Compensation options for people
injured or made ill by their jobs

A little compensation
[Hazards 90, May 2005]

Workers lose billions each year as a result of occupational injuries and diseases. Some will never see work again. Hazards outlines what’s available from a system that provides consolation for some, frustration for most and proper compensation to no-one suffering as a result of their job.

SECTION 1: Summary

Britain’s compensation crisis

Britain has a compensation crisis. But it is not because of a runaway “compensation culture” – the government accepted the findings of a 2004 Better Regulation Taskforce investigation which concluded this was “a damaging myth” (1). Britain has a disposable worker culture, where tens of thousands suffer serious health damage each year, many getting nowhere near a compensation payout. Instead they face pain, hardship and uncertainty.

This is not a small problem. Millions in the UK say they suffer work-related ill-health. Health and Safety Executive (HSE) figures suggest there could be 700,000 new cases each year (2).

HSE says in 2003/04 an estimated 2.2 million people in Great Britain were suffering from an illness which they believed was caused or made worse by their current or past work. An estimated 39 million working days were lost overall, 30 million due to work-related ill-health and 9 million due to workplace injury. Almost 160,000 suffered reported occupational accidents.

An analysis of latest statistics from HSE, the government and insurers suggests no more than 1 in 10 workers developing an occupational disease or suffering a workplace injury get any compensation at all from any source.

The entire system is designed to deny sick and injured workers compensation for their pain, suffering and hardship by a process of legalised fraud. And it is not just an unfair system, it is an arbitrary system. Some of the most common occupational health problems in Britain barely get compensated at all.

Barry Welch, pictured as a child with stepfather Roger Bugby. Asbestos cancer kills 32-year-old Barry Welch, thought to be one of the youngest people in the UK to contract asbestos-related cancer, died on 27 April 2005. The 32-year-old father of three from Leicester was diagnosed with mesothelioma in 2004. His family believe he was exposed to asbestos fibres as a child in the 1970s when his stepfather Roger Bugby worked for Palmers Scaffolding. It is thought the exposure came from contamination on Mr Bugby’s clothing when he worked as a scaffolder on Kingsnorth Power Station, adjacent to the Isle of Grain. Barry was diagnosed with the cancer in September 2004 and given just six months to live. Barry Welch, killed by asbestos days before his 33rd birthday. At the time, he said: "I am an innocent victim. It just seems so unfair that my life will be cut short, even though I never knowingly came into contact or worked with asbestos." Solicitors for the Welches are pursuing a claim for compensation against Mr Bugby's former employer. Barry was not eligible for industrial injuries benefit because his asbestos exposure was not while working. And his family will have difficulty securing common law compensation because they will have to deal with all the normal barriers to a successful compensation claim and will not only have to prove his stepfather was negligently exposed to asbestos, but that Barry's exposure was also a result of the company's negligence. • Can you help? The Welch family’s solicitors, Irwin Mitchell, want to hear from anyone who worked with Roger Bugby for Palmers Scaffolding in the 1970s or with a knowledge of working conditions on the Kingsnorth Power Station. Contact Adrian Budgen or Martyn Hayward on 0114 274 4420.

SECTION 2: Workers pay for job hazards

Workers lose billions

The combined annual value of claims under the two major compensation schemes – common law compensation where you take a legal case and the industrial injuries benefit scheme run by the government - amounts to less than £1.5bn from around 80,000 claims.

It sounds a lot, but the figure is dwarfed by the cost borne by those suffering work-related accidents and ill-health. HSE estimates published in 2004 put the cost to individuals - the victims and their dependants - at between £10.1 and £14.7 billion in 2001/02 (3). Most do not get any compensation.

For example, HSE estimates that over half of all cases of work-related illness are musculoskeletal disorders (1.126m cases) or stress (over 0.5m). Most of the major successful stress damages cases have been taken by unions. A report from the TUC in 2003 (4) said only just over 2,500 new cases were opened by affiliated unions in 2001, less than 1-in-100 of the 265,000 people who HSE estimates first became aware of work stress-related health problems that year. Stress isn’t on the DWP industrial injuries scheme list of approved diseases, so no-one has received compensation though that route.

TUC says there were just 3,000 successful strain injury cases in 2001, a year in which HSE estimates 240,000 people developed work-related strain problems.

Around 260,000 people in the UK are receiving disablement benefit under the government’s Industrial Injuries Scheme. In the three years to 2003, around 60,000 claims were assessed each year under this scheme, although fewer than half of those making claims were successful and fewer still were awarded benefits, mostly because they did not satisfy the very restrictive qualification criteria.

In the year to March 2005 the number of claims for industrial injuries benefit dipped to 45,000, only 40 per cent of which were successful. Each year, about threequarters of claims – including many that are "successful" – result in no payment of benefits.

TUC head of safety Hugh Robertson believes the entire compensation system needs a revamp so it reflects the problems of 21st century workplaces and 21st century workers. He told Hazards: “The government’s industrial injuries compensation schemes were designed for the Britain of 60 years ago, when millions worked down the mines and the majority of the working population was male and manual.

"It has not caught up with the changing world of work where Britain’s manufacturing base has declined dramatically and where most now work in the service sector. As a result it not only fails those in the new jobs and employment sectors but also fails women, who are more likely to be found in the new jobs. Women now make up half of the workforce, but are barely represented at all in the jobs that receive most of the government compensation payouts.”

Figure it out

By HSE estimates, in any given year around 850,000 people in the UK either develop work-related health problems or suffer an occupational accident serious enough to be reported. Only about 80,000 people in any given year receive compensation awards of any kind, indicating more than 90 per cent of people whose health is damaged by their work receive nothing for their pain, suffering and hardship.

And the impact of work-related ill-health for many is a life-changing trauma. In its April 2004 submission to the Work and Pensions Select Committee on the work of HSE/C, the TUC commented “that 27,000 people every year leave work altogether as a result of a workplace injury or illness” (5).

The failure of the compensation system is most acute when it comes to those suffering work-related ill-health.The most commonly compensated conditions under both schemes, DWP and common law, are industrial accidents making up threequarters of the total, with occupational disease claims making up just a quarter of the cases settled. Yet there are considerably more cases of occupational diseases than injuries each year, and these cases lead to more than three times the number of sick days.

This discrepancy is no accident. The cause-and-effect of an industrial accident is hard to deny. However, for occupational diseases were there can sometimes be a period of years between the responsible exposure and the development of the disease, evasion techniques employed by employers, insurers and government agencies can vary from the cynical to the incredible.

Why they won’t pay

Someone has to pay for work-related health problems – and it is usually the victims. A comparison of occupational ill-health and accident prevalence and annual compensation statistics suggests that no more than 1 in 10 receives any compensation.

The reasons are varied, but all schemes have one thing in common – they place large and frequently insurmountable barriers between accident and disease victims and a compensation payout.

In common law compensation, some insurers acting on behalf of employers have taken measures to delay progress on cases. This can have two main effects. It can exhaust the patience and finances of a claimant so the claim just goes away. Or, in some cases, it can mean the claimant dies before a case is resolved. This may not be deliberate, but the outcome is the same.

In other instances, the employers and personal injury insurers have gone to extraordinary and extremely costly lengths to challenge cases that might establish precedents. It took a massive and risky investment by unions to establish the right to compensation for stress, strain injuries, vibration white finger, miners’ obstructive airways diseases and welders’ lung. In the latest move, insurers are challenging the right of claimants to receive compensation for pleural plaques, shadows on the lung indicative of asbestos exposure and possible future cancer risk.

The evasion can take many forms – challenging the science, the diagnosis, the occupational link, the blame, the integrity of the claimant, or – when all else fails – employing the “aw shucks” defence, “how could we have been expected to know?” With common law cases you can prove the case was caused by the job, but if you can’t prove employer negligence you get nothing.

Making big problems disappear

Many people do not know they can claim compensation; others do not have the support or resources to stand any chance of making a successful claim. This is why unions win a disproportionately large number of common law claims – members have access to knowledgeable union reps and to free legal support.

Even for those who get so far as submitting a claim, the route to compensation is never less than time consuming and usually difficult.

The government’s industrial injury benefits scheme has its own succession of barriers to claims. Disability thresholds, time constraints, restricted disease categories and other measures limit the number of claims that will be successful – more than half fail. Schemes in some other countries operate a “rebuttal presumption” that assumes a case is caused by work unless proved otherwise or “individual proof” cases where each case, whatever the condition, is judged on its merits. In the UK, however, a condition must be on the DWP list of prescribed diseases, must meet high disability thresholds and must be caused by work. The list itself is inclusive and very limited, missing off many of the more common occupational health problems.

Occupational stress is illustrative of the problems with both common law and DWP industrial injuries benefit. HSE suggests it is the second most common occupational health problem in the UK, after strain injuries. Yet Association of British Insurers’ figures show stress has never made up more than 2 per cent of the common law occupational disease compensation claims in any year, and never more than half a per cent of all workplace compensation claims (accidents plus diseases). Stress is not a prescribed industrial disease, so has never figured at all in the DWP industrial injuries benefit league table. This means at most a few hundred people in any year have received compensation for stress.

And for all the press coverage, repetitive strain injuries (RSIs) make up less about 1 per cent of all workplace common law compensation claims in the UK, or about 1 in 20 of the occupational disease claims. The two RSI conditions on the DWP industrial injuries benefit scheme – the “beat” conditions and carpal tunnel syndrome in certain very limited jobs and circumstances – make up less than 4 per cent of the total prescribed industrial disease awards or about 1 per cent of all DWP injuries benefit payouts. The other RSIs miss out entirely.

Even asbestos disease, an occupational killer known for over 100 years, is as likely as not to result in no DWP industrial injuries benefit payment, even for an asbestos specific and invariably fatal cancer.

Official figures obtained by Greater Manchester Asbestos Victims’ Support Group show that in 2002, of the 1,862 people who died from mesothelioma, only 54 per cent received industrial injuries benefit.

For lung cancer the figures are more shocking still. Despite asbestos related lung cancer being at least as common – and probably more than twice as prevalent – as asbestos-related mesothelioma, only 60 payments were made in the UK in 2001.

The missing millions

The government no fault schemes created to compensate ex-miners for occupational bronchitis and emphysema and vibration white finger illustrate how many cases might be going uncompensated. Compensation only became available in 1998, since when £2.5bn has been paid out. As of March 2005, 192,000 respiratory disease claims had been settled, totalling £1.3bn. A further 101,000 cases of vibration white finger had been compensated, with payouts totalling £1.2bn.

But these miners only received the lung disease compensation at all because mining union NACODS fought and won a costly nine-year High Court legal battle. A similar union legal case secured the VWF compensation deal. Without the union intervention, these near 300,000 compensation payouts – and the many more to follow – would never have been made.

For most conditions the great majority of affected workers will not receive compensation. For some extraordinarily important causes of workplace disability, conditions like RSI and stress, the chances of any recompense are vanishingly small.

TABLE 1 HSE ranking of occupational diseases

Sources
Self-reported work-related illness 2001/02, Results of a household survey, HSE, 2003.
Occupational Health Statistic Bulletin 2003/04, HSE, 2004.
www.hse.gov.uk/statistics

How many cases are hidden? An April 2005 Trade and Industry select committee report on the coal industry scheme to compensate coal miners with lung problems and vibration white finger commented: "The Department of Trade and Industry is responsible for the administration of the two largest personal injury compensation schemes in the world—one for Chronic Obstructive Pulmonary Disease (COPD) contracted by exposure to coal dust, the other for Vibration White Finger (VWF) for hand injuries caused by the use of vibrating tools." It said there are nearly 770,000 claims registered under the two schemes, which had already paid out more than £2.3 billion in compensation. DTI estimates the total costs will exceed £7.5 billion once all claims have been settled. More telling was the admission that the government had no idea of the extent of these work-related health problems. "Although the government failed initially to recognise the scale of the problem and therefore the likely demand for compensation under the schemes, it is not clear to us how a better estimate could have been produced," the select committee noted. It added: "With the benefit of hindsight it is clear that the original underestimate of the scale of the problem meant that the resources allocated to the compensation schemes were inadequate from the outset and that mistakes were made." There is no reason to suppose the government is any better fitted to recognise the true extent of uncompensated cases for a range of work-related health conditions. Even for the obstructive lung diseases and vibration white finger compensated under this scheme, there could be tens of thousands of construction, steel and other workers who have had similar damaging exposures but who are still suffering in silence and for whom there is no comparable scheme. Coal health compensation schemes, Select Committee on Trade and Industry, Fourteenth Report, HC 374, 6 April 2005. Summary • and full report DTI coal health scheme

SECTION 3: Making them pay

Common law compensation

Six figure common law compensation payouts make the headlines, but are exceedingly rare. Common law cases – also known as civil cases or damages - generate about 60,000 cases a year, where a lot of people get a little. Most settlements are below £5,000. Relatively severe occupational deafness will typically result in a payout of a few thousand pounds. The Association of British Insurers puts the average cost of each settlement – the payment to the victim and the associated legal and admin costs – at just £10,000.

The great advantage of civil compensation, or damages, is that any conditions caused by work are covered regardless of the level of disability. You must prove your health has been damaged by your job and this was the result of your employer’s negligence – the injury or illness was foreseeable and your employer could reasonably have done something to prevent it.

Unions take a disproportionately high number of the successful common law cases. However, the 70 per cent plus of the working population who are not in a union and don’t have access to free union legal services must rely on the legal services market, claims farmers and assorted ambulance chasers and can end up out of pocket or at least short-changed, because of hidden charges or just bad, inexpert representation - despite the “no-win, no-fee” claims.

Insurers pay out around £600 million a year to settle common law damages cases for industrial injuries and diseases. Accidents make up about 75 per cent of common law payouts each year, with occupational diseases contributing the remainder.

TABLE 2 Common law compensation claims
Top occupational diseases for 2003

Source
Based on ABI figures for 2003; figures cover 91 per cent of the UK insurance companies.

TABLE 3 Common law compensation
No. cases and amounts paid

Source
Based on ABI figures. Compensation costs are the cost to personal injury insurers, which includes any legal/admin costs as well as amount paid in compensation.

What price on your life? £10,000 FOR A SON  Annie Little, who saw her shipyard worker son Ian Cruickshank die a "horrible" death aged 52 from the asbestos cancer mesothelioma was awarded £10,000 damages in January 2005. The compensation award was against the shipbuilders Fairfields, Upper Clyde Shipbuilders and Govan Shipyards. Mrs Little's solicitor-advocate Frank Maguire of Thompsons solicitors had argued for an award of £20,000, but lawyers for the shipyards said £3,000 to £4,000 would be appropriate. Judge Lord Brodie said £10,000 was "a just figure." UNION DIVIDEND  Chris Simmons, a member of the union Community, was awarded nearly £620,000 in 2004. Thanks to union backing, he secured more than 150 times the original offer in a case that went to the House of Lords. A fall at British Steel (now Corus) caused head injuries and led to a depressive disorder and exacerbated a skin condition. The union had contest an earlier award of £3,573.60 plus interest from the lower courts. HOSTAGE PAYOUT  NATFHE member Phil Danielson, a former senior lecturer taken hostage for 44 hours by notorious prisoner Charles Bronson was paid £35,000 compensation in 2004. The settlement with Hull City Council was for the severe post trauma stress disorder he suffered as a result of the attack, which was followed by three nervous breakdowns. It put an end to his teaching career. Hazards workplace compensation database

Industrial injuries benefit

The DWP industrial injuries benefit scheme’s weekly benefit payments are calculated on a sliding scale, depending on degree of disability. However, with an average weekly payout of over £40, these can add up to a significant amount over time. Another advantage is that the scheme is “no fault” – you don’t have to show the injury or ill-health resulted from your employer’s negligence.

But there are severe restrictions on who can claim, for what conditions and in what circumstances. The scheme covers injuries and an inclusive list of around 80 diseases in 67 categories known to be caused by work. To qualify there are conditions to satisfy, including disability thresholds. You must be “14 per cent disabled” for most health problems, which is a significant level of incapacity.

There are time limits for occupational deafness and asthma, and rules about what job you have done for other diseases. Many common conditions - notably most RSIs and stress – are not compensated by the scheme.

About threequarters of all payouts are for industrial injuries, just a quarter for prescribed industrial diseases.

Around £700 million is paid out each year.

TABLE 4 DWP prescribed disease benefits
Top occupational diseases

Source
Ranking is based on total numbers nationwide in receipt of industrial injuries disablement benefit by condition.
Source: DWP industrial injuries benefits in payment figures, as of March 2002.

Other schemes

Almost all local authority employees should have access to a largely unpublicised, union negotiated, no-fault scheme run alongside their pension scheme. The NHS and the civil service run similar schemes. All can provide exceptionally good benefits – it is crucial workers in public sector jobs explore these options if they suffer work-related injury or ill-health.

Unions often assist members who have been victims of violence at work to claim compensation through the Criminal Injuries Compensation Scheme.

Other government schemes, like the massive miners’ scheme picking up British Coal liabilities for compensation for white finger and lung disease, can be enormously important to affected workers. There have also been a series of single issue no-fault schemes set up by agreement between unions and insurers, covering issues including occupational deafness and radiation and other cancers caused by workplace exposures.

Workers can claim in more than one way for the same injury or illness, but payments received are likely to be offset against one another (see table 6).

Both the JobCentrePlus decision on eligibility and assessment of level of disability can be appealed, but this must be done promptly. Claimants will need expert advice – from an experienced union rep or officer or a welfare rights adviser, for example.

TABLE 5: Types of compensation

Click here to view full table for the Hazards guide to claiming compensation.

TABLE 6: Interaction of claims

SECTION 4: Action

Safety rep checklist

The better your evidence, the better the chances a compensation claim will be successful.

• Ensure all union members know the union should be the first place they go if they have concerns about possible work-related ill-health or are considering a claim.

• Keep copies of risk assessments on file, so you know who was exposed to what hazards and where.

• Undertake risk and body mapping exercises – these can uncover hidden links between jobs and ill-health, which can aid prevention and claims. Keep dated copies, together with a summary of the key findings.

• Record in the accident book all symptoms linked to the job. Always report problems, regardless of how trivial they may at first appear.

• Inform management formally and at the first opportunity of concerns about actual or potential work-related health risks.

• Make sure workers know to tell their GP about hazardous exposures and that the GP records this in their medical notes.

• Ensure workplace occupational health records acknowledge workplace risks and suspected work-related ill-health – remember, occupational health records are in most cases entirely confidential (Hazards 89).

• For some occupational disease claims, witness statements can be the best evidence you can obtain – get statements from workers or ex-workers familiar with workplace conditions that lead to the disease. Workplace photographs can provide crucial evidence on working conditions.

• Remember, once a worker has been told there is a link between their job and their ill-health, the compensation clock is ticking. Delay too long and a compensation claim could be ruled out of time.

TABLE 7: The law on compensation

References

1. Better routes to redress, Better Regulation Taskforce, 2004. www.brtf.gov.uk
2. Occupational Health Statistics Bulletin 2003/04, HSC, 2004. www.hse.gov.uk/statistics
3. Interim update of The costs to Britain of workplace accidents and work-related ill-health in 1995/96, HSE, 2004.
4. Focus on legal services for injury victims, TUC, 2003.
5. A paper on the TUC approach to rehabilitation, April 2004. more
6. HSE mesothelioma incidence statistics.
7. DWP Industrial Injuries Disablement Benefit statistics, September 2004.
8.Tom Treasure, Artyom Sedrakyan. Pleural mesothelioma: Little evidence, still time to do trials. Lancet, volume 364, pages 1183-85, 2004. View full text online
9. Asbestos related disease statistics – FAQ, HSE, March 2005. [pdf]
10. Henning Wriedt, Arbeit und Gesundheit, personal communication, 16 September 2003.
11. Industrial Injuries Advisory Council website, accessed 6 May 2005 and information provided by DWP.

Resources

Common law claims: Association of Personal Injury Lawyers (APIL), 11 Castle Quay, Nottingham, NG7 1FW. 0115 958 0585. Homepage

DWP industrial injuries benefit: JobCentrePlus • Accidents guide • Prescribed diseases guide • DWP guide to IIDB [pdf]

Criminal injuries: Criminal Injuries Compensation Authority, Tay House, 300 Bath Street, Glasgow, G2 4LN. Freephone: 0800 358 3601. Tel: 0141 331 2726. Homepage

Civil service injury benefits scheme. Online guide [pdf]

Guide to the NHS injuries benefit scheme. Online guide [pdf]Pneumoconiosis: JobCentrePlus. Freephone 0800 279 2322. Online guide

Miners’ compensation for bronchitis and emphysema and vibration white finger, DTI webpage

Use the Hazards detective to see if you job is making you sick.

TUC guides
Claiming benefits after an accident or disease under the Industrial Injuries Scheme and
WorkSmart guide to common law compensation claims