Rehabilitation
Rehabilitation and Compensation.
A priority for the TUC is to work in partnership with employers, government and a wide range of other stakeholders to solve working people’s problems and enhance their opportunities
Rehabilitation and Compensation are crucial to any strategy of reducing the numbers of people claiming sickness, invalidity and other benefits. However it must always be secondary to the principle of prevention. The TUC believes that the key task of any government must be to prevent people getting injured, or made ill through work. However, when an injustice has been done the victim should be entitled to redress for any loss or injury. In many cases the actual loss or suffering can be mitigated if the person has early access to rehabilitation.
Trade unions do not see litigation as an obstacle to rehabilitation, because despite the adversarial aspects of compensation cases, they have been one of the main drivers for interest in rehabilitation. It is worth noting though that in practice the vast majority of people, for whom rehabilitation would be useful, never lodge a claim. A TUC survey showed that only one in eight people injured or made ill through work made any claim from either their employer or the state.
It is better health and safety standards that will reduce the number of people who are injured and made ill by their work every year. However, rehabilitation is vital for those people who fall through the health and safety net, and can make a contribution of its own to improving health and safety standards especially where people return to work after injury.
The costs of injury and illness - to the victim, their employer and society as a whole – are unsustainable. Rehabilitation is much cheaper than the alternative, and employers need help to identify those costs and benefits more clearly – and that could be a major contribution from the insurance industry.
Once people are committed to rehabilitation, they will quickly see that the question isn’t how much to spend, but how much we can save.
Person Centred Approach
The TUC has supported the concept of the “injury cycle” in which a person-centred approach to rehabilitation, rather than looking at the injury itself, is taken and which seeks to intervene at the appropriate time with the appropriate intervention. This approach clarifies the various responsibilities for aspects of rehabilitation, and ought to be adopted more widely in addressing the policy issues behind rehabilitation.
There is a need for a legal requirement for employers to have a policy framework in place. Small firms will need help to develop these policies, and the insurance industry can help here, too. Our research shows that there are a number of factors, including a proper policy framework, which will produce better rehabilitation provision. In particular, we would emphasise the role of consultation with and involvement union representatives, for instance over drawing up the policy framework
Rehabilitation should not be restricted to those who are away from work as a result of their injury or illness. We believe that the earlier rehabilitation kicks in the better the results are likely to be. Nor should it be focused on physical illness or injury at the expense for example of people suffering from stress. Rehabilitation should focus on a range of interventions and not be restrictive. It should be used to ensure a proper return to work for anyone whether or not the injury or illness has been caused by work, not least so that their injury or illness does not recur.
Our main concern is that workers who are injured are too often left to fend for themselves in terms of seeking medical and other care, with the result that 27,000 people every year leave work altogether as a result of a workplace injury or illness.
Rehabilitation and health and safety policies
We need to see the development of a rehabilitation policy framework in the workplace.
Our preference is for that to be part of the mandatory health and safety policy, partly because of the way that will link the two issues (rather than have the rehabilitation policy in competition with or undermining the health and safety policy) and partly because it will build on an existing framework of consultation with safety reps and so on. However, we recognise the importance also of integrating rehabilitation policies with those related to disability, sickness absence and retirement. The key issue is that employers need to have a policy in place in advance rather than reacting ad hoc. It is also important that rehabilitation and sickness absence are not linked with the disciplinary system.
TUC research identified a number of factors that are proven to speed up access to rehabilitation. For example, having a policy framework in place ahead of the injury means that people know whose responsibility each step of the response should be. We also found that a no blame culture could underpin early referral to medical advisors to identify the injury/illness and appropriate responses.
Funding
There is no single financial system that would underpin every form of rehabilitation. However on the principle that “the polluter pays”, there will be times when it is appropriate for the employer to meet all the costs, especially where they are responsible for the cause of injury and illness.
There may also be circumstances where it is appropriate for the state to fund rehabilitation, especially through the benefits system in terms of financial support and the NHS in terms of provision. The TUC is particularly keen to ensure that there is a nationally available scheme, free at the point of use, where employees, the self-employed and small business can receive advice and treatment. We therefore welcome the development of the “Workplace Health Direct” pilots, although believe that some changes are needed to make them relevant to the requirements of workers.
Unified approach to rehabilitation
One approach which could be adopted is the case manager concept. The Australian system of rehabilitation suggest that case managers could be recruited from the personnel/human resources profession, although some rehabilitation providers prefer to use medically qualified personnel (not least to deal with the reaction of other medical professionals) – although there is concern that this might promote too medical a response to injury and illness.
Whatever the professional background of case managers, their need for strong interpersonal and organisational skills are the key requirements. Counselling and advice skills would also be valuable.
There is a great deal that individual actors could do. But overall, trust and openness are the keys to the successful involvement of stakeholders. This is in particular underpinned by the TUC’s findings that a shift of emphasis in absence management away from disciplinary processes and towards an initial assumption that absence is genuine and that illness and injury are occupational in nature leads to good practice. This mirrors advice which has been issued by the HSE.
Consultation with unions at every stage in the process, from developing the policy framework through to operating it and representing injured workers, is vital. To carry out these functions, union representatives will need training and information, as well as the time and resources from management to take an active role in the process. This too may require new legislation to ensure that it happens.
This would be the foundation (as long as other parts of the jigsaw such as no blame approaches to sickness absence management are in place) for unions to encourage their members to take an active role in their own rehabilitation, and for unions to build rehabilitation approaches into their work on health and safety and legal compensation services. Although rehabilitation is not an alternative to compensation, it will understandably reduce compensation awards if less time off from work results.
The main problems seem to be a lack of a joined-up approach to rehabilitation, a lack of understanding of the costs and benefits of rehabilitation, and lack of access to rehabilitation advice and services. It is clearly the case that in some organisations there is lack of trust in employees by managers and employers which leads to disciplinary approaches to sickness absence management and that needs to be overcome.
The role of Government
The key role that Government could play is to be the champion of a new approach to rehabilitation, and leading by example (including as an employer itself) in joining up the various parts of Government with a role in rehabilitation and clarifying the role of the various parties to rehabilitation, particularly in relation to the NHS, where occupational health issues do not feature in the NHS charter, and occupational rehabilitation does not appear in any of the current targets. Improved guidance for GPs on their role in relation to the working life of their patients would be of great benefit.
As well as developing a policy framework, employers would benefit from the provision of advice and guidance from the Government (probably through the HSE) and insurers, as well as unions and their own trade associations, about how best ways to address rehabilitation. They also need more access to services, which will only come if there are sufficient trained staff eg case managers, physiotherapists and other occupations allied to medicine, vocational trainers and so on. These are best provided not only through employers, but also direct through GP’s surgeries so that the worker does not necessarily go through their employer.
The key services which need to be made available in workplaces are an early reporting system and an ability to provide work and workplace adaptations. But there is a huge range of other services that can be directly provided, contracted in or signposted. Some employers will offer the full range in-house, and others will need to use the services of outside agencies, principally the NHS.
The role of the insurance industry
It is often suggested that Britain does not have a no-fault compensation system, but of course it does, in Industrial Injuries Disablement Benefit. More money is paid out to those injured or made ill by work through this system, than under common law compensation claims.
Trade unions in countries with wholly no-fault schemes, such as Australia, Canada, New Zealand and the USA (and even there, lawyers have found other ways to sue negligent parties, such as product liability cases in the USA) point to the problems of no-fault schemes, in that they generally produce lower levels of compensation overall (because the overall budget is always under pressure) and exclude large numbers of conditions recognised in tort systems (eg stress and often musculo-skeletal disorders – which are the two commonest complaints at work!) These faults are all too evident in the IIDB system, and the tort system of civil compensation provides a necessary correction.
It is also argued that no-fault systems based on insurance are more effective in reducing injury and illness rates because they allow for premiums to be based on performance (also possible in the tort system) and channel funds from premiums into prevention and rehabilitation. Some scepticism should be in order here because all the countries studied by Greenstreet Berman actually have worse health and safety records than Great Britain. The effects of financial incentives reported in these countries may already have been achieved in Britain – indeed they may only have these effects in economies with very poor health and safety records.
The main problem with tort-based compensation is the suggestion that, because there is a requirement to prove fault, the effort required to prove a compensation case (and the legal costs in particular) is disproportionate to the outcome and may deter people from claiming. All the evidence is that this is not in fact a problem – unions which provide legal services and therefore essentially remove the problem from the claimant have found that their claims are stable and much higher than for the general public. However, with conditional fees available, the level of non-union public claims rose rapidly reaching a level of claims much nearer to the trade union rate. However the overall rate of claims for both groups is now falling.
Litigation
EL insurance/civil litigation should provide mechanisms and incentives for preventing injuries and illness at work, but this is not often the case.
Despite the cost benefits, at present there is no incentive for employers to put resources into rehabilitation as the payout for any injury will be met by the insurance company, or the state, but the cost of rehabilitation will come from the employer. Insurance companies are also often unwilling to offer rehabilitation at an early stage because of their reluctance to admit liability.
Although EL Insurance is seen as a way of guaranteeing compensation where an employee is injured through negligence, EL insurance and civil litigation should equally be viewed as a way of supporting an expansion of the availability and use of rehabilitation.
It is sometimes suggested that we should not try to expand eligibility for compensation, or the level of awards, because the costs of compensation systems are passed on to the customers of the party that pays the compensation.
In reality most workers do not claim, and even where they do either the state pays (in the case of Industrial Injuries payments) or the employers insurance policy pays – although even in these cases much of the cost is still met by the state in respect of NHS costs and benefits.
The no-fault system
It has been argued that no-fault systems based on insurance are more effective
in reducing injury and illness rates because they allow for premiums to be
based on performance (also possible in the tort system) and channel funds
from premiums into prevention and rehabilitation, however, as stated earlier,
all the countries with no-fault systems studied by Greenstreet Berman actually
have worse health and safety records than Great Britain.
Traditionally insurers have taken the view that rehabilitation is only appropriate
for catastrophic injury such as quadriplegia. In practice, the business case
for rehabilitation will rely far more on dealing with RSI, back strain and
stress, the main causes of occupational illness and injury, however these
conditions benefit most from early intervention, and insurers are very reticent
to admit liability early on.
The claimant is generally looking for a return to a situation that is as close as possible to that which existed before the injury, together with suitable reparation for the pain and other losses suffered. A rapid return to health and restored earnings potential would probably be valued much more than securing a sizeable lump sum in compensation.
In practice, however, few people look to litigation as the solution to their problems after injury. Often, the decision to take a case against the employer is spurred on by the poor response of employers to the injuries sustained – a concern over future liability often means that employers do not apologise, and take inadequate steps to offer redress and assistance.
This underpins most of the legal work of trade unions, and their experience is therefore that the negative role of litigation, often referred to by the ABI as an obstacle to rehabilitation, is in fact the effect of lack of adequate procedures for handling injured workers. If rehabilitation systems were in place, as the injury cycle model suggests, compensation would be a part of the rehabilitation process, but would come at a fairly late stage, once it was clear how far the claimant could return to health and work.
It is the existence elsewhere of a robust legal system that has created the spur to better rehabilitation, and the experience of countries with no-fault compensation schemes is not that this has increased access to rehabilitation, although countries with good systems of rehabilitation do seem to move towards no-fault compensation.
The TUC believes that improvements can be made in the way that employer liability insurance-based compensation and the Industrial Injuries Disablement Benefit system work (as a start, the levels of compensation need to rise dramatically). However, we believe that no-fault compensation cannot be the only method of compensation available. We continue to favour a mixed system.
Funding
At present large numbers of people get no compensation after an injury or illness and of those that do get compensation the cost is just as likely to be met by the state. In practice it is the occupational illnesses where state compensation is more likely to be received. In addition insurance premiums have little relationship to the actual health and safety record of an employer. This means that there is little economic incentive on employers to provide access to rehabilitation as a way of mitigating costs.
In addition it is often difficult to separate occupational illnesses and injuries from non-occupational ones, yet if an employer provides an occupational health service, including rehabilitation, anything that is not strictly “occupational” is taxable.
The funding of the compensation system, and the ways in which rehabilitation are funded need a thorough review.
However, there are many potential implications in revising the way that employers pay for injuries and illness, not least the question of creating a two-tier health service where those injured at work receive better treatment than those who are injured elsewhere. There will be winners and losers from any reform, and the need for full debate and consultation is paramount.
Nevertheless we do believe that the state compensation scheme (Industrial Injuries benefit) should be linked much more to prevention with part of the funding being raised from employers based on their accident and illness record. However the TUC is aware that many of the claims are historical and rise from industries that have now disappeared or shrunk considerably and any such fund should reflect current, not historical, practice.
In terms of rehabilitation, the TUC believes that the most effective approach would be to:
- Require employers to calculate the costs of their health and safety system (including the relative costs of absence and rehabilitation), by developing a new standard for auditing based on risk management principles – this may make the choices so clear that raising the level of premiums will not be necessary;
- Require employers to have a rehabilitation policy as part of their (already mandatory) health and safety policy, thus encouraging insurers to provide employers with assistance in considering the possible benefits of providing rehabilitation, perhaps through a new class of insurance;
- Allow the NHS to recover the costs of treating workplace injuries and illness from employers, as they are already able to recover the costs of road traffic accident treatment. This has already been consulted on.
- Change the tax system so that health benefits, and rehabilitation are not taxable.
Rehabilitation services should be provided through the NHS through a national system of rehabilitation. There needs to be a range of funding available, with the costs being met by the employers, but even within that it would be likely that, in practice, larger employers would self-fund and self-provide. The insurance industry could also provide an enormously useful system for providing collective funding and provision, using services provide through the NHS. This will be especially important for smaller firms. But it is worth noting that in the construction industry there is widespread support for a collectively funded occupational health service which could provide access to rehabilitation.
Prevention is better than cure
This paper makes clear that the TUC recognises the need to better integrate existing occupational health and rehabilitation provision, improve access to specialist services, and to support community based occupational health projects. However, the TUC is concerned to ensure that effective means of preventing occupational ill-health are available to all working people and their employers.
Over the last decade or so the Health and Safety Executive’s Employment Medical Advisory Service has been decimated, starved of resources and staff. EMAS used to be able to provide comprehensive occupational health advice particularly to small business, or those who did not have their own in-house advisory service, on workplace health hazards and the steps to take to prevent them. Such a service no longer really exists. The Health and Safety Executive does promote rehabilitation but little has been done to advance the need for a occupational health prevention service and relies instead on a voluntary approach by industry. History has shown that, but for a few major companies, this does not work.
The TUC supports calls for the proper resourcing of EMAS to drive forward occupational health in Great Britain and provide leadership to the system. Setting up alternatives to a properly funded EMAS will not be cost effective in terms of the benefits secured for the resources spent. A fully restored advisory service, such as EMAS, would be effective in providing incentive to employers to make occupational health provision and would be able to provide the necessary advice to employers, as Parliament originally intended, when it was set up under the Health and Safety at Work Act. Prevention is always better than cure.
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