971
Previous Article:Deposing the sexual harasser.
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