Can I Get Occupational Injury After Leaving Job?

case

Liu has been a member of a state-owned engineering company since 2000 and left in December 2009.

In March 2010, Liu was identified by the occupational disease identification agency as the first phase of silicosis, that is, the identification of work-related injuries to the original employer.

Liu Mousui applied for the work injury identification to the county labor department. The county labor department had no objection after consulting the original employer. At the same time, it was found that there were several similar occupational diseases in the past, and the appraisal institution was also a qualified legal authentication institution. Therefore, there was no objection to the fact that the applicant was due to the dust exposure history and the objective fact of being diagnosed as occupational disease.

However, because the applicant Liu applied to the labor department, there was no labor relationship with the original unit, and the county labor department did not recognize the applicant on the grounds that he did not have the qualification to apply.

The municipal labor department did not make a reconsideration decision within the statutory deadline.

Liu then sued the county labor department to the people's court.

divergence

There are two opinions on how to deal with the case: the first opinion is that there is no labor relationship between Liu and the existing units.

analyse and comment on

The focus of the controversy is that

First, the formation of occupational disease has continuity and slowness. Its discovery and identification often lag behind, and can not be deprived of the legitimate work injury rights and interests of the occupational disease victims later.

China's occupational disease prevention and Control Act second:

Two, how to understand the eighteenth article of the industrial injury insurance Ordinance?

The eighteenth provision of the regulation stipulates that the application for industrial injury identification shall be submitted to prove the existence of labor relations (including fact labor relations) with the employer.

The first opinion has actually treated the labor relationship as an entity condition, and then judged whether Liu is in line with the so-called labor relationship condition that has identified occupational injuries on the basis of the occupational disease that has been identified.

But in fact, from the third chapter of the industrial injury insurance Ordinance, fourteenth to sixteen are the substantive conditions for the identification of work-related injuries. Seventeenth to twentieth are all procedural provisions for identifying industrial injuries, of which eighteenth are for the scope of application materials for the identification of work-related injuries.

Moreover, the stipulation is not limited to the proof of labor relations when applying for industrial injury identification.

In addition, according to the forty-second article of occupational disease prevention and control law, the appraisal conclusion of the occupational disease identification institution is based on the comprehensive analysis of the occupational hazards situation and the post situation of the workers. Since the labor department and the employing unit have not raised any objection to the objective facts such as the basis of the diagnosis, the expert conclusion should be respected and the identification conclusion should be respected.

The fourteenth regulation of the regulation also stipulates that industrial injury should be considered as long as it meets the situation of occupational disease.

This not only confirms the fact that the eighteenth provisions are not substantive conditions for the identification of industrial injury, but also reflects the full respect for the conclusion of the appraisal.

Three. Article seventeenth of the industrial injury insurance Ordinance clearly stipulates that workers are diagnosed and identified as occupational diseases in accordance with the provisions of the occupational disease prevention law. The unit shall, within 30 days from the date of being diagnosed and identified as occupational disease, submit an application for industrial injury identification to the labor department as a whole.

If an employer fails to apply for a work-related injury in accordance with the provisions of the preceding paragraph, the worker injured worker may, within 1 years from the date of being diagnosed or identified as an occupational disease, apply for an application for industrial injury directly to the labor department at the place where the employer is located.

If Liu meets the requirements of the seventeenth regulations, the labor department shall accept and examine the case.

The regulation eighteenth is a procedural provision for the type of material submitted. As long as Liu submitted the proof of labor relations during the formation of occupational disease, he should not be one-sided understanding, nor could he become an obstacle to the identification of Liu's industrial injury according to law.

In this case, after the judge communicated with the labor department, the Labor Department accepted the opinions of the court, revoked the original processing decision in accordance with the law, and identified Liu as a work-related injury, and Liu also withdrew the lawsuit according to law.