ACCIDENT AT WORK AND DIFFERENTIAL DAMAGES

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Despite the impact of the health emergency due to Covid in 2020 and thereafter lockdown, the trend of accidents in Italy decreased by 13.6%, while fatal cases never increased with a +16.6% compared to 2019 (source INAIL). This type of accident at work is commonplace especially in some work environments with the result of incurring serious accidents or very serious to the point of causing the death of the worker or at best a temporary absolute disability which requires abstention from work for more than three days (deductible).

Accident at work and compensation for damages

Apart from the possible criminal liability of the employer, regarding the safety of the working environment itself, the worker has the right to compensation for damages right away. L' INAIL , by law, compensates only part of the damage suffered, the remaining part, the so-called differential damage , can be requested from the employer's insurance . In fact, INAIL benefits are due based on the occurrence of the accident at work, while the differential damage it also presupposes its configurability as an offense that is produced following the negligent behavior of the employer or a third party. The differential damage therefore it is also up to the person who, despite already receiving an INAIL income, demonstrates that he has suffered further damage than that recognized and compensated by the social security institution.

USEFUL LINK:

INAIL form for reporting an accident at work

Types of compensable damage

The biological damage calculation to which the worker is entitled is divided into:

• biological damage (temporary damage) less than 6%: this type of compensation for damages protects any injury to the psycho-physical integrity of the worker;

• pecuniary damage : this category includes not only the "out-of-pocket" expenses incurred by the worker (think of medical expenses, etc.) but also the loss of earnings caused by the accident;

• moral damage : non-pecuniary damage, classified as any disturbance of the state of mind.

• existential damage : understood as a prejudice that alters a person's habits and relational structures, inducing them to make concrete changes in a worsening sense in the quality of life (Cass. SU 12/06/06 n. 13546).

So to the worker both compensations are due , obviously after having proven that he has suffered further damage than that recognized by the social security institution.

How to report an accident at work or a commuting accident

What should the doctor do when dealing with a worker who has suffered an accident at work? There are two medico-legal documents envisaged: the medical certificate and in particular circumstances the report (in case of serious and fatal damage ).

Medical certificate

The injured person must immediately send the certificate to their employer, who in turn attaches it to the report which he forwards to INAIL within two days, or within 24 hours in the case of a fatal accident or one which caused danger of death. There is no obligation on the part of the employer to report the event to INAIL if the damage suffered by the worker does not exceed three days of incapacity (deductible). The medical certificate has insurance purposes.

What must the certificate contain?

Article 53 of Presidential Decree 1124/65 lists the data that must be reported in the certificate:

• personal details of the worker;

• day and time the accident occurred;

• the causes and circumstances of the accident also with reference to any deficiencies in hygiene and prevention measures; the nature and precise anatomical site of the lesion, the relationship with the reported causes, any pre-existing alterations.

INAIL provides a certificate model for accidents. An exception to this procedure are agricultural accidents involving self-employed workers. In this case the doctor must complete, on a specific INAIL form, a report certificate which must be sent to INAIL by the compiling doctor himself.

Report (Serious damage and death)

Article 365 of the Penal Code establishes the obligation to report in cases of crimes prosecutable ex officio.

In the case of accidents at work the obligation arises:

• in the event of death;

• in the event of a serious or very serious injury: inability to attend to one's occupations for more than 40 days or permanent weakening of an organ or a certainly or probably incurable disease.

The Public Prosecutor's Office of Milan, with a 1999 circular, deems it appropriate to transmit the report in cases where the injuries cause incapacity exceeding 25 days of prognosis, since they will presumably give rise to injuries that can be prosecuted automatically. The report must then be sent to the PSAL Service structure responsible for the place where the accident occurred, which performs judicial police functions, so that it can start investigations to seek any criminal liability.

What must the report contain?

The content is established by article 334 of the Code of Criminal Procedure:

• personal details and whereabouts of the injured person;

• company that employs the injured person;

• address where the accident occurred;

• description of the injury.

A template is provided that contains all the required information.

The entire procedure summarized so far makes use of skills, experience and technical knowledge as it requires some medico-legal acts that have different purposes, undertaken in well-defined circumstances, each of which is regulated by specific laws.