China: Who Shall Bear The Self-Paid Expenses Of Medical Treatment For Work-Related Injury?

Last Updated: 2 January 2018
Article by River Delta Law Firm

The expenses of medical treatment for work-related injury refers to the summation of the expenses of drugs, diagnosis, treatment and hospitalization for treating work-related injury(or occupational disease, the same below) during the treatment period. In practice, since basically all the injured employees will have treatment in medical institutions when work-related injury occurred (or be certified as occupational disease), the expenses of medical treatment for work-related injury is the most common insurance benefit as its primary characteristic. Furthermore, the expenses of treatment for various kinds of work-related injury may have huge differences from each other. For example, some work-related injury will only costs millions of China Yuan for treatment1while others may cost millions, which contributes to the second characteristic of expenses of medical treatment for work-related injury, namely the variety.

  Based on the two characteristics mentioned above, the expenses of medical treatment for work-related injury is frequently involved in labor disputes regarding work-related injury, and among which, the most remarkable issue is who shall bear the self-paid expenses of medical treatment for work-related injury, the employer or the injured employees?

  I. Judicial Practices

  Self-paid expenses of medical treatment for work-related injury is not a legal terminology. It usually refers to the expenses of medical treatment not falling in the scope of Three Catalogs2regarding work-related injury. As to who shall bear such expenses, generally there are three kinds of view from various districts in practice:

  Point 1: Self-paid expenses of medical treatment for work-related injury shall be assumed by the employer. The judicial authorities of Jiangsu hold such point of view and have applied it in the judgment of relevant cases3.

  Point 2: Self-paid expenses of medical treatment for work-related injury generally shall not be assumed by the employer (shall by the employee or his relatives), except as otherwise agreed by the employer. The judicial authorities of Zhejiang, Guangdong and etc. hold such point of view and have formulated corresponding interpretation to specify this point4 .

  Point 3: For who shall bear the self-paid expenses of medical treatment for work-related injury, it shall not be designate a certain party but shall be based on the concrete situations. Take the opinion of Shanghai judicial authority as example, it has stipulated that, first of all if the medical treatment for work-related injury concerned is necessary treatment for rescue, the expenses shall be assumed by the insurance fund5 ; secondly if the employer is agreed to pay for the medical treatment for work-related injury, the employer shall undertake as agreed; and under other situations, the expenses shall be assumed by the employees himself or his relatives.

  It happens that the judicial authorities of Beijing share a similar opinion with Shanghai as listed below6 (but please be noted that the circumstances and the assuming party are not as same as that in Shanghai):

  Circumstances   Assuming Party

  If deemed as urgent and necessary treatments by third-party authentication organization Employer

  If the medical institution adopted the treatment without the consent of the employer and the employee       Medical institution

  If the medical institution explained the situation however the employer refused to adopt, and the employee could not prove it necessary       Employee

  II. Legal Analysis

  1. It lacks specific stipulation.

  I have to say, it lacks specific stipulation regarding such expenses under current legal framework (relevant laws and regulations concerning work-related injury, including the Regulations on the Insurance for Work-related Injury). The laws and regulations specify the assuming party for other benefits for work-related injury, however for the self-paid expenses of medical treatment, it is stipulated that the expenses in the scope of Three Catalogs shall be assumed by the insurance fund, but for that out of the scope, there is no national law and regulation to be complied with.

  2. It is unreasonable to determine the assuming party arbitrarily.

  As far as I am concerned, Point 1 and 2 mentioned above is not quite rational on account of:

   First of all, it is common practice worldwide to set catalogs and scope for the treatments of which the expenses shall be assumed by the insurance fund. With such catalogs and scope, the expenses of medical treatment could be restricted and prevented from waste, by which more occupationally injured employees can get treatment and be entitled to insurance benefits. However, it is also irrational to impose obligation of paying expenses out of the scope to employers directly. It not only does not match the original purpose of risk diversification for employer by establishing social insurance system (otherwise the value for the employers to participate in social insurance system decreases and so as their enthusiasm), but also is contrary to socialist core values - all in all, to avoid waste is the pursuit of the work-related injury insurance fund, as well as the employer and the whole society.

  Secondly, the Three Catalogs formulated and issued by the social insurance administration of the State Council along with health department of the State Council and food & drug administration guarantees the basic requirement for treatment. And also, in practice negative phenomenon such as over and excessive medical treatment do exist for the sake of medical institutions' profit and to make the situation worse, it is quite hard for third party to judge if over or excessively treated. Therefore, if directly determining the employer as the assuming party for self-paid expenses of medical treatment for work-related injury, the employer as the isolated party from the medical treatment will have nothing to do with the treatment but pay the expenses. And thus the medical treatment will be under no restraint.

  Finally, though the employee and his relative has the initiative to decide adopting the treatment or not, it is still irrational to directly determine the employee and his relatives as the assuming party since they have limited medical knowledge. It is either not a best solution for the expense assumption and even will push the situation to the other extreme.

  III. Legal Advice

  Taking the analysis above into consideration, I appeal for reinforcement of laws and regulations to specify the assuming party for self-paid expenses of medical treatment[6] for work-related injury and unify the operation of various districts. Hereby suggested operations kindly be provided for your reference:

  1. If the treatment is necessary and could not be substituted by any drugs and treatments within the scope of the Three Catalogs, the medical institution shall issue relevant certificate or statement. The insurance fund shall assume such expenses after verifying and confirming the situation.

  2. The medical institution shall get the consent of the employee and his relatives or the employer before adopting self-paid treatments except for those of situation 1, the expenses shall be assumed by the party accepting to adopt. If without any party' consent before adopting self-paid treatments, the expenses shall be assumed by the medical institution.

Footnotes 

1 I once handled a case that the injured employee severely burned all over his body (nearly 70%) and the expenses of treatment is more than 1 million.

2 The Three Catalogs herein refer to the medical treatment item catalogue, the pharmaceutical catalogue and the hospitalization service standard for work-related injury insurance.

3 i.e. the No. 03483 civil judgment issued by Intermediate Court of Suzhou in 2014

4 The Memorandum for Seminar Regarding Several Issues of Hearing Labor Disputes issued by intermediate court of Guangzhou in 2014 specified in Article 10 as "The expenses of treatment for work-related injury which are not covered by the insurance fund generally shall not be assumed by the employer or the insurance fund. Should the employer has reached consensus with the employee accordingly, the agreement of two parties shall prevail." Also the Explanation II to Several Issues of Hearing Labor Disputes issued by the No.1 civil tribunal of Zhe Jiang high people's court and Zhe Jiang Labor Arbitration Committee (Zhe Gao Fa (2014) No.7) also stipulated as article 16 that the employer who paid the work-related injury insurance premium for the employee, shall not assume such expenses of treatment for work-related injury as not covered by the insurance fund, except that the employer agrees to assume.

5 As stipulated by article 6 of the Measures for Administration on Expenses of Treatment for Work-related Injury (Hu Ren She Fu Fa(2013) No.27), If the employee has to take the treatment out of the national and local pharmaceutical catalogues for work-related injury for the rescue need, the relevant medical institution shall issue certificate affixing official stamp. The insurance fund shall assume such expenses after the administration of social insurance verified and confirmed the situation.

6 Please refer to the webpage from Beijing Court (http://bjgy.chinacourt.org/article/detail/2017/04/id/2740272.shtml).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions