Road accidents ‘’in itinere’’
Some of us may have faced with a traffic accident, and if not, we will certainly know someone close to us who has been in that situation. However, sometimes we are not aware –and we should be- that every traffic accident is diferent and that not all of them are of the same nature in a strict way.
A clear example of this are the traffic accidents which are also occupational accidents because they are ‘IN ITINERE’.
This type of accident is regulated in section a) of article 156.2 of General Law on Social Security. They are those that occur on the way home after the end of the working day, or vice versa; when we go to work after leaving home. In other words, if we are workers –whether employed or self-employed- and on one of these journeys we suffer an accident, the incident in question will be considered an accident at work.
Before exposing the singularities of how to proceed in an accident case ‘’in itinere’’ it must be clarified WHEN we are faced with an accident with consideration ‘’in itinere’’ and when it is not, given that, although it seems to be a simple question, it has given rise to many different interpretations and responses from our Courts.
Therefore, we must answer the following question: what requirements has case law been demanding in order to understand that there is a causal relationship between the accident and the going to or coming back from work, and, therefore, to grant it the consideration of an accident at work?
- Teleological element: This criterion is related to the ultimate purpose or cause of the displacement. It has already been explained that the accident ‘’in itinere’’ refers to that one that occurs because the displacement is imposed by the obligation of going to work. For this reason, the notion of it is constructed from two terms (the workplace and the worker’s home) and from the connection between them through the route (Decision of the Social Chamber of the Supreme Court, 19 January 2005).So we talk about the route that links the workplace with home. The concept of workplace can be interpreted flexibly, so that if the accident occurs on the way back or on the way to a place not related with the usual place of work (due to carrying out specific tasks ordered by the employer, or due to moving from one place to another because of the activity, for example), we will also be in the context of an accident at work. This is an illustrative element of what has just been set out is Decision 7850/2008 of the 1st Section Chamber of the High Court of Justice of Catalonia, of 21st October 2008, which deals with the issue of in itinere accidents of workers who are posted or on mission.
At the same time, the link between the route and the domicile has also been a requirement demanded by the Courts, generally associating this concept with habitual domicile. In this sense, the accident produced on the way back or on the way to couple or parents’ home, for example, would be considered a traffic accident without further consideration. However, it should be pointed out that there can always be nuances depending on specific cases, and in fact the Supreme Court has been extending the definition of in itinere accidents, considering as such those that do not occur in strict relation to the place of habitual residence, but do occur from an habitual residence –seasonal homes, among others-, with the reason for the trip from the latter being for work reasons (see the Rulling of the Social Chamber of Supreme Court, of 26th December 2013). Likewise, coverage has also been extended to work trips to attend meals, for example.
- Geographical or Topograpchical element: The accident must occur within the route that is usually followed; or more accurately, in the surroundings of a route that is considered logical in terms of location of home ant work (there would not therefore be a single route).
- Time element: The accident must occur during the time period estimated to exist between the two locations. It does not matter if the domicile is 3 or 50 km away, the time that should reasonably be taken in attention to the distance will be attended. In this sense, and although the route complies with the previously specified requirements, it will not be an accident in itinere the one that occurts three hours after the end of the working day if the domicile is at a distance of twenty minutes, for example.
Finally, it should be taken into account that, even if the requirements above are complied, it will not be in the context of an occupational accident if there have been interruptions of the Rulling or desviations that break the continuity or purpose of the route. In terms of the Rulling of 1st Section of the Social Chamber of the Basque Country High Court of Justice, of 16th May 2006, the route must not ‘’be altered by desviations or temporary alterations that are not normal and are due to reasons of particular interest of such a nature that the break the causal link with the going to or return from work’’. From this point onwards, it could be said that a brief stop during the journey to buy some basic good –food, medicine, refuelling- would not be enough to eliminate the accident in itinere consideration; but an accredited half-hour stop to drink a coffee, for example, would.
Finally, for the purpose of proof, and in order for the event to be recognized as an accident at work (and with in the corresponding temporary disability benefit for professional contingencies equivalent to at least 75% of the regulatory base), the medical reports obtained will serve as evidence of the circumstances of the event and of the injuries that occurred. At the same time, it would also be appropriate having the accident report or the intervention of the police forces in the event to obtain the police report, as both documents will corroborate the place and the time of the incident in question.
Now, knowking the criteria of causal relationship that must be fulfilled to understand that we are before a work accident ‘’in itinere’’, it is necessary to expose the RIGHTS WE HAVE in front of the production of the same one. As we have already had occasion to indicate, we must act the same way as if it were an accident at work that occurred in the work center itself and inform the employer of the circumstances of the accident.
Likewise, the fact that we are facing an accident at work will imply the intervention of the Mutual Insurance Company to which the company we work for is affiliated, since the latter has the duty to provide timely medical assistance –including rehabilitation- in the case of accidents at work (article 68.2.a. of the Law on Mutual Insurance Companies for Accidents at Work and Occupations Diseases of Social Security). However, it should be borne in mind that the intervention of these entities collaborating with the Social Security is not compulsory during the whole process of curing injuries; receiving timely medical assistance from them is only one possible option among all the existing alternatives.
Among other issues, it should be noted that the mutual entity may have particular conflicting interests, either because it is bearing all the costs of the temporary disability, or because, depending on the sequels that may be defined, it may have to pay for a permanent disability pension (absolute, total or partial) or compensate for non-invalidating consequences. And although this should not be the case, unfortunately practice shows how, with the exception of serious injuries, medical discharges are sometimes issued too quickly; it is also very laborious to obtain medical reports during the healing process and, in general, they are only given upon discharge; the discharge reports will hardly contain descriptions of slight sequels, and, if the report contains errors, the process of modification is arduous and sometimes even denied. In other non-mutual outpatient or hospital centers, care can be received without this possible "conflict of interest", thus avoiding that the latter may hinder the healing process or even the right to compensation for injuries or sequels because the reports do not contain the descriptions and information necessary to understand them.
In this regard, it is the victim's right to choose the health center he feels is most appropriate for his treatment or rehabilitation. This power is expressly recognised by the Framework Agreement on Healthcare Derived from Traffic Accidents in the Private Sector for the years 2019 to 2022, adopted between different associations in the healthcare field (outpatient centers, hospitals, clinics, etc), the Insurance Compensation Consortium and UNESPA (Spanish Union of Insurance and Reinsurance Companies). The purpose of this agreement is to establish a series of guidelines and instructions in the field of private health care for injuries resulting from traffic accidents, and is mandatory for member companies.
One of the obligations laid down in that Convention is to guarantee the right of patients to free choice of health center, and that is by authorising any referral requested by the persons assisted, without having to give the reasons justifying such a decision.
In addition, the Convention also provides that in cases where "the classification of traffic and occupational accidents, for the purposes of the application of the Convention, the consideration of traffic shall prevail". Therefore, the attribution of rights derived from the occurrence of this type of accident is full, and among them, the freedom to change the center to receive the appropriate medical or rehabilitative assistance.
At this point, and by way of conclusion, it should be borne in mind that even if we are dealing with an accident "in itinere", for the victim of a traffic accident it is not obligatory to undergo medical and rehabilitation treatment at the Mutual entity, that is an option, sometimes, depending on the center and the doctor or team of doctors that there is, a very good option. But the patient must know that he or she has other alternatives, being able to go to any private health center of his or her confidence (at his or her own expense) or to go to any of the Hospitals and Medical Centers that are attached to the Framework Agreement for Healthcare Assistance derived from Traffic Accidents in the Private Sector for the years 2019 to 2022 without any cost to the victim and without having to justify making this change, given that we are free to choose and select the center that suits us best.
In this way, it is highly advisable to have the proper legal assistance; firstly, to prove that the condition of the accident is "in itinere'' and not simply a traffic one; secondly, to get the best medical assistance to ensure the fastest and best cure possible; and finally, to be able to access the maximum compensation to fully repair each and every one of the damages suffered, and not to waive the receipt of any compensation to which you are legally entitled for not being properly advised.
If you have suffered a traffic accident, call us WITHOUT ANY COMMITMENT, the information is your right.