Competing work related injury insurance and personal injury compensation

You can first apply to the Work-related Injury Insurance Section of the Labor and Social Security Bureau of the District Municipal Labor and Social Security Bureau where the work-related injury occurs where the employer is located or the place where the work-related injury occurred, and the application must be made within one year from the date of occurrence of the accident.

With the traffic accident liability certificate, negotiate with the company to apply for work-related injury identification. The company did not cooperate, and applied to the Human Resources and Social Security Bureau for work-related injury determination.

Refer to the Measures for the Determination of Work-related Injuries.

Article 4 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 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.

Where an application for determination of work-related injury shall be submitted to the provincial-level social insurance administrative department in accordance with the provisions of the preceding paragraph, it shall be submitted to the social insurance administrative department of the districted city level where the employer is located in accordance with the principle of territoriality.

Article 5 If the employer fails to submit an application for recognition of work-related injury within the prescribed time limit, the injured employee, 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 an occupational disease, directly submit an application for recognition of work-related injury in accordance with the provisions of Article 4 of these Measures.

Article 6 To apply for recognition of work-related injury, the applicant shall fill in the Application Form for Determination of Work-related Injury and submit the following materials:

1. A copy of the labor or employment contract or other supporting materials for the existence of labor relations (including de facto labor relations) or personnel relations with the employer;

2. Post-injury diagnosis certificate or occupational disease diagnosis certificate (or occupational disease diagnosis and appraisal certificate) issued by a medical institution.

Article 7: Where the application materials submitted by the applicant for work-related injury determination meet the requirements, are within the jurisdiction of the social insurance administrative department, and are within the time limit for acceptance, the social insurance administrative department shall accept it.

It can only be solved according to the traffic accident, the woman has reached the retirement age at the age of 57, and there should be no longer a labor relationship, there is no labor relationship, and there is no problem of work-related injuries. It should be a labor and employment relationship.

The 57-year-old woman cannot be recognized as a work-related injury and can only file a claim for compensation for personal injuries in the labor relationship with the unit.

In the case of competing compensation for personal injury and work-related injury insurance, compensation is based on different claims and legal relationships.

Work-related injury insurance compensation is a kind of work-related injury insurance treatment right exercised in accordance with the "Labor Law" and the "Regulations on Work-related Injury Insurance" and relevant provisions, which is asserted to the social insurance agency, and its essence is the state's social security measures for the labor rights and interests of workers, with the purpose of socializing the burden of damage and realizing full protection and rapid compensation for the interests of workers.

The compensation for personal injuries caused by road traffic accidents is based on torts, which is a civil legal relationship between equal civil subjects, and does not have social attributes, and its legal basis is the Civil Code of the People's Republic of China, the Road Traffic Safety Law, the Judicial Interpretation on Compensation for Injuries to the Human Wheel and the Spike and other legal provisions, and the principle of no-fault (between motor vehicles and pedestrians) or the principle of fault liability (between motor vehicles) is applicable.

2. Whether work-related injury insurance and personal injury compensation can be claimed at the same time.

Personal injury compensation and work-related injury insurance compensation can be claimed at the same time.

1 Compensation for work-related injuries and personal injuries can be claimed at the same time.

2. If a worker of an employer who is required to participate in the overall planning of work-related injury insurance in accordance with the law suffers personal injury due to a work-related accident, and the worker or his close relatives file a lawsuit with the people's court requesting the employer to bear civil liability for compensation, he or she shall be informed to handle it in accordance with the provisions of the Regulations on Work-related Injury Insurance. Where a third party other than the employer infringes upon a worker's personal injury, and the compensation rights holder requests that the third party bear civil liability for compensation, the people's court shall support it.

Allowing victims to obtain compensation through two channels is equivalent to double insurance for the victim's rights and remedies, which is more conducive to protecting the interests of workers in a vulnerable position and is also in the interests of society as a whole.

3. The principle of division of liability for personal injury.

1 The principle of attribution is the general criterion for determining the tortfeasor's liability for tort damages. It is a principle of rules for determining whether the tortfeasor needs to bear civil liability for the damage caused by his own act when the fact of damage has already occurred.

2. The principle of presumption of fault refers to the principle of imputing the liability of the perpetrator for causing damage to others by inferring that the perpetrator is at fault from the fact of damage itself when there are special provisions in the law.

Legal Analysis: China does not provide clear provisions on the competition between the compensation subjects of personal injury compensation and work-related injury compensation, but in the actual process of handling the case, the victim will inevitably tend to receive more compensation.

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

Article 38 The following expenses incurred as a result of work-related injuries shall be paid from work-related injury insurance in accordance with the provisions of the State:

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 allowance 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 surviving family members;

9) Labor ability appraisal fee.

Article 39 The following expenses incurred as a result of work-related injuries shall be paid by the employer in accordance with the provisions of the State:

1) Wages and benefits during the work-related injury;

2) The monthly disability allowance received by the disabled employees of the fifth and sixth grades;

3) A one-time disability employment subsidy that shall be enjoyed when the labor contract is terminated or dissolved.

Article 41 Where an employee's employer fails to pay work-related injury insurance premiums in accordance with law, and a work-related accident occurs, the employer shall pay work-related injury insurance benefits. If the employer does not pay, it shall be paid in advance from the work-related injury insurance**.

The work-related injury insurance benefits paid in advance from the work-related injury insurance** shall be reimbursed by the employer. If the employer fails to repay, the social insurance agency may recover compensation in accordance with the provisions of Article 63 of this Law.