To answer the question, we can always do more however....

Recently one of our employees bent down to get some gasket from a bucket at the start of his 8 hour shift. He felt a sharp pull in his lower back. He continued working for an hour but it started to stiffen up, so he reported it to his supervisor and was moved to lighter duties, by his own request. He continued for the rest of the day and went home at the usual time saying he still felt sore. The following morning his condition had worsened and he took the next 10 days off from work.

He is back, on restricted duties and shortened days until he has recovered and we are paying for his chiropractic appointments as a good will gesture. However we did not pay him (other than SSP) for his time off due to it not being a workplace "accident". We accepted it happened at work, but due to RIDDOR stating "Injuries themselves, eg ‘feeling a sharp twinge’, are not accidents" we cannot accept it as an accident. We have/are still conducting an investigation as this is still a workplace "injury" and we were concerned that this could be caused by wear and tear due to his work.

So far we have him receiving manual handling refresher training within the last two years, and by his own admission he followed it to the letter.  We have completed a manual handling risk assessment of the work, which is reviewed annually. The gasket he was retrieving was less than 1kg. His work is manual, but not excessive. For example nothing he moves on his own weighs more than 15kg, and he has help available at all times. The work is not repetitive, and done at a slow pace. However it does involve stretching on occasion. He basically builds aluminium bi-fold doors, but these are not glazed until they get to site (on average 1 or 2 a day). We have a rack to hold the door vertical when he is working on it to reduce strain, and benches for when it needs to be horizontal. Again all moving of completed frames is a team lift. They work at most for 2 hours before having at least a15 minutes tea break (2x15 and 1x30 to be precise). We do not have a history of people in that area suffering from any manual handling injuries.

The type of work means the MHE is not helpful until the finished product is moved (which we do have MHE for). The gasket is kept at ground level because it is light and only used briefly. For example screws and tools are waist height, fittings tend to be shoulder height and the profiles to be used are stored between knee and shoulder height.

Given all this he still wants to make a claim for lost earnings, which of course is his right. I am sure he will win, because claims normally do. We traditionally only pay sick for workplace "accidents" as we (read the Directors) want to avoid people claiming bad backs etc so that they can have extra paid holiday.

Have I missed anything obvious, and am I right with the accident vs injury thing?

Hi CptBeaky. Short of getting the workforce to perform warm-up exercises before the start of each shift I would agree there is not a lot else you could have done! Your employer obviously looks after their workers. But I too have heard so many stories like this and Mark is probably right, he will win a claim because the insurers will insist on settling even if the HSE would find no fault. Sometimes I think the insurers are our worst enemy, but a necessary evil. Well done for having such a well-controlled workplace though!

I am not surprised at all by the response from the insurance company. Having carried out numerous investigations for clients into claims for occupational skin disease where claims have been made, it is common practice, even where it can be demonstrated clearly that the cause of the skin disease was not occupational, the insurance company has decided not to fight the claim but to negotiate a settlement figure. One of the reasons is that even were they to win the case it is unlikely that they would get their legal costs refunded and the settlement would be less than these. Whilst we may not be happy with this practice the reality is that the insurance company will nearly always seek to minimise their costs.

Originally Posted by: chris.packham

I am not surprised at all by the response from the insurance company. Having carried out numerous investigations for clients into claims for occupational skin disease where claims have been made, it is common practice, even where it can be demonstrated clearly that the cause of the skin disease was not occupational, the insurance company has decided not to fight the claim but to negotiate a settlement figure. One of the reasons is that even were they to win the case it is unlikely that they would get their legal costs refunded and the settlement would be less than these. Whilst we may not be happy with this practice the reality is that the insurance company will nearly always seek to minimise their costs.

Think of it as a game of poker, once you get to grips with this mindset it makes sense from their perspective.

Insurers fighting civil claims are all about minimsing payout cost and not necessarily about the rightness of the claim per se. Sometimes it's easier to fold early if you can't tell if your opponent is bluffing than invest a lot in a hand you can't guarantee you will win. 

Originally Posted by: Dave5705

Mark is probably right, he will win a claim because the insurers will insist on settling even if the HSE would find no fault.

Of course the employee will win - this is a civil case regarding loss of earnings. I appreciate the employers concern about additional "paid holiday" but this is a very counter productive mind set.

If the employee has no loss of earnings what is their civil claim? Pain and suffering needs to be significant and protracted to derive a monetary value.

At one employment we went the opposite way - having spent forever doing the absolute legal minimum, fighting lots of claims and ever spiraling insurance premiums we bit the bullet and developed a sick pay scheme that eliminated loss of earnings. Overnight the claims evaporated and as a consequence the insurance premiums sank.

Rounduit, this is my philosophy too. However the Directors insist a few bad apples will spoil it for everyone. My attitude to this is that you deal with the "bad apples" through the disciplinary process, rather than taking the easier route of punishing everyone.

As to the civil case, my understanding is that if it were to go to court (which we know it won't) then the claimant needs to prove the following.

1. Do we have a duty of care to the claimant? - Yes we do we are the employer
2. Did we breach that duty of care? - This is the sticking point, we would argue we took all reasonable precautions.
3. Did that breach lead to their injury/loss? - If we did breach it, then yes I would say it did. It happened at work therefore it would be hard to argue otherwise.

I appreciate that is a simplified version. So the question is did we breach our duty of care? Did we take all reasonable actions and precautions to ensure that he would not suffer any loss? Was there something else we could have reasonably done that would have prevented this from happening?

Personally, I think in this case we have done enough. As I said, I do think there are areas we can improve on, which we are constantly working towards. Manual handling is a priority of ours as it is one of the higher risks we have in our factory, therefore it is one of the better controlled risks here.

I have some thoughts but as indicated earlier given this is an active claim a public forum is not the place to post.

You have a PM

Originally Posted by: CptBeaky

Rounduit, this is my philosophy too. However the Directors insist a few bad apples will spoil it for everyone. My attitude to this is that you deal with the "bad apples" through the disciplinary process, rather than taking the easier route of punishing everyone.

You're spot on and I think you have an opportunity to create some change.  From the worker perspective all they have gotten for their efforts is a punishment by being docked wages and made to do more exciting manual handling training, that alone would be sufficient motivation for one to make a claim.

What do your employees do when they are ill or injured, do they continue to turn up to work so they don't loose money?  There is risk in folk not fully fit to work in the workplace not to mention how this affects the morale etc.  Maybe this gent already started his shift with a sore back because he couldn't afford to take the time off and his work during the shift never helped.

Time to get those influencing skill working on your fellow directors

Edited by user 01 August 2019 09:05:49(UTC)  | Reason: Not specified