To which establishments does the Workmen Compensation Act apply?
Workmen Compensation Act applies to people employed in mines, factories and construction sites etc which are typically known for hazardous day job. Basically, the act covers those establishments which are not registered under Employees’ state Insurance Act (ESI Act). Generally, establishments with lesser number of workers (less than 20 in number) are not registered under Employees’ state Insurance Act. In case, any employer or an establishment who fails to register themselves under ESI Act are also required to pay compensation to their employees under Workmen’s compensation act.
When is an employer liable to pay compensation?
As per the guidelines of Workmen Compensation Act, an employer is liable to pay compensation to their employees and to their families in case of work-related injuries which may result in disability or death. This applies only when the person gets injured during work hours and when he was engaged in work. Disability refers to permanent total disability, permanent partial disability, temporary total disability and temporary partial disability. Disability can take away the earning capacity of the person.
Who is the commissioner?
As per the Section 20 of Workmen’s Compensation Act. 1923, commissioner for workmen compensation is referred as any person appointed by the state government by notification in the official gazette. The state government may appoint any of the below as commissioner for workmen’s compensation-
- The one who is or has been a member of the State Judicial Service for the period of more than 5 years
- The one who is or has been a pleader or an advocate for more than 5 years
- A gazetted person having an educational qualification in human resource development, personnel management and industrial relations with an experience of more than 5 years.
What is meant by compensation?
Compensation is the monetary payment by the employer to employee for the loss due to injury. This excludes the salary, dearness allowance, travel allowance and any other benefit that could be paid under the normal course of employment. The term ‘compensation’ under workmen’s compensation act is specifically limited to the compensation or remuneration granted to employee for the job-related injuries suffered during the course of work which may result in permanent or temporary disablement or death of an employee.
Who can be nominated as the employee's beneficiary?
Employee can nominate his dependants as beneficiary. Term ‘Dependants’ refers to any relative of the employee who is wholly or partly dependant on his earnings for daily necessities. If employee nominates multiple beneficiaries, benefits are paid out as per the allocation mentioned by the employee. Below are the eligible dependants who can be nominated as the employee’s beneficiary-
- A widow
- A minor son (legitimate/adopted)
- An unmarried daughter (legitimate/adopted)
- A widowed mother
- Parents of the diseased
- Paternal grandparents
- Widowed sister or a minor sibling
- A widowed daughter-in-law
- An orphaned grandchild
- A minor child of a deceased son
What is ‘Sufficient Reason’?
Under Workmen’s Compensation, all claims are to be made within the specified time period of the occurrence of the incident, death or disability. Within a stipulated time, the notice must be given to employer on the occurrence of the incidence. However, the claim can be honoured if ‘sufficient reason ‘is given to the commission for the delayed or failure of notice. For example, a person may be exposed to risk of contracting an occupational disease which are inherent in the specific job. Employee suffers an accident in the course of employment and gets treated or operated multiple times. If the employee stays under treatment for more than 2 years, then the delay for the notice is considered to have a ‘sufficient reason’.
Who is the managing agent?
Under workmen’s compensation insurance policy, managing agent refers to any person or an individual who has been appointed with the whole purpose of representing another person’s business or trade. However, individual managers and subordinate to an employer is not considered as managing agent.
What if the employee was hurt at work, and the employer does not have worker's compensation insurance?
Employer is liable to pay the compensation in case employee is hurt at work and that specific injury results in disability or death of an employee. Worker’s compensation insurance takes care of the expenses and large compensation amount in case of employee meets with any unfortunate event. Specifically, for jobs that are hazardous in nature such as manufacturing, mining etc. However, in India worker’s compensation insurance is compulsory for every establishment under the Workmen’s Compensation Act, 1923.
What if the worker fails to file a claim for workers' compensation?
Its employee’s duty to send a notice of the accident to the Commissioner and the employer in a prescribed format within a stipulated time limit on occurrence of an incidence. If worker fails to give notice, commissioner may not pay out the compensation except for below cases-
- Worker’s failure to give notice was due to a sufficient cause
- Demise of an employee while he was engaged in work during the working hour.
- Employer has a knowledge about time of occurrence of an accident
Does the employee need a workers' compensation attorney?
Worker’s compensation attorney’s assistance may be desirable to get the maximum possible benefits and moreover for the complicated cases. Payment to attorney will be deducted from the benefits payable to the claimant worker. An experienced worker’s compensation attorney will look out for your best interest as an employee claiming for compensation.
Can the insurance company be fined for not paying the benefits on time? How much? Who gets the money?
In case insurance company is objecting the claim, then it should notify the board within a stipulated time limit stating the reason in specific. However, insurance company is supposed to pay the compensation within 30 days of filing the claim. If the time exceeds, insurance company pays the compensation along with interest depending on the terms of the policy taken. As per workmen’s compensation act, in case employer does not accept the extent of compensation, they need to first compensate to the extent of responsibility that they accept. Commissioner can direct the employer to pay the compensation along with penalty in case of any delay. That means employer is liable to pay the penalty not the insurance company.
What are the necessary conditions required to receive the disability compensation?
Worker is eligible to receive compensation for disablement caused due to any injury while he was engaged in work during working hours. Amount of compensation is decided depending on the extent of disability. Disablement can be of below type-
- Permanent total disablement: Person becomes incapable to do any kind of job permanently
- Permanent partial disablement: partial disability that reduces the persons capacity to do a similar kind of job permanently.
- Temporary Disability: Injury may also result in disability that reduces or take away person’s capacity to work temporarily. This can be partial or total disability.
Who is eligible to receive the benefits provided by this act?
A person recognized as ‘workmen’ under the act are eligible to receive the benefits. Below are considered as workmen under the Act-
- Worker has to be employed in an activity listed in schedule II of the Act. Workers prone to occupational diseases as mentioned in the schedule III of the Act.
- Worker engaged in the employer’s trade or business and the casual worker
- Workers employed in the capacity relating to the motor vehicle such as mechanic, cleaner and driver etc.
If the employee is injured on the job and has to go to the hospital for treatment, does the employer take care of the expenses?
Employer needs to take care of the expenses if person has to be rushed to the hospital for any job-related injury. If the worker gets injured on job, its becomes employer’s duty to do the following-
- Immediately provide the first aid medical treatment along with taking care of any medical cost associated with the first aid medication.
- Employer must report the injury along with the description of an incidence in its record. If the employer has workmen compensation insurance policy, he needs to inform the insurer within 48 hours of the incidence in a prescribed way as required by the insurer. Employer or a worker reporting the injury to the insurer may have to submit the details such as employer details, hospital details along with complete description of injury etc.
Is it necessary for the worker to retain an attorney?
Necessity to retain workmen compensation attorney depends on the complexity of the case and severity of the injury. In case of minor job-related injury and the situation is uncomplicated to receive the compensation, then worker can represent himself without any assistance of attorney. On the other hand, complex cases necessitate the worker to retain an attorney to receive prompt and fair compensation from employer and insurers end. Below are some of the cases that may necessitate worker to hire an attorney for claiming workmen compensation-
- Severe injuries that needs surgery to be done.
- Injury resulting in permanent total or partial disability which takes away the ability to work
- In case of denial of benefits
- Worker is unaware of the claim related process and needs an expert to work in his interest.
The employee has been approached to reconsider claim settlement, what steps can be taken?
If the employee has been approached to reconsider claim settlement, then he can think of settling for a negotiated amount. As per the Workmen’s compensation law, employee can go for settlement through a waiver agreement or a stipulation agreement. In both cases, settlement can be negotiated between the claimant and the insurer. Both the employee and the insurer must agree to the terms of the agreement. However, stipulation agreement is subjected to modification. Whereas, terms of waiver agreement cannot be modified once its approved by the Board.
Can the employee choose any doctor for the treatment of an on-the-job injury?
Normally, once the on-the-job injury is reported to the employer, he may require an employee to undergo a medical examination with a qualified medical practitioner referred by employer. However, if employee is not satisfied with the certificate and the treatment provided by the employer’s medical practitioner, he can choose any doctor for the treatment of an injury. Employee needs to produce certificate from his doctor containing all the details related to injury such as percentage of disability suffered and the nature of disability (permanent or temporary). If there is a difference in certificate provided by both doctors, it’s up to the insurer’s claim department to decide which one to rely on while determining the compensation amount.
What is fatal accident and non-fatal accident?
- Fatal accident is an accident that result in death of an employee.
- Non-fatal accident is an accident in which employee survives but the accidental injury results in disablements as mentioned below-
- Permanent total disability which takes away employee’s capacity to earn in any kind of work permanently
- Permanent partial disability which takes makes employee incapable for all similar types of job which he was engaged in at the time of accident
- Temporary disability which can be total or partial. This makes employee unable to work temporarily on any kind of job.
What is limitation period for filing an application?
There is a time limit to file any claim under workmen compensation policy. All the claims have to be filed within two years of the occurrence of an accident or injury resulting in disability or death of an employee. Employee needs to give a notice to employer within this limitation period. Commissioner may turn down the claim for compensation in case of any delay or failure of notice. However, commissioner may entertain the claim after the limitation period only if the delay or failure to give notice is due to sufficient cause.
What is the responsibility of the employer on the occurrence of the accident?
In case of an accident that occurs in the premises of an employer resulting in death or severe bodily injury, then employer should report it to the commissioner with detailed descriptions of the incident occurred. Along with reporting, its becomes employer’s duty to take immediate action to prevent the further loss and to ensure the safety measures for workforce.
Are employees working in a retail shop covered by the Act?
Yes. Though the Workmen Compensation Act is not applicable to retail shop employees in particular, it can be applied in case of death/ disablement of workman due to job-related injury when the state’s Shops and Establishment Act has a provision for the applicability of Workmen’s Compensation Act, 1923.
What if the doctor puts my employee off work or releases him/her with restrictions?
If the doctor puts your employee off work or releases him/her with restrictions, it becomes your responsibility as an employer to ensure employee is not asked do the job beyond the restrictions established by the doctor. It’s also employee’s responsibility to understand the restrictions established by his/her physician fully and to ensure not to exceed such restrictions. Also, employee needs to notify the employer once the clearance is given by physician to return to duty.
Which types of employees are covered by the Act? (part time/full time)
Employees of all type who are registered under the workmen compensation act and included in the scheduled employment under the act are covered for the benefit. The Act covers-
All the workers engaged in the employer’s trade or business. After the amendments of Workmen Compensation Act in 2000, even casual workers are also covered. However, to receive the benefit, worker should be engaged in the specific activity listed as per the schedule or in the job which can cause in occupational diseases. Contract labours are also eligible for compensation from their principle employer.
What is Temporary Disablement?
It’s a disability of short term nature wherein employee will not be in capacity to work till he recovers. This may be total or partial disability which is of temporary nature. In this case, total disability refers to any disablement of temporary nature that incapacitates the worker to perform a job of a kind that he was engaged in at the time of occurrence of accident. Partial disability refers to any disablement of temporary nature that reduces the earning capacity of the worker in any similar kind of job in which he was engaged in at the time of accident. In case of temporary disablement, compensation will be decided on the basis of how long the temporary disablement will last.
What is Permanent Partial Disablement?
Permanent partial disablement is a disability of a permanent nature that reduces the earning capacity of the workman to perform a job that he was capable to undertake at the time of occurrence of incidence that resulted in disablement. For example, a person operating a machinery in a manufacturing unit got his finger cut while performing his duties. This injury results in permanent partial disablement which reduces his capacity to do any work of similar kind.
What is Permanent Total Disablement?
Permanent total disablement is any disability of permanent nature that takes away the capacity of a workman from performing any kind of work. This means, a person will no longer be able to perform any work due to injuries that resulted in disablement. Losing an eyesight due to an occupational disease can be an example for permanent total disablement
What is fatal injury?
Fatal injury is a personal injury that results in death of an injured workman. For example, a workman blasting a hole in rocks with the dynamite got his head injured due to an explosion. And that brain injury may result in demise of a workman which is referred to as a fatal injury.
Can an employee recover workers' compensation benefits, no matter what he or she did, because it is a "no-fault" system?
No. Compensation benefit can be claimed only when the employee gets injured while engaged in the work in the course of his employment which results in disablement or death of the workman. Though all the job-related injuries are covered under workmen’s compensation act, it does not entertain any intentional act of misconduct by an employee and the injuries inflicted due to personal reasons by a workman. Not adhering to safety measures, in toxification, alcohol consumption and disobedience on duty is also excluded.
Is medical care provided in the case of an accidental injury even when no claim is made for benefits?
Yes. It’s important to provide medical care in case of an accidental injury even when there is no claim placed for benefits. Medical care and appropriate treatment to the injured worker needs to be provided by the employer as a social security measure.
What if the employer declares bankruptcy?
In case, employer has availed workmen compensation insurance policy by entering into an agreement with the insurance company, then at the later date the employer becomes insolvent, any accident that results in injury or death of workmen will be compensated by the insurance company. Employer’s obligation to pay will be transferred to insurance company and they will be treated as the employer of worker for the purpose of paying compensation. If the insurer’s liability is less than that of the original employer, then the employee can claim the remaining amount of benefit from the insolvency proceedings.
Do contract labourers receive the benefits under the act?
Yes. Contract labourers are eligible to receive the benefit from the principle employer under the act. In case, an establishment gets its part of work done from a contractor on a contract basis, labours employed by that contractor is referred as contract labours. Such labours get injured while working for an establishment, then the contractor is not liable to pay the compensation. Obligation lies on the principal employer of the contract labourers to pay for the compensation.
Who is covered in this policy?
Workmen’s compensation policy covers the employees of those establishments that fall under the purview of the Workmen’s Compensation Act, 1923. ‘workmen’ under the act is referred to as the employees who engage in the employer’s trade or business. After the amendments in the act, even casual workers are also covered. However, to receive the benefit under the policy, employee should be employed in an activity that is listed in the schedule of the Act and injury has occurred while working in the course of employment. Contract labours and persons employed in any capacity relating to motor vehicle are also covered in the policy.
Will the covered for any injuries outside India?
Injuries outside India is covered only if the employee was recruited for any work abroad by his employer. Also, it requires that the employee who is employed outside India needs to be employed in an activity as is specified in the schedule.
In case a worker dies due to an accident, who is entitled to compensation and how much compensation should be paid?
In case a worker dies due to an accident, compensation will be paid to his dependants. Dependents referred to as a relative of worker who is wholly or partly dependent on worker’s income for their daily necessities. Dependants can be-
- A widower
- A minor son
- An unmarried daughter
- A widowed mother
- Parents other than a widowed mother
- A minor sibling or an unmarried sister
- A widowed daughter-in-law
- A minor child of pre-diseased son
- An orphaned grandchild
- Paternal grandparents if parents of the deceased worker are not alive
Compensation payable to dependants is an amount equivalent to fifty percent of diseased worker's monthly salary multiplied by a 'relevant factor' as mentioned in the schedule of Workmen Compensation Act. Minimum compensation in case of demise is nothing less than Rs. 120000/-.
For how long does the cover extend?
As per Section 10 of Workmen Compensation Act,1923, an injured worker should place a claim within two years of occurrence of an accident. Insurance company may not be able to extend the cover beyond this period unless the delay or failure to claim has a sufficient reason. For example, a claimant suffers a multiple injury due to occupational disease and he remained under treatment for more than 2 years. In such case, a claim may be entertained as the delay or failure to claim is due to sufficient cause.
Is the employer liable to pay compensation in case of ‘Occupational Disease'?
Yes. If the worker is employed in an occupation which has an exposure to hazardous working environment, and he contracts any disease due to the work atmosphere, such occupational diseases are treated as an ‘accident’. Employer of such workers affected by occupational diseases are liable to pay compensation. Some of the examples for occupational diseases are skin cancer caused by mineral oil, pitch, tar or any of these substances, cataract due to infra-red radiations, hearing impairment caused due to noise etc. Occupational diseases are listed in the section III of Workmen’s Compensation Act.
If an employee is receiving workers' compensation benefits, but returns to work, does the employee still get to receive workers' compensation benefits?
No. when an injured worker who was receiving workers’ compensation benefits resumes back to his job, his compensation benefits are most likely get discontinued provided his wages is equal or more than his normal wages which he was earning prior to the injury. However, in case he is earning wages less than his wages prior to the injury, then he will continue to receive the compensation benefit and that is likely to be lesser in amount.
In case of injury how is compensation to be calculated?
Calculation of compensation in case of injury resulting in disablement depends on the degree of disability-
- Total permanent disablement – 60% of the monthly salary multiplied by relevant factor or Rs.140000/- whichever is more
- Permanent partial disablement -calculation is done based on the percentage of loss of earning capacity of the injured worker
- Temporary disablement – compensation is calculated and paid accordingly on the basis of how long a disablement can last.
The insurance company sent the employee a notice for doctor's examination. Is it mandatory for him to go? Who takes care of the expenses in this case?
Yes. Its mandatory. Injured worker should go for such medical examinations as required by the insurance company unless he is in an impossible condition. In such cases, an employer may arrange for medical tests to be conducted at residence of an injured worker. If an employee refuses to submit himself for the medical examination, he may have to lose on the compensation benefits. Expenses of medical examination will be borne by either an insurer or by an employer.
If my employee hires an attorney, who pays for it?
If employee hires a workmen compensation attorney, amount payable to an attorney will be deducted from his compensation benefit.
Are prescription drugs and medications covered under the law?
Yes. The workmen compensation law covers prescribed medications and drugs by a qualified medical practitioner. Insurer requires injured employee or a claimant to submit a certificate from attending doctor or a physician along with his prescriptions and the purchase bill of such prescribed medications and drugs.
What is the compensation for Temporary Disablement?
Compensation payable in case of temporary disablement is equivalent to 25% of injured worker’s wages. And the compensation shall be made at half monthly intervals. In case of temporary disablement, payment will be made on 16th day from the date of injury or disablement provided such disability lasts for than 28 days. After ascertaining how long a temporary disablement can last, employer will make the payment after the expiry of 3 days if the temporary disablement is likely to last within 28 days from the date of injury.
What is the compensation for Permanent Partial Disablement?
In case of permanent partial disablement, amount of benefit is a percentage of compensation payable under permanent total disablement. And the percentage is estimated on the basis of extent of reduction in earning capacity of the injured worker. That means compensation is estimated on a pro-rata basis in correspondence with the percentage loss in earning capacity. Let’s say, injured worker’s percentage of disability is 30% as stated by the medical practitioner, then the compensation payable will be 30% of compensation for permanent total disablement (60% of monthly wage* relevant factor). Relevant factor is multiplier based on age which is defined in Schedule IV of the Workmen Compensation Act, 1923.
What is the compensation for Permanent Total Disablement?
If a workplace injury results in permanent total disablement, then the injured worker is entitled for compensation as mentioned below
60% of the monthly wage multiplied by relevant factor (based on the age of injured worker) or Rs. 140000/- whichever is more.
It’s important to note that the maximum monthly wage allowed for calculating compensation under the workmen compensation Act is Rs.8000/-.
What is the compensation for fatal injury?
Compensation is 50% of monthly wage multiplied by relevant factor (as per the schedule of the act for his age) or Rs. 120000/- whichever is more. Funeral expenses up to Rs. 5000/- will also be paid.
However, if injury results in death of an employee, employer needs to deposit the amount of compensation with the commissioner for workmen compensation. Amount will then be allocated to dependants by commissioner.
Under what circumstance is the compensation not payable by the employer?
Under below circumstances, compensation is not payable by the employer-
- Injury is caused due to an employee not adhering to safety guidelines and mechanisms
- Injury was caused when worker was performing his duty under the influence of alcohol or any other intoxifying drugs
- In case of any injury that has occurred due to nuclear perils or wars.
- An injury that does not lead to death or any kind of disablement after 3 days of an accident is not covered for compensation
- Injury due to intentional act of misconduct and self-inflected injuries
- Injury caused due to employee’s disobedience on duty
Who receives the medical bills?
In case of compensable claims, medical bills are received by the workers compensation insurance company or a self-insured employer. It’s important to mention at the hospital that the specific injury is workplace related so that medical bills are directly sent to insurer or employer. Medical bills and records should have every detail about injury along with clear description to receive the claim.
Are there any increases or decreases made in the rate of benefits payable?
In case of compensation payable for temporary disablement on a half monthly basis, there is provision for commissioner to review the amount and make changes in the rate of benefits payable. With the medical certificate issued by the qualified medical practitioner, one can apply for review to the commissioner. Depending on the condition of injured worker, commissioner’s review may result in increase or decrease in rate of benefits.
What is the basis of calculation of the amount of compensation?
Amount of compensation payable is calculated on the basis of monthly wages drawn by the injured worker at the time of his injury. In case there is no evidence to produce in support of amount of monthly wages drawn, minimum wages applicable to the claimant worker at the time of injury is taken into consideration for the purpose of calculating amount of compensation.
What is the amount of compensation?
Amount of compensation is a total monetary benefit (excluding other remuneration) payable in case of employment injuries sustained during the course of work. Amount of compensation is payable on below eventualities-
- Death- compensation on death of an employee is 50% of monthly wages*relevant factor or Rs. 120000/- whichever is higher.
- Permanent total disability – compensation is 60% of monthly wages*relevant factor or Rs.140000/- whichever is higher
- Permanent partial disability – compensation is calculated on pro-rata basis on the extent of loss in earning capacity of worker
- Temporary disablement- 25% of the monthly wages every half month.
How is the sum insured calculated?
Ideally, sum insured should represent the estimated earnings of the employees for the policy period. Earnings includes-
- Wages, salaries, board/lodging, overtime or any other perquisites
- Travelling allowances are not be included
- Pension and provident fund deductions are not to be accounted
- No deduction for tax deducted at source