sou · GXB396 · 2010-01-01 00:00:00 — As regards other benefits and compensation for loss of income that constitute co-ordination benefits under the Tort Liability Act, the starting point is that they should also be transferred, although according to its terms of reference, the Commission should consi- der whether it would be appropriate from the point of view of reasons of principle, administrative or other reasons, to exempt some of these benefits and compensation from being transferred. Occupational injury insurance also provides compensation for other injuries occurred apart from loss of income. This concerns cost in certain cases for health care outside , dental care and special aids. The insurance scheme also provides benefits for sur- vivors (Chapter 5). All of these different benefits are outside the assignment of the Commission to transfer costs for loss of income to motor insurance. In relevant cases, may process claims for such compensation to survivors even if the injury has been incurred due to a road traffic accident. Other benefits are of such a kind that they are also compensated for by motor insurance and the Commission has concluded that they should not be paid from occupational injury insurance in the event of a road traffic accident. The deliberations of the Commission on this point are as follows. Occupational injury insurance differs from other social insu- rance schemes by being based on tort law principles. There are therefore considerable similarities with motor insurance. The evidential requirements for causal connection are, in principle, based on the same rules of evidence. Other reasoning on related matters such as existing condition and competing causes of injury are very similar. There is a social approach in both occupa- tional injury insurance and motor insurance. In the event of changes in occupational injury insurance, undertakings according to the 1964 Convention (121) on employment injury benefits should be taken into account. The Convention contains, inter alia, provisions on the minimum benefits that should be paid according to legislation in the ratifying state. The Commission has found that the Convention is not an obstacle for occupational injuries to be fully compensated in another statutory compensation system. A transfer of the costs for occupational injuries in road accidents should not therefore be incompatible with the undertakings according to the Convention. As regards the amount of benefits depending on whether an injury is an occupational injury or a road traffic injury, a transfer of liability for costs for occupational injury insurance should not encounter any particular problems. Occupational injury insurance is based – within the level eligible for benefit of 7.5 price base amounts – like motor insurance on the tort law principle of 100 per cent compensation for loss of income. The possibilities of taking into account future increases in income when determining annuity are generally greater in motor insurance than in occupational injury insurance. This difference is therefore not either an argument against a transfer. The possibility of adjustment of compensation provided for in the Road Traffic Injuries Act which does not have any direct equi- in the Occupational Injury Act ( LAF) may in a few cases lead to a slightly lower benefit in the new system. The Commis- sion, which deals with the issue of adjustment in chapter 8, does not find reason to propose any special rules for these special cases. In the current system, a traffic accident victim who has also incurred an occupational injury, receives benefit from both Försäk- ringskassan and the motor insurance company. The rules on occu- pational injury annuity often mean that a long period of time elap- ses between the time the injury occurred and a decision on compensation. The insurance companys claims adjustment cannot be completed until the complete compensation picture has been clarified. If occupational injury insurance is not transferred to the new system, this would continue to be the case. Processing of road traffic injuries which are also occupational injuries in two systems is not only associated with these efficiency problems. It also entails deficient cost-effectiveness. The injuries are often difficult to investigate medically. A considerable reduc- tion may be anticipated in the total administrative costs for a parti- cular injury if these injuries were instead only to be processed by the motor insurance company. Processing of cases by both and the insu- rance companies also means that dispute resolution may take place in two different parallel processes. This entails overuse of court resources. If claims adjustment of the loss of income of the claimant took place entirely in the insurance companies, dispute resolution would accordingly also be more efficient without a loss of legal security. Overall, the Commission considers that there is no obstacle to transferring cost liability from occupational injury insurance to motor insurance in the cases in question. On the contrary, the Commission considers, taking into consideration the aspects now dealt with, that a transfer of this kind would have clear benefits from the point of view of efficiency and economy compared with the present system. The provisions on sick pay are contained in the (1991:1047). pay is by definition not a social insurance benefit. The is of a civil law character and regulates relations between the employer and employee. pay is defined in the Act as the right of an employee to retain wage and other employment benefits when ill. The sick pay period is fourteen days of a sickness case. The part of the compensation to those injured in road accidents which currently consists of sick pay is a minor undertaking in this context. The view expressed in the terms of reference of the Commission that a large financial total liability for the insurance companies would provide an incentive to engage in efficient reha- bilitation of road traffic accident victims and also to work to prevent accidents, is therefore of limited significance as regards sick pay. Instead, there are reasons to assume that the basic purpose of the sick pay system – that the employers should be given increased responsibility for the working environment and health of the employees – could not be maintained for road traffic accident victims if the motor insurance companies instead took over responsibility for payment of benefit from the beginning of the sickness period. Consideration should also be given to the aspect that the sick pay system, from the point of view of payment, is efficient and simple, since it entails that sick pay is paid together with the ordi- nary wage. There is furthermore reason to fear that if the insurance companies took over responsibility for payment of benefit from the very start that this would lead to delayed payments and loss of payments, not least due to delayed claims and information problems. The employers payment of sick pay also provides the insurance companies with a well-needed respite during claims adjustment. To sum up, the Commission considers that administrative reasons and reasons of suitability argue against motor insurance taking over cost responsibility for statutory sick pay. The group insurance and individual health insurance schemes that are co-ordinated in accordance with Chapter 5, section 3, of the Tort Liability Act make up a considerable part of the total compen- sation undertaking in particular in the case of permanent reduction of work capacity. If it is regarded as important to transfer as large an amount of costs as possible to motor insurance, this circum- stance would make it of particular interest to transfer cost respon- sibility for these benefits to motor insurance. Takeover of cost responsibility for the part of loss of income covered by these benefits is, however, considerably more compli- cated than is the case for other deduction benefits. The sickness benefits in different collective agreements are currently determined in such a way that they are paid when the employee receives sickness benefit. According to the wording of the current agreements, this may be presumed to mean that no benefit will be paid in a system where road injury compensation is paid instead of sickness benefit. Motor insurance will thus automa- tically have the entire responsibility for loss of income. The Commission has considered two main methods for how responsibility for compensation for the loss of income arising from traffic injuries which are now compensated for through sickness benefit and occupational injury allowance can be transferred to motor insurance. According to the Commissions terms of reference, as a starting point in the choice of method, special importance shall be placed on avoiding a deterioration of cover for those affected by traffic injuries. The rules proposed by the Commission shall also be designed in such a way that application of the regulatory frame- work in individual cases is characterised by objectivity, good service, uniform application, and legal security at the same time as down administrative costs. High demands must also be made that the system can be readily overviewed and is easy to understand for the individual. One method means that the claim would be dealt with exclusi- vely by the motor insurance company. There is no possibility of having consider the issue of greater degree of reduction of work capacity or the amount of compensation (unless the illness has other causes than the road accident). This method may be described as an excluding method. The injuries arising from a traffic injury are not covered by national insurance. The second method entails that the injury is primarily dealt with by the motor insurance company. There is then no obstacle to considering whether the injury entails greater work incapacity or if compensation can be greater from national insurance. This method is a co-ordination method. There may be a secondary assessment of all injuries within the framework of natio- nal insurance, from which supplementary payment may be made. The Commission considers that a basic method should be chosen. The two methods considered both have advantages and disadvantages. In general terms, it can be said that an excluding method is most in line with the main purpose of the reform, namely that motor insurance should assume overall responsibility for the loss of income of the traffic accident victim. This also takes into account that the new system, when applying one method, may be expected to be more efficient, both from the perspective of the individual and administration. A co-ordination method guarantees that a parallel assessment of the injured persons right to compen- sation is made by . This means that there should not be a risk of a lower compensation in the new system, compared with the current system. However, this risk only comes to the fore in a few situations. However, in the co-ordination method, there is a clear risk that the new system will not be as efficient. It is not likely that the inherent efficiency problems with the co-ordination method can be resolved by special regulations. However, the possible risk for deterioration of the individuals right to compen- sation in a few cases can be eliminated by special statutory provi- sion. The Commission considers that an excluding method is preferable as a basis for the new system for compensation for loss of income in a traffic accident. For those injured in traffic accidents, the recommended method would mean that the insurance company would have a similar role as today. This means that traffic-related sickness case would be reported to the insurance company, in relevant cases after the end of the sick pay period. The issue of entitlement to compensation is not complicated in the majority of road traffic injury cases in which the matter of compensation for loss of income is raised. However, certain issues may be unclear in a number of cases. One of the most important tasks is therefore to secure payment of compensation even when there is some uncertainty concerning, inter alia, causal connections. With a view to counteracting a restrictive approach by the insurance companies to payment of compensation in such cases, the Commission proposes that the insurance company should be entitled to be reimbursement from of benefit paid corresponding to 80 per cent of the income basis used for calculation of road traffic injury compensation for the portion that does not exceed seven and a half price base amounts, if it is finally decided that the injury which has led to road traffic injury compensation has not been caused by a traffic accident. In order to clarify the financial allocation of responsibility between the motor insurance and national insurance, reimburse- ment should also take place in the opposite direction in cases where has paid benefit and it later proves, through, for example, a court judgment, that the individual was entitled to road traffic compensation. The Commission therefore proposes that an insurance company shall pay the amount that the authority has paid in benefit under the Act or the Occupational Injuries Act if it is subsequently established that the loss of income on which the benefit was passed arose due to a traffic accident. In those parts of the social insurance that replace loss of income, there are certain guaranteed benefit levels. This applies to sickness compensation and activity compensation in the form of guarantee allowance and certain guaranteed annuity bases and the state personal injury cover. Compensation for loss of income which is calculated according to the rules of the Tort Liability Act only covers actual loss. There are accordingly no guaranteed minimum levels. The Commission considers that guaranteed compensation levels should remain a central government commitment. It is therefore proposed that it should be possible to pay sickness compensation and activity compensation in the form of guarantee allowance to a traffic accident victim who lacks motor insurance for the loss of income, or whose benefit is less than the guarantee level for gua- rantee allowance. However, the Commission considers that persons participating in training to which special risks are attached for occupational injury or who at any rate are participating in occupational training when the injury is incurred should not be covered by the occupational injury insurances rules on special income protection in the event of a traffic injury. In certain cases, a person in the new system will receive at the same time road accident injury compensation for loss of income and benefit from health insurance or occupational injury insurance. This is the case when the traffic injury only leads to a partial loss of income and the insured person at the same time has an illness or occupational injury due to other causes that reduces work capacity. The differences in the criteria for entitlement to compensation in the different insurance systems may lead to certain problems in the new system. When the whole loss of income is to be compen- sated for through motor insurance, the insurance company will not use the proportions based on reduction of work capacity that are used today when benefit from health insurance is used as a basis. The Commission finds, however, that this problem is not so seri- ous that a special regulation is required. If a person falls ill again in a traffic-related illness after the traf- fic injury has been finally settled, traffic accident compensation will be paid if a significant change is considered to have occurred. In the view of the Commission, a person who falls ill again with a traffic injury should therefore be entitled to receive sickness benefit until the insurance company takes over responsibility for payment despite the illness being traffic-related. However, Försäkrings- kassan may demand reimbursement of benefit paid for the period that traffic injury compensation should have been paid. Adjustment of road injury benefit One of the tasks of the Motor Insurance Commission has been to consider whether the adjustment rules of the Road Traffic Injuries Act should be amended when injuries arising from road accidents are removed from the national insurance scheme. The Road Traffic Injuries Act contains rules on adjustment of road traffic injury compensation due to the co-responsibility of the injured person. Adjustment in the event of personal injury can take place, if the injured person has deliberately or through gross negli- gence contributed to the injury occurring. Compensation may also be adjusted if a driver is guilty of drunken driving or aggravated drunken driving if the driver has contributed to the injury occur- ring through negligence in this connection. Adjustment shall be made after a consideration of reasonable- ness. This adjustment should not be permitted to hazard the social security of the injured person and his or her family. There is not guidance from case law as to how adjustment is to take place. Within the insurance industry, principles have been worked out for adjustment. With regard to compensation for loss of income, a special guarantee rule, the 90 per cent rule was crea- ted, which means that benefit should always be paid so that it amounts to, together with the injured persons income and benefits from the national scheme, to at least 90 per cent of the income that an injured person would have had had he or she not been injured, up to 7.5 price base amounts, regardless of the extent of adjust- ment applied to other components of compensation. This rule was changed to an 80 per cent rule in . According to the rules of occupational injury insurance policies, loss of income is fully compensated. If the adjustment rules in the Road Traffic Injuries Act were applied to road traffic injuries which are occupational injuries, the compensation will accordingly be lower than according to the current rules if there are no possibili- ties for reduction of occupational injury annuity. In the new system, will not pay any benefit for loss of income for traffic injuries. Payment from motor insu- rance for loss of income is thus of crucial importance for the subsistence of the road traffic injury victim. Reconsideration of entitlement to benefit When sickness and activity compensation replaced disability pension and temporary disability pension on 1 January 2003, rules were introduced on reconsideration of the condition of those affected by injury, the need of rehabilitation and work capa- city. This change meant that the reconsideration should take place throughout the period that the injured person receives benefit from the social insurance system. The Tort Liability Act contains provisions that entail that an established annuity may be reconside- red if the circumstances on which benefit was based have changed significantly. When an expanded motor insurance is to take over responsibility for compensating the entire loss of income, there is reason to consider whether the prerequisites for reconsidering established compensation for loss of income according to the Road Traffic Injuries Act need to be changed. In these considerations, the starting point shall be that rehabilitation and return to work shall, of course, be encouraged, although without departing from the compensation principles of the Road Traffic Injuries Act. The rules on subsequent checks and recon- sideration have a different character from the rules of the Tort Liability Act. decisions on sickness benefit and sickness compensation entail exercise of public authority. provisions of the Tort Liability Act are, however, in the sphere of civil law. Entitlement to damages and traffic injury compensation are determined by a mutually binding agreement or by a judgment. There is not less need for a reconsideration authority in the new system. The fact that motor insurance shall compensate for the whole of loss of income is on the contrary an argument of conside- rable force for changed circumstances being able to lead to an adjustment of a set annuity. Nothing has either emerged which indicates that the prerequisites for reconsideration should be changed. In the future, it should accordingly be the case that the issue of compensation can be reconsidered, if the conditions on which compensation was based under Chapter 5 of the Tort Liabi- lity Act have substantially changed. At present, the insurance companies refrain almost completely from making use of the possibility of reconsidering annuities to the disadvantage of the injured person. There is no procedure for capturing cases to be reconsidered. With increased costs, it may be assumed that the insurance companies will have greater interest in reconsideration to avoid the injured person being overcompensa- ted. Methods will then also be developed to focus on obtaining knowledge of the changed circumstances of the injured person. Information from the on taxed income are public and available to all, thus also to insurance companies. Furthermore, the companies can obtain information, for example, through tips from other people and through websites where the injured person appears in some capacity. However, the motor insurance compa- nies do not have access to information from public authorities and health care facilities which can demand to obtain a basis for its assessment. It is probably not normally possible for the company to use the power of attorney which the injured person provides the company with during claims adjustment to enable it to obtain information about the injured persons and financial circumstances after final settlement. The idea has been raised on the part of the insurance industry that an obligation should be introduced for an injured person who receives traffic injury compensation for loss of income in the form of an annuity to notify the insurance company if conditions change in such a way that a reconsideration according to Chapter 5, section 5, of the Tort Liability Act, exist. Taking into considera- tion, the difficulty of finding a suitable sanction for this obligation, the Commission has not made any recommendation for an arran- gement of this kind. One of the main reasons for the Motor Insurance Commissions assignment is that many road traffic accident victims have difficulty in obtaining access to the rehabilitation needed. With a view to strengthening the rehabilitation process, the Commission shall therefore consider an expansion of the responsibility of motor insurance for the rehabilitation of those injured in road traffic acci- dents. At present, traffic accident victims have no statutory right to receive rehabilitation. He or she is instead dependent on various actors performing their obligations according to different regula- tory frameworks. These actors include the health service, employ- ers, The Employment Office and municipal social services. The Commission considers that the main responsibility for different forms of rehabilitation initiatives should not be changed. This means that the health service will continue to be responsible for treatment and rehabilitation. Within the work- related rehabilitation, the employer is responsible for workplace- focused measures and the Employment Office for labour-market focused measures. The municipality is responsible for social measu- res. However, the fact that the main responsibility is still borne by the respective actor does not mean that the motor insurance companies are prevented from financing rehabilitation measures, or partly. This possibility exists per se already today, although the financial driving forces are not so great since Försäk- ringskassan pays the major part of the loss of income of the traffic accident victim.