71.My paid work injury leave has expired, but the application for labor capacity appraisal is being processed. How should the employer pay my wage?

Answer: The duration between expiry of paid work injury leave and processing of labor capacity appraisal application is a special period of time, during which both the employer and employee need to wait for the labor capacity appraisal result in order to decide whether the employee should be entitled to compensations from the Work Injury Insurance Fund and whether the employment should remain. Therefore, the employer should not terminate the employment relationships during the period.

At present, there are the following judicial practices for the wage standards for employees with work-related injuries and occupational diseases during the period: First approach is that the wage applies to the standard for medical care leave, which is held by the prevailing judicial decisions, including cases from Beijing, Tianjin, Chongqing, Shandong, Jiangxi, Shenzhen, Huanggang City of Hubei Province, and Jincheng City of Shanxi Province;1Zhou Ling and UFI Network Technology Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Beijing First Intermediate People’s Court Civil Judgment (2023) Beijing 01 Min Zhong No.1928. In this case, the employee was identified as work-related injury, but both parties did not apply for labor capacity appraisal before the employer terminating the employment contract. The court found that the employer did not inform the employee of the consequences of not applying for labor capacity appraisal, so the relationship between the two parties continued before the conclusion of the later labor capacity appraisal, and that the employer should pay the wages at the standard of sick leave pay during the period of waiting for the conclusion. Article 9 of the Notice on the Measures for the Administration of the Paid work injury leave for Injured Workers in Chongqing stipulates that ¡°when the paid work injury leave expires or the paid work injury leave terminates, the labor capacity appraisal shall be carried out. During the period of labor capacity appraisal, the employer shall pay the living allowance monthly for those who cannot return to work, and the standard shall not be lower than the sick leave wage during the medical care leave due to illness.¡± Article 9 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Shandong Province. Article 11 of the Interim Measures for the Administration of the Paid work injury leave for Injured Workers in Jiangxi Province. In the case of labor dispute appeal between Huang Shanming and Nanping Train Depot of Nanchang Railway Administration, the Intermediate People’s Court of Nanping City, Fujian Province, Civil Judgment No.529 (2015). ¡°The injured workers who still need treatment after the expiration of the paid work injury leave enjoy only ¡°medical treatment entitlements for work-related injuries¡±. Huang Shanming¡¯s understanding of ¡°medical treatment entitlements for work-related injuries¡± being equivalent to original wages and welfare benefits is exaggeratory, wrong interpretation. Therefore Huang Shanming¡¯s appeal has no legal basis and shall be rejected. ¡± In 2023, the Tianjin High Court issued the sixth of eight typical cases of labor disputes: Wang v. a hotel labor dispute. The court ruled that Wang had been identified as an work-related injury and should enjoy the treatment of work-related injury in accordance with the relevant provisions. Wang Mou did not return to work on the grounds of illness after the expiration of the paid work injury leave, which was handled by the hotel as medical care leave. After the expiration of the medical care leave, Wang still refused to be on duty on the grounds of illness¡­¡­¡± Civil Judgment of Second Instance of Labor Dispute between Ni Mou-mou and Hubei Honglu Steel Structure Co., Ltd. Civil Judgment of Huanggang Intermediate People’s Court of Hubei Province (2022) E 11 Min Zhong No.1472. Civil Judgment of Second Instance of Labor Dispute between Feng Hulin and Jincheng Yameijie Environmental Sanitation Clearance and Transportation Co., Ltd. Civil Judgment of Shanxi Jincheng Intermediate People’s Court (2020) Jin 05 Min Zhong No.877. Civil Judgment of First Instance of Labor Dispute between Wu Chengpeng and Beijing CBRE Property Management Services Co., Ltd. Shenzhen Branch and Beijing CBRE Property Management Services Co., Ltd. Civil Judgment of People’s Court of Futian District, Shenzhen City, Guangdong Province (2018) Yue 0304 Min Chu No.871.the second approach is to apply the minimum wage standard in some cases in Shaanxi Province and Zhangzhou City of Fujian Province; 2Ren Xiangjian and Shaanxi Hengyuan Investment Group Zhaojialiang Coal Mine Co., Ltd. Civil Ruling on Labor Dispute Appeal and Application for Retrial Civil Ruling of Shaanxi High Court (2020) Shan Min Shen No.1395. Civil Judgment of the First Instance of Labor Dispute between Shen Guoqing and Xintai Construction Group Co., Ltd. Civil Judgment of the People’s Court of Xiangcheng District, Zhangzhou City, Fujian Province (2020) Min 0602 Min Chu No.3392. ¡°The defendant must pay the plaintiff the minimum wage from the expiration of the paid work injury leave to the plaintiff’s disability appraisal result (i.e. July 13, 2018 to December 20, 2019).the third approach is the wage standard for paid work injury leave, taking by decisions from the Second Intermediate Court of Tianjin, Huaian Intermediate Court of Jiangsu Province, and Xiamen Intermediate Court of Fujian Province;3Tianjin Xingjian Weiye Metal Products Co., Ltd., Liu Jianwei Labor Dispute Civil Judgment of Second Instance Civil Judgment of Tianjin Second Intermediate People’s Court (2021) Jin 02 Min Zhong No.7855. The court held that the employer should pay the employee his earned wages, i.e., the wages for the paid work injury leave, during the labor capacity appraisal. Civil Judgment of the Second Instance of the Labor Dispute between Jiangsu Lvye Construction Development Co., Ltd. and Liu Guoqing Civil Judgment of the Intermediate People’s Court of Huai’an City, Jiangsu Province (2020) Su 08 Min Zhong No.166, the court held that: ¡°with regard to the wages during the period from paid work injury leave to labor capacity appraisal, if the employer is unable to arrange work from the expiration of the paid work injury leave to the end of the labor capacity appraisal, the original wages and welfare benefits shall be paid.¡± Qiuyedi (Xiamen) Outdoor Equipment Technology Co., Ltd. and Li Caihui Labor Dispute Second Instance Civil Judgment Fujian Xiamen Intermediate People’s Court Civil Judgment (2020) Min 02 Min Zhong No.4701. The employee in this case was identified as work-related injury 4 months after the injury, and the conclusion of labor capacity appraisal about 9 months later was that there was no disability level and the paid work injury leave was 3 months. Employees were hospitalized or went outpatient clinics for many times before the conclusion of labor capacity appraisal and basically did not go to work. The court ruled that after the expiration of the paid work injury leave, the wage treatment before the labor capacity appraisal was equal to that of paid work injury leave. the fourth approach is Shanghai cases, which hold that the wages for work-injured workers who are illegally employed are determined according to the average wages of the workers in the previous year in the overall planning area (which is likely to be the Shanghai Region);4The plaintiff Yang Guanwang sued the defendant Shanghai Angyou Kitchen Equipment Co., Ltd. for other labor disputes. Shanghai Fengxian District People’s Court Civil Judgment (2015) Feng Min San (Min) Chu Zi No.3470. ¡°This case should be applied to the relevant provisions of the Measures for One-off Compensation for Casualties in Illegal Employment Employers. According to the provisions of Articles 4 and 5 of the Measures, the defendant shall pay the plaintiff’s living expenses and one-off compensation during the period of treatment before the labor capacity appraisal, and the standard shall be determined according to the average monthly wage of employees in the previous year in the overall planning area. ¡±the fifth approach is cases from Benxi Intermediate Court of Liaoning Province and Ezhou Intermediate Court of Hubei Province pointing out that if an employee does not go to work before the result of the labor capacity appraisal, the employer does not need to pay the employee’s wage during that period.5He Guohua, Jiangsu Jiantai Construction Labor Service Co., Ltd. Civil Judgment of the First Instance of Labor Dispute Civil Judgment of the People’s Court of Huaian Economic and Technological Development Zone, Jiangsu Province (2021) Su 0891 Min Chu No.3334. The court held that the employee was found no disability, and did not support the wages and benefits from the expiration of the period of paid work injury leave to the conclusion of labor capacity appraisal. In the labor dispute appeal case between Benxi Fuhong Real Estate Development and Construction Co., Ltd. and Fang Weixin, the Intermediate People’s Court of Benxi City, Liaoning Province, the Civil Judgment (2015) BMYZZ No.00409. In the case, the employee¡¯s paid work injury leave was 6 months. The labor capacity appraisal being class 9 disability was issued at 6 months and a half after the injury. The medical advice after the leave expired was 1 month rest. The second instance court changed the 7.5 months of paid work injury leave found by the first instance court into 6.5 months of paid work injury leave, finding the one-month rest requested by the medical advice as unpaid. Merchandise Club (Hubei) Electronic Commerce Co., Ltd. and Luolong Labor Dispute Civil Judgment of Second Instance Civil Judgment of Ezhou Intermediate People’s Court of Hubei Province (2021) E 07 Min Zhong No.642. ¡°But this court rejuect Luo Long¡¯s claim of sick leave pay after expiration of the paid work injury leave as it has no legal basis.¡±

Although employers can not terminate employment relationships with the employees before the completion of labor capacity appraisal and after the expiration of the paid work injury leave or the medical care leave, if an employee does not have a medical certificate for resting or further treatment during this period, the employee should certainly return back to work. If the employee refuses to go to work without justifiable reasons, the employer is entitled to refuse to pay wages or even dismiss the employee for violation of the company rules.6Local regulations and judicial decisions all support this principle. Article 12 of the Measures for the Administration of the Paid work injury leave of Injured Workers in Beijing in 2004 and Article 24 of the Opinions on Several Issues Concerning the Implementation of the Measures for the Implementation of Work injury insurance in Shanghai in 2004 (although revoked, the latest draft for soliciting opinions still retains this provision).

Obviously, there are concerning inconsistencies in the judicial decisions about the treatment after the expiration of the paid work injury leave and before the completion of labor capacity appraisals. We believe that the fundamental reason lies in the defects of legal rules and the system of labor capacity appraisal. The system of application and approval process of labor capacity appraisal calls for reforms to increase the certainty and predictability on application initiation, approval time and results, and on this basis, shorten the length of this uncertain period and clarify the treatment rules during this period.

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  • 1
    Zhou Ling and UFI Network Technology Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Beijing First Intermediate People’s Court Civil Judgment (2023) Beijing 01 Min Zhong No.1928. In this case, the employee was identified as work-related injury, but both parties did not apply for labor capacity appraisal before the employer terminating the employment contract. The court found that the employer did not inform the employee of the consequences of not applying for labor capacity appraisal, so the relationship between the two parties continued before the conclusion of the later labor capacity appraisal, and that the employer should pay the wages at the standard of sick leave pay during the period of waiting for the conclusion. Article 9 of the Notice on the Measures for the Administration of the Paid work injury leave for Injured Workers in Chongqing stipulates that ¡°when the paid work injury leave expires or the paid work injury leave terminates, the labor capacity appraisal shall be carried out. During the period of labor capacity appraisal, the employer shall pay the living allowance monthly for those who cannot return to work, and the standard shall not be lower than the sick leave wage during the medical care leave due to illness.¡± Article 9 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Shandong Province. Article 11 of the Interim Measures for the Administration of the Paid work injury leave for Injured Workers in Jiangxi Province. In the case of labor dispute appeal between Huang Shanming and Nanping Train Depot of Nanchang Railway Administration, the Intermediate People’s Court of Nanping City, Fujian Province, Civil Judgment No.529 (2015). ¡°The injured workers who still need treatment after the expiration of the paid work injury leave enjoy only ¡°medical treatment entitlements for work-related injuries¡±. Huang Shanming¡¯s understanding of ¡°medical treatment entitlements for work-related injuries¡± being equivalent to original wages and welfare benefits is exaggeratory, wrong interpretation. Therefore Huang Shanming¡¯s appeal has no legal basis and shall be rejected. ¡± In 2023, the Tianjin High Court issued the sixth of eight typical cases of labor disputes: Wang v. a hotel labor dispute. The court ruled that Wang had been identified as an work-related injury and should enjoy the treatment of work-related injury in accordance with the relevant provisions. Wang Mou did not return to work on the grounds of illness after the expiration of the paid work injury leave, which was handled by the hotel as medical care leave. After the expiration of the medical care leave, Wang still refused to be on duty on the grounds of illness¡­¡­¡± Civil Judgment of Second Instance of Labor Dispute between Ni Mou-mou and Hubei Honglu Steel Structure Co., Ltd. Civil Judgment of Huanggang Intermediate People’s Court of Hubei Province (2022) E 11 Min Zhong No.1472. Civil Judgment of Second Instance of Labor Dispute between Feng Hulin and Jincheng Yameijie Environmental Sanitation Clearance and Transportation Co., Ltd. Civil Judgment of Shanxi Jincheng Intermediate People’s Court (2020) Jin 05 Min Zhong No.877. Civil Judgment of First Instance of Labor Dispute between Wu Chengpeng and Beijing CBRE Property Management Services Co., Ltd. Shenzhen Branch and Beijing CBRE Property Management Services Co., Ltd. Civil Judgment of People’s Court of Futian District, Shenzhen City, Guangdong Province (2018) Yue 0304 Min Chu No.871.
  • 2
    Ren Xiangjian and Shaanxi Hengyuan Investment Group Zhaojialiang Coal Mine Co., Ltd. Civil Ruling on Labor Dispute Appeal and Application for Retrial Civil Ruling of Shaanxi High Court (2020) Shan Min Shen No.1395. Civil Judgment of the First Instance of Labor Dispute between Shen Guoqing and Xintai Construction Group Co., Ltd. Civil Judgment of the People’s Court of Xiangcheng District, Zhangzhou City, Fujian Province (2020) Min 0602 Min Chu No.3392. ¡°The defendant must pay the plaintiff the minimum wage from the expiration of the paid work injury leave to the plaintiff’s disability appraisal result (i.e. July 13, 2018 to December 20, 2019).
  • 3
    Tianjin Xingjian Weiye Metal Products Co., Ltd., Liu Jianwei Labor Dispute Civil Judgment of Second Instance Civil Judgment of Tianjin Second Intermediate People’s Court (2021) Jin 02 Min Zhong No.7855. The court held that the employer should pay the employee his earned wages, i.e., the wages for the paid work injury leave, during the labor capacity appraisal. Civil Judgment of the Second Instance of the Labor Dispute between Jiangsu Lvye Construction Development Co., Ltd. and Liu Guoqing Civil Judgment of the Intermediate People’s Court of Huai’an City, Jiangsu Province (2020) Su 08 Min Zhong No.166, the court held that: ¡°with regard to the wages during the period from paid work injury leave to labor capacity appraisal, if the employer is unable to arrange work from the expiration of the paid work injury leave to the end of the labor capacity appraisal, the original wages and welfare benefits shall be paid.¡± Qiuyedi (Xiamen) Outdoor Equipment Technology Co., Ltd. and Li Caihui Labor Dispute Second Instance Civil Judgment Fujian Xiamen Intermediate People’s Court Civil Judgment (2020) Min 02 Min Zhong No.4701. The employee in this case was identified as work-related injury 4 months after the injury, and the conclusion of labor capacity appraisal about 9 months later was that there was no disability level and the paid work injury leave was 3 months. Employees were hospitalized or went outpatient clinics for many times before the conclusion of labor capacity appraisal and basically did not go to work. The court ruled that after the expiration of the paid work injury leave, the wage treatment before the labor capacity appraisal was equal to that of paid work injury leave.
  • 4
    The plaintiff Yang Guanwang sued the defendant Shanghai Angyou Kitchen Equipment Co., Ltd. for other labor disputes. Shanghai Fengxian District People’s Court Civil Judgment (2015) Feng Min San (Min) Chu Zi No.3470. ¡°This case should be applied to the relevant provisions of the Measures for One-off Compensation for Casualties in Illegal Employment Employers. According to the provisions of Articles 4 and 5 of the Measures, the defendant shall pay the plaintiff’s living expenses and one-off compensation during the period of treatment before the labor capacity appraisal, and the standard shall be determined according to the average monthly wage of employees in the previous year in the overall planning area. ¡±
  • 5
    He Guohua, Jiangsu Jiantai Construction Labor Service Co., Ltd. Civil Judgment of the First Instance of Labor Dispute Civil Judgment of the People’s Court of Huaian Economic and Technological Development Zone, Jiangsu Province (2021) Su 0891 Min Chu No.3334. The court held that the employee was found no disability, and did not support the wages and benefits from the expiration of the period of paid work injury leave to the conclusion of labor capacity appraisal. In the labor dispute appeal case between Benxi Fuhong Real Estate Development and Construction Co., Ltd. and Fang Weixin, the Intermediate People’s Court of Benxi City, Liaoning Province, the Civil Judgment (2015) BMYZZ No.00409. In the case, the employee¡¯s paid work injury leave was 6 months. The labor capacity appraisal being class 9 disability was issued at 6 months and a half after the injury. The medical advice after the leave expired was 1 month rest. The second instance court changed the 7.5 months of paid work injury leave found by the first instance court into 6.5 months of paid work injury leave, finding the one-month rest requested by the medical advice as unpaid. Merchandise Club (Hubei) Electronic Commerce Co., Ltd. and Luolong Labor Dispute Civil Judgment of Second Instance Civil Judgment of Ezhou Intermediate People’s Court of Hubei Province (2021) E 07 Min Zhong No.642. ¡°But this court rejuect Luo Long¡¯s claim of sick leave pay after expiration of the paid work injury leave as it has no legal basis.¡±
  • 6
    Local regulations and judicial decisions all support this principle. Article 12 of the Measures for the Administration of the Paid work injury leave of Injured Workers in Beijing in 2004 and Article 24 of the Opinions on Several Issues Concerning the Implementation of the Measures for the Implementation of Work injury insurance in Shanghai in 2004 (although revoked, the latest draft for soliciting opinions still retains this provision).

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