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BRUCE MADDEN and ACCIDENT COMPENSATION CORPORATION Work related gradual process injury - A win for claimant

#1 User is offline   hukildaspida 

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Posted 16 April 2012 - 10:33 PM

We would like to see some whom have rejected injury claims get off their lazy backsides & do some of the hard physical labour
Bruce Madden has.

It's overdue some ACC staff & Assessors got into the real world away from the sedentary, light work they do.

Maybe we should have legislation that includes punishment of ACC staff & Assessors to do claimant's employ when the aforementioned cause these unfortunate situations that are dragged out & end up in Courts.

It may help teach them a few lessons in life what some occupations consist of & what the real world is like.

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New Zealand Accident Compensation Appeals - ACC Appeal Decisions
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Madden v Accident Compensation Corporation [2012] NZACC 63 (1 March 2012)

Last Updated: 11 March 2012


[2012] NZACC 63

The Accident Compensation Act 2001
an appeal pursuant to section 149 of the Act (Appeal No. Al 574/09)



Hearing: 9 December 2011

Appearances: Ms C L Cook for appellant Ms F Becroft for respondent

Judgment: 1 March 2012


[1] The question in this appeal is whether the Corporation was correct in declining cover for a work related gradual process injury. The appellant worked as a truck driver and suffered spinal damage consistent with a gradual degenerative process. The Corporation considered that it was a gradual process excluded from cover by sections 26(2) or (4)(a) of the Act and declined cover.
[1] The Corporation's medical advisors thought that the condition was most likely to be a natural degenerative process with symptoms precipitated by the appellant's truck driving, but that his occupation did not actually cause an injury. The appellant consulted Dr Mike Cleary, musculoskeletal physician, who considered that the signs of age related degeneration were not more than typical for the appellant's age and that he had suffered a personal injury by accident.

Appellant's work history

[3] In 1972, when he was sixteen, Mr Madden began a butchering apprenticeship. In his job as a butcher he had to lift quarters of beef and whole pigs weighing up to 100 kg, and carry them between a delivery vehicle and the butchery. In 1979 he took a job maintaining the environs of electrical substantions for poverty Bay Electric Power Board. In that job he lifted mowers on and off vehicles several times a day. He did a traineeship and continued working with the Power Board until 1990. The work including digging deep holes with shovels and picks, carrying heavy ladders for distances of up to three kilometers over rough terrain, assisting with lifting ten metre poles. Erecting power poles and cross arms involved heavy manual work. From 1990 he did market garden work and orchard work, some of which he described as "back breaking". After that he drove a meat truck for about three years, again carrying 100 kg carcases. He took up butchering for another year, boning in up to ten hour shifts and lifting carcases. He then worked driving logging trucks, handling pallets in cool stores and transporting fruit bins. At the time of his acute symptoms, he was trucking fruit bins, which included loading and unloading both empty and full bins.
[3] During these years Mr Madden had several ACC claims for back conditions. In the general context, those events may have been acute incidents or aggravation of a deteriorating lumbar spine. The appellant's case is that they were consistent with a gradual work related process as much as the ordinary ageing process.
[3] Mr Madden was aged 51 when his acute symptoms developed in August 2008. He was freighting fruit bins in a business in which he was a partner. The business provided a trucking service delivering produce for contracted firms. His tasks involved driving a six wheeler truck and operating hydraulics off and on the truck. He also drove a number of tractors. He averaged eight to ten hours work a day and consistently did overtime. He said that the particular truck was new and he experienced a lot of bouncing motion while driving. When his symptoms caused trouble, he took regular rest days until October 2008 when he experienced severe pain in his legs and was unable to walk or stand. He was admitted to Whangarei

Hospital and an urgent MRI on 8 October 2008 showed a large left foraminal stenosis with disc lesion at the L3/4 and L5/S1 levels.

Medical investigation and opinions

[6] Dr Cleary saw Mr Madden on 9 October 2008 and diagnosed "left L4 lumbar radicular pain and radiculopathy with atypical features of pronounced allodynia in the L4 dermatome". His acute symptoms followed a truck journey of over 600 kilometres after which he had difficulty getting in and out of the truck. The pain intensified until he was taken to hospital by ambulance and remained for two nights. At the time of examination by Dr Cleary, he had developed a burning sensation down the medial aspect of his left thigh and calf, reaching the ankle. He also experienced allodynia, so that any touch to that area was exquisitely painful.
[6] On 22 October 2008, Dr Cleary applied for treatment funding for a steroid transforaminal epidural at the L3-4 level on the left to see if a more targeted application would improve Mr Madden's symptoms.
[6] Dr Cornah, branch medical advisor, undertook a file review and advised ACC that the appellant's work as a driver had probably aggravated his back pain but had not actually caused it. He noted a large disc prolapse at L3/4 compressing the left L3 nerve root. He understood that the pain came on progressively over a few weeks, and seemed to be aggravated by truck driving. He noted evidence of previous Scheuermann's disease as well as extensive and severe degenerative lumbar disc disease. At L1/2 there were Schmorl's nodes, disc narrowing and desiccation and a disc protrusion. There were similar findings as L2/3 but only bulging rather than protrusion of a disc. At L2/3 there were Schmorl's nodes, disc dessication and loss of height, with a larger disc extrusion (prolapse) affecting the left L3 root compression. At L4/5 there was desiccation, mild bulging with an annular tear as well as severe facet joint degeneration. L5/S1 showed moderate disc bulging and moderate facet degeneration.
[6] Dr Cornah considered that the findings were typical of degenerative lumbar disc disease. He wrote:

"Degenerative disc disease is predominantly caused by genetic factors, and there is little contribution from occupational tasks. Schmorl's nodes are part of Scheuermann's disease, which is a developmental condition, and this is also associated with degeneration of the discs later in life. The natural history of disc degeneration is for the discs to become 'dry' (desiccated) and then to fail. Initially they bulge and then the annular ligament ruptures and the disc prolapses. This process occurs with no external force, though it can occasionally be precipitated by an event which causes sudden increased loading of the disc (such as occurs with heavy lifting for example).

Work involving prolonged seated posture, heavy and repetitive lifting and vibration are all recognised to be associated with increased lower back pain, but not lumbar disc degeneration."

[10] ACC then declined the claim, on ground that there was no work task or work environment factor that could be identified as having caused Mr Madden's condition, and that his type of work was not recognised as placing workers at significantly greater risk of developing lumbar spine injury. After further discussion, ACC referred Mr Madden to Dr Tony Chew, specialist in occupational and environmental medicine. After traversing the history and diagnostic information, Dr Chew considered that the pathology causing Mr Madden's current condition was nerve root irritation at L3 as well as inflammation from degenerative lumbar disc disease. He stated:

"He did not describe any specific event prior to the onset of his back pain.

In my opinion, the pre-existing degenerative disc disease of his lumbar spine is the predominant cause of his ongoing symptoms.

The natural history of disc degeneration is for the discs to become desiccated and then to fail. Initially they bulge and then the annular ligament ruptures and the disc prolapses. This process usually occurs with no external force, though it can occasionally be precipitated by an event which causes sudden increased loading of the disc.

There is no documented evidence in this case of any specific event prior to the onset of his sciatica from prolapsed disc. His disc prolapse is more than likely to be the result of progression of his degenerative disease.

Literature shows that job involving prolonged seated posture, heavy and repetitive lifting and vibration are all recognised to be associated with increased lower back pain, but not lumbar disc degeneration. Therefore, it is likely that his job as a truck and tractor driver has aggravated his back pain, but it has not actually caused it.

In my opinion, the employment task or the environment in which it was performed in this case had no particular property or characteristic to cause or contribute to the development of his back condition."

[11] Dr Chew outlined various factors that would connect an injury with work related trauma and stated that Mr Madden did not meet the criteria. He had no history of a specific significant injury of his back. Development of osteoarthritis changes usually takes two to five years from the time of the predisposing injury and it was highly unlikely that the short duration of exposure to truck and tractor driving in August 2008 had caused the degenerative change in Mr Madden's lumbar discs. The probable cause was degenerative disc disease, which is predominantly caused by genetic factors and with little contribution from occupational tasks.
[11] Dr Chew appeared to consider only the appellant's last job as a truck driver, but the claim is based on a longer history of heavy work.
[11] The Corporation again declined assistance in a decision on 22 December 2008. Mr Madden applied for review of the Corporation's decision and obtained a further opinion from Dr Cleary with the assistance of Ms Cook.
[11] Dr Cleary holds post graduate Diplomas and has expertise in both occupational medicine and musculoskeletal medicine and has worked in both areas. He is a Fellow of the Australasian Faculty of Musculoskeletal Medicine.
[11] Dr Cleary obtained from Dr Quentin Reeves, radiologist, an opinion concerning the significance of Schmorl's nodes. Dr Cleary thought that that Dr Cornah appeared to have interpreted the presence of Schmorl's nodes as evidence of previous Scheuermann's disease, as a basis for attributing the changes in Mr Madden's intervertebral discs to Scheuermann's disease and genetic factors. In reply, Dr Reeves explained the definition of Scheuermann's disease, and advised that it is an uncommon condition affecting 0.5% of the population. He stated that the incidence of Schmorl's nodes in the population is considerably greater, with many articles indicating a post traumatic aetiology. In Mr Madden's case there was insufficient radiological evidence to support the diagnosis of Scheuermann's disease.
[11] Dr Cleary then reported to Ms Cook on 3 July 2009 after reading the reports and an account by Mr Madden of his work history. In addressing the requirements of

commented that the balance of probabilities is relevant because, for legal proof, the requirement of probability is a lesser standard than medical experts ordinarily apply when determining causation. He adopted a passage from Louissell, Medical Malpractice, Vol 3 p 25-57 stating that "Many doctors do not understand the phrase as they usually deal in 'certainties' that are 100% sure, whereas `reasonable' certainties which the law requires need only be more probably so, i.e. 51%".

[17] From Mr Madden's account of his work history, Dr Cleary considered that it included many years spent performing very heavy work, that is to say "Exerting in excess of 45 kilos of force occasionally, and/or in excess of 22.5 kilos of force frequently, and/or in excess of 9 kilos of force constantly to move objects". That classification of physical effort was taken from the United States Department of Labor's Dictionary of Occupational Titles, approved by ACC for doctors in NZ to specify the type of work possible by a patient to be included in medical certificates of incapacity.
[17] Dr Cleary considered that, over time, Mr Madden's workplace exposure to very heavy work had caused or contributed to the personal injury.
[17] Dr Cleary considered that very heavy work was not found to any material extent in Mr Madden's non-employment activities or environment. That finding is not in dispute in the appeal. Finally, Dr Cleary considered that the risk of Mr Madden sustaining his injury when performing the tasks he was called on to do in his work environment was significantly greater than persons in occupations not performing those tasks, because they are not performing "very heavy work".
[17] Dr Cleary referred to a medical text by Bogduk et ors The Biomechanics of Back Pain 2nd Ed 2006 p 244 for the proposition that "Major risk factors for disc prolapse include male gender, age (30-50 years), heavy lifting or twisting, stressful occupation, lower income and cigarette smoking". From the same text, Dr Cleary quoted:

"Lumbar disc degeneration (revealed by X-ray, MRI or autopsy) is even less easy to define than disc herniation (see p. 196) and inconsistencies in case definitions and measurements have impeded epidemiological research into disc degeneration.

Usually, any age-related changes in the disc, including reduced water content of the nucleus, are included as 'degeneration'. Consequently, 'disc degeneration' as so designated is extremely common, of little clinical relevance, and difficult to relate to any risk factor other than age. Generally, disc degeneration is more severe and starts earlier at the L4 and L5 levels than at L3, and the L2 and LI levels are less frequently affected. A prevalence of 31% has been found in 15-year-old schoolchildren. This rises linearly with age until by 50 years of age virtually 100% of lumbar spines show disc `degeneration'."

[21] Dr Cleary identified Mr Madden's condition as femoratica, a condition affecting the femoral nerve, presenting as severe pain in the front of the thigh and hypersensitive skin over the thigh. The patient may be left with permanent alteration in sensation. The condition is usually due to a disc prolapse in the mid-lumbar levels, often a far lateral disc prolapse or foraminal disc prolapse.
[21] The MRI findings themselves do not establish that the cause of the prolapse was a natural degenerative process. Dr Cleary also commented that the diagnosis of Scheuermann's disease was based on a mistaken understanding of the significance of Schmorl's nodes, which are relatively common and are more consistent with workplace trauma than with Scheuermann's disease. Dr Cleary referred to "Clinical Anatomy of the Lumbar Spine and Sacrum" by Nikolai Bogduk, 3rd Edition published by Churchill Livingstone 1997, to distinguish between degenerative disease and "degradation", as follows:

"Nuclear 'degradation' may appear synonymous with disc 'degeneration' and, indeed, other authors have indicated the same biochemical processes described above as the explanation for disc degeneration. However, they view this as an idiopathic phenomenon, and do not relate it to end plate fracture. In the present context, nuclear degradation is not intended to mean degeneration. Degeneration is an emotive term conjuring images of inevitable decay and destruction yet many of the pathological changes said to characterise the disc degeneration are little more than normal age changes. In contrast, nuclear degradation is a process, initiated by an end plate fracture, that progressively destroys the nucleus pulposus. It is an active consequence of trauma; not a passive consequence of age."

[21] Continuing with reference to Bogduk, Dr Cleary noted that some individuals can be susceptible to failure of intervertebral discs by compression injury if their vertebral bodies are weaker than the maximum strength of their muscles. The mechanics are explained as follows:

"In such individuals, fracture of the vertebral end-plate could occur during unaccustomed inordinate heavy lifting, or if they maximally exerted their back muscles in activities such as pulling on a stubborn tree root while gardening. In these situations the individual voluntarily exerts their back muscles to a severe degree, but the muscles act on a vertebral column that is unaccustomed to bearing the large loads involved. Training and physical exercise appear to condition vertebral bodies, rendering them stronger and better able to withstand the longitudinal stresses imposed upon them by severe efforts of the back muscles, but the risk of end-plate fracture prevails if athletes, workers and other individuals with relatively weak vertebral endplates are not conditioned to their task, and take on lifting activities for which their back muscles might be capable but their vertebrae are not. These considerations presuppose sudden static loading. However, modern research has shown that end-plate failure can occur at loads substantially less than ultimate failure strength of the end-plate, if the end-plate is fatigued. Repetitive loading of the disc, in compression or in compression with flexion, can cause end-plate failure at loads between 30 and 80% of ultimate failure strength, within fewer than 2000 repetitions or as few as 100 repetitions. This reduction in force required increases the number of individuals susceptible to end-plate fracture. An end-plate fracture is of itself not symptomatic and may pass unnoticed. Furthermore, an end-plate fracture may heal and cause no further problems. However, it is possible for an end-plate fracture to set in train a series of sequelae that manifest as pain and a variety of end-stages."

[24] Relying on the literature Dr Cleary disputed the notion that end plate changes are entirely symptomatic of degenerative disease. He preferred to focus on Mr Madden's work history and the development of symptoms consistent with work related spinal damage. He wrote:

"I submit that Mr Madden in the course of many years of very heavy work, repeatedly subjected his lower spine to major forces. We know he has had several episodes of low back pain from his ACC claim history. We know from the lumbar MRI that his L3/4 disc has a Schmorl's node, signifying an end plate fracture at the disc level that has herniated.

As Dr Reeves has indicated, on the balance of probabilities the aetiology of this Schmorl's node is trauma. The trauma is not the result of any one event, but the result of repeated forces which ultimately cause fatigue failure which is a gradual process. The end plate fracture initiates degradation in the disc which then herniates."

[24] With reference to genetic factors, Dr Cleary enquired and Mr Madden denied any history of disc herniation in his family. Mr Cleary therefore inferred a balance of repeated trauma from very heavy work in preference to genetic factors. He viewed the truck driving prior to acute symptoms as the last straw, that is to say further damage to degraded intravertebral discs producing the acute symptoms.

[26] Dr Cleary's opinion was referred to Dr Chew who thought that Dr Cleary based his diagnosis predominantly on just one component of the MRI findings. Dr Chew held his view that Mr Madden's current condition was predominantly related to his established spinal degenerative disease, based on the radiological evidence of degenerative changes in the lumbar discs, particularly the L3/4 disc showing loss of height and moderate desiccation with Schmorl's node formation and type II endplate changes. There was also severe facet joint degeneration at L4/5 disc with hypertrophy and the facet joint at L5/S1 level showed degenerative changes. Dr Chew considere that the Modic vertebral endplate and marrow changes are closely related to normal degenerative process affecting the lumbar spine, and their prevalence increases with age. He accepted that the exact pathogenesis underlying these changes and their relations to segmental instability of the lumbar spine and to low back pain remain unclear. He stated:

"Literature supports the theory that degeneration of the disc has a complex

multifactorial aetiology. Which factors initiate the events in the
degenerative cascade is a question that remains unanswered, but most evidence points to an age-related process influenced primarily by mechanical and genetic factors.

As stated in my previous report, there is no documented evidence of any specific event prior to the onset of his back pain. It is my opinion that his current condition is not substantially or wholly due to any specific traumatic event.

Literature suggests repetition as a quantitative description of work duties should be considered only if the tasks in question constitute greater than 2/3 of the work shift.

According to NIOSH, most of the specific exposure associated with strong evidence of a causal relationship involved intense or long duration, usually daily, whole shift exposure to the factors under investigation.

His job has no particular property or characteristic to fit the above criteria. There is no evidence to suggest that Mr Madden had been subjected to repetitive compression loading or shear stress of his lumbar spine in his job.

In my opinion, his employment tasks and the environment he works in has no particular property or characteristic to cause or contribute substantially to his chronic low back pain.

On the balance of probabilities, his current condition is due to the preexisting degenerative spinal disease as a result of age-related degeneration and genetic factors."


[27] On review, the Corporation's decision was confirmed. The Reviewer thought that Dr Cleary had put forward a well reasoned opinion, but he concluded as follows:

"To a large extent, this matter must be decided on whether Mr Madden is, or has been, involved in employment with a particular characteristic that causes contributes to the cause of the his personal injury (see section 30(2)(B)(i)).

Dr Cleary merely refers to Mr Madden being involved in 'very heavy work' from his teenage years. He does not distinguish the types of employment as having a particular characteristic that would cause the degradation. He certainly does not show that driving a truck, which Mr Madden sees as the cause of the injury, has that characteristic to cause the problem.

In contrast to this, Dr Chew has specifically referred to studies that note truck driving is a job that may lead to back pain, but not to disc degeneration. I would accept this to mean not only degeneration, but also degradation.

Overall, I am not satisfied that there has been any evidence to show that any of Mr Madden's work tasks has been the cause of his current injury. To simply say that he has been engaged in 'very heavy work' is not sufficient to show a work characteristic to satisfy section 30(2) of the Act. In contrast to this, Dr Chew has specifically addressed this issue and concluded Mr Madden's work would only aggravate his condition, not cause it. The fact that Mr Madden has been able to work as a butcher, which he described as including heavy work, would tend to support the conclusions of Dr. Chew."


[27] The evidence in this case presents a claimant who has engaged for over thirty years in work involving heavy lifting and truck driving. His symptoms occurred from time to time during his working life and became acute and severe at the relatively young age of 51. His MRI disclosed degenerative conditions which are normal for a person of that age, and also specific end plate fracture which is may be caused by genetic factors or by repeated trauma. There is some medical controversy about the general causes of disc protrusion and end plate fracture. A genetic explanation is common, but there is also literature concerning a cause of repeated trauma.
[27] Dr Cleary put forward a history of probable repetitive trauma in the appellant's work history. His employment over thirty years involved constant heavy or very

herniation. The extent of damage at the age of 51 years suggested more than ordinary degenerative processes. Dr Cleary made the point that medical explanation of cause seeks a degree of proof that is greater than a mere balance of probabilities, but resorting to the legal standard it is a case where the probability is that the appellant suffered significant work related repetitive trauma resulting in the extent of disc herniation that caused his severe symptoms including femoratica indicating damage left L3 nerve root caused by lateral disc prolapse.

[30] Work related gradual process cover has to satisfy the three pronged test, namely causation, increased risk related to work tasks or environment, and non-competing risk of non-work activities. Dr Cleary briefly addressed those features, finding no non-work exposure to the sorts of force that the appellant routinely experienced at his work. He considered, based on the same medical reasoning as the causation question, that the risk of end plate damage when performing the appellant's very heavy work is greater than for those individuals not performing such very heavy work.
[30] Dr Chew emphasised the prevalence of degenerative spinal disease caused by age related degeneration in persons with genetic predisposition. He considered degenerative signs at five levels in the lumbar spine with the conclusion that they represent progressive age related degeneration consistent with genetic disposition. He noted that there was no specific event that preceded acute symptoms, which tends to discount an injury related prolapse. Concerning a gradual process condition induced by trauma, he said that quantitative description of work duties should be considered only if the tasks in question constitute greater than 2/3 of the work shift, and referred to NIOSH research that most of the specific exposure associated with strong evidence of a causal relationship involved intense or long duration, usually daily, whole shift exposure to the factors under investigation. He could find no property or characteristic in the appellant's work tasks that would satisfy accepted criteria for work related injury.


[30] The claim contains aspects of injury aggravation or acceleration that do not

aggravation of an existing condition and predisposition to a new injury. Proof is difficult because the post-symptom radiology does not provide a history, but literally a snapshot that is consistent with two or more competing theories of causation.

[33] The appellant was certainly engaged in heavy work for 30 years before his severe symptoms. His work involved lifting meat carcases and fruit bins repeatedly and during work shifts that often included overtime. His work for the Power Board included manually digging post holes and carrying heavy ladders and poles. There is no doubt that he was always involved in heavy manual work of one kind or another. He then took up truck driving, which does not involve constant or repetitive lifting, but is a known category of work that tends to be accompanied by an increased incidence of disc herniation. On its own, his short period of truck driving leading up to his hospitalisation could not have caused the damage found on his MRI scan, but the appellant's case is that he suffered degradation of intravertebral discs over decades. The appellant submits that even if he suffered age related disc changes, there were two processes operating and the ultimate compression of his L3 nerve root had multiple or complex causes including work tasks, but was not wholly or substantially caused by age related degeneration.
[33] The respondent's case relies partly on studies of occupational groups, and negative findings, for example that prolonged seated posture or heavy and repetitive lifting may be associated with increased lower back pain, but not lumbar disc degeneration. The literature clearly shows that lumbar spine degeneration, including disc herniation, prevails in the general population irrespective of work types. Dr Cleary approaches the appellant's case from a different perspective, that is by examining an individual worker with a long history of heavy work rather than surveying case studies of particular occupational groups.
[33] In my view, Dr Chew's opinion does little to exclude the appellant's claim for cover for a gradual process occurring over a much longer period of time than the driving work he was doing at the time of his acute symptoms. While there has been no careful analysis of his work over thirty years, the appellant has put forward an account of his work history that has not been challenged by the respondent for the purposes of this appeal. He has worked continuously and almost all of his working

life has involved driving, lifting heavy loads and digging. His radiology at the age of 51 exhibited extensive lumbar damage interfering with his left L3 nerve root with symptoms that required hospital admission.

[36] The respondent's submissions suggested that Dr Cleary was not experienced in the assessment of work related gradual process injury. I find that he appeared to apply a proper medico-legal analysis of the problem and I can find no reason to discount Dr Cleary's opinion as being less qualified that that of Dr Chew. In my view it benefitted from approaching the problem from a different perspective and did not fail to address essential points relating to the appellant's diagnosis. Dr Cleary gave more weight to the appellant's overall work history, and that appears justified in the circumstances of this case.
[36] In my view, the balance of probabilities points to wear and tear on his lumbar spine from heavy work over thirty years. A genetic condition may account for a deal of the deterioration, but that does not exclude a work related process as well. There is no reliable evidence that the appellant was genetically disposed to early spinal degeneration. Dr Cleary's advice provided a well argued case for a significant contribution from work related causes. I consider that Dr Cleary adequately covered the aspects of occupational risk and lack of contributory non-occupational activities in order to satisfy the test for work related gradual process injury under s 30.
[36] For those reasons the appeal is allowed, the review decision is quashed and the Corporation's decision of 30 October 2008 is set aside.
[36] The appellant will have costs of $3,000 and reasonable disbursements.

Judge D A Ongley District Court Judge

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#2 User is offline   hukildaspida 

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Posted 11 March 2013 - 03:53 PM

Interelated topic

Implementation and Effectiveness of the European Directive Relating to Vibration in the workplace

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