From the TUC

Injury compensation: Insurers take another pot-shot at the victims

25 Jan 2016, By

The insurers seem to be going after our compensation again. The last government gave them a huge bonus by making it far harder to take claims and recover all your costs by introducing legislation called LASPO (The Legal Aid, Sentencing and Punishment of Offenders Act). They have just changed the rules on “whiplash” claims in road traffic accidents after the insurers ran a campaign over that. Now they seem to be going after occupational deafness claims.

I guess this should not surprise anyone that the insurers are trying to stop workers claiming compensation. After all insurers just do not like paying out money. For unions of course it is a basic right that a person who is injured or made ill at work though the fault of their employer should be able to get compensation for loss of earnings and any pain and suffering. That is why we have always supported the principle that all employers must be insured.

Yet we continue to be told that workers (or lawyers) are greedy and are making worthless claims. The reality is that this is nonsense. As a TUC report showed, only one in seven workers made ill or injured through work get any compensation.

Also, the number of claims has fallen dramatically over the past decade or so. This is according to statistics from a body called the Compensation Recovery Unit (CRU). All insurers register compensation claims with it so that any benefits that have been paid to the person can be recovered.  Since the earliest comparable figures (2002), the number of claims from workers against their employer have fallen from 183,342 to 103,401.

Generally the fall has been pretty constant, but for the past four years we have started to see a rise. Why is that?

Well, all of the increase is down to one disease – occupational deafness. If it is taken out of the equation, the number of claims has continued to fall.

So what is happening with occupational deafness? That depends on who you ask. The insurers claim that the increase is because of “claims farmers” who are calling people up at home and putting in spurious claims resulting in most claims being refused and high legal costs.

Is that true? Certainly the number of claims registered does seem to have increased. CRU figures show that the number of registrations for noise induced hearing loss increased from 9,334 to 27, 490 in the last four years. That is almost a threefold increase.

One reason for the increase is simple. Insurers are beefing up the figures. Insurers only have to register claims of over 50 decibel hearing loss with the CRU. A number of insurers are reported to have changed policy and are now registering all hearing loss claims.

Secondly, some of the increase could be because there is increasing awareness that a person can make a claim. Often claims for a particular disease come in cycles, as those effected become aware they may be able to get compensation. That has happened with hearing loss in the past when the number of claims reached a peak in 1993. At that time the number of claims was roughly the same level as we have today, so the current rise is only a big increase because the number of claims fell equally dramatically in the 20 years in between.

Another thing that makes hearing loss claims different is that they are notoriously difficult to prove. Less than half of claims are believed to result in a pay-out. This is not a new phenomenon, but has been the case for almost every year this century. The insurers claim that there is a high level of unsuccessful claims because most are “unmerited”. What it really shows is that the insurers do all they can to block them. They consistently challenge medical reports and audiograms, often sending a claimant to an expensive consultant selected by them. This is particularly the case with tinnitus claims where there is no agreement on how to test for it.

This has meant that legal costs in hearing loss cases are, on average, higher than in most other cases in comparison to the settlements. The average compensation paid to someone who has occupational deafness is a measly £3,100, yet the legal costs were, on average, £10,400. That sounds pretty disproportionate but that difference is because firstly, compensation is too low, and secondly, the way that the cases are being challenged by insurers drives up costs.

Another reason for the high number of unsuccessful claims is that a considerable number are  challenged because they are lodged more than three years after the claimant because aware, or ought to have been aware, that their hearing loss is noise induced, despite the fact that the worker may only have realised that they can claim several years after diagnosis.

Regardless of all this, the insurers insist that the real reason for the increase is that lawyers are advertising for cases more, (I am not sure why making people aware of their rights is a bad thing), and that claims farmers have moved into this area now that the PPI market is drying up, by encouraging people to claim and even cold-calling.

So what is the solution? The insurance industry wants to try to cut costs by stopping victims being able to recover all their costs. They have suggested introducing fixed costs at a much lower rate than at present. However, if that were to happen they would continue to put every obstacle they can in the way of claimants meaning than many of those made deaf through their work will simply not be able to afford to take a case.

Where I do agree with the insurers is that claims farmers (CMCs) should not be able to cold-call people and harvest spurious claims. If that is happening there is existing regulation and that should be enforced and these companies closed down. Instead anyone who has a claim should get in touch with their union who will make sure that the member is referred to an experienced law firm who will advise them on whether they have a case.

Occupational deafness is not a minor inconvenience. It can have a huge effect on people who find they can no longer listen to the television without subtitles or even hear their grandchildren. For decades employers have failed to ensure that workers’ hearing is protected, resulting in tens of thousands of people having their hearing permanently damaged. Nor is it a think of the past as can easily be seen when you pass almost any roadworks in the country. Perhaps insurers could spend their time better by using their resources trying to ensure that those they insure are fulfilling their legal duties.

The bottom line is that anyone whose hearing has been damaged through work should be able to get the compensation they are entitled to and receive proper legal support at no cost to themselves.