KEYS TO HELP AN WORKER WITH ACCIDENT OR OCCUPATIONAL DISEASE
Dr. José Ricardo Mena, LL.M. in Labor Law and Social Security. Head of Mena & Employment Law Firm
It is convenient to begin this work by explaining the conceptual difference between an accident or occupational disease and an accident or disease without fault, since both of them have a different normative relationship.
Accidents at work or occupational diseases, also called occupational diseases, are governed by Law 24,557 – with the reforms of Laws 26,773 and 27,348 and regulations – and the former is understood as any sudden, violent event that occurs in connection with the fact or occasion of work, or the so-called “on the way” accident, that is, an accident that occurs on the way between the worker’s home and the workplace, if the victim did not interrupt or didn’t change Ed said the trip was for reasons unrelated to work. However, travel is also covered if the worker has stated in writing to the employer, and the latter within seventy-two (72) hours to the insurer, that the “travel” has been changed for a) reasons of study, b) visiting another job, or c) caring for a sick and dead immediate family member, in which case he must confirm this with an appropriate medical certificate at the request of the employer within three (3) working days after the request.
For its part, occupational disease does not arise as a result of a sudden, violent or unforeseen event, but is generally characterized by gradual, slow, progressively disappearing over time, repetitive actions in the performance of a certain task or socio-environment in which the worker may be located. Many are specific in that they are a direct consequence of exposure to a specific agent, such as a chemical, or a specific task, but occupational diseases are also considered to be those that can be classified as common but are the result of exposure to certain environments, such as a heart attack due to work stress or pneumonia, for example, in those workers who are exposed to severe and regular hypothermia. The latter are called “accidental diseases”.
According to the International Labor Organization, occupational diseases affect 82% of all occupational pathologies in the world, and industrial accidents – only 18%; and in the case of disease, the main causes are those associated with the exposure of workers to various chemical agents.
In Argentina, there is a lack of registration of occupational diseases, sometimes due to the fact that they are not detected on time, or due to the fact that periodic examinations are not carried out, which should be carried out in accordance with the Decree of 37 Professional Risk Managements, or also due to the widespread practice of RAS on the denial of causal communications, as well as due to the lack of adequate specialized legal consultations to appeal the employee to legal resources, which allows to bind the disease or with the the environment, or with the determined chemical agent.
In general terms, we can indicate that the employee enjoys the exclusive right to receive benefits arising from the application of a preliminary, exclusive and mandatory administrative procedure before the Medical Commission, which is called systemic, since it results from a special system of production risks; or advance a civil action, or a special general action under Art. 75 of Law 20,744 (LCT) seeking full compensation. It should be noted that the systemic worker’s coverage regime in the event of an accident or occupational disease covers only part of the damage – part of the lost earnings and 20% non-pecuniary damage at best – therefore, the worker can legally claim damages that are not covered under the special legal system, under the provisions of the National Civil and Commercial Code, since it guarantees anyone who suffers damages full compensation, that is, that it covers all losses for a solution. There is also a difference in those jurisdictions that have not acceded to Law 23,748, as long as, under the specialized doctrine, they enjoy the right to receive compensation from the special regime, and then claim the rest of the losses incurred; while in those where they have joined, in principle, an agreement made through an administrative procedure makes res judicata, that is, prevents a subsequent claim, although there are a few exceptions.
Briefly, the process begins with a claim of sickness or an industrial accident, which may be filed by an employee or employer, for which the Occupational Risk Insurer (ART) must provide coverage to the sick or injured worker, both in terms of treatment (medical benefits) and cash benefits for the duration of his action, called temporary disability (ITL), and the payment of final compensation after determining the discharge of illness, which is the end of treatment indicated by the art of treatment.
If, due to an accident or occupational disease, disability occurs, which is determined on the basis of certain objective and subjective factors, the GPT calls the employee to inform him of the disability he suffers – at his discretion – and offers to pay the amount of money. At the same time, the employee and his legal adviser must be present. The intervention of the legal adviser in this case is necessary, and his role should not only be limited to participation, but also play an active role, since this is the first and main negotiating instance in which an agreement can be reached that adequately satisfies the interests of the employee. Upon reaching an agreement, the records are sent to the homologation service of the Medical Commission, and after signing the contract, a homologation certificate is issued within 5 (five) days. From there, ART must make the payment available to the victim, within a period not exceeding five (5) days, to the account previously declared by the worker. The agreement closes all types of future claims, as we said, in those jurisdictions that adhere to Law 27,348, that is, they go to the administrative res judicata body, with the exceptions indicated above.
If an agreement is not reached, either due to a recognized disability or compensation, the Medical Board determines the disability. If an employee has doubts about disability, an act is issued to resolve legal claims. If the disagreement concerns compensation, another instance of negotiations with ART is opened and, if there is agreement, it is approved by the CM Approval Service. Otherwise, the employee may avail of legal remedies and must file an appeal with the Approval Service within fifteen (15) days at the administrative headquarters with the other party, after which SHCM must forward the records to the competent labor court.
This procedure is not necessary for an unregistered worker if his employer has no other affiliated workers; The situation is different when the unregistered worker is registered with an employer who has other properly insured staff, in which case the ART must also apply to the “unregistered” worker and they must follow the normal procedure.
In short, this procedure, regulated by Law no. 24,557 as amended by Laws no.
For this reason, it is essential that workers have lawyers who specialize in labor law to assist them in such actions, as they are the ones who know best how to determine disability based on the actual damage caused. In addition, since an accident or occupational disease occurs, there are usually discrepancies with ART medical benefits such as chosen doctor, arranged treatment, premature discharge, medical error, etc., a multitude of situations that mean that throughout this procedure, the worker must have proper legal assistance.
This assistance should be provided through the human rights department of the company, offering the worker the support of suitable professionals who know how to properly accompany him throughout the specified procedure. In this way, the worker is guaranteed appropriate treatment, which makes it possible to achieve the restoration of the conditions preceding the accident or illness and reintegration into the original position or, if this is not possible, into conditions for the adequate performance of the tasks assigned to him.
