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One of the most important issues in the work environment is occupational accidents and with it, workers’ compensation. Practically any activity involves a risk, and the possibility of suffering an accident increases in industrial environments where there is machinery, toxic substances or hazardous materials.
Although work environments are very different, all companies must consider the possible risks and have established methodologies, with actions that seek to reduce accidents and act correctly in the event of any emergency that may arise within their facilities.
It is important to differentiate between occupational injuries and accidents, since the former are related to repetitive activities, which are performed on a daily basis, and can be prevented; for example, carpal tunnel syndrome, so frequent in office workers, which can be prevented with the use of ergonomic furniture so as not to overload the joints.
On the other hand, accidents are usually unforeseen, although this does not mean that they are not preventable.
According to the Federal Labor Law, occupational hazards are all those dangers to which a worker is exposed while performing his or her work. They range from accidents to illnesses caused by the work environment. Contact us to learn more about workers’ compensation.
One of the most complex legal events is the lawsuits for accidents at work, which are presented in case a worker suffers an accident during his working hours and as a consequence of any of his activities, or for any other reason related to the company, facilities, machinery, chemical products, among others.
According to Article 474 of the Federal Labor Law (LFT), an occupational accident is considered to be any organic injury or functional disturbance, immediate or subsequent, death or disappearance resulting from a delinquent act, occurring during work, regardless of the place and time in which it is performed. This same article excludes accidents occurring during the transfer from work to the employee’s home and vice versa.
Lawsuits for accidents at work require highly experienced lawyers, since they are usually complex and high amounts of money are at stake as compensation for work-related risks since, as a consequence of the accident, the employee may have been incapacitated to continue working in his profession, in addition to the treatment he may need.
Falls have various causes, from slippery surfaces to mishandling of spilled liquids, and their risk is greater if the facilities work in elevated areas, lack signage, protection systems (such as guardrails) or are in poor condition.
The company must pay attention to all possible places where there is a risk of falling in order to install anti-slip strips, handrails, signage and strict manuals on the cleaning of surfaces and spill containment.
These accidents are related to the improper use of personal protective equipment, machinery and production equipment. The company must train all operators on the proper handling of machinery, tools, and load-carrying vehicles, as well as provide personal protective equipment and establish strict rules on its use to ensure worker safety.
Personnel working in laboratories, warehouses, warehouses or any other place where hazardous substances are handled are at risk of suffering a poisoning accident by inhaling the vapors given off by liquids. Here, in addition to personal protective equipment and training, it is important to have signage for these materials and adequate spaces to prevent vapors from saturating the place, such as open windows and extractors.
These accidents usually occur due to errors in the electrical installation and lack of proper maintenance, so the way to avoid them is periodic inspections to detect possible faults and repair them as soon as possible.
Both for the machinery used in warehouses and for the transportation of goods, vehicular accidents are common due to the lack of signaling, lack of protective equipment with reflective materials so that the operator can see the workers from a distance, and the lack of safety standards in this area.
In the first instance, access to warehouses, warehouses and supplier parking areas should be restricted to trained personnel, and the company should have specific regulations and signage to prevent events that could put employees at risk.
In general, employers must affiliate their workers to the Mexican Social Security Institute, so that if one of them is injured, he/she can receive medical, surgical and hospital care, prosthetic devices, orthopedics, rehabilitation and medicines according to the degree of injury and, in case of incapacitation, the payment of subsidies.
In the event that the occupational risk (RT) has produced a temporary disability, you must receive your salary in full until you are able to return to work. If the condition lasts more than three months, the employee or the employer may request the IMSS to determine whether the same treatment should be continued or to declare permanent incapacity, which will entitle him/her to receive the amount corresponding to the indemnity for work-related accidents. These examinations may be requested on a quarterly basis until the worker recovers his health and returns to work.
However, if the employer did not register a worker with the IMSS and he/she is injured, he/she will have to pay the corresponding benefits, concepts and indemnity for work-related risks, either for temporary or permanent incapacity to work, or for the death of the employee.
In addition to the obligation of the employer to pay the indemnity for work accidents, it is important to consider that it could be fined by the Ministry of Labor and Social Welfare (STPS) with a penalty ranging from 50 to 5,000 times the UMA (equivalent to 4,344.00 to 434,400.00 pesos); and the IMSS may impose a constitutive capital for the non-compliance of registering its employees with the institution.
Another important point to consider is that the employer must provide a job according to the physical capabilities of the employee after the accident, in case it has been determined that he/she is not able to continue performing the work he/she was doing. If the employer does not hire the employee in a position for which he/she is apt, it will be considered an unjustified dismissal, for which he/she will have to pay the indemnity indicated in article 48 of the Federal Labor Law (LFT), which consists of three months’ salary.
In these situations the company is obliged to cover some percentage of compensation for work-related accidents. The amount and form will depend on the type of disability and the consequences it has on the worker’s health.
According to the Federal Labor Law (LFT) in its article 477, it states that work risks can produce the following incapacities:
Temporary disability is understood as the loss of the partial or total capacity of a worker to perform his work for a certain period of time. The indemnity that the company is obliged to pay in this case is the full salary of the worker until he/she recovers and is able to perform his/her work, as established in article 491 of the LFT.
This is the most common work accident indemnity, where the worker will receive his salary calculated from the first to the last day of his incapacity. However, if the incapacity extends for more than 3 months, the worker or the company may request a medical evaluation to determine if the employee can be reintegrated to his occupation.
This evaluation can be performed every 3 months, but if the doctor determines that the employee cannot fully recover, the employee will be declared permanently disabled, either partially or totally.
It is important to clarify that according to articles 484, 485, 486 of the LFT, the salary calculated for the indemnity, in any type of disability, cannot be less than the minimum wage in force or more than twice the minimum wage.
Partial permanent disability is the reduction of the worker’s capabilities due to the fact that he/she is unable to continue working. In this case, the indemnity will be a percentage of 1095 days of the salary that the worker received, as established in article 492 of the LFT.
The percentage is established in the permanent disability valuation table. For example, in case of total blindness it will be 100% while in case of amputations it will range from 60% to 80%.
Total permanent disability is the complete loss of a person’s ability to perform his or her work. The compensation in this case will be 1095 days of the salary received, article 495 of the Federal Labor Law (LFT).
Such compensation must be granted to the worker without any discount or deduction from the wages received during the period of incapacity. We must remember that the calculated salary cannot be less than the minimum wage or double the minimum wage.
Articles 500 to 504 of the LFT establish that in case of death or disappearance derived from a delinquent act, an indemnity of 5,000 days of salary must be paid, taking into account the maximums established in articles 484 to 486 of the LFT.
In case of death of the worker or after 72 hours of his disappearance, an investigation will be carried out to determine who were the economic dependents and also the beneficiaries of the compensation.
If you were a victim of an accident at work and the company does not want to be responsible or requires a lawsuit for unjustified dismissal, contact us. At LEX & CO we are labor lawyers, we have more than 30 years of experience in labor accident lawsuits and we can help you obtain the fair payment for workers’ compensation and disability that you require to deal with possible sequels.
Carlos Figueroa Rodríguez, attorney at law at Lex & Co. He has more than 10 years of experience in specialized cases involving medical malpractice and insurance claims. He is a graduate of the Universidad Anáhuac and has a Master’s Degree in Constitutional Law and Amparo from the National Bar Association. He also has a Doctorate in Juridical Sciences from the UCI Mexico. Professional license 6577215.