Compensation for work accidents – what we need to know
What is a work accident
In general, a work accident is an accident at the workplace, involving a worker/employee who has entered into a contract of employment.
By legal definition (art. 55, para. 1 of the Social Insurance Code), a work accident is a sudden occurrence leading to injury that occurred in connection with or in the course of work as well as any work that benefits the employer, causing damages to the worker’s health, resulting in:
- Temporary disability
- Permanent disability or
Work accidents typically occur at the workplace but the law confer the same status to accidents that occurred during the usual journey when going to or returning from the workplace and to the following places:
- The place where the worker lives;
- The place where the worker typically has meals during the workday;
- The place where the worker is remunerated.
Workers’ self-inflicted injuries are not treated as work accidents.
Registering a work accident with the National Social Security Institute
The employer is obliged to follow the procedure under art. 57 – art. 60 of the Social Insurance Code (SIC) and the Ordinance on Establishing, Investigating, Registering, and Reporting Accidents at Work.
The employer first investigates the causes and circumstances around the accident, collects written statements by witnesses, and draws up a protocol that is subsequently submitted to the respective territorial division of the National Social Security Institute (TD of NSSI). In the event of death, when more than three workers are injured and when disability may occur as a result of an accident, the employer immediately notifies TD of NSSI, the General Labor Inspectorate Executive Agency, and other competent authorities, including the prosecutor’s office. The employer must maintain a register of occupational accidents where he must enter the details of the accident, including its registering with NSSI (entry № and date).
The employer is obliged to notify the competent TD of NSSI for each work accident within 3 (three) busienss days of becoming aware of it by submitting a declaration form. In case the employer fails to comply with this obligation, the injured worker, in person, or his/her hairs may submit the declaration within 1 (one) year from the occurrence of the accident in order to receive the benefits due in the event of a work accident.
Based on the submitted declaration or at the initiative of NSSI, provided that sufficient evidence about a work accident is available, TD of NSSI, together with the Labor Inspectorate, committees/groups on working conditions in the undertaking, and other competent authorities investigate the causes for the work accident, establish the nature and type of the injury sustained and other relevant details. Such investigation must happen in the event of death, when more than three workers are injured, and when disability may occur, and in these cases the investigation is carried out regardless of whether a declaration of work-related accident has been submitted. In other cases involving work accidents, investigation is carried out at the discretion of NSSI. The results of the investigation shall be recorded into a protocol, which shall be valid until proven otherwise. TD of NSSI opens a file for each work accident which contains the declaration of work-related accident, the protocol of the investigation (if carried out), doctor’s notes for sick leave, and other documents related to the accident. The injured person has the right to familiarize himself with the file’s contents.
Documents issued by NSSI in the event of a work accident
Based on the documents in the file and data from the database of NSSI and on the ground of art. 60 of Social Insurance Code, an official authorized by the head of TD of NSSI issues an order ruling whether the accident will be treated as a work accident within 14 days of the declaration. Interested parties – the injured worker or his/her hairs may lodge an appeal against the order, submitted to the head of the respective TD of NSSI within 14 days of receipt. If the respective person is dissatisfied with the decision of the head of TD of NSSI, they may lodge an appeal with the administrative court within 14 days of its receipt. The decision of the administrative court can be appealed as well – a further appeal may be lodged with the Supreme Administrative Court, and the decision is final. Insured persons are exempt from paying state fees for these proceedings.
For engaging the employer’s liability the accident must be categorized as a work accident by order under art. 60 of Social Insurance Code (an order by an official at TD of NSSI or in case an appeal has been lodged - a decision by the head of TD of NSSI or a court decision by the administrative court or Supreme Administrative Court).
IMPORTANT! It is settled case-law of the Supreme Court of Cassation (SCC) during the last couple years that it is a mandatory condition an accident to be determined as a work accident through the above administrative procedure in order the employer to be liable to pay compensation for material or nonmaterial damages resulting from work accidents. The claim for compensation filed by the injured or his/her hairs against the employer will not be honored unless the accident is recognized as a work accident via the special administrative procedure under the Social Insurance Code, with an effective order or if such an order has not been presented in a timely manner to be incorporated in the court case file of the employer.
Employer’s liability to pay compensation
The employer pays compensation for injuries sustained as a result of a work accident, leading to temporary disability, permanent disability (50% or higher), or death of the worker. The employer’s liability covers:
- Material damages (for example, medical expenses, lost remuneration during a period of disability) as well as
- Nonmaterial damages (pain and suffering where the monetary equivalent of the damage is determined by a court decision ex aequo et bono.
The liability of the employer has an objective nature. The employer is also liable to pay compensation when the accident:
- Is occurred due to other employees’ fault;
- Occurred due to a force major when expressly assigned tasks are performed, , as well as when any other work in the interest of the employer is performed even if it is not expressly assigned;
- Occurred during rest breaks of the workers, spent at the undertaking.
In case of self-inflicted injuries, however, the employer is not liable for the sustained damages.
Reasons for reduction in the amount of compensation
When a work accident occurs due to the worker’s gross negligence, then the employer is liable but the amount of the compensation may be reduced. As the case may be, the contributory fault of the injured, which reduces the compensation, is in the discretion of the court. There is no legal definition of gross negligence and according to the case-law of the SCC it is as follows:
- Breach of the duty of care such as even a person with the most seriously negligent behavior would exercise;
- Lack of basic care and observance and neglecting of basic technological procedures and safety rules;
- When an accident occurs which is treated as a work accident due to a breach of the safety procedures at work, unprofessional conduct, or carelessness on behalf of the injured, as well as ignoring the employer’s express instructions to follow the labour discipline at work, this conduct is treated as gross negligence;
- There is gross negligence in a work accident when the injured foresaw the occurrence of adverse effects but hoped they would not occur or that he/she would prevent them; it is a serious breach of due care as the injured could have acted with due care in the specific situation in a way an ordinary person in the same situation would exercise, etc.
In addition to contributory gross negligence on the part of the worker, the amount of the compensation paid by the employer is also reduced if the worker has received compensation for damages by other persons or the state authorities, the goal being to prevent an unjust enrichment of the worker. This is why the employer has the right to deduct the following amounts from the compensation owed:
- The benefits and/or government pension and;
- Amounts received under insurance contracts for employees.
Limitation period for filing a claim
If the employer refuses to make a payment voluntarily or pays damages of an insufficient amount, then the injured worker and his/her hairs have the right to file a court claim against the employer for the damages sustained before the expiration of the three-year limitation period. Workers whose employment is terminated after the occurrence of the work accident are also entitled to file a court claim to seek compensation from their employer. Jurisprudence is contradictory as to when the three-year limitation period starts 1) the date the accident occurred or 2) the day the protocol entered into force which establishes that the accident is a work accident.
The second opinion prevails because the procedure for issuing an order under art. 60 of the Social Insurance Code and the possibility of challenging it takes some time following the occurrence of the accident while the effective order is a constituent element of the employer’s liability to pay compensation and a necessary condition for a decision upholding the claim. There is also court jurisprudence according to which in the event of death of a worker as a result of a work accident, the three-year limitation period for filing a claim by the heirs against the employer begins from the date of death.
Social security benefits
Work injury victims covered by insurance against accidents at work, following an order establishing that the accident is a work-related, are entitled to:
- Cash benefits for temporary incapacity to work;
- Cash benefits for placement in a suitable job;
- Personal invalidity pension, etc.
The hairs of a worker who died as a result of a work accident are entitled to receive a one-off benefit in the case of death and an inheritable pension.
You can find more detailed information on the website of the National Social Security Institute.
Compulsory insurance against accidents at work
For certain categories of workers whose nature of work puts their health or life at risk, the legislator deems it necessary that employers take out compulsory insurance against accidents at work.
You may read more on this compulsory insurance here.
This article has been prepared for the purposes of general information only and does not constitute legal advice with respect to any particular subject or situation. For specific legal advice you should contact an attorney-at-law. Stoeva, Tchompalov & Znepolski is not responsible for any legal action undertaken on the basis of the information contained herein.