Q&A Labor Law: Injury assessment, investigation, report, allowance/compensation in case of occupational accident
November 16, 2018 Labor & Employment
An employee has an occupational accident at the workplace (in a warehouse) without any witnesses. The company has already advanced such employee salary and medical expenses from the time of the accident until the present. After the employee has been treated and discharged home, how should the following issues be dealt with:
1.Assessment of injury
a.Where will the employee receive an injury assessment? The head-office of the company is in Ho Chi Minh City, and the residential address of the employee is in Binh Duong Province.
b.The employee was discharged and continued treatment at home for more than one month. So what time is it determined that the employee’s condition is stable to be eligible for an injury assessment? And on what basis (i.e. the doctor’s written certification or other papers)?
c.How is an injury assessment proceeded?
2.Allowance and compensation
In addition to the monthly salary and medical expenses paid by the company to the employee and the labor accident allowance paid by Social Insurance Authority thereafter (if any), is it compulsory for the company to compensate the injured employee further?
3.Occupational accident investigation
Documents for requesting an injury assessment must include a minutes on occupational accident investigation. The contents of the occupational accident investigation minutes shall identify the occupational accident investigation team and whose fault for causing the occupational accident. Is this minutes made internally by the company or must it involve the participation and confirmation of the competent authority (e.g. Department of Labor – Invalids and Social Affairs)? What are the criteria for determining the fault causing the occupational accident?
Does the company have to report the occupational accidents to the relevant authorities?
1.Assessment of injury
A.In this case (identified above), the employee is considered as taking the very first assessment of his injury. Pursuant to Article 9.1, Circular No.52/2016/TT-BYT, the provincial Medical Assessment Council shall have the competence to conduct the injury assessment “for persons currently working or residing in those provinces or cities of such provinces”. Thus, the Medical Assessment Council in Ho Chi Minh City (where the employee works) and Binh Duong Province (where the employee resides) both have competence to conduct the injury assessment for the employee. Practically however, based on discussions with a member of the Ho Chi Minh City Medical Assessment Council, the location of taking injury assessment will normally be determined by the location of the Social Insurance Authority with that the company has registered to pay social insurance contributions for its employees (this is due to the fact that the Social Insurance Authority pays the occupational accident allowances (if any) to employees). E.g., if the company pays social insurance contributions for its employees at the Social Insurance Authority of a district in Ho Chi Minh City, the employee will be assessed for injuries by the Ho Chi Minh City Medical Assessment Council.
B.Regarding the determination of the time when the employee’s condition is fully stable for proceeding with an injury assessment, the Medical Assessment Council shall base on his/her hospital discharge papers or a medical records summary to identify the condition of injury assessment. In consultation with a member of the Medical Assessment Council of Ho Chi Minh City, in common, the employees who are injured in an occupational accident will be eligible for an injury assessment when they have completed their treatment, been discharged and have no further appointment for re-examination.
It should be noted that if an employee is identified as an occupational accident victim whose condition cannot become stable though receiving treatment, the medical records summary must clearly indicate this occupational injury condition (Article 5.1.d, Circular No.56/2017/TT-BYT). At that time, the employee is entitled to be proceeded with the injury assessment before or during the treatment process (Article 47.1.c, the 2015 Law on Occupational Safety and Hygiene.
C.Documents and procedures for the first injury assessment are implemented in accordance with Circular No.56/2017/TT-BYT and Circular No.52/2016/TT-BYT.
–Competent authority: The Medical Assessment Council at provincial level.
–Required documents (Article 5.1, Circular No.56/2017/TT-BYT):
▪Letter of introduction of the company.
▪Original or certified copy of the Injury Certificate issued by the medical establishments (where first aid and treatment for the employee occurred).
▪Original or certified copy of the Minutes on occupational accident investigation.
▪Hospital discharge papers complying with the form provided by the Minister of Health or the medical records summary. In case where the employees are not inpatient or outpatient, they must present papers on medical examination and treatment of injuries corresponding with the time of the occupational accident and the injuries required for assessment. If the injured employee’s condition cannot become stable though receiving treatment, the medical records summary must clearly indicate this occupational injury condition.
▪One of the following documents (with the employee’s photo): Identity card; Citizen card; Passport (still valid). In the event that the employee does not have the above-mentioned papers, a Confirmation (affixed seal with the employee’s photo) of the Police at commune level which is granted within 3 months prior to the time of application for injury assessment must be obtained.
–Procedures (Articles 16 – 21, Circular No.52/2016/TT-BYT):
After receiving the application for conducting an injury assessment, the Medical Assessment Council shall execute the following basic steps:
▪The doctor receives the file and cross-checks the information of the employee.
▪The doctor who receives the file conducts a general examination and obtain the approval from his manager for specialized examination in consistent with the application.
▪Specialized examiners conduct the specialized examination and reach conclusions.
▪Conducting the Medical Assessment Council’s meeting.
▪Issuing the Medical Assessment Minutes (within 10 working days from the date having a conclusion of the Medical Assessment Council).
–Processing time: This is dependent on how serious the injury of the employee is. The company should contact the Medical Assessment Council for a detailed consultation.
2.Allowance and compensation
The amounts that a company must pay to employees when an occupational accident occurs are prescribed in Article 145, the 2012 Labor Code and Article 38, the 2015 Law on Occupational Safety and Health. Accordingly, in addition to salaries, medical expenses, etc., the company will have to compensate or pay an allowance to the employees depending on the determination of the employee’s fault with regard to the occurrence of the occupational accident, specifically:
A.If the accident is not caused by the fault of the employee, or if it is partly due to the fault of the employee, the employee shall be compensated by the company. The amount of compensation shall depend on the level of reduction in working capacity:
B.If the accident is entirely caused by the fault of the employee, the employee shall receive an allowance from the company equal to at least 40% of the abovementioned compensation (equivalent to the rate of reduction in working capacity).
Further references to determination of occupational accidents and financial responsibilities when the accidents occurred can be found in LeTran’s article here.
3.Occupational accident investigation
When occurring an occupational accident, it is mandatory to form an Investigation Team to conduct an investigation of the accident. Depending on the severity of the accident, the composition of the Investigation Team as well as the authority to form the Investigation Team will vary. In the event that the occupational accident cause minor injury(ies) to the employee(s), or major injury to one employee, the Investigation Team shall consist of:
(1)a representative of the company (Head of Team),
(2)a representative of executive committee of the grassroots trade union, or a representative of the collective employees in case a grassroots trade union has not been established,
(3)occupational safety experts,
(4)medical work experts, and
(5)other members (if necessary).
After the investigation, the Investigation Team will create an Investigation Report and announce this Report at the meeting chaired by the Head of the Investigation Team and the participants including the members of the Investigation Team, the representative of the company, the representative of the trade union organization, the victim or the representative who is the family member of the victim as well as witnesses or any persons that were involved in the accident (in case of fatal occupational accident, it must include a representative of the Public Security and the People’s Prosecutor at the same level). After the announcement, the Report must be sent to the Inspector of Department of Labor – Invalids and Social Affairs where the company is headquartered and the Inspector of Department of Labor – Invalids and Social Affairs where the accident was occurred.
The identification of fault shall be based on the evidence and facts collected during the investigation. The Investigation Team and the Head of the Investigation Team will be responsible for their decision.
The investigation process is detailed in Article 35, the 2015 Law on Occupational Safety and Hygiene and Articles 11, 12, 13, 16 & 18, Decree No.39/2016/ND-CP.
Occupational accidents are required to be reported periodically to the Department of Labor – Invalids and Social Affairs where the company’s headquarters is located. There are two phases including (i) the 6-month report that is annually submitted before July 5 and (ii) yearly report that is submitted before January 10 of the next year. Reports are submitted via one of the following ways: in person, via fax, mail post or email. Report form is stipulated in Annex XII, Decree No.39/2016/ND-CP.
However, in the following cases the company needs to report the accident immediately (in person or via phone, fax, official telegram, email):
–The accident causes major injuries to 02 employees or more -> report to the Inspector of Department of Labor – Invalids and Social Affairs where the accident was occurred.
–Fatal accident -> report to the Inspector of Department of Labor – Invalids and Social Affairs as well as the provincial public security where the accident was occurred.
The contents of report shall be followed the template provided in Annex III, Decree No.39/2016/ND-CP.
Definitions of “fatal occupational accident”, “occupational accident causing major injuries to employees” and detailed provisions of reporting on occupational accidents, periodic reports are provided in Article 34, the 2015 Law on Occupational Safety and Hygiene and Article 9, 10 & 24, Decree No.39/2016/ND-CP.
– Written by LE & TRAN | Vietnam’s Premier Business Litigation Firm
This insight is quoted from the Vietnam Labor Law Review (October 2018), you can download and read the full file of Vietnam Labor Law Review (October 2018) here.