Lack of implementation rules, legal retrospectiveness is controversial, social security institutions have difficulty in recovering compensation, and work-related injury insurance funds have encountered difficulties in landing their "early" guarantee benefits——
Some take four or five years, why is it so slow to "pay in advance" for work-related injuries
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According to the "Social Insurance Law," the employer does not pay the work-related injury insurance premiums in accordance with the law, and if a work-related accident occurs, the employer shall pay the work-related injury insurance benefits.
If the employer does not pay, it shall be paid first from the work-related injury insurance fund.
However, in reality, it is not smooth for employees who have suffered work-related injuries to apply for advance payment, and there are many difficulties.
In this regard, professionals recommend further clarifying the burden of proof of the employer’s refusal to pay, the scope of the retrospective effect of the advance payment regulations, and request all localities to formulate implementation rules and enforcement measures as soon as possible.
Recently, 57-year-old pneumoconiosis patient Lao Shi received a work injury benefit of RMB 247,000 from the work injury insurance fund.
It has been more than two years since he was identified as pneumoconiosis.
Lao Shi is lucky to get the work-related injury insurance fund to pay in advance.
The reporter's investigation found that although the work-related injury insurance fund advance payment system was established in 2011, due to the lack of implementation rules and disputes over legal retroactivity, the social security agency believes that it is difficult to recover compensation, etc., which caused workers to apply for work-related injury insurance funds to pay first. There are many difficulties.
Rejected because the Social Insurance Law was not implemented at the time of illness
From March 2007 to December 2008, Lao Shi was engaged in underground mining in a coal mine in Beijing. During this period, his unit did not pay for his work injury insurance and did not undergo occupational disease inspections when he resigned.
In July 2017, Lao Shi was identified as a grade 7 disability due to pneumoconiosis.
In January 2018, the Labor and Personnel Dispute Arbitration Commission of a district in Beijing ruled that the coal mine factory should pay 247,000 yuan for the treatment of old stonework injuries.
Lao Shi applied to the court for compulsory execution due to the coal mine’s delay in paying the work-related injury treatment, but there was no property available for execution under the mine’s name, and the court terminated the execution procedure.
According to the "Social Insurance Law," the employer does not pay the work-related injury insurance premiums in accordance with the law, and if a work-related accident occurs, the employer shall pay the work-related injury insurance benefits.
If the employer does not pay, it shall be paid first from the work-related injury insurance fund.
According to this, the situation of Lao Shi meets the conditions for the work-related injury insurance fund to pay in advance.
In November 2018, he applied to the Social Security Management Center of a district in Beijing for advance payment and was rejected.
The Social Insurance Center stated that the time when Lao Shi was exposed to dust and suffered from occupational diseases before the implementation of the "Social Insurance Law", the work injury insurance fund is not applicable for payment in advance.
In March last year, with the help of Li Shize, a public interest lawyer at the Beijing Yilian Labor Law Research and Assistance Center, Lao Shi filed a lawsuit in the court, requesting the Social Security Center to pay his work injury benefits first.
The court of first instance held that the Social Security Center’s refusal to pay in advance lacked factual and legal basis and ordered the Social Security Center to pay Lao Shi in advance for various work-related injury benefits.
Subsequently, the Social Security Center filed an appeal.
However, during the second instance, the Social Security Center took the initiative to fulfill the obligation of the first instance judgment, and Lao Shi finally got the compensation.
"Since the implementation of the work-related injury advance payment system in 2011, the number of advance payment cases has continued to increase, and more and more work-related injury workers have benefited from it." Li Shize, who has represented the work-related injury insurance fund in advance payment cases for many times, introduced, Beijing Yilian Labor Law Assistance and Research The center has investigated 119 cases of advance payment, and found that 68.4% of the cases were won by workers.
"It takes an average of four to five years from application to advance payment"
At present, some places have formulated relatively complete policies for the advance payment of work-related injury insurance funds, and eligible employees can apply for advance payment to the social insurance agency after work-related injury identification.
However, in some areas, the application for advance payment procedures are complicated, requiring confirmation of labor relations, work injury identification, labor arbitration, first and second instance, etc.
For workers with work-related injuries, applying for advance payment not only faces lengthy litigation for rights protection, but also has to overcome the higher application threshold set by the social security agency.
In practice, for "the employer refuses to pay", the social security agency often requires the worker to submit a judgment on termination of execution issued by the court.
Because there is no clear acceptance standard, workers with work-related injuries often travel between the social security agency and the employer.
"When a case enters the proceedings, it is often about 2 years since the occurrence of a work-related accident, and it takes an average of four to five years to complete an application." Li Shize said.
Li Shize disclosed that it is more difficult for workers to prove that "the employer refuses to pay". The social security agencies in various regions have different criteria and standards for determining "the employer refuses to pay".
In some places, it is required to provide a termination of execution document issued by the court to prove that "the employer refuses to pay."
According to his conclusion, the reasons why workers were rejected for applying for the first payment of the work-related injury insurance fund included: the lack of retrospective provisions in relevant laws, lack of implementation rules, and difficulty in recovering after first payment.
Some social insurance agencies believe that the laws and regulations related to the advance payment system for work-related injury insurance funds have no retrospective effect on work-related accidents that occurred before their entry into force, that is, the date of implementation of the "Social Insurance Law" and "Interim Measures for the Advance Payment of Social Insurance Funds", which is 2011 For work-related accidents that occurred before July 1, 2016, advance payment is not supported.
According to a survey conducted by the Beijing Yilian Labor Law Aid and Research Center, most cities have not issued implementation rules for the advance payment of work-related injury insurance funds.
In reality, some places reject workers' applications for lack of implementation rules.
According to the "Social Insurance Law", the work injury insurance benefits paid in advance from the work injury insurance fund should be repaid by the employer.
If the employer fails to repay, the social insurance agency may recover it in accordance with the law.
"It is very difficult to recover after paying first, and the success rate of recovery is low." Li Shize said that the first payment usually involves huge medical expenses, disability subsidies, etc., usually out of consideration of the safety of the work-related injury insurance fund, social security agencies will refuse to part of the first payment Application.
It is recommended to establish a prepayment system for work injury insurance
“The work-related injury insurance fund is paid in advance to ensure that employees receive timely work-related injury benefits.” said Guan Tieliu, a senior partner of Guangdong Huashang (Longgang) Law Firm, a long-term agent of work-related injury cases. “Many employees cause work-related injuries due to occupational diseases. In a process, after some employees have identified their work-related injuries, the original work unit has been disbanded. At this time, the work-related injury insurance fund is particularly in need of relief."
Li Shize believes that to reduce the cost of rights protection for employees applying for advance payment, it is also necessary to further clarify the burden of proof for employers’ refusal to pay, the scope of the retrospective scope of advance payment regulations, and require localities to formulate implementation rules and implementation of advance payment for work-related injury insurance funds as soon as possible Ways to ensure that this system is in place.
"Many occupational diseases require long-term treatment and rehabilitation, and some will continue to worsen, such as pneumoconiosis." Ren Zaiming, an occupational disease diagnosis practitioner in Chongqing, said that compared with advance payment, the establishment of a work injury insurance prepayment system is more suitable for work injuries caused by occupational diseases. Laborers.
In this regard, Li Shize suggested opening a "green channel" for the work-related injury insurance fund to pay in advance.
Specifically, he believes that with reference to commercial insurance, social security agencies can participate in on-site investigations and make preliminary assessments when work-related accidents occur, and the work-related injury insurance fund will directly pay for the rescue and treatment expenses of employees who meet the pre-payment conditions.
In Guan Tieliu's view, whether the social security institution can successfully recover compensation should not be a precondition for applying for advance payment.
"The "Social Insurance Law" does not set this condition. As long as the regulations are met, the social insurance agency should handle the advance payment for workers in a timely manner." He said.
For employers and related responsible persons who refuse to repay after paying in advance, Li Shize suggested to severely penalize them with reference to "salary arrears."
In order to prevent the employer from maliciously writing off and transferring the property, Li Shize believes that the personal property of the employer’s legal representative and other managers should be included in the scope of recovery.
Reporter: Dou Feitao