An accident at work in Germany and an operation in Poland – this was the issue a client came to us with
Our law firm was approached by a Polish national employed in Germany who had suffered an accident at work in Germany. Following the first incident, he received treatment and was unable to work for a period of time. He subsequently returned to his duties.
However, after returning to work, another incident occurred and he suffered a further injury. The client’s health deteriorated to such an extent that he was referred for an operation, which he wished to undergo in Poland.
And that’s exactly when the problem arose: Who should pay for the operation in Poland if the injury occurred whilst working in Germany? What documents need to be obtained from Germany? Is the payment to be made by the Krankenkasse or the Berufsgenossenschaft? And what should be done if the accident was not reported correctly?
Such cases require a combination of German law, Polish rules on the provision of benefits and EU regulations on the coordination of social security systems.
What constitutes an accident at work in Germany – an ‘Arbeitsunfall’?
The basic rule is § 8 of the Social Code Book VII (SGB VII), i.e. the German law governing statutory accident insurance.
In accordance with Section 8 of SGB VII, an accident at work is – Accident at work – is, in principle, an event affecting an insured person, arising in connection with the performance of the insured activity, which is of limited duration, exerts an external influence on the body and results in injury or death.
It is therefore not sufficient simply to state: „the injury occurred whilst the person was employed in Germany”.
In the proceedings, it is important to demonstrate, amongst other things:
- where and when the incident took place,
- what work the employee was carrying out,
- what was the mechanism of the injury,
- anyone who witnessed the incident,
- when the accident was reported to the employer,
- what injuries were identified immediately after the accident,
- whether the current health problems are causally linked to that incident.
In our client’s case, an additional difficulty was the occurrence of two events.
It was necessary to determine whether the second accident constituted a new ‘Arbeitsunfall’ or whether it had led to a worsening of the injury resulting from the first accident. This is relevant to the insurer’s liability and to determining which incident is the cause of the current need for surgery.
Who pays for medical treatment following an accident at work in Germany?
This is one of the most frequently asked questions:
„I’ve had an accident at work in Germany – who will pay for my treatment?”
In the case of a recognised accident at work, the primary body responsible for medical treatment need not necessarily be a standard German health insurance fund (Krankenkasse).
The relevant German statutory accident insurance body plays a key role; very often, this is a sector-specific body Berufsgenossenschaft (BG).
In accordance with § 26 of SGB VII An insured person may be entitled, amongst other things, to medical treatment, medical rehabilitation, benefits to facilitate a return to work, and cash benefits. The accident insurer should take appropriate measures to eliminate or mitigate the effects of the injury caused by the accident.
Therefore, the first step in such a case is to establish:
Which Berufsgenossenschaft is handling the case and what is its reference number?.
Can the Berufsgenossenschaft cover the cost of an operation in Poland?
This possibility cannot be ruled out simply because the treatment is to be carried out outside Germany.
Cross-border situations are governed primarily by Regulation (EC) No 883/2004 of the European Parliament and of the Council relating to the coordination of social security systems.
In the case of accidents at work, the following is of particular importance: Article 36 of Regulation No 883/2004. It provides for the possibility of receiving benefits in respect of an accident at work even where the injured person is staying or residing in a Member State other than the one responsible for the insurance.
This means that the fact that an employee is insured in Germany, whilst treatment is to take place in Poland, does not in itself preclude funding.
However, this does not mean that the patient should arrange a private operation in Poland on their own, pay the bill and then expect an automatic refund.
When planning treatment, it is essential to obtain the necessary consent and documentation before the operation.
DA1 or S2 – which document is required for medical treatment in Poland?
This is one of the most important aspects of such cases.
In the case of an ordinary planned treatment abroad a document often appears S2, which confirms the competent authority’s approval of a specific course of treatment in another country.
However, if the treatment is directly related to an accident at work or an occupational illness, the document is also important DA1, previously known as the E123 form.
The National Health Fund states that benefits relating to accidents at work or occupational diseases may be provided in Poland on the basis of DA1/E123. The National Health Fund (NFZ) also points out that, in the case of planned treatment for an insured person in another EU country, the S2/E112 forms are used, whilst the DA1/E123 form may apply in the case of accident-related benefits.
Therefore, in the present case, we would not limit the question to:
„Will I get an S2?”
You should ask the German authority to state clearly:
on what basis will treatment in Poland be funded, and which document (DA1, S2 or another coordination document) should be issued in the patient’s specific situation.
What documents do you need to obtain from Germany following an accident at work?
In cases such as these, one of the most important stages of our work is compiling the documentation.
The main things you should obtain from your employer and the German authorities are:
- a copy Accident Report, i.e. accident reports,
- the name of the relevant Berufsgenossenschaft,
- accident case number,
- correspondence from the Berufsgenossenschaft regarding the recognition of the accident,
- the documentation relating to the first accident and – if a further incident occurred – the subsequent accident,
- documentation from the accident doctor – Accident and Sickness Insurance Doctor (D-Arzt),
- X-ray, MRI, CT or other scan results,
- discharge summaries,
- certificates of incapacity for work,
- rehabilitation records,
- recommendation to undergo surgery,
- a medical document showing the link between the planned operation and the accident at work.
The last point is particularly important.
For the insurer, it is not enough simply to state that the operation is medically necessary. It must be demonstrated that the need to carry it out is linked to an accident at work.
Does an employer in Germany have to report an accident at work?
Yes, in certain situations.
In accordance with § 193 of Book VII of the Social Code (SGB VII) An employer is obliged to report an accident to the relevant accident insurer if an employee has died or sustained injuries resulting in an inability to work for a period exceeding three days.
In practice, it is therefore worth checking whether the employer has actually reported the incident and what exactly was included in the application.
If there have been two accidents, both must be investigated.
In the case we were handling, it was particularly important to establish whether the second incident had been treated as a separate accident or merely as a continuation of the treatment for the first injury.
What should you do if your employer has not reported an accident in Germany?
A failure on the part of the employer to act correctly should not mean that the employee has to remain passive.
You can submit your own report and application to the relevant Berufsgenossenschaft requesting a determination that an accident at work has occurred.
Such a letter should set out the chronology very precisely:
the date and place of the accident, the work being carried out, the mechanism of the injury, any witnesses, how the incident was reported to the employer, the course of treatment, the period of incapacity for work, and the current health consequences.
If two events have occurred, their details should not be mixed up. Each should be described separately.
How do you prepare an application for funding for surgery in Poland?
In the case of a client who has already been assessed as eligible for treatment in Poland, simply filing an accident report is not enough.
You must also provide the German authority handling the case with documentation relating to the procedure.
The Polish branch should prepare, amongst other things:
- diagnosis,
- eligibility for surgery,
- a description of the planned procedure,
- the medical justification for carrying it out,
- expected date of the operation,
- information on the required length of hospital stay,
- details of the healthcare facility and the doctor,
- a cost estimate, if required,
- information on the costs of implants, materials, tests and rehabilitation,
- documentation showing the link between the treatment and the consequences of the accident.
If the treatment is to be provided under the Polish public healthcare system, you should also check with the healthcare facility to find out what coordination document is required.
The National Health Fund (NFZ) states explicitly that S2 relates to a specific treatment planned within the public healthcare system, and a person insured in another EU country is then entitled to benefits in accordance with the rules in force in Poland.
On the Polish side, the following provisions are also relevant the Act of 27 August 2004 on healthcare services financed from public funds, which regulates, amongst other things, the conditions for the funding of benefits and the institutional rules for the application of EU legislation on the coordination of social security systems.
What if the Berufsgenossenschaft does not recognise a link between the operation and the accident?
In that case, the second option – funding under the German statutory health insurance scheme – should be considered.
In accordance with § 13(4) of SGB V A German insured person may, under certain conditions, use healthcare providers in another EU country and claim reimbursement of costs.
In the case of hospital treatment, the rules are stricter. § 13(5) of SGB V It provides, as a general rule, that prior authorisation must be obtained from the Krankenkasse for hospital treatment in another Member State.
EU legislation on planned treatment and cross-border healthcare provides for a similar arrangement. Article 20 of Regulation 883/2004 stipulates that authorisation must be obtained from the competent institution when travelling to another country for planned treatment.
Directive 2011/24/EU, on the other hand, allows Member States to introduce a requirement for prior authorisation, primarily for specific services, including treatment requiring hospitalisation or highly specialised facilities.
We therefore do not recommend undergoing a costly planned operation abroad without first agreeing on the financing arrangements.
What benefits are you entitled to following an accident at work in Germany?
Classifying an incident as a work-related accident may have much wider implications than simply covering the costs of the operation.
Depending on the circumstances, the injured party may be entitled to, amongst other things:
- covering the costs of treatment for injuries resulting from an accident,
- rehabilitation,
- benefits relating to the restoration of the ability to work,
- benefits to facilitate a return to work,
- Injury benefit,
- where applicable, an accident pension – Disability Pension,
- specific benefits relating to the long-term consequences of an accident.
Verletztengeld – benefit during incapacity for work
In accordance with § 45 of Book VII of the Social Code (SGB VII) Injury benefit may be payable, amongst other things, where, as a result of an insured event, an employee is unable to work or is unable to carry out gainful employment due to medical treatment.
His Highness regulates § 47 of Book VII of the Social Code (SGB VII). As a general rule, the benefit amounts to 80%, the so-called ‘Regelentgelt’, but it must not exceed the calculated net pay.
However, the exact amount always requires individual calculations.
Injury pension – accident-related pension in Germany
If the effects of the accident are long-term, it is also necessary to investigate whether there is Reduced earning capacity (MdE), i.e. a reduction in earning capacity.
In accordance with § 56 of Book VII of the Social Code (SGB VII) One of the basic conditions for entitlement to a pension is that, after the 26th week following the event, the reduction in earning capacity remains at a level of at least 20%.
However, the percentage of medical impairment should not be equated with the MdE – in the German system, this is a separate assessment of the impact of the consequences of an accident on a person’s ability to function in the labour market.
A second accident following a return to work – why is it necessary to examine the employer’s obligations?
In our case, the employee returned to work after an initial period of treatment and subsequently suffered another injury.
In such circumstances, we also examine the conditions under which the return to work took place.
German law Occupational Safety and Health Act (ArbSchG) requires employers to organise work in a way that takes account of the health and safety of employees.
In accordance with § 5 of the ArbSchG The employer should carry out a risk assessment of work-related hazards – Risk Assessment. Section 12 of the ArbSchG, in turn, imposes an obligation to provide employees with appropriate training in health and safety.
So, if the second accident occurred shortly after the employee returned to work following a serious injury, it is also worth ensuring that:
- a risk assessment for the post,
- health and safety training records,
- information regarding an employee’s health restrictions,
- the doctor’s advice,
- documentation relating to a return to work,
- witness details,
- CCTV footage, if available,
- documentation relating to the internal investigation following the second accident.
Are you entitled to compensation following an accident at work in Germany?
It’s a frequently searched phrase, but it requires some explanation.
The German statutory accident insurance scheme does not work in exactly the same way as a traditional claim for a one-off „compensation for pain and suffering”.
First and foremost, the system is based on statutory accident insurance benefits: treatment, rehabilitation, injury benefit or – if the conditions are met – a disability pension.
Hence the question:
„How much compensation will I receive for an accident at work in Germany?”
'often' should be replaced with a more precise term:
„What benefits am I entitled to under the German accident insurance scheme following my accident?”
Only after analysing the circumstances of the incident can it be assessed whether there are grounds for other claims.
How do we assist with cases involving accidents at work in Germany?
At the International Law Practice, we handle cross-border cases in which a Polish employee suffers an accident whilst working in Germany, and where further treatment, rehabilitation or surgery is to take place in Poland.
Depending on the situation, support may include:
- an assessment of whether the incident meets the criteria for an ‘Arbeitsunfall’,
- determining the relevant Berufsgenossenschaft,
- to check whether the employer has reported the accident,
- preparing an accident report for a German authority,
- correspondence with the Berufsgenossenschaft,
- analysis of medical records,
- preparing an application for reimbursement of medical expenses in Poland,
- determining the appropriate procedure – including the DA1/E123 or S2/E112 issues,
- enquiries regarding the documents required by a Polish institution,
- an assessment of entitlement to Verletztengeld or Verletztenrente,
- an analysis of the decision to refuse and the options for appealing against it,
- co-ordination of the matter between the German and Polish institutions.
In cross-border cases, the biggest problem is often not the lack of entitlement to benefits, but the absence of the relevant document, an incorrectly submitted claim, or failure to provide sufficient evidence of the link between the accident and the subsequent treatment.
An accident in Germany, an operation in Poland – what should you do, step by step?
If you find yourself in a similar situation, the first thing you should do is:
- Identify the relevant Berufsgenossenschaft and the accident case number;
- Check whether your employer has reported the accident and obtain a copy of the Unfallanzeige;
- Gather all the relevant German medical records, in particular the documents issued by the Durchgangsarzt;
- Obtain a referral for the operation and a description of the procedure from a Polish doctor;
- Obtain medical confirmation that the operation was a result of an accident at work;
- Before the operation, please request formal confirmation of funding for your treatment in Poland;
- Determine whether a DA1, S2 or another document should be issued in this case;
- Do not assume in advance that any costs you pay out of your own pocket will be reimbursed in full at a later date.
Frequently Asked Questions – Accidents at work in Germany
I had an accident at work in Germany. Can I receive treatment in Poland?
Yes, this is possible, but the method of funding depends on the nature of the treatment, the patient’s place of residence, the relevant insurer and the legal basis for the benefit. When treating the consequences of an Arbeitsunfall, the first step is to agree on the terms with the relevant German accident insurer.
Will the German Berufsgenossenschaft cover the cost of an operation in Poland?
There may be grounds for the costs of treatment in Poland to be covered if the operation is necessary as a result of an accident at work. However, you should not begin any planned, costly treatment without first clarifying the arrangements for its funding.
What is DA1?
DA1 is a document used in the EU-wide coordination of benefits relating to accidents at work and occupational diseases. The E123 form used to be in use.
What is S2?
An S2 form is a document confirming the consent of the competent authority for a specific planned course of treatment in another country covered by the coordination rules.
Will the European Health Insurance Card (EHIC) be sufficient for my planned operation in Poland?
As a general rule, the EHIC is primarily intended for medical treatment that becomes medically necessary during a temporary stay. The EHIC should not be regarded as automatic authorisation to travel to Poland for a pre-arranged operation.
Can I report an accident to the Berufsgenossenschaft myself?
If there are any doubts regarding the report submitted by the employer, it is advisable to contact the relevant Berufsgenossenschaft directly and provide details of the incident and the relevant documentation.
Are you entitled to Verletztengeld following an accident in Germany?
It may be payable if the conditions set out in SGB VII are met, in particular where the incapacity for work results from an accident covered by insurance.
Am I entitled to a disability pension following an accident in Germany?
If the consequences of an accident are long-term and result in a corresponding reduction in earning capacity, you may be entitled to a disability pension. However, each case must be assessed on its own merits.
Legal assistance following an accident at work in Germany
If You are working in Germany, have had an accident at work, and your further treatment or operation is to take place in Poland, it is worth sorting this out before the planned treatment begins.
At the International Law Practice, we handle cross-border cases between Poland and Germany, including proceedings relating to accidents at work, dealings with German insurance companies, and matters concerning the financing of medical treatment in Poland.
We analyse the client’s documentation, identify the relevant authority, draft correspondence in German and assist in handling the case in a manner that takes into account both German accident insurance regulations and EU and Polish rules on cross-border medical treatment.
Have you had an accident at work in Germany and need treatment or an operation in Poland? Please contact the International Law Firm. We will analyse the documents and determine what action needs to be taken in relation to your employer, the Berufsgenossenschaft, the Krankenkasse and the Polish medical facility.
This article is for information purposes only and does not constitute legal advice in any individual case. The scope of benefits and the applicable procedure depend on the specific circumstances, insurance status, the content of medical records and the decisions of the relevant authorities.
