A word of warning before proceeding, it is necessary to distinguish between accidents when the employee works in the private or public sector. For the public sector, special rules apply. We shall envisage here only the rules governing the private sector.
Who is eligible for compensation?
The following are eligible for compensation:
The employee victim of the accident
An accident in the workplace is deemed to be an accident that has occurred because of, or during, work. The accident is deemed (unless proven to the contrary) to be a workplace accident not only when it occurs on the premises but also during working hours.
An accident while travelling to or from work is also considered to be a workplace accident. Court rulings on this issue abound and help to define the exact nature of an ‘accident while commuting’
The courts used to define an accident as a sudden event occurring brutally, but a few more recent court decisions have qualified a number of more gradual events as accidents.
Post-traumatic psychological problems can also fall within the scope of legislation on workplace accidents if the victim can demonstrate that the events that caused the trauma happened on the premises, and a short time before said trauma.
In the event of the death of an employee, indirect victims such as relatives (spouse, children, etc.) are entitled to compensation.
- The victims are compensated by the « Caisse Primaire d’Assurance Maladie » (equivalent to Medicare).
- The “Caisse Primaire” in turn can try to recover the cost from the employer.
Inexcusable or intentional fault
The employer can be held liable if he intentionally committed the injury. This is a fairly rare occurrence.
The employer can also be deemed liable if he committed an inexcusable fault. Recently, the courts have recently become increasingly exacting towards employers, since the latter has the obligation – based on results - to prevent harm to their employees at work. Hence, in the event of an accident, the employer risks being held liable for inexcusable fault.
The advantage of having the employer held liable is that the amounts awarded to the victim will be more significant than those were the employer not to be deemed responsible.
In a ruling that was recently handed down (18 June 2010) by the Constitutional Court, victims of inexcusable or intentional fault on the part of the employer can claim full damages for their injuries. When the employer is not deemed liable, the victim of a workplace accident may see his compensation limited to cosmetic injury, leisure impairment, pain and suffering, or loss/hindrance to prospects of promotion.
How is one indemnified ?Declaration to the employer and the CPAM (Medicare)
The employee must notify the employer of the accident within 24 hours, and fill out a form specifically relating to workplace accidents.
He must consult a doctor to obtain an initial work certificate.
If the doctor deems him unfit to work the employee must provide his employer with the doctor’s certificate. In turn, the employer must inform the CPAM within 48 hours with a specifically designed form.
The declaration of a workplace accident implies a legal presumption: that the events that caused the accident actually took place.
However, the aforementioned declaration is not always sent in time, either because the employee was not in a state to inform his employer or because he considered this notification unnecessary (injuries sometimes only appear some days after the accident). One must be aware of this because the employer will often prefer to keep knowledge of the accident from the CPAM. The absence of a declaration within the initial 48-hour period is detrimental to the employee, because he will then be obliged to prove that the events that caused the accident actually took place.
The employee has two years to make his claim.
The social security receives the declaration of an accident in the workplace and the initial medical certificate. The agency then has 30 days from the date when the declaration was received to decide whether the accident was work-related or not. Failure to answer within the given period is deemed to be an implicit recognition of the accident.
Within the initial 30-day period the CPAM can inform the victim (by registered return-receipt letter) that it is launching a complementary inquiry; this gives the social security an additional 2 months to make a decision. If at the end of this period it fails to make a decision, the injured party is deemed to have been the victim of a workplace accident.
If the social security’s decision is unfavourable to the victim, the latter has the right to lodge an appeal. The form of the appeal depends on the reason given for refusal:
- in case of an administrative refusal (i.e. the social security does not believe that the accident actually took place), the case can be reviewed by the Commission de recours amiable (commission for friendly settlement). If this agency upholds the unfavourable ruling, the employee can then lodge an appeal with the Social Security Tribunal, and thereafter with the Court of Appeal if still dissatisfied with the outcome;
- if the refusal is on medical grounds, other that the degree of permanent physical disability, an independent doctor will conduct a medical assessment. The doctor’s decision is binding for the social security administration, but can be contested by the employee before the Social Security Tribunal; this tribunal can order another medical review. If the victim is not satisfied with the Social Security Tribunal’s ruling, an appeal may be lodged with the Court of Appeal.
- if the disagreement is over the degree of permanent disability, the employee can bring his case to a more specific arena, the Tribunal du contentieux de l’incapacité (the incapacity hearings tribunal) and thereafter to the Cour nationale de l’incapacité (national incapacity court), both of which are highly specialized courts.
What is compensated?
Medical costs incurred due to work-related accidents are paid in full by the social security.Daily allowance
Private-sector employees are entitled to a daily allowance until the date of recovery or the granting of a monthly payment for permanent incapacity. The daily rate varies depending on the duration of the illness and the employee’s salary. It is limited to a maximum amount determined each year by a regulation.The capital or rate
When the employee’s state is deemed to be consolidated, he is paid an amount in capital if the permanent incapacity is less than 10%, or a monthly rate if it is equivalent to or above 10%.
To determine the rate, a lowering coefficient is applied to part of the incapacity under 50%, and a coefficient of increase of 150% for the part of the incapacity above 50%. In other words, this system will lower the rate for those that are not fully incapacitated. Thus, a person with an incapacity of:
- 50% is entitled to a rate equivalent to 25% of his previous salary;
- 70% will give entitlement to a rate equivalent to 55% of his previous salary,
- 100% will give entitlement to a rate equivalent to 100% of his previous salary,
The relevant salary is the one that accrued over the previous 12 months, with certain rules to limit higher salaries and to take into account the minimum wage.
The payment of the capital or the rate is normally the only indemnity due to the employee. However, compensation may include other items of harm in the case of inexcusable or intentional fault by the employer.
In case of inexcusable or intentional fault by the employer:
- the social security rate can be increased to its maximum amount;
- the social security code states that a victim has the right to compensation for various injuries: cosmetic injury, leisure impairment, pain and suffering or loss/hindrance to prospects of promotion.
However, a major decision by the Constitutional Court stated that in the case of intentional or inexcusable fault by the employer the victim is entitled to full compensation – i.e. the full extent of his injuries.
The next of kin is entitled to compensation for moral grief and, if applicable, the surviving spouse to compensation for financial loss.
It can be worthwhile invoking the inexcusable fault of the employer, particularly since decisions rendered by the French Supreme Court since 2002 have imposed a duty with an obligatory outcome on employers: that of ensuring the safety of their employees.