Answer: Work injury recurrence refers to the situation in which an employee has had a work-related injury or occupational disease and has recovered or stabilized after a period of treatment and recuperation, but later the same injury or disease recurs again. Work injury recurrence also includes the recurrence of old injuries of demobilized soldiers.1In the Regulation on Work Injury Insurance of 2003, there is another wording referring to the recurrence of old injuries, which is specifically used to refer to the recurrence of old injuries after military personnel are transferred to civilian work. At present, the two terms are used interchangeably in judicial decisions.
Employers shall provide the same treatments to the employees with work injury recurrence as to those with ordinary work-related injuries and occupational diseases. Please refer to What are the entitlements for employees with work-related injuries or occupational diseases? That is to say, although the employer has an upper limit of liability for each case of work-related injury and occupational disease (that is, usually no more than 12 months of paid work injury leave), there is no limit on the number of work injury recurrence.2Civil Judgment on Labor Dispute between Wang Mou-mou and Liu Mou-mou Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2015) Shen Zhong Fa Lao Zai Zi No.7. ¡°According to this, if the work-related injury recurs, the injured worker can still enjoy the treatment of the paid work injury leave in accordance with the provisions of Article 33 of the Regulations on Work Injury Insurance, in addition to the previous paid work injury leave. Therefore, according to the above provisions, Wang Jin may be entitled to 24 months of paid work injury leave for his work injury recurrence. In the summary of the judgment of the Supreme People’s Court in the case of Deng Jinlong v. Shenzhen Social Insurance Fund Administration in the 11th Bulletin of 2019, it was stated that the maximum paid work injury leave stipulated in Article 33, paragraph 2, of the Regulations on Work Injury Insurance of the State Council and Article 16, paragraph 1, of the Regulations on Work Injury Insurance of Guangdong Province shall not exceed 24 months. It should mean that the maximum single paid work injury leave enjoyed by the injured workers at the time of treatment should not exceed 24 months, not that the accumulative maximum period should not exceed 24 months.
Work injury recurrence is legally equivalent to restarting the treatment of work-related injuries of an employee. Therefore the statutory procedure in confirming whether the injury or illness of employees is considered to be work injury recurrence and the corresponding length of the paid work injury leave should still be handled by local labor capacity appraisal committees. Of course, if both parties are not satisfied with the conclusion of the appraisal committee, they may apply to the provincial labor capacity appraisal committee for re-appraisal within 15 days.
There are two special circumstances of work injury recurrence, one is the work injury recurrence of retirees, and the other is work injury recurrence of an employee that occurs in a new employer.
As for how to deal with the treatment of retirees who suffer from work injury recurrence, the prevailing practice of domestic courts is that retirees have terminated their employment relationships with their former employers and receive monthly pensions, so the former employers do not need to bear the wages during the period of paid work injury leave, medical expenses for the work injuries (which are borne by the social insurance fund), hospitalization food allowances and nursing fees.3Xin Deqing and Jilin Province (Fanjiatun) Sugar Refinery Labor Dispute Application Case Supreme People’s Court Civil Ruling (2012) Min Shen Zi No.1091. The court held that for the one-off treatment fee and the continuing treatment fee for the work injury recurrence, it was not improper for the original trial to reject Xin Deqing’s lawsuit based on the fact that Xin Deqing had undergone the retirement formalities, had signed the Agreement on Termination of Work-related Injury Relationship of Work-related Injury Personnel (including Temporary Workers) with the Sugar Refinery and that Xin Deqing had not raised any objection to the ruling No.80 within the objection period.¡± Wang Yuchun, Liaoning Automation Instrument Complete Factory (First Name) and other civil applications for retrial of labor disputes Civil Ruling of Liaoning Provincial People¡¯s High Court (2021) Liao Min Shen No.1494. The court held that the treatment of work injury recurrence after retirement did not belong to the above-mentioned paid work injury leave, therefore it is correct that the original trial did not support the claim of nursing fees during hospitalization.However, some courts around the county, such as Shandong Provincial High Court and Yueyang Intermediate Court of Hunan Province, ruled in cases that medical expenses were to borne by the former employer according to the provisions of the Ministry of Labor in 1964.41964 Reply of the Ministry of Internal Affairs and the Ministry of Labor on the Treatment Expenses for Wound Recurrence of Retired Workers Injured at Work ( (64) Nei Cheng Zi No.4 (64) Zhong Lao Xin Zi No.25). Chen Yuzhong, Civil Judgment of Labor Dispute Retrial of China Weapons and Equipment Group Co., Ltd. Civil Judgment of Yueyang Intermediate People’s Court of Hunan Province (2019) Xiang 06 Min Zai No.1. Yanjian Group No.15 Construction and Installation Co., Ltd. and Sun Jingyan Labor Dispute Civil Application for Retrial Review Civil Ruling Shandong High Court Civil Ruling (2022) Lu Min Shen No.1888. The court held that the employer should bear the nursing fee for the work injury recurrence of the retired employee.In addition, if the employer fails to purchase work injury insurance for employees before their retirement, resulting in employees unable to receive the entitlements of work injury recurrence, the former employer should still bear the medical expenses, nursing fees, and hospitalization food allowance.
Another special case of work injury recurrence is that an employees has a work injury while working for an employer, but has the work injury recurrence while working for a new employer. The legal rules and the judicial practice are unclear. Currently, there appear to be no published judicial decision on this issue, but some courts hold that the entitlements for an employee with work injuries (which include work injury recurrence) should be based on the existence of the employment relationship and the fact that the employee have not received a one-off work injury allowance. Therefore, it appears that the new employer should bear the relevant liability for the employee suffering from the work injury recurrence due to the old work injury from the former employer.5Yang Zhengquan, Sichuan Xingwen County Yuping Cement Co., Ltd. Civil Ruling on Labor Dispute Retrial Review and Trial Supervision, Sichuan High Court Civil Ruling (2018) Chuan Min Shen No.2591. ¡°Workers who enjoy the treatment of work-related injuries due to the work injury recurrence should be based on the premise that the injured worker and the former employer still retain employment relationship and the worker has not receive one-off work injury medical allowance.¡±However, according to the regulations of the Ministry of Labor, if an employee is diagnosed with a recurred occupational disease for which the former employer is responsible, the former employer should still bear the liability for the work injury.6Articles 8 and 9 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work Injury Insurance (Renshebufa (2013) No.34) stipulate that ¡°those who have been exposed to occupational hazards, who have not been found to suffer from occupational diseases at that time, and who have been diagnosed or identified as occupational diseases after leaving their roles, may still be identified as work-injured after termination and should be paid work injury entitlements by the Work Injury Fund and the employer, in accordance with the rules of Regulations on Work Injury Insurance. Employers who have not purchased work injury insurance for the employee shall pay the entitlements to the employee in accordance with the rules of the Regulations on Work Injury Insurance.This problem and confliction need to be solved through future legislative amendments.
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- 1In the Regulation on Work Injury Insurance of 2003, there is another wording referring to the recurrence of old injuries, which is specifically used to refer to the recurrence of old injuries after military personnel are transferred to civilian work. At present, the two terms are used interchangeably in judicial decisions.
- 2Civil Judgment on Labor Dispute between Wang Mou-mou and Liu Mou-mou Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2015) Shen Zhong Fa Lao Zai Zi No.7. ¡°According to this, if the work-related injury recurs, the injured worker can still enjoy the treatment of the paid work injury leave in accordance with the provisions of Article 33 of the Regulations on Work Injury Insurance, in addition to the previous paid work injury leave. Therefore, according to the above provisions, Wang Jin may be entitled to 24 months of paid work injury leave for his work injury recurrence. In the summary of the judgment of the Supreme People’s Court in the case of Deng Jinlong v. Shenzhen Social Insurance Fund Administration in the 11th Bulletin of 2019, it was stated that the maximum paid work injury leave stipulated in Article 33, paragraph 2, of the Regulations on Work Injury Insurance of the State Council and Article 16, paragraph 1, of the Regulations on Work Injury Insurance of Guangdong Province shall not exceed 24 months. It should mean that the maximum single paid work injury leave enjoyed by the injured workers at the time of treatment should not exceed 24 months, not that the accumulative maximum period should not exceed 24 months.
- 3Xin Deqing and Jilin Province (Fanjiatun) Sugar Refinery Labor Dispute Application Case Supreme People’s Court Civil Ruling (2012) Min Shen Zi No.1091. The court held that for the one-off treatment fee and the continuing treatment fee for the work injury recurrence, it was not improper for the original trial to reject Xin Deqing’s lawsuit based on the fact that Xin Deqing had undergone the retirement formalities, had signed the Agreement on Termination of Work-related Injury Relationship of Work-related Injury Personnel (including Temporary Workers) with the Sugar Refinery and that Xin Deqing had not raised any objection to the ruling No.80 within the objection period.¡± Wang Yuchun, Liaoning Automation Instrument Complete Factory (First Name) and other civil applications for retrial of labor disputes Civil Ruling of Liaoning Provincial People¡¯s High Court (2021) Liao Min Shen No.1494. The court held that the treatment of work injury recurrence after retirement did not belong to the above-mentioned paid work injury leave, therefore it is correct that the original trial did not support the claim of nursing fees during hospitalization.
- 41964 Reply of the Ministry of Internal Affairs and the Ministry of Labor on the Treatment Expenses for Wound Recurrence of Retired Workers Injured at Work ( (64) Nei Cheng Zi No.4 (64) Zhong Lao Xin Zi No.25). Chen Yuzhong, Civil Judgment of Labor Dispute Retrial of China Weapons and Equipment Group Co., Ltd. Civil Judgment of Yueyang Intermediate People’s Court of Hunan Province (2019) Xiang 06 Min Zai No.1. Yanjian Group No.15 Construction and Installation Co., Ltd. and Sun Jingyan Labor Dispute Civil Application for Retrial Review Civil Ruling Shandong High Court Civil Ruling (2022) Lu Min Shen No.1888. The court held that the employer should bear the nursing fee for the work injury recurrence of the retired employee.
- 5Yang Zhengquan, Sichuan Xingwen County Yuping Cement Co., Ltd. Civil Ruling on Labor Dispute Retrial Review and Trial Supervision, Sichuan High Court Civil Ruling (2018) Chuan Min Shen No.2591. ¡°Workers who enjoy the treatment of work-related injuries due to the work injury recurrence should be based on the premise that the injured worker and the former employer still retain employment relationship and the worker has not receive one-off work injury medical allowance.¡±
- 6Articles 8 and 9 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work Injury Insurance (Renshebufa (2013) No.34) stipulate that ¡°those who have been exposed to occupational hazards, who have not been found to suffer from occupational diseases at that time, and who have been diagnosed or identified as occupational diseases after leaving their roles, may still be identified as work-injured after termination and should be paid work injury entitlements by the Work Injury Fund and the employer, in accordance with the rules of Regulations on Work Injury Insurance. Employers who have not purchased work injury insurance for the employee shall pay the entitlements to the employee in accordance with the rules of the Regulations on Work Injury Insurance.