Opinion: Identifying work-related injury

The Supreme People's Court has recently promulgated the Provisions on Several Issues Concerning the Trial of Administrative Work-related Injury Insurance Cases (最高人民法院关于审理工伤保险行政案件若干问题的规定) (Provisions), which have a guiding significance for labour and judicial departments in their certification of work-related cases under special conditions.

Special circumstances

The Provisions elaborate on work-related injury identification in special circumstances. For instance, if a court, after accepting a work-related injury identification case, finds out that the plaintiff/third person has applied for labour arbitration or has lodged a civil action concerning the existence of a labour relationship before bringing the administrative suit, the court should suspend its trial of the case, mainly because the labour relationship certification will actually influence the case of work-related injury. Therefore, under such circumstances, the trial should be suspended and it can be resumed after completion of the labour relationship confirmation case.

Furthermore, the principal in charge of the work-related injury is determined in the case of several employing units. For example, if an employee maintains a labour relationship with two or more employers, the employer for which he/she is working should be the one in charge of his work-related injury insurance when the injury occurs. If an employee sent by a labour dispatch agency is injured or dies for work-related reasons during his/her work with the employing unit, the dispatch agency should be the one in charge of his/her work-related injury insurance. If an employee is injured or dies for work-related reasons when working with another unit to which he/she is assigned by the employer, the assigning employer should be the one in charge of the insurance.

Identification of work-related injury

Basic principle

To determine whether an injury is work-related, we have to judge whether the three basic conditions for work-related injury certification are satisfied, namely working hours, place of work and work reasons. Generally, work-related injury can only be certified when all of these three conditions are satisfied.

The Provisions provide an extensive interpretation for working hours and place of work, as “reasonability” is adopted as the basic principle for judgment. For instance, an employee is injured when taking part in an activity organised by the employer or by another unit as assigned by the employer, or he/she is injured during working hours when traveling in a reasonable area between several locations related to his/her job responsibilities.

The Provisions have made it clear that the always ambiguous expression “on the way to and from work” should be defined on a reasonable principle.

Burden of proof

The burden of proof for work-related injury certification is also clarified in the Provisions. If an employee is injured at the place of work during working hours and the employer or the administrative department in charge of social insurance has no evidence to prove the injury is not attributable to work, then work-related injury should be certified, unless the employer or social insurance department has evidence to prove that the injury is unrelated to work.

Non-identification of work-related injury

In the Provisions, a supplementary explanation is also made for the specific case of non-identification of work-related injury. Identification of drunkenness, self-mutilation and suicide should be based on legal instruments such as an accident liability confirmation letter and concluding observations issued by the relevant authority and effective judgment from the court, unless there is sufficient opposing evidence to reject them.

Procedure for identification

To safeguard the right for applying for work-related injury, it is stated in the Provisions that, if the time period specified for the work-related injury certification application is exceeded for reasons not attributable to the employee or his/her near relatives, the delay should not be included in the above-mentioned period. Some examples include force majeure, limit of personal freedom, reasons attributable to the employer, imperfect registration regulation of the social insurance department and an arbitration application or civil action being lodged by the party regarding the existence of a labour relationship.

With the implementation of the revised Provisions, the new challenges to the trials of these administrative cases and solving disputes are becoming increasingly difficult to overcome. The new rules clarify that the employer is in charge of the employee's work-related injury duty in special circumstances and identify the three ways to deal with the work-related injury caused by the third party. They also refine the problems in the identification process of work-related injury related to working hours, place of work and work reasons, the period out for business reasons and the way to and from work. And, lastly, the Provisions regulate the administrative trial procedures related to the confirmation of the labour relationship and streamline judicial standards for parts of circumstance in labour cases. This is of high significance for the labour administrative and judicial departments.


Jay Chen and Joe Zou, Baohua Law Firm, Shanghai


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