administrative judgment by Haikou Intermediate People's Court of Hainan Province
(216) No.376, Qiong1 Line Chu
Plaintiff Zhang.
Defendant: Hainan Provincial Department of Human Resources and Social Security.
legal representative he mou, director.
Authorized Agent: Yan, lawyer of Hainan Ruilai Law Firm.
entrusted agent Huang.
the plaintiff Zhang refused to accept the No.1 decision made by the Human Resources and Social Security Department of Hainan Province (hereinafter referred to as the Provincial People's Social Security Department) in 216 1658. Longhua Court made an administrative ruling (216 1) on October 27, 216, and transferred it to our hospital for handling. After the case was filed in our hospital on 216 116, a collegiate bench was formed according to law, and the case was heard in public on 216 12. Zhang, the plaintiff, and Yan and Huang, the defendants, entrusted the Provincial People's Social Welfare Department to appear in court to participate in the litigation. The case has now been closed.
on may 27th, 216, the people's social welfare department of the defendant province made decision No.12. Plaintiff Zhang 1, the main contents are as follows: "Your application for ascertainment of work-related injury caused by left-hand needle stick injury (hepatitis C) on May 27, 21+8+4 does not meet the acceptance conditions stipulated in the second paragraph of Article 17 of the Regulations on Work-related Injury Insurance.
Plaintiff Zhang claims that the Plaintiff is a surgeon of Hainan Provincial Hospital of Traditional Chinese Medicine. On June 4, 21, the plaintiff accidentally stabbed the finger of his left hand while performing thyroidectomy for a patient (hepatitis C patient). In August 213, he was treated in Hainan Branch of General Hospital of Chinese People's Liberation Army (hereinafter referred to as Branch 31) and transferred to Hainan Provincial Hospital of Traditional Chinese Medicine. On September 18, 24 and 219, he was transferred to the Third Second Hospital of China People's Liberation Army (hereinafter referred to as Hospital 32), and was diagnosed as decompensated ascites due to hepatitis C cirrhosis (the plaintiff's physical examination in 29 showed normal indexes A, B and C). On March 15th, 25, the plaintiff submitted an Application for Work-related Injury Identification to the defendant, and on April 17th, 26, the defendant served the plaintiff with Decision No.12 dated April 31st, 26. [215] 1. On June 8, 215, the plaintiff filed an administrative lawsuit with Longhua Court. On October 8, 215, Longhua Court made an administrative judgment of (215) Longxing Zichu No.23, and decided to revoke the [215] No.65438 made by the Provincial People's Social Welfare Department. The Provincial People's Social Welfare Department refused to accept the judgment and appealed to Haikou Intermediate People's Court. On March 29, 216, Haikou Intermediate People's Court made an administrative judgment (216) J 1, dismissed the appeal, upheld the original judgment, and ordered the Provincial People's Social Welfare Department to make another specific administrative act on the plaintiff's application for work-related injury identification.
1. Decision No.1 made by the defendant violates Article 71 of the Administrative Procedure Law of the People's Republic of China, which stipulates that "if the people's court judges the defendant to conduct an administrative act again, the defendant shall not conduct an administrative act that is basically the same as the original administrative act with the same facts and reasons".
Secondly, the defendant thinks that the plaintiff's application for work-related injury identification has exceeded the application period, but the explanation and reply to the plaintiff about when to start the application period are inconsistent and contradictory. Moreover, the plaintiff began to apply for work-related injury identification in March 214, and the defendant staff refused to accept the plaintiff's declaration for various reasons.
3. The Diagnostic Criteria for Hepatitis C and the Diagnostic Criteria for Liver Cirrhosis issued by China in 214 clearly stipulate that HCVRNA (quantitative detection of ribonucleic acid typing) is an important basis for its diagnosis, but the 31 branch has not been able to carry out the laboratory examination of hepatitis C typing so far, and it is impossible to make a diagnosis. Whether liver cirrhosis is caused by hepatitis C requires multi-party testing and proof. So far, the defendant has not organized any relevant experts to demonstrate and discuss, which is to shirk responsibility and transfer contradictions.
To sum up, request the people's court: 1. Cancel the decision of 1; 2. Order the defendant to accept the plaintiff's application for work-related injury identification according to law and make a work-related injury identification; The litigation costs in this case shall be borne by the defendant.
Plaintiff Zhang provided the following evidence to our hospital:
1. [215] No.1 Decision on Rejection of Work Injury Identification Application; Facts that prove the defendant's specific administrative act.
2. Longhua Court (215) Longxing Zichu No.23 Administrative Judgment; It is proved that [215] No.1 Decision on Rejecting the Application for Work-related Injury Identification was revoked by the first instance according to law.
3. Haikou Intermediate People's Court (216) No.5 administrative judgment at the end of line J 1; It is proved that [215] No.1 Decision on Inacceptability of Work-related Injury Identification Application was revoked in accordance with the law at the final instance.
4. Decision 1; The fact that the defendant made a specific administrative act again for the same factual reason.
5. Provisions of the Administrative Procedure Law of the People's Republic of China; This proves the negative decision. The 1 made by the defendant is illegal.
6. Diagnostic criteria for hepatitis C XXX-28；; It proves that the defendant once again violated the diagnostic standard of hepatitis C confirmed by the Ministry of Health, and his declaration of dereliction of duty for overtime work injury was wrong.
7. The full text of the Regulations on Industrial Injury Insurance in 213; It proves that it is wrong for the defendant to misinterpret the overtime ruling made after the accident injury as the overtime ruling after the accident injury.
8. Yang v. Wuxi Labor and Social Security Bureau (case of administrative dispute over work-related injury identification); Prove that the defendant's overtime ruling is wrong.
9. The plaintiff's relevant diagnosis certificate, transfer certificate and witness testimony; Prove the plaintiff's clinical diagnosis-the rationality and legality of the diagnosis, the authenticity of the work-related injury identification and the accuracy and reliability of the source of the disease.
1, the plaintiff's hepatitis C test report in 29; 5. Prove that Zhang's hepatitis C test index was normal during the physical examination in 29, and he was not infected with hepatitis C virus.
11. Luo Mou's Immune Test Report of Hainan Provincial Hospital of Traditional Chinese Medicine on October 13, 2165438; 3. Prove the fact that Luo was diagnosed with hepatitis C before the operation on October 13th, 21.
12, Luo's medical record of Hainan Provincial Hospital of Traditional Chinese Medicine; Prove that Zhang operated on Luo on the morning of October 14, 21 and was stabbed by his assistant Feng.
13. The plaintiff's medical record in Section 31; In order to prove the fact that the plaintiff was hospitalized, the qualitative test items of HCVRNA were missing, so there was no diagnostic basis.
14. The plaintiff's medical record in Hainan Provincial Hospital of Traditional Chinese Medicine; Prove the fact that the plaintiff was hospitalized, and prove that the qualitative test items of HCVRNA are missing, so there is no diagnostic basis.
15. the plaintiff's medical record in 32 hospital; The fact that the plaintiff was hospitalized was proved, and the HCVRNA qualitative test classification was completed. It can be considered that there is a clear basis for diagnosis, but it needs to be qualitative.
16. The plaintiff consulted the medical record of Huang, a patient who underwent gynecological surgery at night in Hainan Provincial Hospital of Traditional Chinese Medicine; Prove that the plaintiff still insisted on operating the post before the onset, which led to overwork and induced illness.
17. Employment Contract and Renewal of Employment Contract of Institutions signed by the plaintiff and Hainan Provincial Hospital of Traditional Chinese Medicine; It is proved that the plaintiff has worked in Hainan Provincial Hospital of Traditional Chinese Medicine since 21 1 as the chief physician, and there is a labor relationship between the two parties (talents were introduced to work in Hainan Provincial Hospital of Traditional Chinese Medicine in 28).
18, application for work-related injury identification; Prove the acceptance time and facts of the application for work-related injury identification submitted by the plaintiff.
Defendant Provincial People's Social Welfare Department argued: 1. The fact that the judgment was not made by the defendant was clear and the procedure was legal. On March 9, 215, the plaintiff submitted the written application materials for work-related injury identification to the defendant, and submitted the labor contract, the application form for work-related injury identification, the medical records of 32 Hospital and other materials. He claimed that his left finger was infected with hepatitis C when he was treated with acupuncture on October 4, 21, and he was not treated in time. On September 9, 214, 19, it was diagnosed as decompensated ascites due to hepatitis C cirrhosis in 32 Hospital, and it was required to be recognized as a work-related injury and enjoy the treatment of work-related injury insurance. According to the evidence submitted by the plaintiff, the defendant verified his application according to the needs of examination. The defendant was stabbed in the left hand while operating at work on April 14, 21, and was diagnosed with hepatitis C on August 16, 213 through 265438 in 31 departments. According to the above facts, the defendant made judgment No.12 on May 27th, 265438. 1 and decided not to accept it.
two. Decide no. 1. The evidence made by the defendant is conclusive and the applicable legal basis is correct. Paragraph 2 of Article 17 of the Regulations on Work-related Injury Insurance stipulates: "If the employer fails to apply for work-related injury identification in accordance with the regulations, the workers with work-related injuries or their close relatives or trade unions may directly apply for work-related injury identification within one year from the date of the accident injury or the date of diagnosis and identification as an occupational disease." Paragraph 3 of Article 14 of Several Provisions on Work-related Injury Insurance in Hainan Special Economic Zone stipulates that "applications for work-related injury identification beyond the prescribed time limit will not be accepted." First of all, the plaintiff was injured due to work on June 4, 21, and his employer failed to apply for work-related injury identification. The plaintiff himself should apply for work-related injury identification within one year from the date of the accident injury, that is, the plaintiff should apply for work-related injury identification on June 4, 211 at the latest. In addition, the medical record of the plaintiff's 32 Hospital on September 19, 214 recorded: "In August, 213, I went to Hainan Branch of 31 Hospital to resist HCV and was diagnosed as cirrhosis C". On August 16th, 213, the medical records of 31 departments showed that the plaintiff complained about the medical history and signed "There was no obvious edema of both lower limbs and waist around August 13th ... The edema of both lower limbs after drinking was more obvious than before, and was treated in Hainan Provincial Hospital of Traditional Chinese Medicine ... The plaintiff should have been diagnosed with hepatitis C in August 3rd at 65438+ or earlier. If the plaintiff doesn't know that the accident in 21 will lead to his illness due to objective reasons, he should know the result of the accident injury in August 13 at the latest. Therefore, the plaintiff's application for work-related injury identification has exceeded the time limit for application for work-related injury identification stipulated by laws and regulations, which does not meet the acceptance conditions stipulated in the second paragraph of Article 17 of the Regulations on Work-related Injury Insurance.
3. decide not to. The 1 made by the defendant does not violate the provisions of Article 71 of the Administrative Procedure Law of the People's Republic of China. On April 1, 215, the defendant made a decision [215] No.1 not to accept the application for work-related injury identification, and decided not to accept the plaintiff's application for work-related injury identification. Longhua Court and Haikou Intermediate People's Court held through trial that the defendant could not prove that he had obtained the relevant materials of the plaintiff's medical treatment in No.31 branch before making a specific administrative act, and could not be used as evidence for making a decision to reject the application for work-related injury identification. [215] No.1 basis, which has procedural errors, shall be revoked and ordered to make a specific administrative act again. The defendant now takes the relevant materials handled by the plaintiff in Branch 31 as new evidence, and it is not improper for the defendant to make a rejection decision again. It does not violate "if the court decides that the administrative organ has made a specific administrative act again, the administrative organ shall not make an administrative act that is basically the same as the original specific administrative act with the same facts and reasons." The provisions of the.
to sum up, the fact that the judgment is negative. The defendant's determination of 1 is clear, the applicable law is correct and the procedure is legal. Please maintain it according to law.
The defendant Provincial Department of Human Resources and Social Security provided the following evidence to our hospital:
1. Application form for work-related injury identification; Prove the time when the plaintiff filed the application for work-related injury identification.
2. Haikou Intermediate People's Court (216) No.5 administrative judgment at the end of line J 1; It is proved that the plaintiff filed an application for work-related injury identification on March 9, 215, and the defendant made a decision not to accept it. This decision was revoked by Haikou Intermediate People's Court due to insufficient evidence, and the defendant was ordered to take specific administrative actions again on the plaintiff's application for work-related injury identification.
3. The plaintiff's medical record in 32 Hospital; This is to certify that after receiving the plaintiff's application for work-related injury identification, the defendant learned from the submitted materials that the plaintiff had visited the 31 branch in August, 265438 and was admitted to the hospital for hepatitis C.
4. Letter of Entrustment Investigation on Work-related Injury Identification (No.[215]1) issued by Qiongrenshe Social Work Committee; This is to certify that the defendant entrusted Sanya Human Resources and Social Security Bureau to retrieve the inpatient medical records after learning that the plaintiff had been admitted to the 31 Branch in August, 265438.
5. Letter of introduction from Sanya Human Resources and Social Security Bureau; This is to certify that, entrusted by the defendant, Sanya Human Resources and Social Security Bureau sent personnel to 31 Branch in March 215 to copy the medical records of the plaintiff in August 213.
6. Copy and duplicate the medical record approval form; This is to certify that Sanya Human Resources and Social Security Bureau copied the first page of the medical records and admission records of the plaintiff in the 31 Branch on March 31, 213.
7.EMS domestic standard express mailing list; It is proved that on April 2, 215, the defendant received the inpatient medical records of the plaintiff in the 31 branch entrusted by Sanya Human Resources and Social Security Bureau.
8. Decision 1; It is proved that (1) the defendant has fulfilled the administrative judgment No.5 of Haikou Intermediate People's Court (216) and made a new specific administrative act on the plaintiff's application for work-related injury identification. Decision No.2 Decision No.1 made by the defendant again is not the same fact and reason as Decision No.1.. [215] No.1 application for work-related injury identification will not be accepted.
9. Delivery receipt; It proves that the defendant served decision No.24 on the plaintiff. 1 according to legal procedures.
It was found through trial that on March 19th, 265438, the plaintiff was infected with hepatitis C virus because her left finger was pricked when she was operating on a patient in October 18th+4th, and then she was in the 32 Hospital in September 14th. On April 1st, 265438, the defendant made the Decision of [215] No.1 on the inadmissibility of the application for ascertainment of a work-related injury, arguing that the injury caused by the plaintiff's finger puncture on April 1th+14th had exceeded. The plaintiff refused to accept it and filed an administrative lawsuit with Longhua Court on June 8, 215. On October 8, 1965, Longhua Court made an administrative judgment (215) Longxing Zichu No.23, revoking the defendant's decision that [215] No.1 industrial injury identification application was not accepted. The Provincial People's Social Welfare Department refused to accept the judgment and appealed to our hospital. On March 29, 216, our hospital made an administrative judgment (216) J 1, dismissed the appeal, upheld the original judgment, and ordered the defendant to make an administrative act again.
on may 27th, 216, the defendant made decision No.12.1 Based on the Application Form for Work-related Injury Identification and the corresponding supporting materials, the Letter of Entrustment Investigation for Work-related Injury Identification submitted by the plaintiff, the letter of introduction, the photocopy approval form, the application form for hospitalization in Branch No.31, the first page of hospitalization medical records and medical records. If the plaintiff refuses to accept it, bring this lawsuit.
It is also found out that from August 16, 265438 to September 13, 265438, the plaintiff saw a doctor in the 31 branch, and the final diagnosis part of the discharge letter issued by the hospital on September 12, 213, and the diagnosis from September 9, 214 to September 9, 214, on September 14, 32 Hospital recorded in the plaintiff C'…… medical record: "........ On March 27th, 215, the defendant entrusted Sanya Human Resources and Social Security Bureau to investigate and verify the plaintiff's medical treatment in Branch 31. On March 27th, 215, Sanya Human Resources and Social Security Bureau sent staff to the Branch Office 31 to copy the plaintiff's medical records. On April 2, 215, the defendant received the above materials mailed to him by Sanya Human Resources and Social Security Bureau.
The above facts are supported by the following evidence: [215] No.1 Decision on Rejection of Work Injury Identification Application.