In addition to receiving disability benefits, the victim has the right to receive lost earnings.

 

Plaintiff B-nov K.B. appealed to the Zhezkazgan City Court of the Karaganda region to the defendant of the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" with a claim for compensation for damage caused by damage to health related to the performance of work duties. The claims are motivated by the fact that as a result of the performance of official duties, he received a labor injury. He requested to recover from the defendant compensation for damage caused by injury to health in the form of lost earnings, in a lump sum for the period from May 01, 2013 to May 01, 2015 in the amount of 1,226,400 tenge, with an obligation to continue making this payment for the period from May 01, 2015 to February 02, 2017 monthly in the amount of 51,100 tenge.

By the decision of the Zhezkazgan City Court of the Karaganda region, the claim of B.K.B. against the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" for damages was denied.

In the appeal, B-nov K.B., disagreeing with the court's decision, indicated that the defendant was a participant in compulsory social insurance. The court did not establish that "one" of the three types of benefits is the payment of a type of social insurance such as "in case of disability." It has not been established that payments have been made and are being made to him, who has lost 79% of his total working capacity. The Court of First instance did not apply the applicable law. In addition, the court of first instance did not take into account the decision that entered into force on 07/02/2012. He asked to cancel the decision and satisfy the claims in full.

The Appellate Judicial Board of the Karaganda Regional Court concluded that the court's decision was subject to change on the following grounds. The case materials established that B-nov K.B., while working as a driver of a specialized fire department on September 13, 2011, received a labor injury in the line of duty. Act No. 7 on industrial accidents, approved on September 30, 2011, established 100% of the employer's fault.

According to ITU conclusion No. 3 dated January 19, 2012, with corrections dated January 19 and June 14, 2012, Bashenov K.B. was diagnosed with disability group 2, with 85% loss of professional ability to work. On February 02, 2015, during the next examination, Bashenov K.B. was again diagnosed with disability group 2, with the degree of loss of general disability already determined. 79%, for a period until February 02, 2017.

In accordance with Article 937 of the Civil Code, if a citizen is injured or otherwise injured, the earnings (income) lost by the victim, which he had or definitely could have had, are subject to compensation.

Earlier, by the decision of the Zhezkazgan City Court of July 02, 2012, compensation for damage in the form of lost earnings for the period of disability was already collected from the employer in favor of the employee, which was fully implemented.

At the same time, the board did not agree with the denial of the claim of K.B. Bashenov on the grounds that the plaintiff is listed as a recipient of three types of social benefits, one of which is paid to him from the state social insurance fund, since receiving benefits is not a reason for refusing to satisfy claims.

According to paragraph 1 of Article 938 of the Civil Code, the amount of lost earnings (income) to be reimbursed is determined as a percentage of the average monthly earnings (income) before injury or other damage to health or before the onset of disability, corresponding to the degree of loss of professional disability by the victim, and in the absence of it - general disability.

According to the Law of the Republic of Kazakhstan dated April 25, 2003 No. 405 "On compulsory social insurance", one of the types of compulsory social insurance is "in case of disability". This mandatory type of compulsory insurance is aimed at the social protection of citizens provided by the state. Damage caused to the health or life of an employee in the performance of work duties is compensated by providing compulsory social insurance against accidents and diseases. In this case, the social payment in case of disability is assigned for the entire established period of disability. It is assigned regardless of whether the work has been terminated or continues and whether they receive a salary. Accordingly, in addition to receiving disability benefits, the victim has the right to receive lost earnings. In addition, general ability to work is characteristic of every employee, as it simply implies a person's ability to perform any kind of work, while professional ability to work implies a person's ability to perform work in the profession in which he worked before getting injured.

Consequently, the lost earnings are subject to compensation for the entire time the employee is on sick leave, as well as in the event of partial or complete disability.

71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

During the consideration of the civil case between the same parties and the decision of July 02, 2012, it was found that the average salary of the plaintiff is 64683.9 tenge. Considering that Mr. K.B. has 79% of the loss of total working capacity, a sum of money in the amount of (64 683,9x24: 100)x79) = 1,226 406 77 tenge is to be recovered in his favor as compensation for lost earnings (income). Accordingly, the monthly payment is 5,1100.28 tenge.

According to the Decree of the President of the Republic of Kazakhstan No. 549 dated 07.02.2001, using the arithmetic method of rounding, the amount is set at 1,226,407 tenge. By virtue of article 164 of the Labor Code, if there are insurance payments, the employer is obliged to reimburse the employee for the difference between the insured amount and the actual amount of damage. As established by the court of first instance, the plaintiff receives insurance payments under the Law "On Compulsory Social Insurance" and disability benefits from the state.

By virtue of Part 2 of Article 937 of the Civil Code, when determining lost earnings (income), disability benefits awarded to the victim due to injury or other damage to health, other types of benefits awarded both before and after injury, as well as pension payments are not counted as compensation. The compensation for harm does not include the earnings received by the victim after injury to health. Taking into account the specified norm, the benefits assigned to the victim due to injury or other damage to health, disability, are not counted.

At the same time, social payments from the state social insurance fund are not considered benefits, since payments are made from the funds of the social insurance fund and only to persons participating in the compulsory social insurance system, while benefits are paid from the budget to persons participating and not participating in the compulsory social insurance system.

Taking into account the above, the decision of the Zhezkazgan City Court of the Karaganda region of June 10, 2015 in this case was changed and canceled in terms of the refusal to satisfy the claims of B-nova K.B. with the adoption of a new decision on partially satisfying the claims. From the defendant of the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of B-nova K.B. The lost earnings for the period from May 01, 2013 to May 01, 2015 in the amount of 902,913 tenge were collected at a time.

The Board ordered the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" to provide B-nova K.B. monthly compensation for lost earnings, minus payments from the state social insurance fund, starting from May 01, 2015 to February 02, 2017, until the next re-examination. The appeal of B-nova K.B. was partially satisfied.

In addition to receiving disability benefits, the victim has the right to receive lost earnings.

 

Plaintiff B-nov K.B. appealed to the Zhezkazgan City Court of the Karaganda region to the defendant of the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" with a claim for compensation for damage caused by damage to health related to the performance of work duties. The claims are motivated by the fact that as a result of the performance of official duties, he received a labor injury. He requested to recover from the defendant compensation for damage caused by injury to health in the form of lost earnings, in a lump sum for the period from May 01, 2013 to May 01, 2015 in the amount of 1,226,400 tenge, with an obligation to continue making this payment for the period from May 01, 2015 to February 02, 2017 monthly in the amount of 51,100 tenge.

By the decision of the Zhezkazgan City Court of the Karaganda region, the claim of B.K.B. against the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" for damages was denied.

In the appeal, B-nov K.B., disagreeing with the court's decision, indicated that the defendant was a participant in compulsory social insurance. The court did not establish that "one" of the three types of benefits is the payment of a type of social insurance such as "in case of disability." It has not been established that payments have been made and are being made to him, who has lost 79% of his total working capacity. The Court of First instance did not apply the applicable law. In addition, the court of first instance did not take into account the decision that entered into force on 07/02/2012. He asked to cancel the decision and satisfy the claims in full.

The Appellate Judicial Board of the Karaganda Regional Court concluded that the court's decision was subject to change on the following grounds. The case materials established that B-nov K.B., while working as a driver of a specialized fire department on September 13, 2011, received a labor injury in the line of duty. Act No. 7 on industrial accidents, approved on September 30, 2011, established 100% of the employer's fault.

According to ITU conclusion No. 3 dated January 19, 2012, with corrections dated January 19 and June 14, 2012, Bashenov K.B. was diagnosed with disability group 2, with 85% loss of professional ability to work. On February 02, 2015, during the next examination, Bashenov K.B. was again diagnosed with disability group 2, with the degree of loss of general disability already determined. 79%, for a period until February 02, 2017.

In accordance with Article 937 of the Civil Code, if a citizen is injured or otherwise injured, the earnings (income) lost by the victim, which he had or definitely could have had, are subject to compensation.

Earlier, by the decision of the Zhezkazgan City Court of July 02, 2012, compensation for damage in the form of lost earnings for the period of disability was already collected from the employer in favor of the employee, which was fully implemented.

At the same time, the board did not agree with the denial of the claim of K.B. Bashenov on the grounds that the plaintiff is listed as a recipient of three types of social benefits, one of which is paid to him from the state social insurance fund, since receiving benefits is not a reason for refusing to satisfy claims.

According to paragraph 1 of Article 938 of the Civil Code, the amount of lost earnings (income) to be reimbursed is determined as a percentage of the average monthly earnings (income) before injury or other damage to health or before the onset of disability, corresponding to the degree of loss of professional disability by the victim, and in the absence of it - general disability.

According to the Law of the Republic of Kazakhstan dated April 25, 2003 No. 405 "On compulsory social insurance", one of the types of compulsory social insurance is "in case of disability". This mandatory type of compulsory insurance is aimed at the social protection of citizens provided by the state. Damage caused to the health or life of an employee in the performance of work duties is compensated by providing compulsory social insurance against accidents and diseases. In this case, the social payment in case of disability is assigned for the entire established period of disability. It is assigned regardless of whether the work has been terminated or continues and whether they receive a salary. Accordingly, in addition to receiving disability benefits, the victim has the right to receive lost earnings. In addition, general ability to work is characteristic of every employee, as it simply implies a person's ability to perform any kind of work, while professional ability to work implies a person's ability to perform work in the profession in which he worked before getting injured.

Consequently, the lost earnings are subject to compensation for the entire time the employee is on sick leave, as well as in the event of partial or complete disability.

71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

During the consideration of the civil case between the same parties and the decision of July 02, 2012, it was found that the average salary of the plaintiff is 64683.9 tenge. Considering that Mr. K.B. has 79% of the loss of total working capacity, a sum of money in the amount of (64 683,9x24: 100)x79) = 1,226 406 77 tenge is to be recovered in his favor as compensation for lost earnings (income). Accordingly, the monthly payment is 5,1100.28 tenge.

According to the Decree of the President of the Republic of Kazakhstan No. 549 dated 07.02.2001, using the arithmetic method of rounding, the amount is set at 1,226,407 tenge. By virtue of article 164 of the Labor Code, if there are insurance payments, the employer is obliged to reimburse the employee for the difference between the insured amount and the actual amount of damage. As established by the court of first instance, the plaintiff receives insurance payments under the Law "On Compulsory Social Insurance" and disability benefits from the state.

By virtue of Part 2 of Article 937 of the Civil Code, when determining lost earnings (income), disability benefits awarded to the victim due to injury or other damage to health, other types of benefits awarded both before and after injury, as well as pension payments are not counted as compensation. The compensation for harm does not include the earnings received by the victim after injury to health. Taking into account the specified norm, the benefits assigned to the victim due to injury or other damage to health, disability, are not counted.

At the same time, social payments from the state social insurance fund are not considered benefits, since payments are made from the funds of the social insurance fund and only to persons participating in the compulsory social insurance system, while benefits are paid from the budget to persons participating and not participating in the compulsory social insurance system.

Taking into account the above, the decision of the Zhezkazgan City Court of the Karaganda region of June 10, 2015 in this case was changed and canceled in terms of the refusal to satisfy the claims of B-nova K.B. with the adoption of a new decision on partially satisfying the claims. From the defendant of the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of B-nova K.B. The lost earnings for the period from May 01, 2013 to May 01, 2015 in the amount of 902,913 tenge were collected at a time.

The Board ordered the State Institution "Fire Extinguishing and Emergency Rescue Service of the Department of Emergency Situations of the Karaganda region of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan" to provide B-nova K.B. monthly compensation for lost earnings, minus payments from the state social insurance fund, starting from May 01, 2015 to February 02, 2017, until the next re-examination. The appeal of B-nova K.B. was partially satisfied.

 

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