Work related back injury

More than one third of all over three day injuries reported each year to the Health and Safety Executive and local authorities are caused by manual handling and the majority of these accidents cause back injury.

• Three quarters of heavy manual workers will attend their G.P. complaining of back pain some time during their working life.
  
  
• Some three fifths of sedentary workers experience back pain during their working life.
  
  
• In 1995 an estimated average eleven million working days were lost through musculo skeletal disorders affecting the back.
  
  
• The cost to the NHS is four hundred and eighty million pounds per year.

Types of injury

Manual handling accidents at work tend to result in strains and sprains to muscle and soft tissue. Hernias can result and sometimes there can be damage to the intervertebral discs, fractures of the bones of the spine and entrapment of nerve roots.
Damage can either be caused by a single incident (such as a slip or a fall) or from a combination of repetitive actions.
Those at highest risk are normally involved in manual handling. Some 40% of workers are in employment involving lifting or moving heavy loads for at least a quarter of their time at work.

The Manual Handling Operations Regulations 1992

These Regulations cover the moving of objects by hand or bodily force. They impose duties upon employers in relation to manual handling tasks at work.
An employer should :-

• Avoid the need for hazardous manual handling and lifting jobs as far as reasonably practicable
  
  
• Carefully assess the risk of injury from any hazardous manual handling and lifting jobs that cannot be avoided
  
  
• Reduce the risk of injury from hazardous manual handling and lifting jobs as far as reasonably practicable.

Employees have duties under the Regulations and should :-

• Follow appropriate systems of work laid down for their safety
  
  
• Make proper use of equipment provided for their safety
  
  
• Co-operate with their employer on health and safety matters
  
  
• Inform the employer if they identify hazardous handling activities
  
  
• Take care to ensure that their activities do not put others at risk

Other Health and Safety Legislation of relevance

• Health and Safety at Work Act 1974 Imposes duties that employers have towards employees and members of the public. The degree of risk in a particular job or work place needs to be balanced against the time, trouble, cost and physical difficulty of taking measures to avoid or reduce the risk.
  
• The Management of Health and Safety at Work Regulations 1982 Makes more explicit what employers are required to do to manage health and safety under the Health and Safety at Work Act including the requirement to carry out a risk assessment if more than five people are employed.
• Workplace (Health, Safety and Welfare) Regulations 1992 Covers a wide range of basic health, safety and welfare issues including work stations, seating and lighting.
• Health and Safety (Display Screen Equipment) Regulations 1992 Sets out requirements for work with Visual Display Units.
• Provision and Use of Work Equipment Regulations 1992 Requires that equipment provided for use at work, including machinery, is safe.
• Construction (Design and Management) Regulations 1994 Covers safe systems of work on construction sites.

Injured your back at work? - Entitlement to compensation
Compensation is recoverable only if it can be shown that the employer (or a third party for whom the employer was responsible) was wholly or partly to blame for the accident.
If neither the employer, nor any third party for whom the employer was responsible, was to blame for the accident, compensation may not be recoverable although the injured employee may remain entitled to state benefit.

Employers have a duty of care to provide a safe place of work, safe plant and equipment, a safe system of work and reasonably competent fellow employees. To succeed in a claim for personal injury caused at work an employee will need to establish negligence (fault) by his or her employer. The following must be proved in order to establish negligence on the part of the employer :-

• That there was a breach of the duty of care.
  
  
• That the breach caused the injury.
  
  
• That the employer should reasonably have foreseen the risk of injury from the breach of the duty of care.

Breach of Duty

An employer must do all that is reasonably practicable to eliminate or minimize the risk of injury to an employee. An employer should carry out a risk assessment of any hazardous manual handling and lifting job which should consider and specifically address and identify any potential hazard. The following are some of the problems to look out for when making a risk assessment :-

The load to be lifted

· Is it heavy, bulky or unwieldy?
· Is it difficult to grasp?
· Is it unstable or unpredictable?
· Is it intrinsically harmful e.g. sharp or hot?

The tasks involved for a lifter

· Do they have to hold the load away from the body?
· Do they have to twist, stoop or reach upwards?
· Do they have to turn as well as lift?
· Are there long carrying distances?
· Are the tasks repetitive?
· Is there insufficient rest or recovery time?
· Is there a work rate imposed by the process?

Has the lifter been trained?

· In how to recognize harmful manual handling?
· In how to use mechanical aids.
· In good handling techniques?

The Working Environment

· Are there constraints on posture?
· Are there variations in levels?
· Is there poor lighting?
· Are there restrictions on movement or posture from clothes or personal protective equipment?
· Are floor surfaces level?
· Are there hot/cold/humid conditions?

Causation

The injury complained of must have been caused by the system of work or the work must have made a material contribution to the employee’s condition. Often a back injury caused by manual handling will be cumulative rather than have been caused by one incident. In such circumstances, claims for compensation are more difficult as a detailed history of work activity over a period of time must be looked at. The fact that symptoms have developed over a period of time will not prevent the possibility of a successful claim particularly if the breach of duty has been consistent.

Foreseeability

An employer has a duty to take reasonable steps to avoid a foreseeable risk of injury to an employee.

Time Limits

Any action claiming damages for negligence (including a back injury at work claim) requires the issue of court proceedings within three years from the date any specific incident causing the injury occurred or where an employee has suffered a cumulative injury over a number of years the three year time period may not commence until a medical diagnosis attributing the back injury to the work process has been made.
This is a complicated issue and appropriate legal advice should be taken at an early stage.

Pre-Existing Back Disease

An employer found to be responsible for injury will only be liable to compensate an employee for injuries caused by the fault of that employer. An employee with a pre-existing back problem aggravated by the fault of the employer will only be compensated for the worsening of his or her condition. Medical evidence will be required in order to identify the extent of the aggravation of the back condition caused by the injury at work or the bringing forward of the back condition where caused by pre-existing disease in the back.

Awards of Compensation

General Damages

General Damages are those awarded for the pain, suffering and loss of amenity caused to the injured employee as a result of the accident. Guidelines exist by which Judges assess the appropriate level of general damages dependent upon the severity of the injury suffered and the length of recovery period.

Special Damages

These are damages for the financial loss and expense incurred as a result of the injury and may include :-

• Net loss of earnings including future loss.
  
  
• Care costs including gratuitous care where assistance is required, for example, with domestic tasks including DIY, gardening and shopping.
  
  
• Travelling expenses for medical advice or treatment including the use of own car.
  
  
• Private medical expenses including painkillers, physiotherapy, prescription charges, aids and private medical treatment.
  
  
• General expenses/losses including increases in normal household expenses such as heating and lighting incurred through being at home more often.
  
  
• Capital expenses - these could include alterations to the home if difficulties with mobility arise such as the installation of a downstairs toilet.
  
  
• An award can be made for disadvantage on the open labour market caused by the injury and for the loss of a job which the injured employee enjoyed.

The Compensation Recovery Scheme

The Social Security (Recovery of Benefits) Act 1997 provides that the insurer of the employer has to repay to the Compensation Recovery Unit an amount equal to all the relevant benefits paid to an employee in respect of the injury. The Insurer is only permitted to recover these benefits from the employee against special damages and then only like for like against :-
· Loss of earnings
· Cost of car
· Loss of mobility

Benefits are not recovered from :-

• General damages for pain, suffering and loss of amenity.
  
  
• Medical expenses.
  
  
• Pension loss or loss of services.
  
  
• Damages for disadvantage on the open labour market or for the loss of a job which the injured person enjoyed.
  
  
• Benefits paid after the date of settlement of the claim.
  
  
• Benefits are only recoverable for a maximum of five years from the date of accident or injury.