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 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.
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).