Whether the determination of work related injury is mandatory by law can now be requested in court

You can retract and claim work-related injury insurance benefits.

It is a mandatory provision of the law for an employee to participate in work-related injury insurance in accordance with the law, and the employer shall pay the work-related injury insurance premium, and if he suffers a work-related accident, he or she shall enjoy work-related injury insurance benefits in accordance with the law. The worker may repent, apply for work-related injury recognition and labor ability appraisal, and claim work-related injury insurance benefits according to the appraisal conclusion. In the event of a dispute with the employer, apply for labor dispute arbitration.

Article 72 of the Labor Law stipulates that social insurance shall determine the funds according to the type of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law.

Article 73 Workers shall enjoy social insurance benefits in accordance with law under the following circumstances:

3) Suffering from work-related disability or occupational disease;

Labor Contract Law

Article 26 The following labor contracts are invalid or partially invalid:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations.

If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

Social Insurance Act

Article 33 Employees shall participate in work-related injury insurance, and the employer shall pay work-related injury insurance premiums, and employees shall not pay work-related injury insurance premiums.

Article 36 Where an employee is injured in an accident or suffers from an occupational disease due to work-related reasons, and the work-related injury is recognized, he or she shall enjoy work-related injury insurance benefits; Among them, those who lose their ability to work after the appraisal of their ability to work enjoy disability benefits.

The determination of work-related injuries and the evaluation of labor ability shall be simple and convenient.

Apply for work-related injury recognition in a timely manner, and if it may constitute disability, apply for labor ability appraisal.

1) Before the implementation of the Labor Dispute Arbitration and Mediation Law, there were different understandings in practice as to whether an employee requesting confirmation of a labor relationship for the purpose of determining a work-related injury could be accepted as a labor dispute case. One opinion holds that, according to the provisions of Article 17, Paragraph 2, Article 18, Article 52 and Article 53 of the Regulations on Work-related Injury Insurance, the determination of work-related injuries falls within the administrative functions and powers of the labor and social security departments. The employee's request for confirmation of the employment relationship is actually for the purpose of confirming the work-related injury, and the confirmation of the employment relationship is a major component of the work-related injury determination.

In civil trials, the sole confirmation of the labor relationship for the purpose of confirming work-related injuries is tantamount to depriving the labor and social security department of the right to determine work-related injuries in disguise. Therefore, if an employee requests confirmation of an employment relationship for the purpose of determining a work-related injury, the court should not accept it as a labor dispute case. The initial opinion of the court of second instance in this case was that it should not be accepted, but if the employee requests confirmation of the labor relationship for other reasons, the court may accept it as a labor dispute case.

Another opinion holds that an employee's request for confirmation of an employment relationship, whether for the determination of work-related injuries or for other reasons, is a labor dispute case, and the court should accept it as a labor dispute case after complying with the provisions of "adjudication before adjudication". In the author's opinion, the confirmation of labor relations, especially the confirmation of de facto labor relations, has been accepted as a labor dispute case since the implementation of the Labor Law. Disputes arising therefrom between enterprises, individual economic organizations and workers, whether they are labor relations established through the conclusion of a written labor contract, or whether there is no written labor contract but a de facto labor relationship has been formed, shall be accepted as labor dispute cases.

The de facto labor relationship formed between state organs, public institutions, social organizations and workers is still subject to the adjustment of the Labor Law in accordance with the legislative purpose of the Labor Law, and the people's court shall also accept it as a labor dispute case after a dispute arises. The Provisions on the Causes of Action in Civil Cases (for Trial Implementation) also stipulate the causes of action for "de facto labor relationship disputes". The Provisions on the Causes of Action in Civil Cases, which came into effect on April 1, 2008, clarifies the "confirmation of labor relationship disputes" under labor contract disputes.

There is no rational, legal and reasonable basis to treat such cases differently as whether they are buried for the purpose of determining work-related injuries. With the implementation of the Law on Arbitration and Mediation of Labor Disputes on May 1, 2008, it should be said that disputes arising from the confirmation of labor relations are labor disputes and will no longer be a problem, and there will be no different approaches in judicial practice.

Legal and Analytical Analysis:

Those who are dissatisfied with the decision not to accept the application for determination of work-related injury or the conclusion of the determination of work-related injury may file an administrative lawsuit with the people's court in accordance with law, and may also apply for administrative reconsideration in accordance with law. Where a lawsuit is directly filed with a people's court, it shall be filed within 6 months from the date on which it was known or should have known that the administrative act was taken. Except as otherwise provided by law.

Legal basis: Regulations on Work-related Injury Insurance

Article 14 An employee shall be deemed to have suffered a work-related injury under any of the following circumstances:

1) Being injured in an accident during working hours and in the workplace due to work-related reasons;

2) Being injured in an accident while engaging in work-related preparatory or finishing work in the workplace before or after working hours;

3) Injured by violence or other accidents during working hours and in the workplace due to the performance of work duties;

4) Suffering from occupational diseases;

5) Injured or unaccounted for in an accident while away for work;

6) Injured in a traffic accident or an accident involving urban rail transit, passenger ferry, or train for which they are not primarily responsible;

7) Other circumstances that laws and administrative regulations provide shall be recognized as work-related injuries.

Article 30 Employees who are injured in accidents or suffer from occupational diseases due to work shall enjoy medical treatment for work-related injuries.

Employees who are injured at work should seek medical treatment in a medical institution that has signed a service agreement, and when the situation is in an emergency, they can first go to the nearest medical institution for first aid.

**If the expenses required for work-related injuries meet the requirements of work-related injury insurance diagnosis and treatment items, work-related injury insurance drug lists, and work-related injury insurance hospitalization service standards, they shall be paid from work-related injury insurance**. The catalogue of work-related injury insurance diagnosis and treatment items, the catalogue of work-related injury insurance drugs, and the hospitalization service standards of work-related injury insurance shall be prescribed by the social insurance administrative department in conjunction with the health administrative department, the food and drug supervision and administration department and other departments.

The food subsidy for hospitalization and work-related injuries of employees, as well as the transportation, accommodation and transportation expenses required for employees injured to seek medical treatment outside the co-ordination area shall be paid from the work-related injury insurance, and the specific standards for payment shall be stipulated by the people in the co-ordination area.

Injured employees are not entitled to medical treatment for work-related injuries and shall be dealt with in accordance with the basic medical insurance measures.

If the work-related injury employee goes to the medical institution that has signed the service agreement to carry out the work-related injury**, if it meets the requirements, it shall be paid from the work-related injury insurance**.

Legal Analysis: The people's courts do not have the right to ensure that the injured injuries are recognized.

Legal basis: Social Insurance Law of the People's Republic of China

Article 36 Where an employee is injured in an accident or suffers from an occupational disease due to work-related reasons, and the work-related injury is recognized, he or she shall enjoy work-related injury insurance benefits; Among them, those who have lost their ability to work after the appraisal of their ability to work are entitled to disability benefits.

The determination of work-related injuries and the evaluation of labor ability shall be simple and convenient.

Article 37 If an employee is at work due to the following circumstances, it shall not be recognized as a work-related injury

1) Intentional crime;

2) Drunkenness or drug abuse;

3) self-harm or suicide;

4) Other circumstances provided for by laws and administrative regulations.

No, labor dispute cases must be arbitrated first, and you can directly go to the labor arbitration commission where the employer is located to apply for labor arbitration for work-related injury compensation. If an employee suffers a work-related injury and has a disability that affects his or her ability to work after the injury is relatively stable, he or she shall be evaluated for his or her ability to work. The employer, the injured employee or his or her close relatives shall submit an application to the labor ability appraisal committee at the districted city level, and provide relevant materials on the determination of the work-related injury and the medical treatment of the work-related injury.

Article 25 of the Regulations on Work-related Injury Insurance Article 25 After receiving the application for labor ability appraisal, the labor ability appraisal committee of a city divided into districts shall randomly select 3 or 5 relevant experts from the medical and health expert database established by it to form an expert group, and the expert group shall put forward appraisal opinions. The labor ability appraisal committee of the city divided into districts shall make the conclusion of the appraisal of the labor ability of the injured employee on the basis of the appraisal opinions of the expert group; When necessary, a qualified medical institution may be entrusted to assist in the diagnosis. The labor ability appraisal committee at the districted city level shall make a labor ability appraisal conclusion within 60 days from the date of receipt of the labor ability appraisal application, and if necessary, the time limit for making a labor ability appraisal conclusion may be extended by 30 days.

The conclusion of the labor ability appraisal shall be promptly sent to the units and individuals applying for the appraisal. Legal basis: Article 25 of the "Regulations on Work-related Injury Insurance" After receiving an application for labor ability appraisal, the labor ability appraisal committee of a city divided into districts shall randomly select 3 or 5 relevant experts from the medical and health expert database established by it to form an expert group, and the expert group shall put forward an appraisal opinion. The labor ability appraisal committee of the city divided into districts shall make the conclusion of the appraisal of the labor ability of the injured employee on the basis of the appraisal opinions of the expert group; When necessary, a qualified medical institution may be entrusted to assist in the diagnosis.

The Labor Ability Appraisal Committee of the city divided into districts shall make a labor ability appraisal conclusion within 60 days from the date of receipt of the labor ability appraisal application, and if necessary, the time limit for making a labor ability appraisal conclusion may be extended by 30 days. The conclusion of the labor ability appraisal shall be promptly sent to the units and individuals applying for the appraisal.

Without a determination of work-related injury, the court will not uphold a workers' compensation lawsuit. The worker shall apply to the labor administrative department at the county level where the employer is located for a work-related injury determination when seeking medical treatment, and after issuing a work-related injury determination conclusion, he or she may return to the employer to negotiate with the employer on relevant compensation matters, and if the negotiation fails, he or she may file a lawsuit with the court based on the work-related injury determination results.

[Legal basis].Article 17 of the Regulations on Work-related Injury Insurance.

If an employee is injured in an accident or is diagnosed or appraised as an occupational disease in accordance with the provisions of the Law on the Prevention and Control of Occupational Diseases, the unit to which he or she belongs shall, within 30 days from the date of occurrence of the accident injury or the date of diagnosis or appraisal of an occupational disease, submit an application for recognition of work-related injury to the social insurance administrative department of the coordinating area. In case of special circumstances, the time limit for application may be appropriately extended with the consent of the social insurance administrative department. If the employer fails to submit an application for recognition of work-related injury in accordance with the provisions of the preceding paragraph, the injured worker, his close relatives or the trade union organization may, within one year from the date of occurrence of the accident injury or the date of diagnosis or appraisal of the occupational disease, directly submit an application for recognition of work-related injury to the social insurance administrative department of the area where the employer is located.