When assessing a work related accident, insurers base their decision on the legal framework created in this respect. As such, the law stipulates five elements an accident must comply with in order to be considered a work related accident:
- An accident;
- with injury;
- suffered during the execution of an employment contract;
- and as a result of the execution of an employment contract;
- whereby there is a causal link between the accident and the injury.
However, there is no uniform definition of ‘accident’, which has meant that the insurance sector has established its own definition over the years. For example, insurers said that an accident had to involve a sudden event with an external cause and required the presence of an additional aggravating factor (e.g. lifting 15 kg boxes instead of the usual 5 kg boxes) while performing the duties of an employee. This was done for the main purpose of excluding diseases and mundane actions (e.g. suffering an injury as a result of tripping).
The uncertainty created by the law leaves a lot of room for interpretation by insurers, which has meant that they generally apply a very strict definition of a work related accident and restrict its scope of application. In recent years insurance premiums have been subject to increasing pressure and this has had a similar effect on the insurers’ margins. In order to maintain a positive return on their contracts, insurers have become more critical when applying the Workplace Accidents Act.
Furthermore, a differentiation is made between an accident at the work place and an accident while commuting. Accidents while commuting are the work related accidents most often refused. After all, it involves a different burden of proof: the elements ‘during and as a result of the execution of an employment contract’ do not apply. The victim, however, must substantiate that the accident took place while commuting on the normal commuting route, in other words at the usual time and via the usual route. In light of the nature of the burden of proof, this type of accident is often more difficult to prove and will more often result in a refusal. This percentage has also systematically increased over recent years.
Victims still often insufficiently realise which steps they need to take after an accident has taken place, certainly in cases involving an accident while commuting. For example, it is crucial to have a witness who can confirm the circumstances of the accident. This article will also provide you some useful tips on how to declare a work related accident.
Each year Fedris, the Federal Agency for Occupational Hazards, issues its annual report, which includes the evolution of the number of work related accidents and the number of accepted and refused accidents. The following table from the 2016 annual report of Fedris shows that, for the first time in 15 years, the number of refused work related accidents had decreased (1.2% in comparison to 2015). In 2016, 18,488 work related accidents were refused. In 2015 this 20,023 refusals were made and in 2012 as many as 21,055.
In its annual report, Fedris also differentiates between accidents at the work place and accidents while commuting. In 2015 the average refusal rate for accidents at the work place was still 12.3%. In 2016, this percentage dropped to 10.9%. The percentage of accidents while commuting only decreased by 0.5% between 2015 and 2016: from 15% to 14.5%. As the drop in accidents at the work place was significantly more than that of accidents while commuting, we suspect that the burden of proof for accidents while commuting still has a significant impact on the refusal rate.
Whereas insurers used to refuse a (rejectable) claim in the past by restricting the scope of the law, they are now clearly adopting a more flexible approach. The main reason for this change is Fedris’ new authority. This government body no longer only has an advisory function, it can now take legal action on behalf of the victim against the insurer that has refused the work related accident. Fedris’ stricter attitude and increased decisiveness have meant that insurers are less inclined to refuse a claim if they run a higher risk of being legally prosecuted.
Moreover, the Labour Tribunal in Liège and Kortrijk has ruled in favour of the victim in recent cases involving mundane actions. This is a striking development as mundane actions were often used as a ground for refusal for many years, although they were not excluded by law.
This development is also due to the social partners who have continually sought the attention of the media in order to point out the ‘unlawfully’ high number of refused work related accidents, which they consider to be an unfair treatment of victims.
Although the number of declarations has again risen by 2.2% in 2016 in comparison to 2015, which comes down to 160,717 declarations per year, the refusal rate was the lowest it had been in five years. We expect this trend to continue in future and that insurers will not be as quick to refuse work related accidents. After having asked a couple of large companies in its portfolio, Vanbreda Risk & Benefits has established that the refusal rate has continued to decrease in 2017.
In particular, we are seeing that the ‘additional aggravating factor during the execution of an employment contract’ is becoming a less powerful ground and that, as a result, a mundane action is accepted more readily as being a work related accident. The need for an external cause during a work related accident is also questioned more and more.
These conclusions are also confirmed by the main Belgian insurers of work related accidents. They confirm that refusing claims is becoming increasingly difficult and that their refusal rate is decreasing. This confirms our analysis of the Fedris figures: the insurance market generally adopts a more flexible approach when assessing a work related accident.
Whether it involves an accident at the work place or while commuting, the correct and complete declaration of the circumstances of the work related accident is crucial for its further processing.
These are some of the most important tips for making a good declaration:
- Declare the accident to your supervisor immediately, ideally in writing (e.g. by sending a text or email), even if you know that this person is unavailable at that time.
- Ask the contact details of a witness who has seen accident happen. In the absence of a direct witness, you can forward the contact details of an indirect witness (e.g. your partner or a neighbour on site who you immediately contacted after the accident).
- Take photos of the location of the accident, your injury, torn clothing etc. These photos are the direct evidence of the time of the accident.
- Consult a doctor who can provide you first medical care and can determine any injury as soon as possible in a certified medical statement. This certificate can be essential if these injuries manifest themselves at a later time.
- In the event of a serious traffic accident or if a third party is involved with the accident: inform the police immediately so that they can draw up a police report.
Do you need more information? Contact our specialists.