Insurance of an employee against accidents in the performance of his labor (official) duties

 

Plaintiff T-betov A.Zh., who was found to have lost his ability to work as a result of health damage at work, appealed to the court to the defendants Kazakhmys Corporation LLP and BTA Bank Life Insurance Subsidiary BTA Life JSC with a claim for joint recovery of the amount of damage compensation for the period from May 19, 2015 to July 19. 2015 in the amount of 134,864 tenge for causing harm to the life and health of an employee in the performance of his work duties, He also asked the defendants to oblige the plaintiff to compensate for the damage caused by an occupational disease due to loss of professional ability in the amount of 29%, from July 19, 2015 to May 19, 2016 and further in the case of a re-examination. The initial claim for a one-time insurance payment in the amount of 500 monthly calculation indices for 2015 or 991,000 tenge was asked to be left without consideration.

By a ruling of the Zhezkazgan City Court of the Karaganda region dated September 03, 2015, the claim of T-betov A.Zh. to recover a one-time insurance payment in the amount of 500 monthly calculation indices for 2015 or 991,000 tenge was left without consideration.

The claim was partially satisfied by the decision of the Zhezkazgan City Court of the Karaganda region dated September 03, 2015. A sum of 134,864 tenge was recovered from the defendant Kazakhmys Corporation LLP in favor of T-betov A.Zh. in compensation for damage for lost earnings in the period from May 19, 2015 to July 19, 2015. The court ordered Kazakhmys Corporation LLP to make monthly payments in favor of T-betov A.Zh. in compensation for lost earnings from July 19, 2015 to May 19, 2016, as well as in case of a re-examination. In the lawsuit, T-betova A.Zh. The claim for recovery of the insurance payment was refused to JSC "BTA Bank's Subsidiary Life Insurance Company "BTA Life".

In the appeal, the representative of the defendant Kazakhmys Corporation LLP, B-ieva D.Sh., disagreed with the court's decision and pointed out that it follows from the Accident Act No. 27 dated March 12, 2015, that the accident with T-betov A.Zh. occurred on June 28, 2013. In this regard, the plaintiff is subject to the insurance contract no. D1210- 190931-016540, which was valid from December 28, 2012 to December 28, 2013.

In such circumstances, the insurance payment to T-betov A.Zh. must be made by the insurer who has concluded a compulsory insurance contract, during which the plaintiff's occupational disease has been established. He asked the court to change the court's decision and to refuse T-betov A.Zh.'s claim to Kazakhmys Corporation LLP for compensation for damage caused by an occupational disease and recovery of insurance benefits caused by damage to health, collecting the amounts presented from the defendant JSC BTA Bank's Subsidiary Life Insurance Company BTA Life. During the appeal hearing of the case by the Karaganda Regional Court, it was established that according to the conclusion No. 217 on occupational disease dated June 28, 2013, the plaintiff T-betov A.Zh. for the first time, the occupational disease "Chronic obstructive bronchitis of dust etiology, remission phase. Emphysema of the lungs. Respiratory failure of stage 0 (zero)." The disease is occupational, primary.

According to the conclusion No. 170 of the expert occupational pathology commission dated September 10, 2014, to the plaintiff, T-betov A.Zh. the previously identified occupational disease is "Chronic obstructive bronchitis of dust etiology, remission phase. Emphysema of the lungs" is confirmed. However, respiratory failure has already been established in the 1st (first) stage. It is contraindicated to work in conditions of exposure to dust, gases, hypothermia and physical hypothermia. The patient is referred to the ICEC to determine the loss of professional ability to work.

Despite the occupational disease identified in 2013-2014, the employer of Kazakhmys Corporation LLP drew up an act on occupational disease only on March 12, 2015, where the degree of fault of the employer was determined – 100%, the employee 0%. The date of the accident was indicated by the same employer as June 28, 2013, when T-betov A.Zh. was first diagnosed with an occupational disease.

According to paragraph 2 of Article 13 as amended by the laws of the Republic of Kazakhstan dated April 27, 2015 No. 311-V (effective May 10, 2015) of the Law of the Republic of Kazakhstan "On compulsory insurance of an employee against accidents in the performance of his labor (official) duties", the date of the accident is, when determining the 13th degree of professional loss to an employee. disability as a result of the detection of an occupational disease – the date of the conclusion of the healthcare organization providing specialized medical and expert assistance in the field of occupational pathology.

The arguments of the appeal that the date of the accident that occurred to A.T-betov should be considered June 28, 2013, were found to be unfounded, since on June 28, 2013, the employer received only a notification of an occupational disease, which established zero respiratory failure, which did not cause disability.

The conclusion of the RSE "National Center for Occupational Hygiene and Occupational Diseases", that is, a healthcare organization providing specialized medical and expert assistance in the field of occupational pathology, was issued on September 10, 2014. This date, according to the mentioned norm, paragraph 2, Article 13 of the Law of the Republic of Kazakhstan "On compulsory insurance of an employee against accidents in the performance of his labor (official) duties", should be considered the date of the accident. There was no other conclusion than evidence in the case.

According to paragraph 3) of Article 365 of the CPC of the Republic of Kazakhstan, the norms of substantive law are considered violated or incorrectly applied if the court has not correctly interpreted the law. Having established that the date of the accident was May 19, 2015, the court of first instance misinterpreted the law.

According to the ITU certificate No. 6 of the city of Karaganda, the loss of occupational disability in the amount of 29% was established on May 19, 2015, that is, after the amendments to the Law of the Republic of Kazakhstan "On Compulsory Insurance of an employee against accidents in the Performance of his labor (official) Duties" entered into force on May 10, 2015 introduced by the Law of the Republic of Kazakhstan dated April 27, 2015 No. 311-V.

In accordance with paragraph 2 of paragraph 1 of Article 19 of the Law of the Republic of Kazakhstan "On compulsory insurance of an employee against accidents in the performance of his labor (official) duties" in a new edition, compensation for damage related to the loss of earnings (income) by an employee in connection with the establishment of his degree of loss of professional ability from five to twenty-nine percent inclusive, is carried out by the policyholder in accordance with the labor legislation of the Republic of Kazakhstan.

According to paragraph 4 of Article 164 of the Labor Code of the Republic of Kazakhstan, if harm is caused to an employee related to the degree of loss of professional ability from five to twenty-nine percent inclusive, the employer is obliged to reimburse the employee for lost earnings and expenses caused by damage to his health.

According to paragraph 5 of Article 2 of the Law of the Republic of Kazakhstan dated April 27, 2015 No. 311-V "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Insurance and Islamic finance", the provisions of this Law regarding compulsory insurance of an employee against accidents in the performance of his labor (official) duties apply to cases of establishment or extension (re-examination) of the degree of professional disability of the employee that arose after the enactment of this Law.

Considering that Turmagambetov's loss of professional ability to work occurred after the release of amendments to the Law of the Republic of Kazakhstan "On Compulsory insurance of an employee against accidents in the performance of his labor (official) duties", introduced by the Law of the Republic of Kazakhstan dated April 27, 2015 No. 311-V and the degree of loss of professional ability of the victim does not exceed twenty-nine percent, the employee has T-betova A.Zh. there was a right to compensation for lost earnings and expenses caused by damage to his health, but there was no right to receive insurance payments.

In accordance with paragraph 3 of paragraph 1 of Article 19 of the Law of the Republic of Kazakhstan "On compulsory insurance of an employee against accidents in the performance of his labor (official) duties", a monthly insurance payment due to an employee as compensation for damage related to the loss of earnings (income) by an employee in connection with the establishment of the degree of professional disability from thirty to one hundred percent inclusive, carried out by the insurer.

At the same time, the date of September 10, 2014, of the accident that occurred with T-betova A.Zh., has no legal significance, since the legislator links the right to pay either lost earnings and expenses caused by damage to his health or the right to a monthly insurance payment due to the employee as compensation for damage, depending on the degree of professional ability of the victim., but not depending on the date of the accident. In the appeal, these two legal concepts are not distinguished.

Thus, when determining the degree of loss of professional ability to work to twenty-nine percent, T-betov A.J. must be reimbursed for lost earnings and expenses caused by damage to his health by the employer, Kazakhmys Corporation LLP, which is the policyholder, but not the employee of BTA Bank's Subsidiary Life Insurance Company BTA Life.

In accordance with Part 2 of Article 364 of the Civil Procedure Code of the Republic of Kazakhstan, a substantially correct court decision cannot be overturned on formal grounds alone.

Under the circumstances described, although the date of the accident was incorrectly determined by the court of first instance, it made the correct conclusion about the satisfaction of the plaintiff's claim against the policyholder Kazakhmys Corporation LLP and made the correct conclusion about the refusal to satisfy the claims against the insurer of BTA Bank BTA Life Subsidiary Company JSC.

In connection with the above, the amount of monthly compensation in the amount of 67,432 (29% of the average monthly salary of 232,525 tenge) was reasonably collected from the defendant Kazakhmys Corporation LLP in favor of the plaintiff for the period from May 19, 2015 to July 19, 2015, the amount of 134,864 tenge, as well as the obligation to produce payment until May 19, 2016 and thereafter, in case of repeated re-examination.

In accordance with Article 116 of the Civil Procedure Code of the Republic of Kazakhstan, the court reasonably allocated court costs.

In such circumstances, and due to the fact that the appeal did not provide new arguments, the appellate judicial board concluded that there were no grounds provided for in Articles 364-367 of the CPC of the Republic of Kazakhstan for amending or canceling the appealed judicial act, as a result of which the appeal could not be satisfied.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases