June 7th, 2010

Continental European Legislative and Judicial Trends: Workers Compensation – Update on Recent Cases and Legislative Developments in Norway

Posted at 1:00 AM ET

2010_legislative_thumb-2David Lewin, Managing Director
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On December 12, 2008 the Norwegian Ministry of Labor submitted a white paper regarding the Industrial Injuries Insurance Act, which will replace the existing provisions on industrial injuries in the National Insurance Act (folketrygdloven) and the Industrial Injuries Insurance Act.

The white paper, based on two earlier Norwegian Official Reports (NOU), recommended, among other things, a widening of the scope of occupational injuries.

The deadline for filing comments expired on March 12, 2008, but the Ministry of Labor has not yet put forward a new bill regarding occupational injuries and diseases. The delay has been caused by the authorities’ indecision on whether or not to follow-up on recommendations in the white paper and on subsequent comments.

Existing Background Rules of Law

Beyond the common benefit scheme provided by the National Insurance Act,
Norway has two supplementary schemes that focus on industrial injuries: The first is Chapter 13 of the National Insurance Act, which provides a more favorable government benefit scheme for occupational injuries and diseases compared to non-occupational injuries and diseases. Under the second scheme, every employer is obliged to have industrial injury insurance to cover occupational injuries and diseases according to the Industrial Injuries Insurance Act, after which economic compensation is paid on top of the National Insurance Act’s standard and special government benefits.

According to the Industrial Injuries Insurance Act and the corresponding provisions in Chapter 13 of the National Insurance Act, “industrial injuries” are defined as physical injuries and diseases resulting from “occupational accident” incurred by the employee at work, at the place of work and during working hours.

An “occupational accident” is a sudden and unexpected external occurrence to which the employee is exposed during work or a concrete time-limited occurrence which results in unusual strain or stress compared to what is common for the particular line of work being performed.

Three Recent Supreme Court Judgments

In three recent judgments, the Supreme Court considered the scope of industrial injuries in connection with the Industrial Injuries Insurance Act and Chapter 13 of the National Insurance Act. The previously mentioned white paper submitted by the Ministry of Labor was discussed in one of the judgments.

1. Mosquito Bite Resulting in Streptococcal Infection
(Group A) and Kidney Failure

By a judgment dated December 21, 2009 the Supreme Court denied a long-haul transport driver workers compensation payment under the Industrial Injuries Insurance Act. The question revolved around whether or not streptococcal infection (group A) and kidney failure, resulting from a mosquito bite, were caused by an “occupational accident” in accordance with the Industrial Injuries Insurance Act.

The driver was stung by a mosquito in Belgium. The bite began to itch, and led to
streptococcal infection (group A) and kidney failure. The driver was hospitalized
two days after being bitten and was then put on a respirator for two weeks. Subsequently, the driver suffered from chronic kidney failure and reduced sensibility and power in the right arm and leg.

The Supreme Court maintained that the mosquito bite took place at work, at the place of work, during working hours. Subject to an overall assessment, the Supreme Court concluded that a mosquito bite with a subsequent infection was not an industrial injury which could provide grounds for a workers compensation claim under the Industrial Injuries Insurance Act.

The Supreme Court observed that a mosquito bite, per se, has few similarities with an accident and hardly causes injury-like results by itself. Furthermore, the Supreme Court stated that a mosquito bite with a subsequent infection, severally or as a whole, falls within the common risks of everyday life, and is accordingly not to be considered an industrial injury under the Industrial Injury Insurance Act.

However, the Supreme Court did not disregard mosquito bites as grounds for workers compensation in cases of acute poisoning, allergic reactions or collisions resulting from uncontrolled movements.

2. Cartilage Injuries of the Knee Sustained during Dance Instruction

By a similar judgment dated December 21, 2009, the Supreme Court concluded that cartilage injuries of the knee sustained during dance instructions in a music lesson were not caused by an “occupational accident” resulting in an industrial injury as stipulated in Chapter 13 of the National Insurance Act. 

During the dance instruction, the teacher faced away from some of the pupils. When these pupils became noisy, the teacher turned around and twisted her knee.

The Supreme Court observed that dance instructions are common in music lessons, that there was not an element of danger, that there was nothing extraordinary about how the music lesson, including the dance instructions, were conducted, and that there was nothing unusual or wrong with the floor.

The Supreme Court stated that there is a fine distinction between occupational and non-occupational injuries, but that the legislator explicitly stated that this is the intent of the law. In the context of the white paper from the Ministry of Labor, the Supreme Court commented that even though the scope of industrial injuries could be widened, the Ministry of Labor had upheld the distinction and stated that certain work-related injuries may fall outside the scope of industrial injuries.

With this reasoning, the Supreme Court concluded that the cartilage injury of the knee sustained during a music lesson was not an occupational injury. The court concluded that a decision in favor of the injured teacher would widen the scope of industrial injuries, for which the Supreme Court did not have a justification. Widening the scope of the law is, ultimately, the responsibility of the legislator.

3. Food Poisoning in Dammam, Saudi-Arabia

In a judgment on November 20, 2009, the Supreme Court concluded that reactive arthritis caused by food poisoning during work abroad was not an occupational injury. However, the majority of the Supreme Court judges found that food poisoning with the subsequent onset of reactive arthritis could be viewed as equal to an occupational disease and therefore decided in favor of the injured.

The engineer was food poisoned during a lunch in Dammam, Saudi-Arabia, and shortly after, experienced pain. He was diagnosed with reactive arthritis, a form of joint inflammation.

Corresponding with the long-haul transport driver and the music teacher, the Supreme Court concluded that the engineer had not been exposed to an occupational injury and the demand for an “accident” was not fulfilled.

However, the majority of the Supreme Court viewed the food poisoning combined
with the subsequent reactive arthritis as equal to an occupational disease and based their decision on the higher element of risk to which workers abroad, for example, those in Saudi-Arabia, may be exposed, compared with a normal situation.

Conclusion

Based on these three rulings, it can be seen that more cases related to workers compensation claims can be expected. It is likely that the scope of occurrences that will be covered by workers compensation will be broadened, but it remains to be seen how much broader and under which circumstances such amendments will be made. The likely broadening of the scope is relevant in light of the fact that premiums related to workers compensation insurance have decreased in the last year.

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