Regarding occupational hazards, the worker has the burden of proof to demonstrate that he had an occupational accident and how the event he relates occurred.
In addition, that said accident is a work risk, that is, that it occurred to the worker while performing paid work for an employer or on the occasion of work. The preceding has been reiterated by the Second Chamber of the Supreme Court of Justice (resolution 2005-00758).
Despite the preceding, the employer maintains a series of responsibilities that derive from labor regulations. Businesses must comply with these obligations to avoid liability both to the employee and to the insurance company. Therefore, the precautions that the company must take against a work risk are exposed.
i. Precautionary measures
a) Accident report procedure and worker training
The company must have a straightforward procedure that indicates the steps to be followed by the worker in the event of an occupational hazard. The essential points that this procedure must contain are:
- The obligation of the worker to report immediately after the accident occurred.
- Specify to which employers' representatives must the worker give said notice. Likewise, it is important to indicate if the notice can be made by any means of communication and not only in person or verbally.
- The worker must refer to what happened in detail and provide evidence to demonstrate what happened.
In addition to this, the worker must receive training on said procedure; otherwise, it would not be helpful in a judicial or administrative matter. Therefore, it is recommended that the worker's knowledge of the procedure and the training received be recorded in writing.
b) Maintain a current risk policy with the insurance entity
The company must comply with the obligation to keep the corresponding risk policy of its workers updated and in force before the insurance entity, that is, the National Insurance Institute (INS). Such provision is contained in numeral 204 of the Labor Code.
Articles 201 and 231 of said Code provide that if a work hazard occurs and the employer has not complied with its obligation to keep the work hazard policy in force, the employer is responsible to the worker and the INS for all the medical, health, rehabilitation, and monetary benefits that have been compensated. Thus, failure to ensure the employee makes the employer directly liable.
c) Make a monthly report to the insurance entity
The company must not only maintain a current work risk policy but is also required to make a monthly report to the INS. Said obligation is contained in numeral 214 subsection ch) of the Labor Code, which expressly indicates:
ARTICLE 214.- Without prejudice to other obligations that this Code imposes, in relation to work risks, the insured employer is also obliged to:
(…) Ch) Submit to the National Insurance Institute, each month at most, a statement of payroll in which the full name and surname of the workers of your company are indicated, days and hours worked, wages paid, and any other data that are requested.
d) Adopt preventive measures in the field of occupational health
An example of a preventive measure in occupational health would be for the company to ensure that the instruments and tools used to carry out the work are adequate and in good condition to reduce the probability of injury to the employee.
Likewise, numeral 215 of the Labor Code provides as consequence of a breach of this obligation that “the National Insurance Institute may recharge the amount of the insurance premium, up to 50%, in the manner and conditions determined the regulation of the law”.
ii. Obligations after the accident
Once the work accident occurs and the employee gives notice to the employer, some obligations persist for the company, which are expressly regulated in sections a), b) and c) of Article 214 of the Labor Code and are the following:
a) Inquire all the details, circumstances, and testimonies, referring to work hazard that occured to its workers, and send them to the National Insurance Institute in the forms it provides.
The company is obliged to thoroughly investigate what happened. It is not enough only with the narration of facts that the worker gives. Still, other elements of evidence that corroborate or distort what the woker indicates must be sought. Examples of this can be looking for witnesses or recordings where you can see what happened and asking and consulting details about the event to those with knowledge of it.
Likewise, the company must keep a backup of the evidence that it manages to collect as a result of said investigation, both to face a possible judicial matter or because they are required by the insurance entity later.
b) Report to the National Insurance Institute any work risk that occurs within eight business days following its occurrence.
Once the worker gives the corresponding notice, and the company investigates the circumstances of the fact by corroborating that there may be an occupational risk, the employer must submit the corresponding report to INS to treat his injuries at the previously mentioned institution.
Likewise, the employer must respect the period of eight days given by law to report the accident to the INS and the correct completion of the documentation that will be sent to the insurer. Otherwise, the company will be responsible for any aggravations or complications from the lack of timely care. The data that must be included in the report is expressly indicated in article 222 of the Labor Code.
c) Cooperate with the National Insurance Institute, at its request, in obtaining all kinds of evidence and details that have a direct or indirect relationship with the insurance and the covered risk, to facilitate, by all the means at its disposal, the research that the insurance Institute deems appropriate to carry out.
Even after giving the notice, the company responsibility can be extended, as it must be a facilitator of information to the insurance entity on any aspect that requires correction and clarification. Likewise, the company can be required to send any evidence that the insurance entity requires to determine if the injury presented by the worker should be treated or not as an occupational hazard.
d) Immediate medical attention to the worker
Additionally, the Labor Code establishes the obligation of the employer to provide immediate medical assistance to the employee who suffers from an occupational risk. The aforementioned is regulated in numeral 220 of the Labor Code, which expressly indicates:
Every employer is obliged to provide the worker, immediately, the provision of medical-health benefits that his state requires, without prejudice to the obligation that he has to provide first aid, for which, in each work center an emergency first-aid kit, with the tools and medications provided by the regulations of this law.
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