Occupational accidents: medico-legal aspects

1. Occupational accidents: medico-legal aspects Prof. Peter Donceel Section of occupational, environmental and insurance medicine Department of Public Health K.U.Leuven Prof. P. Donceel Hands at work, work at hands 17 November 2007

2. I. Introduction Organisation of social security in Belgium Prof. P. Donceel Hands at work, work at hands 17 November 2007

3. Social Security • Sociale zekerheid • Sécurité sociale • Social Security • combination of “social insurance” and “economic security” • framework of different legislations and regulations with the intention of providing all citizens at each moment of their life with a guaranteed minimum income Prof. P. Donceel Hands at work, work at hands 17 November 2007

4. General aspects of social security • primary goal = protection of the society • insurance principle: financing based on solidarity (supplemented with subsidies from government and taxes) • exception: occupational accidents financed by employer • rules defined by law • 2 types: income-replacement benefits and income-supplements • universal coverage (independent of income) • redistributive effect by levelling down the maximal benefits Prof. P. Donceel Hands at work, work at hands 17 November 2007

5. Belgian social security • The classical social security contains seven sectors: 1. old-age and survivor's pensions 2. unemployment 3. insurance for accidents at work 4. insurance for occupational diseases 5. family benefits 6. sickness and disability insurance 7. annual vacation Prof. P. Donceel Hands at work, work at hands 17 November 2007

6. Who is covered? • “classical social security” = employees • (more or less) similar arrangements for • self-employed • no insurance for occupational accidents and occupational diseases within social security • public service • separate ‘insurance’ for occupational accidents and occupational diseases Prof. P. Donceel Hands at work, work at hands 17 November 2007

7. Prof. P. Donceel Hands at work, work at hands 17 November 2007

8. PROFESSIONAL RISK INSURANCES 1. occupational diseases 2. work accidents Prof. P. Donceel Hands at work, work at hands 17 November 2007

9. Accidents at work: historical notes • oldest social insurance (1903) • during 19e century: industrialisation led to more dangerous working conditions • victims could only claim compensation in tort law (art. 1382 BW) or depended on charity • many victims left without compensation • employers personally faced court procedures • compromise: guaranteed but confined compensation without further investigation of liability (no fault system) Prof. P. Donceel Hands at work, work at hands 17 November 2007

10. Occupational diseases: historical notes • same principle: confined compensation independent of responsibility employer • differences • causal factor = more or less prolonged exposure (sometimes spread over many employers) • damage is disease instead of trauma • occurrence sometimes decades after exposure • not always linked to one employer, therefore one “Fund of Occupational Diseases” Prof. P. Donceel Hands at work, work at hands 17 November 2007

11. Occupational diseases • general features • Fund of Occupational Diseases • list with prescribed diseases • victim has to prove exposure and diagnosis • example: Paralysis of the nerves due to pressure • Carpal tunnel syndrome • ‘open’ system • victim has to prove exposure, diagnosis AND direct and determining causal relationship • example: tendinitis Prof. P. Donceel Hands at work, work at hands 17 November 2007

12. Accidents at work • general features • private insurance company of employer • insurance coverage defined by law • temporary incapacity for work / consolidation / permanent incapacity for work • covers accidents at work and accident on the road to and from work • large role of jurisprudence Prof. P. Donceel Hands at work, work at hands 17 November 2007

13. Accidents at work: legal definition • an accident at work is every accident occurring to an employee during and because of the execution of his labour contract and causing injury • the cause must be a 'sudden event' • one single external cause is sufficient • if the victim can prove that there has been a sudden event and that it caused an injury, this combination is considered an accident at work • when this accident occurred during the execution of the employment contract, it is assumed to be an accident at work Prof. P. Donceel Hands at work, work at hands 17 November 2007

14. Accidents at work: insurance organisation • mandatory insurance for every employer • private insurance companies, authorised by government • Fund of occupational accidents • supervision / control • non insured cases / seamen • supplements / medical costs of accidents before 1988 Prof. P. Donceel Hands at work, work at hands 17 November 2007

15. Accidents at work: what is covered? • mortal accident • temporary incapacity for work • permanent incapacity for work • medical costs • prostheses en orthopaedic aids • travel costs • not reimbursed: moral/esthetical/material damage Prof. P. Donceel Hands at work, work at hands 17 November 2007

16. Accidents at work: temporary work incapacity • work incapacity • impossibility to perform normal duties • irrespective of duration • temporary • medical improvement possible • ends by recovery - consolidation - death Prof. P. Donceel Hands at work, work at hands 17 November 2007

17. Accidents at work: consolidation • consolidation (end TWI) • functional injuries are stabilised • impact on vocational possibilities on the labor market is permanent • further treatment will not influence work ability • point of maximum medical improvement •  end medical treatment •  date work resumption (but often used in practice) Prof. P. Donceel Hands at work, work at hands 17 November 2007

18. Accidents at work: permanent work incapacity • impact of the permanent injuries on the possibility to earn an income on the labor market • impairment • age • professional qualification • possibilities to adjust and re-education • competitiveness on general labour market • but: not the actual economical situation Prof. P. Donceel Hands at work, work at hands 17 November 2007

19. Accidents at work: PWI in practice • guide or barema: Official Belgian Scale to determine ‘Invalidity’ • applicable articles have to be mentioned in medical report at consolidation • adjustment: socio-economical factors • for ‘high percentages’: more liberal interpretation of barema • rather seldom: ergological advice Prof. P. Donceel Hands at work, work at hands 17 November 2007

20. Accidents at work: procedure • full recovery • TWI > 7 d.: letter; TWI > 30 d.: medical certificate • consolidation with PWI: settlement proposal • victim has to agree • consults physician of his choice • who can ask a copy of the entire consolidation report • procedure of ratification by FOA • no agreement from victim or FOA: court procedure • labour tribunal – labour court Prof. P. Donceel Hands at work, work at hands 17 November 2007

21. Accidents at work: revision • review term (herzieningstermijn) = 3 years from • ratification of agreement victim-insurer by FOA • judgment takes effect (1 month after notification) of date arrest • notification of recovery (0%) • NOT from date of consolidation • revision % PWI (indemnification based on lost salary) • unforeseeable alteration health status • during revision period • TWI Prof. P. Donceel Hands at work, work at hands 17 November 2007

22. Accidents at work: aggravation • after review term • TWI • condition degree PWI > 10% • aggravation allowance • condition new % after aggravation at least 10% • based on minimum forfeits • accidents before 1.1.1988 : FOA • accidents after 1.1.1988: insurer Prof. P. Donceel Hands at work, work at hands 17 November 2007

23. Law 13 July 2006 regarding professional rehabilitation in occupational diseases and accidents • examination of reintegration possibilities in period of temporary work incapacity • victim can ask medical adviser of insurance company to examine him in order to evaluate the possibility of re-employment and the residual capabilities • if TWI > 90 days: the medical adviser evaluates and motivates possibilities of re-employment and the residual capabilities in every report that does not conclude to recovery or consolidation Prof. P. Donceel Hands at work, work at hands 17 November 2007

24. Law 13 July 2006 regarding professional rehabilitation in occupational diseases and accidents • possibility of reemployment during period of TWI • proposal of insurance • advice of occupational physician in case of enlisted worker • possibility of professional rehabilitation during TWI, paid by insurer Prof. P. Donceel Hands at work, work at hands 17 November 2007

25. General conclusion • insurance for occupational accidents historically developed out of tort law • part of social security but private insurer • elements from social and private insurance techniques • when insurance company notifies decision it is important to ask for the medical reports • importance of review term for the victim Prof. P. Donceel Hands at work, work at hands 17 November 2007