•  Implementation Procedures of Shanghai Municipality on Industrial Injury Insurance
• 
  Document Number：Decree of Shanghai Municipal People's Government No. 93
• Area of Law： Personnel Trade Unions
• Level of Authority： Local Government Rules
• Date issued：11-27-2012
• Status： Effective
• Issuing Authority： Shanghai Municipality

Decree of Shanghai Municipal People's Government
(No. 93)
The Implementation Procedures of Shanghai Municipality on Industrial Injury Insurance were adopted at the 156th Routine Meeting of the Municipal People's Government on November 21, 2012, and are hereby promulgated. They shall be effective as of January 1, 2013.
Mayor: Han Zheng
November 27, 2012
Implementation Procedures of Shanghai Municipality on Industrial Injury Insurance
(Promulgated by Decree No. 93 of Shanghai Municipal People's Government on November 27, 2012)
Chapter I General Provisions
Article 1 (Basis)
These Procedures are formulated in accordance with the Social Insurance Law of the People's Republic of China and the Regulations of Industrial Injury Insurance and in the light of the actual circumstances of this Municipality.
Article 2 (Application Scope)
These Procedures apply to the enterprises, institutions, state organs, mass organizations, non-governmental non-profit units, fund foundations, law offices, public accounting firms as well as individual businessmen (hereinafter jointly referred to as the employer) and employees thereof within the administrative area of this Municipality.
Article 3 (Administration of Payment)
The industrial injury insurance premiums shall be paid according to the relevant provisions of the Social Insurance Law of the People's Republic of China and the Interim Regulations on the Payment of Social Insurance Premium.
Article 4 (Publication and Treatment)
The employer shall post in premises the matters about the industrial injury insurance.
When an employee suffers an industrial injury, the employer shall take measures to ensure that the injured employee receives timely treatment.
Article 5 (Administrative Department）
The Municipal Human Resources and Social Security Bureau is the competent administrative department of industrial injury insurance in this Municipality, and shall be responsible for the administration of the industrial injury insurance in a unified manner in this Municipality.
The district/county human resources and social security bureau shall be responsible for the specific administration work of the industrial injury insurance in its administrative area.
The Municipal Social Security Fund Settlement Center (hereinafter referred to as the social security agency) shall be responsible for the specific affairs of industrial injury insurance. The Municipal Medical Insurance Center and the district/county medical insurance center (hereinafter the medical insurance agency) shall, within their duties, cooperate to do well in handling the affairs of industrial injury insurance.
Article 6 (Supervision)
When the Municipal Human Resources and Social Security Bureau and other departments establish policies and standards on industrial injury insurance, they shall solicit the opinions of representatives from the trade union and the employer.
The trade union shall safeguard the legitimate rights and interests of the injured employees according to law, and exercise supervision over the employer's work of industrial injury insurance.
Chapter II Fund of Industrial Injury Insurance
Article 7 (Fund Source and Reserve)
The fund of industrial injury insurance shall be made up of the injury insurance premiums paid by employers, the interest of the industrial injury insurance fund and other funding included therein according to law.
The fund of industrial injury insurance shall retain a certain proportion of reserves in accordance with relevant regulations of the State, to be used for injury insurance benefits of this Municipality's major accidents; in case of deficiency, the municipal finance shall make the payment in advance. The withdrawal ratio and use of the reserves shall follow the relevant regulations of this Municipality.
Article 8 (Principle of Payment)
The employer shall pay premiums of industrial injury insurance on time. The employee does not pay the premium of industrial injury insurance.
The rate of the injury insurance premium shall be determined according to the principle of "outlays determining charges, with income and outlay balanced".
Article 9 (Base of Payment)
The base for an employer to pay industrial injury insurance premiums shall be determined according to the base of premiums of basic endowment insurance for urban employees that the employer pays.
Article 10 (Rate)
The employer shall pay the basic rate of industrial injury insurance premiums, which is 0.5 % of the payment base in a unified manner.
As for an employer that has an industrial injury accident, a floating rate based on the basic rate shall be executed under regulations.
The floating rate shall be determined according to the employer's use of injury insurance premiums and the occurrence of injury accidents. The floating rate shall be classified under 5 grades, and the difference between each grade shall be 0.5% of the payment rate, with the highest up rate after floating (the basic rate plus floating rate) not exceeding 3% of the payment base, and with the lowest down rate after floating progressively being not less than the basic rate. The floating rate shall be checked and determined once a year.
The specific procedures of the rate floating of injury insurance premiums shall be prepared by the Municipal Human Resources and Social Security Bureau jointly with the municipal departments of finance, public health and production safety supervision and shall be implemented after approval by the Municipal People's Government.
Article 11 (Payment Scope)
The fund of industrial injury insurance shall be used for benefits of industrial injury insurance and as expenses of labor capacity appraisal, publicity and training on injury prevention as prescribed in these Procedures, and as other expenses for injury insurance as provided by laws and regulations.
The withdrawal ratio, use and control of expenses for injury prevention shall follow the relevant regulations of the State.
Article 12 (Management and Control of Funds)
The fund of industrial injury insurance shall be raised citywide in a unified manner, deposited in a special account of the municipal-level social security funds of this Municipality, for special use. No entity or person shall use the money without authorization.
The Municipal Human Resources and Social Security Bureau shall according to law exercise supervision and inspection over the payment of injury insurance premiums and the defrayal of industrial injury insurance funds.
The municipal finance and audit departments shall according to law exercise supervision over the collection, payment and management of industrial injury insurance funds.
Article 13 (Expenses of Agencies)
The expenses that the social security agency and the medical insurance agency need for carrying out industrial injury insurance shall be ratified by the finance department under regulations, and be brought into the budget management.
Chapter III Identification of Industrial Injury
Article 14 (Scope of Injury Identification)
An employee shall be identified as sustaining an industrial injury if he or she,
1. sustains a personal injury by accident arising out of and in the course of his or her employment at the workplace;
2. sustains a personal injury by accident arising in the course of the preparatory or tail-in work relating to his or her job before or after working hours at the workplace;
3. sustains a personal injury by accidental violence arising out of the performance of his or her duty within working hours and at the workplace;
4. suffers from an occupational disease;
5. sustains a personal injury arising out of his or her employment or becomes missing by accident during a business trip;
6. sustains a personal injury by a traffic accident for which he or she is held no principal liability or by an accident of urban rail transport, passenger ferry or train; or
7. sustains a personal injury that is to be deemed industrial injury by laws and administrative regulations.
Article 15 (Deemed Injury)
An employee shall be deemed to sustain a personal injury, if he or she,
1. dies suddenly of disease on the job post within working hours or dies within 48 hours of emergency rescue;
2. sustains a personal injury in activity of protecting national or public interests such as rescue and disaster relief; or
3. has, in a work unit, an attack of a recurrent impairment of a disability that arose from injury on duty or in battle when he or she was in the service for which he or she has obtained the Certificate of Revolutionary Disabled Army-man.
The employee in the situation set out in Items 1 and 2 of the preceding clause shall enjoy the injury insurance benefits according to relevant provisions of these Procedures; the employee in the situation set out in Item 3 of the preceding clause shall, according to the relevant provisions of these Procedures, enjoy the injury insurance benefits in addition to a lump-sum disability compensation.
Article 16 (Exclusion of Industrial Injury)
With any one of the following circumstances, the employee's injury shall not be identified or deemed as industrial injury even if in conformity with the provisions of Articles 14 and 15 of these Procedures:
1. to commit a crime intentionally;
2. to get drunk or take drugs; or
3. to injure oneself or commit suicide.
Article 17 (Application for Identification)
If an employee suffers from injury by accident or is diagnosed and identified as an occupational disease according to the provisions of the Law of Occupational Disease Prevention, the employer shall, within 30 days after the injury by accident or after the diagnosis or identification of an occupational disease, apply to the district/county human resources and social security bureau of its locality for the injury identification. In a special case and with the approval of the district/county human resources and social security bureau, the time limit of the application may be properly prolonged.
If the employer fails to make application for injury identification under the provisions of the preceding clause, the employee or his or her immediate relative or the trade union may, within one year after the day of injury by accident or the day of diagnosis or identification of an occupational disease, apply directly to the district/county human resources and social security bureau of its locality for the identification of industrial injury.
If the employer fails to apply for the identification of industrial injury within the time limit set out in Clause 1 of this Article, expenses relating to benefits of industrial injury in compliance with provisions of these Procedures incurred during the period shall be borne by the employer.
Article 18 (Application Materials for Injury Identification)
The following materials shall be submitted for the injury identification application:
1. an application form of injury identification;
2. documents that prove the existence of labor relation with the employer (including de facto labor relation); and
3. a certificate of medical diagnosis or of occupational disease diagnosis (or the identification of an occupational disease).
The application form shall include the basic information such as the time, place and cause of an accident, and degree of the employee's injury.
Where an applicant submits incomplete application materials for identification of industrial injury within the time as prescribed by these Procedures, the district/county human resources and social security bureau shall, within 10 workdays after the receipt of such application, notify in writing to the applicant for once of all materials required. The applicant therefor shall make up the materials within 30 days as required; in case of failure to make up the materials but within the prescribed application time, the reapplication for identification of industrial injury may be made.
Article 19 (Acceptance)
Where an applicant for the identification of industrial injury makes an application therefor according to law and with complete submissions, the district/county human resources and social security bureau shall give notice of acceptance within 10 workdays after the receipt of such application. In case of incompliance with the conditions of acceptance, the district/county human resources and social security bureau shall dismiss the application and inform such applicant in writing.
Article 20 (Check and Proof)
Upon the acceptance of an application for identification of industrial injury, the district/county human resources and social security bureau may investigate and check the injury by an accident according to the need of examination, and the employer, employee, trade union, medical institution and relevant departments shall cooperate. The occupational disease diagnosis and the identification of diagnostic disputes shall be handled according to the Law of Occupational Disease Prevention. Where the certificate or identification of occupational disease diagnosis is legally obtained, the district/county human resources and social security bureau may investigate and check no more.
The employer, the employee or his or her immediate relative may submit relevant certification materials or legal documents produced by the related administrative organ or judicial organ according to different circumstances of an industrial injury identified or deemed.
If the employee or his or her immediate relative considers an injury as an industrial one while the employer does not consider so, the latter shall bear the responsibility for providing proof.
Article 21 (Procedures of Identification)
The district/county human resources and social security bureau shall make a decision on the identification of industrial injury within 60 days after the receipt of the application for injury identification, and within 10 workdays after making the decision of the injury identification, send the decision thereon to the employee who applies therefor, or to his or her immediate relative, or his or her work unit.
Where the decision of injury identification is to be made on the basis of the conclusion of a judicial organ or relevant competent administrative department, during the time the conclusion has not yet been made, the limitation for the injury identification suspends; the limitation shall be resumed immediately after the removal of the suspension cause. The district/county human resources and social security bureau shall notify the party concerned of the suspension and resumption thereof.
The official of the district/county human resources and social security bureau who has interests with the applicant for injury identification shall withdraw.
Article 22 (Statements of Injury Identification Decision)
The following shall be stated in the decision of the injury identification:
1. the basic information of the employer and the injured employee;
2. the part of body injured, the time of the accident and the time of diagnosis and treatment, or the name of occupational disease, the course of being injured and the verification, and the basic situation of the medical treatment and diagnostic conclusion;
3. the basis of identifying or deeming an industrial injury or not;
4. the conclusion of the identification;
5. the limitation of applying for administrative reconsideration or lodging administrative lawsuit; and
6. the time of making the decision of identification.
The decision of the injury identification shall be stamped with the special seal therefor by the district/county human resources and social security bureau.
Article 23 (Duty to Inform)
The district/county and human resources and social security bureau shall, at the time of serving the decision of the injury identification to the employee who applies therefor, or his or her immediate relative and his or her work unit, inform them in writing of the application procedures for the appraisal of labor capacity.
Chapter IV Appraisal of Labor Capacity
Article 24 (Appraisal of Labor Capacity)
An injured employee, who is relatively stable after treatment but is disabled with labor capacity affected, shall undergo the appraisal of capacity for labor and daily life dysfunction.
The labor dysfunction is categorized into 10 disability grades and daily life dysfunction into 3 grades.
The standards for the appraisal of labor capacity shall follow relevant provisions of the State.
Article 25 (Appraisal Agency)
The municipal and district/county appraisal committees of labor capacity (hereinafter referred to as the appraisal committees) shall be formed by representatives of the departments of human resources and social security, and public health at the corresponding level, the trade union, as well as the social security agency and representatives from the employer. The offices of the municipal and district/county appraisal committees shall be located at the human resources and social security bureau at the corresponding level, responsible for the routine work of the appraisal committee.
The Municipal Appraisal Center of Labor Capacity shall, entrusted by the Municipal Appraisal Committee, be responsible for the specific work of the appraisal of labor capacity of occupational disease sufferers, and for the reappraisal of the injured employee.
The district/county appraisal committee shall be responsible for the appraisal of labor capacity of the injured employee in its own administrative area.
The appraisal committee shall establish a pool of medical health specialists according to law, and perform the appraisal of labor capacity.
Article 26 (Application Material for Appraisal of Labor Capacity)
The application for the labor capacity appraisal of an injured employee may be filed to the district/county appraisal committee by the employer, the injured employee or his or her immediate relative. The application for the labor capacity appraisal of an occupational disease sufferer shall be filed to the Municipal Appraisal Committee.
For application for the labor capacity appraisal, the following materials shall be submitted:
1. a filled-out application form of labor capacity appraisal;
2. a decision of injury identification; and
3. relevant materials about the diagnosis and treatment of industrial injury issued by the designated medical institution.
Article 27 (Procedures of Appraisal)
Upon the receipt of an application for labor capacity appraisal, the appraisal committee shall select at random three to five relevant experts from its established pool of medical health specialists to organize a group of specialists, which shall put forward the appraisal opinion; if necessary, a qualified medical institution may be entrusted to assist in the relevant diagnosis. The appraisal committee shall, according to the appraisal opinion of the group of specialists, make the conclusion of labor capacity appraisal of the injured employee within 60 days after the receipt of the application for labor capacity appraisal. If necessary, the time limit for the conclusion of labor capacity appraisal may be prolonged for 30 days. The appraisal committee shall, within 15 days after the conclusion of labor capacity appraisal, serve the conclusion to the employer, the injured employee or his or her immediate relative who has applied therefor, and inform them in writing of the formalities to go through formalities for injury insurance benefits and provide the application form therefor.
Any member of the appraisal committee or any specialist participating in the appraisal who has interests with the party concerned shall withdraw.
Article 28 (Reappraisal)
The employer, the injured employee or his or her immediate relative, who does not satisfy the conclusion of labor capacity appraisal he or she applied for, may apply to the Municipal Appraisal Committee for a reappraisal within 15 days after the receipt of the appraisal conclusion.
If an occupational disease sufferer applies for a reappraisal, the Municipal Appraisal Committee shall organize another group of specialists to do the reappraisal.
The conclusion of the reappraisal made by the Municipal Appraisal Committee shall be final.
Article 29 (Appraisal of Reexamination)
One year after the date of the conclusion of the labor capacity appraisal, the injured employee or his or her immediate relative, the employer or the social security agency believes that there is a change in the injury or handicap, an application for the appraisal of labor capacity reexamination may be filed.
Article 30 (Time-limit of Reappraisal and Reexamination Appraisal)
The time-limit for the appraisal committee doing reappraisal and reexamination appraisals shall be under the provisions of Article 27 of these Procedures.
Article 31 (Appraisal Costs)
The costs for the first labor capacity appraisal of an injured employee shall be paid by the injury insurance fund.
Upon the application filed by the employer, the injured employee or his or her immediate relative for reappraisal or reexamination appraisal, if the reappraisal maintains the original conclusion, or if the conclusion of the reexamination makes no change, the appraisal expenses shall be borne by the above-mentioned applicant. If the reappraisal or reexamination conclusion differs from the original, and if the reexamination appraisal is periodic as required by the State, the appraisal expenses shall be borne by the injury insurance fund.
Chapter V Benefits of Industrial Injury Insurance
Article 32 (Principle of Medical Treatment)
An employee who receives medical treatment because of an injury by accident or an occupational disease due to his or her employment enjoys the medical treatment benefits of industrial injury.
The injured employee shall go to the designated medical institution or occupational disease hospital in this Municipality for the treatment of industrial injury. In case of emergency, first aid may be received from the nearby medical institution, and when the state of injury becomes stable, the injured shall be promptly transferred to the designated medical institution for treatment. In dire need of transfer to another province or city, the designated medical institution of this Municipality shall issue a certificate and submit it to the social security agency for approval.
The injured employee in need of the rehabilitation of industrial injury shall select the rehabilitation facility of industrial injury that has signed a service agreement with the municipal medical security agency.
Article 33 (Payment for Medical Treatment and Rehabilitation of Industrial Injuries)
The medical expenses needed for the treatment of an industrial injury which comply with the State's and this Municipality's catalogues of medical treatment items and medicines and the hospitalization service standard under the industrial injury insurance shall be paid by the injury insurance fund.
This Municipality's catalogues of medical treatment items and medicines and the hospitalization service standard under the industrial injury insurance shall follow this Municipality's provisions relating to the scope of medical treatment items, the scope of medicine administration and medical service facilities under the basic medical insurance of this Municipality.
The rehabilitation expenses of the injured employee in the injury rehabilitation facility, if in conformity with the State's and this Municipality's injury rehabilitation service items and treatment norms, shall be paid by the injury insurance fund.
Where an administrative reconsideration or administrative lawsuit occurs after the district/county human resources and social security bureau has affirmed an industrial injury, the payment to the medical treatment of the injured employee shall not be stopped during the administrative reconsideration or administrative lawsuit.
The injured employee's medical expenses of his or her disease not caused by the work-related injury shall not be paid by the injury insurance fund.
Article 34 (Expense Settlement of Injury Treatment and Rehabilitation)
The expense of the industrial injury treatment and rehabilitation incurred by the injured employee shall be settled by the social security agency with the designated medical institution or the injury rehabilitation facility upon the verification of the municipal or district/county medical insurance agency.
The medical expense for an industrial injury of an injured employee receiving first-aid at the non-designated medical institution or receiving treatment in other province or city in accordance with the provisions of these Procedures shall be paid by him-or-herself in advance, and then he or she may file a claim for reimbursement as required to the social security agency. Upon the verification of the municipal or district/county medical insurance agency, such expense shall be paid by the injury insurance fund.
Article 35 (Allowance to In-hospital Fare, and Standard for Traveling Expenses)
An injured employee in hospital for treatment of industrial injury shall be given food allowance from the injury insurance fund in accordance with the prescribed standards; upon the approval of the social security agency with the certification issued by a designated medical institution of this Municipality, the injured employee receiving medical treatment in other province or city shall be paid board and lodging expenses from the injury insurance fund according to the prescribed standard; and fares for transportation may be reimbursed according to actual expenses checked by the social security agency.
The procedures for determination and timely rearrangement of food allowance in hospital and standards of board and lodging expenses shall be prepared by the Municipal Human Resources and Social Security Bureau, and be implemented after approval by the Municipal People's Government.
Article 36 (Assistive Device Provided)
An injured employee for daily life or employment, and with the affirmation of the appraisal committee, shall have assistive devices such as prosthesis, orthopedic instrument, ocular or dental prosthesis and wheelchairs fixed at an assistive device facility that has signed a service agreement with the social security agency; the expense needed, if in conformity with the item and standard of assistive device prescribed by the State and this Municipality, may be paid from the injury insurance fund, with settlement done by the social security agency and the assistive device facility.
Article 37 (Benefits in Paid Leave of Absence)
An employee who suffers an injury by accident or an occupational disease due to his or her employment and needs to be absent from work for medical treatment of industrial injury shall have his or her original wages and employment benefits unchanged and paid monthly by the employer during his or her leave of absence.
Generally, the paid leave of absence shall not exceed 12 months; the specified period shall be determined according to the diagnostic opinion of the state of injury issued by the designated medical institution. In case of a serious injury or special situation, the period may be duly prolonged with the affirmation of the appraisal committee; however, the prolongation shall not exceed 12 months. After the appraisal of the disability grade, the injured employee shall have his or her original benefits suspended and shall enjoy the disability benefits according to relevant provisions of these Procedures. If the injured employee needs further medical treatment after the termination of paid leave of absence, he or she may continue to enjoy the medical treatment benefits of industrial injury.
The injured employee unable to manage his or her daily life who needs personal care during the paid leave of absence shall be in the charge of the employer.
Article 38 (Personal Care Benefits)
The injured employee with an appraised disability grade who needs personal care and support upon confirmation of the appraisal committee may have a personal care allowance paid monthly from the injury insurance fund.
Personal care allowances shall be paid according to three different grades, i.e., total inability, most inability, and partial inability to care oneself. The standard of payment shall respectively be 50%, 40% and 30% of the average monthly wages of the employees citywide in the previous year.
Article 39 (Benefits for Disability Grades 1 to 4)
An injured employee with appraised as Disability Grade 1 to 4 due to an industrial injury shall quit the post with his or her labor relation retained and with entitlement to the following benefits:
1. Disability compensation in a lump sum paid from the injury insurance fund: a sum of 27 months' wages of the injured employee with Disability Grade 1, a sum of 25 months' wages of the one with Disability Grade 2, a sum of 23 months' wages of the one with Disability Grade 3, and a sum of 18 months' wages of the one with Disability Grade 4.
2. Disability allowances monthly paid from the injury insurance fund: a sum of 90% of wages of the injured employee with Disability Grade 1; a sum of 85% of the one with Disability Grade 2, a sum of 80% of the one with Disability Grade 3, and a sum of 75% of the one with Disability Grade 4.
3. The injured employee at the legal retirement age, after completing the formalities of drawing monthly old age pension, shall have his or her disability allowances stopped and shall enjoy the basic endowment insurance benefits instead. If the basic endowment insurance benefit is less than the disability allowances, the difference shall be paid by the injury insurance fund. If the injured employee at the legal retirement age does not meet the conditions of drawing monthly old age pension, the injury insurance fund shall continue the payment of disability allowances; and
4. The employer and the injured employee who join this Municipality's basic medical care insurance shall take disability allowances as a base to pay the basic medical insurance premium monthly and enjoy the basic medical insurance benefits. The injured employee may, after the legal retirement age, continue the entitlement to the basic medical insurance benefits. If the injured employee at the legal retirement age does not meet the conditions to continue the entitlement to the basic medical insurance benefits, the employer and the injured employee shall pay the medical insurance premium in a lump sum by taking disability allowances as a base as required by the basic medical insurance so as to meet the conditions before continuing the entitlement to the basic medical insurance benefits.
Article 40 (Benefits for Disability Grades 5 and 6)
An injured employee with appraised Disability Grade 5 or 6 due to an industrial injury may enjoy the following benefits:
1. Disability compensation in a lump sum paid from the injury insurance fund: a sum of 18 months' wages of the injured employee with Disability Grade 5, a sum of 16 months' wages of the one with Disability Grade 6.
2. The injured employee has his or her labor relation with the employer retained, and the employer shall assign him or her suitable employment. If difficult, the employer may pay monthly disability allowances. The disability allowances for Grade 5 shall be 70% of wages of the injured employee; and 60%, for Grade 6; and the employer and the injured employee shall continue the payment of every item of social insurance premiums as required. If the disability allowance is less than the standard of the minimum monthly wages of the employees citywide, the deficiency shall be made up by the employer.
Upon the proposal of the injured employee, he or she may dissolve or terminate the labor relation with the employer, and in this case, the injury insurance fund shall pay in a lump sum the medical treatment benefits for the industrial injury and the employer shall pay in a lump sum the disability re-employment benefits. Such benefits for Disability Grade 5 is respectively 18 months' average monthly wages of the employees citywide in the previous year; and 15 months' average monthly wages respectively for Disability Grade 6.
Upon the proposal of the injured employee to dissolve the labor relation with the employer, at the time of less than 5 years ahead of the legal retirement age, for one year less, the one-time medical treatment benefits for industrial injury and the disability re-employment benefits are reduced respectively 20 percent, except the circumstance as prescribed in Article 38 of the Labor Contract Law of the People's Republic of China.
If the labor relation is terminated due to the retirement or death of the injured employee, the benefits provided in Clause 2 of this Article may not be enjoyed.
Article 41 (Benefits for Disability Grades 7 to 10)
The injured employee with appraised Disability Grade 7 to 10 may enjoy the following benefits:
1. The fund of industrial injury insurance pays him or her disability compensation in a lump sum of 13 months' wages of the injured employee with Disability Grade 7; 11 months' wages of that with Disability Grade 8; nine months' wages for that with Disability Grade 9; and seven months' wages for that with Disability Grade 10; and
2. Upon termination of a contract at expiration, or upon proposal of the injured employee to dissolve the contract, the fund of industrial injury insurance shall pay in a lump sum the medical treatment benefits for the industrial injury and the employer shall pay in a lump sum the disability re-employment benefits. Such benefits for Disability Grade 7 is respectively 12 months' average monthly wages of the employees citywide in the previous year; nine months' average monthly wages respectively for Disability Grade 8; six months' average monthly wages respectively for Disability Grade 9; and three months' average monthly wages respectively for Disability Grade 10.
Upon proposal of the injured employee to dissolve the labor relation with the employer, at the time of less than 5 years ahead of the legal retirement age, for one year less, the one-time medical treatment benefits for an industrial injury and the disability re-employment benefits are reduced respectively 20 percent, except the circumstance as prescribed in Article 38 of the Labor Contract Law of the People's Republic of China.
If the labor relation is terminated due to the retirement or death of the injured employee, the benefits provided in Item 2, Clause 1 of this Article may not be enjoyed.
Article 42 (Relapse of Industrial Injury)
The injured employee who has a relapse that the appraisal committee affirms needs medical treatment may enjoy the injury insurance benefits provided in Articles 32, 33 and 35 to 38.
The injured employee who has dissolved or terminated labor relation with the employer and received in a lump sum the medical treatment benefits for industrial injury and the disability re-employment benefits shall no longer enjoy the benefits provided in Articles 32, 33 or 35 to 38.
Article 43 (Benefits for Work-related Death)
As a result of the work-related death, the deceased employee's immediate relative is entitled to funeral allowances, pensions for the dependent relatives of the decreased and lump-sum compensation from the injury insurance fund as prescribed in the following:
1. The funeral allowance is equal to six months' average monthly wages of the employees citywide in the previous year of the employee's work-related death;
2. The pension for the dependent relatives of the deceased shall, according to a certain proportion of wages of the employee before death, be paid to the survivors without labor ability and with dependence chiefly on the employee. Among them, the spouse receives 40% monthly and other relatives each 30% monthly, and for the aged widow or widower, or the orphan, a monthly 10% shall be added on the basis of the above standard. The verified total sum of pensions for all the dependant relatives shall not be more than the employee's wages prior to his or her work-related death ; and
3. The standard of the lump-sum compensation for the work-related death shall be 20 times the nationwide town residents' disposable income per capita in the previous year of the employee's work-related death.
The immediate relative of the injured employee who dies in the paid leave of absence may enjoy the benefits provided in Clause 1 of this Article.
The immediate relative of the injured employee with Disability Grade 1 to 4 who dies after the expiration of the paid leave of absence may enjoy the benefits provided in Item 1 and Item 2 of Clause 1 of this Article.
The scope of the dependent relatives shall follow the relevant provisions of the State.
Article 44 (Adjustment of Benefits)
The standard of disability allowances, pensions for dependent relatives of the deceased and personal care benefits shall be in a timely manner adjusted by the Municipal Human Resources and Social Security Bureau according to the situations like the variation of the average monthly wages of the employees citywide and living costs. The procedures of the adjustment shall be prepared by the Municipal Human Resources and Social Security Bureau and be implemented with the approval of the Municipal People's Government.
Article 45 (Relationship with Other Compensation)
In case of an industrial injury caused by a third party, the medical expenses of industrial injury shall be paid by the third party. If the third party fails to pay the medical expenses of industrial injury or the third party cannot be determined, the injury insurance fund shall pay the medical expenses in advance. After the payment made in advance by the industrial injury insurance fund, the social security agency has the right to make recovery from the third party as prescribed.
The injured employee or his or her immediate relative shall, after obtaining compensation from the third party, recoup correspondingly the wages and employment benefits in the leave of absence, lump-sum disability compensation, lump-sum compensation for work-related death and other injury insurance benefits paid in advance by the employer or the injury insurance fund.
Article 46 (Benefits to Person Missing in Accident on Business Trip or in Rescue and Disaster Relief)
If an employee is missing in an accident on a business trip or in rescue and disaster relief, his or her wages shall be paid for three months after the month of the accident; and from the fourth month, with his or her wages suspended, the injury insurance fund shall monthly pay the relatives supported by the employee pensions for dependent relatives according to the standards under Item 2, Clause 1 of Article 43 of these Procedures. In case of living difficulty, 50% of the lump-sum compensation for work-related death may be prepaid. If the employee is pronounced dead by the People's Court, the disposition is made according to the provisions in Article 43 of these Procedures.
Article 47 (Benefits stopped)
An injured employee with one of the following situations shall have the injury insurance benefits stopped:
1. lose the conditions of enjoying the benefits;
2. refuse to accept the appraisal of labor capacity; or
3. refuse medical treatment.
Article 48 (Determination of Insurance Duty)
In case of the split-off, merger or transfer of an employer, the successor shall bear the original employer's duty of industrial injury insurance.
In case of contracting business, the duty of industrial injury insurance shall be borne by the work unit with which the employee has the labor relation.
If an employee is injured by an accident during the temporary transfer, the original employer shall bear the duty of industrial injury insurance, but the original employer may reach a compensation agreement with the borrower.
Where an employee of a detached unit of labor service is injured by accident during the period of labor service dispatch, the injury insurance responsibility shall be taken by the detached unit of labor service or the employer, the specific affirmation procedures shall be formulated by the Municipal Human Resources and Social Security Bureau. The employer shall take the responsibility for the floating rate of injury insurance premiums.
A bankrupt enterprise going into liquidation shall allocate according to law the expense for injury insurance benefits payable by the enterprise.
Article 49 (Compensation Abroad)
The employees sent to work abroad, if required to have local injury insurance in accordance with the law at the destination country or region, take out the local injury insurance and have the industrial injury insurance at home suspended; if they cannot take out the local injury insurance, their injury insurance at home shall not be suspended, and they may enjoy the injury insurance benefits under the provisions of these Procedures.
Article 50 (Procedures for Enjoying Benefits)
For an employee injured or dead due to work, the employer or the injured employee or his or her immediate relative shall go through the formalities for injury insurance benefits with the social security agency, providing the following corresponding materials:
1. a complete application form for injury insurance benefits;
2. bills of medical expenses of industrial injury;
3. materials to prove relationship between the injured employee and the employer assuming liability of industrial injury insurance;
4. the ID certificate of the beneficiary and the certificate to prove the dependent relationship with the deceased;
5. documents to pronoun the employee missing or dead; and
6. other relevant materials.
The social security agency shall, within 30 days upon the receipt of the application for injury insurance benefit, examine and verify the entitlement to the benefits of the injured employee or his or her immediate relative. In case of compliance, the agency shall determine the standard of the benefit and make full payment in time; in case of non-compliance, the agency shall inform the applicant in writing.
Chapter VI Special Provisions
Article 51 (Provisions for Part-time Employees)
An employer that employs part-time employees shall pay injury insurance premiums for them according to the payment base and rate provided in these Provisions.
A part-time employee who suffers an injury by accident or an occupational disease shall have the labor relation with the employer follow the provisions in the Labor Contract Law of the Peoples Republic of China and the Regulations of Shanghai Municipality on the Labor Contract, and may enjoy the following injury insurance benefits:
1. The injury insurance benefits paid from the injury insurance fund as provided in these Procedures;
2. An employer that bears the liability of industrial injury insurance shall, with reference to the provisions in these Procedures, pay benefits in the paid leave of absence, which shall not be lower than the standard of the minimum monthly wages of the employees citywide;
3. An injured employee with Disability Grade 1 to 4 may enjoy the basic medical insurance benefits after the employer that bears the liability of industrial injury insurance and the injured employee, with the disability allowance enjoyed as a base, pay in a lump sum the basic medical insurance premiums up to the injured employee's legal retirement age; and
4. An injured employee with Disability Grade 5 to 10, shall be paid a lump-sum disability re-employment benefits by the employer that bears the liability of industrial injury insurance as provided in these Procedures.
Article 52 (Injury Benefits for Persons Under Agreement Insurance)
An employer that employs persons under agreement insurance with re-employment registration may not have such persons' wages income calculated in the employer's payment base of injury insurance premiums.
The person under agreement insurance, who sustains an injury by an accident, may enjoy injury insurance benefits as provided in these Procedures, and the social security agency shall check and determine the employer's floating rate of the next year according to the provision.
Article 53 (Provisions for Employees of Non-regular Employment Agency)
After the non-regular employment agency pays injury insurance premiums with reference to the payment base and rate provided in these Procedures, its employee registered with the municipal or district/county human resources and social security bureau as required, who suffers an injury by an accident, may enjoy injury insurance benefits paid from the injury insurance fund as provided in these Procedures.
Article 54 (Special Provisions for Non-local Employees with Rural Household Registration)
A non-local employee with rural household registration suffering from Disability Grade 1 to 4 may enjoy injury insurance benefits according to the standards of benefit items and the payment mode as provided in these Procedures, and may also choose a lump sum payment mode. For such mode, the injured employee shall propose to the social security agency at the initial application for the benefits, and shall make confirmation by agreement. Once confirmed, it shall not be changed, and his or her relation of industrial injury insurance shall be terminated and his or her labor relation with the employer dissolved or terminated.
Where a non-local employee with rural household registration suffering from Disability Grade 1 to 4 caused by an industrial injury chooses injury insurance benefits in a lump sum, his or her medical expenses for injury relapse, and the lump-sum disability compensation and allowances, personal care benefits, and expenses for assistive devices fixed upon confirmation, to which he or she is entitled upon the accreditation of the appraisal committee, shall be paid in a lump sum by the injury insurance fund; the payment standards shall be formulated separately by the Municipal Human Resources and Social Security Bureau, and be implemented after approval by the Municipal People's Government.
Article 55 (Special Provisions for Benefits Calculation)
If the lump sum disability compensation for an injured employee with Disability Grade 1 to 10 calculated as provided in these Procedures is less than 3,896 yuan multiplied by the product of the following month number corresponding to the disability grade, the deficiency shall be made up by the injury insurance fund: 24 months for Disability Grade 1; 22 months for Disability Grade 2; 20 months for Disability Grade 3; 18 months for Disability Grade 4; 16 months for Disability Grade 5; 14 months for Disability Grade 6; 12 months for Disability Grade 7; 10 months for Disability Grade 8; 8 months for Disability Grade 9; and 6 months for Disability Grade 10.
If the current year disability allowances for an injured employee with Disability Grade 1 to 4 and the pension for the dependent relatives of the deceased calculated as provided in these Procedures are less than the minimum standard of the two above-mentioned injury insurance benefits published by the Municipal Human Resources and Social Security Bureau, the calculation thereof shall follow the minimum standard.
Chapter VII Legal Liability
Article 56 (Legal Liability)
Where the Social Security Law of the People's Republic of China or the Regulations of Industrial Injury Insurance has provided for punishment for violation of the provision of these Procedures, such provisions shall apply.
Article 57 (Legal Liability of Relevant Agencies)
Where the rehabilitation institution of industrial injury and the assistive device facility fail to provide services according to the service agreement, the municipal medical security agency and social security agency may cancel the service agreement.
Where the municipal medical security agency and social security agency fail to make a clean settlement in time, the Municipal Human Resources and Social Security Bureau shall order them to make corrections, and the rehabilitation institution of industrial injury and the assistive device facility may cancel the service agreement.
Article 58 (Provisions on Failure to Have Insurance or Pay Premiums as Required)
An employer that fails to pay injury insurance premiums according to law shall be handled according to the relevant provisions in the Social Security Law of the People's Republic of China and the Interim Regulations on Payment of Social Insurance Premiums.
Where an employer that fails to have the industrial injury insurance it should have had, or that has not paid injury insurance premiums as required, has an employee sustain an injury by accident during the time the employer has not joined the injury insurance or has not paid the premiums as required, the employer shall make payments according to the items and standard of injury insurance benefits as provided in these Procedures. If the employer fails to pay, the payment shall be made in advance from the injury insurance fund. Such payment in advance shall be reimbursed by the employer; if not, the social security agency shall recover it according to law.
After the employer has joined the industrial injury insurance and made up the premiums payable as well as the overdue fine, the injury insurance fund and the employer shall make the payment newly incurred, if any, according to the provisions of these Procedures.
Article 59 (Treatment of Disputes)
In respect of a dispute between the injured employee and the employer over injury insurance benefits, relevant provisions on labor disputes shall apply.
Article 60 (Administrative Reconsideration and Litigation)
An employer or an employee, who does not accept the specific administrative act made by the municipal or district/county human resources and social security bureau, the social security agency or the medical security agency according to the provisions of these Procedures, may apply for administrative reconsideration or institute an administrative litigation according to law.
Chapter VIII Supplementary Provisions
Article 61 (Definition of Employee's Wages）
The "wages" mentioned in these Procedures means the average monthly wages that the injured employee received in the 12 months prior to the day of the injury or occupational disease caused by his or her employment. If the injured employee's wages is 300% higher than the average wages of the employees citywide, the calculation shall be made on the basis of 300% of the average wages of the employees citywide; if the injured employee's wages is 60% lower than the average wages of the employees citywide, the calculation shall be made on the basis of 60% of the average wages of the employees citywide.
Article 62 (Special Provisions on Application Scope)
Where the State has otherwise provided on the industrial injury insurance for state organs, the institutions subject to administration in reference to the public servants law and mass organizations, adjustments shall be made according to such state provisions.
Article 63 (Effective Date and Repeal)
These Procedures shall be effective as of January 1, 2013. The Implementation Procedures of Shanghai Municipality on Industrial Injury Insurance promulgated by Decree No. 29 of Shanghai Municipal People's Government on June 27, 2004 and revised according to the Decision of Shanghai People's Government on Revising the 148 Regulations of This Municipality Including the Interim Regulations of Shanghai Municipality on Farm Machinery Accidents by Decree No. 52 of Shanghai Municipal People's Government on December 20, 2010 shall be repealed at the same time.