The Interests of the Victim of a Car Accident on the Way to Work

Zhang had a car accident on the way to work. The driver Wong paid medical expenses(“MEs”), lost wages and other relevant losses. Later then, Zhang requested the company to apply for the work-related injury. The company refused, becauset Zhang had obtained compensation from Wong. Then a dispute arose.

It is not rare that a work-related injury would be concurrence with a third-party infringement. Article 30 to 45 of the “Regulation on Work-related Injury Insurance” stipulate the benefits of the work-related injury insurance. Article 16 of the “Tort Law” prescribes the compensation categories on a third-party infringement. There are many items are overlapped, such as MEs, lost wages, nursing fees, travel expenses, transportation expenses, meal allowance during the hospitalization, assessment fees, disability assistance equipment expenses and so on. Then who shall pay for these overlapped items? Could an employee obtain double of these items?

Currently, the principle of indemnification shall be applied to the compensation of MEs. Article 8 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases on Work-related Injury Insurance” stipulates where an employee suffers from work-related injuries due to reasons attributable to a third party, the competent people’s court shall not uphold the contention of the social insurance agency, on the ground that the employee or his/her close relative has filed a civil lawsuit against the third party, but MEs already paid by the third party shall be excluded. In view of this, MEs shall not belong to the scope of the payment of the medical insurance. To guarantee a timely treatment, if the employee has applied for the work-related injury insurance benefits, the social insurance agency shall pay for MEs. If the social insurance agency has paid such MEs, then it shall obtain the subrogation to claim the third party. In addition, because MEs paid by the social insurance agency shall meet the standard of the social insurance, if there is any difference between the actual MEs and MEs paid by the social insurance agency, then the employee could claim the difference on the third party. (For example,〔2013〕Feng Min San (Min) Chu Zi No.2030 judgement ruled by Shanghai Fengxian District People’s Court).

It is a pity that there is no nationwide regulation on the other overlapped items. In practice, different cities may have different local rules. For example, the “Answers on Certain Issues concerning the Cases on Concurrence of Work-related Insurance and Third-party Tort Compensation” issued by the First Civil Court of Shanghai High People’s Court in 2010, states that the principle of indemnification and the principle of compensation to actual damages shall be applied to the lost wages, funeral grants and other overlapped items. Which says, if an employee has claimed the third party, then the social insurance agency will not pay for such items; and if the social insurance agency has paid for such items, then it shall be entitled to claim the third party instead of the employee. In practice, there might be difference between the lost wages and the salary during the suspension with paid period, and the Shanghai courts tend to support the higher one. Differently, the “Notice of People’s Government of Zhejiang Province on Further Conducting Well the Work-related Injury Insurance” (Zhe Zheng Fa [2009] No.50) states that for the expenses other than MEs, disability assistance equipment expenses, nursing expenses, transportation expenses and meal allowance during the hospitalization, the social insurance agency shall not refuse the application of the employee, even though the employee has obtained the compensation from the third party. In other words, an employee could get the lost wages and the salary during the suspension with paid period at the same time in Zhejiang province. There is neither rule on dealing with the overlap of the compensations for disability and one-off disability allowance, so an employee may obtain both or the higher one.

If an enterprise has similar cases, in order to solve the problems properly, it shall confirm the local rules and tend in advance.