Employer's liability in case of hernia - Legal advice centre

Questioner

My husband works in construction, has a tough job. Last year in November he suddenly got serious back pain during work. An MRI showed a hernia. In March he was able to 'carefully' go back to work, but the work was not really adapted. After 2 weeks he collapsed through his leg, again the hernia had returned. In June he was finally operated on. Early August he was allowed to return to 'adapted' work (under the sickness benefit). Again this turned out not to be really adapted. Moreover, overtime was expected. Every day he reported that he really could not bend and lift and that the company doctor had also said that this was not allowed. Again he just had to climb, clamber, lift and bend a lot. After 2 weeks of adapted work it was wrong again. Another hernia, again to the neurosurgeon. The examining doctor is going to start the WIA trajectory. My question is... can I hold his employer liable now that he has not offered decent adapted work and my husband has now suffered a hernia for the 3rd time in a year during heavy work and is being pushed towards WIA? Isn't his employer obliged to be insured against this kind of thing? Can I claim compensation for my husband from the employee insurance?

Lawyer

I am satisfied that your husband was subjected to moral pressure by the employer to do more than could be expected of him in the circumstances, but the employer cannot be held responsible for complying with this pressure. I am afraid that you cannot provide proof that the employer did not behave as a good employer by giving your husband too much work for his physical condition. After all, your husband, supported by the treating physician, the company doctor or the occupational health physician, could have refused the work imposed on him because it would seriously damage his health. The request to 'work' overtime could also have been refused for that reason. In principle, any work that may negatively affect rehabilitation will therefore be carried out at the employee's expense.

Lawyer

Unfortunately for you and your husband, I must agree with what colleague Korving notes. It may be possible to make an arrangement regarding severance pay (the employer will want to terminate the employment contract when the WIA comes into effect). Please feel free to contact me for consultation.