Workplace accident: the rules for your compensation are changing

Have you been the victim of a work-related accident or occupational disease attributable to a breach of duty by your employer? Recent decisions by the Court of Cassation have changed the rules of compensation, particularly regarding what can be compensated, in addition to an annuity, when the employer's inexcusable fault is recognized.

1. What changes in concrete terms

When an employee who is the victim of a work accident brings an action for inexcusable fault against his employer, he first encounters the framework of the system of work accidents and occupational diseases.

The date of consolidation of his injuries—that is, the moment when his health condition is considered stable—is determined by the primary health insurance fund (CPAM). The same applies to the permanent disability rate used to calculate the work-related accident annuity.

As long as these decisions are not challenged within the specific procedures and time limits, they serve as a basis:

• to the calculation of statutory benefits (daily allowances, annuity or lump sum compensation);
• to the increase in the annuity in the event of inexcusable fault on the part of the employer.

On the other hand, for common law damages (physical and moral suffering, permanent functional impairment, aesthetic damage, loss of enjoyment, need for assistance by a third party, etc.), the judge is not strictly confined to the CPAM's administrative rate alone: ​​he assesses these damages according to the general rules of civil liability law, based in particular on an independent judicial medical assessment.

2. The new rule: the annuity no longer compensates for permanent functional impairment

2.1. The previous situation

For a long time, the AT/MP annuity was considered to compensate for both:

• loss of professional earnings ;
• theprofessional impact of the disability;
• and permanent functional impairment ( the permanent reduction of your physical or mental abilities in daily life).

In this context, the victim could not claim, on the grounds of inexcusable fault, separate compensation for his permanent functional impairment, the latter being deemed already covered by the annuity.

2.2. What the 2023 decisions say

Since two rulings of the Plenary Assembly on January 20, 2023, the Court of Cassation has changed its position: the annuity (or the capital compensation) no longer compensates for the permanent functional deficit.

In practice, this means that:

• In the event of recognized inexcusable fault, the victim may claim, in addition to the annuity, supplementary compensation for their permanent functional impairment ;
• She can also obtain compensation for her physical and moral suffering, aesthetic damage, loss of enjoyment of life, certain costs of adapting her home or vehicle, or assistancefrom a third party, provided that these items are not already covered.

2.3. Limitations to be aware of

This positive development does not allow for the reopening of all cases:

• if an irrevocable court decision has already compensated all of your damages on the basis of inexcusable fault before this reversal, you cannot in principle return to the judge to separately claim permanent functional impairment: theauthority of res judicata prevents a new claim on the same basis;
• The judge must ensure that no double compensation is : the same damage cannot be compensated twice under different headings.

3. Should we still take into account the decisions of the CPAM?

Yes, but not for everything and not in the same way.

3.1. What remains fixed by the CPAM

The date of consolidation and the rate of permanent disability set by the CPAM (French Health Insurance Fund), when not contested within the prescribed time limits, remain binding:

• for the calculation of daily allowances ;
• for the determination of the annuity or capital compensation ;
• for the increase in the annuity in the event of inexcusable fault.

The judge seized of the inexcusable fault cannot, in this context, redo himself the determination of the date of consolidation or the rate of incapacity which should have been contested in the specific litigation of the work accident.

3.2. What the judge can freely assess

On the other hand, foradditional compensation due in the event of inexcusable fault, the judge assesses personal damages under common law (suffering, permanent functional impairment, aesthetic damage, loss of enjoyment, need for assistance by a third party, etc.) according to the general rules of personal injury, based in particular on a judicial expert assessment.

Therefore, for these items of damage, it is not strictly bound by the sole administrative rate of incapacity retained by the CPAM, even if it can take it into account as one element of assessment among others.

4. Why it remains urgent to gather information

Even in the absence of a "deadline" set by decree, victims have every interest in not delaying.

4.1. Strict limitation periods

The limitation periods for inexcusable negligence are governed by law and case law and can be influenced by:

• the date of recognition of the work accident or occupational disease;
• the steps taken with the CPAM;
• any attempts at conciliation;
• the introduction or not of a first instance.

Personalized advice is often needed to accurately determine the remaining time to act.

4.2. Evidence that deteriorates over time

The longer time passes, the more difficult it can be to gather the necessary evidence:

• testimonies from colleagues or superiors;
• internal company documents (safety instructions, registers, accident reports);
• medical elements contemporary with the events.

Hence the importance of finding out about your rights and deadlines without delay

5. How does the process work in practice?

5.1. To have the inexcusable fault recognized

The first step is to have the employer's inexcusable fault recognized before the social division of the judicial court, after the phase of referral to the CPAM and, where applicable, the attempt at conciliation.

The aim is to demonstrate that the employer was or should have been aware of a danger to the employee and that he did not take the necessary measures to protect him from it (lack of safety equipment, lack of training, failure to comply with regulatory instructions, etc.).

5.2. Obtaining a forensic medical examination

An independent forensic medical assessment , separate from the opinion of the CPAM's medical advisor, is then generally requested in order to:

• describe your after-effects precisely;
• to appreciate your physical and emotional suffering ;
• assess your permanent functional impairment according to the scales and criteria for bodily injury;
• list your potential needs (human assistance, home or vehicle adaptations, etc.).

5.3. Quantify all compensable damages

Based on this expert assessment, the various categories of damages that can be compensated in addition to the annuity are quantified:

• physical and moral suffering;
• permanent functional deficit;
• aesthetic damage;
• loss of enjoyment of life;
• need for assistance from a third party;
• costs of adapting housing or vehicle, etc.

Legal counsel can, in particular, help with:

• to target the right parts to produce;
• to precisely formulate the questions posed to the court-appointed expert;
• to secure the timetable with regard to the limitation periods;
• to verify that the requests made do not lead to double compensation.

6. In summary

• Work accident compensation no longer covers permanent functional impairment : in the event of recognized inexcusable fault, this item may be subject to additional compensation , in addition to the compensation.
• The judge remains bound by the decisions of the CPAM for legal benefits (daily allowances, annuity), but he has an autonomous margin of appreciation to assess your personal damages under common law, based in particular on a judicial expert assessment.
• The time limits for taking action and the effects of decisions already made (res judicata) require you to quickly check your situation so as not to miss out on your rights.

Do you think you might be affected by this situation? Specialized support can help you assess your rights to compensation and conduct the procedure before the social division of the judicial court. The social law department of the Arst Avocats firm is able to assist you.

7. FAQ Box

What is an employer's inexcusable fault?
It is a particularly serious failure by an employer to fulfill their safety obligation, characterized when they were or should have been aware of a danger to an employee and did not take the necessary measures to protect them from it.

What is the date of consolidation?
It is the date on which the victim's health is considered stabilized, beyond which only permanent after-effects remain. It serves as the basis for calculating several benefits (daily allowances, annuity) and for increasing the annuity in cases of inexcusable negligence.

Is the CPAM's decision still binding on the judge?
Yes, for the payment of statutory benefits (daily allowances, annuities, lump-sum compensation) as long as it has not been challenged in the prescribed manner. However, forsupplementary compensation due in cases of inexcusable negligence, the judge assesses personal injury damages under common law (pain and suffering, permanent functional impairment, etc.) according to the general rules of personal injury, based in particular on a court-ordered expert assessment.

Can the annuity and compensation for permanent functional impairment be combined?
In the event of recognized inexcusable fault, the victim can receive both their AT/MP annuity and additional compensation for their permanent functional impairment, as well as other personal damages, provided that they have not already been definitively compensated by a previous court decision.

Should you act quickly?
Yes. The time limits for taking action to have inexcusable negligence recognized are strict and can be interrupted or suspended by certain procedures. It is therefore important to find out without delay about the time limits applicable to your situation and the status of your claim with the CPAM (French Health Insurance Fund).

If you are facing a workplace accident issue, please contact us.

Article written by Olivier Paquereau