Accident at work

An accident at work involves the need to take a number of actions and complete many formalities, the omission of which may even result in criminal liability. First of all, it is necessary to define what an accident at work is.

The definition of an accident at work is included in the Act of 30 October 2002. on social insurance in respect of accidents at work and occupational diseases. In accordance with Article Article 3 of this Act, an accident at work is considered to be a sudden event caused by an external cause causing injury or death, which occurs in connection with work:

– during or in connection with the performance of the employee’s normal duties or the instructions of his superiors;

– during or in connection with the performance of activities by the employee for the employer, even without an instruction;

– while the employee is at the employer’s disposal on the way between the employer’s registered office and the place where the obligation arising from the employment relationship is performed.

A specific event can be classified as an accident at work only if it meets all the conditions set out in the definition at the same time.

It should also be mentioned that an accident to which an employee suffers is treated in the same way as an accident at work:

– during a business trip in circumstances other than those referred to in paragraph 1, unless the accident was caused by the employee’s conduct which is not related to the performance of the tasks assigned to him;

– during training in general self-defence;

– when performing tasks commissioned by trade unions operating at the employer.

Subsequently, an accident at work is also considered to be a sudden event caused by an external cause causing injury or death, which occurred during the period of accident insurance on a given account during:

• practising sport during competitions and trainings by a person receiving a sports scholarship;
• performing paid work on the basis of a referral to work while serving a prison sentence or pre-trial detention;
• the mandate of a member of parliament or senator receiving a salary;
• undergo training, internship, vocational training for adults or vocational training at the workplace by a person receiving a scholarship during the period of such training, internship, vocational training for adults or vocational preparation at the workplace on the basis of a referral issued by the District Labour Office or by another managing entity, receive a scholarship on the basis of the regulations on the promotion of employment and labour market institutions during the period of postgraduate studies;
• performance by a member of an agricultural production cooperative, an agricultural cooperative and by another person treated equally with a member of the cooperative
  within the meaning of the provisions on the social security system, work for these cooperatives;
• performing work on the basis of an agency agreement, a contract of mandate or a contract for the provision of services, to which, in accordance with the Civil Code, the provisions on mandate apply;
• work on the basis of an activation contract;
• cooperation in the performance of work on the basis of an agency agreement, a contract of mandate or a contract for the provision of services, to which, in accordance with the Civil Code, the provisions on mandate apply;
• performing ordinary activities related to non-agricultural activities within the meaning of the provisions on the social security system;
• performing ordinary activities related to cooperation in conducting non-agricultural activities within the meaning of the provisions on the social security system;
• the performance by a clergyman of religious activities or activities related to the pastoral or religious functions entrusted to him;
• alternative service;
• at the National School of Public Administration President of the Republic of Poland Lech Kaczyński by students receiving scholarships;
• doctoral students receiving scholarships at doctoral schools;
• performing work on the basis of an agency agreement, a contract of mandate or a contract for the provision of services, to which, in accordance with the Civil Code, the provisions on mandate apply, or a contract for specific work, if such an agreement was concluded with an employer with whom the person is in an employment relationship, or if under such a contract he performs work for an employer with whom he or she is in an employment relationship;

The Act also defines the following terms:

Fatal Accident

A fatal accident at work is an accident resulting in death within a period not exceeding 6 months from the date of the accident.

Serious accident at work

A serious accident at work is an accident resulting in serious bodily injury, such as: loss of sight, hearing, speech, reproductive capacity or other bodily injury or health disorder affecting basic bodily functions, as well as an incurable or life-threatening disease, permanent mental illness, total or partial inability to work in a profession or permanent, significant disfigurement or deformity of the body.

Collective accident at work

A collective accident at work is an accident that results in the same accident involving two or more people.

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1. Obligations of an employee in the event of an accident at work

In accordance with the Regulation of the Council of Ministers of 1 July 2009 On the determination of the circumstances and causes of accidents at work, known as the accident ordinance, if the employee’s health condition allows it, he should notify his supervisor about the accident as soon as possible. The application should include:

– a description of the incident;

– date and time of the incident

– the location of the accident and whether it happened at work, on the way to work or on a business trip;

– employee data;

– data of the reporting party – if it is not an employee;

– details of witnesses to the event – if any;

– determination of the causes and consequences of the accident.

The regulations do not specify the form of filing. It is quite common practice to oblige injured employees to formally report it in writing.

2. Employer’s obligations in the event of an accident at work

The employer’s obligations in the event of an accident at work are defined in the Labour Code and the Regulation of the Council of Ministers of 1 July 2009. on determining the circumstances and causes of accidents at work.

Pursuant to Art. 234 and 236 of the Labour Code, the employer is obliged to:

– take the necessary measures to eliminate or reduce the risk, ensure that first aid is provided to the injured persons and that the circumstances and causes of the accident are determined in the manner provided for, and appropriate measures are taken to prevent similar accidents;

– immediately notify the competent District Labour Inspector and the Public Prosecutor of a fatal, serious or collective accident at work and of any other work-related accident which has caused the above-mentioned consequences, if it can be regarded as an accident at work;

– keep a register of accidents at work;

– keep a record of the determination of the circumstances and causes of the accident at work together with
with other accident documentation for 10 years;

– incur costs related to determining the circumstances and causes of accidents at work;

– systematically analyse the causes of accidents at work, occupational diseases and other diseases related to the conditions of the working environment and, on the basis of the results of these analyses, apply appropriate preventive measures.

In addition, in accordance with the Regulation of the Council of Ministers of 1 July 2009 on determining the circumstances and causes of accidents at work, the employer is obliged to:

– securing the scene of the accident;

– appointing a post-accident team to determine the circumstances and causes of the accident;

–provide first aid to the injured person;

– take measures to eliminate and reduce the threat;

–take appropriate measures to prevent similar accidents.

Until the circumstances and causes of the accident are determined, the employer is obliged to secure the accident site in a way that excludes:

– allowing unauthorised persons to enter the accident site;

– the unnecessarily start-up of machinery and other equipment which, as a result,
accident has been suspended;

– making changes in the position of the machine and other technical equipment, as well as changing the position of other objects important for determining the course of the event.

Commissioning of machinery, equipment and changes at the place of the accident may be made only with the consent of the employer after consultation with the social labour inspector and after inspection, sketches and photographs of the accident site.

In the case of a fatal, serious or collective accident, such consent is issued by the employer after consultation with the district labour inspector and the prosecutor, and if the accident took place in a mining plant, such consent must also be agreed with the mining supervision authority.

The consents referred to above are not required only when it is necessary to save persons or property or to prevent imminent danger.

In addition, if the accident takes place on the premises of an employer other than the employer’s employer, the injured employee is obliged to:

– ensure that assistance is provided to the injured person;

– secure the scene of the accident;

– notify the injured person’s employer without delay;

– provide access to the scene of the accident and the necessary materials and provide information
comprehensive assistance to the accident investigation team
and the cause of the accident.

– at the request of the employer of the injured employee, the employer on whose premises the accident took place may determine the circumstances and causes of the accident, and then provide the post-accident documentation to the employer of the injured employee.

In the event that an accident is caused by a temporary worker working for the user’s employer, the causes and circumstances of the accident are determined by the user’s employer.

3. Obligation to appoint a post-accident team

Regulation of the Council of Ministers of 1 July 2009 on determining the circumstances and causes of accidents at work imposes on the employer, inter alia, the obligation to appoint a post-accident team. This team is tasked with determining the circumstances and causes of the accident and consists of an employee of the occupational health and safety service and a social labour inspector.

In the case of an employer who is not obliged to establish an occupational health and safety service, the post-accident team consists of an employer or an employee employed in another job who has been entrusted by the employer with the tasks of the occupational health and safety service, or a specialist from outside the workplace.

On the other hand, in the case of an employer who does not have a social labour inspectorate, the post-accident team consists of an employee representative who holds a valid certificate of completion of training in occupational health and safety, in accordance with the provisions on training in the field of occupational health and safety, instead of a social labour inspector.

If the employer is unable to fulfil the obligation to create a two-person post-accident team due to the small number of employees, the circumstances and causes of the accident are determined by a post-accident team consisting of the employer and a specialist from outside the workplace.

4. Conducting post-accident proceedings by a specially appointed post-accident team

Upon receipt of information about the accident, the post-accident team is obliged to immediately proceed to determine the circumstances and causes of the accident, in particular:

– inspect the accident site, the technical condition of machinery and other technical equipment, the condition of protective equipment, and examine the working conditions and other circumstances that could have had an impact on the accident;

– make a sketch or take a photograph of the scene of the accident (if necessary);

– listen to the victim’s explanations, if his or her state of health permits;

– collect information about the accident from witnesses to the accident;

– seek the opinion of a doctor and, if necessary, the opinion of other specialists (to the extent necessary to assess the nature and consequences of the accident);

– gather other evidence relating to the accident;

– make a legal classification of the accident;

– identify preventive measures and conclusions, in particular those resulting from the assessment of occupational risks at the workplace where the accident occurred.

The accident team is obliged to use the materials collected by the investigating or investigating authorities, if such materials are made available to them.

If, on the other hand, the accident was of a catastrophic proportions or caused a threat to public safety, the post-accident team uses the findings of a team of specialists appointed by the competent minister, voivode or competent authority to determine the causes of the accident and to clarify technical and technological problems.

Employers have certain obligations in the event of an accident at work, even if they The accident occurred on the premises of another workplace. In such a case, the circumstances and causes of an accident that took place on the premises of another workplace are determined by a post-accident team appointed by the injured person’s employer, in the presence of a representative of the employer where the accident took place.

If an accident has occurred on the premises of a workplace and the injured person is not its employee, the employer of the workplace is obliged to:

– ensure that assistance is provided to the injured person;

– secure the scene of the accident;

– immediately notify the injured person’s employer of the accident;

– provide access to the accident site and necessary materials, as well as provide information and comprehensive assistance to the post-accident team determining the circumstances
and the cause of the accident.

After determining the circumstances and causes of the accident, the post-accident team prepares – no later than within 14 days from the date of receipt of notification of the accident – a report on the determination of the circumstances and causes of the accident at work. In order to determine the circumstances and causes of the accident at a later date, as a result of justified obstacles or difficulties, it is necessary to state the reasons for the delay in the post-accident report. The post-accident team prepares the post-accident report in the necessary number of copies and, together with the remaining post-accident documentation, immediately delivers it to the employer for approval. A member of the post-accident team has the right to submit a dissenting opinion to the post-accident report, which should be justified. In the event of a disagreement between the members of the post-accident team, the employer decides on the content of the post-accident report.

The post-accident team is obliged to familiarize the injured party with the content of the post-accident report before approving it. This obligation is correlated with the right of the Employee, who is also a person injured as a result of an accident, to read the content of the report prepared by the post-accident team and to submit comments and reservations before approving it. The injured party also has the right to inspect the case file and make notes, copies and copies thereof.

If the accident was fatal, the post-accident team familiarizes the family members of the deceased employee with the content of the post-accident report and instructs them about the right to submit comments and objections to the findings contained in the post-accident report.

5. Approval of the accident report by the employer and its storage

The accident report must be approved by the injured person’s employer no later than within 5 days from the date of its preparation. The approved accident report is immediately delivered to the injured party and, in the event of a fatal accident, to their family. A post-accident report concerning fatal, serious and collective accidents is also provided by the employer to the competent labour inspector. A statement in the accident report that the accident is not an accident at work or that there are circumstances that may affect the employee’s entitlement to benefits due to the accident requires detailed justification and specific evidence supporting such a statement. The employer is obliged to keep a report on the circumstances and causes of the accident at work together with other post-accident documentation for 10 years.

The employer was also obliged to keep a register of accidents at work on the basis of all post-accident reports. This register must include:

– the name and surname of the injured party;

– the place and date of the accident;

– information on the consequences of the accident for the injured party;

– the date of preparation of the accident report;

– whether the accident is an accident at work;

– the date on which the application for benefits for an accident at work was submitted to the Social Insurance Institution;

– the number of days of incapacity for work;

– other information, which is not personal data, the inclusion of which in the register is intentional, including conclusions and preventive recommendations of the post-accident team.

6. Types of benefits to which an employee is entitled in respect of accidents at work

Sickness benefit and rehabilitation benefit

In the first place, it should be pointed out that an insured employee who has suffered an accident at work is entitled to sick leave, which is also the basis for the payment of an accident insurance benefit to the employee. Sickness benefit is intended to provide an insured employee who is temporarily unable to work with a means of subsistence and is entitled to it from the first day of incapacity for work caused by an accident. If the circumstances of the accident clearly indicate that the employee did not contribute to the accident, he or she will receive 100% of the salary at the time of receiving the benefit. However, if the accident at work was caused by the employee’s fault (intentional or grossly negligent), the employee is entitled to 80% of the base salary.

The allowance is paid by the Social Insurance Institution for the entire period of incapacity for work, but not longer than 182 days. If, on the other hand, the injured employee is still unable to work after the expiry of this period, he or she is entitled to a rehabilitation benefit in the amount of 100% of the base salary, which he or she can receive for the next 12 months.

Compensatory allowance

An insured employee is entitled to a compensatory allowance whose salary has been reduced as a result of a permanent or long-term health impairment. A compensatory allowance is granted to persons whose monthly salary has been reduced as a result of undergoing vocational rehabilitation in a company or inter-company vocational rehabilitation centre. Therefore, the purpose of this allowance is to supplement the earnings received on account of employment performed after the accident, which was reduced as a result of the accident. A claimant must prove that he or she is an employee and has suffered a permanent or long-term injury, which in turn has led to a reduction in his or her pay. The compensatory allowance is granted for the period of vocational rehabilitation, but not longer than 24 months. The entitlement to the benefit ceases on the date of completion of vocational rehabilitation and transfer to another job or if, due to the employee’s health condition, further rehabilitation is pointless.

One-off compensation for the insured person and for the family members of the deceased insured or disability pensioner

In addition to benefits related to sickness or disability insurance, the Act also guarantees benefits specific to accident insurance. These are one-off compensations – for the insured who has suffered permanent or long-term health impairment and for the family members of the deceased insured or disability pensioner.

The condition for the insured to acquire the right to a single compensation is that he or she has suffered permanent or long-term health impairment as a result of an accident at work or an occupational disease. A one-off compensation is paid regardless of whether the employee’s salary has been reduced or whether the degree of health impairment justifies the acquisition of the right to disability benefits. It is granted in an amount defined as the product of the average salary and the percentage of permanent or long-term health impairment. A one-off compensation is also available to family members of an insured person who died as a result of an accident at work or an occupational disease, as well as in the event of death as a result of an accident at work or occupational disease of a pensioner who was entitled to an accident insurance pension. Family members entitled to compensation include the spouse, children, grandchildren (before the age of majority), siblings, parents, adopters, as well as stepmother and stepfather, provided that on the date of death of the insured person or pensioner they lived in the same household.

Disability pension

A disability pension is granted to a person who has been declared totally or partially unable to perform gainful employment due to his or her health condition. A person who is completely incapacitated is a person who has lost the ability to perform any work. On the other hand, a person is considered to be partially incapacitated if he or she has significantly lost the ability to perform work in accordance with his/her qualifications. A disability pension is granted regardless of the length of the accident insurance period, as well as regardless of the date of incapacity for work caused by an accident at work. Incapacity for work is declared for a period not longer than 5 years, unless, according to medical knowledge, there is no prognosis for regaining the ability to work before the end of this period, in which case the inability to work is declared for a period longer than 5 years.

Training pension

A training pension is granted to an insured person who has been adjudicated to undergo professional retraining due to inability to work in his current position due to an accident at work. Therefore, the purpose of the training pension is to help an employee who is unable to work in his or her current profession to retrain in order to ensure that he or she can perform another job, and thus to prevent professional exclusion and professional activation of the insured person. A training pension is granted regardless of the length of the accident insurance period and regardless of the date of incapacity for work caused by an accident at work.

Survivor’s pension and survivor’s pension supplement

A survivor’s pension is granted to family members of an employee who has died as a result of an accident at work. Therefore, the necessary premise is that the death occurred as a result of an accident at work. It is granted regardless of the length of the deceased’s accident insurance period, as well as regardless of the date when the deceased’s inability to work arose as a result of the accident.

On the other hand, the supplement to the survivor’s pension is ancillary in nature, and the condition for its acquisition is the receipt of a survivor’s pension by a complete orphan, i.e. died by both parents.

Medical care allowance

A nursing allowance is granted to a person entitled to an old-age or disability pension if the person has been declared completely unable to work and to live independently, or if the person is over 75 years of age, unless the person is in a care and treatment facility or in a nursing and care facility, except if such a person stays outside the facility for more than 2 weeks per month. The amount of the medical care allowance is announced by the President of the Social Insurance Institution (ZUS) in a special announcement. Covering the costs of dental treatment and vaccinations as well as orthopaedic supplies

This is the only benefit that is not pecuniary in nature. The costs of the consequences of accidents at work in the field of health services in the field of dentistry and preventive vaccinations, which are not reimbursed under separate regulations, are covered by the accident fund.

7. Accident at work and civil liability

An employee who has suffered damage in the form of a health injury as a result of an accident has the possibility to apply for compensation from the employer under the provisions of civil law. This claim is a supplementary claim and is only available if the damage is not fully covered by the benefit under the Accident Act. In order to accept the employer’s liability, it is not enough to state in the post-accident report that an accident at work has occurred, the employee must demonstrate:

– the employer’s liability in tort (strict or fault);

– the damage suffered, most often non-pecuniary damage (damage to health);

– the causal link between the accident and the damage.

This means that the employee must first of all prove that the injury suffered by him (in the form of damage to health) was caused as a result of the accident at work. An employer may be liable on a fault or strict basis.

Fault Liability

Liability on the basis of fault is regulated in Art. 415 of the Civil Code. We
It occurs when the employer has failed to comply with its obligations to ensure safe and healthy working conditions. Such action should be stated in the post-accident report. The employer is liable for both the violation of health and safety regulations and the general principles of health and safety, resulting from life experience or technical knowledge, as well as logical reasoning.

Strict liability

According to the Civil Code, an employer who runs a plant or enterprise set in motion by means of natural forces, such as steam, gas, electricity, liquid fuels, etc., is liable for damage to persons or property caused to anyone by the operation of that enterprise or plant. The circumstances excluding the employer’s strict liability are: force majeure and the sole fault of the injured employee or a third party for which the employer is not responsible.

An employee who has suffered an accident at work is entitled to:

• one-off compensation for property damage;
• pecuniary compensation for non-pecuniary damage;
• pension

If an accident at work resulted in the death of an employee, the employee’s family members may obtain:

• one-off compensation for property damage;
• pecuniary compensation for non-pecuniary damage.

Supplementary claims pursued by an employee who has suffered an accident due to the employer’s fault expire after 3 years from the date on which the injured party became aware of the damage and the person obliged to remedy it, however, this period may not be longer than 10 years from the date on which the event causing the damage occurred.

8. Accident at work and employer’s criminal liability

Criminal liability for an accident at work is primarily provided for in Art. 220 § 1 of the Criminal Code. Pursuant to the above-mentioned provision, whoever, being responsible for occupational health and safety, fails to comply with the resulting obligation and thus exposes the employee to an imminent danger of loss of life or serious damage to health, is subject to a penalty of imprisonment of up to 3 years. On the other hand, Art. Article 220 § 2 of the Criminal Code provides that if the perpetrator acts unintentionally, he is liable to a fine, restriction of liberty or imprisonment of up to one year. However, the perpetrator who voluntarily averted the imminent danger is not punishable.

If, on the other hand, an accident at work results in the death or injury of an employee, the employer may be exposed to liability under Art. Article 155 of the Criminal Code, i.e. manslaughter. If, on the other hand, an employee has suffered a serious injury as a result of an accident at work, then criminal liability under Art. 156 or 157 of the Criminal Code, i.e. causing that prejudice.

The object of protection of the offence under Art. 220 is the right of the worker to work in safe and hygienic conditions. A by-product of protection is the life and health of employees. The protection covers all employees, and the entity that can be held liable is the person responsible for ensuring health and safety at work, i.e. primarily the employer. However, it may happen that someone else is responsible for health and safety at work, e.g. a director or manager, in which case these people may also be held criminally liable.

As indicated in the legal doctrine, occupational health and safety is primarily understood as all kinds of precautions, e.g. organizational, medical, technical or hygienic measures aimed at eliminating all possible hazards associated with the performance of a given type of work. The aim of these measures is to prevent possible accidents as well as to eliminate negative health factors resulting from work.