(Work-related injury case analysis) Can an accident involving an over-aged worker be classified as a work-related injury?

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【Case Details】Mr. Wang, 62 years old, is a farmer who worked as a security guard at a factory. No labor contract was signed between them, nor was any work-related injury insurance arranged. One day in October 2009, while at work, Wang was injured by a tractor that was entering the factory to deliver goods. After getting injured, Wang applied to the local labor administration department for recognition of his injury as a work-related injury, but the department refused to process the application on the grounds that Wang had exceeded the retirement age. 【Dispute】One view holds that Wang has exceeded the legal retirement age, and therefore the provisions of the State Council’s Regulations on Work-related Injury Insurance regarding the determination of work-related injuries do not apply to him. Working after reaching the retirement age does not constitute an employment relationship or a de facto employment relationship with the employer; rather, it should be considered a service agreement. It falls outside the scope of acceptance for work-related injury recognition and entitlement to work-related injury insurance benefits; such rights shall be realized in accordance with the provisions of civil law through civil litigation procedures. The second opinion holds that China’s Labor Law prohibits the use of child labor only, but it does not set an upper age limit for workers; therefore, hiring workers who are over the legal age does not violate any prohibitive provisions in the laws and regulations. As long as a labor relationship (including de facto labor relationships) exists between them, if such workers are injured at work, it is still considered an occupational injury, and they are entitled to insurance benefits related to occupational injuries. The author agrees with the second opinion. 【Commentary】 I. Workers who are over the legal working age should fall within the category of workers as defined by the Labor Law. The Labor Law only contains provisions prohibiting the use of child labor; it does not contain any prohibitive rules regarding those who continue to work after reaching the legal retirement age. The scope of employees as defined in the Regulations on Work-related Injury Insurance refers to workers in various forms of employment and with various durations of employment who have an employment relationship (including de facto employment relationships) with the employer. Article 2 of the Regulations on Work-related Injury Insurance stipulates that employees of various enterprises within China, as well as workers employed by self-employed individuals, may enjoy work-related injury insurance benefits in accordance with the provisions of these Regulations. It is evident that as long as there is an employment relationship between the worker and the employer, the provisions of the Regulations on Work-related Injury Insurance apply. Although 60 years of age for men (and 55 years of age for women) is the **statutorily prescribed retirement age – indicating that workers are entitled to stop working and receive a pension upon reaching this age – it does not mean that they can no longer engage in labor. As long as their health permits and they are capable of performing their duties, they still fall within the category of workers as defined by the Labor Law. II. As long as there is an employment relationship between older workers and their employers, and an injury at work occurs, such injuries shall be recognized as work-related injuries, and the workers are entitled to benefits under work-related injury insurance. In this case, although Wang and the factory did not sign an employment contract, both parties did not deny the existence of a de facto employment relationship or the fact that he suffered an injury at work. Relevant laws and regulations such as the Labor Law and the Regulations on Work-related Injury Insurance do not contain any exclusionary provisions stating that the employment relationship between workers who are over the legal working age and their employers does not constitute a labor relationship. Therefore, Wang has the right to claim work-related injury insurance benefits in accordance with the provisions of the Work-related Injury Insurance Regulations. III. The “Opinions (Trial) on Several Issues Concerning the Trial of Administrative Cases Related to Labor Security Supervision and Work-Related Injury Recognition” issued by the Higher People’s Court of Jiangsu Province stipulate only the following: 1. Persons who continue to work and receive remuneration after retirement ； 2. In the event of an injury or death occurring to students while on internship at an employer, such incidents are not covered under the provisions regarding work-related injuries as stipulated in the Regulations on Work-Related Injury Insurance. Apart from that, no other exclusionary provisions are provided. In this case, Wang is a migrant worker; although he has exceeded the retirement age, he is not a retired person and does not enjoy any retirement benefits. Therefore, it does not fall under the categories of cases excluded from work-related injury recognition as specified in the \"Opinions (Trial) on Several Issues Concerning the Trial of Administrative Cases Involving Labor Security Supervision and Work-Related Injury Recognition\" issued by the Higher People’s Court of Jiangsu Province. IV. Some local regulations stipulate that workers who have exceeded the legal working age shall not be recognized as having work-related injuries nor entitled to work-related injury insurance benefits; such provisions are inconsistent with the legislative spirit of the Labor Law and also contrary to Article 2 of the Regulations on Work-Related Injury Insurance. Therefore, from the perspective of the principles of legal application, such regulations are invalid. Furthermore, given China’s current national conditions, most migrant workers do not have pensions to rely on after the age of 60; a significant number of them still need to work in order to support themselves. It is clearly inappropriate to exclude them from the category of workers covered by work-related injury insurance, as this also creates opportunities for employers to evade legal obligations and violate their legitimate rights and interests. Therefore, workers who are over the designated age should be entitled to benefits under work-related injury insurance in the event of an accident at work.