Unconstitutionality of Article 39 (1) of the Work Risk Law

In re: "Aquino, Isacio vs. Cargo Servicios Industriales S.A. in re: Industrial Accident - Law 9688", as a result of an accident suffered by an employee, a permanent total (100%) disability was determined whereby the employee was impeded from carrying out any type of activity in the future.

As the case involves an industrial accident, the situation falls under the regime set forth by the Work Risk Law, which establishes a system of caps onf workers' compensation as a result of industrial accidents.

Article 39, subsection 1 of the Work Risk Law rules: "The provisions of this law exempt employers of any and all civil liability to their workers and successors thereto, with the sole exception of that deriving from article 1072 of the Civil Code." Through this provision, it is established that employers are exempt of civil liability when faced by damages suffered by their employees.

In this case, as a consequence of the cap provided for by the Work Risk Law at the time of the accident, the disabled worker was to collect a compensation of AR$ 55,000.

Tribunal VI of the Court of Appeals in Labor Matters found for the unconstitutionality of the questioned rule. The defendant therefore filed an extraordinary appeal for the issue to be heard by the Supreme Court.

The Supreme Court found for the unconstitutionality of the article in question, given that the provision encroaches on the rights of the injured worker to file a broader claim for compensation; moreover the worker must be entitled to a compensation for loss of chance, as the accident had deprived the victim of future potential promotions and of the chance to pursue his career.

The Supreme Court held that contrary to what occurs in the civil courts, the Work Risk Law deviates from the concept of integral compensation, in that it does not admit any compensation whatsoever for any injury other than the loss of a worker's earning capacity, which in turn, proves restrictively proportionate.

The Working Risk Law only compensates material damages and, within the latter, only lost profits and loss of earnings, which, moreover, are narrowly appraised.

The Supreme Court cited as grounds for its decision treaties in the matter of Human Rights incorporated to the Argentine Constitution and the International Agreement on Economic, Social and Cultural Rights.

The Court found that, on excluding the tutelage of articles 1109 and 1113 of the Civil Code, the Work Risk Law does not conform to the constitutional guidelines and denies the protection of the psychological, physical and moral integrity of the worker.

Under such conditions, the Court held article 39, subsection 1 of the Work Risk Law unconstitutional as it exempts the employer from civil liability and authorized workers to claim an integral redress.

Notwithstanding the finding for unconstitutionality of the article, the Court closed with two caveats:

(i) The finding for the unconstitutionality decree does not imply censure of any legal regime that limits the compensation for damages, including the Work Risk Law.

(ii) The fact that a provision of the Work Risk Law exempting employers from civil liability is constitutionally invalid, does not necessitate that the work risk insurers (ART) should prove released of having to satisfy the obligations undertaken in the framework of said Law.

The decision was signed by six of the present members of the Supreme Court with no vote in dissidence. Justices Belluscio, Boggiano, Maqueda and Highton de Nolasco voted their own opinions.

The decision of the Supreme Court of September 7, 2004 in re: "Castillo, Angel Santos vs. Cerámica Alberdi S.A." must be added to this new scenario. On this occasion, the Supreme Court found for the unconstitutionality of article 46, subsection 1 of the Work Risk Law. The aforementioned provision ruled that resolutions adopted by the provincial medical committees, can only be revised and substantiated before a federal court having the corresponding jurisdiction in each province or before the Central Medical Committee, at the worker's option. According to the statements made by the Court on this occasion, this rule "restricts the jurisdictional authorities of the provinces inherent to the legal concept of autonomy”.