Can you Handle it?
First test lift after injury and rehab' causes another injury
The claimant worked for an Ambulance Trust. She had had a car crash resulting in back injury and had been off work. The defendant put her on an occupational health rehabilitation course. She had completed that and been passed fit to work by the OH doctor.
It was a condition of the Defendant that she pass a lifting test before working again. The test was to lift a 14-stone person in a Rumbold chair with the help of another colleague. That was to represent the required working standard of lifting a patient who weighed 14 stone up a flight of stairs.
The claimant was injured performing the lift.
There was no warming up or incremental lifting before the test lift. The claimant’s orthopaedic consultant, Mr Osborne, said there should have been after such a period off work. In dealing with allegations of negligence, the Judge accepted entirely the defence that the whole point of a test was to recreate reality and warm ups and so on defeated that object.
The test may have been dangerous but it was the works standard.
On the allegation of a failure to risk assess the specific lift for the member of staff in rehab’ (as opposed to a general assessment disclosed for the lift itself) and thus a breach of the Manual Handling Regulations 1992 he found for the same reason as above that the assessment had to be as for a real life situation or it had no point.
They had reduced the risk of injury to the lowest level reasonably practicable through sending her on a course and passing her fit to attempt the test.
“If the test were to be hedged about with the precautions for which the claimant contends it would lose most, if not all, of its value.”
The claimant lost.
Deduction of receipts capped to period of loss claimed - a judicial review
There is an important judicial review judgement for anyone who does these claims, in particular the bigger claims with future losses.
Receipts such as social security benefits (para 45 of the scheme) and occupational pensions (paragraph 47) should only be deducted for the period for which a loss (here a loss of earnings) is claimed.
The CICAP are not appealing the decision.
We can get these disbursements back – we recentlly got back the cost of a psychotherapist’s report and GP record fee after a hearing.
The authority for this is C -v- the Home Office and CICA, (2004) EWCA Civ 234 applying paragraph 20 of the scheme where the claimant has acquired reasonable expert evidence when, in fact, the CICA has a duty to do so under that part of the CICA scheme.