According to the law in force, any worker has the right (or duty), either as a sole proprietor, or as an employer - as a subordinate worker, to transfer responsibility for repairing accidents at work to an entity legally authorized for this purpose - see Article 79(1) of Law 98/2009 of September 4 and Decree-Law 159/99 of May 11.
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In the event of non-compliance with the obligation on the part of the employer (i.e. in the case of subordinate workers), it will be the employer's obligation to make reparation for damages arising from accidents at work, or, if this is not possible - which will be the case, for example, if such a situation leads to the insolvency of the company - the Fund for Accidents at Work, created by Decree-Law no. 142/99, of April
30, may be activated.
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In the event of non-compliance with this obligation, employers will also be liable for administrative offenses under the terms of Article 171(1) of Law 98/2009, of September 4, and sole proprietors under the terms of Article 11(1) of Decree-Law 159/99, of May 11.
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As for the concept of an accident at work, article 8 of Law 98/2009 of September 4 states that it is
"an accident which occurs at the workplace and during working hours and directly or indirectly causes bodily injury, functional disorder or illness resulting in a reduction in working or earning capacity or death".
In turn, and without prejudice to the densification of the concepts of place and time of work provided for in paragraphs 2(a) and 2(b) of the aforementioned article, paragraph 1 of article 9 provides for an extension of the concept of accident at work, of which paragraph (a) is of interest to this article, according to which,
"An accident at work shall also be considered to occur (...) on the way to or from the workplace, (...) including an accident at work that occurs on the routes normally used and during the period of time normally spent by the worker".
With reference to the routes normally used, we thus find the following definitions of the extension of the concept in paragraph 2 of the aforementioned article 9:
"a) Between any of his places of work, if he has more than one job;
b) Between his habitual or occasional residence and the premises which constitute his place of work;
c) Between any of the places referred to in the preceding subparagraph and the place of payment of remuneration;
d) Between any of the places referred to in point b) and the place where the worker has to be given any form of assistance or treatment as a result of a previous accident;
e) Between the place of work and the place of the meal;
f) Between the place where, at the employer's request, he provides any service related to his work and the premises which constitute his habitual place of work or habitual or occasional residence."
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Having analyzed the legal provision, the extent of the concept in the context of travel is clear and notorious.
Thus, the repeated reference that "I got hurt", but I wasn't working, so the insurance won't cover it, makes no sense. Not quite...
In fact, the framework and extent of the legal determination criterion is not entirely unanimous in doctrine and case law. However, there has been some agreement on certain fields of application.
For example, the Guimarães Court of Appeal recently ruled (in case 431/19.2T8VRL.G1, as it did in case 41/14.0Y3BRG.G1 or in the Coimbra Court of Appeal, in case 35/16.8T9GRD. C1), considering the rules transcribed above, "the current rules should be interpreted as including in their scope the accident that occurs outside the victim's home, even before entering the public highway, regardless of whether it is the victim's own space or a space shared by other condominium owners or co-owners, it being sufficient for this purpose that the exit door of the home has already been crossed, as long as the victim is traveling to the workplace, according to the route normally used and during the period of time usually spent by the worker"
In other words, even if the victim is in the house, before reaching the public highway, and in the way and on the route needed to get to work, the accident will be considered to be a work-related accident, with the resulting protection for the worker.
This legal protection is essentially based not on the fact that the worker is in a situation of legal subordination, but in order to protect the journey made to the place of work determined by the employer, or essential to carry out the tasks inherent in his duties, for which he was hired.
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This will not be the case, in principle, if there is a change in the normal route between home and the workplace, other than to meet the worker's needs, or due to force majeure or unforeseeable circumstances.
In this regard, see the ruling of the Coimbra Court of Appeal, according to which "Since the route normally used by the injured worker on his way home from work was interrupted and diverted without being determined by the satisfaction of his needs or by force majeure or unforeseeable circumstances, the accident he suffered cannot be considered an accident at work in itinere."
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In this segment, it should also be emphasized that, as the Porto Court of Appeal ruled (in case 1130/15.0T8VFR.P1), "The accident that occurred inside the bathroom of the hotel room where the worker was staying (...) did not occur at the workplace, nor during working hours, and does not constitute an accident at work, but rather an accident within his personal life, foreign to his work activity."
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In short, the final determining criterion for the classification of the accident will be whether its factual context relates to an act in the worker's professional or private life.
And although there is room for maneuver regarding the interpretation to be made in order to qualify the accident as an accident at work and, in this way, ensure the inherent legal protection through the intervention of the respective entities (e.g. insurance), it is certain that, currently, the criterion is extremely wide-ranging, and it is certain that there will be many more "accidents at work" than those that are reported and communicated, namely due to lack of knowledge of the densification of the concept in the terms in force on the part of the workers/beneficiaries.
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