A 54-year-old cleaner aunt accidentally fell and fractured on the way home from work on an electric car after a rainy day, can she apply for a work-related injury in this case, and can she enjoy part of her salary according to her sick leave treatment?
Family: My wife didn't pay a penny after she broke her bones
An accident on the way to work should be counted as a work-related injury
On August 2, Mr. He, who lives in Xiwang Street Office, Baqiao District, Xi'an City, reported that his wife, Ms. Wang, has been working as a cleaner in Xi'an Ruikang Environmental Sanitation Property Co., Ltd. for several years, signed a labor contract, and the company also bought social security, mainly responsible for the cleaning of a section of the road near Tangdu Hospital, and usually commutes by electric car.
"It was a rainy day on July 7, and she left work at 11 a.m. after finishing work, and a few minutes later when she was riding to Shuixiang Road, she fell while dodging the brakes of the car in front of her that suddenly slowed down." Mr. He said that there was no traffic accident at that time, and after the injury, his wife called him and contacted the company's road chief, and later sent his wife to the Second Affiliated Hospital of Xi'an Medical College, where she was diagnosed with a proximal fracture of the right tibia and underwent surgery, with medical expenses of more than 20,000 yuan. After being discharged from the hospital, his wife has been lying in bed and unable to get off the ground, and needs to be taken care of for eating, drinking, and Lazar, and she is also a migrant worker, so she can only take care of the patient at home without going to work.
"If we have broken a bone, we will have to recuperate at home for at least a few months, and neither of us will have any income, so how can we eat?" Mr. He said that his wife's salary as a cleaner is more than 2,000 yuan, and the work has been diligent, after the accident, he repeatedly looked for the person in charge of the sanitation company, to see if he could apply for a work injury, I heard that an accident on the way to and from work is considered a work injury, but the person in charge said that the conditions are not enough, the company has commercial accident insurance, you can apply for accident insurance reimbursement. "Tell me that you can only choose one of the two types of medical insurance and accident insurance, and you don't care about the rest, and there is nothing in salary, nursing expenses, living allowances, etc., that is, there is no income in the past few months." Mr. He found it difficult to accept this, cleaners are a vulnerable group in the city, why can't they give some humane care when they encounter an accident? He said he couldn't figure it out.
Sanitation Company:
The company has work-related injury insurance but does not meet the conditions for work-related injuries
Unnatural illnesses do not count as sick leave
The reporter of Huashang Daily Gale News contacted the relevant person in charge of Xi'an Ruikang Environmental Sanitation Property Co., Ltd., who said that the cleaner work is very hard, Ms. Wang is an old employee, the company has purchased social security and work-related injury insurance for employees, as well as accident insurance, after the accident wants to apply for work-related injury for Ms. Wang, but the social security department told that it does not meet the conditions. "Not all accidents on the way to and from work are work-related injuries, and they must be involved in a traffic accident that is not the main responsibility of the person in order to apply for a work-related injury." The person in charge explained that the company has work-related injury insurance, and it is a good thing to apply for a work-related injury for Ms. Wang, so why not do it, but if she does not meet the conditions, there is no way. At present, we can only see if we can report accident insurance, and we have to consult the insurance company specifically about how much compensation will be paid, and the rest of the salary, nursing expenses, living allowances, etc., are unknown, and the company can't afford it, so we can only keep the post and wait for her to recuperate for a few months before coming back to continue to work.
So, can Ms. Wang apply for sick leave and enjoy sick leave during the fracture recuperation period? The person in charge of the sanitation company said that it would not work either. "Enjoying sick leave is a natural disease, and she is an accident, two different things." He said that some employees who had cerebral infarction took leave to enjoy sick leave, which was different from the fracture caused by human causes.
Lawyer's Statement:
It is indeed not in compliance with the work-related injury regulations
However, the argument that the company involved does not allow sick leave is not valid
In this regard, Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm and a well-known public interest lawyer, believes that Article 14 of the "Regulations on Work-related Injury Insurance" clearly stipulates that if a person is injured in a traffic accident or an urban rail transit, passenger ferry, or train accident for which he is not primarily responsible on the way to and from work, it constitutes a work-related injury. Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance clearly stipulates that the following four situations are "on the way to and from work":(1) commuting to and from work on a reasonable route between the place of work and the place of residence, the place of habitual residence, or the dormitory of the unit within a reasonable time; (2) Commuting to and from work by a reasonable route between the place of work and the place of residence of the spouse, parents, or children within a reasonable time; (3) Engaging in activities that are necessary for daily work and life, and commuting to and from work at a reasonable time and on a reasonable route; (4) Commuting to and from work by other reasonable routes within a reasonable time.
Accordingly, the premise for a work-related injury is that, firstly, the relationship between the injured person and the employer is an employment relationship, not an employment relationship. Secondly, if a traffic accident occurs on the way to and from work, and I am not primarily or fully responsible.
Zhao Liangshan said that as far as this incident is concerned, according to the "Interim Measures of the State Council on the Retirement and Retirement of Workers", the retirement age of enterprise employees is: men must be at least 60 years old, and women should be at least 50 years old. Ms. Wang is over 50 years old and has passed the retirement age. In addition, according to Document No. 37 [2019] of the Ministry of Human Resources and Social Security, the Ministry of Human Resources and Social Security replied to Recommendation No. 6979 of the Second Session of the 13th National People's Congress: If the employee reaches the statutory retirement age, the labor contract will be terminated. For workers who have exceeded the statutory retirement age and are willing to continue working, the relationship between the employer and the employee may be handled as a labor relationship, and the rights and obligations of both parties may be adjusted according to the civil legal relationship. After reaching the retirement age, it will be treated as a labor relationship. Accordingly, the relationship between Ms. Wang and the Company involved was an employment relationship, not an employment relationship, and Ms. Wang was not involved in a traffic accident, so Ms. Wang's injuries did not constitute a work-related injury.
At the same time, Zhao Liangshan pointed out that the reason for an employee's sick leave is illness, and there is no need for any other reason, and there is no distinction between his own illness and man-made injury. Employees who apply for sick leave should provide the relevant medical records of medical institutions to the employer, and apply for leave in accordance with the procedures prescribed by the employer. The specific sick leave period shall be determined according to the recommended rest and recuperation period of the medical institution, as well as the actual working years of the employee himself and the number of years of service in the employer. During the period of sick leave, the salary, medical expenses and medical treatment of the employee shall be implemented in accordance with the regulations; Employees who take long-term sick leave should maintain a relationship with their original employer. Therefore, the argument that the company involved did not allow Ms. Wang to take sick leave is not valid. Even if the internal rules and regulations of the company in question stipulate that Ms. Wang's injuries are not on sick leave, the rules and regulations are invalid and not binding on Ms. Wang because they are contrary to the law.
Case Extension:
There are many cases of disputes regarding whether an employee falls while riding a bicycle to and from work can be recognized as a work-related injury.
1. Falling and being injured while riding a bicycle on a rainy day, it has not been recognized as a work-related injury
Ye rode an electric bicycle to work on a rainy day, and on the way, the raincoat was lifted by strong winds to block Ye's vision, causing Ye to hit the non-motorized road tooth, and was diagnosed with left shoulder dislocation and large tubercle fracture and brachial plexus injury after being sent to the hospital for treatment, and the traffic police department did not make a determination of responsibility for the accident.
Ye applied to the Human Resources and Social Security Bureau for recognition of work-related injuries, and the Human Resources and Social Security Bureau believed that Ye's injuries were not traffic accidents for which he was not primarily responsible, and did not comply with the provisions of the Regulations on Work-related Injury Insurance, so the work-related injuries were not recognized.
Ye was dissatisfied and filed a lawsuit with the court.
The court held that in bad weather, Ye should drive the vehicle cautiously, fulfill the due duty of care for road traffic safety, and prevent accidents.
In the case of heavy wind and rain, he could choose to implement measures such as electric vehicles or stop and arrange raincoats, and he chose to continue riding.
The accident was not an unforeseen accident, and the weather should not be blamed.
Therefore, Ye was primarily negligent in the accident and should bear the main or full responsibility for the accident. The Bureau of Human Resources and Social Security determined that Ye was fully responsible for the unilateral accident and made a decision that it was not a work-related injury, which was not improper.
In the end, the court ruled and rejected Ye's claim.
2. Riding a bicycle is injured by falling rocks, which is recognized as a work-related injury
Fang drove a motorcycle home after the night shift, and was injured by a landslide on the way, and the traffic police department issued an accident certificate, defining Fang's injury as an accident.
The company applied for a work-related injury recognition for Fang, and after review, the Human Resources and Social Security Bureau found that the accident did not meet the "traffic accident for which he was not primarily responsible" as stipulated in the law, and made a decision not to recognize the work-related injury. Fang was dissatisfied and filed a lawsuit with the court.
The court held that a traffic accident includes both a liability accident caused by the fault of the vehicle on the road and an accident caused by an accident on the road.
Fang drove a two-wheeled motorcycle home after the night shift, and collided with a rockfall on the way, causing Fang to be injured and the vehicle damaged. The "Road Traffic Accident Certificate" issued by the traffic police department can prove that the above facts are accidents.
Fang's injury in a traffic accident on the way to work that is not his primary responsibility shall be found to be a work-related injury if it meets the circumstances provided for in Article 14, Item 6 of the "Regulations on Work-related Injury Insurance".
Huashang Daily Gale News reporter Li Lin
Source: Huashang Net-Huashang Daily