from industrial accidents and occupational diseases-2
Dear colleagues!
In my speech today, I will try not to burden you with repeating the names of regulatory documents, which I am sure you already know well, but to highlight the current problems of their application in the practice of medical and social expertise.
The first and main thing you should know and remember is that the organization of a medical and social examination of victims of an industrial accident and occupational disease (hereinafter I will simply call this category of citizens victims) differs from the organization of an examination of persons applying for disability . When comparing the Rules for establishing the degree of UPT as a result of industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789 (I will call it the 789th resolution) and the Rules for recognizing a person as disabled, approved by Decree of the Government of the Russian Federation of February 20, 2006 No. 95 (95th resolution), we see a number of differences in general provisions, both in the order of sending and conducting a medical and social examination, and in the order of appealing expert decisions.
What am I talking about?
I'll briefly go point by point.
1. if the examination according to the 95th resolution is carried out in the bureau at the place of residence or stay of a citizen, which is determined by registration records, then according to the 789th resolution - at the place of residence or at the place of attachment to a state or municipal health care institution. This gives the right to formalize referrals for medical examination to departmental medical facilities and medical units at the place of attachment of workers registered in other localities, which is important for victims.
2. if the examination according to the 95th resolution is carried out in the bureau in the direction of an organization providing medical and preventive care, a body providing pensions or a social protection body, and it is possible to refuse the referral with the issuance of a corresponding certificate of refusal, on the basis of which, If there is a citizen’s application, we conduct an examination, then in Resolution 789 the referral is issued only by a health care institution. Moreover, the previously cited provisions indicate that this can only be state or municipal institution.
3. an examination of the victim at an ITU institution is carried out on the basis of an application from the employer (policyholder), insurer (FSS of the Russian Federation), as determined by a court (judge) or upon an independent application of the victim or his representative; when establishing disability, the mandatory application of the citizen or his legal representative is the only and mandatory one.
4. if an examination to establish disability can be carried out in absentia by decision of the relevant bureau, then the examination of the victim can only be carried out in the bureau or at home or in a hospital at the place of treatment if there is a conclusion from a health care institution about the impossibility of appearing at the bureau for health reasons, but not in absentia.
5. If during the examination, the bureau’s specialists consider it necessary to further examine the victim, then they have the right to refer the citizen for additional examination to a medical, rehabilitation or other institution, as well as request the necessary information, examine working conditions and social and living conditions. In this case, it is necessary to obtain the consent of the victim, whereas according to the Rules for recognizing a person as disabled, the PDO is simply brought to the attention of the citizen in an accessible form.
6. Further: if the decision to recognize a person as disabled or to refuse is made by specialists based on a discussion of the results of the medical examination and is only announced in the presence of all specialists, then the expert decision on the degree of UPT is made in the presence of the victim, and then announced and explanations are given on it.
7. When disability is established, the citizen is issued a certificate of disability and individual program rehabilitation; This formulation dictates that it is mandatory for everyone recognized as disabled to develop an IPR, and if it is refused, it must be included in the act. But when establishing the degree of UPT, the rehabilitation program of the victim is drawn up when it is identified that he needs rehabilitation due to the consequences of an accident or occupational disease, which is confirmed by paragraph 24,789 of the resolution: a certificate from the ITU institution on the results of establishing the degree of UPT, and, if necessary, PRP are issued to the victim under receipt.
8. According to Resolution 789, the rehabilitation program for the victim is drawn up within a month after the expert decision is made, while the period for developing the IPR is not regulated.
9. Very important point associated with rehabilitation programs. If assessing the effectiveness of the implementation of the IPR of a disabled person with a specified period of disability according to the current regulatory framework is possible practically only with re-examination of the disabled person in order to establish disability, then paragraph 30 of the 789th resolution provides for an examination in the form of dynamic monitoring of the implementation of rehabilitation measures.
10. An extract from the examination report and the PRP, if the examination was carried out at the request of the victim, are handed over to him, which is categorically unacceptable for an extract from the report when disability is established.
11. A citizen or his legal representative can appeal the decision of the disability bureau, most importantly, only within a month, but the decision on the degree of UPT at any time.
12. In addition, the right to appeal is given not only to the victim, but also to the policyholder and the insurer. At the same time, the Rules do not contain provisions extending its effect to legal relations that arose before the entry into force of the Rules. That. the insurer and the policyholder cannot appeal decisions made before the entry into force of the Rules.
13. And finally, ITU federal government agencies are not legal successors to ITU government agencies, and therefore cannot make changes to the decisions they make.
Now about the documents required for the examination of the victim. I have already said about the appeal of the employer (insured), the insurer (FSS of the Russian Federation), the ruling of the court (judge) or the victim or his representative, about the referral of the healthcare institution, but the main document is named in the Rules for establishing the degree of UPT: an act on an industrial accident or an act about an occupational disease.
Before the said entry into force Federal Law(January 6, 2000) the “Rules for compensation by employers of harm caused to employees by injury, occupational disease or other damage to health associated with the performance of their labor duties” were in effect, approved by Resolution of the Supreme Council of the Russian Federation dated December 24, 1992 No. 4214-1, in accordance with which proof of the employer's liability for harm caused was recognized as a medical report on an occupational disease, a report on an industrial accident or another document on an accident related to the performance of work duties (Articles 5, 35).
Until 1992, the “Rules for compensation by enterprises, institutions and organizations for damage caused to workers and employees by injury or other damage to health associated with the performance of their work duties” were in force, approved by Resolution of the Council of Ministers of the USSR dated July 3, 1984 No. 690. In accordance with this regulatory legal Act, as well as previously in force Rules, the degree of loss of professional working capacity (and until 1984, general) of workers and employees was established by medical labor commissions (VTEK) when submitting an accident report or other document on damage to health associated with the performance of work duties ( court decision, conclusion of a technical labor inspector).
Before 1992, conclusions on the degree of loss of professional ability of persons who were not workers and employees (for example, members of collective farms) were given by forensic medical commissions of health authorities.
For general information I will say that in general the degree of UPT, i.e. % have been established by VTEC since 1961, when the Rules for compensation of damage to persons injured at work were approved.
Thus, in the case when a victim contacts the bureau, the degree of OPT for whom was established before 2000, documents confirming the fact of an accident at work or an occupational disease can serve not only acts of the established form.
The employer, in accordance with paragraph 8 of the Rules, is obliged to submit to the MSE institution the conclusion of the state labor examination body on the nature and working conditions in which the victim worked before the accident or occupational disease. However, we have already said that refusal to provide such a document cannot be grounds for refusing to conduct an examination of the victim. It is necessary to inform the RO FSS about this case, carry out a medical and social examination of the victim with the participation of a representative of the FSS with the right to an advisory vote, and make an expert decision based on available data on the nature and conditions of work performed before the occurrence of the insured event, i.e. based on production characteristics data, work book and other documents. An appropriate entry must be made in the victim’s medical examination report.
The ITU Bureau is obliged to familiarize the victim in an accessible form with the Rules for establishing the degree of UPT. Please note that in in this case in the examination report, a note is made that the citizen is familiar with Resolution No. 789. If, according to paragraph 3 of the 789th resolution, simultaneously with the establishment of the UPT, if there are grounds, the citizen is recognized as disabled, then a note is made in the e-file about familiarization with “Rules for recognizing a person as disabled.”
I draw your attention: examination to establish the degree of UPT and to establish disability are two independent types of examination. The inspection report is an accounting and reporting document on the basis of which the established statistical reporting is generated, sections in the 7-Sobes form reflecting the results of this examination are independent and different, i.e. 2 expert medical files are being drawn up. The referral from health care facilities for medical and social examination must be the same in 2 copies. One - only for the consequences of a work injury or occupational disease. Other – taking into account all existing diseases. Accordingly, they formulate the anamnesis, the need for measures and means of rehabilitation, the diagnosis, the purpose of referral to medical examination, and the assessment of the rehabilitation measures carried out differently. In such a situation, you will not have problems selecting recommendations for a citizen, as a victim, in the PRP, and as a disabled person, in the IPR.
Now about the current problem: about the course of expert reasoning when establishing the degree of UPT. You already understand that you must perfectly study and master the provisions of three main regulations: 125-FZ, 789th resolution of the Government of the Russian Federation and 56th resolution of the Russian Ministry of Labor.
Federal Law No. 125-FZ of July 24, 1998 “On compulsory social insurance against industrial accidents and occupational diseases” in Russian Federation the legal, economic and organizational basis for compulsory social insurance against industrial accidents and occupational diseases has been established and the procedure for compensation for harm caused to the life and health of an employee during the performance of his duties under an employment agreement (contract) or in other cases provided for by this Federal Law has been determined. According to paragraphs 17 and 18 of Article 3 of the said Law, under professional activity is understood as a person’s ability to perform work of a certain qualification, volume and quality, and the degree of loss of professional ability to work is a persistent decrease in the insured person’s ability to carry out professional activities, expressed as a percentage, before the occurrence of an insured event.
According to paragraph 2 of paragraph 3 of Article 11 of the said Law, the procedure for establishing the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases is determined by the Government of the Russian Federation.
Decree of the Government of the Russian Federation dated October 16, 2000 No. 789 approved the “Rules for determining the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases.”
The rules define the conditions for establishing the degree of loss of professional ability to work, taking into account the severity of the impairment of body functions. Thus, due to a slight impairment of body functions, it is established from 10 to 30 percent (item 17), due to a moderate impairment of functions, from 40 to 60% (item 16), due to a pronounced impairment - from 70 to 90% (item 15), due to a pronounced impairment - 100% (point 14).
Clause 2 of the Rules determines that the degree of loss of professional ability to work is established as a percentage at the time of examination of the victim based on the assessment of the loss of ability to carry out professional activities due to an industrial accident and occupational disease, in accordance with the criteria for determining the degree of loss of professional ability to work, approved by the Ministry of Labor of Russia in agreement with Ministry of Health of Russia.
Resolution of the Ministry of Labor of Russia dated July 18, 2001 No. 56 approved the Temporary criteria for determining the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases. Thus, this document was adopted by the competent federal executive body; its provisions do not contradict either the Rules, which are a normative legal act of great legal force, nor the Federal Law, because Article 3 of the Law, which we have already discussed and which is often referred to by victims, does not establish criteria to determine the degree of UPT, but defines the concepts of “professional ability to work” and “degree of loss of professional ability to work.”
Often, when going to court, plaintiffs mistakenly believe that the loss of the ability to work at the previous workplace after an industrial injury is itself an unconditional basis for declaring the victim completely disabled in all cases, establishing 100% of the UPL. On February 9, 2007, the judicial panel for civil cases of the Supreme Court of the Russian Federation pointed out the illegality of this interpretation of the provisions of the Law when considering the supervisory complaint of a citizen who, while working as a bricklayer, received an injury, as a result of which he lost the ability to work in this profession. Refusing to satisfy the demands to recognize illegal the actions of the ITU bureau to determine the applicant 40% of the UPT, the court, guided by the current regulatory legal acts on this issue, came to the reasonable conclusion that the establishment of 40% of the UPT is correct. The court took into account that the plaintiff does not have signs of a pronounced impairment of body functions and absolute contraindications for performing any types of professional activities and that he has the ability to carry out labor activity in other specialties acquired by him before the accident.
Using in ITU practice the named regulatory documents changes made to them in connection with relevant decisions of the Supreme Court should be taken into account.
Thus, by the ruling of the Cassation Board of the Supreme Court of the Russian Federation dated 04/08/2003, clause 2 of the Rules was declared invalid and not subject to application, in the part that limits the possibility of establishing the degree of UPT for the period preceding the day of examination, i.e. for the past time. However, the procedure for considering this issue has not yet been determined. In addition, under these circumstances, the degree of UPT can only be established in absentia, but this type of examination is not provided for by the Rules for establishing the degree of UPT. Thus, we do not have the right to refuse an examination in order to establish the percentage for the past time, however, if the issue was not previously considered, the examination is primary and there is no examination report for that period of time, we will not be able to establish the degree.
By the decision of the Cassation Board of the Supreme Court dated 04/08/2003, paragraph 28 of the Rules was declared invalid and not subject to application in the part that limits the right of the victim, in case of missing the deadline for the next re-examination, to establish the degree of UPT for the missed period on the basis of his appeal. Those. Previously, this issue was considered only at the request of the employer or insurer, and now at the request of the victim. However, you should not rush into the decision itself and make it without a request from the FSS.
A number of changes have been made to the Temporary Criteria. In January 2007, changes were made to paragraph 5. Let me remind you full content: When determining the degree of UPT, it is necessary to take into account professional factor, in particular the ability of the victim after an accident at work or the occurrence of a professional. illnesses perform work in in full in their previous profession (before the accident or occupational disease), and then the excluded part: or another equivalent in qualifications and pay, as well as the possibility of using the residual professional ability to work in other less qualified work in ordinary or special. created production or other working conditions. Changing paragraph 5 does not exclude the document as a whole, including those set out in paragraphs 1-4 general principles determining the degree of OPT: The degree of OPT is determined based on the consequences of health damage due to an industrial accident, taking into account the victim’s professional abilities, psychophysiological capabilities and professionally significant qualities that allow him to continue to perform professional activities preceding the industrial accident and professional. disease, of the same content and in the same volume, or taking into account a decrease in qualifications, a decrease in the volume of work performed and the severity of work in ordinary or special. created working conditions.
In addition to the 5th paragraph, a number of subparagraphs of the 56th resolution were excluded, in particular, those that envisaged the establishment of 90%, 60% of the UPT if the victim has lost his profession, but can perform unskilled types of labor. The Supreme Court noted that establishing the degree of UPT depending on the ability of the victim to perform unskilled types of labor is contrary to the norms of the law, which connects the establishment of UPT with the implementation of activities of a certain qualification, volume and quality, because in this case we assume the probable possibility of using the residual not professional, but general ability to work.
What are the approaches to establishing the degree of UPT in case of repeated insurance cases?
1. with each subsequent determination of %, one should proceed from the damage caused to the residual working capacity. Example: after the first injury, 60% is established and the residual working capacity allows you to continue working at lower qualifications; repeated injury has led to the need to reduce the volume of this work and allows us to set 50%, i.e. 50% of the remaining 40%, i.e. no more than 20%.
2. in case of repeated cases, the degree of UPT as a whole is determined. Example: after the first injury, 60% is established, after the second, he can work in specially created conditions, and there are grounds for establishing 80%. Total 80% - 60% equals 20%.
3. According to paragraph 18 of the Rules, the degree of UPT as a whole cannot exceed 100%.
Why?
A person is a single whole, and his ability to work, as a state of the body in which the totality of physical and spiritual abilities allows him to carry out production (professional) activities of a certain volume and quality, also corresponds to a single whole, i.e. 100%. In this regard, the degree of UPT in case of repeated accidents and occupational diseases is determined separately, but based on their combined impact on the victim’s ability to perform professional activities. According to paragraph 14 of the Rules, 100% MB is determined if there is a complete loss of professional ability to work due to a pronounced impairment of body functions in the presence of absolute contraindications to performing any type of professional activity, even in specially created conditions. If there is a residual ability to perform professional activities, less than 100% of the UPT is established. Based on the foregoing, we can conclude that the degree of UPT in case of repeated accidents and occupational diseases in total should not exceed the actual loss of professional ability of the victim, otherwise this will be contrary to the Rules.
The weakest link in the examination of victims, in my opinion, today is the expert decision during re-examination.
In fact, this decision is made based on the results of the implementation of the PDP activities. Moreover, in accordance with paragraph 2 of Article 16 of Federal Law 125-FZ, the insured is obliged to comply with recommendations for medical, social and professional rehabilitation within the time limits established by the rehabilitation program for victims of an industrial accident and occupational disease, and undergo medical examinations and re-examination within the time limits established by medical and social examination institutions, as well as upon the direction of the insurer.
And in accordance with paragraph 19 of the “Rules for determining the degree of loss of professional disability as a result of industrial accidents and occupational diseases”, approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789, when re-examining the victim after rehabilitation measures, specialists from the medical and social examination institution at When establishing the degree of loss of professional ability to work, they take into account damage to health due to an industrial accident and occupational disease, the ability to perform work in a profession acquired as a result of training or retraining, the ability of the victim to perform professional activities preceding the industrial accident and occupational disease, taking into account his existing professional knowledge and skills.
In case of evasion (refusal) of the victim from carrying out recommended rehabilitation measures, the question of the degree of loss of professional ability to work is considered taking into account the ability to perform any work activity.
Thus, if you lose your profession, i.e. in case of absolute medical or technical contraindications to continuing work in the previous profession, we give recommendations for employment in accordance with
established percentages, but in parallel in the PRP we recommend retraining. During re-examination, it is necessary to require that the PRP contain a FSS mark. If the victim evaded or refused, we can consider his ability to work not in the profession that preceded the accident, but in any profession. Unfortunately, this is often not the case.
Today, one of the courts is considering the victim’s claim against our institution. While working as a 4th grade carpenter, he was injured with the amputation of 4 fingers right hand on different levels. For two years, he continued to work in his own profession in full, but he was given 40% of the UPT. In the next 5 years, 40% was also established, but the citizen already worked as a postman. In 2007, during re-examination, 30% was established. What do we see in action? Over the past years, only one PRP has been developed in 2005, and even that one recommends the work of a carpenter. On the one hand, it is unclear how 40% was established, but on the other hand, it is completely unclear why the percentages were changed in 2007. There is no information about recommendations for rehabilitation, about evasion or refusal, or any justification for the decision in the act. Such decisions are difficult to understand and difficult to explain during a court hearing.
Expert decisions should be justified very carefully, especially when it comes to changing the % of UPT, with reference to current regulations.
Good luck to you! And thanks for your attention!
A person’s ability to work is his ability to perform professional activities efficiently and fully. People devote most of their lives to their work. It begins with choosing a profession, studying and mastering it. Over the course of 30 - 40 years, a person develops his own and sells them in exchange for wages. This is considered work
Types of labor
Qualification of work ability implies the presence of several types:
Regardless of which one a person chooses, they have legal protection if partial or total disability occurs.
Causes of disability
Deprivation of the opportunity to fully perform work can occur due to an occupational or general illness. Common diseases include health problems that are not related to working conditions or the complexity of the profession. Most often, this is a person’s general ability to work, when he is not required to master a specialty for a long time or have any specific skills. The resulting illnesses are non-occupational in nature, but, nevertheless, the temporary loss of the opportunity to work is paid by the state or the employer in accordance with labor legislation.
The loss of professional ability of people is directly related to the risks of their specialty or any diseases acquired as a result of unfavorable working conditions. In this case, not only the Labor Law comes into force, but also the rules of life insurance against accidents at work.
Partial disability
Every person has the right to quality health care in the event of partial or total disability. The degree of disability and, accordingly, monetary compensation is determined by the attending physician or a commission. The amount of payments depends either on the insured event or is prescribed by law. Partial is the temporary inability of a person to fulfill his or her professional responsibilities. In this regard, the percentage of the degree of disability is established, which is determined by the medical commission. It can be 10 - 30% of the previous level of performance, when the employee requires different working conditions or less output. The level of 40 - 60% is determined when a person can continue only with a significant reduction in the amount of work or a decrease in the level of qualifications. When an employee can perform work only under a complete change in conditions and not in full, the examination of work ability establishes the level of loss of ability to work at 70 - 90%.
Payment for partial loss of performance
If an employee’s illness is of a general rather than professional nature, then he is issued and paid sick leave for the entire period of treatment.
Payment of sick leave is made in accordance with labor legislation.
In case of temporary disability, the state or the employer partially or fully compensates the employee for lost earnings due to illness.
- So, if an employee’s work experience is less than 5 years, then he receives 60% of the salary.
- With experience from 5 to 8 years - 80%.
- When the employee’s length of service is 10 years or more, the compensation will be 100% of the average wages.
Special list
According to the law, partial loss of ability to work by persons included in a special list is paid at the rate of 100%, regardless of their length of work. These include:
- war veterans and combatants;
- employees who support 3 or more minor children;
- wives or husbands of military personnel (this does not apply to conscripts);
- women who are granted maternity leave;
- former orphans and children deprived of parental care.
Partial disability involves temporary absence from work due to a general illness.
Complete loss of ability to work
If an employee has obvious impairments in the functioning of the body that are directly related to his professional activities, and he cannot continue to work under any conditions, he is assessed as having 100% loss of ability to work.
When such a person is injured at work or becomes incapacitated due to his professional activities, he is entitled to monetary compensation. The qualification of an employee’s ability to work is determined in accordance with the insured event or a special commission.
Complete loss of ability to work includes not only injuries and injuries sustained as a result of an accident, but also occupational diseases that prevent the employee from further engaging in his or her activities.
Occupational diseases
Diseases that a person received in connection with his professional activities are divided into two types:
- The former have partial or complete reversibility. They are treatable, and such loss of professional ability to work is most often associated with allergic manifestations or the initial stages of bronchitis and intoxication. Sometimes it is enough to change working conditions and undergo a course of treatment to fully recover. For the first group of people, there are preventive and treatment institutions where they can receive qualified assistance.
- The second group cannot be completely cured. These include occupational diseases such as pneumoconiosis, hearing loss, and severe forms of intoxication. The medical commission determines the degree of damage to the human body and decides to establish a disability group. Often such diseases are “overgrown” with side diseases that develop against the background chronic manifestations. In this case, the disability group may change.
Workers of the second group should be provided with a referral for treatment to specialized clinics.
Registration of disability
The issue of assignment is considered only when a full examination of the employee’s ability to work has been carried out. Facts of contracting the disease in connection with professional activities or at the workplace are also checked. considers the issue of disability based on the conclusion of the medical commission and current list occupational diseases. According to existing methodological instructions, which examine the qualifications of workers’ ability to work, expressed as a percentage, and establish the degree of its loss.
The first and second disability groups are awarded in the event of intoxication or injury in an accident. This group may also include workers whose occupational diseases have become irreversible or difficult to cure.
If a person has, along with work-related illnesses, other illnesses, then their exacerbation due to the impact of a “work-related” illness also falls into the category of occupational ones and can be considered as a basis for receiving disability.
In order to accurately determine the degree of workers’ ability to work, the expert must be a highly qualified specialist.
Compensation for health damage
In accordance with the physical or mental damage that the employee received during his work activity, he is awarded financial compensation in the amount provided for by labor legislation.
It is now common practice for employees to take out life insurance contracts in case of disability. If the employee is partially unable to work, then he is paid a salary, compensation for medicines and hospital care, a one-time payment from the Social Insurance Fund.
If a certain work ability qualification is established as a result of receiving severe injuries, the employee is paid monthly benefits, provided with appropriate medical care and given the opportunity to recover in a sanatorium.
on disability
In the event that an employee becomes disabled due to an occupational disease or in connection with and loses the ability to work fully, he is transferred to light work or a reduced day with compensation of wages. This applies to those with disability groups 1 and 2.
The third group is awarded in case of complete loss of ability to work, when the employee can no longer perform his duties or retrain due to an industrial illness or injury.
The transition from one disability group to another is carried out on the basis of a medical examination.
The decision on the amount of sick pay, reimbursement for medicines and hospital treatment is made by the Social Insurance Fund, based on data provided by a forensic medical expert. According to the examination and determination of the degree of physical and moral damage to the victim, in the absence of his fault, the amount of compensation is assigned, as well as possible solutions for the rehabilitation of the patient. This applies to such measures as placing the victim in a specialized clinic, issuing a voucher to a sanatorium, and paying for psychologist consultations.
Payment through court
If an employee has become disabled due to his work activities, he has the right to monetary compensation for health and compensation for moral damage.
The issue of the amount of compensation is decided according to the conclusion given by the forensic expert. He checks the degree of mental disorder of the victim in connection with the incident and assesses the moral damage caused to him. You can also contact him if the employee does not agree with the disability group assigned to him by VTEK.
In this case, the employee files a claim against the employer or insurance company. You can win it only after receiving expert conclusions about the discrepancy between the assigned disability group or the amount of compensation and the mental and physical state in which the injured party is.
Re-examination of an employee who has lost his ability to work
There are deadlines for re-examination of the health status of workers who have lost their ability to work. This is done due to the fact that the disease can progress, and the deterioration of the physical health of the victim requires a different level of disability or compensation payments.
Re-examination takes place 6 months, a year or two after the first diagnosis. Typically this procedure takes place once a year. This does not apply to those workers whose illness is considered irreversible or whose injuries prevent them from continuing to work. Such people are assigned disability with lifelong pension payments.
You can undergo early re-examination if the patient’s condition has deteriorated sharply, which is confirmed by a medical commission. In this case, the Bureau of Medical and Social Expertise conducts an inspection and makes a decision based on the new results.
The employee also has the right to apply for an early check of his condition. In addition to the employee, an insurance company or employer can apply for re-examination if inconsistencies in the documents or forgery have been discovered.
The degree of loss of professional ability to work is determined by a specially authorized body- State Service for Medical and Social Expertise. ITU institutions operate in the system of social protection bodies of the Russian Federation (Article 8 of the Federal Law of November 24, 1995 No. 181-FZ “On social protection disabled people in the Russian Federation").
The degree of loss of professional ability to work as a result of industrial accidents and occupational diseases is determined according to the rules approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789.
According to these rules, the victim is sent for examination to ITU institutions after the medical institution has carried out a set of therapeutic, diagnostic and rehabilitation procedures and their results allow a preliminary conclusion to be made about a permanent loss of professional ability to work. To the direction medical institution When examining a victim, ITU institutions must include information about the victim’s condition, reflecting the degree of dysfunction of organs and systems.
The ITU institution conducts an examination of the victim, taking into account the information specified in the report on Form No. N-1 or the report on the case of occupational disease, as well as in other documents provided by the employer. Specialists from the ITU institution issue an expert opinion based on the documents received and a personal examination of the victim. The degree of loss of professional ability to work is determined based on an assessment of the victim’s existing professional abilities and professionally significant qualities that allow him to perform work in his previous specialty (qualification). The rules provide for the possibility of establishing from 10 to 100% loss of professional ability.
The fact that loss of ability to work has been established must be confirmed by an examination of the victim. The act is signed by the head of the ITU institution, the specialists who carried out the examination, and certified by the seal of the institution.
The victim is given a certificate of the results of the examination, and the employer and executive body An extract from the inspection report is sent to the FSS of Russia.
The medical and social examination institution established that employee I.I. Ivanov lost his professional ability to work by 30%.
Therefore, the size of the one-time insurance payment will be:
30,000 rub. x 30% = 9000 rub.
A one-time insurance payment is made to the victim no later than one calendar month from the date of its appointment. In the event of the death of the insured, the payment is made to his dependents within two days from the date the employer provides the executive body of the FSS of Russia with all the documents necessary to assign such a payment.
Monthly insurance payments . The amount of the monthly payment is determined based on the average monthly earnings of the victim. Average earnings are calculated for the previous 12 months of work that resulted in damage to health, up to the month in which the accident occurred or the diagnosis of an occupational disease was made. At the choice of the victim, earnings can be taken into account for the last 12 months of work that resulted in damage to health, up to the month in which the ITU institution established the degree of loss of professional ability to work.
As you can see, the main difference between the calculation period for determining the monthly insurance payment and the similar period for calculating temporary disability benefits is that in the first case only months of work that caused damage to health are taken into account.
Average monthly earnings are determined as follows: all payments received by the employee in the billing period are summed up, and the result is divided by 12.
What if the work that caused health damage lasted less than 12 months? In this case, you need to divide all actual earnings for the months of work that resulted in damage to health by the number of these months. If some months are not fully worked, they are replaced by the previous fully worked months or excluded from the calculation if replacement is impossible.
How to determine whether such a replacement is possible in the billing period or not? Let's look at this with specific examples.
Employee I.I. Ivanov was diagnosed with an occupational disease on June 10, 2004. The calculation period for determining average monthly earnings is the period from June 1, 2003 to May 31, 2004.
The work that caused damage to health lasted from September 15, 2003 to May 31, 2004 inclusive (8 months 16 days). Until September 15, 2003, the work was not related to the employee’s occupational illness. Therefore, the period from June 1 to September 14, 2003 is excluded from the calculation.
The incompletely worked September 2003 (from the 14th to the 30th) is also not taken into account, since it is impossible to replace it with previous fully worked months.
Thus, the average monthly earnings are determined for the period from October 1, 2003 to May 31, 2004.
Let's change the conditions of the previous example. Let's say the work that resulted in an occupational disease lasted from March 15, 2003 to May 31, 2004 inclusive (14 months 17 days).
The estimated period is from June 1, 2003 to May 31, 2004. The employee only worked there for half of June 2003 - from the 1st to the 15th. In this case, the unprocessed part of June can be replaced with the fully processed May 2003.
Thus, the average monthly earnings are taken into account in total for May 2003 and for the period from July 1, 2003 to May 31, 2004.
Please note
Earnings for calculating the monthly insurance payment include all amounts received by the employee for performing work under an employment contract, for which insurance contributions for compulsory social insurance against industrial accidents and occupational diseases were calculated.
To determine the size of the monthly insurance payment, you need to multiply your average monthly earnings by the percentage of loss of professional ability.
The assigned monthly insurance payments are not subsequently recalculated. There are three exceptions to this rule:
· change in the degree of loss of professional ability to work;
· changing the circle of persons entitled to receive payments;
· indexation of payments taking into account the level of inflation 5 .
The maximum monthly payment currently cannot exceed RUB 30,000. for a full calendar month. This is established by Article 16 of the Federal Law of February 11, 2002 No. 17-FZ “On the budget of the Social Insurance Fund of the Russian Federation for 2002” 6 (hereinafter referred to as Law No. 17-FZ).
The ITU establishment established that employee I.I. Ivanov lost 60% of his professional ability due to an industrial accident.
Average monthly earnings of I.I. Ivanova - 60,000 rubles.
The monthly insurance payment will be:
60,000 rub. x 60% = 36,000 rub.
Since the payment amount is limited by the maximum limit, I.I. Ivanov will receive 30,000 rubles monthly.
The victim receives monthly payments for the entire period for which the loss of professional ability to work is established. Only the period of temporary disability due to an accident at work or occupational disease is excluded from it, since during this time the victim receives an appropriate benefit.
On March 30, 2004, employee I.I. Ivanov was injured as a result of an industrial accident. On May 31, 2004, specialists from the ITU institution who examined I.I. Ivanov, established the degree of loss of professional ability to work at 50% for a period of 6 months. The sick leave was closed on June 30, 2004.
Thus, I.I. Ivanov must receive temporary disability benefits for the period from March 30 to June 30, 2004. He will begin receiving monthly insurance payments on July 1, 2004.
Insurance benefits for dependents. In the event of the death of the insured person, insurance payments are received by his dependents (Article 7 of Law No. 125-FZ). First of all, these are disabled persons who were dependent on the deceased or who had the right to receive maintenance from him on the day the insured event occurred. Disabled dependents usually include minors, as well as persons who have reached the age for old-age pension. Disabled people are also disabled dependents.
If the insured's child was born after his death, he is also entitled to receive insurance benefits.
Dependents are considered family members of the deceased who were not working at the time of his death in connection with the care of his children, grandchildren, brothers or sisters under the age of 14 or who have reached this age, but are recognized as needing outside care. In this case, the working capacity of family members providing care does not matter.
And finally, dependents of the deceased have the right to receive insurance payments if they become disabled within five years from the date of his death.
Please note
Not only relatives can be dependents. They may be persons who were not related to the deceased, but lived with him. The main thing is to confirm in court the fact of being a dependent. The dependency of the children of the deceased is assumed by force of law, so there is no need to confirm it.
The size of the one-time insurance payment due to dependents is 30,000 rubles. This amount is divided between the deceased's spouse (whether or not she was a dependent) and any other dependents.
The amount of the monthly payment is determined based on the average monthly earnings of the deceased. The pensions and benefits that he received during his lifetime are also taken into account. From the amount received, the shares attributable to the injured person and able-bodied persons who were dependent on him, but who are not entitled to receive insurance payments, are excluded. The remaining amount is equally divided among the dependents of the victim who are entitled to insurance benefits.
Please note
The total amount of monthly insurance payments to all dependents cannot exceed RUB 30,000. (Clause 12, Article 12 of Law No. 125-FZ and Article 16 of Law No. 17-FZ).
The average income of the deceased was 25,000 rubles. He was dependent on: an able-bodied wife, a mother aged 70, and two children aged 15 and 16 years. Three dependents - mother and children - are entitled to monthly insurance payments; wife, mother and children are entitled to a lump sum insurance payment.
Let's calculate the share of the lump sum insurance payment due to each dependent. Shares are determined based on the total amount of 30,000 rubles. The amount of the one-time insurance payment will be:
30,000 rub. : 4 people = 7500 rub.
Now let's calculate the amount of the monthly insurance payment.
First, we determine the share due to each recipient:
25,000 rub. : 5 people = 5000 rub.
25,000 rub. – (5000 rub. x 2 people) = 15,000 rub.
Thus, 15,000 rubles. - the total amount of monthly insurance payment that will be received by three dependents - the mother and two children of the deceased.
The periods during which dependents have the right to receive insurance payments are established by paragraph 3 of Article 7 of Law No. 125-FZ.
Minor children receive monthly insurance payments until they are 18 years old, and if they are full-time students, then until they graduate, but not more than 23 years old.
Old-age pensioners (women from 55 years of age, men from 60) will receive monthly insurance payments for life, and disabled people - during the period of disability. At the same time, insurance payments do not affect the size of the pension (for old age or disability) that these persons receive.
Persons who are not working in connection with the care of children, grandchildren, brothers or sisters of the deceased who are under 14 years of age receive insurance payments until the specified dependents turn 14 years of age. If dependents are over 14 years of age but need care, their caregivers receive insurance benefits until the dependents' condition changes.
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If the damage has resulted in loss or limitation of ability to work, which in turn may affect the earnings and financial situation of the victim, then monetary compensation is issued for the damage caused, the amount of which depends on the degree of permanent loss of ability to work.
Loss of ability to work can be temporary or permanent.
Temporary disability is a loss of ability to work for a limited period. It is established by the attending physician and the VKK (medical control commission), and is issued with a certificate of temporary incapacity for work ( sick leave). According to the current situation, a certificate of temporary incapacity for work is issued (periodically extended) for a period of up to four months, but if necessary, with the permission of the VTEC (medical labor expert commission) it can be extended for a longer period.
Persistent disability is longer lasting and often permanent. There is a distinction between loss of general, professional and special ability to work. General working capacity is understood as the ability to perform unskilled labor. Professional ability to work is the ability to work in one’s own profession or another that is equal in qualifications and pay. Special ability to work is the ability to work in one’s narrow specialty.
When compensating for damage caused, only the degree of loss of professional ability to work is taken into account; the degree of loss of general and special ability to work is not taken into account.
Duration of health disorder as a qualifying feature is used in two categories:
a) long-term health disorder for more than three weeks (21 days);
b) short-term health disorder for no more than three weeks (21 days or less). In the first case, the damage is assessed as harm to health of moderate severity, in the second - as slight harm to health.
The “rules” define the duration of a health disorder as a temporary loss of ability to work or as a temporary disability. At the same time, they propose to establish disability in children, as well as in adults. The last provision is of an uncertain nature, because ability to work is established by law from the age of 14. And if for schoolchildren under 14 years of age, temporary disability can be conditionally equated to a temporary inability to study at school, then for preschoolers there will be no even such a conditional criterion. Consequently, temporary disability as a reflection of a health disorder is not a general absolute qualifying feature applicable in all age groups.
In addition, even among adults, the use of temporary disability as a criterion for a health disorder is associated with a number of reservations and exceptions.
Thus, the “Rules” recommend critically evaluating medical documents (medical history, outpatient card, surgical log, etc.), relying only on objective data on the nature and duration of impaired functions, since the length of stay in a hospital or other hospital, the duration of outpatient treatment, the validity period The “certificate of incapacity for work” may not correspond to the true duration of the health disorder.
On the one hand, an unreasonably long stay in a hospital or outpatient treatment can only be associated with subjective complaints, simulation or aggravation (exaggeration of symptoms) of the victim. On the other hand, the victim may refuse the “certificate of incapacity for work” and start work prematurely, which in modern conditions observed frequently. Those who are not working and pensioners may not use the “certificate of incapacity for work” at all.
The resulting injury can worsen the victim’s existing chronic disease, and a patient admitted to the hospital for injury may remain on treatment for a long time to correct the health status of the disease that preceded the injury. In such cases, to assess the severity of harm to health, it is necessary to distinguish between impairment of body functions in connection with the injury and in connection with a previous disease, taking into account only the duration of the consequences of the injury when determining the severity of harm to health.
The approach to performing surgical operations also seems to be different. If surgery was performed with therapeutic purpose to eliminate the consequences of injury, the entire duration of the health disorder must be taken into account throughout the entire period of treatment. If a surgical operation is undertaken for diagnostic purposes, then the harm to health caused by the surgical intervention is not taken into account when assessing the severity of the harm to health.
The operation itself, although it is a surgical injury, is not assessed as harm to health.
Harm to health caused as a result of a defect in the provision of medical care is assessed independently, separately from the damage caused and its consequences, in accordance with the qualifying criteria provided for by the Rules.
In cases where, as a result of a surgical operation or some other medical intervention, there was a defect in the provision of medical care and additional suffering was caused to the victim, the latter are not grounds for increasing the severity when assessing the harm to health caused by the previous injury.
Sometimes, with a presumptive diagnosis (for example, a concussion), when there are no objective signs of injury (impairment of structure and function), the victim may be admitted to a hospital for clinical observation, because Signs of injury may not appear immediately, but may take several days. If such signs do not appear, the time spent in hospital is not taken into account as the duration of the health disorder.
Thus, based on the essence of the presented provisions, we can conclude that in order to determine the duration of the health disorder, it is necessary to establish the time during which the dysfunction caused by the injury continued. This criterion - the duration of the dysfunction - is the single general basis for determining the duration of the health disorder.
Unfortunately, the “Rules” contain two provisions that contradict each other. According to clause 25.4 "small few damage (abrasions, bruises, small superficial wounds) that do not entail a short-term health disorder or minor permanent loss of ability to work are not regarded as harm to health." However, paragraph 2 of the "Rules" states that harm to health means damage. In other words, " The Rules "consider some damage as damage, and other damage as not being damage. Such a statement "damage is not damage" contradicts all logic. It is possible that there may be damage that does not entail permanent irreversible loss of ability to work. But there cannot be damage which is not accompanied by a dysfunction, i.e. does not lead to a health disorder. Even the “small, few injuries” mentioned in the Rules are always accompanied by at least pain (painful sensations), which is an expression of a dysfunction and, therefore, a health disorder. that the impact, leading to the formation of abrasions, bruises and wounds, is indifferent to health, imperceptible to a living person, and does not lead to dysfunction and health disorders (albeit short-term). The “Rules” do not define the minimum period for a health disorder (they only talk about a health disorder of no more than three weeks, without establishing a lower limit for this period). Therefore, with the establishment of the fact of damage, the fact of health disorder is also established, and, consequently, the presence of harm to health (albeit brief and temporary). In this regard, one cannot help but pay attention to the uncertainty of the proposed characteristics of damage: “small” (dimensional boundaries are not proposed), “few” (quantitative characteristics are absent), “superficial” (depth parameters that allow distinguishing deep wounds from superficial ones are not given ).
Dear Boris, Good evening! And happy holiday to you! I wish you health, you will be healthy, all problems will be solved.
Now regarding your question. I believe that the problem of establishing the degree of loss of general (professional) ability to work
(since there is no indication of this in the ITU certificate) it can only be resolved by going to court, and at the same time petitioning for the appointment of an appropriate examination. Therefore, your thoughts, it seems to me, are absolutely correct. We proceed from the following:
In accordance with paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 26, 2010. "On the application by courts of civil legislation regulating relations under obligations resulting from harm to the life or health of a citizen" - liability legal entity or a citizen, provided for in paragraph 1 of Article 1068 of the Civil Code of the Russian Federation, occurs for damage caused by his employee in the performance of his labor (official, official) duties on the basis of the concluded employment contract(service contract).
A legal entity or citizen may be obligated to compensate for damage caused by persons who performed work ON THE BASIS OF A CIVIL CONTRACT, provided that these persons acted or should have acted on the instructions of this legal entity or citizen and under his control over the safe conduct works (clause 1 of Article 1068 of the Civil Code of the Russian Federation). And in accordance with clause 28 of the same Resolution of the Plenum of the Armed Forces of the Russian Federation, the amount of lost earnings of the victim, in accordance with paragraph 1 of Article 1086 of the Civil Code of the Russian Federation, is determined as a percentage of his average monthly earnings at the choice of the victim - before injury or other damage to health or until he loses professional ability to work, and in the absence of professional ability to work - until loss of general ability to work. AT THIS TIME, the determination of the degree of loss of professional ability is carried out by institutions civil service medical and social examination, and the degree of loss of general ability to work - by forensic medical examination in medical institutions state system healthcare.
THUS, depending on the degree of loss of ability to work, it is necessary to establish, and you should ask the court to order an examination, entrusting it to be carried out by the SME or the ITU (or better yet, ask to appoint both)
As for paragraph 6 of the Rules, I think it applies only to those victims who independently apply to establish the degree of loss. It is no coincidence that paragraph 7 of the same Rules states that the examination of the victim in a medical and social examination institution is carried out ... by determination of the court (judge) ... when submitting a report on an industrial accident. Therefore, if the court appoints it, they will not go anywhere, they will carry it out. And in the ITU certificate, the degree of loss was not indicated IMMEDIATELY because your client was not in an employment relationship (they used their clause 6 of the Rules).
Or maybe I didn't understand your problem quite correctly? (You indicated that there is an accident report, but I can’t figure out what n-1 is, which it seems they didn’t draw up?)