(Chinhphu.vn) - Ms. Tran Tuyet (in Ho Chi Minh City) would like to request to have a guidance on the settlement of the benefits for workers in case they are suffers by accidents and long-term leave.

A worker had suffered a traffic accident on the way to work from August 10, 2017, had been taken to emergency and discharged from September 7, 2017.

After leaving the hospital, the workerstill performed inpatient and outpatient treatment until December 2017. The employer introduced the worker to the Medical Assessment Center to carry out procedures to assess the level of working capacity decline in January 2018.

However, the Medical Assessment Center responded that because the worker suffered an accident with a traumatic brain injury, the time to start the assessment procedure was 6 months from the hospital discharge date. Currently the worker has not returned to work.

So, the employer paid salaries to the worker during the accident to the time of discharge. The time after the workerr did not go to work and was waiting for medical assessment procedures, does the employer have to pay for the assessment? If yes, what documents are required?

During the time of waiting for the assessment procedure, the company where the worker works was dissolved. So, who will implement the procedures for settling social insurance due to labor accidents and occupational diseases?,  will the worker be entitled to social insurance benefits due to labor accidents and occupational diseases?

Regarding this issue, Lawyer Tran Van Toan, the Khanh Hung Lawyer’s Office –the Hanoi Bar Association responded as follows:

According to Clause 2, Article 12 of the Decree No. 45/2013 / ND-CP, detailing a number of articles of the Labor Code on working time, rest time and labor safety and labor hygiene, Accidents that are considered occupational accidents are accidents that occur at a reasonable time and place when workers go from their place of residence to their workplace, from their workplace to their place of residence.

Point c, Clause 1 and Clause 2, Article 45 of the Law on Occupational Safety and Health, stipulates,workers participating in occupational accident and disease insurance are entitled to compensation for occupational accidents when happening accidents on the way they are going to/coming back from the workplace within a reasonable time and routeandhaving their work ability decreased by at least 5% as a consequence of the accident.

Responsibilities of employers:

Article 38 of the Law on Occupational Safety and Health stipulates,Employers shall have the following responsibilities for victims of occupational accidents and diseases:

- Timely conduct first aid and emergency care for workers suffering from occupational accidents, advance the costs for first aid, emergency care and treatment for victims of occupational accidents and diseases.

- . Pay all medical expenses incurred, from first aid to completion of the medical treatment, for victims of occupational accidents and diseases as follows:

Accomplish co-payment responsibility and pay the full costs of services which are not covered by health insurance workers who participate in the health insurance scheme;

 Pay costs for medical assessment for determination of the degree of work ability decrease is decided be decreased by<5% and who are sent by the employer to a Medical Assessment Council for medical assessment to determine the degree of work ability decrease;

Where workers are not covered by the health insurance scheme, the employer shall pay all medical expenses incurred.

Pay full wage to the workers who suffer from occupational accidents and diseases during the leave for medical treatment and vocational rehabilitation period.

- Compensate for workers who suffer from occupational accidents which are not entirely caused by their faults and those who suffer from occupational diseases as follows:

At least 1.5 months’ wages in case the worker’s work ability is reduced by 5.0%-10%. For every additional 1.0%, the worker shall receive an additional of 0.4 months’ wages in accordance with the labour contract; this applies to cases where the worker’s work ability is reduced by 11%- 80%.

 At least 30 months' wages in case the worker’s work ability is reduced by at least 81% or for family members of the worker who dies of occupational accidents and diseases.

In case an occupational accident occurs due to the faults of the worker, s/he shall receive an allowance equal to at least 40% of the amount prescribed in Clause 4 of this Article corresponding to the decrease of his/her work ability

-Send workers who suffer from occupational accidents and diseases to medical assessment for determining the degree of work ability decrease so that they can benefit from medical treatment, health recuperation and vocational rehabilitation as stipulated by the law.

- Provide compensation and allowance for victims of occupational accidents and diseases within 05 days from the issuance of conclusions by the Medical Assessment Council on the degree of work ability decrease or from the announcement of the minutes of occupational accident investigation by the occupational accident investigation team in case of fatal occupational accidents;

- Assign appropriate work to workers who suffer from occupational accidents and diseases after they come back from medical treatment and vocational rehabilitation (in case they - Prepare dossiers for workers to receive compensation for occupational accidents and diseases from the Insurance Fund for Occupational Accidents and Diseases as prescribed in Section 3 of this Chapter.

- The wages which serve as a basis for payment of compensation, allowances, wages paid to workers retiring as a consequence of occupational accidents and diseases specified in Clauses 3, 4 and 5 of this Article include wage rate, allowances and other additional payment stipulated by the labour law.

In case of assessment of working capacity decline level

Clause 1, Clause 3, Article 47 of this Law provides, 1. Victims of occupational accidents and diseases shall be examined/re-examined to determine the degree of work ability decrease in the following cases:

- After completing treatment for injuries and diseases for the first time and still getting effect on their health; b) After completing treatment for relapsed injuries and diseases.

- In case of injuries or occupational diseases that cannot be fully recovered as prescribed by the Minister of Health, workers can go through medical assessment procedures prior to or during the treatment process.

Workers specified in Point Clause 1 of this Article are entitled to medical re-assessment for occupational accidents and disease after 24 months from the issuance of preceding conclusions of 34 the Medical Assessment Council on the degree of work ability decrease; in case workers get occupational diseases that reduce their health rapidly, the medical assessment shall be done earlier as prescribed by the Minister of Health.

On the issue that Ms. Tran Tuyet asked, according to the above provisions, after the injury has been stable treatment but also sequelae affecting health, workers suffering from occupational accidents are assessed the reduction of working ability. dynamic. Assessment conclusions of the Medical Evaluation Council on the rate of working capacity decline are used as a basis for:

- Employers compensate workers who suffer from labor accidents that are not entirely caused by their own cause or pay allowance for workers who suffer from labor accidents but caused by their own faults.

- Social insurance for a lump sum allowance is provided in Article 48 of the Law on Safety, Occupational Health or monthly allowance as stipulated in Article 49 of this Law.

Clause 3, Article 38 of the Law on Occupational Safety and Health stipulates: Employers have obligation to pay full wage to the workers who suffer from occupational accidents and diseases during the leave for medical treatment and vocational rehabilitation period.

Clause 1, Article 54 of this Law provides, after completing treatment for injuries caused by occupational accidents or illnesses caused by occupational diseases, within the first 30 days back to work, workers who are not fully recovered shall be entitled to a rest for 5-10 days for each time getting accident andoccupational disease.

There is no regulation that employers have the responsibility to pay workers' accident during the period of stable treatment, but the sequelaes still affect his//her health and she/he has to stop working until the Council Medical examinations conduct the initial assessment.

Ms. Tuyet put a question, while waiting for the procedure of injury assessment for the accident victims, the company where the worker worked to conduct dissolution procedures. So, who will do the procedure for settling the social insurance regime due to occupational accident and occupational disease?

Under the provisions of the Law on Occupational Safety and Health, enterprises are responsible for filing and submitting to the social insurance agency where they are paying social insurance to solve the labor accident regime for employees.

According to Clause 2, Article 201; Point a, Clause 5, Article 202 of the Enterprise Law, the enterprise can only be dissolved when it guarantees payment of all debts and other property obligations, including salary debts, severance allowances and social insurance according to provisions of law and other benefits of employees under the collective labor agreement and signed labor contracts.

        Lawyer Tran Van Toan,

The Khanh Hung Lawyer’s Office, the Hanoi Bar Association