Previous Article Next Article Take to the standOn 1 Sep 2001 in Personnel Today With the rise in tribunal hearings, OH expertise is increasingly being calledinto the legal arena. But what lessons can the profession learn from recentdocumented cases? By Linda Goldman andJoan Lewis Employment tribunals and civil courts are awarding very high levels ofcompensation in cases involving personal injury suffered in the workplace. Theinjury may be psychological, physical or a combination of both. Occupational health staff are involved in assessing capability for work atall stages of the employment process, taking into account any changingcircumstances. Changes in conditions may be personal – for example, illness orpregnancy – or they may relate to changes in the job itself. Many cases oflong-term absence from work require occupational health input to determinefitness for return to work or suitability for early retirement on healthgrounds. The Disability Discrimination Act 1995 affects the treatment of employeeswhose health causes absence from work, since employers are required to makereasonable adjustments to allow a disabled person to remain in the workplace. This wide range of matters involving occupational health brings themincreasingly into the courts and tribunals where their opinions on the healthof an employee are critical. Expert approach An expert witness is one who is independent of either party involved inlitigation. The duty of the expert is to the court and their opinion is inrelation to the specific area of their expertise called upon in evidence whichmust not appear to usurp that of the judge. An occupational professional must therefore have very clear and objectivestandards when reporting in-house on the health of an employee, lest aninference be drawn that the professional opinion is partisan. An expert report should not only contain the credentials and expertise ofthe witness but also a sentence to the effect that the witness understands thattheir duty is to the court. Those who instruct the witness to prepare a reportshould not put any constraint on how the report is written – a “warts andall” professional and objective approach is the only one which the expertcan and should offer. Even if the occupational health professional is notinvolved in the litigation process, impartiality is the order of the day in thepreparation of any report. The question of fitness to work is one frequently considered by the courts.In Gogay v Herts County Council, the Court of Appeal considered the effect onan employee’s health of suspension during employment in a case in which medicalopinion was pivotal. More recently, occupational health opinion came under scrutiny in Farnsworthv London Borough of Hammersmith and Fulham because the council chose to relyonly on its doctor’s report of a disabled job applicant’s health records as tofitness to work, when the records themselves showed that she was likely to havea good attendance at work. In that case, the Employment Appeal Tribunal held that the applicant’sconsent to release her health records was to the council and that the doctorwas not bound by confidentiality. Therefore, the doctor could have given moreinformation to the council on which they could base their decision as towhether to employ the applicant. This case appears to question the necessity for confidentiality inconsidering health records. More clearly, the case underlines the view oftribunals that employment decisions are the responsibility of management andcannot be delegated to medical experts. Fair and objective decisions arerequired of employers based on various factors including medical opinion, whereappropriate. Medical evidence was questioned in Abadeh v British Telecommunications,2001, IRLR 23. The EAT held that the tribunal was “over influenced”by BT’s regional medical officer’s opinion so that it adopted her assessmentthat Abadeh’s impairment of tinnitus did not have a substantial effect on hisday-to-day activities. The doctor was entitled to her opinion on the diagnosisof the condition and to report on observations of his condition but thereafterit was a judicial function to determine whether Abadeh was disabled within themeaning of the Disability Discrimination Act. Duty of care Before making health a criteria for employment, employers might consider theabsence levels they tolerate in the existing workforce before making employmentoffers dependent on a satisfactory health assessment. Where such an assessmentis deemed necessary, the candidate should be informed as to how the medicalassessment will take place – by questionnaire, for example, or medical or acombination of the two. In light of the Farnsworth case, the applicant will need to give writtenconsent to the medical being carried out and to whom the content of the reportand material on which it is based may be disclosed. Apart from rights under the Data Protection Act 1998, if the candidate isdissatisfied with a report or recommendation, they may consider litigationdirectly against the occupational health professional who prepared it. It maybe of some comfort, considering the difficulties that doctors have been havingin the cases quoted, that recent case law indicates that the occupationalphysician carrying out a medical examination or tests is doing so for thebenefit of the prospective employer and therefore no duty of care is owed tothe subject of the medical. In Kapfunde v Abbey National and Daniel it was confirmed that for a duty ofcare to arise there has to be a doctor-patient relationship. It is best,therefore, to stick to the professional remit of occupational health andprepare all reports as an expert witness in case that is what occupationalhealth professionals are required to be. A quick glance at what is going on in important employment cases can beobtained from the EAT’s website (www.employmentappeals.gov.uk). A diligentsearch will show where medical evidence has been a feature Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is headof training and education for ACT Associates & Virtual Personnel. JoanLewis is a senior consultant and director of Advisory, Consulting &Training Associates and Virtual Personnel, employment law and advisory serviceconsultancies Case roundupKapfunde v Abbey National andDaniel, 1998, IRLR, 583 CAThe employment medical does not create a patient-doctorrelationship. The doctor should, in effect, be a stranger to the job candidate.In this case the doctor assessed a questionnaire which showed that thecandidate suffered from a chronic debilitating disease. The doctor reportedthat this would result in poor attendance at work during acute exacerbations ofthe disease. There could be a change in the non-therapeutic relationship if thedoctor spots a life-threatening condition and either reports it to the examinee(creating the relationship) or fails to report it when ethical considerationsmight arise. Arguably, the problem could be addressed by writing a confidentialletter to the examinee’s GP. Lesson Contact professional indemnity insurers to agreea form of wording. www.facoccmed.ac.ukGogay v Herts County Council, 2000, IRLR 703The council took steps to suspend a social worker, who wasworking under a lot of pressure, to investigate possible impropriety. Thesocial worker was exonerated but complained that the suspension amounted to abreach of her contract and was so stressful as to cause her psychiatric injury.She was successful in her claim for compensation, in which medical evidence wascalled to show the effect of the suspension on her. Lesson Include risk assessments on suspension criteriain high-stress cases.Farnsworth v London Borough ofHammersmith and Fulham, 2000, IRLR 691F consented to the disclosure of her medical records to thecouncil. The occupational physician assessed her as unsuitable for the job forwhich she had applied on the basis of her past medical records. In fact, hermedical condition had improved in recent years and she had not taken time offfrom the voluntary post which she had held for some time prior to applying tothe council. The EAT ruled that the employer’s knowledge of the employee’s disabilitywas irrelevant to whether it treated the employee less favourably for a reasonrelated to her disability. Knowledge or lack of knowledge of an applicant’sdisability is not a necessary ingredient for the purposes of the test ofjustification. The employer’s habit of not making further enquiries of itsoccupational health physician as to the medical history of a candidate were notjustified by misplaced reliance on a duty of confidence when the candidate hadwaived the right to confidentiality. Lesson Be cautious of making job offers beforecompletion of medical assessments.F v London Borough of Camden,2001, IRLR 186The tribunal found that the employer did not discriminateagainst F when they dismissed her as being incapable on the grounds of her disabilityto carry out any job for them. The EAT said that was the wrong approach. Thetribunal failed to consider the extent to which, if at all, certain adjustmentsproposed by F could have overcome the symptoms which were preventing her fromattending work. The case was sent back to another tribunal to consider whetherthere were reasonable adjustments which could be made under section 6 of theDisability Discrimination Act 1995. F had had a series of accidents andillness. The council took advice from a doctor who could not give a realisticdate for her return to work. The medical report only covered one aspect ofchange to her job by saying that, “even if the requirement to do homevisits was removed from her job description” he would be unable to give anopinion on a date for her return to work. The EAT asked “why F wasincapable of carrying out any job at the council for medical reasons?” TheEAT said that the answer could have been that, in consulting with itsoccupational nurse, it did not discuss the extent to which any adjustmentscould help to get F back to work apart from the one item of home visits. Lesson Consider the traditional elements of diagnosisand prognosis in the context of reasonable adjustment recommendations orcomments. 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MIAMI (AP) — Tropical Storm Fay has formed off the coast of North Carolina. The storm could have an impact on our area, too, producing heavy rainfall and strong winds. 12 News will have more details in its 5, 5:30 and 6 p.m. newscasts. The U.S. National Hurricane Center in Miami announced the storm’s formation Thursday afternoon. Forecasters say they will release more details shortly. It is already the sixth named storm of the Atlantic hurricane season.
Stock photo of horse racing | Photo © Pixabay The Noel Meade runner came home ahead of Balko Des Flos at odds of 8 to 1, with Outlander back in 3rd.It was a disappointing run for triple Gold Cup winner Sizing John who finished well behind, as did second favourite Yorkhill.That was the second of two Grade Ones on Day 3, with Apple’s Jade winning the Christmas Hurdle for Gordon Elliot.However the race was marred by the death of Nichols Canyon who suffered a fatal fall at the half-way stage.The Willie Mullins 7 year old won eight Grade Ones, and was also the only horse to beat Faugheen when he won the Morgiana Hurdle two years ago.Victory for Apple’s Jade was the second of the day for Elliot, while Noel Meade also took the final race of the day with Snow Falcon.Meanwhile there was also success for Tipperary at today’s card in Limerick – Fethard trainer Harry Kelly saddled a welcome winner when Great Trango ran out a game scorer in the opening race while Joseph O’Brien’s High Sparrow took the closing race. There was further success for Tipperary at both Leopardstown and Limerick today .Joseph O’Brien enjoyed back to back winners with Hardback in the 1.50 Novice Handicap Hurdle and Alighted in the 2.25 Flat Race.Road to Respect has claimed the Leopardstown Christmas Chase in a 1-2-3 for the Gigginstown House Stud.
Taylor had a difficult time repeating that performance. His average dropped to .254 last season and his OPS to .775, each dragged down by a National League-leading 178 strikeouts.Muncy acknowledges the “Year Two challenge” will be considerable.“One of the biggest differences probably is, when I go up there in the batter’s box, teams aren’t going to be thinking, ‘Oh, here’s a guy – we know what he did in Oakland. He struggled,’ ” Muncy says. “Now it’s going to be, ‘OK, we can’t make a mistake against this guy.’ I do think that will be one of the biggest differences – that guys are going to be obviously a little more alert. Not saying I’m Miguel Cabrera out there. I think that will probably be one of the biggest challenges from Day One. It’s not going to be easy.“That’s probably the challenge everyone faces. You talk about Cody (Bellinger) and CT. When Cody comes up, it’s ‘OK, he’s a rookie. Let’s see if he can hit this pitch. Let’s see if he can handle this.’ He does, then the next year it becomes, ‘OK, let’s see if he can do this.’“Once they start getting information on you, that’s always the Year Two challenge. … There’s so much information now. They can tell on day games, on Tuesday, he does this. Don’t throw this pitch on a Tuesday day game. Or on a Wednesday, he hits this pitch. They have that information now – which is a little ridiculous. But they can break down every centimeter of your swing.”Muncy’s breakout season wasn’t all highlights. He fell into a 4-for-35 slump in late July and early August, striking out 20 times in that stretch. He also hit just .200 (10 for 50) in the postseason. His Game 3 home run was one of only two extra-base hits after the first round.Muncy expects teams will take their cues from those times.Related Articles “I would imagine teams are going to look back on what worked best on me last year and possibly try to repeat that,” Muncy says. “I will say one of the things that worked against me (in the postseason) – it seemed like guys were throwing me a lot of curveballs. But that’s a little different in the playoffs because the guys who were throwing the curveballs were all the guys from the Brewers who were throwing 100 (mph) with nasty breakers. Then you go to the World Series against the Red Sox and it’s Joe Kelly and Craig Kimbrel and they’re throwing 12-6ers with four feet of breaking at 90 mph. Not everyone has that.“I’m not exactly sure (what teams will do). Or maybe I’m just not telling you. Whatever adjustment they make, you have to make the adjustment.”Muncy has already made his first adjustment – pretending 2018 never happened.“I’m not looking back at last year,” he says. “I want to go out there and act like I’ve never done it. I want to play hard like I’ve never done it.“That’s one of the things I said coming into camp. I know that I’ve got a spot on the team. But I want to act like I don’t. I want to go out there and play hard every day and act like I’m making my first impression on the coaches and the front office. I feel like if I continue to do that, then that’s the best way for me to go out there and play.” Dodgers hit seven home runs, sweep Colorado Rockies Newsroom GuidelinesNews TipsContact UsReport an Error GLENDALE, Ariz. — Following a pretty good season at Triple-A in 2017, Max Muncy and his fiancee, Kellie, sat down to pick their wedding date.It was certain to be the highlight of 2018 for them. But they had no idea how many more there would be for Muncy before they walked down the aisle.There were the 20 home runs in his first 183 at-bats after his mid-April promotion to the Dodgers, a franchise record. There was the invitation to the All-Star Game to participate in the Home Run Derby. There were the team-leading 35 home runs, .582 slugging percentage, .973 OPS and 161 OPS-plus. And finally, there was the walk-off home run to end the 18-inning marathon Game 3 in the World Series against the Boston Red Sox, the longest game in postseason history.For a player who had struggled at the major-league level with the Oakland A’s in 2015 and 2016, it was one of the biggest breakout seasons in recent memory. Dodgers’ Max Muncy trying to work his way out of slow start Cody Bellinger homer gives Dodgers their first walkoff win of season Fire danger is on Dave Roberts’ mind as Dodgers head to San Francisco How Dodgers pitcher Ross Stripling topped the baseball podcast empire “I think the only way you could really top it would be to win the World Series,” Muncy says of his 2018 – including his Nov. 17 wedding to Kellie and their honeymoon in St. Lucia. “If we had won the World Series, I don’t think there would be any way you could top that good a year.”Muncy won’t be expected to top his 2018. It will be hard enough just to match it.“I think a lot of times people can be beholden to, like, the back of the baseball card numbers from last year,” Dodgers president of baseball operations Andrew Friedman says. “For us, it’s about the process and we believe very good things will happen from a good process.“What I mean by that is he’s aggressive on pitches in the strike zone. He’s passive on balls outside of the strike zone. And he hits balls in the strike zone hard. Simply said, that’s a really good combination. We expect that to continue. Now – do as many go over the fence as opposed to split the outfielders and it’s a double? I don’t know. But we expect him to be a significant contributor again.”The Dodgers don’t have to look far to find an example of how it might work out. Chris Taylor had a milder version of the Muncy breakout in 2017, emerging from Triple-A to bat .288 with an .850 OPS and 21 home runs (nearly matching his total for six minor-league seasons).