In 2023, misdemeanor courts in Serbia resolved about 400 cases related to injuries at work due to non-compliance with occupational safety and health measures.
Statistics indicate that there are many more such cases, but employees do not report them for various reasons, ranging from fear of losing their jobs, and lack of knowledge of their rights, to lack of trust in the legal system.
This situation leads to many workers being left without adequate legal protection and compensation for the injuries they have suffered.
For this reason, we have compiled this article to inform you about what constitutes a work injury exactly, and how you can effectively protect your rights if something happens to you at work.
Whether you work in an office, on a construction site, or even from home, it is important to know what your obligations and rights are in this regard, and how to proceed in case of a work injury.
Injury at work: Definitions
You can find the definition of injury at work in two laws: the Law on Health Insurance and the Law on Pension and Disability Insurance.
In plain language, these laws define a work-related injury as an injury that a worker sustains while doing the work for which he is insured.
The main conditions stipulated by the legal provision are that the injury occurs:
- At a place related to the performance of work (workplace or location where a specific business task is performed)
- During working hours or time related to the performance of work (e.g. on a business trip)
- So that the injury is directly related to the performance of the job for which the employee is insured, that is, there is a cause-and-effect relationship between the job and the injury.
In addition, the law sets the condition that the injury suffered by the employee was caused by a mechanical, physical, or chemical effect, which must be quick and short-term, as well as by sudden changes in body position, sudden strain on the body or other changes in the physiological state of the organism.
In this order, examples of such causes of injury would be, say, a fall or blow, sudden exposure to excessive noise or excessive temperature, exposure to poisonous gases, sudden bending, heavy lifting, stress, and physical fatigue.
Of course, there are more examples.
Note: An injury sustained while performing work to which the employee is not assigned, but is performed in the employer's interest, as well as an illness resulting from prolonged exposure to harmful factors at the workplace, is considered an injury at work.
Injury at work on the way to work
An injury at work can happen not only at the workplace but also on the way from home to work and back.
If you were injured at work in this way, you should know that the burden of proof is on the employee, and you will have to prove the spatial, temporal, and cause-and-effect relationship between the injury itself and the performance of the work for which you are insured.
For example: the injury should occur on the worker's usual route from home to work or vice versa.
Also, it should happen in a time frame related to working hours. So, if it usually takes a worker 30 minutes to get from home to work, an injury that occurs during that time may be recognized as a work-related injury. If the injury occurs hours before or after working hours, it is more difficult to prove that it is work-related.
Finally, the injury must be caused by something that happened on the way to or from work. For example, if an employee has a car accident while going to work, it may be recognized as a work injury.
You should report this type of injury to your employer with the above evidence provided to confirm the integrity of your report. An employment lawyer can help you with this, after consulting about the circumstances of the injury you suffered at work.
Note: The existence of an injury should not be confused with the employer's responsibility for compensation!
Injury at work outside the workplace
When we talk about injuries at work outside the workplace, we could mention two situations:
- Injury when working from home
- Injury on break
Below we will talk more about each of these situations individually:
Injury at work while working from home
When we talk about working from home, we could say that this is a type of work outside the traditional workplace.
Our legislation recognizes that injuries at work can also occur in such an arrangement, i.e. in home circumstances, while employees are performing their work tasks.
The same conditions that apply to work from the workplace would also apply in this case, so the injury would have to occur, for example, in the part of the apartment or house where the employee performs his work tasks, during his working hours, and so that an injury occurs during the performance of work tasks.
In theory, when talking about injuries at work while working from home, examples of injuries caused by poor ergonomics (e.g. inappropriate office chair), inadequate electrical devices or installations used to perform work, long-term computer work is mostly used (e.g. deterioration of eyesight), and similar.
What is problematic here is that the employer does not have access to the private premises of the employees, and cannot guarantee the safety of such and similar conditions for their work from home. On the other hand, the employer must provide the employee with the correct equipment for such work and is responsible for injuries caused by their incorrectness.
There are also dilemmas as to whether the employer would be liable for an injury at work if the injury occurs when the employee works from a coffee shop.
The position taken by the state authorities on this issue is positive, with the fact that if the employer proves that the injury would not have occurred if the employee had worked from home, in that case, the employer would not be liable for the injury.
In any case, the advice is for the employee to report an injury that occurs while working from home, but there has been no recorded practice in this regard so far.
Injury at work during a break
The Constitutional Court of Serbia took the position that an injury that occurs during a daily rest/break is considered an injury at work, with the provision that it must occur during the working day, at the workplace/within the workplace under the control of the employer.
In other words, an injury that occurs during a break outside the area under the control of the employer (eg in front of the building where the offices of the company where you do business are located), such an injury does not have the character of an injury at work in the sense of the Health Insurance Act.
Injury at work: regulations, application and procedure
The procedure for reporting an injury to a worker is regulated by the Rulebook on the Content and Method of Issuing the Report Form on Work Injury and Occupational Disease.
The first item regulated by this Rulebook is the Work Injury Report itself, i.e. its content.
Namely, the Report must contain data on:
- Employer
- Employer user
- To the employer, a natural person
- To the injured
- Injuries at work
- To the immediate supervisor of the injured person
- An eyewitness
- Findings and opinion of the first doctor who examined the injured employee
- Health insurance organizations
The report is filled out on a predetermined form (more on that below) in five copies, printed, and submitted to the competent authority.
It is important that the employer fill it out as soon as possible, i.e. no later than within 24 hours of learning that the injury occurred at work, and within 24 hours of entering this data, submit all copies to the health institution that examined the injured employee.
When the employer receives the report with the findings and opinion of the doctor who examined the injured employee, he will deliver it to the branch of the Republic Health Insurance Fund where the employee exercises his rights, within 2 days of receipt.
One of the copies that the employer receives from the branch will be kept for itself, and one will be delivered to the employee, the Republic Fund for Pension and Disability Insurance branch, and the Occupational Safety and Health Administration. As you can see, the deadlines for action are extremely short, so employers who have doubts about the procedure for reporting an employee's injury should contact a labor law lawyer as soon as possible after the injury, to avoid litigation in this regard.
Injury at work: form
You can download the form for the report on work injury at this link. You can find detailed instructions for filling out the form in the above Rulebook.
Injury at work: Sick leave
An injury at work can lead to sick leave, i.e. temporary inability to work for an employee. This will, of course, be decided by the professional medical body of the Republic Fund for Health Insurance, i.e. the doctor, for the first 60 days and the first-level medical committee of the main branch of the Republic Fund for Health Insurance for the next period.
For the entire period of sick leave due to an injury at work, you have the right to compensation in the amount of 100% of the average salary in the 12 months preceding the temporary inability to work, but not lower than the minimum wage. This allowance is paid to you by your employer.
Exception: If your employment relationship ends during the payment of wage compensation due to an injury at work (for example, you had a fixed-term contract that expired), the obligation to pay the compensation will be taken over by the Republic Fund for Health Insurance.
Injury at work: Compensation
For the employee to have the right to compensation in the event of an injury at work, it is necessary to first establish that there was an employer's responsibility for the injury.
This responsibility can be:
- Subjective: When the employer is responsible for the damage because it was caused by his own fault
- Objective: When the employer is liable regardless of guilt because he performs a dangerous activity or owns e.g. a dangerous thing.
The employer is not liable if he proves that the injury at work was caused by unusual and unforeseeable circumstances beyond his control, or that it was caused by exceptional events whose consequences could not be avoided (eg force majeure).
You can claim compensation directly from the employer or from the insurance company if the employer has insurance with one. The responsibility of the employer is most often confirmed by the fact that he did not provide means for safe work (for example protective gloves or safety glasses) and that he did not conduct training for employees for safe work, which are all obligations of the employer. In order to exercise this right, it is necessary to file a claim for compensation for damages due to an injury at work. The lawsuit is submitted to the competent court, most often in the place where the damage occurred.
An employee who suffered an injury at work has the right to compensation for material and non- material damage.
Non-material damages are e.g. mental pain suffered by the employee as a result of an injury at work, pain and fear suffered, while material damage can be unpaid wages or travel expenses, medical expenses, recovery expenses, etc.
Before starting the compensation procedure, it is advisable to consult a lawyer specialized in dispute resolution. In a large number of such cases, it is possible to reach an agreement between the employee and the employer.
Injury at work: Refunds
An employee who suffers an injury at work has the right to reimbursement of health care costs as part of compensation for material damage, which could include:
- Cost of treatment
- Costs of therapy, i.e. rehabilitation
- Medicine costs
- Transportation costs to the doctor and back
- Costs of medical aids
In each case, the court will determine the exact content and scope of the refund to which the injured worker is entitled.
Injury at work: Statute of limitations
An employee who has suffered an injury at work can claim compensation within 3 years from the knowledge of the damage (subjective deadline), or within 5 years from the occurrence of the damage (objective deadline).
These are the so-called statute of limitations that you must comply with when filing a claim for compensation for work injury.
Injury at work: Insurance payments
The current Law on Safety and Health at Work foresees the employer's obligation to insure employees in case of injuries at work and to provide compensation for damages. This obligation applies to all employers, regardless of their activities.
Penalties for failure to comply with this obligation of the employer range from 30.000-1.500.000 RSD, depending on whether the offense was committed by the director or other responsible person at the employer, the employer is a natural person, an entrepreneur, or an employer with the status of a legal entity.
As far as insurance conditions are concerned, they differ from one insurance company to another, but each will specify precisely what falls under an accident for which the insured employee is entitled to compensation and what is not.
Generally speaking, employees who are permanently unable to earn due to an injury at work will receive a percentage of the insured sum depending on the percentage of disability that was established for them. For temporary incapacity for work, he will receive compensation contracted by the insurance for each day that the employee is unable to work. Finally, in case of the death of the employee, compensation will be given to his heirs.
The total amount of payment will depend on the sum insured and the contracted daily allowance for temporary incapacity for work. It is also important to note that the insured is only recognized for expenses that he paid out of his own pocket.
Injury at work: Court practice
If you remember, we mentioned earlier in the text that an injury on the way from home to work and vice versa can also be considered an injury at work. However, when we take a closer look at the existing judicial practice, we will conclude that proving this kind of injury is not very simple.
For example, judicial practice indicates that proving the cause-and-effect relationship between an injury and a harmful act is quite complicated and that it is more likely that the injury occurred solely due to the careless actions of the injured party.
On the other hand, it is much easier to prove the employer's responsibility for compensation in cases where the damage occurred because the employer did not adequately take care of the safety of its workers (for example did not maintain the business premises).
Also, if we look at the decision of the Supreme Court of the RS in Rev2 1691/2019 3.5.12, we can get an even clearer insight into what judicial practice does not consider an injury at work for which the employer is responsible. Thus, if an employee suffers an injury at work due to a physical attack by a colleague, there is no cause-and-effect relationship between the employer's failure to ensure safety at work and the injury itself.
According to the court, the employer could not foresee or prevent this unforeseeable event, because the employee had previously shown only verbal aggression. Therefore, the employer cannot be held responsible for the physical attack that occurred.
Injury at work: Experience
Reading the experiences of employees who have already gone through the above-mentioned procedures due to injuries at work, we concluded that they are not rare, that there is often a transfer of blame in such cases, and that employees are not fully aware of their rights.
Another thing we noticed is that the advice of these people is almost universal, and it boils down to this:
Report the injury as soon as possible, be sure to go for a medical examination, and fill out the injury list.
For experience with specific work injury cases and disputes, talk to your attorney.
