Guide for Employers and Employees: Injury at Work & Compensation
Injury at work, although a frequently handled topic, is still the cause of a large number of disputes between the employer and the employee. It is necessary to elaborate on this topic and bring closer to legal laymen the seemingly complex procedure that accompanies an incident such as an injury at work. Many employees, due to misunderstanding of their rights, miss the possibility of compensation for any damage, and employers often out of ignorance are misdemeanour and even penal responsible due to improper conduct in such cases. With this text, we will try to help, on the one hand, the employee, precisely with the aim of understanding the situation and applicable regulations, and on the other hand, the employer, who has the obligation to care for employees in accordance with legal regulations.
What is an injury at work?
An injury at work is an employee’s injury that occurs in spatial, temporal and causal connection with the performance of work:
- for which the employee is insured
- an injury occurring when an employee performs work to which he is not assigned, but which is performed in the interest of his/her employer
- an injury suffered by an employee on a regular commute from home to the workplace or vice versa
- an injury suffered by an employee on a business trip
- an injury suffered by an employee on the commute undertaken for the purpose of starting work
What is the most common cause of the injury at work?
The cause of the injury may be:
- direct and short-term mechanical, physical or chemical action;
- sudden changes in body position;
- sudden body load;
- other changes in the physiological state of the organism.
Injuries to employees are most common when performing works with increased risk, such as construction work, handling machinery and equipment, handling certain hazardous substances (flammable, chemical, toxic, substances etc.), work that require carrying and use of firearms, carrying large cargo, exposure to increased physical exertion, work in mines, etc.
What else is considered an injury at work?
An injury at work is also considered to be an employee’s illness, that occurred directly or as an exclusive consequence of an accident or a force majeure during the performance of work for which he was insured or in connection with the latter.
An injury at work is also considered an injury caused in the manner described above, which the employee suffers in connection with the exercise of the right to health care which is provided with respect to the injury at work or an occupational disease, as well as an injury suffered by the employee by participating:
- in actions of rescue or defence against natural disasters or accidents;
- in a military exercise or in the performance of other duties with regards to defence of the country which are established by the law;
- at a work camp or at a competition (production, sports, etc.);
- at other endeavours and tasks that are of general interest, as determined by the law.
Who can be considered an employee?
Persons who are employed by the employer, but also persons who are professionally engaged by the employer on the basis of deed contracts, additional employment contracts, contracts on temporary and occasional works, etc., until they acquire the status of insured persons on the basis of employment or otherwise.
What do the statistics say?
Data from the Ministry of Labour, Employment, Veteran and Social Policy show that in 2018 alone, 788 serious injuries at work and 7 fatal injuries were recorded, while an average of about 800 serious injuries occur annually. The largest number of injuries occurred in the activities of the manufacturing industry, as much as 27.17%, health and social protection 8.81%, wholesale and retail trade, repairs of motor vehicles and motorcycles 8.67%, etc.
According to the nature of injuries at work criteria, the most common are fractures, as many as 65.66% of an arm or a leg. In addition to fractures / ruptures of bones and back injuries (due to the falls from great heights), frequent injuries include amputation of limbs and fingers, burns, poisoning, injuries caused by electric shocks, road accidents, use of firearms, etc.
According to the age of the injured criteria, the largest number of injuries occurred to employees aged 30 to 49 – 44.78% and to those older than 50 – 41.38%. It is interesting that men are significantly more injured, according to this statistic, 74.09% of the injured were male. However, statistics are only part of the real picture due to black work, where in the event of an injury at work, employees do not report incidents for fear of losing their jobs.
In order to draw special public attention to the importance of protection of safety and health at work, the Government of the Republic of Serbia has made a decision to declare 2019. the year of safety and health at work, bearing in mind that this issue is in the common interest of all employees and employers.
Is the injury at work possible when working from home?
A very current topic in 2020. due to the Covid-19 virus pandemic is in fact working from home.
The question is how to interpret legal regulations if an injury occurs while working from home?
The Labour Inspectorate out spoke about this, stating that the Labour Law recognizes doing work from home, but it is left to the investigation to determine in each specific case whether the injury occurred during working hours and in what way it is related to work.
In any case, the obligations of the employer do not change – if the injury occurs during working hours, he is obliged to report it to the competent authorities and submit the prescribed report form on the injury at work, which we will discuss in more detail below.
Therefore, from the legal aspect, this is a quite possible situation.
However, since the declaration of the pandemic, no reports of injuries at work have been submitted until today. The reason for this could be the fact that most of those who work from home do not perform high-risk jobs, such as construction workers, miners and the like.
“Prevention is better than cure”: What is the employer obliged to do in order to prevent an injury at work?
The employer is obliged to organize the process of employees’ work in the work environment in which safety and health measures are implemented, as well as to provide preventive measures to preclude injury or damage to the health of employees, before the beginning of work, during work, and during every change of the technological process.
At the same time, the employer is obliged to provide the financial resources necessary for the application of protection measures. What specific measures will be implemented at a particular employer is determined by the risk assessment act. This act contains a work process description along with the risk assessment of injuries and/or damage to health in the workplace, as well as the measures to eliminate or reduce these risks, in order to improve safety and health at work.
Hence, the obligation of the employer is to take the following legal and factual actions:
– To pass a risk assessment act in writing for all work positions in the work environment, as well as to determine the manner and measures for elimination of the risks;
– To determine the rights, obligations and responsibilities in the field of safety and health at work; the employer will determine the aforementioned within the general act or collective agreement, and if the employer has up to 10 employees, he can determine the same within the employment contract, without the obligation to adopt a special general act regarding this matter;
– To appoint a person for safety and health at work by a written act;
– To hire a licensed legal entity for the purpose of conducting preventive and periodic inspections and checks of work equipment, as well as preventive testing of working environment conditions;
– To insure employees against injuries at work;
– To ensure that the work process is adjusted to the physical and mental capabilities of employees, and that the work environment, means of work, and means and equipment for personal protection at work are arranged, produced and secured in a manner which does not endanger the safety and health of the employees.
What is the employer obliged to do in case of injury at work?
Regardless of whether the employer has applied all established measures of safety and protection of life and health at work or not, in the event of any fatal, collective or serious injury at work, or injury at work due to which the employee is unable to work for more than three consecutive working days, as well as in the case of an occurrence of a dangerous phenomenon that could endanger the safety and health of employees, the employer should take the following steps:
In case the employer does not apply the procedure described in the diagram, as well as in case he does not pass / undertake the above acts, he is exposed to the risk of misdemeanour liability. For this misdemeanour a fine of 800,000 dinars to 1,000,000 dinars for the employer with the status of a legal entity, and in the amount of 400,000 to 500,000 dinars for an employer who is a private entrepreneur may be imposed, while the director / other responsible person with the employer may be fined with 40,000 to 50,000 dinars.
Employee rights in case of an injury at work
Depending on the type and consequences of the injury itself, in the event of an injury at work, the employee addresses the employer, the Republic Health Insurance Fund and the Republic Pension and Disability Insurance Fund.
The following is an overview of the employee’s rights in the event of an injury at work, with an indication of who the employee addresses in each individual case in order to exercise a specific right:
|REPUBLIC HEALTH INSURANCE FUND||REPUBLIC FUND FOR PENSION AND DISABILITY INSURANCE||EMPLOYER|
|1. The right to health care (medical examinations, treatment, medical rehabilitation, etc.);
2. The right to reimbursement of transportation costs for the health care use
provided in case of the injured employee’s referral for treatment/medical examination by a health care provider located at least 50 km from the place of the employee’s residence. The amount of this reimbursement is determined according to the shortest route and in the amount of the bus or second-class train ticket price, and exceptionally, if, due to the nature of the injury, another type of transport is necessary, this reimbursement is provided in the amount of actual transportation costs. The reimbursement is due on the day of travel completion. It is paid by the Republic Health Insurance Fund, upon the employee’s request for its payment, which is submitted to the Fund along with the evidence on the travel costs occurrence.
|1. The right to invalidity pension – in case of complete loss of working ability (i.e. disability), this pension is acquired regardless of the length of pensionable service;
2. The right to financial compensation for bodily injury – if the degree of bodily injury of the employee is at least 30%, regardless of whether this bodily injury causes invalidity or not;
3. The right to survivor’s pension – performed by the family members of the deceased employee, in the event that the injury at work resulted in death;
4. The right to financial compensation for assistance and care of another person – if, due to the nature and severity of the injury, the need for this assistance and care is determined (in case of an immobile person, a person who is unable to move independently within the apartment with the use of appropriate aids, nor to eat, undress, dress and maintain basic personal hygiene, in case of a blind person who has lost the sense of light with accurate projection, and in case of a person who achieves vision with a correction of up to 0.05);
The procedure of exercising the above enumerated rights of the employee is initiated at the Republic Pension and Disability Insurance Fund, at the request of the employee, with the attachment of appropriate medical and other prescribed documentation, after the medical body determines the severity of the injury and its consequences for the employee’s physical ability.
|1. The right to salary compensation during the temporary incapacity for work (sick leave):
Amount of compensation: 100% of the employee’s average salary in the previous 12 months before the month in which the temporary incapacity for work occurred, provided that it cannot be lower than the minimum wage in the RS.
The payer of the salary compensation during the employee’s employment is the Employer.
Exceptionally, the payer of this compensation, in case the employee’s employment is terminated during the exercise of the right to salary compensation, is the Republic Health Insurance Fund, from the date of employment termination and onwards, for the entire duration of the injured employee’s temporary incapacity for work. Salary compensation is paid upon the employee’s request with the submission of evidence, and for its payment the chosen doctor issues a report on temporary incapacity for work (remittance).
The employee is not entitled to salary compensation:
(i) if he intentionally caused temporary incapacity for work; (ii) if the temporary incapacity for work is caused by the use of alcohol or psychoactive substances; (iii) if he intentionally prevented recovery / training; (iv) if he fails to undergo treatment without just cause; (v) if he, without a justified reason, does not contact: the chosen doctor, within three days from the day of the temporary incapacity for work occurrence / the first instance medical commission, on the instructions of the chosen doctor / professional medical body, within three days from the day of receiving the summons to appear before the professional medical body; (vi) if, during a temporary incapacity for work, he is engaged in an economic or other income-generating activity; (vii) if he leaves the place of residence / stay without the permission of the medical expert or if he does not follow the medical instructions; (viii) if he receives salary compensation under other regulations; (ix) if he abuses the right to take time off work due to temporary incapacity for work in any other way; (x) if he is serving a prison sentence; (xi) if the security measure of compulsory psychiatric treatment and custody in a health care institution and compulsory treatment of alcoholics and drug addicts in a health care institution is implemented according to him.
2. The right to compensation for damages caused by the injury at work
As shown in the table, the costs incurred in exercising the right to health care of the injured employee, reimbursement of transportation costs related to the use of health care, as well as salary compensation in the period of temporary incapacity for work (in case the injured employee’s employment has been terminated meanwhile), are covered / provided from the funds of the Republic Health Insurance Fund of RS. Costs incurred in exercising the rights in case of employee’s disability and bodily injury are covered / provided from the funds of the Republic Pension and Disability Insurance Fund of RS. However, these social security funds are obliged to claim compensation from the employer, if the injury at work of his employee occurred due to the employer’s failure to take appropriate safety and health protection measures at work.
According to the same principle, insurance funds have the right to demand damage compensation from the person who caused the injury/temporary incapacity for work/disability/bodily injury/death of the injured employee if, on that basis, social security rights were exercised. If the injury was caused by an employee at work or in connection with work, his employer at the time of this damage occurrence is liable for the damage. However, if the employee caused the injury or death of another person intentionally, the fund has the right to claim damages directly from this employee.
What can be claimed in terms of compensation for injury at work?
The injured employee can claim from the employer compensation for the entire damage he suffered as a result of the injury at work, as follows:
|Type of damages:||material damage:
any form of direct reduction of the employee’s property (actual damage) or inability to increase the employee’s property (lost profit) caused by an injury at work, such as:
• medical costs (if they are not covered from the funds of the Republic Health Insurance Fund);
• common funeral expenses (paid to family members of the deceased employee, in the event of a fatal injury at work);
• lost profits – profits that could reasonably be expected, but which were not realized due to an injury at work;
• monetary annuities in the amount determined by the court – if the employee loses his salary due to complete or partial incapacity for work, or his needs are permanently increased, or the possibilities of his further development and advancement are destroyed or reduced.
damage caused by physical pain and / or mental pain due to:
• decrease in life activity,
• disfigurement / physical impairment,
• death and particularly severe disability of a close person (injured employee) – compensation is awarded to his children, spouse / extramarital partner and parents, as well as to siblings, but only if a permanent community of life existed between them and the deceased.
The compensation for damages is paid by the employer, either on a voluntary basis, or after he is obliged by a court judgment in civil proceedings to pay the compensation for the entire damage suffered by the employee, as determined by the court.
Legal proceedings regarding the compensation for damages
The best solution is an agreement regarding the compensation for damages, and since this is an out-of-court agreement, the advantages are obvious: there are no delays, court costs, or uncertainty. The help of a lawyer is certainly desirable in this case as well.
If the employee and the employer cannot reach an agreement, the employee (or family members of the employee) can exercise their rights before the court, by filing a lawsuit. As it is a claim for damage compensation, it can be filed within three years from the day of finding out about the violation.
The procedure for damage compensation is conducted according to the rules of general litigation procedure. In order to determine the degree of reduction of the employee’s general life activity and the suffered physical pain, it is necessary to engage expert witnesses. Specifically, a doctor specializing in medical field in charge of treating the consequences of the employee’s injury, and, in order to assess the intensity and duration of employee’s mental pain, it is necessary to engage an expert in the field of neuropsychiatry.
In the procedure, the court determines the amount of the entire material damage suffered by the injured / members of his family and assesses the amount of fair satisfaction paid for the non-material damage, and renders a judgment obliging the defendant employer to compensate the injured party.
As for the costs of the procedure, the party that loses the entire litigation is obliged to reimburse the opposing party for the costs. It should be borne in mind that, if a party partially succeeds in the litigation, the court may, in view of the success achieved, order that each party bear its own costs or that one party reimburse the other a proportionate part of the costs.
When is it possible to claim the compensation for damages?
The condition for the employer to be obliged to compensate the employee is for the court to determine his responsibility. The employer will not be liable in case he proves that the employee’s injury is a consequence of force majeure (a cause that was outside the employer’s property / activity, and whose effect could not be foreseen, avoided or eliminated). The same applies if the employer proves that the employee’s injury is a result of the employee’s behaviour itself or of a third party exclusively, and this behaviour the employer could not foresee and the consequences of such behaviour he could not avoid or eliminate, especially if the employee did not comply with the rules on safety and protection at work at the employer.
Return to work after recovery
More and more employers have realized that the company’s prosperity rests on employees who are satisfied with working conditions. Working in a pleasant, humane and friendly environment creates employees who go to work with enthusiasm, and such employees are more efficient and productive than employees who find even the thought of their job uncomfortable, the quality of their work is better, and they are more loyal to the company. Better work performance of the employees who are loyal to their employer results in better results of the company itself, while employee loyalty reduces the employer’s expenditure in terms of not having additional training costs for new employees. In other words, an employee who is, sometimes for months, trained to work for the employer, and then terminates the employment relationship soon after the training completion, dissatisfied with the working conditions, is a lost investment for the employer. For this reason, it is extremely important to pay attention to the mental state of employees.
This issue is of particular importance in the event of an employee’s long absence from work which is often the result of an injury at work, especially if this injury has resulted in reduced working capacity and general life functions of the employee.
Studies conducted in the Member States of the European Union show that 80% of employees who were absent from work for six weeks or longer need help and support in order to return to work. The longer the leave, the lower the chance that employee will return to work with the employer upon recovery. Thus, if the employee’s absence lasts for about 6 months, the chances of his return to work are 50%, and if the employee is absent for more than a year, the chances are reduced to less than 20%.
The situation in Serbia cannot be equated with the one that exists at the EU level, given the higher unemployment rate and lower chances of a new employment, but that does not mean that satisfied employees should not be a priority for domestic employers as well, for their own benefit.
Therefore, the employer should ensure that the employee is provided with adequate health care, to periodically contact the absent employee, so that the employee does not feel completely excluded and “forgotten” by his colleagues, and to show compassion and interest in his condition and the course of recovery, as well as to support his rehabilitation. Upon the employee’s return to work, the employer is obliged to provide him with unimpeded access to the work space and to adjust the work tasks of this employee to his physical and mental abilities and capabilities until his recovery is completed.
In addition, the employer is obliged to provide the employee with part-time work in case the medical commission determines that the employee’s health condition has improved, and that the employee’s work would be useful for faster establishment of his full working capacity. The duration of part-time work is determined by this commission, and it can last for at least four hours a day, in the period of three months continuously or 12 months with interruptions. Since in this case the employee works part-time during a temporary incapacity for work, he is entitled to a salary for the time spent in actual work (part-time), and to a salary compensation for the rest of the time until the full worktime.