Complainant

Respondent

Anonymised Parties

Worker

Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030835-001

10/09/2019

The claim is for the full extent of the company scheme known as the Occupational Injury Leave to be extended to the employee. Based on the medical advice received, the employer decided that the terms of the scheme do not apply in this case.

The Occupational   Leave Scheme as extended in 2005 applies to employees following an accident at work. The employee was involved in an incident at his place of work in August 2018. He returned to work without any break. In November 2018 he reported after effects to the medical adviser to the employer citing stress and an inability to do his work. The employee has attended all medical appointments with the employer medical adviser since November 2018 and has also attended external medical advisers and participated in counselling since then. He contends that the after effects of the incident in August 2018 were recognised by all medical advisers but that the employer medical adviser is preventing him from receiving the benefits of the Occupational Injury Scheme. Due to the refusal to apply the terms of the scheme he has suffered more stress.

The Occupational Leave Scheme as extended in 2005 applies to employees following an accident at work. In this case, the employee reported no ill effects from the incident in August 2018 to his line manager at the time or subsequently. While he told the medical adviser in November that he had difficulties doing his job-he did not report this to his line manager who was unaware of this until contacted by the medical adviser. The appointment in November was a routine medical assessment and nothing out of the ordinary or related to the incident in August 2018. The employee reported other issues which were causing him stress to the company medical adviser   which were personal and unrelated to the incident of August 2018. The employee was tested for PTSD but was not found to be experiencing this condition either by the employer medical adviser or the external medical support person. Accepting that the employee was greatly stressed when he found he would not receive the financial payments under the scheme, he was not entitled to the payments when the company medical adviser did not find that his medical issues were directly related to the incident at work to a sufficient extent as measured on the relevant clinical measurement tool. The medical advisers report must support the claim. Concession of payment of the terms of the scheme in this case would create unacceptable precedents for future claims not signed off by the company medical adviser. The employee has not returned to work and is on the long-term disability scheme, which it was submitted is quite unusual for this type of case.

As observed to the complainant at the hearing, the information available to HR at that time and when decisions were taken not to extend the scheme to him was such that that Department did not have any basis for extending the terms of the scheme in his case. In other circumstances an adjudicator might recommend that a second opinion be sought. However, in this case there was a second medical adviser, who met the employee and provided him with counselling and support for several weeks. It was agreed at the hearing that the reports from that person would be obtained for the adjudicator and the employee gave his permission to the employer. It was suggested in one of the employer medical adviser reports that the second medical adviser had not scored the employee within the relevant clinical measurement range in February 2019. While that report does express some doubt about the accuracy of the score due to personal factors, on reviewing the material there is a consistency between the two medical reports. Both refer to his anger or trauma with the person who caused the incident at his workplace. Both refer to his reaction to being refused access to the scheme and the impact of that, which it would appear was at least as damaging to him as the after effects of the incident in his workplace. Both refer to other personal factors contributing to his stress.

To be clear, the employer has a scheme to apply, relies on medical evidence and reports and there is nothing in either medical report which suggests, or which could be interpreted to mean that the employee’s absence was wholly due to the incident at the employees’ workplace, or that his long terms after effects are wholly or mainly due the incident in question. Neither of the reports indicate that the level of severity assessed and described in terms of trauma met the threshold required under the stress test. Based on the conclusions to this point therefore, it would reasonable to arrive at the conclusion that the employee does not have the basis of a claim that he was wringed either by the company medical adviser, or HR acting on behalf of the employer . He contributed to the assessment of others when he did not report any ill effects until November, his references to other personal problems when attending the company medical assessor for his review complicated the medical assessment together with his failure to notify his line managers of any difficulty in performing his duties and of the link he made to the incident in August. However, and it a very limited however, both medical reports are consistent in referencing some impact of the after effects of the workplace incident on the employee. In other words, the reports indicate that there is some relationship between the incident in his workplace and the impact on his health.

The detailed recommendation below has regard to all the information provided and is an effort to arrive at a fair and balanced proposal to resolve this dispute.

In the circumstances having due regard to the medical reports, I recommend that this dispute be resolved on the basis of extending the cover provided by the scheme to the employee for a period of eight weeks in total commencing no earlier than November 2018-basically whatever eight-week period after that date is easiest to administrate. This recommendation reflects the complex nature of the case and need for the employee to reach a conclusion on this matter in terms of the dispute with his employer, for the benefit of his health. The eight-week payment(adjusted for social welfare payments) to be accepted by the employee in full and final settlement of his claim for the full application of the scheme under which the claim was submitted. Conscious of the concerns of management regarding precedents, any acceptance of this recommendation must include written confirmation from his trade union that this was an exceptional case and will not be used as a precedent in future claims against the employer in relation to claims where the medical evidence of the company medical adviser is being contested. Confirmation of acceptance by the employee and the undertaking from the trade union to be provided to the employer within four weeks of the date of this recommendation. Without both written undertakings, the recommendation to make a payment for eight weeks has no standing and expires at the end of the four-week period, in which case the undersigned will have no further role in this matter.

Medical Scheme-access disputed medical opinion