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How can I fund my claim against my employers?

Dear Brian

In 2009 I developed fibromyalgia and depression. Work became a real struggle and I had to go off sick due to pain and tiredness, but also because I was being bullied by my manager. I broke down and was signed off work.

Recently I tried to get back to work under the company’s return to work policy. I intended to build my hours up gradually. However, I was made to re-sit all my exams and pass them by a certain date. I was allowed no help and if I did not pass I would lose my job. Not surprisingly, I was signed off again and have been unable to work since. I have been caused so much distress by my employers that I would like to sue them. I really want them out of my life.

I receive income protection under a company scheme but the company are now threatening to review that and obtain an assessment by an independent doctor.

Finally, I have three critical illness insurance policies.

I need your help.

Jane

 

Dear Jane

It sounds as though your employers want to ease you out of the business without sacking you. I imagine they could do this on ill health grounds but for some reason do not wish to do so. They do lay themselves open to a possible claim for personal injuries because of the bullying and workplace stress that you have had to suffer at their hands. These are very difficult cases to win, however, and at the very least I would suggest that you ensure that you have a good source of funding the legal costs before embarking on such a course. You may have a union who would be willing and able to support a claim. Alternatively, you might have legal expenses insurance. This is commonly found in house contents policies. It is certainly worth checking. If your union or legal expenses insurer were prepared to instruct us to act on your behalf we would be pleased to do so.

You are still being paid under the income protection scheme, although it sounds as though that is under threat. If the independent doctor prepares a report which stops you receiving the income protection, it is open to you to obtain a report of your own (or instruct a solicitor such as ourselves to obtain such a report) which may counter the damage done by the “independent” doctor instructed by your company or their insurers.

The critical illness policies may be of considerable help to you. It depends what the criteria are under the policies. It is highly unlikely that fibromyalgia will be named as one of the illnesses, but you could still claim under it if you satisfy the definition of “total permanent disability”. If you do (or think you do) I would suggest that you contact us and we will see whether we can bring successful claims for you under these policies. “Total permanent disability” is often defined as an inability to work up to and including your normal retirement date. However, sometimes it is defined as an inability to do three out of six tasks unassisted. You will need to look at the policies and if you have any difficulty understanding them, please send them through to us to look at for you.

Brian Barr

This question was originally published in Fibromyalgia Magazine

Fibromyalgia triggered by disciplinary action at work

The following question was recently posted in Fibromyalgia Magazine

Dear Brian,

I have been employed by my current employer for over ten years with an exemplary work record. I have never been given a warning, let alone been suspended, until three years ago when I was suspended for one year on full pay for something that I did not do. I was distraught by my employer’s decision and it really knocked my confidence.

Since the suspension, I have not been able to regain my full confidence which caused depression to kick in. I then begun to feel pain in different joints including my elbows and ankles. Three years have passed and I have now been diagnosed with Fibromyalgia that I believe was caused by my employer’s treatment of me. Would I be able to bring a claim against my employer even though there was no physical harm?

Sue

Dear Sue,

I am sorry to hear about your employer’s treatment of you and your subsequent development of fibromyalgia. You may be able to bring a claim even though there was no physical harm if we can show that your fibromyalgia was caused wholly or even partially by your employer’s conduct. However, you will have to be diagnosed with clinical depression as you cannot claim for mild depression that is normal for people to experience.

I would also need to consider whether your employer should known that their actions would have caused your depression. The general rule is that employers can assume that their employees can withstand the usual pressures of the job unless that have reason to believe otherwise.

You may also say that the suspension happened three years ago. I will need to consider the exact time of your suspension and development of symptoms in order to determine whether the three year time period to bring a personal injury claim has lapsed.

There are a lot of hurdles to overcome that make these cases difficult to prove. If you are a member of a union or have legal expense insurance, usually found in a Home Contents Policy, you may be able to fund such a claim.

Brian Barr

Ill-Health Early Retirement Claim Due to Stress at Work

The following question was posted in Fibromyalgia Family Magazine

Dear Brian,

After an initial diagnosis of workplace stress and reactive depression, I was diagnosed with Fibromyalgia. I researched this (still coming to terms with having fibro 100% of the time) and understand that fibro can be triggered as a result of being under sustained stress. I can’t do my job anymore due to the fogginess and cognitive difficulties, not to mention the fatigue. I applied for ill-health retirement from my profession, but was rejected last week, despite my consultation stating I was permanently unable to return to my former profession.

I hope to do some form of work of a less arduous nature in the future when (hopefully) my health picks up. Where do I go to now?

I need some income for the bills and can’t live on fresh air. My much loved profession, and my health have been taken from me, but I still have a pulse so I cannot receive a reduced pension. Life can be so unfair!

James

 

Dear James,

You say that the sustained stress you were under means you cannot do your job anymore due to fibro fog and cognitive difficulties as well as fatigue. You have applied for Ill-Health Retirement, but have been rejected. Your specialist says that you are permanently unable to return to your former profession.

I find it difficult to understand why your claim for ill-health has been rejected, particularly where your Consultant is supporting you. I feel that we would need some more information to be able to advise you properly on this. It may well be that you are entitled to an Ill-Health Early Retirement Pension and it just needs more pressure being brought to bear. We might be able to do that. Pension claims are difficult ones because it would have to be shown that the Trustees were acting perversely in rejecting the pension. That is a very high test, but still worth looking at.

Brian Barr

 

On sick leave from job due to workplace-stress

Dear Brian,

I went on long-term sick leave from my job due to workplace stress. I have been working about 70 hours per week (this was not considered unusual) and I was ill-treated by senior-management. I finally conked out. I have exhausted my sick pay entitlement and do not receive any benefits. I received a small “pay-off” from my employers and they have now appointed a younger, cheaper person in my place. I had hoped to continue in my profession at the same workplace until my retirement age. I am in my mid fifties.

Dear James,

You do not say when you went on long-term sick leave from the job nor when or how you were ill-treated by senior-management. You may have a claim for personal injuries against your employers for working you too hard and ill-treating you. I would have to know much more about when this all happened and what the circumstances were before I could make any judgement. There is a three year time limit for bringing claims, so that if you were ill-treated within the last three years, you might well have a chance of a claim. These cases are very fact-sensitive. If you had a breakdown because you were working too hard, but management were not made aware of the difficulties, a case called Walker v. Northumberland County Council would make it very difficult for you to claim. If, however, you had already been ill or, for some other reason, senior management knew hat you were being overworked or ill-treated (or they were doing the ill-treatment), then you might well have a claim.

Brian Barr

The above article appeared in Fibromyalgia Magazine.