How to compensate migrant workers for such work related injuries

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

1) Died of a sudden illness during working hours and at work, or died within 48 hours after rescue efforts failed;

2) Suffering harm in emergency rescue and disaster relief or other activities to preserve national or public interests;

3) Employees who previously served in the army, were disabled due to war or duty injuries, and have obtained the certificate of revolutionary disabled soldiers, and were injured after arriving at the employer.

Where employees have any of the circumstances in items (1) or (2) of the preceding paragraph, they shall enjoy work-related injury insurance benefits in accordance with the relevant provisions of these Regulations; Employees who have the circumstances in item (3) of the preceding paragraph shall enjoy work-related injury insurance benefits other than a one-time disability subsidy in accordance with the relevant provisions of these Regulations.

Article 16: Where an employee meets the requirements of Articles 14 and 15 of these Regulations, but in any of the following circumstances, it shall not be recognized as a work-related injury or treated as a work-related injury:

1) Intentionally committing a crime;

2) Drunk or drug addiction;

3) Self-harm or suicide.

Migrant workers' work-related injury claim process: Submit an application for work-related injury recognition to the social insurance administrative department of Xiaozaicho District, Tongzhen, where the employer is located; Submit an application for labor ability appraisal to the labor ability appraisal committee of the city divided into districts; Bring the work-related injury determination decision, labor ability appraisal and other materials to the work-related injury insurance overtime Shenhong agency to apply for work-related injury compensation.

[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 employee or his close relatives or trade union organization may, within one year from the date of occurrence of the accident injury or the date of diagnosis or appraisal of occupational illness, directly submit an application for recognition of work-related injury to the social insurance administrative department of the coordinating area where the employer is located.

Work-related injury compensation for migrant workers: After the disability level has been determined, compensation shall be made according to the degree of loss of work ability or disability level of the migrant workers, and according to the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year at the location of the court where the lawsuit is filed.

[Legal basis].

Article 36 of the Regulations on Work-related Injury Insurance.

Employees who are identified as Grade 5 or Grade 6 disabled due to work-related disability shall enjoy the following benefits:

1) A one-time disability subsidy shall be paid according to the level of disability from work-related injury insurance**, and the standard is: 18 months' salary for grade 5 disability and 16 months' salary for grade 6 disability;

2) Retain the labor relationship with the employer, and the employer shall arrange appropriate work. If it is difficult to arrange work, the employer shall pay the disability allowance on a monthly basis, the standard is: 70% of the salary for the fifth grade disability and 60% of the salary for the sixth grade disability, and the employer shall pay all the social insurance premiums due to the employee in accordance with the regulations.

If the actual amount of disability allowance is lower than the local minimum wage, the employer shall make up the difference.

Upon the request of the injured employee, the employee may terminate or terminate the labor relationship with the employer, and the work-related injury insurance** shall pay a one-time medical subsidy for work-related injury, and the employer shall pay a one-time disability employment subsidy. The specific standards for one-time medical subsidies for work-related injuries and one-time employment subsidies for disability shall be prescribed by the people of provinces, autonomous regions and municipalities directly under the Central Government.

Migrant workers' work-related injury compensation items: **Wages and benefits during work-related injuries; A one-time disability employment subsidy and a one-time medical subsidy that shall be enjoyed when the labor contract is terminated or dissolved; If the living cannot be self-financed, the living care expenses confirmed by the Labor Ability Appraisal Committee; Transportation, accommodation and transportation expenses for medical treatment outside the co-ordination area; Medical expenses and expenses for work-related injuries; Other.

[Legal basis].Article 38 of the Social Insurance Law of the People's Republic of China.

The following expenses incurred due to work-related injuries shall be paid from work-related injury insurance** in accordance with national regulations:

1) Medical expenses and expenses for work-related injuries;

2) Hospitalization meal subsidy;

3) Transportation and accommodation expenses for medical treatment outside the overall planning area;

4) The cost of installing and configuring assistive devices for the disabled;

5) For those who are unable to take care of themselves, the living care expenses confirmed by the Labor Ability Appraisal Committee;

6) A one-time disability subsidy and a monthly disability allowance for employees with disabilities of grades 1 to 4;

7) A one-time medical subsidy to be enjoyed when the labor contract is terminated or dissolved;

8) In the event of a work-related death, the funeral allowance, the pension for dependent relatives and the work-related death allowance received by the bereaved relatives shall be noted;

9) Labor ability appraisal fee.

Migrant workers shall protect their rights in the manner prescribed by law, and first apply to the administrative department for labor and social security for a determination of work-related injury; After the work-related injury is identified, apply to the Labor Ability Appraisal Committee for the appraisal of the residual grade of the return of the injury foci; Apply to the social security department for reimbursement with the appraisal conclusion, hospitalization statement and expense schedule.

[Legal basis].Paragraphs 1 and 2 of 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 Treatment of Occupational Diseases, the unit to which he 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 labor and social security administrative department of the coordinating region. In case of special circumstances, the time limit for application may be appropriately extended with the consent of the labor and social security 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 employee, his or her immediate family members, 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 occupational disease, directly submit an application for recognition of work-related injury to the labor and social security administrative department of the coordinating area where the employer is located.

Compensation for work-related injuries to migrant workers includes medical expenses, lost work expenses, nursing expenses, transportation expenses, accommodation expenses, hospital meal subsidies, necessary nutrition expenses, and if the disability is awarded, disability compensation, disability assistive device expenses, etc. If the employer does not have work-related injury insurance, the employer shall pay all the expenses.

3. How to compensate for a traffic accident on the way to work?

If a traffic accident occurs on the way to get off work, it is considered a work-related injury, and compensation shall be made in accordance with law for medical expenses, nursing expenses, transportation expenses, accommodation expenses, hospital meal subsidies, and necessary nutrition expenses. If the disability is caused, it is also necessary to compensate for the disability compensation, the cost of disability assistive devices, the living expenses of the dependents, as well as the necessary expenses, nursing expenses, and follow-up expenses actually incurred due to the nursing and continuation.

Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases.

Medical expenses are determined on the basis of the receipt vouchers for medical expenses, hospitalization fees, etc., issued by medical institutions, combined with relevant evidence such as medical records and diagnosis certificates. If the person obligated to indemnify has objections to the necessity and reasonableness of **, it shall bear the corresponding burden of proof.

The amount of compensation for medical expenses shall be determined on the basis of the amount actually incurred before the conclusion of the debate in the court of first instance.

Article 7. Lost time pay is determined based on the victim's lost time and income.

The lost time is determined on the basis of a certificate issued by the medical institution to which the victim received. If the victim continues to miss work due to injury and disability, the time of missing work can be calculated to the day before the date of disability.

If the victim has a regular income, the compensation for lost work shall be calculated on the basis of the actual reduced income. If the victim has no regular income, it is calculated on the basis of the average income of the victim in the last three years; Where the victim cannot provide evidence to prove his or her average income in the last three years, it may be calculated by referring to the average wages of employees in the same or similar industry in the previous year at the location of the court where the lawsuit is filed.

However, in the construction field, subcontracting and illegal subcontracting are common, and many of the subcontractors and illegal subcontractors are natural persons, who are not employers under the labor law, and are usually called contract foremen. Therefore, the relationship between the employee and the contractor is not an employment relationship, but an employment relationship. So who can an employee who is employed by a contractor claim compensation from if he is injured on the job?

According to the provisions of paragraphs 1 and 2 of Article 11 of the Judicial Interpretation on Compensation for Personal Injury, an employee may file a civil tort compensation lawsuit against the employer, since the contractor is an individual who does not have the contracting qualifications, and the employee's former employer, i.e., the employer and the subcontractor, are naturally aware that the contractor and the subcontractor do not have the corresponding qualifications, so the employee may sue the employer and the subcontractor at the same time to demand joint and several liability. According to Article 3, Paragraph 4 of the Provisions on Several Issues Concerning Administrative Cases of Work-related Injury Insurance, an employee may directly apply to the administrative department for work-related injury insurance for recognition of work-related injury, and after the work-related injury is determined and the working ability and disability rating are assessed, the employee has the right to demand payment from the employer for the work-related injury compensation items that should be borne by the employer in accordance with the law. Therefore, in the case of subcontracting or illegal subcontracting, the employee has the right to claim both tort liability and work-related injury insurance compensation, and the employee has the right to choose only one of the claims, and cannot make another claim after the exercise of the choice.

Legal basis: Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases Article 11 If an employee suffers personal injury in the course of employment activities, the employer shall be liable for compensation. If a third party outside the employment relationship causes personal injury to an employee, the person entitled to compensation may request the third party to bear the liability for compensation, and may also request the employer to bear the liability for compensation.

After the employer assumes the liability for compensation, it can recover from a third party. If an employee suffers personal injury due to a work safety accident in the course of employment activities, and the employer or subcontractor knows or should know that the employer receiving the contract or subcontract business does not have the corresponding qualifications or conditions for safe production, it shall be jointly and severally liable with the employer for compensation. The provisions of this article do not apply to the scope of labor relations and work-related injury insurance regulated by the Regulations on Work-related Injury Insurance.

According to the regulations on work-related injury insurance, the amount of compensation for work-related injuries can only be finalized after the level of labor ability appraisal.

1. To apply to the Human Resources and Social Security Bureau for the recognition of work-related injury, the company needs to declare within one month of the accident, if the company does not apply, the injured employee or his close relatives shall apply for recognition within one year. Materials to be submitted: application form for work-related injury determination, proof of labor relationship with the employer, medical diagnosis certificate, etc.;

2. If there is a disability that affects the ability to work after the injury is relatively stable, the applicant shall apply for labor ability appraisal and submit an application to the labor ability appraisal committee of the city divided into districts;

3. According to different disability levels, the compensation obtained is different. The main compensation is: medical expenses, one-time disability allowance, one-time employment allowance, one-time medical allowance, salary during the period of leave of absence, food allowance, nursing expenses, etc.

Hello, to the problem you described, the lawyer replied as follows:

First of all, apply for a work-related injury appraisal, and after confirming the disability level, it is the basis for confirming the compensation. Refer to Article 18 of the Regulations on Work-related Injury Insurance.

Second, the main scope of claims includes medical treatment for work-related injuries, one-time disability allowance, hospital meal subsidy, assistive devices, original salary and benefits during the medical treatment period, living care expenses, etc.

Third, compensation shall be made with reference to Articles 33, 34, 35, 36, 37, 38, 39 and 40 of the Regulations on Work-related Injury Insurance.

Fourth, if the negotiation fails, bring the relevant materials to the labor inspection department to complain, or directly go to the labor arbitration commission where the unit is located to file labor arbitration. Blessing!

According to the relevant regulations of construction, if the scope of decoration requires qualifications, and individuals cannot contract the project, then after the individual contracts the project, the so-called small boss or big boss hires you, then you can also apply for work-related injury recognition with the decoration company as the main employer; If you are directly hired by the renovation company, you can of course apply for a work-related injury determination. If the renovation scope does not require a qualified individual to contract the project and then hire you, then you can only claim compensation according to the legal relationship of compensation for the injury caused by the employee.