Article 63 of the Social Security Law of 1982, in accordance with the provisions of article 83 of the Labor Code of 1945, established the definition of occupational accident as death or any organic injury or functional disturbance, permanent or transitory, immediate, or subsequent, produced by the sudden action of an external cause arising out of or in connection with the work or due to an act of God or force majeure inherent to the work. This definition also included commuting accidents.
With the approval of the Labor Code in 1996, the definition of occupational accident established since 1945 was maintained in article 110. Said article ratified what was stipulated in article 63 of the Social Security Law, adding two circumstances as occupational accident:
- That which occurs to the worker while executing orders or rendering services under the authority of the employer, inside or outside the place and time of work.
- The one that occurs during the period of interruption of work or before or after the same if the worker is in the workplace or in the premises of the company due to his duties.
The 1996 Labor Code reformed by addition article 63 of the Social Security Law and has been so interpreted and applied by the Nicaraguan Social Security Institute since that date.
This addition made by the Labor Code is in total harmony with the definition of working day regulated by article 49 of the TC by establishing that “the worker is considered to be at the disposal of the employer from the moment he arrives at the place where he must perform the work or where he receives orders or instructions regarding the work to be performed in the day of each day, until he can freely dispose of his time and activity”. Derived from the joint analysis of the three aforementioned regulations, an occupational accident was considered to be any accident occurring within the company’s facilities and during the workday since, according to the definition of workday, the worker is at the employer’s disposal from the time he arrives at the place where he must perform the work, or where he receives the orders for the performance of the work, until he can freely dispose of his time and activity.
To be at the employer’s disposal, according to said definition, does not necessarily mean to be performing the work for which he/she was hired, it is enough to be at the work center, since from the moment he/she arrives at the workplace, he/she is already at the employer’s disposal.
At present, the Nicaraguan Institute of Social Security (INSS), contrary to its own jurisprudence of many years, considers as an occupational accident only that which has a causal link that the accident occurs at the time of performing the work or derived from its performance. If there is no such causal link, it is not an accident at work, even if it occurred on the company’s premises and within the working hours agreed with the employee. It is not an accident at work, according to the INSS classification, the one that occurs, for example, to a worker who suffers an accident while going to the toilet, to the company clinic, to fill his water bottle or any other activity that does not occur in the execution of the work or on the occasion of it. From this perspective, an accident at work is not an accident that occurs to a worker who for some circumstance or out of solidarity with another co-worker, decides to support him in his work exceptionally, not being within his functions to perform such work, even within the work center.
The above interpretation is for accidents that occur in the workplace and/or in the performance of functions outside the workplace, since commuting accidents, also regulated by both the INSS Law and the Labor Code if they meet the requirements in relation to time and place, continue to be considered work accidents and paradoxically, these do not occur under any circumstances on the occasion of work and/or as a consequence of it.
The classification of an accident as either work-related or common, has great repercussions for the worker due to the consequences related to the subsequent obligation of the INSS. If it is a common accident, the after-effects will be attended while the worker is paying contributions, but if it is an occupational accident, the INSS will attend to the worker for the entire time required for his rehabilitation, even if he is no longer affiliated to said institution, due to the loss of his job.
The mixed commissions, which are responsible for the investigation of these accidents in the work center, must carry out an exhaustive investigation when they occur in said center, always bearing in mind the causal link that I have previously mentioned and of equal importance is to request training from the INSS on these issues in order to act under the guidelines of said institution and avoid fines for reports that do not comply with said guidelines.