Work related injury – How to claim compensation?

What is a work-related injury? What are the obligations of the employer if an employee gets injured at work? What should an employer do to prevent injuries? How to claim compensation? These are some of the frequently asked questions regarding work-related injuries.

Occupational health and safety

Logically, an employee has the right to be protected and feel safe at the workplace. Labour Law (LL) stipulates that the employee has, among others, the right to protection and safety at work and provided healthcare. Each right that the employee has, must be followed by the according to the obligation of the employer. Therefore, LL stipulates that the employer must provide the working conditions and organize the work in such a manner that occupational health and safety are ensured.

Who has the right to health and safety at work?

The Law on Safety at Work defines who has rights to protection and safety at work. According to them, the employer is in charge of taking the measures needed to ensure that all these people are safe and protected at work. These are the following:

• all employees;
• pupils and students on practical training, vocational practice at companies and educational institutions;
• Individuals on professional training, vocational re-training, or additional training
• Individuals on vocational rehabilitation;
• Individuals serving jail sentence while working at an agricultural unit of an institution or some other site;
• Participants at voluntary and public works organized in the general interest, youth voluntary work, or contests;
• Individuals who are found in the work environment if the employer is aware of their presence.

What is a work-related injury

The Law on Health Care specifies that health insurance covers both illness and injuries outside work and work-related illnesses and injuries. Since the topic of this article is work-related injury compensation, we state how it is defined in the Law. Namely, the Law on Health Care specifies the work-related injury or illness as:

• an injury relating in space, time and causality to performing his/her work, based on which he/she is insured, caused by an immediate and momentary mechanical, physical or chemical impact/exposure, a sudden change in body position, a sudden and unexpected exertion of the body, or other changes in the physiological condition of the body suffered on jobs that he/she was not assigned to but is fulfilling them for the employer;
• an injury suffered on the way to or from work
• an illness occurred momentarily or consequently after the accident or during working hours

Besides health insurance, there are also pension and disability insurances, obligatory insurances that provide rights in case of old age, disability, „bodily damage“, or passing away. The Law on Pension and Disability Insurance defines the work-related injury similar to The Law on Health Care, with one addition: rescue actions, defense against natural disasters, military practice, or other forms of state defense, work camp, competition, or other jobs and tasks regarding the public welfare.

We have defined the individuals who claim the right to occupational health and safety, that is to say, which people must have a safe work environment and compensation right. We have also defined the concept of a work-related injury. If a person has suffered from one of the named injuries and is one of the mentioned individuals, it is needed just to define the obligations the employers have.

Reporting the injury and writing a report

The employer must immediately, not later than 24 hours after the injury, report the fact to the labor inspection in charge and the police station.

The employer must also file a complete report on a work-related injury, not later than 24 hours after the injury. The report must be written according to the Rulebook on content and processing the report on occupational injury and illness. The report on occupational injury and illness is filling out in Form 1 which is the part of the Rulebook. The report that has been filled out, is sent out to the health institution where the employee had been examined, not later than 24 hours after the injury.

The doctor who examined the employee enters all necessary data into the report and sends it back to the employer who later forwards it to the Health Insurance Fund, actually to the Health Insurance Office where the employee is registered.

Obligatory Compensation

The Labour Law is clear when it comes to this point: Employer shall pay, pursuant to the general document, compensation to any employee in case of occupational disease or injury at work.

The compulsory compensation is defined in the Law on Obligational Relations where it is stated that the obligation is counted from the day of the injury occurrence.

The employer’s responsibility – subjective according to the assumed guilt

The employee just needs to prove the causative relationship between the injury and the employer’s behavior, not the guilt necessary. The injury may occur from a lack of preventive measures. For instance, the employee is working on a construction site and needs necessary safety equipment, but the employer does not provide it. Supreme Court of Cassation, in a sentence made on 12/12/18 (Rev2. 2824/18), proved that the causative relationship between the injury and the work process at the company’s premises is a crucial condition: The Second Instance Court has rightly applied the law by rejecting the lawsuit of the plaintiff having found that there is no responsibility of the defendant. The damage caused by the sprained ankle is the consequence of the plaintiff’s posture while stepping out of the bus, which can be prescribed to her recklessness rather than the impact of the others. Such damage is not linked causatively to the work process, because it is not the result of employer’s negligence. The damage is done only by her action that the employer could not foresee and therefore prevent.

Since the guilt is assumed, the employee does not have to prove it. However, it is an assumption, so the employer will not be held responsible if it is proven that the work-related injury happened without the employer’s culpability.

When is the employer held responsible?

The employer is held responsible, even he/she is not guilty, if the injury occurred while dealing with hazardous objects or hazardous work, because the damage comes from the object or the work itself, unless proven they were not the cause of injury.

Unless the employer works within the hazardous field or the employees are working with hazardous machines or devices, the employer will not be held guilty only if it is proven that the injury was caused by something else, by a direct action of an employee or other person that the employer could not foresee or prevent.

Obligations of the employee

Undoubtedly, the employee has the right to occupational safety, protection, and health. This right is followed by the employer’s obligation to provide safe working conditions. However, the employer must also be protected against reckless and irresponsible behavior of the employees – we can all easily imagine the situation where an employee seeks compensation for the work-related injury but he/she has not been following safety regulations.

That is why the Labour Law specifies that the employee must:

• Comply with all regulations on security and protection of life and health at work in order to avoid jeopardizing safety and health of himself as well as the safety and health of other employees and other people.
• Notify the employer on any kind of potential danger for health and safety or occurrence of material damage

So, responsible and sensible behavior is one of the prerequisites for the work-related-injury compensation claim.

Obligatory compensation

Besides the compensation of damages, the employee has the right to compensation for salary. This right has two determinators:

1. The amount of salary compensation
2. The length of the payment

The amount is defined in the Labour Law: 100% of the average salary in the twelve months preceding the month in which the temporary inability to work occurred and cannot be lower than the minimum salary. This applies to situations where the temporary inability to work occurred as a consequence of work-related injury, whereas in cases of non-work-related injuries the compensation is 65% of the average salary in the twelve months, where it cannot be lower than the minimum salary.

When it comes to the length of the compensation, the Labour Law and the Law on Health Care offer different solutions. According to Labour Law, the employee has the right to compensation, but not longer than 30 days. On the other hand, the Law on Health Care does not define any time limit under which the employee has the right to compensation if he/she is unable to work.

Therefore, we can conclude that the Labour Law is applied when talking about the amount of compensation, whereas the Law on Health Care when talking about the length. So, the employee has the right to compensation for the salary as long as he/she is unable to work due to the injury at work or outside the company’s premises.

The employee keeps the right to compensation, even though the company enters the liquidation. However, he/she needs to file a claim to the Solidarity Fund, the fund set up in order to claim the compensation from the employer no matter the liquidation.

The strict liability of the employer

If the employer does not pay the salary compensation, according to the Labour Law, he/she is committing the felony for which he/she must pay the penalty:

• from 600.000 to 1.500.000 RSD if he/she is not a legal person (in which case the responsible official pays the penalty to the legal person – from 20.000 to 40.000 RSD)
• from 100.000 to 300.000 RSD if he/she is an entrepreneur

The lawsuit for work-related injury compensation

If the injury occurs at work, the employee suffers certain damage, the employer is obliged to compensate. However, how you will assert your rights depends on the situation. The arrangement between the employer and the employee is certainly the best option. Since it is the non-judicial agreement, there are no judicial expenses nor waiting for the verdict. Nevertheless, hiring a lawyer is recommended in these situations, too.

If the employee and the employer cannot come to the arrangement, the employee may claim his rights in the courtroom, by filing a lawsuit. The lawsuit for damage compensation may be filed within three years from the day of the injury. The deadline is five years and is counted from the day of the injury occurrence.

When it comes to judicial expenses, the Law is clear: the party that loses the lawsuit must compensate all judicial expenses to the winning party. We should bear in mind that the court may determine that each party covers their expenses if one party partly succeeds in the lawsuit. If the court decides that the employee has the right to compensation, but less than stated in the lawsuit, the employee plaintiff has partly succeeded and the court can decide on meeting expenses in this way.

Types of damages

The employee has the right to file a lawsuit for pecuniary and non-pecuniary compensation. The employee may ask for the compensation of either of those or both.

The pecuniary damage is a diminished value of a property or lost profit. If it turns out that the employee due to the work-related injury, is unable to work for a certain period, he/she loses the salary, that is to say, the lost salary is the lost profit. The amount of compensation is defined by the Law (see in paragraph Obligatory compensation).

Non-pecuniary damage, according to the Law, is reflected in some ways:

• Physical distress
• The emotional distress that was caused by the violation of reputation, freedom, rights, or death of a near person
• Suffered from fear

The amount of non-pecuniary compensation depends from case to case. When deciding on the compensation, the court first focuses on the form of the non-pecuniary damage the plaintiff has suffered. Then, the court discusses the length and the intensity of distress, the relevance, and the goal of the compensation. Since there is a risk that the employee will claim too high compensation, it is recommended to prepare evidence. In that case, the expertise is needed. If there is a need for establishing the intensity and length of the physical pain endured, the best is to hire a medical expert, but for the emotional distress psychiatrist expert. In that way, the employee’s claims are corroborated by expertise judgment.

 

Date: 25.04.2020.