How to compensate for work related injuries of migrant workers, and how to compensate for work relat

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.

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.

The procedures for workers' compensation for migrant workers are as follows:

1. Procedures for determining work-related injuries.

It is the first step for an employer or an injured employee or his close relatives or a trade union organization to apply to the social security department for recognition of work-related injury, and the social insurance agency will investigate the work-related injury (death) accident to determine whether it is a work-related injury.

Second-line, work-related injury appraisal procedures.

Work-related injury appraisal refers to the act of assessing the disability level of an employee who applies for work-related injury appraisal on the basis of his or her work-related injury determination (i.e., after going through the procedure for determining the completion of the injury) after the completion of his or her medical treatment or the expiration of the medical treatment period.

3. Negotiate compensation procedures.

After the work-related injury is appraised, the amount of compensation can be calculated according to the appraisal standard, and the employee and the unit can negotiate and deal with it.

IV. Labor Arbitration Procedures.

If the dispute cannot be resolved through negotiation with the employer, the arbitration procedure may be initiated in accordance with the labor arbitration regulations.

5. Court trial procedures.

Those who are dissatisfied with labor arbitration may file a lawsuit with the court for resolution. Those who are dissatisfied with the judgment of the court of first instance may appeal to the court of second instance in accordance with law.

6. Enforcement Procedures.

If the employer fails to pay the compensation fee after the arbitration or judgment takes effect, it may file an application for enforcement with the court enforcement bureau in accordance with the effective legal documents, and the court will enforce it.

VII. Grievance Procedure.

and where they are not satisfied with the effective judgment, they may apply to initiate retrial procedures.

After a work-related injury, migrant workers shall adopt the following procedures to protect their rights and obtain compensation: 1. Apply for work-related injury recognition 2. After work-related injury identification, apply for work-related injury grade appraisal 3. After determining the work-related injury level, request work-related injury benefits 4. If the employer does not give work-related injury benefits, they can apply for labor arbitration Note: The work-related injury determination period is one year.

Article 17 of the Regulations on Work-related Injury Insurance.

According to the provisions of relevant laws in China, the procedures and standards for work-related injury compensation for migrant workers are also applicable, and the specific operation steps are as follows: The first step, the work-related injury identification procedure, is generally about 3 months from the date of the work-related injury. 1. After the occurrence of a work-related injury, the unit shall, within 30 days from the date of the accident injury or the date of diagnosis or appraisal of the occupational disease, submit an application for work-related injury recognition to the social insurance administrative department of the coordinating area.

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.

Legal analysis: Migrant workers who are injured at work and are not disabled have medical expenses, work-related injury wages, transportation and accommodation expenses, and living care expenses. If a work-related injury results in disability, there are:

Medical expenses, food allowance during hospitalization, living care expenses, work-related injury wages, transportation and accommodation expenses, assistive equipment expenses, disability allowance, one-time disability subsidy, one-time medical subsidy for work-related injuries, and one-time employment subsidy for the injured and disabled. Compensation in case of work-related death: one-time ** allowance, funeral allowance, pension for dependent relatives.

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 shall seek medical treatment in a medical institution that has signed a service agreement, and in case of 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 administration, and other departments.

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