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Non-industrial injury

Non-industrial injury

PUBLICATIONS \ 11.01.2022

An industrial injury is a phenomenon that every employer can face; alas, no employee can be insured against such an event. But in all cases, will the injuries received be recognized as industrial ones? The answer is no, far from it. Ekaterina Lutenko, Acsour’s Internal Auditor, has spoken about exceptional cases to “Raschet” magazine.

An accident at work is a very unpleasant event, especially for an employee who might be injured. For business, this situation entails the mandatory implementation of several procedures. The company will have to conduct an investigation, draw up the necessary documents, and pay compensation to the employee. However, not every employment injury is considered an industrial injury. We will tell you about controversial situations from the viewpoint of legislation, about what is generally considered to be an industrial injury and what conditions exist for it to be recognized as such.

SIGNS OF INJURY

First of all, it is necessary to remember exactly how an industrial injury is defined by Russian legislation. Oddly to say, there is no official definition. At the same time, the procedure for actions that have to be taken by the employer in the event of an employment injury is regulated by the rules of employment legislation. In practice, an industrial injury is considered to be an event as a result of which an employee has suffered harm to his or her health while performing his or her work duties. At the same time, such an event has to correspond to a number of signs listed in article 277 of the Labour Code of the Russian Federation, namely: a person should participate in the industrial activities of the company and be insured in the system of statutory social insurance against employment injuries and occupational diseases; the injury should be received while performing work duties or when performing any work under the authority of the company; the event should have occurred during working hours; the injured person needs to be transferred to another job; and the injury itself should have temporarily or completely made him or her disabled or have led to death.

The injury may result in:

  • bodily injuries, including those caused by another person;
  • heat stroke;
  • a burn, ice burn, or drowning;
  • an electric shock, lightning, or radiation;
  • bites caused by insects or animals;
  • damage owing to accidents, destruction of buildings, natural disasters, etc.

From the clarification of the Labour Code of the Russian Federation, it directly follows that the damage caused to the health of an employee can be considered received at work if two conditions are met: the incident occurred during working hours, and it entailed certain consequences (a transfer to another job, disability or death).

This means that an industrial injury can be recognized as an accident that has occurred:

  • when the employee proceeds to his or her place of work or from it on a vehicle owned by the employer, or in a personal car for work-related purposes;
  • when going to the place of a business trip and back during business trips by public or by the company’s transport, as well as on foot;
  • when working on a rotation basis;
  • during lunch or other breaks at the employer’s premises;
  • during overtime work or during holidays, weekends, etc.

ACTIONS BY THE PARTIES

In the event of an accident, the employee has to inform his or her direct manager of this. The employer, in turn, is required to take the following actions.

First, of course, it is necessary to provide assistance to the affected person. In this case, first aid must be organized with, if necessary, the employee being delivered to a medical organization.

At the same time, it is necessary to keep the situation as it was at the time of the incident, if this does not entail a catastrophe and does not threaten the lives of other employees. If the accident is serious or fatal, it is required to report it within 24 hours to the Social Insurance Fund (SIF) authorities, to trade union organizations, to the prosecutor’s office, and to others.

Next, it is necessary to investigate the accident. This will require the creation of a commission, which should include a labour safety specialist, the employer or its representative, and representatives of a trade union organization or other elected body.

If several persons were injured or the accident resulted in death, then the commission also needs to include an inspector from the State Labour Inspectorate, a representative from a local government body and a regional association of trade union organizations.

The investigation period for events that have occurred is three days, or 15 days in a case of injury to several people or death. If an additional check is required, the deadlines can be extended, but not by more than 15 days. Please note that an investigation is carried out with respect to any employment accident!

It is then necessary to document the results of the investigation. It is the commission that decides whether or not the incident is work-related.

After analyzing the circumstances of the incident, studying the materials provided (photos and videos from the place of the event, records of interviews with eyewitnesses, extracts from the journal of labour protection briefings, etc.), and examining medical documents, the commission draws up a certificate. If the case is work-related, then a certificate of an employment accident is prepared, outlining the circumstances in detail along with the reasons for what happened; if not, a certificate concerning the investigation is drawn up.

The document is drawn up in two copies, one of which should be issued to the affected person within three days after the completion of the investigation, while the second one remains with the employer and is kept by it for 45 years.

Each employment accident should be registered in the appropriate journal, the form of which is established by Resolution No. 73 of the Ministry of Labour of Russia dated October 24, 2002.

If, in an accident, several people were injured or such incident led to death, then within three days from the date when the certificate is drawn up, the employer has to send a copy of the document and notify the local branch of the State Labour Inspectorate and the SIF, the prosecutor’s office, and the branch department about the incident.

CALCULATION OF COMPENSATION

In the event of an injury at work, an employee can expect to receive compensation.

Thus, the company pays for sick leave, while the amount of the allowance is calculated and paid by the SIF. The basis for accrual of the payment is sick leave with disability code “04” and a certificate of an industrial accident.

The amount of the payment does not depend on the employee’s pension insurance record. It is 100% of the victim’s average earnings for the entire period of incapacity for work. However, the maximum amount cannot exceed four times the minimum monthly insurance payment.

It is necessary to obtain several documents from the employee, among them information about the insured person, certificates of the amount of earnings received from other employers, and other papers. In addition to the certificate, sick leave and documents submitted by the employee to the employer, an additional set of documents is required to be submitted, which is determined by the local body of the SIF.

In addition to the transfer of the allowance, the employee can expect one-time and monthly insurance payments, as well as the payment of additional expenses associated with medical, social and vocational rehabilitation. These, for example, include the provision of vacation for health treatment at a sanatorium, if the SIF authority confirms the need for this.

A DISPUTABLE INJURY

If some accidents that occur during work can be immediately recognized as industrial, then there are also opposite situations when it is difficult to do so. The most doubtful cases are as follows.

  1. Injury away from the employer’s premises during lunchtime

If an employee is injured during lunch while in the employer’s office, then this can be recognized as an industrial accident. The situation is different if such a case occurred with a specialist outside the employer’s premises.

If we understand article 227 of the Labour Code of the Russian Federation literally, an injury will be classified as an accident during a break for rest and a meal only if it happened within the territory of the enterprise and at another place of work. This, in particular, is stated in the Ruling of the Commercial (‘Arbitration’) court of the Moscow District dated March 14, 2019 in case No. A40 229308/2017 and in the decision of the Supreme Court of the Republic of Bashkortostan dated June 30, 2015 in case No. 33-10826/2015.

However, the St. Petersburg municipal court in its decision No. 33-8328/2014 dated May 28, 2014 focused not on the place where lunch took place, but on equating the meal period with working hours (article 108 of the Labour Code of the Russian Federation). And in this case, the event is already of an industrial nature, since the employee had lunch during the working day and, regardless of where he or she was lunching, what happened to him or her can therefore be considered an industrial accident.

  1. Injuries that did not lead to significant consequences

If the injury has caused damage to health (in the form of partial or complete disability, a transfer to another job or death), then this is an industrial accident. But if, after the injuries, the employee did not take sick leave and continued to carry out his or her work as usual, then it would be doubtful whether the injury would be recognized as an industrial one; such conclusion follows from the Decision of the Gaysky Municipal Court of the Orenburg Region dated January 12, 2018 in case No. 2-22/2018.

In order to prevent doubts, I recommend that an employee be sent to a medical organization, with the results of the examination being received in the form of formalized temporary disability leave or of a certificate that a sick leave is not required.

Otherwise, the employee may go to a doctor owing to disability after some time, and the company may be held administratively liable for not registering the incident on a timely basis as an industrial accident based on the results of an additional investigation by the State Labour Inspectorate authorities, as happened in case No. 33a-1851 considered by the Supreme Court of the Republic of Buryatia on June 13, 2018.

  1. Injuries recognized as home injuries

A “home” injury usually means an injury that is not associated with work. Such cases can be intoxication through alcohol or drugs. At the same time, such intoxication is not associated with violations of the technological process (in the production of aromatic, alcoholic, or toxic substances).

Take the example of an employee falling from stairs owing to alcohol intoxication and, as a result, breaking his or her leg. That is, there is a causal relationship between the damage to health and alcohol consumption, which is confirmed by a medical report (clause 10 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation dated March 10, 2011).

On the other hand, there is Ruling No. 33-499/2018 of the St. Petersburg Municipal Court dated January 17, 2018, which suggests otherwise. This state of affairs involved the employee being found in the employer’s premises with external signs of bodily injuries before the start of his work shift. He was taken to hospital and died a week later. The reason was a cerebral edema, focal brain injury and a fall in the workplace. At the time of his arrival to the hospital, the employee was in a moderate degree of alcohol intoxication. The court determined that if the victim’s manager had properly abided by the provisions of the employer’s Internal Policies and Procedures, the victim would not have been allowed to perform his work duties, so would not have been injured or died. Therefore, the accident was declared an industrial accident.

Another example of a “home” injury is an injury received as a result of the victim’s actions that are classified as a criminal offence by law enforcement authorities. An example may be an injury to a driver who has violated road traffic regulations while performing work duties, and as a result of such an incident, serious harm has been caused to another person (part 1 of article 264 of the Criminal Code of the Russian Federation).

It is also controversial to consider an injury as an industrial one if it was received during a fight between employees in the performance of their work duties (owing to hostility towards each other).

Please note that, in case of a home injury, the employee is paid only for sick leave, and the code for the designation of the reason for incapacity for work in the document in question will not be “04”, but “02”.

OUTSIDE OF WORK

According to part 3 of article 227 of the Labour Code of the Russian Federation, an incident is an industrial accident when an employee is injured on the way to work or on the way back, as well as during a business trip.

If the injury was received at the employer’s premises, but during non-working hours, then whether it is to be recognized as an industrial one will be controversial. This opinion is adhered to by the Moscow municipal court, having been expressed in the Ruling dated July 20, 2018 based on the results of the consideration of case No. 33-32322/2018. An employee in the dispute in question slipped on a wet floor during non-working hours while returning to her room. Despite the irregular working hours, at the time of her return to the office, the employer had not given any instructions that would have obliged the woman to be present at the office.

THREE RULES

Practice shows once again that not every case can be unambiguously interpreted in accordance with the provisions of employment legislation. This means that each case that arises is different.

To minimize the risk of accidents, the employer needs to pay special attention to industrial safety within the enterprise. It is necessary to highlight every possible case that may occur, and to stipulate a plan of actions when an incident occurs in the company. If such an incident occurs, then it is necessary:

  1. To conduct an investigation of an accident that has occurred at work. Undoubtedly, the decision on the results of the investigation will remain with the commission, but it is the responsibility of the company to initiate the investigation procedure.
  2. To issue the results of the investigation with appropriate documents so that the supervisory authorities do not have additional questions, and the organization itself can prove that the actions taken were legal.
  3. To remember that whether to recognize an injury as an industrial one is often conditioned by two circumstances: the damage to health was caused during working hours and was connected with the performance of the employee’s job functions. No other circumstances can influence the conclusions of the commission that is created and the decisions of the SIF authorities. In addition, these factors can be decisive in court disputes.

Ekaterina Lutenko

Internal Auditor