Dansk
The Danish way
It is rather more than 100 years since Denmark established a system to ensure that workers could go home safely from their jobs – and receive compensation if they did happen to be injured at work. It was important to have a system that was objective, so an administrative authority, the National Board of Industrial Injuries was set up to make case rulings. In addition to the Industrial Injuries Agency, an appeals court, the Appeals Commission, was established so that parties in cases could appeal against decisions of the Industrial Injuries Agency (If appeals about 5-7 % of cases annually). Regulation of both the system and the entitlement of employees to compensation are based on the
Industrial Injuries Insurance Act.
At the same time, the right to compensation has been extended, so that a Danish employer can at the same time incur a responsibility for compensation to an employee who is injured. The basis for the employer’s compensation responsibility is culpability – i.e. that the employer has shown negligence, which has caused the injury. Typically, an employer is responsible for compensation if the employee has been injured by a dangerous machine because he or she has not had the necessary equipment available (eg, lifting gear), because the employer has not given the employee adequate instruction, or because the employer has not ensured that the employee has followed a given instruction. Control of the amount of compensation will be based on the
Responsibility for Compensation Act.
Compensation headings in the two Acts are almost identical, and it has therefore been decided that the employee should be compensated firstly under the Industrial Injuries Insurance Act. If in connection with industrial injury the employer has taken responsibility for compensation to the employee, the employee is entitled to further compensation under the Responsibility for Compensation Act – known as the ‘difference requirement’.
When an employee is injured:
- The employer reports the case to the Industrial Injuries Insurance and/or National Board of Industrial Injuries.
- The Danish Health Service in the form of its own physician and hospital takes on the majority of the medical treatment.
- The municipality looks after the need for equipment, payment of wages contribution (sick pay) and any training/rehabilitation or work testing.
- The employee or trade union decides whether they think that the employer is responsible for compensation to the employee, and raises any demand for compensation.
The latest Supreme Court decisions
By its decision of 2 August 2008 (known as the ‘If verdict’), the Supreme Court established that a person causing a loss must pay lost work earnings up to the time where the person causing a loss (typically represented by an insurance company) has made a qualified evaluation of the injured person’s loss of working ability, and subsequent payments in agreement with the evaluation. The case concerned a road accident in which the injured person was not at work, and the injured person’s entitlement should therefore only be assessed in accordance with the Responsibility for Compensation Act.
On 6 October 2008, the Supreme Court came to a decision (the ‘6 October verdict or ‘Top Toy-case’) in a case where the person was injured at work – ie, the case (in contrast to the ‘If verdict’) was covered by both sets of regulations. It is now established that the employer must pay lost working time until either the employer or its insurance company has assessed (and subsequently paid in agreement with the assessment) loss of earnings wholly or partly or to the time when the injured person is entitled to compensation based on the verdict from National Board of Industrial Injuries (from a later High Court verdict we can still deduce that both final and temporary decision on loss of earnings apply.).
Consequence for the business – the ‘difference requirement’
When an employee is injured - and cannot take up work to the same extent as before the injury – the Danish municipalities should evaluate how the employee can best return to the labour market. The most usual subsidy arrangement involves payments to the employee, retraining or other form of rehabilitation, and work testing. It is not unusual for rehabilitation to take 3-4 years.
Since the latest Supreme Court decision broadly speaking means that the employer (and/or their insurance company) will pay compensation for loss of earnings until the Industrial Injuries Agency decides that the employee should be compensated for loss of earning ability, the employer takes over the financial risk for the optimum function of the treatment system, the municipal case officer initiating processes such as retraining at the right time, and the Industrial Injuries Agency making a correct judgement in its evaluation of when there is a need for loss of earnings compensation.
Compliance with the new requirement
To deal with the risk, the business should ensure that an insurance company is in a position to ensure that:
The employee is given optimum assistance throughout the process. The company should therefore be in a position to evaluate - and affect - the medical and especially the municipal handling of the case.
- Information is co-ordinated in the various types of cases.
- There is a qualified evaluation of any compensation for loss of earnings (and that such compensation is paid to the employee as soon as possible).
- The insurance company checks that the Industrial Injuries Agency has handled the case properly, and checks when a decision on compensation comes into effect.
If the business or insurance company does not take care of the interests, the business together with its insurance company will pay the employee’s wages in the year that as a rule runs from the date of the accident to the time when the Industrial Injuries Agency decides that the employee is now entitled to compensation for loss of earnings (temporary or final).
Facts
‘Industrial Injury’ – Physical or psychological damage or sickness caused by work, either through an accident or as an occupational illness.
Industrial Injuries Insurance Act – The law that defines what an industrial injury is and how much an employee is entitled to in compensation if he or she has been exposed to an industrial injury.
Responsibility for Compensation Act – The law that defines how much a person causing a loss should pay in compensation to the ‘injured person’.
Responsibility for compensation – In this connection expresses that an employer by action or omission is responsible or has responsibility for injury to an employee. The rules are not found in a law, but are developed via court decision.
Industrial injury insurance – Insurance that handles and pays entitlement as defined in the Industrial Injuries Insurance Act. This insurance is compulsory.
Liability insurance – Insurance that handles and pays entitlement as defined in the Responsibility for Compensation Act. This insurance is voluntary.
Lost work earnings – Compensation for the loss the employee has until the employee resumes work, is entitled to temporary or final loss of earnings under the Responsibility for Compensation Act, or receives compensation for loss of earnings under the Industrial Injuries Insurance Act.
Loss of earnings – Compensation for loss of future ability to earn an income.
