Higher Social Court (LSG) - Hesse, Judgment as of 9/30/2011
File number L 9 U 46/10

Key issues

Proceedings before the Social Court regarding compensation out of occupational accident insurance; claim exists even if employment is illegal; extensive comments on the concept of "employment relationship" and on the distinction between self-employment and dependent employment (i.e. regular employer/employee relationships).

Summary

The Higher Social Court acting as a review court affirmed the plaintiff’s claim against a trade association for compensation out of an occupational accident insurance plan. According to section 1 of the seventh German Social Security Code (SGB VII), the purpose of accident insurance is to prevent occupational accidents, occupational illnesses and work-related health hazards, to restore the health and the working capacity of the insured after occupational accidents or occupational illnesses, and to compensate them or their surviving dependents in the form of monetary benefits. Persons in a dependent employment relationship are insured by operation of law pursuant to section 2 (1) SGB VII.

The plaintiff, a Serbian national, entered Germany in 2002 on a tourist visa without a work permit. He worked on a bridge construction site where he suffered an electrical injury in an accident on his first day of work, which made it necessary to amputate limbs.
The central issue in the proceedings was whether the plaintiff had worked as a self-employed person on the construction site or whether he had worked on a dependent employment basis. Only dependent employees fall automatically within the protection afforded by occupational accident insurance. The court made extensive comments on the distinction between self-employment and dependent employment. Particularly suggestive of work that is not being carried out on a self-employed basis is when the employer has the right to give instructions and to supervise, and when the employer supplies the working materials.
In the plaintiff’s case, the court was satisfied on the basis of the testimony of the witnesses that the plaintiff had worked as a dependent employee. He was bound by the employer’s instructions, was supplied with the working materials, and there was a wage agreement. The fact that there was no written employment contract did not detract from this. The plaintiff’s claim was also not thwarted by the fact that he had only worked one day, since even employees in probationary periods are covered by occupational accident insurance. Neither does the fact that the employment was illegal preclude insurance protection.
Because there was no doubt that the activity that caused the accident was related to the work, the court held that there was a claim to compensation.

Decision in full text:

LSG_Hessen_30_09_2011 (PDF, 133 KB, not barrier-free, in German)

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