【Qingdao News Network Exclusive】
(Reporters Li Litao and Ning Guanyu)
A few days ago, the Qingdao group received a message for help, Qingdao's Aunt Ma retired into a property company, was assigned to a primary school to do cleaning work, but did not think, a warm help but let themselves encounter accidents, broke their legs, and so after the operation is not easy to stand on crutches, but found that their injuries seem to be unattended, medical expenses after medical insurance reimbursement is not responsible for anyone, what should be done in the end? In this regard, the reporter conducted an in-depth interview.
The 53-year-old cleaner was eager to help, but he broke his leg
Aunt Ma, 53 years old this year, has been retired for 3 years, and although she holds a monthly urban pension, she seems to be reluctant to idle in her later years after a busy life. In March 2020, under the introduction of a friend, Aunt Ma applied for a unit called "Hengfu Property Management Co., Ltd.", and after successfully taking up her post, she was assigned to Guangrao Road Primary School as a cleaner, responsible for the hygiene of public areas such as the corridors in the school.
Seven to five in the morning, I was still doing a good job, but I didn't expect that on September 15, 2021, an accident occurred. "Who would have thought of doing someone a favor and hurting themselves?" According to Aunt Ma's recollection, at 11:00 p.m. on the day of the incident, she was resting in the backyard after doing cleaning work, and accidentally saw a canteen staff pushing a dining car and preparing to go up the steps. "It was almost two or three steps up in that place, and a wooden plank was temporarily built to allow the car to be pushed up." It was a little difficult to watch the canteen staff push alone, although this was not their own job, but out of kindness, Aunt Ma still came forward to help.
"The man pulled in front, I pushed in the back, I don't know how, one didn't step on it, I fell to the ground, I can't get up again." According to Aunt Ma's description, the dining car contained about 60 children's meals, saying that the weight was not so heavy, but it was true that the push hurt. Immediately, someone at the scene dialed 120, and Aunt Ma was sent to the Qingdao branch of Qilu Hospital of Shandong University, where she was diagnosed with a "left femoral shaft fracture" and needed surgery. I didn't think about it, but a good heart was exchanged for an operation, and after the operation, I stayed in the hospital for 8 days, and Aunt Ma went home to recuperate.
19,000 yuan surgical fee is nowhere to be found The property company is willing to bear 3,000 yuan
After a few months of bed rest, Aunt Ma was slowly able to walk on the ground, but she could not get rid of the double crutches on her side, and it was difficult to even squat, and she was originally full of energy, and now she was a problem to travel, let alone continue to work. In addition to worrying about her physical condition, the saddest thing about Aunt Ma is that she was injured at work and no one seemed to care: "That is, during the hospitalization, the property company and the school authorities came to greet her, and since then there has been no movement, who should be responsible for this matter?" ”
Aunt Ma told reporters that she was hospitalized for 8 days and spent more than 19,000 yuan after medical reimbursement. After being discharged from the hospital, she has found a property company, in her opinion, she is an employee of the property, she was injured at the place of work, the company should bear certain responsibilities, but the manager surnamed Sang, who communicated with Aunt Ma, said that cleaning and canteen are not a company, Aunt Ma is not injured due to her own work, and the property company has no reason to take responsibility. After many communications, Manager Sang expressed his willingness to apply for a consolation payment from the company for Aunt Ma, and a few months passed, and things did not follow.
Because Aunt Ma has retired, labor arbitration cannot be accepted, and in January this year, she filed a lawsuit with the court, but has not yet received a reply. Out of helplessness, Aunt Ma asked for help from qingdao news network, and the reporter then contacted the manager Sang of Hengfu Property Management Co., Ltd. that Aunt Ma had previously contacted, and Manager Sang refused the reporter's interview and said that the relevant issues needed to be communicated with Aunt Ma herself.
When Aunt Ma allocated it to Manager Sang again, Manager Sang said that the company was willing to give her a 3,000 yuan consolation payment and further consulted Aunt Ma's opinion. At present, the two sides are still in further communication.
Lawyer: The injured person can make a claim from both the employer and the school
In response to the situation encountered by Aunt Ma, the reporter consulted lawyer Hu Mingjin of Shandong Bobin Law Firm, and Lawyer Hu believed that Aunt Ma's situation in this incident could not be recognized as a work injury, but she could claim infringement compensation from the property company or the school.
Lawyer Hu explained that since Aunt Ma had already enjoyed pension insurance benefits in accordance with the law and began to receive pensions, according to Article 32 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I), in this personal injury incident, the relationship between the injured person and the employer belonged to the labor service relationship, not the labor relationship, so it could not be recognized as a work injury.
In the event of personal injury based on a labor service relationship, the relevant provisions of the Civil Code of the People's Republic of China on tort liability shall apply. According to the provisions of the Civil Code, in this case, Aunt Ma can claim rights from the employer and claim infringement compensation from the school, because although Aunt Ma is not in a labor relationship with the school, if the business premises cause damage to personnel due to inadequate safety measures, they should also bear tort liability, and the specific amount of compensation needs to comprehensively consider the degree of injury and the degree of fault of the responsible subjects of each party.
In addition, for the injured person who has reached retirement age, but does not enjoy pension insurance treatment and receive pension, Lawyer Hu also explained that in the above situation, even if the injured person has not signed a written labor contract with the unit, he can also form an employment relationship with the unit. If an employee is injured in the workplace and during working hours due to work reasons, it shall be regarded as a work injury.