Accident at work and commuting accidents

What is a workplace accident?

The law defines a workplace accident as one which occurs to insured persons as a result of or in connection with their work.

This very succinct definition was rounded out by Luxembourg case law which specified the constituent elements of the accident at work by taking up a definition of the French Court of Cassation according to which the accident at work is characterised by the sudden action of an external cause causing an injury to the human organism during work.

The criterion of suddenness makes it possible to place the accidental event precisely in time and to distinguish the accident from a disease, which is a progressive event that develops slowly.

The condition of exteriority requires the existence of an element external to the human body that intervenes directly or indirectly.

It may be either a force in the true sense of the word, or a feature of workers’ environments acting on them, such as abnormally arduous working conditions requiring particularly sustained effort.

As regards the requirement of a link between the accident and the work, case law has established the following presumption, which is also taken from that of the French Court of Cassation: the sudden appearance of a physical injury at the time and place of work constitutes an accident at work, unless the accident insurance association (AAA) proves that the injury is due to a cause unrelated to the insured professional activity. The burden of proof as to the time and place of occurrence lies with the insured.

What is a commuting accident?

The law defines a commuting accident as one that occurs on the way to and from work:

• between the main residence, a secondary residence of a stable nature or any other place to which the insured person habitually goes for family reasons and the place of work;
• between the place of work and the restaurant, canteen or, more generally, the place where the insured person usually eats

This route may not be the most direct one if the diversions is necessary as part of a regular carpool or in order to drop off or pick up a child living in the same household as the insured person from a third party to whom he/she is obliged to entrust the child in order to be able to carry out his/her occupation.

How to report an accident?

Any employee who suffers an accident at work or on the way to or from work must notify his or her employer immediately.

All accidents at work must be reported to the ITM and the Accident Insurance Association (AAA) by the employer or his delegate.

With the AAA

The employer or his representative must report any accident to the AAA by providing all the information requested on the prescribed form. The signature of the employer or his representative is required on the accident report form.

If no statement is sent to the AAA, the person claiming to have been the victim of an accident may file a claim within one year. The AAA asks for the statement of the person who made the statement before making a decision.

The refusal to consider an accident reported as a work-related or commuting accident by the employer is subject to a decision by the AAA which may be appealed. This decision is notified to the victim of the accident.

Reporting accidents to Works and Mines Inspectorate (ITM)

Reporting of serious accidents resulting in:

• death
• a permanent injury
• one of the following temporary injuries:
  • fractures
  • external third degree burns over more than 9% of the body surface internally
  • wounds with loss of skin and/or tissue
  • trauma that can be life-threatening if left untreated

must be made without delay by the employer or his delegate to the ITM, in writing or by any other appropriate means of telecommunication.

Other accidents at work must be reported to the ITM as soon as possible by the employer or his delegate.

Reports of accidents at work can be made:

• by calling 247-76200
• by e-mail to aec@itm.etat.lu
• by post to the following address: 3, rue des Primeurs L-2361 Strassen

NOTE: For reasons of legal certainty, it is preferable to make the declarations of accidents at work in writing.

Occupational diseases

What is an occupational disease?

An occupational disease is a disease which has its determining cause in an insured occupational activity.

A disease is presumed to be of occupational origin when it is listed in the table of occupational diseases and is contracted as a result of exposure to a specific risk at work.

The table of occupational diseases shall be determined by Grand-Ducal regulation on the proposal of a Higher Commission for Occupational Diseases.

A disease can only be considered an occupational disease if, according to the current state of medical knowledge, it has been caused by specific influences to which certain groups of people are exposed to a much higher degree than the average population.

An important element in the definition of occupational disease is the specific influence.

A disease not listed in the table may be recognised as an occupational disease if the insured person provides proof of its occupational origin.

How to report an occupational disease?

The attending physician must report any occupational illness to the Accident Insurance Association (AAA).

This report is written on a specific form known as a medical report of occupational disease. This should be sent to the AAA, Occupational Diseases Department.

The occupational physician may also prepare the above-mentioned reports.

The Accident Insurance Association also accepts retroactive claims.

Even in cases of strong presumption, the attending physician and/or the occupational physician may not always be able to detect an occupational pathology before a certain exposure period. Similarly, the evolution towards recovery of certain pathological when exposure to risks in the workplace ceases may give rise to an a posteriori suspicion of the existence of elements harmful to workers’ health. In these two situations, claims for occupational diseases will be made after a certain delay.

Diseases not listed in the table of occupational diseases may be accepted for compensation by the Management Committee of the Accident Insurance Association, if there is sufficient evidence that their origin is occupational.