& shy; The taxi contractor invited the driver to have an accident. Should the taxi company be responsible for compensation? If the employer and the employee sign the agreement of “taking responsibility for accidents”, is the agreement valid? Who should be responsible for the worker’s failure to do social security work injury? In recent years, due to irregular employment in enterprises, “Black workers” have caused many disputes in the compensation for industrial accidents. The interpretation of this issue selects some typical cases recently pronounced by our provincial courts, hoping to give some enlightenment to both employers and employees. & shy; Case 1: If the contract is not signed, the company will pay for the work-related injury. & shy; In December, 2013, Mr. Luo was employed in Zhangzhou branch of Xintai Construction Group Co., Ltd. Xintai company did not sign a labor contract with him, nor did it pay employee social insurance for him. & shy; On February 23, 2014, when Mr. Luo was sawing wood materials in Xintai company, his right thumb was accidentally cut off by a chainsaw, and blood flowed. He was sent to hospital by his workmates for hospitalization. The human resources and social security bureau of Zhangzhou city determined that Mr. Luo’s injury was an industrial accident. The Labor ability Appraisal Committee of Fujian province identified his Labor dysfunction as Grade 7. & shy; Mr. Luo applied to the Xiangcheng region of Zhangzhou city labor dispute arbitration committee for labor arbitration, requested to terminate the labor relationship between him and Xintai company, and asked the company to pay a total of 260,000 yuan in compensation. & shy; Last year, Yicheng district labor dispute arbitration committee made a ruling requiring Xintai company to pay Mr. Luo industrial injury treatment and so on for a total of more than 210,000 yuan. & shy; Xintai company refused to accept the ruling and held that there was no labor contract relationship between the company and Mr. Luo. Mr. Luo only came to help temporarily and the company should not be responsible for the accident. The company filed a lawsuit with the Yicheng district court. & shy; The court of Xiangcheng District held that Mr. Luo was employed by Xintai company and the two sides formed labor relations. Xintai company, as an employer, should sign a written labor contract with Mr. Luo according to law and pay social insurance for employees. Mr. Luo was injured and disabled due to public injury, and he could enjoy work-related injury treatment according to law. Because Xintai company did not pay the employee social insurance for him, the company should bear his work-related injury treatment compensation. Because Xintai company did not sign a written labor contract with him, the company should pay him twice the salary according to law. & shy; According to this, the hospital ordered Xintai company to pay Mr. Luo medical expenses, nursing expenses, hospital food subsidies, appraisal fees, suspension salary, one-time disability allowance, one-time medical treatment of work-related injury allowance, the one-time disability employment subsidy, twice the wage difference, economic compensation, etc. totaled more than 250,000 yuan. & shy; Xintai company appealed to Zhangzhou Intermediate People’s Court against the first-instance judgment. The final judgment of Zhangzhou Intermediate People’s Court was maintained. & shy; Home Page Previous Page 123 Next Page Last Page & shy; Case 2: the contractor’s private brother was injured & shy; The company cannot escape responsibility & shy; In January, 2011, a taxi company in Quanzhou signed a taxi responsibility agreement on contracted management with Mr. Wang, agreeing to hand over the designated type of taxi to him for contract operation. Mr. Wang recruited Mr. Lu as the night driver of the taxi, and Mr. Lu took part in industrial injury insurance in the taxi company. & shy; In 2014, Mr. Lu collided while carrying passengers, and he was seriously injured. According to Quanzhou Human Resources and Social Security Bureau, Mr. Lu is a work injury. Identified by Quanzhou Labor ability appraisal committee, his work injury constitutes Labor dysfunction (disability) level 7. & shy; Mr. Lu then applied for labor dispute arbitration. Quanzhou labor dispute arbitration committee ruled that the taxi company should pay him more than 200,000 yuan for each benefits for work-related injury insurance, and terminate the labor relationship between the taxi company and Mr. Lu. & shy; The taxi company refused to accept the arbitration award and filed a lawsuit with the Licheng District Court, requesting the judgment to confirm that there was no labor relationship between the taxi company and Mr. Lu, and the taxi company did not need to pay the above fees. & shy; Licheng district court rejected the taxi company’s application in first instance. The taxi company appealed to Quanzhou Intermediate People’s Court. At the beginning of this year, Quanzhou Intermediate People’s Court held that according to the regulations of the General Office of the State Council on “Notice on Further Regulating relevant issues concerning the management of taxi industry” on November 14, 2014, taxi companies must sign labor contracts with drivers and explain essential terms of contract to drivers in detail. In this case, although the taxi company signed a agreement on contracted management with Mr. Wang, Mr. Lu was recruited by Mr. Wang, because Mr. Wang did not have the right to operate personally, only the taxi company had the right to operate. Therefore, there is a relationship between management and management between taxi companies and Mr. Lu, and what the two sides establish is a labor relationship. The judgment of the first instance is correct, but the determination of the amount of compensation is wrong. The final judgment of the hospital lifted the factual labor relationship between the taxi company and Mr. Lu, and the taxi company should pay him more than 100,000 yuan for each benefits for work-related injury insurance. & shy; Case 3: The company’s exemption agreement is invalid & shy; From June, 2008 to April, 2013, Mr. Lin was engaged in underground coal mining in Ningyang Coal Development Co., Ltd. of Wuping county. In 2014, he was identified as the first stage of coal worker’s dust lung. He lost most of his working ability due to grade 6 disability caused by work injury. & shy; In May, 2014, Mr. Lin and Ningyang company held many negotiations on the issue of benefits for work-related injury insurance. The two parties signed an agreement that Mr. Lin’s work injury treatment was approved and paid by the social labor insurance management center of Wuping county. After Mr. Lin received the treatment approved by the social security center, the Labor relationship between the two parties was terminated, and he voluntarily gave up the right to ask Ningyang company to pay other benefits for work-related injury insurance. & shy; At the end of the same month, Mr. Lin (party A), Ningyang company (Party B) and the third party Social Security Center (party c) jointly concluded the tripartite agreement on the termination of work-related injury insurance for work-related workers. Party A and Party B agree to terminate or terminate the labor relationship, and Party B and party C shall pay 72256.86 yuan of disability employment subsidy to Party A respectively. After that, Mr. Lin received the subsidy from the social security center, while Ningyang company refused to pay on the grounds that it had signed the agreement before. & shy; After hearing, the Wuping County court held that Mr. Lin was disabled at grade 6 due to work. Although he signed an agreement with Ningyang company in May, 2014, then the parties voluntarily reached a tripartite agreement, which had legal effect. According to this, the hospital ruled that Ningyang company should pay Mr. Lin a one-time disability employment subsidy of 72256.86 yuan. & shy; According to the introduction of the handling judge, in the benefits for work-related injury insurance of occupational diseases of Grade 5 to grade 10, the employing unit needs to pay the one-time disability employment subsidy for terminating labor relations and the salary treatment for the staff during the suspension period, the social security center needs to pay a one-time disability allowance and a one-time allowance to terminate the labor relationship. At present, the social security center requires the employer to seal the application for benefits for work-related injury insurance. In order to evade responsibilities, employers often require workers to sign exemption agreements before handling benefits for work-related injury insurance for workers suffering from occupational diseases. Such exemption agreement shall be deemed invalid according to law. & shy; Home Page Previous Page 123 Next Page Last Page & shy; Expert Statement: industrial injury claims are divided into four steps & shy; Relevant staff of Fujian Federation of Trade Unions told reporters that according to relevant investigations, most of the migrant workers working in various construction sites in the country have neither labor contracts nor work-related injury insurance, as a result, it is difficult for injured workers to obtain effective legal relief. Moreover, the identification procedures and legal procedures of industrial injury identification are complicated, plus-sized the difficulty of safeguarding rights. The complete work-related injury rights protection procedure lasted for 3 years, 9 months on average, and the longest was even nearly 7 years. Therefore, it is suggested that administrative organs plus-sized active supervision, improve the employment filing and registration system, normalize tracking supervision, and effectively protect the legitimate rights and interests of workers. & shy; What should workers do after work-related injuries? Normally, it takes four steps. & shy; First, go to medical institutions for treatment. Workers with work-related injuries can enjoy medical treatment of work-related injury treatment according to regulations, but they should go to the medical institution that signed the service agreement for medical treatment. The medical expenses should be paid in advance by the employer. In case of emergency, they can go to the nearest medical institution for first aid first, after the condition is stable, it will be transferred to a medical institution that has signed a service agreement for treatment. & shy; Second, apply for identification of work injury. The application for identification can be submitted by the employer, or by the workers with work-related injuries or their immediate relatives or trade unions. Labor and social security departments shall make a decision on the identification of work injury within 60 days from the date of accepting the application, and notify the applicant and the employer in writing. & shy; If the worker is unable to provide written evidence of the existence of labor relations, resulting in the inability to make work injury identification, the work injury identification procedure shall be suspended, and the worker shall apply for labor arbitration to the labor arbitration committee, confirm that there is a labor relationship with the employer. After confirming the labor relationship through legal procedure, the work injury identification procedure will be resumed. & shy; Third, apply for identification of Labor ability. After the work-related injury is identified, if there is a disability after treatment and the Labor ability is affected, the work-related injury worker shall also conduct the Labor ability appraisal. & shy; Fourth, review and issue work injury treatment. The regulations on industrial injury insurance stipulates that industrial injury workers shall enjoy medical treatment of work-related injury treatment, suspension and salary retention treatment, and those who cause disability shall enjoy one-time disability allowance, disability allowance, one-time medical treatment of work-related injury allowance, one-time disability employment allowance, living care fee, disability auxiliary equipment fee, etc. & shy; According to the degree of disability, the standard and compensation amount of injured workers are different. If death is caused, one-time Labor death grant, funeral Grant and pension for supporting relatives shall be enjoyed. The identification fee, transportation fee and nutrition fee shall be borne by the employer according to the specific actual situation. (Reporter Chen H & X/Wen Chen Xiaoxian/drawing)
