Commute Chaos

The new Ruling 39140-2024, issued by Chile's Superintendence of Social Security, represents a paradigm shift in understanding work-related accidents. It recognizes injuries suffered during a robbery as part of the work-related commute or In Itinere accidents.

At 6:30 AM on January 2, 2024, a worker waiting for public transportation to go to work was robbed of his cell phone. The worker chased the thief and, during the struggle, fell and suffered a wound and bruises on the knee.

Is that an accident of a work-related nature? This definition will be crucial (although not exclusive) in the claims adjuster's analysis when determining the admissibility of the Employer's Liability insurance coverage, typically included in Liability insurance policies.

Through liability insurance, the aim is to protect individuals, professionals, and businesses for their liability in situations that have caused injuries or material damage to third parties, resulting in compensation claims from those affected. With a total of 207,477 reported work and commuting accidents in Chile in 2023, liability insurance with employer liability coverage is becoming increasingly necessary.

In Chile, Law No. 16,744 establishes rules on Work Accidents and Occupational Diseases, defining what constitutes a work accident. Article 5 of said Law states that "accidents occurring directly on the way to or from work, between home and the workplace, and those occurring directly between two workplaces are also considered work accidents”.

Based on the concepts provided in that Law, a specific institution, mandated by law, will be responsible for determining the origin of the accidents by means of the Resolution of Origin Qualification of Work Accidents and Occupational Diseases ("RECA", by its acronym in Spanish).

For the claims adjuster's analysis, the "RECA" document is essential, as the coverage of the Employer's Liability clause will be admissible upon the qualification of the accident's nature (among other requirements). Thus, if the insurance coverage stipulates that the accident must be work-related, it will be necessary for the "RECA" to also qualify it as such. Similarly, if the insurance's specific conditions extend Employer's Liability coverage to accidents during commutes or “in itinere”, it will also be necessary for the "RECA" to determine the accident's nature as "commuting accident.“

In this particular case, the institution mandated to qualify the accident's nature classified the incident as "common," stating that "the circumstances that caused the worker's injury are not part of the risks inherent to the commute, as the injuries occurred when he decided to pursue the person who had stolen his cell phone. Therefore, it is concluded that this misfortune should not be classified as a 'Work Accident' during the commute as defined by Law 16,744."

Should the Employer's Liability coverage of the insurance policy include the additional clause to cover commute accidents or “in itinere”, the classification of the accident in question as a "common accident" determines the inapplicability of the Employer's Liability coverage.

In response to the qualifying body's decision, the worker filed an administrative claim upon the Chilean Superintendence of Social Security, which resolved, through Ruling 39140-2024, dated March 11, 2024, that "workers who commute daily between their home and workplace are exposed to aggressiveness, in general, to crimes against people and property, so it cannot be said that being a victim of aggression or theft, as in this case, is not an inherent risk of the commute," and that "in this case, the fact that the affected party pursued the thief who stole his cell phone does not prevent the recognition of the misfortune as a work-related incident during the commute."

The Ruling issued by the Superintendence of Social Security is not only relevant to the incident under study, but also establishes a significant precedent that could impact claims adjustment processes, expanding the scope of the additional Employer's Liability coverage when referring to commute or “in itinere” accidents.

This is particularly relevant as reports of crimes in Chile have increased by approximately 11% from 2018 to 2023 according to data provided by the Chilean Public Ministry, making it foreseeable a sustained increase in reports of workers injured by criminal acts during their commutes to or from their workplaces.

The qualification of whether an accident during the commute to work is work-related or common is essential in determining the Employer's Liability insurance coverage, and for this purpose, the Ruling of the Superintendence of Social Security establishes a relevant precedent that could expand the scope of the Employer's Liability insurance coverage for commute accidents.

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