Summary of This Article

Article 17 of the “Regulations on Work Injury Insurance” imposes an obligation on employers to submit an application for work injury identification within a statutory time limit after an employee suffers a work-related accident or is diagnosed/identified as having an occupational disease. It also sets forth the legal liability that employers bear for failing to diligently perform this statutory obligation.

In practice, many employers fail to submit the work injury identification application within the statutory period due to objective obstacles or reasons not attributable to themselves. However, at the legislative level, Article 17 of the Work Injury Insurance Regulations and related judicial interpretations are vague regarding the blocking conditions or exceptional circumstances for such liability.

The purpose of this article is to study relevant judgments, organize the application rules of Article 17 of the Work Injury Insurance Regulations in judicial practice, explore the proper boundaries of this legal liability for employers, and provide feasible improvement ideas for employers regarding the management and control of related legal risks based on the current state of judicial practice.

I. Origin of the Problem — Legislative Silence

Article 17(1) of the “Regulations on Work Injury Insurance” (hereinafter referred to as the “Regulations”) provides:

Where an employee suffers an accident injury or is diagnosed or identified as having an occupational disease in accordance with the Law on the Prevention and Control of Occupational Diseases, the employer shall, within 30 days from the date of the accident injury or the date of diagnosis or identification of the occupational disease, submit an application for work injury identification to the social insurance administrative department of the overall planning region. In case of special circumstances, the application period may be appropriately extended with the consent of the social insurance administrative department.

If the employer fails to complete the obligation of submitting an application for work injury identification within the time limit as provided above, the corresponding legal liability is stipulated in Article 17(4):

Where the employer fails to submit an application for work injury identification within the time limit specified in Article 17(1), the expenses related to work injury treatment that occur during such period and are符合 the provisions of these Regulations shall be borne by the employer.

The above provisions impose on employers a statutory obligation to timely report work injuries and明确 the legal liability for failure to do so. Regional legislation in Guangdong Province has followed the上述 provisions (see Article 12 of the “Guangdong Province Work Injury Insurance Regulations”) and has refined and clarified the scope of exemption of the work injury insurance fund where the employer fails to fulfill the obligation of timely applying for work injury identification, as seen in Article 7 of the “Provisions on Issues Related to the Review and Payment of Work Injury Insurance Treatment in Guangdong Province”:

Where the insured employer fails to submit an application for work injury identification within the time limit specified in Article 17(1) of the Work Injury Insurance Regulations, the social insurance agency shall, in accordance with law, pay the work injury insurance treatment to the injured employee for the period after the submission of the application for work injury identification. The work injury medical expenses, hospitalization meal subsidies, and transportation and accommodation expenses for medical treatment in other places that occur before the date of submission of the application (excluding the date of submission) and符合 the provisions of the Work Injury Insurance Regulations shall not be reviewed or paid.

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Regarding the legislative intent of this system, the Ministry of Human Resources and Social Security explained as follows:

The “30-day” provision is intended to urge employers to timely apply for work injury identification. To prevent employers from failing to apply in a timely manner, the Regulations provide a corresponding constraint mechanism, i.e., the work injury insurance benefits of the injured employee during the period when the employer fails to apply in accordance with the regulations shall be borne by the employer. This provision has, to a certain extent, played a role in urging employers to apply for work injury identification in a timely manner. [See the Reply of the Ministry of Human Resources and Social Security to Suggestion No. 1368 of the Fifth Session of the 12th National People’s Congress, Ren She Jian Zi (2017) No. 151]

Thus, the fundamental purpose of establishing this obligation of employers to apply for work injury identification within a time limit and the legal consequences for its improper performance is to force employers, through timely work injury applications, to ensure the realization of employees’ work injury benefits. However, in practice, we often see situations where employers fail to submit work injury applications within the statutory period due to objective reasons not attributable to themselves—such as the employee failing to timely notify the employer of the occurrence of the work injury, or the employee failing to cooperate with the employer in providing the materials required for the work injury identification application—while the employee submits the identification application independently and ultimately obtains work injury identification. In such situations, where the employer did not intentionally delay the performance of its obligation to apply for work injury identification, the legislation does not clearly respond to whether the employer still needs to bear the legal liability under Article 17(4) of the Regulations. This lack of comprehensive normative regulation directly results in模糊 liability boundaries, leaving unresolved whether the determination of such liability should adopt the principle of fault or the principle of no-fault.

II. Judicial Response — Divergent Views, with Literal Interpretation as the Mainstream

As discussed above, the legislation does not provide a clear response to the question of whether employers should still bear the legal liability明确 under Article 17(4) of the Regulations when they are not at fault for failing to fulfill the obligation of applying for work injury identification within the time limit. Therefore, when courts are confronted with this difficulty in practice, they often cannot provide a uniform response. After reviewing existing publicly available judicial precedents, the following three main approaches to adjudicating related issues emerge:

1. Literal Interpretation of Article 17 of the Regulations and Ruling that the Employer Bears Liability

Given that China’s civil litigation adopts the adjudication principle of “taking facts as the basis and law as the criterion,” in the现实 situation where the relevant law does not explicitly provide for liability exceptions, even if there are reasons not attributable to the employer that caused the employer to fail to apply for work injury identification within the time limit, the trial court, based on a literal interpretation of Article 17 of the Regulations, directly rules that the employer bears liability. This is the most direct and conservative adjudication method. This approach is also the absolute mainstream in current judicial practice for handling such issues. Judgments reflecting this approach are too numerous to list, and most回避 reasoning or merely mention it briefly, appearing somewhat mechanical, which the author finds difficult to fully accept. For example, the Beijing Third Intermediate People’s Court Civil Judgment (2021) Jing 03 Min Zhong No. 12406:

“Regarding the medical expenses, nursing fees, hospitalization meal subsidies, transportation expenses, and auxiliary appliance expenses claimed by Wu Yuanyuan… Article 17 of the Work Injury Insurance Regulations provides… Wu Yuanyuan was injured on March 8, 2019. Ankuo Company failed to apply for work injury identification for Wu Yuanyuan within the time limit prescribed by the above Work Injury Insurance Regulations. Therefore, for the medical expenses that Wu Yuanyuan could not enjoy from the work injury insurance fund, Ankuo Company shall pay them. Although Ankuo Company argued that it was unaware of Wu Yuanyuan’s injury and therefore was not at fault, considering that the parties have different accounts regarding the work injury identification application, and that as an employer, it should have better duty of care regarding employees’ work injury identification applications…”

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Another example is the Guangdong Foshan Intermediate People’s Court Civil Judgment (2020) Yue 06 Min Zhong No. 3631:

“Since Su Ming suffered a work-related accident on December 15, 2017, and on February 7, 2018, Su Ming himself applied for work injury identification to the Shunde District Human Resources and Social Security Bureau, this falls under the situation specified in Article 12(2) of the Guangdong Province Work Injury Insurance Regulations where the employer fails to submit an application for work injury identification within 30 days after the employee’s accident, and the employee submits an application within one year. According to Article 12(3), the expenses not reimbursed due to the overdue application for work injury identification shall be borne by Lecong Middle School. Lecong Middle School’s argument that Su Ming failed to timely inform the employer of the work injury situation, resulting in the overdue application, and that the medical expenses not reimbursed by the social insurance agency should be borne by Su Ming individually, lacks legal basis, and this court does not support it.”

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Another example is the Jiangsu Nanjing Intermediate People’s Court Civil Judgment (2019) Su 01 Min Zhong No. 10298:

“Regarding Jianyou Hotel’s appeal that it was because Li Ping failed to timely inform Jianyou Hotel of his injury, causing Jianyou Hotel to apply for work injury identification on March 9, 2017, and that Jianyou Hotel did not intentionally violate Article 17 of the Work Injury Insurance Regulations—this court finds that the work injury identification decision document states Li Ping fell while repairing air conditioning on January 22, 2017, and the discharge record shows he was admitted on the same day. Combined with the parties’ statements and submitted evidence, Jianyou Hotel failed to sufficiently prove that it was unaware of Li Ping’s work injury. Therefore, this appeal ground is not accepted.”

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(Author’s Comment: The description of the parties’ evidence in this judgment does not show that Li Ping ever notified Jianyou Hotel of his injury. Jianyou Hotel’s claim of “not knowing” is an assertion of a negative legal fact, which seemingly should not bear the burden of proof.)

Even as in the Jiangsu Xuzhou Intermediate People’s Court Civil Judgment (2018) Su 03 Min Zhong No. 56:

“As for the appellant Qiyanli Paint Company’s claim that the delay in reporting the work injury was caused by the appellee Ma Xinping… First, the appellant Qiyanli Paint Company, as the employer, should have timely knowledge of employees’ work-related injuries, and applying for work injury identification within the prescribed time is both a statutory obligation of the employer and a contractual obligation under the labor contract with the appellee Ma Xinping. Therefore, its argument that the delay in reporting the work injury was due to Ma Xinping’s failure to timely notify of the injury is not accepted.”

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2. Combining Relevant Facts and Applying the Principle of Fault to Apportion Losses Between the Employee and Employer Proportionally

This adjudication approach, to a certain extent,突破s the provisions of Article 17 of the Regulations. On the basis of literal interpretation, combined with the degree of fault of both the employer and the employee, the court apportions the losses not covered by the work injury insurance fund proportionally. The author believes that this approach adjusts the excessively heavy legal obligations that Article 17 of the Regulations may impose on employers, emphasizes the necessary cooperative obligations of employees under the premise that the employer is the primary obligor for work injury identification applications, balances the interests of both employees and employers, and reflects the principle of fairness. For example, the Guangdong Foshan Intermediate People’s Court Civil Judgment (2020) Yue 06 Min Zhong No. 2669:

“First, according to the above provisions, Tanghong Company, as the employer, should actively fulfill its obligation to apply for work injury identification for its employees. In this case, based on the facts found, it can be shown that Tanghong Company’s employee Ruan Dezhao communicated with Liang Jiayi regarding the injury, but there is no evidence showing that Tanghong Company submitted an application for work injury identification to the labor capability鉴定 authority. Tanghong Company argued that it had applied but was unsuccessful, mainly because Liang Jiayi refused to provide the original ID card and other important materials to Tanghong Company. Tanghong Company also failed to provide evidence that it had informed the labor capability鉴定 authority of the reasons for its inability to submit all application materials or special circumstances. Therefore, its argument is not accepted. Tanghong Company, as the employer, should bear primary liability for failing to apply for work injury identification in a timely manner. Second, based on the WeChat chat records between Tanghong Company’s employee Ruan Dezhao and Liang Jiayi, Ruan Dezhao informed Liang Jiayi that Tanghong Company’s work injury identification application needed to be completed within one month. Liang Jiayi promised Tanghong Company on September 29, 2018, that she would handle it herself and applied for work injury identification starting October 26, 2018. Liang Jiayi should also bear partial responsibility for the adverse consequences caused by the delay. The court of first instance, considering the specific circumstances of this case, determined that Tanghong Company should bear 70% of the work injury treatment expenses incurred before Liang Jiayi’s work injury identification that符合 the provisions of the Guangdong Province Work Injury Insurance Regulations, and Liang Jiayi should bear 30%. This disposition is appropriate.”

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3. Comprehensively Applying Legal Principles to Interpret Article 17 of the Regulations, and Combining Relevant Facts to Conclude that the Employer Should Not Bear Adverse Consequences for Failing to Apply for Work Injury Identification Based on Justifiable Reasons

This adjudication approach is undoubtedly refreshing. While conducting legal research on the命题 of this article, the author discovered a judgment from the Jiangsu Nantong Intermediate People’s Court that was precisely based on this adjudication approach. Moreover, this judgment provided well-reasoned, thorough analysis on this issue. The meticulous legal analysis and incisive value论述 in this judgment left the author in awe and greatly inspired! As a serious professional article, this should not be the place for excessive emotional expression, but the presiding judge in this case is truly a legal professional with both passion and courage, to whom the author pays tribute here!

Jiangsu Nantong Intermediate People’s Court Civil Judgment (2020) Su 06 Xing Zhong No. 246:

“This court finds that the parties do not dispute that Ni Weidong’s injury constitutes a work injury… The key dispute is whether Haimen Social Security Office’s application of Articles 17(1) and (4) of the Work Injury Insurance Regulations and its conclusion refusing payment correctly applies the law. Evaluating this issue involves understanding the function of the work injury insurance system and the legal nature of the employer’s obligation to apply for work injury identification, and further analyzing whether there are exceptions to the application of Article 17(4) of the Work Injury Insurance Regulations and how to define the establishment of such exceptions.

“The work injury insurance system is a social security system that, by mandating employers to pay work injury insurance premiums for employees, establishes a work injury insurance fund. When an employee suffers a work-related accident, the work injury insurance fund pays相应的 work injury benefits, thereby shifting the work injury liability that would otherwise be borne individually by the employer into a social insurance mechanism for分担. On one hand, this system helps injured employees receive timely compensation and effective medical treatment without being affected by the employer’s solvency. On the other hand, it also, through发挥 the social security function of work injury insurance, shares the work injury compensation liability for employers and reduces their economic burden.

“Article 17(4) of the Work Injury Insurance Regulations provides that if the employer fails to submit an application for work injury identification within the time limit specified in Article 17(1), the expenses related to work injury treatment that occur during such period and符合 the provisions of these Regulations shall be borne by the employer. The legislative purpose of this provision is to urge employers to apply promptly after a work-related accident occurs, preventing situations where employers conceal or delay reporting, thereby harming employees’ rights and interests. Since this provision changes the basic principle of work injury insurance payment by shifting the statutory obligation payable by the work injury fund to the employer, it not only increases the employer’s obligations but also objectively exposes the injured employee to the risk of the employer’s inability to pay. Therefore, the application of this provision should be strictly controlled. Specifically, the reasons for the employer’s failure to apply within the statutory period should be differentiated. Where the employer fails to submit an application for work injury identification based on justifiable reasons, it should not bear the obligations that should be borne by the work injury insurance fund. This understanding is based mainly on the following considerations:

“First, legal liability is a negative evaluation of the actor’s conduct. No one should bear additional legal liability for their lawful conduct, let alone bear the legal liability of others. For civil subjects, what is not prohibited by law is permitted. This means that in the absence of clear legal provisions, the actor has the right to act according to their own judgment. As long as the conduct does not violate legal prohibitions, the actor should not bear legal liability that does not match this conduct, and certainly should not bear liability that should be borne by others.

“Second, the employer has the right to choose whether to apply for work injury identification. Work injury identification itself is an administrative act made upon application. The application can be submitted by either the employer or the employee. Since whether an injury constitutes a work injury involves multiple factors such as labor relationship, work-related cause, working hours, workplace, and the nature of the accident, the law does not require, and cannot require, the employer to submit an application indiscriminately. For accidents that the employer considers not meeting the conditions for work injury identification, the employer has the right to decide whether to apply based on its own judgment. In fact, even if the employer does not submit an application, the employee can submit one independently. Therefore, when an employee suffers an accident injury, it cannot be concluded that the employer’s obligation to apply for work injury identification is unconditional and must be performed.

“Third, where the employer has justifiable reasons for not submitting an application for work injury identification, it should not bear adverse consequences. The 30-day period specified in Article 17(1) of the Work Injury Insurance Regulations is a general time limit for employers to submit applications. This paragraph also provides that the period may be appropriately extended under special circumstances, which means that exceptions are permitted. The 30-day period is not an absolute time limit. Of course, the employer’s delayed or non-application must be supported by justifiable reasons. The law should not impose impossible demands. Administrative authorities should respect the parties’善意 understanding of legal norms and should not force parties to act beyond their reasonable judgment. The understanding of ‘justifiable reasons’ should not be equated with being consistent with the final determination of the competent authorities. Rather, it should be understood as the employer’s judgment being in line with normal cognition and general logic. Nor should the subsequent final determination by the human resources and social security department or the court be used to retroactively presume that the employer’s failure to apply necessarily constitutes concealment or delay.

“For this case, based on the following analysis, it can be determined that Haotian Company had justifiable reasons for not applying. First, there was no labor relationship established between Haotian Company and Ni Weidong. Haotian Company is a construction enterprise. The injured employee Ni Weidong wasself-employed by the project contractor Lu Shaobin. The reason Haotian Company became the employer in the work injury identification legal relationship is due to illegal subcontracting or分包. In such circumstances, work injury identification does not emphasize the existence of a labor relationship. Second, Ni Weidong’s accident did not occur during work at the construction site but rather from a traffic accident on the way home after leaving work early. Ni Weidong also did not timely inform Haotian Company of the accident or the determination of responsibility. Haotian Company, based on this, concluded that Ni Weidong’s injury did not meet the conditions for work injury identification and decided not to apply. The reasons were justifiable and logical. Moreover, Haotian Company had paid work injury insurance for the entire construction project. Applying for work injury identification would not have caused adverse consequences for Haotian Company. Haotian Company’s concern that blindly applying could constitute fraud to obtain work injury insurance was also understandable.

“Therefore, when examining Ni Weidong’s payment application, Haimen Social Security Office failed to review whether Haotian Company had justifiable reasons for not applying within the statutory period, and whether Haotian Company had intentionally concealed or delayed reporting. Without differentiation, it applied Articles 17(1) and (4) of the Work Injury Insurance Regulations to determine that the work injury treatment expenses during this period were to be borne by Haotian Company. This constitutes an improper understanding of these provisions.”

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III. Review and Critique — The Boundary of Legal Liability for Employers’ Failure to Timely Apply for Work Injury Identification Needs to Be Clarified at the Legislative Level

This article基本上 agrees with the opinion of the Nantong Intermediate People’s Court: the law should not impose impossible demands on people. The provisions of Article 17(1) and (4) of the Regulations should be applied with differentiation based on whether the employer was at fault for failing to perform or timely perform the obligation to apply for work injury identification, taking into account the actual circumstances. The尺度 of justice is often limited by the尺度 of legislation. The existing norms do not provide for exceptions to the employer’s legal liability for failing to timely apply for work injury identification, directly leading to mechanical application of the provision to rule that employers bear liability as the mainstream approach in judicial practice. In reality, the completion of the employer’s work injury identification application often depends on the employee’s cooperation, and the law should not exclude the employer’s善意 understanding of legal norms and the善意 decisions made based on such understanding regarding whether an employee’s injury constitutes a work injury and whether an application should be filed. Otherwise, employers would bear disproportionately heavy legal burdens, resulting in an imbalance of rights between employees and employers.

This article argues that labor law is the branch of law most closely related to social and economic life. Therefore, its legislation is most frequently challenged and tested by social practice, and it is often through such challenges and tests that it is rapidly improved and optimized. The author expects that China’s labor law system will, in the near future, supplement or interpret Articles 17(1) and (4) of the Regulations, clarify the exceptions to the application of Article 17(4), and optimize the balance of rights between labor and capital at the legislative level.

IV. Insights and Countermeasures — Suggestions for Employers to Manage and Control Related Legal Risks

As mentioned above, the current mainstream approach in judicial practice for handling related issues is to apply a literal interpretation of Article 17 of the Regulations and rule that the employer bears liability. In this context, to manage related legal risks, employers can optimize their personnel management through the following measures, which are provided for reference only:

1. Actively Promote Work Injury Insurance Legal Knowledge Among Employees and Institutionalize the Employee Work Injury Reporting Mechanism

Based on existing cases, the majority of reasons for employers’ failure to timely apply for work injury identification is that employees fail to timely notify the employer of the occurrence of the work injury, leaving the employer unaware and unable to fulfill the relevant obligation. To address this矛盾, the author recommends that employers actively promote work injury insurance-related legal knowledge to employees, using training to make employees understand that when they不幸 suffer a work injury, they should immediately report to the company and submit relevant materials. Based on actual circumstances, the work injury reporting mechanism should be institutionalized through rules and regulations,明确 the obligation of the injured employee, their直接 supervisor, and other persons closely related to the injured employee to timely report the possible work injury to the employer.

2. Through Legally Established Rules and Regulations or Labor Contract Provisions, Clearly Define the Employee’s Obligation to Cooperate with the Employer in Applying for Work Injury Identification and Specify the Liability for Breach. Issue a Timely Reminder When the Employee Fails to Cooperate

To avoid situations where the employer cannot timely complete the work injury identification application due to the employee’s failure to cooperate with relevant procedures, it is recommended that employers, through legally established rules and regulations or labor contract provisions, clearly define the employee’s obligation to cooperate and the specific procedure for fulfilling this obligation. At the same time, make it clear that losses incurred by the employee personally and the employer due to the employee’s violation of such obligations shall be borne by the employee. When the employee fails to cooperate, the employer should promptly issue a reminder and ensure it preserves relevant evidence of having fulfilled the reminder obligation.

3. Even If the Employer Is Uncertain Whether the Injury Constitutes a Work Injury, Submit an Application Within the Statutory Period, but Fully State the Facts, Reasons, and Basis for Considering It Not a Work Injury in the Application Materials

Given that current judicial practice considers timely application for work injury identification as the employer’s obligation, while determining whether an injury constitutes a work injury is the function of the relevant authorities. Therefore, even if the employer has doubts or even negative opinions regarding the constitution of a work injury, the author recommends that the employer submit an application to the relevant authorities within the time limit, while fully explaining in the application materials the reasons why it considers the injury not to constitute a work injury, so that the relevant authorities can fully understand the relevant facts. If the employer disagrees with the work injury identification decision made by the relevant authorities, it can then seek relief through the corresponding legal channels.

Notes:

[1] Presiding Judge: Liu Haiyan, Judges: Liu Yumei, Yu Juan.

Lawyer Profile

Liu Yanfeng

Liu Yanfeng, graduated from Southwest University of Political Science and Law in 2011, partner of Beijing Longan (Guangzhou) Law Firm. He serves as Secretary-General of the Legal and Financial Special Committee of the Guangzhou Guangxi Chamber of Commerce, part-time arbitrator of the Nansha District Labor and Personnel Dispute Arbitration Commission in Guangzhou, member of the E-commerce and Logistics Business Committee of the Guangzhou Lawyers Association, member of the Labor and Social Security Law Committee of the Guangdong Lawyers Association, and理事 of the Guangdong Alumni Association of Southwest University of Political Science and Law.

With over ten years of experience in the legal profession, Liu Yanfeng has handled more than 800 cases and possesses extensive litigation and non-litigation experience. He focuses on the efficient resolution of重大 and difficult civil and commercial disputes, particularly in areas such as commercial and economic disputes, corporate legal affairs, intellectual property, and unfair competition. He serves as standing legal counsel for several large companies.

Liu Yanfeng has strong professional skills. Some of his successful cases have been selected for inclusion in court typical case databases. For instance, a case he handled for a New Third Board company suing an employee for infringement of trade secrets was评选 by the Guangzhou Intellectual Property Court as one of the “Top Ten Typical Cases of 2021.”

Zheng Zhongkang

LL.B. from South China University of Technology, LL.M. from the University of Warwick, UK. Working languages are Chinese and English.

Zheng Zhongkang is a复合 legal professional proficient in both theoretical research and legal practice. He has developed an efficient and scientific methodology for handling civil and commercial litigation and corporate governance-related legal matters. He possesses profound theoretical insights and extensive practical experience in legal issues concerning labor and personnel dispute resolution and corporate employment compliance management. Zheng Zhongkang focuses on providing legal services to startup companies and is committed to empowering entrepreneurs in the creation and expansion of their business ventures through solid legal knowledge.