Answer: In principle, if an employee suffers from a third party’s tort damage and is identified as a work-related injury, the employee has the right to claim both against the tortfeasor and the subjects of work-related injury obligations (including the social insurance institutions and the employer). Article 8 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Work Injury Insurance in 2014 stipulates that work injury and tort are two different compensational legal relationships, and employees can claim their rights through both the avenues. However, in practice, employers and the Work Injury Insurance Fund may be able to deduct certain items when paying for the employees’ entitlements.
If the injured employee has obtained Income Loss from the tortfeasor, can he request the employer to pay the wages for paid work injury leave? At present, courts around the country have two practices. One Supreme People’s Court’s communique case in 2021, the Henan Provincial High Court, the Beijing High Court, the Hebei Provincial High Court, and the Hubei Provincial High Court hold that the wages for paid work injury leave are different in nature from the Income Loss, and the employees can have both.1The case of the bulletin of the Supreme People’s Court, the 6th issue of 2021, shows that the wages during the period of paid work injury leave and the compensation from a third party can be obtained both. Jiaozuo Longfeng Fur Enterprise Co., Ltd., Wang Yanfeng Labor Dispute Retrial Review and Trial Supervision Civil Ruling Henan High Court Civil Ruling (2020) Yu Min Shen No.1606. Wang Zhesan and Beijing Xinnongyuan Real Estate Development Co., Ltd. Labor Dispute Retrial Civil Judgment Beijing High Court Civil Judgment (2018) Jing Min Zai No.81. Wang Zhiwei, Shuai Shaodong Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hebei Provincial People¡¯s High Court Civil Ruling (2018) Ji Min Shen No.2867. Luotian Xinpusheng Pharmaceutical Co., Ltd., He Guoping Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hubei Provincial People¡¯s High Court Civil Ruling (2018) E Min Shen No.2773.However, there are contrary decisions or local regulations in Guangdong Provincial High Court, Beijing Third Intermediate Court, Chenzhou Intermediate Court of Hunan Province, Jiangsu Provincial High Court, Tianjin First Intermediate Court, Shanghai City, and Changchun City of Jilin Province.2Chenzhou Beihu District Ean Automobile Sales Service Co., Ltd., Li Fuyun Labor Dispute Civil Judgment of Second Instance Civil Judgment of Hunan Chenzhou Intermediate People’s Court (2022) Xiang 10 Min Zhong No.2042. Beijing Jialian Port Restaurant and Meng Lingshan Labor Dispute Civil Judgment of Second Instance Civil Judgment of the Third Intermediate People’s Court of Beijing (2021) Jing 03 Min Zhong No.6578. Huizhou Xiaoxing Construction Engineering Co., Ltd., Zhang Haiyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guangdong Provincial People¡¯s High Court Civil Ruling (2020) Yue Min Shen No.310. Baoding Tianwei Electric Wire Co., Ltd. and Yang Guifang’s Application for Labor Dispute Civil Ruling of Jiangsu Provincial People¡¯s High Court (2014) Su Shen Er Min Shen Zi No.01304. Tianjin Security Service Corporation Nankai Branch and Yan Fuming Labor Dispute Appeal Case Tianjin First Intermediate People’s Court Civil Judgment (2015) YZMSZZ No.0779. Civil Judgment of First Instance on Other Labor Disputes between Tongwei Digital Technology (Shanghai) Co., Ltd. and Wang Yongqing Civil Judgment of Shanghai Changning District People’s Court (2018) Hu 0105 16669 of the Early Republic of China. The Measures for the Implementation of Work injury insurance in Shanghai stipulates that ¡°if an work-related injury is caused by a motor vehicle accident or other third-party civil infringement, and the employer or the Work Injury Insurance Fund pays in advance in accordance with the treatment of work injury insurance stipulated in the Measures, the injured person or their immediate relatives shall repay the compensation accordingly after receiving civil compensation for such as motor vehicle accident.¡± Notice of the General Office of Changchun Municipal People’s Government on the Implementation of the Regulations on Work Injury Insurance and Several Provisions on the Implementation of the Regulations on Work Injury Insurance in Jilin Province (Changfu Ban Fa (2003)93) Article 4 “On the Treatment of Work injury insurance” Item 5 stipulates that ¡°work-related injury accidents caused by civil liability of a third party shall be treated in accordance with the principle of ¡°work injury entitlements are not concurrently available ¡±.
For the situations where tortfeasors have compensated for medical expenses, assistive device costs, nursing fees, funeral allowance and so on, most of the practices of courts around the county are that employers or social insurance institutions do not have to pay those items any more. For example, Article 8, paragraph 3, of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Work Injury Insurance in 2014 stipulates that social insurance institutions are not obligated to repeatedly pay the medical expenses if the tortfeasors have already done so. Guangdong Province allows the Work Injury Insurance Fund to deduct the medical expenses, assistive device costs, and funeral allowance paid by an tortfeasor for the work-related injury that the employee has suffered, and also allows the employer to deduct the income loss paid by the tortfeasor from the wages for the paid work injury leave.3Article 6 of the Summary of the Symposium of the Guangdong Provincial Labor and Personnel Dispute Arbitration Commission of the Guangdong Provincial People¡¯s High Court on Several Issues Concerning the Trial of Labor and Personnel Dispute Cases (Guangdong High Law (2012) 284) ,¡°If an employee¡¯s work-related injury is caused by the infringement of a third party, who has assumed the liability for tort compensation, and the employee or their close relatives have also requested the employer for work-related compensations, the employer’s liability for work injury insurance shall be deducted from medical expenses, assistive device costs, and funeral allowance.¡± Huizhou Xiaoxing Construction Engineering Co., Ltd., Zhang Haiyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling, Guangdong Provincial People¡¯s High Court Civil Ruling (2020) No.310. However, in the treatment of work injury insurance and compensation for personal injury, medical expenses, assistive device costs, nursing fees, income loss (wages during the period of paid work injury leave) and can not be compensated repeatedly. Guiyang Huaxi Fashion Wedding Photography Department, Oumou Labor Dispute Retrial Review and Trial Supervision Civil Ruling, Guizhou Provincial People¡¯s High Court Civil Ruling (2018) No.3267. ¡°The final decision of the court of the second instance is not improper in that it deducted the actual expenses such as medical expenses, nursing fees, nutrition fees, transportation expenses, and funeral allowance paid by the traffic accident tortfeasor from the work injury insurance liabilities of the case, considering that the compensation arising from the actual cost is duplicate compensation.¡±
If the tortfeasor has already paid the nursing fees, nutrition fees, and hospitalization food allowance, some courts, such as the Guizhou Provincial High Court, allow the employer or social insurance institution not to repeat the payment,4Guiyang Huaxi Fashion Wedding Photography Department, Oumou Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guizhou Provincial People¡¯s High Court Civil Ruling (2018) Qian Min Shen No.3267.but some courts have rendered opposite judgments.5Wang Fuqun, China Railway Zhengzhou Bureau Group Co., Ltd. Civil Ruling on Labor Dispute Civil Application for Retrial Review Henan High Court Civil Ruling (2021) Yu Min Shen No.1290. The court held that the hospitalization food allowance and nursing fee could be paid repeatedly.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1The case of the bulletin of the Supreme People’s Court, the 6th issue of 2021, shows that the wages during the period of paid work injury leave and the compensation from a third party can be obtained both. Jiaozuo Longfeng Fur Enterprise Co., Ltd., Wang Yanfeng Labor Dispute Retrial Review and Trial Supervision Civil Ruling Henan High Court Civil Ruling (2020) Yu Min Shen No.1606. Wang Zhesan and Beijing Xinnongyuan Real Estate Development Co., Ltd. Labor Dispute Retrial Civil Judgment Beijing High Court Civil Judgment (2018) Jing Min Zai No.81. Wang Zhiwei, Shuai Shaodong Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hebei Provincial People¡¯s High Court Civil Ruling (2018) Ji Min Shen No.2867. Luotian Xinpusheng Pharmaceutical Co., Ltd., He Guoping Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hubei Provincial People¡¯s High Court Civil Ruling (2018) E Min Shen No.2773.
- 2Chenzhou Beihu District Ean Automobile Sales Service Co., Ltd., Li Fuyun Labor Dispute Civil Judgment of Second Instance Civil Judgment of Hunan Chenzhou Intermediate People’s Court (2022) Xiang 10 Min Zhong No.2042. Beijing Jialian Port Restaurant and Meng Lingshan Labor Dispute Civil Judgment of Second Instance Civil Judgment of the Third Intermediate People’s Court of Beijing (2021) Jing 03 Min Zhong No.6578. Huizhou Xiaoxing Construction Engineering Co., Ltd., Zhang Haiyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guangdong Provincial People¡¯s High Court Civil Ruling (2020) Yue Min Shen No.310. Baoding Tianwei Electric Wire Co., Ltd. and Yang Guifang’s Application for Labor Dispute Civil Ruling of Jiangsu Provincial People¡¯s High Court (2014) Su Shen Er Min Shen Zi No.01304. Tianjin Security Service Corporation Nankai Branch and Yan Fuming Labor Dispute Appeal Case Tianjin First Intermediate People’s Court Civil Judgment (2015) YZMSZZ No.0779. Civil Judgment of First Instance on Other Labor Disputes between Tongwei Digital Technology (Shanghai) Co., Ltd. and Wang Yongqing Civil Judgment of Shanghai Changning District People’s Court (2018) Hu 0105 16669 of the Early Republic of China. The Measures for the Implementation of Work injury insurance in Shanghai stipulates that ¡°if an work-related injury is caused by a motor vehicle accident or other third-party civil infringement, and the employer or the Work Injury Insurance Fund pays in advance in accordance with the treatment of work injury insurance stipulated in the Measures, the injured person or their immediate relatives shall repay the compensation accordingly after receiving civil compensation for such as motor vehicle accident.¡± Notice of the General Office of Changchun Municipal People’s Government on the Implementation of the Regulations on Work Injury Insurance and Several Provisions on the Implementation of the Regulations on Work Injury Insurance in Jilin Province (Changfu Ban Fa (2003)93) Article 4 “On the Treatment of Work injury insurance” Item 5 stipulates that ¡°work-related injury accidents caused by civil liability of a third party shall be treated in accordance with the principle of ¡°work injury entitlements are not concurrently available ¡±.
- 3Article 6 of the Summary of the Symposium of the Guangdong Provincial Labor and Personnel Dispute Arbitration Commission of the Guangdong Provincial People¡¯s High Court on Several Issues Concerning the Trial of Labor and Personnel Dispute Cases (Guangdong High Law (2012) 284) ,¡°If an employee¡¯s work-related injury is caused by the infringement of a third party, who has assumed the liability for tort compensation, and the employee or their close relatives have also requested the employer for work-related compensations, the employer’s liability for work injury insurance shall be deducted from medical expenses, assistive device costs, and funeral allowance.¡± Huizhou Xiaoxing Construction Engineering Co., Ltd., Zhang Haiyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling, Guangdong Provincial People¡¯s High Court Civil Ruling (2020) No.310. However, in the treatment of work injury insurance and compensation for personal injury, medical expenses, assistive device costs, nursing fees, income loss (wages during the period of paid work injury leave) and can not be compensated repeatedly. Guiyang Huaxi Fashion Wedding Photography Department, Oumou Labor Dispute Retrial Review and Trial Supervision Civil Ruling, Guizhou Provincial People¡¯s High Court Civil Ruling (2018) No.3267. ¡°The final decision of the court of the second instance is not improper in that it deducted the actual expenses such as medical expenses, nursing fees, nutrition fees, transportation expenses, and funeral allowance paid by the traffic accident tortfeasor from the work injury insurance liabilities of the case, considering that the compensation arising from the actual cost is duplicate compensation.¡±
- 4Guiyang Huaxi Fashion Wedding Photography Department, Oumou Labor Dispute Retrial Review and Trial Supervision Civil Ruling Guizhou Provincial People¡¯s High Court Civil Ruling (2018) Qian Min Shen No.3267.
- 5Wang Fuqun, China Railway Zhengzhou Bureau Group Co., Ltd. Civil Ruling on Labor Dispute Civil Application for Retrial Review Henan High Court Civil Ruling (2021) Yu Min Shen No.1290. The court held that the hospitalization food allowance and nursing fee could be paid repeatedly.