Compensation standard for lost time
"If the patient has a fixed income, it shall be calculated according to the fixed income reduced due to missed work, and if the income is more than 3 times the average wage of employees in the previous year when the medical accident occurred, it shall be calculated according to 3 times; If there is no fixed income, it shall be calculated according to the average annual salary of employees in the previous year where the medical accident occurred. " The calculation method of lost time fee is divided into two types according to whether the patient has a fixed income or not.
1, fixed income, refers to the legitimate income such as wages, bonuses, allowances, subsidies for special types of work, etc., which should be obtained on schedule by personnel in state organs, enterprises, institutions and social group work, but lost due to delayed work caused by medical accidents. Generally, the income certificate and payroll issued by the unit shall prevail, and the bonus shall be calculated based on the per capita bonus of the patient in the previous year, and the bonus tax threshold shall be limited. It should be noted that the income certificates issued by private enterprises such as sole proprietorship and partnership enterprises and limited companies with unsound finances, especially those that prove that the patient's "fixed income" is more than three times the average annual salary of employees in the previous year, cannot be used as the basis for identification alone, but must be combined with the personal income tax payment certificate of the tax authorities and other materials. If the victim can't provide evidence to prove his average income in the last three years, he can refer to the average salary of employees in the same or similar industries where the court of appeal is located in the previous year [1].
2, no fixed income includes two types of people, one is engaged in agriculture, forestry, animal husbandry and fishery production of rural villagers; Second, there are street offices, township people's governments or relevant certificates, who engaged in some kind of labor before the medical accident, and their income can maintain their normal life, including contracted business households, urban and rural individual industrial and commercial households, migrant workers (casual workers, temporary workers), family labor service personnel, etc. All are calculated according to the average annual salary of employees in the last year where the medical accident occurred.
3. Identification of the date of late work. According to Article 143 of the Supreme Court's opinion on the implementation of several issues, "The date of lost work should be determined according to the actual damage degree, recovery status and reference to the certificate issued by the treatment hospital or forensic identification", the date of lost work consists of two parts: the number of days of hospitalization of the patient and the number of days of rest issued by the treatment hospital after discharge, which is counted from the day when the medical accident occurs, and will not be deducted in case of national legal holidays. After the end of treatment, those who refuse to leave the hospital without justifiable reasons or rest without relevant certificates will not be calculated for lost time. If the medical accident causes the patient's disability, the lost time fee will no longer be calculated after the expert appraisal group issues the medical accident technical appraisal book, that is, the disabled person will no longer compensate for the lost time fee after the disability is determined.
4, patients engaged in a second occupation according to law, the actual reduction of income, should be reasonable compensation. If the patient is a minor and asks for compensation for lost time, it will not be supported.
5. Calculation of lost time for retirees. In this regard, the current national laws are not clearly defined, and some local courts have relevant contents in their "work guidance opinions". For example, the opinions of the Higher People's Court of Shandong Province on several issues concerning the trial of personal injury compensation cases stipulate that the victim is a retired person who is looking for another job, and the income reduced due to missing work shall be treated according to the following circumstances: if it is clearly recognized by laws and policies, it shall be compensated according to the actual reduced income; If the laws and policies are not explicitly recognized or explicitly prohibited, compensation shall be made with reference to the original on-the-job salary standard, but if the new income is lower than the on-the-job salary, compensation shall be made according to the new income; In violation of laws and policies, the income reduced shall not be compensated.
6. There are some differences between the regulations and some opinions of the Supreme Court. The calculation standard of the former has been mentioned above, while the latter stipulates that the compensation standard of the victim's lost time can be calculated according to the victim's salary standard or the actual income. If the victim is a contracted business household or individual industrial and commercial household, the calculation standard of the lost time fee may be discretionary with reference to the average income of the victim within a certain period of time. The compensation standard of some opinions of the Supreme People's Court is higher than the regulations. As the regulations are only administrative regulations promulgated by the State Council, it is possible for the people's court to hear the compensation in accordance with the general principles of the civil law and some opinions of the Supreme People's Court. At the same time, hospitals should also pay attention to the special provisions of some higher people's courts in provinces and cities on the calculation of this compensation amount.
7. Compensation amount for lost time = lost time × income standard (fixed income of patients reduced due to lost time)