Work accident

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Plaque for received at work killed workers in Manchester ( England )

The industrial accident (including industrial accident , occupational accident ) is the statutory accident insurance an accident of a worker which the latter during working hours or on the way to work suffers.

General

According to Section 8 Paragraph 1 Clause 1 SGB ​​VII , an occupational accident occurs if an insured person suffers an accident as a result of an activity according to Section 2 SGB ​​VII, Section 3 SGB ​​VII or Section 6 SGB ​​VII (so-called insured activity ). According to Section 8, Paragraph 1, Clause 2 of Book VII of the Social Code, accidents are temporary events that have an external impact on the body and lead to damage to health or death. The occupational accident includes internal occupational accidents (e.g. during activities in production and administration ), external occupational accidents (e.g. during assembly work and on business trips ) and commuting accidents (on the way to and from the place of work ). The accident at work occurs during working hours (Section 8 (1) SGB VII). Nevertheless, the commuting accident is also treated as an accident at work (Section 8 (2) No. 1 SGB VII), even if the commute is not part of working hours.

Work accidents must be differentiated from purely private household , leisure , sport and traffic accidents that are not related to a professional activity. Social security in the event of an occupational accident is regulated by law in many social security systems around the world. In particular, the prerequisites for an accident at work, the scope of services and the medical system differ from country to country.

Delimitations

According to Section 8, Paragraph 1, Clause 1 of SGB VII, occupational accidents are “accidents of insured persons as a result of an activity giving rise to insurance cover under Sections 2, 3 or 6 (insured activity)”. In order to recognize an occupational accident, the criteria “insured person”, “insured activity” and “accident” must be met. The term accident in the statutory accident insurance is tied to very specific requirements. According to Section 8, Paragraph 1, Sentence 2 of Book VII of the Social Code, accidents are “temporary events that have an external effect on the body and lead to damage to health or death”. Thus, in the social law sense, the accident is divided into three individual characteristics: the temporary accident event that has an external effect on the body, the damage to health or death and the causal relationship between the first two characteristics (so-called liability causality). A causal relationship is also required between the criteria “insured activity” and “accident”. For an occupational accident, it is usually necessary that the work performed by the employee at the time of the accident is attributable to the insured activity ( internal or factual context ), and that this work leads to the temporary event that has an external effect on the body (the accident event ) ( accident causality ) and the accident event caused damage to health or the death of the insured person ( causality establishing liability ). Regarded as labor accidents external influences, for example, cascading tools , electric shock or dangerous machinery as part of the potentially hazardous work but also everyday incidents such trip, slip and falls. Psychological influences, such as witnessing a suicide of a patient as a nurse in the closed ward of a psychiatric ward, can also represent an accident. Accidents at home working or teleworking are only accidents when they are in the working area of the apartment happen. Accidents during company sport are work accidents if company sport is intended to compensate for the one-sided workload , if it is mainly exercised by employees as participants and is organized in a company-related manner.

An occupational accident does not have internal causes ( e.g. epileptic seizure , heart attack ) or deliberate self-harm . Accidents during a self-employed activity within the framework of working hours (eating and drinking in the canteen or relieving themselves ) are not accidents at work. Anyone who makes a private phone call during an "insignificant interruption" during working hours and injures themselves in the process also does not suffer an accident at work and loses their insurance cover. An "insignificant interruption" for private purposes, during which the insurance cover continues, exists if the interruption is only minimal in terms of time and space and serves a task that is carried out "in passing" and "on the side". It may only lead to a minor, actual interruption of the insured activity. Ultimately, these are cases in which the insured performance and the private performance as an actual occurrence are very difficult to separate from one another.

Legal issues

The legal review of an insured event is to be structured as follows in accordance with Section 8 of Book VII of the Social Code :

  • First, there must be an insured activity . This is not only the professional activity itself, but also the replacement of the related to the insured activity immediate working travel to and from the place of work ( commuting accidents ). More details can be found in §§ 2, 3 and 6 SGB ​​VII (insurance by law, by virtue of the statutes or voluntary insurance); so belong z. B. also schoolchildren , students and trainees as well as emergency helpers or blood / organ donors to the insured group of people.
  • Furthermore, there must be a “specific performance” within the scope of the insured activity.
  • There must be an internal factual connection between the insured activity and the accident . The commercial and operational risk must be separated from one another. The activity carried out must be attributed to the insured area of ​​activity in the evaluation, whereby it should depend on the insured's idea that his activity serves the insured activity. The internal connection does not apply to the so - called self-created risk if the insured person behaves irrationally to such an extent (e.g. excessive alcohol level) that the operational circumstances recede completely and are no longer a major cause of the accident. However, illegal action does not per se exclude the assumption of an accident at work (see Section 7 (2) SGB VII).
  • An accident must have occurred: a temporary event that has an external effect on the body and leads to damage to health or death. Temporary means that it occurred within a work shift. This regulation ensures a differentiation from the occupational disease , which also falls under the obligation to compensate the statutory accident insurance. However, an assessment of the individual case must be carried out in each case.
  • The insured activity must have been the cause of the accident (liability-establishing causality) in the sense of the doctrine of the legally essential causal relationship that is predominant in social law : A condition is essential in this sense if you look at everyday life because of its special relationship to success is essential for its occurrence. A counterexample for this is z. B. the so-called "internal cause" (heart attack, previous illnesses, etc.).
  • There must be a damage to health (irregular body or mental state). According to Section 8 (3) SGB VII, damage to an aid (glasses, prosthesis) is equated with bodily harm. However, this aid must be used for its conventionally intended use (e.g. the glasses must sit on the nose and must not be attached to the shirt collar; the prosthesis e.g. on the arm or leg and not on a bench), otherwise it will no compensation paid. A special feature is that property damage must also be reimbursed if it is an accident that has to be recognized as a so-called helper (cf. § 13 SGB ​​VII) and the property damage occurred in a causal connection with the accident.
  • The time-limited event that has an external effect on the body must be a major (partial) cause of the damage to health or death ( causality that fulfills liability ).
  • The scope of the claim (benefits) is regularly based on the damage that has occurred. The aim is to restore the condition that existed before the accident (in rem restitution as a form of compensation). This therefore includes both damage to health and damage to property (from injury benefits to injured or surviving dependents' pensions ).
  • It is not a prerequisite that the contribution to the statutory accident insurance has been paid. Even if the company liable to pay contributions was not registered with the responsible accident insurance institution at the time of the accident, it is obliged to pay compensation if the above conditions for an accident at work / commuting or an occupational disease are met.

If there is an accident at work in the aforementioned sense, the statutory health insurance is released from its obligation to provide benefits; There are no claims against the health insurance company ( Section 11 (5 ) SGB ​​V ).

statistics

Around 270 million work accidents occur worldwide every year; around 2.2 million people die every year from occupational accidents and work-related illnesses. In 2016, 424 fatal accidents at work occurred in Germany; In 1992 the German Statutory Accident Insurance still counted 1,874,713 reported accidents at work, of which 1,443 were fatal. Work accidents occur more frequently on Mondays . However, the severity of the accident is less than on other days of the week. The most serious accidents at work occur on Saturdays .

The 1,000-man quota is used to compare occupational accidents in different industries and companies .

Gender distribution

In the EU-27, around 80 percent of non- fatal accidents at work affect men. The figure for fatal accidents at work is around 95 percent.

Germany

Indirect consequences of an insured event

In the statutory accident insurance, damage to health is also to be compensated as the consequences of an insured event if they are at

  • the implementation of curative treatment, benefits for participation in working life or a measure according to § 3 of the Occupational Diseases Ordinance ,
  • the restoration or renewal of an aid or
  • an investigation ordered to clarify the facts of an insured event

enter. The same applies to the necessary paths or preparatory measures that have been ordered ( Section 11 of Book VII of the Social Code ).

The commuting accident

Not only the actual professional activity, but also the way to and from work is recognized as an insured activity in Germany. An accident in connection with a journey is also referred to as a commuting accident . A commuting accident only exists if the direct route to the place of work was chosen. This does not always have to be the shortest route if another route is faster, safer or more convenient.

An interruption or a detour usually excludes a commuting accident. As a rule, interruptions do not lead to the loss of accident insurance cover if they can be dealt with "in passing" or "quite incidentally" and therefore represent a slight interruption to the way to work. For example, according to a decision by the Federal Social Court (BSG), whoever makes a detour of 100 meters on the way from work to z. B. Withdraw money from the machine . In contrast to this, the BSG has decided that a private interruption in which the vehicle was left for the purpose of private performance (letter dropping in a post box) is not a minor interruption and the insurance cover from the statutory accident insurance is therefore not applicable. If the journey is interrupted for less than two hours, the insurance cover can be revived when the journey to the insured destination is resumed. If there is a break of two hours or more, there may be a route to or from a so-called third location . Carpooling is usually also covered by insurance (because it has an operational cause) as is a detour that is used to take children living in the household of the insured person into custody due to the insured activity (see Section 8 (2) SGB VII). In contrast, there is no insurance cover in the case of so-called astray .

The demarcation between private (uninsured) and professional (insured) areas can therefore be problematic. B. the consequences of a fall through a glazed apartment door with the consequences of an accident that occur as a result of the impact in the (uninsured) private area are not insured, because the apartment door (this can also be the garage door of a garage connected to the apartment building) is the limit at which the insured path changes into the uninsured private area.

For years, employers' associations have been striving to generally reduce commuting accidents as work-related accidents in order to reduce their contribution shares to accident insurance. In some industries, almost half of all fatal accidents were commuting accidents.

Agency and procedure

Insurance carriers for statutory accident insurance are the commercial employers' liability insurance associations , the accident insurance funds of the federal and state governments and the social insurance for agriculture, forestry and horticulture (the former agricultural employers liability insurance associations ).

Accident report from 1908

If an examination reveals that an accident at work has occurred, the relevant accident insurance institution must provide the relevant benefits ex officio from the treatment costs to the pension in the event of serious consequences of the accident , d. In other words, no application is required, but there are reporting obligations (accident report).

With an accident report, the entrepreneur has to send an accident that leads to an accident-related inability to work for more than three calendar days or to death to the insurance carrier within three days. In addition, in the event of accidents in companies that are subject to general occupational health and safety supervision, the entrepreneur must send a copy of the notification to the authority responsible for occupational health and safety ( Section 193, Paragraph 7, SGB VII); apart from a few exceptions, e.g. B. farms without employees, to all farms. In case of doubt, the competent authority for occupational safety can be found on the BAuA website or the LASi website .

In most cases, the accident insurance institutions find out about an accident through a report from the in-service doctor . General practitioners and orthopedists also report the accident, but must refer the patient to a so-called transit doctor if treatment is in need of more than a week or if he is unable to work.

Liability privilege of the entrepreneur and work colleagues

In principle, the person responsible for damage to health / property and / or property is himself liable in accordance with the relevant provisions of civil law.

In the statutory accident insurance, however, the entrepreneur is only liable for personal injury to his employees as a result of an occupational disease or an accident on the way to and from work, if he caused the accident at work intentionally or intentionally or negligently ( Section 104 (1) SGB VII). - Example: employer pushes employee off a work ramp. The same limitations of liability apply to work colleagues in the same company ( Section 105 (1) SGB VII) - example: a fight for company reasons.

Liability under civil law is replaced by law - i.e. without the involvement of those involved - by the public liability of the relevant insurance company. This is the employer's "privilege", which in return is faced with the obligation to pay the appropriate contributions (levy) to the relevant professional association. The non-payment of the contributions does not exclude the insurance cover, however, the accident insurance institution always intervenes - if the legal requirements for the insured event are met. This even applies if the accident is (initially) reported to an incompetent provider - the compensation then takes place in the internal relationship between the incompetent and the competent service provider (regulated in SGB ​​X ).

These limitations of liability are intended to serve the injured party and also to ensure “peace in the company”.

In principle, however, the liability privilege does not apply to property damage suffered, unless it is a case of Section 13 SGB ​​VII, i.e. if, for example, an assistant suffers property damage (clothing, car, etc.) while providing insured assistance.

Accident care in civil service law

Work-related accidents involving civil servants (when performing work or on the way to or from the place of work) are called work accidents . The civil service accident insurance is regulated by federal law in §§ 30 ff . It is based on the accident insurance law of the statutory accident insurance (SGB VII). Some of the federal states have regulated the supply law in their own state civil servant supply laws, but have made identical provisions for occupational accident insurance. According to the case law of the administrative court, the protection in practice is significantly greater than that under SGB VII.

Legal situation in other countries

Austria

In Austria , an occupational accident occurs when someone suffers an accident in the course of their work. As in Germany, an accident to and from the workplace counts as a commuting accident . The main difference to a recreational accident lies in a differentiated treatment with regard to insurance benefits. While a recreational accident victim is usually looked after and compensated by the responsible health insurance company, benefits in the event of an occupational accident are paid for by the social accident insurance (e.g. General Accident Insurance ). In addition to the insurance task, this accident insurance also has to take preventive measures in order to prevent accidents at work.

There is also a further difference in relation to permanent damage or disability as a result of an accident at work. For example, the accident insurance pays accident pensions or retraining measures for another profession. The accident insurance is financed by an employer contribution of up to two percent of the gross salary. Members of voluntary fire brigades are an exception . Accidents in the fire service are treated the same as occupational accidents, although fire fighters are not employees in the legal sense.

According to § 1154b ABGB , an employee retains his right to remuneration if he is prevented from performing the service due to illness or accident after taking up the service, without being responsible for this intentionally or through gross negligence.

Switzerland

In Switzerland , an occupational accident is also called an occupational accident. According to Art. 328 Para. 2 CO , the employer must take the measures to protect the life, health and personal integrity of the employees that are necessary based on experience, applicable according to the state of the art and appropriate to the circumstances of the company or household insofar as it can reasonably be expected of him, taking into account the individual employment relationship and the nature of the work performed. Possible service providers include accident insurers, employers and / or public liability insurers, supplementary insurers of the employer and / or the accident victim, old age and survivors insurers, disability insurers, pension insurers, third party harm and / or liability insurers (e.g. the principal in accordance with Art. 55 OR). Occupational accidents are those that occur during work that is carried out on the orders of the employer or in his interests. All other accidents, namely on the way to work, sports accidents or accidents during leisure time, are therefore considered non-occupational accidents.

France

definition

In France , the accident at work ( French accident du travail ) is in art. L. 411-1 C. séc. soc. legally defined . According to this, an occupational accident is one that an employee or worker has suffered while working (i.e. while being bound by instructions ) for an employer or company boss.

If the accident does not occur during working hours, but at the workplace, an occupational accident is suspected.

The accident at work is differentiated from the occupational disease by the condition that the injury occurs suddenly . It can be caused by a specific event or several events that can be determined in time. Psychological damage is also included.

suspension

During the employee's recovery period, the employment relationship is suspended ( suspension du contrat de travail pendant l'arrêt de travail ), art. L. 1226-7, al. 1 C. trav. After that, it will be enforced again while retaining the wages, art. L. 1226-8, al. 1 C. trav.

Protection standards

The period of the suspended employment relationship is in accordance with art. L. 1226-7, al. 3 C. trav. included in the calculation of the employee's length of service so that the dependent legal or contractual advantages are not curtailed. In addition, the consequences of the industrial accident must not lead to a delay in the promotion or other advancement of the employee in the company, art. L. 1226-8, al. 2 C. trav.

During the suspension, the employee enjoys a gem. art. L. 1226-9 C. trav. Special protection against dismissal and may only be terminated in exceptional cases due to gross misconduct or due to the impossibility of maintaining the employment relationship. If the employer violates this, the termination according to art. L. 1226-13 , art. L. 1266-9 , Article L. 1235-3-1, al. 1, phr. 1; al. 8 (° 6) C. trav. ineffective ( nullité ).

Claims of the employee in the event of violations

The employee who was unlawfully terminated during the suspension period has Article L. 1235-3-1, al. 1, phr. 2 C. trav. Either right to re-employment or to compensation of at least six monthly salaries. In both cases, according to Article L. 1235-3-1, al. 9 C. trav. the entitlement to the salary that he would have received at the time of the ineffective termination remains unaffected. The level of protection thus corresponds to that of the special protection against dismissal for pregnant women in the relative protection period.

If the employer violates his reintegration obligation by not resuming the employment relationship at the end of the suspension period ( art. L. 1226-8, al. 1 C. trav. ), Reintegration cannot be forced upon him; In this case, however, he must pay the employee compensation in the amount of the last six months' salary, art. L. 1226-15, al. 1 C. trav.

Occupational disability

literature

Web links

Commons : Work accidents  - collection of images, videos and audio files
Wiktionary: industrial accident  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ On the emergence of statutory accident insurance in the 19th century, cf. Collection of sources on the history of German social policy from 1867 to 1914 , Section I: From the time when the Reich was founded to the Imperial Social Message (1867–1881) , Volume 2: From liability legislation to the first accident insurance proposal, edited by Florian Tennstedt and Heidi Winter, Stuttgart a. a. 1993; Collection of sources on the history of German social policy from 1867 to 1914, Section II: From the Imperial Social Message to the February decrees of Wilhelm II (1881–1890), Volume 2, Part 1: From the second accident insurance bill to the Accident Insurance Act of July 6, 1884 , edited by Florian Tennstedt and Heidi Winter, Stuttgart a. a. 1995; Collection of sources on the history of German social policy from 1867 to 1914, Section II: From the Imperial Social Message to the February decrees of Wilhelm II (1881–1890), Volume 2, Part 2: The expansion legislation and the practice of accident insurance, edited by Wolfgang Ayaß , Darmstadt 2001; Collection of sources on the history of German social policy from 1867 to 1914, III. Department: Expansion and differentiation of social policy since the beginning of the New Course (1890–1904), Volume 2, The revision of the accident insurance laws and the practice of accident insurance, edited by Wolfgang Ayaß, Darmstadt 2009.
  2. ↑ Peter Becker: Different causality tests in civil law and in social law using the example of recent BGH judgments on Sudeck syndrome . In: The medical expert . tape 107 , no. 1 , 2011, p. 32-36 .
  3. ↑ BSG, judgment of May 12, 2009, Az .: B 2 U12 / 08 R = NJW 2010, 1692
  4. ↑ Thomas Pfeiffer, Josef Sauer: Arbeitsschutz von AZ . 2013, p. 66, books.google.de
  5. ↑ BSG, judgment of December 13, 2005, Az .: B 2 U 29/04 R = NJW 2007, 399
  6. ↑ Rabe von Pappenheim (ed.): Lexikon Arbeitsrecht 2018 , 2018, p. 45
  7. ↑ BSG, judgment of July 2, 1996, Az .: 2 RU 34/95 = NJW 1997, 2261
  8. ↑ BSG, judgment of May 12, 2009, Az .: B 2 U12 / 08 R
  9. ↑ Landessozialgericht Darmstadt, judgment of December 14, 2010, Az .: L 3 U 33/11
  10. ↑ cf. BSG, judgment of April 12, 2005, Az .: B 2 U 11/04 R = BSGE 94, 262
  11. ↑ Accidents at work . In: Der Spiegel . No.  19 , 2017 ( online ).
  12. ↑ BGW: Monday's greatest risk of accidents. (No longer available online.) BGW , August 1, 1999, archived from the original on January 28, 2008 ; Retrieved March 19, 2014 .
  13. ↑ Main Association of Commercial Employer's Liability Insurance Associations (Ed.): Arbeitsunfallstatistik 2003 . Sankt Augustin 2003, ISBN 3-88383-680-X ( hvbg.de ( Memento of December 8, 2006 in the Internet Archive ) [PDF; 997  kB ; accessed on March 19, 2014]). Employment accident statistics 2003 ( Memento from December 8, 2006 in the Internet Archive )
  14. ^ Statistics on health and safety at work. Eurostat , October 2012, accessed on 18 March 2016 .
  15. ↑ BSG, judgment of June 24, 2003, Az .: B 2 U 40/02 R
  16. ↑ BSG, judgment of 07.05.2019 - B 2 U 31/17; Journal for Damage Law 7/2020 pages 374–377
  17. ^ Wilhelm Jost : Globale Umweltprobleme: Lectures for listeners of all faculties, summer semester 1972 . Steinkopff, Heidelberg 1974, ISBN 978-3-642-95951-6 .
  18. ↑ Federal Institute for Occupational Safety and Health
  19. ↑ State committee for occupational safety and security technology
  20. ↑ a b c d e Direction de l'information légale et administrative (Premier ministre): Qu'est-ce qu'un accident du travail? In: Service Public - Le site officiel de l'administration francaise. April 24, 2018, accessed January 28, 2019 .