Recourse claims of the Health Insurance Institute of Slovenia (ZZZS) and Pension and Disability Insurance Institute of Slovenia (ZPIZ) against Employers
Article published in Direktor magazine no. 41, May-June 2019
An employer’s failure to carry out the measures guaranteeing a safe and healthy work environment for the employees can have dire consequences for him. In addition to the compensation claims for pecuniary and non-pecuniary damages by the workers themselves, the employers face a special risk in the event of a workplace injury or sickness in the form of recourse claims of the Health Insurance Institute of Slovenia (ZZZS) and the Pension and Disability Insurance Institute of Slovenia (ZPIZ). These have been increasingly common in recent years and the amounts borne by the employers are ever greater. The problem is especially serious for the employers, because the recourse claims of ZZZS and ZPIZ are generally excluded from the general civil liability cover otherwise offered by insurance companies.
Conditions of the employers’ liability for damages
ZZZS has the right to seek compensation for the damages suffered as a result of services or benefits from the compulsory health insurance of the insured person with whom the need for them arose as the result of an illness or injury caused by their employer. By ensuring the rights of the compulsory health insurance, demanded by the occurrence of the contingency with the insured person (e.g. injury), the scope of the funds collected from the contributions of the compulsory insurance is reduced. In accordance with the general principles of insurance law, the damages shall be borne by the person responsible for them. However, ZZZS or ZPIZ will only succeed with the recourse claim if the employer defaults on executing the measures that should ensure the safe and healthy work environment of his employees and it was determined in a judicial proceeding that the stated conditions were the reason for the employee’s diminished health. An employer’s liability for damages will therefore be determined if the court decides that the employer’s unlawful conduct or failure of due action have incurred damages that are in a causal relationship with the employer’s action and the employer can be attributed the liability.
Types of damages of ZZZS and ZPIZ
The compensation that is within the rights of ZZZS to request encompasses the entirety of the costs of the medical and other services, as well as the amounts of the financial compensation paid by ZZZS. This can include the costs of the medical examinations and procedures, medication, salary compensations during temporary leave, and others. In contrast, the recourse claims of ZPIZ usually relate to the costs that have arisen due to the worker’s disability retirement as the result of a workplace injury or occupational disease, the costs of the occupational rehabilitation, and others. These costs are certainly not negligible and can sometimes amount to tens of thousands of euro.(1)
The legal regulation of recourse claims by ZZZS and ZPIZ is not inconsistent with the Constitution of the Republic of Slovenia
This regulation had recently been the subject of an assessment of conformity with the Constitution of the Republic of Slovenia. The Constitutional Court in decision U-I-181/16 from 15 November 2018 assessed the contested regulation of the ZZZS and ZPIZ recourse claims from the viewpoint of free economic initiative, private property, and personal dignity and from the viewpoint of the principles of clarity and identifiability and equality before the law. The Constitutional Court did not find it to be in disagreement with the Constitution of the Republic of Slovenia.
The decision of the Constitutional Court also dispelled any doubts regarding whether the employer is only liable to ZZZS if he can be attributed with gross negligence or if the liability also applies to cases of damages arising from slight negligence. According to the National Council of the Republic of Slovenia – as the proposer of the constitutional review of the relevant rules –, this lack of clarity was created after the amendment of ZZVZZ (2), which only states negligence as the form of fault after the amendment and no longer gross negligence. However, the Constitutional Court’s position is that there can be no doubt that the term negligence encompasses both severe (gross) negligence as well as ordinary (slight) negligence, which means the employers’ liability against ZZZS remains relatively strict.
Liability of sole proprietors
The discussed regulation can be particularly unfavourable to smaller employers and sole proprietors because of the dire financial consequences. The latter can namely also be considered employers and are equally liable to ZZZS and ZPIZ as larger companies for damages caused as the result of an employee’s workplace injury or occupational disease. It should be mentioned, however, that neither ZZZS nor ZPIZ can issue a recourse claim against a self-employed person if the injured individual is the sole proprietor himself. The crucial element is not that the self-employed person is also the “employer”, but that he is concurrently the insured person and the injured party. Any kind of other regulation would have a punitive effect on the injured person.(3)
As a final note, it should be stressed that any workplace injury or occupational disease does not mean an immediate automatic “conviction” of the employer. The employer can also defend himself against the recourse claims by enforcing a reduced recourse claim due to the contribution (joint liability) of the employee in the creation of the damage, as it otherwise applies in the case of a worker’s claim against an employer.(4) There are also other ways for an employer to prevent or at least limit his liability for incurred damage. Here, it is important to stress that it is not enough for the employer to only inform the employees about the safe measures for safe work practices, but he must also monitor the implementation of these measures and sanction them; most importantly, his actions in this area must encourage the employees and reinforce their awareness on their importance. The employees must be trained to be able to carry out safe and healthy work practices and must be regularly scheduled to get medical examinations.
Employers are therefore especially encouraged to take an active and preventative role in recognizing the dangers and risks in the workplace and work processes and adjusting them to exclude the possibility of any harmful consequences. In the event that a workplace injury occurs despite all the preventative measures, the employers must immediately report the accident to the Labour Inspectorate of the Republic of Slovenia, whereby they should be aware that that document as well as any internal report on the workplace accident may be used as evidence in court later.
(1)The ZZZS’s 2018 annual business repost states that it collected EUR 1,708,166 from reimbursements of damages as the result of workplace injuries, injuries incurred in physical altercations, food poisoning, and other reasons in 2018, which is almost 29% more than the previous year. In addition to recourse claims for damages for workplace injuries, this amount also includes some other types of damages and it is not exactly clear what percent of that amount relates to workplace injuries.
(2) Health Care and Health Insurance Act (Official Gazette of the Republic of Slovenia, no. 9-459/92 as amended, “ZZVZZ”).
(3) Judgement of the Supreme Court of the Republic of Slovenia III Ips 61/2016 from 31 August 2016.
(4) Decision of the Supreme Court of the Republic of Slovenia III Ips 97/2013 from 14 July 2015.