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2020-03-20

464 Administrative Measures of the Shenzhen Municipality on the Appraisal of Work Capacity 深圳市劳动能力鉴定管理办法

来源: 日期:2020-03-02 字号:[]

(Adopted at the 112th Executive Meeting of the 6th Shenzhen Municipal People's Government on March 7, 2018)

  Chapter One General Provisions

  Article 1 In order to strengthen the administration of work capacity appraisal and standardize the work of work capacity appraisal, the Measures are hereby formulated in accordance with the Regulations on Work-Related Injury Insurance, the Regulations on Work-Related Injury Insurance of Guangdong Province and the Administrative Measures for Appraisal of the Work Capacity of Employees Sustaining Work-Related Injuries.

  Article 2 The Measures shall apply to the employers buying and maintaining work-related injury insurance in Shenzhen Municipality (hereinafter referred to as the employers), their employees and other subjects participating in the activities related to the appraisal of work capacity.

  Article 3 The municipal government shall establish the work capacity appraisal committee, which shall be composed of representatives of the municipal departments of human resources and social security, health, finance and other departments, work unions, social insurance agencies and representatives of employers. The representative of the employers shall be recommended by the work union.

  The office of the work capacity appraisal committee shall be set in the municipal department of human resources and social security and shall undertake relevant daily work.

  Article 4 The work capacity appraisal committee shall perform the following duties:

  (1) implementing the laws, regulations, rules and relevant standards of the state, the province and the municipality on the appraisal of work capacity;

  (2) formulating and implementing the municipal appraisal system of work capacity;

  (3) selecting and employing medical and health experts, establishing the database of experts for work capacity appraisal,, training and managing the experts in the database;

  (4) organizing the appraisal of work capacity;

  (5) drawing conclusions on the appraisal of work capacity in accordance with the appraisal opinions of the expert group;

  (6) establishing a complete appraisal database and keep the appraisal files for 50 years;

  (7) other duties prescribed by laws, regulations and rules.

  Article 5 The work capacity appraisal mentioned in the Measures includes the following matters:

  (1) the appraisal of the level of labor dysfunction and impairment in activities of daily living;

  (2) the verification of the medical treatment period and the end date of medical treatment period;

  (3) the verification of the period of employment suspension with pay;

  (4) the verification of work-related injury rehabilitation;

  (5) the verification of relapse of work-related injury;

  (6) the verification of the correlation between work-related injury and illness;

  (7) the verification of equipping assistive devices for the injured employee;

  (8) the appraisal of the work capacity of the dependent immediate relatives of the employee who died at work;

  (9) the appraisal of employee who becomes disabled or incapable to work for any non-work-related reason;

  (10) the appraisal of the work capacity of the dependent immediate relatives of the insured employee who died (became sick) for non-work-related reason;

  (11) other appraisal or verification related to work capacity as stipulated by laws, regulations and rules.

  The people's court and other units may, as necessary, entrust the municipal work capacity appraisal committee to carry out the appraisal of work capacity.

  Chapter Two appraisal Procedures

  Article 6 In the event of an employee sustains any work-related injury,  resulting in a disability or affecting his or her work capacity when his or her condition is relatively stable after necessary treatment, or the period of employment suspension with pay (including the period of extension as confirmed by the work capacity appraisal committee) concludes the employer and the injured employee shall submit an application for work capacity appraisal in a timely manner.

  The minimum period for the prescribed medical treatment shall be determined in accordance with the provisions of the final appraisal standards for medical treatment of injuries and occupational diseases of employees in Guangdong Province.

  Article 7 When the employer or the injured employee applies for the appraisal of work-related capacity, they shall submit the following materials to the work capacity appraisal committee or the entrusted social security agency:

  (1) the application form for the appraisal of the work capacity affected by the work-related injury;

  (2) ID card and other valid identity certificates of the injured employee;

  (3)complete medical record materials such as valid diagnosis certificates, examination and inspection reports copied or replicated in accordance with the relevant regulations on medical record management of medical institutions;

  (4) other materials prescribed by laws, regulations and rules.

  Article 8 The period of employment suspension with pay shall be determined by the work capacity appraisal committee in accordance with the medical treatment period specified in the final appraisal standards for medical treatment of injuries and occupational diseases of employees in Guangdong Province.

  Article 9 In general, the period of employment suspension with pay shall not exceed 12 months; in case of serious injury or special circumstances, such period may be extended appropriately after being confirmed by the work capacity appraisal committee, nevertheless, such extension period shall not exceed 12 months.

  If the injured employee needs to extend such period, he/she shall apply to the work capacity appraisal committee for verification. After accepting the application, the work capacity appraisal committee shall inform the employer within 5 working days. If the employer has any objection to the application, it shall put forward its opinions within 5 working days from the date of receiving the notification. If it fails to put forward its opinions within the time limit, it shall be deemed as acception the application without any opinion.

  Article 10 One year after the conclusion of the appraisal of the level of labor dysfunction and impairment in activities of daily living, if the person who has been appraised, the employer or the social insurance agency believes that the degree of disability has changed, they may apply to the work capacity appraisal committee for the reexamination appraisal.

  Article 11 After the conclusion of the work capacity appraisal is made, if the circumstances relating to the part of the original injury have changed or the treatment for occupational disease is still in need, the person who has been appraised may apply for verification of the relapse of the work-related injury.

  The following conditions shall be met for confirming relapse of work-related injury:

  (1) where the original injury or complications relapse;

  (2) where the injury relapsed is worth treatment;

  (3) where the injury relapsed shall be proven by specialist via diagnosis or treatment certificate.

  If the work-related injury is confirmed to be relapsed by the work capacity appraisal and has not cured by the treatment, the employee may apply to the work capacity appraisal committee for extending the medical treatment period.

  Article 12 If the injury is not seemed as being caused by work, the authority for determining work-related injury may apply to the work capacity appraisal committee for the verification, while its final decision shall become a reference for determination of the work injury.

  Article 13 If an employee's work capacity is affected by illness or non-work-related disability, he/she may apply to the work capacity appraisal committee for the appraisal.

  When an employee applies for the appraisal of the work capacity affected by illness or non-work-related disability, he/she shall submit the following materials to the work capacity appraisal committee or the entrusted social security agency:

  (1) the application form for appraisal of the work capacity affected by illness or non-work-related disability;

  (2) the employee's ID card and other valid identity certificates;

  (3)complete medical record materials such as valid diagnosis certificates, examination and inspection reports copied or replicated in accordance with the relevant regulations on medical record management of medical institutions;

  (4) other materials prescribed by laws, regulations and rules.

  Article 14 The employee or his/her immediate relatives may entrust an agent to apply for the appraisal of work capacity. Where the agent entrusted by the employee applies for the appraisal of work capacity, he/she shall submit a letter of authorization to the work capacity appraisal committee at the same time.

  Article 15 After receiving the application for work capacity appraisal, the work capacity appraisal committee shall examine and verify the materials submitted by the applicant in a timely manner. If the materials provided by the applicant are incomplete, the work capacity appraisal committee shall notify the applicant in writing of all materials to be supplemented and corrected at one time within five working days after it receives the application for work capacity appraisal. The applicant shall supplement and correct the materials within 15 days after receiving the written notice; in case of special circumstances, it may be extended for 15 days with the approval of the work capacity appraisal committee. If the materials are not supplemented within the prescribed time limit, the application shall not be accepted.

  If the materials provided by the applicant are complete, the work capacity appraisal committee shall accept the application on the spot and issue a notice of acceptance.

  After accepting the application, the work capacity appraisal committee shall organize the appraisal in a timely manner and make the conclusion within 60 days from the date of receiving the application;if the injury is complex or large amount of medical and health professions are involved, the time limit for making the conclusion may be extended for 30 days.

  Article 16 The work capacity appraisal committee members shall carry out on-site appraisal based on the system of integrating with expert appraisal, expert review, and guidance by chief appraisal expert.

  The expert group is composed of three experts randomly selected by the work capacity appraisal committee from the expert database of work capacity appraisal. Experts shall be familiar with the injuries of the appraised person.

  The experts for review and the chief appraisal experts shall be determined by the work capacity appraisal committee.

  Article 17 The work capacity appraisal committee shall, at least one day in advance, notify the appraised person in writing of the time, place and materials to be carried for on-site appraisal.

  If the appraised person is an injured employee with difficulty in moving, the work capacity appraisal committee may, upon confirmation, organize experts to visit him/her for appraisal of work capacity.

  Article 18 The appraised person shall participate in the on-site appraisal as the time and place notified. If the appraised person is unable to participate in the appraisal on time for some reason, the time for on-site appraisal may be adjusted with the approval of the work capacity appraisal committee, and the time limit for making the conclusion of work capacity appraisal shall be extended accordingly.

  Article 19 The work capacity appraisal committee shall, by means of purchasing services, determine the professional medical institutions (hereinafter referred to as the designated hospital) to carry out on-site appraisal of work capacity and provide on-site appraisal service assurance.

  The work capacity appraisal committee shall be responsible for organizing and implementing the on-site management of the work capacity appraisal, tracking and supervising the service quality of the designated hospital during the whole process, and training the relevant personnel of the designated hospital.

  The designated hospital shall be responsible for providing service places, service assurance and maintaining the on-site order. In addition, the designated hospital shall be responsible for establishing and improving the management system of on-site appraisal.

  Article 20 The employer and the appraised person shall truthfully provide the materials which needed for the appraisal, abide by the relevant provisions on the appraisal of work capacity, and cooperate with the appraisal of work capacity in accordance with the requirements.

  Article 21 If the work capacity appraisal committee considers that the appraised person needs further treatment, rehabilitation or medical examination, it may require the appraised person to go to the medical institution for relevant treatment, rehabilitation or medical examination, and the appraised person shall cooperate with it.

  Where the appraised person needs further treatment, rehabilitation or medical examination, the time required shall not be counted within the time limit for making the conclusion on the appraisal of work capacity.

  Article 22 The expert group shall, according to the injuries of the appraised person and the medical diagnosis, put forward the appraisal opinions according to the relevant national and provincial standards.

  The experts participating in the appraisal shall write down their opinions and sign their names on the appraisal;when the opinions from experts are inconsistent, the majority rules shall apply to determine the experts’ opinion.

  Article 23 The work capacity appraisal committee shall arrange three or more review experts to form a review group at the appraisal site, and review the appraisal materials and the appraisal opinions put forward by the expert group from the aspects as follows:

  (1) whether the appraisal materials are complete;

  (2) whether the injury type stated in the application accepted is consistent with that stated in the appraisal;

  (3) whether the appraisal is accurate with standardized terms and clear expression.

  In case of any error found by the review expert group, the appraisal materials and appraisal opinions shall be returned to the expert group on site, and the expert group shall immediately revise them.

  Article 24 The work capacity appraisal committee shall arrange chief appraisal experts at the appraisal site to perform the following duties:

  (1) to research, discuss and give guidance on the appraisal of complex injury or the appraisal of which the opinions of the expert group are quite different;

  (2) to provide medical and technical guidance on the regulations and standards for the implementation of on-site appraisal;

  (3) to examine and verify the changes of injury degree in the review and the correlation appraisal;

  (4) to make explainations to and consultatations with those who has raised objection to the appraisal conclusion.

  Article 25 The Work Capacity Appraisal Committee shall issued Work Appraisal Report based upon the panel’s opinion.

  The Report shall contain the following items:

  (1) the basic information of the appraised person and his/her employer;

  (2) the appraisal conclusion of the injured employees that shall include the discription and diagnosis of the injuries;

  (3) discription and diagnosis of the illness if the disabled is caused by illness or non-work-related reason according to the appraisal;

  (4) the basis for the appraisal;

  (5) appraisal conclusion

  Article 26 The work capacity appraisal committee shall, within 20 days from the date of making the appraisal conclusion, serve the conclusion on the employer, the appraised person and other applicants respectively.

  Article 27 If there are any written errors or omissions in the conclusion of the work capacity appraisal, the employer or the appraised person may apply to the work capacity appraisal committee for correction, and the work capacity appraisal committee may also take the initiative to make correction.

  Article 28 If the employer or the appraised person is not satisfied with the initial appraisal conclusion made by the work capacity appraisal committee, they may, within 15 days from the date of receiving the appraisal conclusion, apply to the work capacity appraisal committee for the appraisal review.

  If the work capacity appraisal committee accepts the application for review appraisal, it shall form an expert group to put forward review opinions according to the regulations, but the experts of the initial appraisal shall not participate in the review appraisal of the same appraised person.

  Article 29 If the employer or the appraised person is not satisfied with the appraisal conclusion made by the work capacity appraisal committee, they may, within 15 days from the date of receiving the appraisal conclusion, apply to the work capacity appraisal committee of Guangdong Province for reappraisal in accordance with the relevant provisions.

  Article 30 The procedures for the verification of the period of employment suspension with pay, the verification of rehabilitation, the reexamination appraisal, the verification of the relapse of work-related injuries, the verification of the extension of medical treatment period, the verification of assistive devices, the review appraisal, and the appraisal of the work capacity to provide for immediate relatives shall be carried out in accordance with the procedures for the initial appraisal.

  The identification procedure for confirmation of the correlation between work-related injury and illness shall refer to the procedure for initial identification.

  Article 31 After the appraisal of work capacity is completed, the work capacity appraisal committee shall keep the complete appraisal files and establish an appraisal database.

  Chapter Three Expert Management

  Article 32 The work capacity appraisal committee shall establish the work capacity appraisal expert database.

  The Work Capacity Appraisal Committee shall make adjustments and supplements to the Panel datebase every two years.The adjustments and supplements shall be reasonable with the consideration of social needs and variation in experts number as well as the performance assessment upon the experts.

  Article 33 The experts in the work capacity appraisal expert pool shall be appointed by the work capacity appraisal committee from the medical and health professionals who meet the following requirements:

  (1) possessing good professional ethics;

  (2) qualifying for professional title at or above the level of deputy chief physician in the medical and health specialty;

  (3) willing to participate in work capacity appraisal and mastering the relevant knowledge of work capacity appraisal.

  Article 34 For the medical and health professionals who meet the qualification of work capacity appraisal expert, they may apply to the work capacity appraisal committee and fill in the application form of work capacity appraisal expert of Shenzhen Municipality. If the work capacity appraisal committee decides to employ them, a letter of appointment shall be issued.

  Generally, the appointment of the work capacity appraisal for the experts shall be 3-year period. Continuing appointment may be granted.

  Only after the experts employed are qualified to the work capacity appraisal training can they participate in the work capacity appraisal.

  Article 35 The work capacity appraisal committee shall select and employ chief appraisal experts and review experts from the work capacity appraisal expert pool. Chief appraisal experts and review experts shall have good professional ethics, with rich clinical experience and master the relevant professional knowledge of work capacity appraisal.

  Article 36 The work capacity appraisal committee may select the authoritative medical experts of relevant specialty from the work capacity appraisal expert pool, establish the expert advisory committee, and perform the following duties:

  (1) to be responsible for handling difficult cases and technical problems in the appraisal of work capacity;

  (2) to provide consulting services for work capacity appraisal;

  (3) other matters assigned by the work capacity appraisal committee.

  Article 37 An expert for work capacity appraisal shall enjoy the following rights:

  (1) to independently put forward opinions on medical appraisal in accordance with the standards for appraisal of work capacity;

  (2) to consult the medical records of the appraised person, inquire with the appraised person about his/her physiology and condition in connection with the appraisal, and test the physical function of the appraised person;

  (3) to refuse to assess those who provide false medical information, conceal the injury (illness) history or refuse to cooperate;

  (4) to retain personal opinions in case of disagreement with the majority of experts;

  (5) to get paid for appraisal services.

  The Work Capacity Apprsail Committee shall protect the legal rights and interests of the experts while they are performing their duties. No organization or individual shall prevent or interfere with the work capacity appraisal, and shall not threaten, induce, abuse or beat the experts.

  Article 38 The experts of work capacity appraisal shall perform the following obligations:

  (1) to participate in the appraisal of work capacity on time and complete the appraisal of work capacity as required;

  (2) to objectively describe the degree of injury (illness) and disability strictly in accordance with the appraisal standards, comprehensively analyze the diagnostic data, fairly put forward the appraisal opinions and sign;

  (3) to protect the privacy of the appraised person, keep the appraisal materials properly, and those materials shall not be lost, damaged or used for other purposes;

  (4) not to disclose the appraisal conclusion to the appraised person, or to disclose the appraisal related information during the appraisal process;

  (5) to cooperate with the work capacity appraisal committee in the explanation of appraisal business;

  (6) to participate in the appraisal training, exchange and other activities organized by the work capacity appraisal committee.

  Article 39 The experts of work capacity appraisal shall strictly implement the relevant provisions and standards of work capacity appraisal, objectively and fairly put forward appraisal opinions, comprehensively understand the injuries and medical treatment process, physical examination, auxiliary examination, disability diagnosis related to appraisal and other conditions of the appraised person in the appraisal process, and make appraisal opinions through comprehensive analysis.

  Article 40 The work capacity appraisal committee shall annually assess the professional ethics, professional level, work attitude and work performance of the experts in the work capacity appraisal. Experts with outstanding performance shall be praised via announcement, while experts who fail to perform their duties shall be given criticism, admonition or dismissal according to the specific circumstances.

  Article 41 The organizations to which the work capacity appraisal experts belong to shall, in accordance with the arrangement of the work capacity appraisal committee and actual circumstances, actively cooperate in arranging experts of the work capacity appraisal to participate in the work of work capacity appraisal at the prescribed time.

  Chapter Four appraisal Expenses

  Article 42 The cost of work capacity appraisal shall be charged in accordance with the following provisions:

  (1) the expenses for the appraisal of the work capacity of the injured employees shall be paid by the work injury insurance fund;

  (2) for the employees who are not disabled due to work or illness, the work capacity, the expenses for the appraisal of work capacity shall be borne by the applicant;

  (3) If an applicant has any objection to the assements of his or her work capacity delivered by the panel, he or she can apply for review and the appraisal fee shall be paid in advance according to the given standards. If the conclusion will not overturned, the fee for review shall not refound. Only if the conclusion has been set aside or no consistent with the initial one, the fee for review shall be paid by the work injury insurance fund, and the prepaid fee shall be returned to the applicant.

  The work capacity appraisal fee shall be divided into two items, namely the revenue and expenditure, which shall be used for specific purpose.

  Article 43 The funds in the work capacity appraisal account specially appropriated from work-related injury insurance shall be used for:

  (1) the expenses for the appraisal of the level of labor dysfunction and impairment in activities of daily living, as well as expenses for the verification of the period of employment suspension with pay, the verification of the date of the end of medical treatment, the relapse, the rehabilitation and the configuration (replacement) of the auxiliary equipment and other expenses, the expert service fee required for   employing the work capacity appraisal expert to carry out the appraisal work, the purchase of the on-site appraisal guarantee service fee from the professional organization, the mailing and announcement service fee of the work capacity appraisal conclusion document and other projects;

  (2) the work service fee required for employing medical, legal and other experts to demonstrate and evaluate the difficult cases of work capacity appraisal or to discuss the standard and system of work capacity appraisal;

  (3) the cost of transportation and accomodations for organizing experts to carry out door-to-door identification of work-injured employees with difficulties in moving.

  The non-work-related appraisal fee charged by the work capacity appraisal committee shall be used for the work service fee of the work capacity appraisal expert to participate in the appraisal of the work capacity affected by illness or non-work-related disability.

  Article 44 The standard of the work service fee for work capacity appraisal experts and the purchase of the on-site appraisal guarantee service fee from designated hospitals shall be separately formulated by the municipal human resource security department together with the municipal finance department according to the actual work condition of work capacity appraisal in this municipal, and shall be implemented after being approved by the municipal government.

  Chapter Five Legal Liability

  Article 45 If the work capacity appraisal committee, the institution responsible for the daily work of the work capacity appraisal committee and their staff thereof committing any of the following behaviors when engaging in or organizing the work capacity appraisal, the administrative department of human resources or a relevant department shall order them to make corrections. The responsible person who is directly in charge and other directly responsible persons shall be given corresponding sanctions according to law; if they are suspected of committing a crime, they shall be transferred to the judicial organ for handling according to the law:

  (1) failing to examine in a timely manner and inform the applicant in writing of all materials that need to be supplemented or corrected;

  (2) failing to make a conclusion on the appraisal of work capacity within the prescribed time limit;

  (3) failing to deliver the conclusion on the appraisal of work capacity in a timely manner as required;

  (4) failing to select experts for appraisal in accordance with provisions;

  (5) tampering with the appraisal conclusion made by the work capacity appraisal committee without authorization;

  (6) accepting property from a party illegally by taking advantage of one’s position;

  (7) other acts in violation of laws, regulations and the Measures.

  Article 46 If an expert engaged in work capacity appraisal commits any of the following acts, the work capacity appraisal committee shall dismiss him/her; if the circumstances are serious, the administrative department of health and family planning shall handle the case according to law:

  (1) providing false appraisal opinions;

  (2) taking advantage of one’s position to illegally receive the property of the party;

  (3) failing to perform his duties without justifiable reasons;

  (4) other acts in violation of laws, regulations and these Measures.

  Article 47 In the course of work appraisal, if the work appraisal committee and appraisal experts find that the medical institutions and their medical personnel participating in the treatment, inspection, diagnosis and other activities are under any of the following circumstances, the work appraisal committee shall transfer them to the administrative department of health and family planning for handling in accordance with law:

  (1) providing false diagnosis certificates that are inconsistent with the condition of injury and illness;

  (2) modifying, forging, concealing or destroying medical record materials;

  (3) failing to perform his duties without justifiable reasons.

  Article 48 Where the appraisal conclusion is obtained by fraud, forgery of certification materials or by other means, the appraisal conclusion shall be revoked by the work capacity appraisal committee, and the illegal information shall be recorded into the public credit information system in accordance with the provisions; where the appraisal conclusion is obtained by fraud is used to receive social insurance or other social welfare benefits, the relevant departments shall order the party concerned to return such social insurance or other social walfare benefits according to law and subject to the relevant legal liabilities. Those who are suspected of committing a crime shall be transferred to the judicial organ for handling according to the law.

  Chapter Six Supplementary Provisions

  Article 49 appraisal of work capacity for disability caused by work (or official business) of the civil servants who have not participated in work-related injury insurance or the staff of the public institutions and social organizations who are under the administration of the Civil Servant Law shall be implemented with reference to the Measures.

  Article 50 The Measures shall come into effect as of May 1, 2018, and the Measures of the Shenzhen Municipality on the Appraisal of the Work capacity of Employees (No. 176 Decree of the Shenzhen Municipal People's Government) shall be repealed at the same time.


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