KOSTELKA: ELECTRICITY ACCIDENT
In the 30th January broadcast Ombudsman Dr. Peter Kostelka was bringing up the case of the 22-year-old Patrick Mayrhofer, who had suffered from a work accident on the 9th of Feb-ruary 2008: When he was setting up high voltage circuit lines in a cement factory, several health and safety rules were neglected. One of his colleagues responsible for health and safety ignored all rules and set free the current on the instructing company’s urging. Therefore, Mr. Mayerhofer got into the high voltage circuit of 6000 volt and was badly injured on both arms and hands and one thigh.
Several medical operations were the consequence. The young man lost the thumb and the middle finger of his red hand, while his left hand is even worse and of no more use. In addition to that, he suffered from an 8 cm deep and 20 cm wide wound on the right thigh where the current entered. Many scars on his body still show the effects of this accident. He has a 100 % reduction in earning capacity as he is no longer able to work as an electro energy technician. It is still possible that his left hand has to be amputated. Currently Mr. Mayerhofer is doing a retraining programme with his employer to become an automation technician.
The accident assurance which is funded by employers’ contributions has covered the costs for healing and rehabilitation and is now financing his injured person’s pension and the retraining. However, Mr. Mayerhofer did not get an injury award or a similar compensation. The reason for that is the so called employer’s liability privilege which dispenses employers and equivalent persons like supervisors from compensating losses in case of light and gross negligence in context of work accidences. Therefore, it is not possible to claim an injury award or a compen-sation for disfigurement by civil law, although the accident assurance does not concede com-parable benefits.
To avoid cases hardship the so called integrity compensation was established 20 years ago. According to § 213a ASVG this compensation is conceded, if the work accident was the result of a gross negligence of the employer or an equivalent person (supervisor) in the fulfilment of health and safety regulations. Inquiries done by the official representation of employees Vienna (Arbeiterkammer Wien) revealed that the AUVA (General Accident Assurance) is only conceding integrity compensation eight times a year on average.
In the case of Mr. Mayerhofer the AUVA thinks that the conditions to concede integrity compensation are not given, although a punitive sentence was rendered after reconstructing the accident with the help of an expert witness: Mr. Mayerhofer’s colleague responsible for health and safety during the accident was sentenced to a monetary penalty because of a negligence leading to a severe body injury. At the moment the ongoing civil trial with the AUVA is dealing with the questions if this negligence was slight or gross.
Ombudsman Dr. Kostelka isn’t satisfied with this situation: This case shows that the existing regulation is not able to protect even a severely injured person in the context of a work situa-tion in which risks immediately rise when health and safety rules are neglected. To him it is also clear that a gross negligence led to the accident. Due to Dr. Kostelka it is therefore really desirable that the AUVA pays integrity compensation to Patrick Mayerhofer without a long-lasting court trial. In this tragic case, in which Mr. Mayerhofer nearly died, current was set free early than planned and convened on; seven health and security rules have been neglected. What can this be but gross negligence?
The more severe the consequences of failures can be, the more dangerous it is to neglect even simple security rules. In the opinion of Ombudsman Dr. Kostelka it is the task of the legislation to ease the access to integrity compensation. He is willing to discuss this with the deputies.