Supreme Court: Work-related Injury Insurance Benefits and Third-party Tort Compensation Both Available
The Supreme People’s Court released the Provisions of the Supreme People’s Court on Certain Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance (“Provisions”). The Provisions take effect on September 1st, 2014 with the following key contents:
Work-related Injury Caused by a Third-party Tort
The Provisions clarifies that when the work-related injury is caused by a third-party, the work-related injury insurance applies and the compensations for civil torts can both be obtained, provided that the medical costs are excluded. Article 8 of the Provisions provides 3 approaches to this matter:
(1) When an employee is injured due to a third-party, and when he/she or his/her close relative have brought a civil action or have obtained civil compensations, the social insurance administrative department shall also accept the application for work-related injury identification and may not make the decision of denying its identification as a work-related injury on this sole basis.
(2) When the social insurance administrative department has made the work-related injury identification, and the employee or his/her close relative has not brought a civil action or has obtained civil compensations, they may claim for work-related injury insurance benefits from the social insurance agency.
(3) When the employee or his/her close relative has brought a civil action against the third party, and the social insurance agency refuses to pay the work-related injury insurance benefits consequently, the people’s court will not support the social insurance agency, except the medical costs already compensated by the third party.
Undertaker of Work-related Injury Insurance Liabilities under Some Particular Circumstances
Article 3 of the Provisions specifies the corresponding undertaker of work-related injury insurance liabilities in respect of five particular circumstances, including dual employment, labor dispatching, designating, subcontracting and affiliating relationships. In case of a work-related injury accident under those five circumstances the party shall undertake the work-related injury insurance liabilities: the unit which the employee works for, the labor dispatching unit, the unit making designation, the illegally subcontracting unit or the affiliated unit, respectively.
After the illegal subcontracting unit or the affiliated unit assumes the compensation liability, or after the social insurance agency pays the work-related injury insurance benefits from the work-related injury insurance fund, they are entitled to claim for recovery from the relevant organizations, units and individuals.
Defining Working Hours, Workplace and Working Reasons
Working hours, workplace and working reasons are three factors that account for the work-related injury identification, which are well defined by the Provisions through listing circumstances.
- The Provisions qualify the following circumstances as the work-related injuries when:
(1) The employee is injured both during working hours and at workplace, and the employer or the social insurance administrative department has no evidence to prove that the injury is caused by any non-work-related reason;
(2) The employee gets injured in an activity held by the employer, or injured in an activity held by other units where the participation is designated by the employer;
(3) During working hours, the employee is injured within a reasonable area when commuting between a couple of workplaces related to his/her job duty; and
(4) Other circumstances where the employee is injured in any course related to his/her job duty, during the working hours and within a reasonable area.
- The Provisions define “work-related travel period” as：
(1) The period during which the employee participates in activities related to his/her job duty outside the workplace due to employer’s designation or due to working needs;
(2) The period during which the employee is designated by the employer to attend an outside training or conference; and
(3) Other periods during which the employee travels out for working needs.
The work-related travel period is a special circumstance falling in the scope of working hours. The injury during this period could be identified as the work-related injury. However, the Provisions stipulate that, during the work-related travel period, where the employee is injured in personal activities unrelated to work, training or conference arranged by the employer, and when the social insurance administrative department does not identify it as a work-related injury subsequently, the people’s court shall sustain such decision.
- The Provisions define “the route to and from work” of an employee as:
(1) Within a reasonable period, the reasonable route to and from work connecting his/her workplace and his/her domicile, habitual residence or the unit dorm;
(2) Within a reasonable period, the reasonable route to and from work connecting his/her workplace and the domicile of his/her spouse, parents or children;
(3) Within a reasonable period and following the reasonable route to and from work, the travel due to his/her needs related to daily work or life;
(4) Within a reasonable period, other reasonable routes to and from work.