Work-related accidents caused by third-party infringement occur from time to time, and there are also special circumstances such as employees who are injured while working outside the company or are involved in motor vehicle traffic accidents on their way to and from work. In this case, there will be a competition between work-related injury insurance compensation and tort damages, so can an employee receive work-related injury insurance compensation and personal injury compensation at the same time when the work-related injury is caused by a third-party tort?
Q: My son is engaged in the construction industry, and he registered and established one in HunanpcsLabor companies. A worker who signed an employment contract with his labor company was accidentally broken by a third party while working on the construction site. The location of the construction site is Shanghai, and the household registration of the injured person is Henan. The labor service company has bought commercial accident insurance for the workers, but has not paid the work-related injury insurance for the workers, what should I do?
Answer: According to the relevant provisions of the Reply of the General Office of the Ministry of Labor and Social Security on the Issue of Whether You Should Participate in Work-related Injury Insurance after Participating in Personal Accident Insurance in Commercial Insurance (Lao She Ting Han No. 2001 No. 113), work-related injury insurance is an important part of social insurance and a social security system enforced by the state. According to Article 72 of the Labor Law, which stipulates that "employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law", enterprises within the territory of China are required to participate in work-related injury insurance and pay work-related injury insurance premiums in accordance with the law, regardless of whether they have participated in personal accident insurance in commercial insurance. Personal accident insurance is not a substitute for workers' compensation insurance. While participating in work-related injury insurance, enterprises can apply for personal accident insurance for employees according to the actual situation of their own units.
Therefore, even if our company purchases any commercial insurance for the employee, it cannot exempt the employer from the responsibility of paying the work-related injury insurance for the employee, and in the case of a work-related accident accident, because the employer fails to pay the work-related injury insurance for the employee, the economic compensation that should have been paid by the work-related injury insurance account will be borne by the employer itself. This kind of insurance behavior of the employer is purely a benefit given to the employee, and cannot play a role in replacing the work-related injury insurance. Therefore, the worker's employer cannot be exempted from the compensation for work-related injury insurance benefits. However, there are some controversies in specific judicial practice, and the Shandong High Court held that the purpose of the employer's purchase of commercial insurance is to legally reduce the employment risk, and that it is more in line with the principle of fairness and reasonableness to reduce the employer's liability for work-related injury insurance benefits when the employee has already received compensation from accident insurance or other commercial insurance.
Q: In this case, if there is a third party under the tort legal relationship and the work-related injury insurance benefits under the labor law relationship, does the labor service company have to pay the work-related injury compensation separately after the third party pays the tort compensation?
Answer: In the judgment (2021) Xiang 05 Min Zhong No. 3027 of the Shaoyang Intermediate People's Court, the court held that according to the relevant laws and regulations, the worker was injured due to the infringement of a third party. If the injury constitutes a work-related injury and the tortfeasor has already compensated, the worker has the right to request the employer to pay the work-related injury insurance benefits other than medical expenses, because the wages during the period of suspension of work with pay do not fall within the scope of medical expenses for work-related injuries, even if the injured employee receives the compensation for lost work from a third party, the employer shall still pay the wages for the period of suspension of work with pay, and the original wages and benefits shall remain unchanged and shall be paid by the employer on a monthly basis during the period of suspension of work and wages。
According to the Answers to Several Questions Concerning the Trial of Cases of Competing Cases of Work-related Injury Insurance Compensation and Third-Party Tort Damages, the First Civil Trial Division of the Shanghai High People's Court stated that the characteristics and functions of the two different compensation systems for work-related injury and tort damages should still be considered in cases where work-related injury insurance compensation and tort damages are competing. After comparing and analyzing the compensation items determined by the two compensation systems, the same and overlapping items in the work-related injury insurance compensation and tort damages are mainly as follows, namely: the original salary and welfare benefits in the work-related injury insurance compensation (lost work expenses in tort damages), medical expenses, nursing expenses and living care expenses during the period of suspension of work and salary (nursing expenses in tort damages), hospital meal subsidies, transportation expenses, medical accommodation expenses in other provinces and cities (medical accommodation and food expenses in other provinces and cities in tort damages),* expenses (** fee, ** nursing fee, appropriate cosmetic surgery fee, follow-up fee in tort damages, etc.), assistive device fee (disability assistive device fee in tort damages), pension for dependent relatives (living expenses of dependents in tort damages), funeral allowance (funeral expenses in tort damages) and other expenses, if these items are repeatedly compensated, it violates the principle of filling in the civil law and the principle of actual compensation. Therefore, for the above-mentioned items, it is more reasonable to adopt the method of determining the same compensation item in accordance with the principle of highness.
The "high principle" refers to the calculation principle that the higher amount of the above-mentioned tort damage and work-related injury insurance is the same and duplicate compensation items, and the higher amount of the two is determined as the amount of compensation to be received by the employee according to their respective calculation standards.
If the employee suffers personal injury due to the infringement of a third party and the infringer has already compensated for the injury, the employee has the right to request the employer to pay the work-related injury insurance benefits in addition to medical expenses. If the employer pays the work-related injury insurance benefits in advance, it may recover the medical expenses from the third party within the scope of the liability for compensation. The medical expenses here should be broadly understood to include medical expenses, nursing expenses, nutrition expenses, transportation expenses, hospital meal subsidies, disability assistive devices and other expenses based on work-related injuries, but excluding wages and funeral expenses during the period of suspension of work.
Q: The standard for calculating and paying compensation is applicable to Shanghai, Hunan, or the location of the injured person's household registration in Henan.
Answer: Generally, the compensation is calculated according to the standard of the place where the work-related injury insurance is insured, of which Shanghai is the place of employment and Hunan is the place of registration of the employer, according to the Social Insurance Law, the employer shall participate in the insurance for the employee in the place where the employer is registered, so the standard of general compensation shall be applied to the standard of Hunan.
Q: How to defend against the possible reasons for denial or exemption of claims by commercial insurance companies?
Answer: How to effectively defend the reasons for denial and exemption of compensation needs to read the insurance contract, and only after knowing which of the denial and exemption clauses in the contract may be based on the insurance company can formulate a defense idea. If the insurance company refuses to pay compensation or waive compensation only on the grounds that the work-related injury insurance has already paid, the worker's unit has already paid, and the third party has already paid for the infringement, etc., there is no basis at all.
Q: Loss of function in four fingers, expectedPunchHow many levels of disability are there?
Answer: According to the standard of "Labor Ability Appraisal of Employees' Disability Levels of Work-related Injuries and Occupational Diseases", it may constitute a six-level work-related injury, and the specific level needs to distinguish whether one or both hands and the thumb are dysfunctional, and if the thumb is lost, it may constitute a five-level or even four-level loss. The main compensation items are:
A one-time disability allowance for 16 months is paid by the social security institution.
The employer shall pay the disability allowance on a monthly basis, and the standard shall be 60% of the salary before the injury
Upon the request of the injured employee, the employer shall pay a one-time disability employment subsidy and a one-time medical subsidy for work-related injury, and terminate the work-related injury insurance relationship. The one-time disability employment benefit is 30 months and the one-time work-related injury medical benefit is 18 months.
Q: In addition to **, should other compensation matters be after the disability appraisal?
Answer: The purpose of the labor ability appraisal is not the purpose, but the main part of the work-related injury insurance benefits by determining the disability level: one-time disability allowance, one-time medical subsidy, one-time employment subsidy, monthly disability allowance, living care expenses, etc. Therefore, expenses that do not need to be calculated by the disability level standard (such as medical expenses, accommodation expenses, transportation expenses, etc.) generally do not need to wait for the disability assessment.
*: Fingertip News.
Author: Furong Law Firm Changsha No. 1 Team.
Editor: Qiu Qi.