Workplace accidents and occupational diseases in Belgium: compensation, procedure and rights

A workplace accident or an occupational disease affects not only your health but also your income. As an employee in the private sector, you are entitled after a workplace accident to compensation from your employer’s occupational accident insurer. For an occupational disease, compensation is paid through Fedris, the Federal Agency for Occupational Risks. This article explains when there is an accident at work or an occupational disease, what compensation you receive and what you can do if you disagree with the decision.

What is a workplace accident?

A workplace accident (arbeidsongeval / accident du travail) is an accident that happens to an employee during and as a result of the performance of their employment contract and that causes an injury (Article 7 of the Occupational Accidents Act of 10 April 1971). Accidents on the way to and from work are also covered. The victim must establish a sudden event and an injury, and prove that the accident occurred during the performance of the employment contract. Two legal presumptions then work in the victim’s favour:

• an injury found together with a sudden event is presumed to have been caused by an accident;
• an accident that occurs during the performance of the employment contract is presumed to have occurred as a result of that performance.

The insurer can rebut these presumptions, but must then prove its case. The sudden event need not be an exceptional occurrence: even an ordinary movement at work can suffice, provided it may have caused the injury.

Contractual and statutory staff in the public sector fall under a separate scheme, the Act of 3 July 1967. The principles are similar, but the procedure and the bodies involved differ.

Reporting a workplace accident: what should you do?

Report the accident to your employer immediately and have your injuries recorded by a doctor as soon as possible. Your employer must report the accident to its insurer within eight days. If it fails to do so, you can file the report yourself, or your trade union or lawyer can do so on your behalf.

Take down the names of witnesses straight away and keep all medical records. Even if you are not immediately unfit for work, reporting the accident matters: injuries sometimes only worsen later. After the report, the insurer decides whether it accepts the accident; keep all correspondence, as it will be the starting point for any challenge.

What compensation do you receive after a workplace accident?

• Medical expenses: the insurer reimburses the medical costs resulting from the accident on the basis of the national health insurance rates (RIZIV / INAMI). In principle, you are free to choose your doctor and hospital.
• Temporary incapacity for work: as long as you are fully unfit for work, you receive a daily allowance of 90 per cent of your average daily pay. The basic pay on which this allowance is calculated is, however, capped by law. If you partially return to work, you will receive an allowance equal to the difference between your pay before the accident and the pay you have earned since returning (Article 23 of the Occupational Accidents Act).
• Permanent incapacity for work: if lasting effects remain after recovery, the insurer sets a percentage of permanent incapacity at the time of consolidation, when your condition has stabilised. You then receive an annual allowance proportionate to that percentage and to your basic pay.
• Death: in the event of a fatal workplace accident, the surviving dependants are entitled to an allowance for funeral costs and to an annuity.

The percentage of permanent incapacity is not a purely medical assessment. It reflects the loss of your economic value on the labour market, taking into account factors such as your age, education, professional qualifications and ability to adapt. Two people with the same injury may therefore be awarded a different percentage.

The agreement with the insurer and review

For permanent incapacity, the insurer proposes a draft agreement. Do not sign it without checking: the percentage determines your compensation for years. If necessary, have the medical findings reviewed by your own doctor.

The agreement must be ratified by Fedris. If your injuries later worsen or improve, the compensation can still be revised within three years of the ratification of the agreement. Keep a close eye on that period: once it has expired, the options for obtaining compensation for a deterioration are very limited.

Disagree with the insurer? The labour court

If the insurer refuses to recognise the accident, or if you disagree with the percentage or the compensation, you can bring the dispute before the labour court (arbeidsrechtbank / tribunal du travail) for the place where you live (Article 628, 14°, of the Judicial Code). The limitation period is three years. So do not wait too long before seeking advice.

In a medical dispute, the court usually appoints a medical expert. The expert examines you, and each party may be assisted by its own doctor. The expert’s report carries great weight, but the court is not bound by it.

What about non-pecuniary damage?

Compensation for a workplace accident is calculated on a flat-rate basis: non-pecuniary damage, such as pain or disfigurement, is not compensated. In addition, the employer, its agents and its employees, such as your colleagues, in principle enjoy civil immunity.

That immunity does not apply in every case, for example not in the event of intent, an accident on the way to or from work, or a road traffic accident. In those cases, and whenever a third party is liable, such as a motorist who hits you on your way to work, you can sue the liable party under the ordinary rules of civil liability. You then claim the damage not covered by the occupational accident insurance, such as non-pecuniary damage.

Occupational diseases: recognition by Fedris

An occupational disease is a disease resulting from exposure to an occupational risk. In the private sector, Fedris recognises and compensates occupational diseases under two systems:

• the list system: if the disease appears on the official list of occupational diseases and you were exposed to the risk in your work, the link with your work is presumed;
• the open system: if the disease is not on the list, you must prove that the exposure at work is the direct and determining cause of the disease.

The application is made using Fedris forms, including a medical section completed by your doctor. You can challenge a Fedris decision before the labour court within one year of notification of the decision (Article 53 of the Occupational Diseases Acts, coordinated on 3 June 1970).

Frequently asked questions

I had an accident while making a detour on my way home. Does that count as an accident on the way to or from work?

That depends on the circumstances. The commute is the normal route between your home and your workplace, but a minor or justified detour may still be covered. This requires an analysis of the specific case.

My employer was not insured. What now?

Even then you are not unprotected: in that case Fedris steps in and recovers its expenses from the employer.

Can my employer dismiss me after a workplace accident?

There is no general ban on dismissal during a period of incapacity following a workplace accident. However, the dismissal must not be manifestly unreasonable or discriminatory, for example on grounds of your state of health or a disability. Your rights against the occupational accident insurer also remain intact. Read more about notice and challenging a dismissal in our article on dismissal and notice periods in Belgium.

I am self-employed. Am I covered by occupational accident insurance?

No. The Occupational Accidents Act protects employees and certain categories of persons treated as employees. As a self-employed person, you rely in the event of incapacity on the sickness and invalidity insurance for the self-employed and on any private insurance you have taken out. If a third party is liable for your accident, you can sue them under the ordinary rules of civil liability.

Novex Advocaten is here to help

We assist victims of workplace accidents and occupational diseases in their dealings with the insurer and Fedris, during the medical assessment and in proceedings before the labour court. If you were hit by a vehicle on your way to work, also read our article on compensation for road traffic accident victims. If you have legal expenses insurance, it may cover your lawyer’s fees: see our article on legal expenses insurance.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.