What is Labor Ability Appraisal ?

Labor ability appraisal refers to a comprehensive assessment of the degree of disability and inability of a worker after a worker is injured or sick due to work or non-work, and the labor appraisal agency uses relevant policies and methods and means of medical science and technology to determine the degree of disability and inability of the worker in accordance with the national appraisal standards. It is the basis and prerequisite for the insurance benefits of injured employees, and it is also an important part of the management of work-related injury insurance. In practice, the appraisal of labor ability is often referred to as "disability assessment", which is a graded appraisal of the degree of labor dysfunction and self-care impairment of an employee after being determined to be injured at work.

Reality is confused. Tang is a farmer, came to work in City A in 2010, and a friend introduced Tang to work as an iron puller at Ge, the foreman of the contractor, but the two parties only verbally agreed on wages, did not sign a labor contract, and did not buy work-related injury insurance. On June 25, 2011, Tang was working at a construction site when his right foot was broken by a tiebreaker, resulting in a comminuted fracture of the middle and lower part of the right tibia and fibula.

Later, Tang was sent to the hospital** and was discharged on July 28. Tang found Ge and asked him to apply for a work-related injury determination for himself, but because Ge was a contractor who did not have the qualification to contract construction projects, he asked Tang to find a construction company in a city with the qualification to contract construction projects to which he was attached. Tang approached the municipal construction company and asked for an application for work-related injury identification, and the person in charge of the company said that Tang did not fall within the scope of labor ability appraisal.

So what is the scope of labor ability appraisal?

Lawyer answers. Since Tang and the contractor did not constitute an employment relationship, they did not fall within the scope of labor ability appraisal.

According to the General Principles of the Civil Law of China, it should be recognized as an employment relationship, and the provisions of 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 can be applied, and the employer shall be liable for compensation for personal injuries suffered by employees in the course of employment activities. 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. As for the situation where the contractor Ge is attached to a construction company, when undertaking the project, if the construction company does not undertake the construction and subcontract to the contractor, the construction company has nothing to do with Tang, and Tang can obtain evidence from the employer to prove that the project was contracted to Ge, and the employer and Ge shall be jointly and severally liable for compensation.

Secondly, if it is confirmed that an employee who has an employment relationship with the employer is indeed injured due to work-related reasons, the employer shall deal with it in accordance with the provisions of the work-related injury insurance regulations, regardless of whether the employee is insured or not. According to the relevant provisions of the state, the scope of the labor ability appraisal is mainly as follows: (1) if the employee is disabled due to work-related injury and reaches the level of partial loss of working ability, the disability level needs to be assessed; (2) Those who are injured at work, or due to illness or non-work-related injuries, and have completely lost their ability to work, and request retirement or resignation; (3) Accept labor appraisal dispute cases or handle difficult issues; (4) The above-mentioned disability has changed and needs to be re-examined or re-evaluated; (5) Accept other appraisals entrusted by relevant departments.

Links to legal provisions. Regulations on Work-related Injury Insurance

Paragraph 1 of Article 22 The appraisal of labor ability refers to the grade appraisal of the degree of labor dysfunction and the degree of self-care disorder.

Regulations on Work-related Injury Insurance

Article 22 The appraisal of labor ability refers to the grading appraisal of the degree of labor dysfunction and the degree of self-care impairment.

There are 10 levels of disability for labor dysfunction, with the most severe being level 1 and the least being level 10.

There are three levels of self-care disorders: complete inability to take care of oneself, inability to take care of oneself most of one's life, and partial inability to take care of oneself in life.

The standards for the appraisal of labor ability shall be formulated by the social insurance administrative department in conjunction with the health administrative department and other departments.

The process of labor ability appraisal: the employee or his unit shall apply to the Provincial Labor Appraisal Committee; The Labor Appraisal Committee shall review and register the application form submitted by the applicant and the relevant Lingji draft materials; Within 15 working days, submit an opinion on whether the application is accepted or not, and notify the applicant; Determine whether to investigate and collect evidence as appropriate; Appraisal of the working ability of disabled employees; Panel diagnosis; Committee Identification; Issuance of appraisal conclusions.

[Legal basis].Article 25 of the Regulations on Work-related Injury Insurance.

After receiving the application for labor ability appraisal, the labor ability appraisal committee of the 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 special filial piety group shall put forward the 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 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 unit or individual applying for the appraisal.

Labor ability appraisal refers to the comprehensive evaluation of the degree of disability and loss of working ability of a worker who is injured or sick at work in accordance with the national appraisal standards and by relevant policies and medical science and technical methods and means.

Legal analysisThe appraisal of working capacity is to determine the degree of loss of a person's ability to work through the appraisal of his or her ability to perform physical work. Loss of working capacity can be divided into: (1) Partial loss of working capacity.

Such a person is able to perform some light or capable work despite physical weakness, organ dysfunction or limb disability due to injury or illness. (2) Total incapacity to work. This kind of person is no longer able to perform any intensity of work due to injury or illness, and even needs to be taken care of in daily life.

The appraisal of labor ability is a complex and difficult work, involving medical, ethical and other related knowledge, and in accordance with the relevant national policy regulations, it is made on the basis of clear appraisal standards and a comprehensive analysis of the condition of the person being appraised. Appraisers are required to seek truth from facts and make correct conjectures objectively in the appraisal process, which is related to the preferential policies for those who have lost the ability to work.

[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 is recognized as having a work-related injury, 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. Article 12 of the Regulations on Work-related Injury Insurance shall be deposited into the special financial account of social security for the payment of work-related injury insurance benefits, labor ability appraisal, publicity and training for work-related injury prevention as stipulated in these Regulations, as well as other expenses for work-related injury insurance as stipulated by laws and regulations.

The specific measures for the extraction ratio, use and management of work-related injury prevention expenses shall be formulated by the social insurance administrative department of the State Model Leakage Removal Institute in conjunction with the departments of finance, health administration, and production safety supervision and management. No unit or individual shall use work-related injury insurance** for investment and operation, construction or renovation of office space, bonuses, or other purposes.