Is a Hospital Liable for a Nurse's Injury Under the Workmen's Compensation Act?

Dear All,

In a hospital, a nurse lost her vision due to a sudden burst of an oxygen cylinder. She is covered by ESI benefits. Is the employer liable for benefits to this employee as per the Workmen's Compensation Act? Please advise.

Victor

Dear Victor,

Mr. Nimesh has rightly stated that the employee who is covered under the ESI Act, 1948 is not entitled to receive any compensation under the W C Act, 1923 now known as Employee's Compensation Act, 1923. Section 53 of the Employees State Insurance Act, 1948 debarrs the insured employee to receiver any compensation under any other Law which may be read as under:

Sec. 53. Bar against receiving or recovery of compensation or damages under any other law.—An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.

Regards,
R.N.Khola


http://www.skylarkassociates.com/

Dear Sir,

Other than ESIC-covered employees, to whom the Workmen's Compensation Act is applicable, is there any salary limit for applicability? Or can it be applicable to all employees irrespective of a salary limit?

Regards,

Dear Member,
At present the maximum wages limit for calculation of compensation under the Employee's Compensation Act, 1923 is Rs. eight thousands while the wages is defined as under:
(m) “wages' includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer an employee towards any pension or provident fund or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment;
Thus the limitation is only for calculation purposes otherwise there is no limitation for the persons who are covered under the definition of the employee.
Regards,
R.N.Khola

Dear Victor,

You have a very interesting question and incident. Since you have received the correct reply to your question, I will not go into it. As I have taken up a study on the safety of hospital workers, could you please provide more details of the incident such as when and where it happened, the name, age, and other details of the victim, whether there was a loss in both eyes or just one, and whether the vision loss is total or partial? Additionally, in which state did this incident occur? In Gujarat, the ESI Act is not applicable to private nursing homes. Could you clarify the state where this incident took place? I also kindly request other readers to share information on accidents similar to this if they come across any.

Thank you.

Since she is covered under the ESI Scheme, she will not be entitled to, nor would the employer be liable for compensation under the Workman's Compensation Act.

Vasant Nair

Dear BTRC,

She is 27 years old with a salary of $7880.00. The incident occurred when she was about to open/manage an oxygen cylinder for official purposes due to the absence of the operator. As a result, her right eye has been permanently lost. The incident took place on the 23rd of July 2010, a Friday, around 10:00 PM, precisely at 9:53 PM.

She is from Kerala, and the name of the hospital where she received treatment cannot be disclosed due to technical reasons.

Thank you.

Dear All,

According to the Employee's Compensation Act of 1923, the compensation part is okay as per the formulas for industrial accidents. Furthermore, is an injured employee eligible for any other compensation, such as special leaves for the period of treatment, reimbursement of hospitalization expenses, etc.? Additionally, can an injured employee avail of eligible leaves like CLs, ELs, or SLs? Should the attendance of the injured person be maintained as loss of pay days for the period of treatment?

Regards,
Venkat

Dear Victor,

Thank you so much for the information. This is very useful. If in case the victim needs any help to deal with the compensation issue, we will be glad to help out with the right advice, which we provide for free. If she is not happy with the decision of the Medical Board, either on the amount of the compensation or its applicability, she has the right to approach the Medical Appeal Tribunal constituted under the ESI Act.

Dear Victor,

As a safety professional, more questions have come to my mind regarding the incident you narrated. I would be highly obliged if you could help me gather more information for my questions:

1. What caused the eye injury? Was it a splash of oxygen released from the cylinder, a splinter from the cylinder, or the tools she used to open the valve that injured the eye?
2. Did the cylinder burst, or did the valve assembly come off from the cylinder threads while the cylinder remained intact?
3. How quickly did she receive first aid treatment? Was she admitted to the same hospital for treatment?

Thank you in anticipation.

Dear Victor,

Since she is covered under the ESI Act, she would be entitled to Disability Benefit (pension) under the ESI Act. Assuming that she has lost one eye without affecting the other eye, her disability should be 40%. According to the calculation of Disability Benefit under the ESI Rules, she is entitled to a monthly pension of 30 to 32% of her average wages for the last 6 months. If her average monthly wages were Rs. 7800, she should receive a monthly pension of around Rs. 2400 for the rest of her life. The provisions of the ESI Act are considerably superior to those of the Workmen's Compensation Act.

Please report the accident to the ESI authorities as soon as possible.

Thank you.

[QUOTE=R.N.Khola;1221838]
Dear Member,

At present, the maximum wages limit for the calculation of compensation under the Employee's Compensation Act, 1923 is Rs. eight thousand, while wages are defined as follows:
(i) "wages" includes any privilege or benefit which is capable of being estimated in money, other than a traveling allowance or the value of any traveling concession or a contribution paid by the employer to an employee towards any pension or provident fund, or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment.

Thus, the limitation is only for calculation purposes; otherwise, there is no limitation for the persons who are covered under the definition of an employee.

Regards,
R.N.Khola
Skylark Associates, Gurgaon (Haryana)
Labour Law Consultants

Dear Khola,

What is the applicability of this new Act? Because a new name has been given to this, is it applicable to all employees employed in any industry as mentioned in Schedule II, irrespective of their status as manager/supervisor/administrator, etc.? Or is it still applicable only to workmen?

As per me, only the name has been replaced from WORKMEN to EMPLOYEE everywhere in the Act. It's applicable to workmen only.

Waiting for your reply.

Regards

Dear Member,

The beneficiary under this Act is the employee. It applies to the employments as shown along with the definition of the employee as per section 2 (dd) & schedule II of this amended Act. You must have gone the changes. The definition of the workman has been replaced by employee. The definition of employee as shown at section 2(dd) & amended schedule II of the amended Act is attached herewith for information. Necessary changes can be noticed by this attachment.
Now coming to main point that whether the supervisory/ administrative / managerial staff & officers are also entitled to receive compensation in case there is any employment injury under this Act. While examining this matter we have to go through the definition of employee & schedule II. For instance section 2(dd) (ii) (b) says that ‘a captain or other member of the crew of an aircraft' is covered for getting benefit under this Act. Schedule II para (ii) says that any person
“employed, in any premises wherein or within the precincts whereof a manufacturing process as defined in clause (k) of section 2 of the Factories Act, 1948 (63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, whether or not employment in any such work is within such premises or precincts and steam, water or other mechanical power or electrical power is used '
This shows that all employees of whatever status may be, here in this case, if employed in the premises where any manufacturing process is carried on as per definition of the Factories Act (sec 2(k) will be covered for getting benefit under this Act. Hence we are to go through the definition of employee & the Schedule II for finalizing the matter of getting benefit under this Act by any of person.

Opinion/comments submitted as requested.

Regards,
R.N.Khola

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Dear Mr Khola,



I can understand form your interpretation of defination but this is only in case if their is manufacturing process/production etc, just in cases of factory.



What about applicability to Manager/Supervior/adminstrators etc employed in service industry or establishment covered under Shop Act about which nothing has been defined in Sch II or Act.



What has been deleted form the schedule II in each defination is " working in a clerical capicity etc". almost in each clause.



As per interpratation form you Employee means-



Section 2(dd) “employee” means a person, who is—

(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union'

Employee means any person employeed in any such capacity as sepecified in Sch II. Although upto some extend i accept this as " Any person employed in any such capacity". And all managers, Superviosor etc are employed by the employer so shall be applicable.

But the pharse " Employed in any such capacity as is specified in Sch II" makes doubtful. and only applicable to persons specified in Sch II only not as a whole.

Earlier it was applicable to workmen only. In my opinoin still its applicable to persons defined in Sch II. not as a general.

No major change. a single word can not change the intent of the legislation.

Solicit your further view on this.

Regards

Dear Member,

You are correct in stating that we are required to refer to Schedule II for finalizing the applicability of this Act. Another notable change is that any conditions regarding the employment of a minimum number of persons in any employment to qualify for the benefits of this Act have been removed. Now, even if there is only one person employed, they can claim benefits under this amended Act. Whenever there is a query regarding applicability, we must consult this schedule. Individuals listed as employed in any employment or process are to be considered beneficiaries.

Regards, R N KHOLA

If the ESI Act is applicable, then an employee cannot claim under the Workmen's Compensation Act. However, if the employee is not covered under ESI (salary Rs. 15,000 or more), then the employee can claim under the Workmen's Compensation Act, despite the establishment being covered under the ESI Act.

Regards,
Juned Akhtar

I am working as an HR in a new company that is not covered under ESIC. What should I do according to the Workmen's Compensation Act, 1923? Could you kindly suggest the registration procedure, necessary forms, where to submit them, and how to calculate the compensation? Is there a specific formula for this?

Regards,
Ashok

Thank you all for your assistance. I would also like to inquire about any specific categories of employees outlined in this Act to whom the Act applies. Are managers and upper-level categories also included under this Act? Please advise.

Best Regards,
Sandesh

Could you please explain to me the procedures for WC and ESI? This information is very important to me.

Regards,
Suresh

In case employees are covered under ESIC, do we need to make WC policy mandatory.

No. Even otherwise, if your unit is not covered under ESI and covered under EC Act, then also you are not compelled to have WC policy (EC policy). In one or two states, by notification in the official gazette, it has been made compulsory to have EC policy.

R N KHOLA