&Nbsp Of The Amendment To The Occupational Disease Prevention Act; Difficulties In Safeguarding Rights.
Occupational disease is the combination of "occupation" and "disease". "Occupation" represents the patient's position.
Pan Guihai's four degree against the wall is hard to diagnose occupational diseases. Yi Ye holds several dangerous notices and sends a written reply to the NPC to draft his draft amendments to the occupational disease prevention act. "Not easy" three words can not cover their occupational diseases.
From "thoracotomy lung examination" to "poison apple", from the Weichang nearly 200 occupational disease patients collective protection to 120 cases of pneumoconiosis patients without work permit claims difficult......
The painful occupational disease protection has never stopped, and every one touches the difficulties of occupational disease prevention and control in China.
In June 26th this year, the twenty-first session of the Standing Committee of the eleven National People's Congress first considered the draft amendment to the occupational disease prevention law. For this amendment, the Minister of Health gave a statement to the Standing Committee of the National People's Congress on legal amendments. The overall idea is to further strengthen the responsibility of employing units in the diagnosis of occupational diseases, and to tilt the system to protect workers' rights and interests.
Zhang Haichao's "chest lung examination" has just lasted for two years.
In June 22, 2009, he ran past Zhang Haichao, a hospital in the Chaoyang Hospital, the Third Affiliated Hospital and so on. He was hysterical. He ignored the doctor's dissuade and resolutely opened his chest. When the chest is opened, the doctor finds the eye in it.
That year, self harm physical rights pushed the dilemma of occupational disease protection to an extreme.
The revision of the occupational disease prevention law has excited Zhang Haichao's iconic figure in the history of occupational disease diagnosis in China. But the question is, how much progress can be made if the draft is implemented for occupational disease prevention? Looking at it, what is the current state of occupational disease in China? How deep and heavy is it?
How many kinds of diseases?
"Occupational disease" is divided into broad sense and narrow sense. Broadly speaking, occupational diseases are occupational diseases, such as laryngitis of teachers, stomach diseases of drivers, cervical spondylosis of office white-collar workers, etc.
The narrow sense of occupational disease refers to the provisions of the occupational disease prevention act: workers, institutions and individual economic organizations (i.e. employers) are exposed to dust, radioactive substances and other toxic and harmful substances.
This definition gives a statutory occupational disease in China.
According to the law on prevention and control of occupational diseases, the classification and catalogue of occupational diseases shall be stipulated, adjusted and promulgated by the health administrative department under the State Council in conjunction with the labor and social security administrative department of the State Council. Only diseases that are included in the catalogue can be diagnosed as occupational diseases.
In 2002, China updated the list of occupational diseases, and revised the 99 categories of the 9 categories of the occupational diseases list in the 80s of last century to 115 categories. The top 10 categories are pneumoconiosis, occupational radiation diseases, occupational poisoning, occupational diseases caused by physical factors, occupational diseases caused by biological factors, occupational skin diseases, occupational eye diseases, occupational ear, nose and throat oral diseases, occupational tumors and other occupational diseases.
The occupational disease prevention and control public welfare network, which specializes in prevention and control of occupational diseases, has made a report on the current situation of occupational disease prevention and control in October 22, 2010. By comparing the concepts of occupational health in Germany, Japan and the International Labour Organization in Japan, they found that occupational health concepts in some foreign countries are relatively extensive and pay attention to occupational relevance, that is, occupations may increase the probability of illness, so long as there is sufficient medical evidence, the disease can be considered as occupational disease. For example, the musculoskeletal injury (lumbar muscle strain, cervical spondylosis, etc.) caused by operation mode can be recognized as occupational disease in many countries.
Sun Shuhan, a professor at the Institute of labor and personnel affairs, said, "not all diseases due to work can be called occupational diseases, which is limited by various factors such as medical technology and economic development in China. We can not make this cake bigger and everyone will cut it."
When it comes to occupational diseases, many people will think of "pneumoconiosis". In fact, pneumoconiosis is only one of the 115 categories of occupational diseases.
In April 8, 2011, the Ministry of Health informed the occupational disease prevention and control work in 2010. According to the occupational disease report of 30 provinces, autonomous regions, municipalities directly under the central government (excluding) and production and Construction Corps, 749970 cases of occupational diseases have been reported in the whole country since 50s of last century. Among them, 676541 cases of pneumoconiosis were reported, 149110 cases died, and 527431 cases were reported. 47079 cases of occupational poisoning were reported, including 24011 cases of acute occupational poisoning and 23068 cases of chronic occupational poisoning.
Therefore, pneumoconiosis is the most serious occupational disease in China. According to the bulletin of the Ministry of health, in 2010, the number of pneumoconiosis cases accounted for 87.42% of the total number of new occupational disease reports. Of the 23812 new pneumoconiosis cases, 94.21% were coal worker pneumoconiosis and silicosis, 12564 cases and 9870 cases respectively, and 57.75% cases were distributed in the coal industry.
The numbers are heavy. And this is only the figures released by the Ministry of health.
Occupational disease is narrow, occupational patients are numerous, and pneumoconiosis patients are the majority. This is the current situation of occupational diseases in China. Deng Jianghu, director of the public welfare network for occupational disease prevention and control, who has been engaged in occupational disease prevention and treatment for many years, sighed with reporters at Fangyuan: "the current situation of occupational disease prevention and control in China is worrying."
How difficult is it to protect rights?
The occupational disease prevention and Control Act was promulgated in 2002. After nine years, the revision process was launched. The industry believes that this is largely due to the 2009 "chest lung testing" incident, which has made Zhang Haichao a "tragic hero" in the eyes of patients with occupational diseases.
For this draft, Zhang Haichao thought it was a leak stoppage. "Previous legal loopholes caused many occupational patients to have no hope of maintaining their rights. This draft amendment can also be called plugging, and I do not know how many occupational diseases patients have accidentally lost their lives." He wrote on his own legal blog.
What kind of loophole does it need to plug up with life? How difficult is it for occupational patients to safeguard their rights?
Vulnerability 1: almost no prevention
The "occupational disease prevention law" stipulates the second chapter "prophase prevention" and "third chapter" protection and management in the process of labor ", from the declaration of occupational hazards project, the occupational hazards assessment report of construction projects, the employer must adopt occupational disease protection facilities, provide occupational disease protection supplies, carry out routine monitoring of occupational hazards by special persons, conduct occupational health training before taking office, and regular occupational health training during the working period, and make detailed provisions.
However, the reality is far from the requirements prescribed by the law.
Deng Jianghu told the "Yuan Yuan" reporter, "when we investigate, some enterprises even have not heard of" occupational hygiene ". The workers themselves are very vague about the occupational disease. Most of the migrant workers do not know what occupational diseases are.
From December 2010 to February 2011, the joint labor law assistance and research center of the Yi Yi joint government carried out occupational disease research on the patients who had been recognized as occupational diseases by legal procedures throughout the country, and published research reports. Research also found that prevention is a major loophole in occupational disease prevention.
According to the survey data, "whether occupational disease" is known before occupational diseases, 89% of the respondents answered "do not know"; only 37 people knew about the occupational disease before they got sick, accounting for 22.7%. When the employer signed the labor contract, he told the workers the occupational hazards and their consequences, the occupational disease prevention measures and treatment, only 3, accounting for only 2.7%; 17.1% of the occupational health training provided; and some occupational disease protection facilities, such as dust prevention and sprinkling facilities in the dust working environment, accounted for only 23.3%.
Vulnerability two: entanglement of diagnostic agencies
He is suffering from leukemia, and he is still receiving chemotherapy at the hospital. "In my own and helping others safeguard their rights, a few doctors will take bribes from patients, ranging in price from 3000 yuan to 8000 yuan, which is worse for those who are already facing difficulties."
"Enterprises are the main body of occupational disease prevention and control, but at the same time, they are also sources of Finance and taxation of various local departments. Many times, enterprises are involved in the relationship between occupational disease diagnosis and work injury identification departments. These departments often protect the interests of enterprises and ignore the benefits of disadvantaged workers." The Research Report on the prevention and treatment of occupational diseases in December 2010 was made by the research team of occupational disease prevention and control network.
Yi Yi Ting also admitted that "some diagnostic institutions have established improper relations with enterprises and refuse to diagnose occupational diseases."
In addition, the report on the current situation of occupational disease prevention and treatment in China also mentioned that the general diagnosis institutions only agree with enterprises but do not identify with individuals, and the fairness of diagnosis is often questioned.
Pan Guihai, an occupational disease, encountered this kind of situation. In the process of diagnosis, a designated work-related injury hospital approved by the occupational disease authorization medical and health institution and the labor and Social Security Bureau explicitly told him that the hospital only received patients from the township government leaders to do occupational disease diagnosis, and the mine where the patient was located must be the 12 regular state mines designated by the government.
Bug three: diagnostic identification is not material.
According to the regulations on the diagnosis and appraisal of occupational diseases, when applying for occupational disease diagnosis, we should provide: (1) occupational history and past history; (two) photocopy of occupational health surveillance files; (three) occupational health examination results; (four) detection and evaluation data of occupational hazards in workplaces over the years; (five) other necessary materials required by the diagnosis agency. Most of these materials are in the hands of employers.
It is undoubtedly "self incrimination" to provide diagnostic and appraisal materials by employers. The problem is that even if the relevant information is collected and diagnosed by occupational disease, the situation of the patients with occupational diseases is still not optimistic.
Zhang Haichao said that many employers now have the phenomenon of malicious reconsideration. After the diagnosis of occupational disease has been made, the employer will reconsider it step by step, and then sue and appeal. First drag and solve. "The laborers are dragging their strength away from their hearts. The employers are giving away some money to them. Sometimes, the sick patients who are seriously ill do not get compensation until they have passed away."
According to the occupational disease investigation report of the aid and research center of the union of labor law, 48% of the patients who had submitted the diagnostic application were rejected by the occupational disease diagnosis agency because of incomplete materials. Among them, 83% were rejected because of lack of labor contracts and professional history certificates. There were also some workers who lacked the occupational hazards detection and evaluation data, occupational health surveillance files, occupational health examination results and so on. The main reason for these missing materials was that the units refused to give these archival materials (40%), the unit refused to recognize labor relations (34%), and the units themselves did not or had lost these files and materials (5.7%).
Vulnerability four: claim procedure is very long.
In addition, the occupational disease prevention law stipulates that social security for occupational disease patients, including diagnosis and treatment, rehabilitation costs, disability and disability, is in accordance with the state regulations on social insurance for industrial injury.
That is to say, compensation for occupational diseases must be included in the category of industrial injury insurance. From the procedural point of view, it is necessary to identify work-related injuries and identify labor capabilities after being identified as occupational diseases.
"According to the" industrial injury insurance Ordinance "and" industrial injury identification measures ", when the laborers identify occupational diseases, they will need three steps to get the compensation of employers. The first step is the identification of work-related injuries, the second step is the disability identification of labor disability, and the third step is labor arbitration. And the three steps are in turn, not parallel. " Sun Rong, Attorney General of migrant workers' rights protection work, said.
About the process of obtaining the certificate of work injury, the investigation report of the occupational disease research center of the labor union law and aid center showed that 57.8% of the patients had to wait for more than 30 days. The longest 1461 days in the survey, and 51.8% of the patients had to wait for more than 30 days before they could obtain the conclusion of the labor capacity appraisal.
The research report also mentioned that in connection with the industrial injury system, there may be cases of occupational disease that can not be identified as work-related injuries because of the limitation of time. Because occupational injury identification must be carried out within one year from the diagnosis of occupational disease, some patients may not apply for work injury identification because they are unaware or because of treatment reasons.
Vulnerability five: sick patients get paid low
Although it has taken a long road, the situation of compensation for patients with occupational diseases is not so optimistic.
According to the investigation report of the occupational disease research center of the aid and research center of the labor union law, 37.8% of the occupational patients did not receive any form of compensation. The average amount of compensation paid to patients who receive one-time compensation is only 90742 yuan. 78% of the patients who received one-time compensation said they could not guarantee their subsequent medical treatment and life. 47.5% indicated that the compensation could only be maintained for two years.
Due to the complexity of the compensation procedure for occupational injuries, many workers who have checked the symptoms of occupational diseases will temporarily abandon the way of compensation for industrial injury and choose tort compensation when they fail to diagnose occupational disease.
Jing Jianguo, a lawyer at the center for migrant workers' rights protection in the Three Gorges Reservoir area of the law society, told the "Yuan Yuan" reporter. "The choice of tort compensation is based on the theoretical basis of the tort liability. It is considered that the employer has failed to fulfill the obligation of security protection, resulting in the violation of laborers' personal rights." However, he immediately added, "since the fifty-second articles of the occupational disease prevention act and the forty-eighth article of the" safety production law "have a word" Shang ", it is generally believed that the workers must be compensated in accordance with the industrial injury procedure before the civil compensation procedure can be instituted. In accordance with this understanding and practice, it is obvious that laborers must first pass the diagnosis of occupational diseases and experience the procedure of identification of work-related injuries.
As a result, tort compensation can not go through.
Finding a balance between law and medicine
Whether it is "prevention" or "cure", the loopholes of occupational diseases are deep into the dark. It seems that there is no victory, only in vain.
How can we get to the light?
At the twenty-first session of the Standing Committee of the eleven National People's Congress in June 26th, the Minister of Health gave an analysis to the Standing Committee of the National People's Congress on the revision of the law. The problem of employers' failure to perform occupational disease prevention was mainly due to the lack of strict enforcement of laws and inadequate supervision system.
At the same time, in October 8, 2010, the Central Commission issued the notice on the division of responsibilities for occupational health supervision departments, clarified the occupational health supervision system at the national level, and gradually solved the problem of regulatory system. In respect of occupational disease treatment, in December 20, 2010, the State Council revised the regulations on work-related injury insurance, and the treatment of patients with occupational diseases could be further improved. In January 12, 2011, the Executive Council of the State Council specifically studied the problem of "old work-related injuries".
At this point, the occupational disease prevention and treatment problems have a relatively perfect institutional arrangement, while the diagnosis of occupational diseases is highlighted as a relatively weak link in occupational disease prevention and control.
Occupational disease is the combination of "occupation" and "disease". "Occupation" represents the labor legal relationship of the patient, while "disease" refers to 115 categories of statutory occupational diseases. Therefore, "the law of occupational disease prevention" is characterized by the combination of medicine and law. It is not a purely legal or medical issue. Li Jian, a professor at the law school, flew to the "Yuan Yuan" reporter to analyze the road.
As for the revision of the diagnosis system, Li Jianfei thought, "the laborers can not find a hospital to find out that they are pneumoconiosis. They are identified as occupational diseases, but employers should not refuse to provide materials for workers to" open chest and examine the lungs "and find the balance between them.
But finding this balance is not easy.
The main highlight of this amendment is nothing more than forty-eighth to fiftieth - information on occupational health and health surveillance needed for diagnosis and identification of occupational diseases.
The draft amendment stipulates that employers should faithfully provide information on the history of occupational disease and the history of occupational disease exposure, and the results of occupational hazard detection in workplaces.
In addition, the draft amendment stipulates that in the course of diagnosis and appraisal of occupational diseases, employers do not provide data on occupational hazard detection in workplaces. Occupational disease diagnosis institutions should make a conclusion of occupational disease diagnosis based on their clinical manifestations, auxiliary examination results, workers' occupational history and occupational disease exposure history, and refer to the workers' self-report.
For these changes, Huang Leping, director of the Yi Yi labor law assistance and Research Center, said, "it makes the diagnosis of occupational disease workers clear, and will facilitate the acquisition of a certificate of diagnosis."
However, in the eyes of doctors, such a regulation is forcing the accreditation body to give in.
Hao Fengtong, director of the occupational disease and poisoning Department of Chaoyang Hospital, and the occupational disease prevention committee member of the Chinese Preventive Medicine Society, interviewed by Fang Yuan reporter, said, "the occupational disease prevention act" clearly stipulates that employers should faithfully provide information on the history of workers' occupational diseases and the history of occupational disease exposure, and provide the diagnosis related materials. This is the responsibility of employers. Why should we force clinics to give in? Does it not interfere with the diagnosis of a doctor when there is no unit to provide material?
"We do not mean that patients do not provide occupational material, so they do not give diagnosis. If there are government departments to provide proof, even if the relevant evidence provided by the judicial department is substituted. Take the diagnosis of one of our patients as an example. His unit is a small coal mine and is closed now. But he got the court's judgment through a lawsuit and proved that he worked in that coal mine. These can also serve as a basis for reference. Hao Fengtong said.
For these three provisions, lawyer Sun Rong also has his own concerns. "Can employers independently present the history of occupational history of workers, the history of occupational hazards, and the results of occupational hazards detection in workplaces, which can reflect the real working conditions of workers, and whether they can be used as the basis for diagnosis and identification of occupational diseases? The workers and relevant institutions mentioned in the forty-eighth revised articles should also provide information on the diagnosis and appraisal of occupational diseases. When the relevant data submitted by employers and workers are different, how should they be measured? "
What about potential patients?
Of course, the diagnostic system is very important for occupational diseases, but for future patients?
Hao Fengtong said, "our medical institutions can make every incoming patient very well diagnosed, but it can not solve the endless stream of sick people. We should know that pneumoconiosis is not reversible in the three stage, and it is a radical cure. These patients should have been controlled at the early stage of the disease.
According to the bulletin of the Ministry of health's occupational disease and health work from 2005 to 2010, the "Fangyuan" reporter summed up the new occupational growth rate in recent years. It found that except for 2008, the number of new occupational diseases cases increased rapidly in China from 2005 to 2006, 25.57% in 2006 and 24.10% in 2007, and then dropped to 31.89% after the decline from 2006 to 3.86%, while the number of cases increased to 31.89%.
The speed of growth is unprepared. Therefore, Hao Fengtong believes that the "Occupational Disease Prevention Act" is to solve the high incidence of occupational diseases in China, rather than just standardize the field of diagnosis. The idea of prevention is very important. If we put our energy into diagnosis, we might as well move forward and control the source of illness. Hao Fengtong said.
Sun Shuhan also put forward the "prevention" of the "occupational disease prevention law". Employers need to strengthen the protection of workplaces, provide necessary protective tools and conditions for safety education, while workers should enhance their self-protection awareness, clarify employers' obligations for occupational disease protection, and also need to strengthen legal publicity. After all, many workers do not know the occupational disease prevention law, and they do not know what to do.
But, "like pneumoconiosis, obviously we have so many protective measures, and countries have safety standards. Why do they still happen?" Sun Shuhan also worked in factories and enterprises. After seeing these occupational diseases, she was very heartache.
The drawbacks of difficult supervision
As for the biggest problem of occupational disease prevention and cure, Hao Fengtong bluntly said, "the problem lies in the government's long supervision, and the main body of law enforcement is not clear. Occupational disease prevention involves health care institutions, safety supervision departments and people's protection departments. There are professional teams in the health sector, but there are no relevant functions, while the safety supervision departments are the opposite. All departments in the implementation of occupational disease prevention law can not be seamless, and lack of law enforcement platform. We do not even have a complete contact system for safety supervision departments throughout the country.
"Sometimes there is a psychology of exemptions between departments, and they think they are not going to be controlled by them, and they are pushed to other departments, causing some unsupervised grey areas." Hao Fengtong sighed. This is also the Sun Shuhan who has participated in the occupational disease related legislation for more than ten years.
In this draft, the occupational health supervision system is unified by the original health administration department under the State Council and is responsible for the supervision and management of occupational disease prevention and control throughout the country. The relevant departments under the State Council shall be responsible for the supervision and management of occupational disease prevention and control within their respective responsibilities. " "The State Council safety production supervision and management department, the health administrative department, and the human resources and social security department shall be responsible for the supervision and management of occupational disease prevention and control in the whole country in accordance with the responsibilities established by this Law and the State Council."
But Huang Leping believes that "the State Administration of work safety supervision has been included in the main body of supervision, but the division of labor between ministries and commissions has not been resolved at the legal level. Especially in the local occupational health supervision department, the draft is only defined as "the Department responsible for occupational health supervision and management in workplaces". But is this a local safety supervision department or a health supervision office?
- Related reading
Expert: To Cut Off The Chain Of "Identity Crime", We Need To Improve Criminal Legislation.
|- Man | 2008511179
- Man | Two Billion Eight Million Five Hundred And Eleven Thousand One Hundred And Seventy
- Man | 20085111653
- Man | 20085111641
- Man | 20085111633
- Man | Twenty Billion Eighty-Five Million One Hundred And Eleven Thousand Six Hundred And Twenty-Seven
- Man | Twenty Billion Eighty-Five Million One Hundred And Eleven Thousand Six Hundred And Twenty
- Man | 20085111613
- Man | 2008511166
- Man | Two Billion Eight Million Five Hundred And Eleven Thousand One Hundred And Sixty
- Chanel Guangzhou Tai Koo Hui Store Opens And Autumn Winter Clothing Releases
- 死刑復核最高檢應打破沉默
- The National Standard Will Not Be Able To Play "Bag Heart" From December.
- The Fourth Phase Of The Outstanding Women'S Wear Designer In Hangzhou
- Seven Wonders Of Overdue Beer
- Sweden Advocates The Ban On Imports Of Textiles And Clothing Containing NPE.
- Dolce&Gabbana&Nbsp; 2012 Spring And Summer Fashion
- 2012 Summer Ladies' New Products: New Brilliance Of Heart Management
- Spring Of Brand Electric Business -- Exclusive Interview With Women'S Wear B2C New AG Women'S Wear
- E-Commerce Will Evolve Into Four Camps.