Injury, 11, 77-80

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Injuries at work and compensation* INTRODUCTION DR K. P. DUNCAN, Director o f Medical Services, Health and Safety Executive, opened the Conference by speaking on the consequences of the Health and Safety at W o r k Act. The three participant parties are the employers, employees and the Government and the Act entails the concept of responsibility on the part o f the risktakers as well as the employers. It calls for joint consultation and an alteration o f climate in which cooperation should take the place o f antagonism and suspicion. It seeks to bring about the integration o f health and safety. The Health and Safety Executive which has been set up includes Inspectorates and the Employment Medical Advisory Service and Dr Duncan stressed the need for action before the impetus created by the Act is lost. It is already hampered by over optimistic expectations of the practicability o f improvement on the one hand and by traditional suspicion on the other; there is a grave risk of dispute and ill feeling, which is aggravated by a deep-seated suspicion o f the independence o f professional advice. It is for industry, not primarily the Government, to take health and safety initiatives and if suspicion is to be dispelled there must be more openness than heretofore. Unfortunately, there are powerful pressures against this. Replacement of the handicapped in work is itself handicapped by high levels o f unemployment and by long-standing industrial customs and practices. Fewer jobs are set aside for the disabled, indeed fewer than there used to be. The difficulties need to be understood as well as what is required. * Abstracts of papers presented at a conference held at the Birmingham Medical Institute on 20 January 1978 under the auspices of the Institute of Accident Surgery. These abstracts are published in cooperation with the Midland Medical Review.

ABSTRACTS OF PAPERS Who is responsible for safety at work? Professor B. Harvey Visiting Professor at the Department of Safety and Hygiene, University of A ston The year 1945 was a year of revolution which changed social attitudes. The welfare state insured that the alternative to work was no longer the workhouse and it followed that ordinary people were now making the running rather than the Government. The dramatic developments in technology which followed the Second World War created the need for fundamental changes in our concept ofhealth and safety in industry. In trying to improve safety at work it is necessary to recognize that self-regulation is not the same as selfenforcement. Hazards at work have to be identified and then eliminated by providing precautions such as safer machinery and safer working methods. There has been a change in attitude in that management is now by consent and people are recognized as being as important as machines. There is now the concept, derived from the Robens Report, of participation by those who make the risks and those who take them---these are the Health and Safety Commission, local authorities, employers and employees. It has to be understood that whatever statements of policy arc made, as they should be, when they are concerned with safety they tend to attract much less attention than when they are concerned with production. It may be thought that policy should b¢ concerned principally with getting defective machinery, or other operations, going again, but the interest of production must not be allowed to override the interests ofsafety. It remains to be seen whether the pursuit of health and safety at work will save the money spent in trying to promote it. The benefits are not easy to measure in financial terms. The importance of health and safety needs to be made credible and to be believed, which requires the informed understanding of workmen. Health and safety, like a well run business, requires discipline and this too requires informed understanding. In answer to a question whether the health and safety committee should have teeth, Professor Harvey

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said that responsibility rested with management, not with the committee. A question suggested that the nitpicking to which the speaker had referred had begun already. Safety representatives have begun to appear, but they seemingly lack any understanding that they have an educational role; they find it easier to criticise management and are only too ready to use any available means of publicity in doing so. Professor Harvey acknowledged that there is still a good deal of ignorance and that explanation is difficult when hard and fast attitudes are adopted, but he was hopeful for the future. In answer to a reference to a comment about the lack of prosecution in the National Health Service, Professor Harvey said that there was doubt in his mind as to whether the service is a Crown organization, which is immune from prosecution, or not.

In estimating the social cost of industrial injuries, the contribution of industry in meeting their social responsibilities should not be forgotten. In answer to a question about any relationship between the length of time offwork and the sum payable in compensation, Mr Faiers said that this was taken into account, but a more significant factor was the loss of future earnings oftbe injured person.

I ndustry's contribution to compensation M. C. Faiers Corporate Staff Oirector, Risk Management A great many persons are awaiting the publication of the Pearson Report on compensation for personal injury; Mr Faiers defined compensation as making amends for a loss sustained. At present, compensation can be likened to a lottery, bringing out the worst in people and being dependent to a large extent upon the state of industrial relations. Present sources of compensation are the system of social security benefits, which are numerous and often confusing, claims at law against the employer and claims for benefit under accident insurance schemes. At present, industrial injury benefit is payable for 156 days, after which disablement benefit, is payable. The injury benefit is related to the injured person's earnings, but disablement benefit is related to the severity of injury. It was worth mentioning that claims for industrial injury benefits in the period 1971-76 fell from roughly 14 000 to 12 000 a year. Employers arc bound to insure their liability for common law claims made by injured employees; insurers have the difficult task of attempting to estimate what sums will be paid in compensation many years after claims are made. Sums paid out for insurance premia and social security contributions range between 11 per cent and 20 per cent of wage rolls. Claims for compensation give rise, like the payment of income tax, to an attitude that dishonesty is part of the game. Nevertheless, even in these days of very high awards, 80 per cent are less than £2000. There are increasing numbers of claims made in respect of trivial injuries which do not involve lost working time and union negotiators tend to use these claims as yet another facet in their general negotiations with industrial management~ As a result, employees tend to look for universal and automatic payment for any injuries received. It is essential that workmen should be made clearly aware of the risks they face and that the proper precautions are taken to control those risks; workmen should also be made aware of the duties of responsible employees.

The role of the trade unions R. Murray Senior Partner, Robert Murray A ssociates The United Kingdom has been slow to adopt the tripartite approach of collaboration of employees, employers and government in solving occupational health and safety problems. It is interesting to note that unions employ lawyers but not doctors and this is a sign that at least historically they have been more concerned with compensation than with preventing compensatable occurrences. Hopefully, the training of works safety representatives will be concerned with prevention. The Health and Safety at Work Act will not automatically convert every danger into safety. It gives the unions real responsibilities both on the Health and Safety Commission and on the shop floor, but the concept of health and safety at work could become a weapon for the unions, aided by the media, in trying to achieve absolute health and safety. But how is this to be measured? It is at times necessary to point out that whatever interpretation is put on legislation, man is still fallible and mortal. The three participating groups, i.e. the Government, employers and workers, need the best available advice on technical matters and the unions should hire suitable experts. In the United States 0"5 per cent of wages goes to pay for suitable research and this is an idea that might profitably be explored in this country. Compensation---who pays? J. W. Rogers District Organizer, Transport and General Workers Union There is a tendency to believe that the unions use accidents as a means of recruiting. There is, however, great diff, culty in persuading their members what is good for them. Statements of policy are generally made by those who do not need to; they are mostly useless and are too easily made as a mere gesture. It has been suggested that there should be bonuses payable for safety, but when this is done there is a tendency for employees to conceal injuries. Legislation has been slow and still leaves a good deal to be desired. Mr Rogers did not think that there is much abuse of the present system, but he did think that the system is too inconsistent. He referred to the wiles of lawyers and the shortcomings of some of them and he went on to express his dislike of handing to government departments the matter of awarding compensation.

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About 85 per cent of accidents occur not because of breaches of factory acts but because of carelessness, and compensation should be paid regardless of fault. Among the ensuing comments were the following: It is noteworthy that strikes are not used on behalf of safety at work. There is no benefit from the new protection of employment act--employees can still be sacked because of medical or surgical disability. The unions' efforts are not always constructive. There is no such thing in industry as light work and there is much difficulty in finding suitable work, especially for the unskilled. There is no logic in enabling the income of a person disabled at work to exceed his income while working. There are difficulties arising from confidentiality and the interpretations of differing opinions. The use of independent medical assessors was advocated. Unions could take more medical advice with advantage. Retraining of the disabled is rarely possible in the time allowed for it. Compensation should be accepted as including service as well as money. With the increasing replacement of men by machines there is an urgent need to devise a satisfying and useful alternative to work. AFTERNOON

SESSION

in his introductory remarks to the afternoon's session Mr P. S. London, a surgeon at the Birmingham Accident Hospital, defined accident surgery as the surgical and associated care of injured persons and admitted that the medical profession at times, and unwittingly, prolong absence from work by adopting a sympathetic rather than an exhortatory attitude. It was, for example, all too easy for j u n i o r doctors to fall in with the patients' wishes or opinions about further treatment and about fitness for work. Much could be done to abbreviate absence from work, given experience and a readiness to confer with general practitioners, doctors in industry and other representatives of the employers. It had occasionally been necessary to tell patients that lawyers and unions were acting improperly if they counselled prolonging absence for no other reason than the pursuit of a larger award. The maintenance of morale by the medical, nursing and other staff of hospitals was sometimes lost when a patient went home to an atmosphere of overprotective sympathy and pity. If possible, the injured workman should not lose touch with the working environment. It might be thought that surgeons would have little time for such consequences of injury as accident neurosis and so-called 'compensationiris', but he did not believe that these were of frequent occurrence. Frank malingering was very rare although it was only natural that patients" reactions and attitudes should be

coloured by self interest, which was in many ways supported by the necessary and repeated inquiries of doctors, lawyers and others and by the provisions of law. Psychological reaction to injury and disablement T. W. Fenton

Consultant Psychiatrist of Ho/tymoor Hospital and East Birmingham Hospitals A person's reaction to an injury is determined by his personality, the stresses and sources of insecurity in his current life situation and the physical damage and psychological threat implicit in the injury itself and its consequences. The range of reactions includes various organic psychoses, precipitation of major functional psychosis and neurotic reactions exhibiting a mixture of anxiety depressive and hysterical features. Whilst 'accident neurosis' is an acceptable synonym for true neurotic reactions following injury the concept of "compensation neurosis' is more questionable since at least some cases so labelled do not exhibit neurotic features but frank simulation of illness. The concept of accident neurosis was popularized by Miller's lectures on the subject, but it is not such a cut and dried condition as Miller's account had led some to believe. Personal and medical assessment of fitness to work F. C. Edwards

Senior Employment Medical Adviser, Health and Safety Executive It is necessary to make allowance for the effects both of disease and treatment in deciding whether a person is fit for work, which includes their liability to injury at work. The effects of alcohol have also to be borne in mind, together with the effects of prescribed and nonprescribed medication that may be taken at the same time. Assessing the degree of disability to take account of the loss of a part or of the usefulness of that part, one has to allow for the role played by both motivation and previous experience in reducing the duration of 'effective' disablement. Employment rehabilitation centres (ERCs) are, in practice, concerned more with assessing ability to work than with restoring it. The purpose and usefulness of ERCs might seem to be obvious but it is not easy to measure the latter and their effectiveness is being evaluated at present by the Employment Rehabilitation Research Centre. What is practicable and useful is to give injured persons a chance to try themselves out at work as soon as possible during recovery. The concept of disability is derived from the concept of what is accepted as normal and it does not take much consideration to show that normality is itselfa variable state. In assessing disability, one has to recognize that there is a large and important difference between convention and realism. In addition, loss of

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specific functions or abilities may be more relevant to one individual than to another, depending on personality, previous occupation and other influences.

The victim's view of disablement and compensation Rt Hon. Baroness Masham of Ilton Chairman of the Spinal/njuries Association Frustration is all too often the lot of the disabled patients and their relatives. Much can be done, but for one reason or another it is not done and in many cases the reason for failure could be overcome. Relatives are often burdened by the imposition of disability and insufficiently aware of what can be done and to whom to turn in seeking relief. The state and other bodies have provided many forms of relief and assistance, but it is remarkable how little those for whom they were devised are aware oftheir existence, let alone of how to invoke them. Even when the appropriate machinery is set in motion there is oRen enormous and unreasonable delay in the provision ofwhat is intended.

The lawyer's role in the assessment of damages for compensation after disabling injury M. R. R. H. Shipway Sohcitor, specializing in personal injury litigation In this country damages are ass~sed by judges as opposed to juries. While what damages are intended to achieve may be easily stated, it is obvious that in many casesthe aim of restoration is practically unattainable. While it is easy to form the opinion that the assessment ofdamages is liable to be arbitrary, those responsible for this function pay careful attention to relevant principles. These include compensation for pain, for loss of a part and for loss of enjoyment and in calculating financial loss they must take into account the injured person's expectations for the future. Damages may be classified as general and special. General damages relate to pain and suffering, loss of amenities and special damages to the actual provable loss, the prospective loss being part of the general damages award. The calculation of such damages is complicated and difficult because it has to take account of the differences between intellectual and physical activities, the financial changes as far as they can be foreseen, the disabled person's possible need for treatment, which includes the treatment and consequences of the injury that may or may not occur, and allowance has to be made for interest that may be payable on the sum awarded. By way of illustration, Mr Shipway gave examples of sums that had been awarded in recent years and the ways in which they had been arrived at.

CONCLUSION

In his s u m m i n g up the C h a i r m a n said that there is a great difference between intention and performance. W h a t is required is in essence: first, to m a k e an early assessment o f what the injured person's needs are; secondly, to plan medical and allied t r e a t m e n t with the patient's w o r k in m i n d so that, w h e n e v e r possible, s o m e use o f the injured part can be m a d e during the p r o g r a m m e o f treatment. E v e n m o r e desirable is to aim at continuity o f useful, and if possible, gainful activity up to the time o f return to work. Thirdly, to make the most o f statutory provisions but in a spirit o f s y m p a t h y and cooperation, using t h e m as a guide and not as a means o f seeking m a x i m u m and unreasonable advantage for one party. It was clear from what all the speakers had said that there was still great need for i m p r o v e m e n t .

Injuries at work and compensation.

Injury, 11, 77-80 77 Printedin Great Britain Injuries at work and compensation* INTRODUCTION DR K. P. DUNCAN, Director o f Medical Services, Health...
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