The Discussion of Legal Problems and Remedies for Occupational Injuries and Diseases

• Main Authors: CHANG,SU-LAN, 張素蘭
• Other Authors: CHEN,CHENG-KEN
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/21022441823332619849

碩士 === 國立高雄大學 === 法律學系碩士班 === 105 === Abstract In this paper, the laws of occupational injuries and diseases are explored. The recognition of the occupational injury established by the injury during the period of performing duties is relatively non-controversial. However, the recognition of the disease induced by duty implementation can be identified as one of the occupational diseases must be made by doctors according to Occupational Disease List. Even if the disease induced belongs to that of the category table, it is not necessarily regarded as an occupational disease since it is identified with disease appearance, instead of assessment. In my opinion, it is unequal and there may be a problem for violation of the principle of constitutional equality and poor protection of labor. Once labors suffer from injury in the profession, the life of labors and their families may be trapped in the desperate situation of poverty. The cases identified as the categories of occupational injuries and occupational diseases in practice are collected in this article. Among them, some cases of traffic accidents occurred on the way of commuting in which there are different views in practice whether they belong to occupational hazards are taken as examples, including the traffic accidents in which the occupational injury is still established since traffic rules were violated but excluded by Article 18 of Regulations of the Examination of Injuries and Diseases Resulting from the Performance of Duties by the Insured Persons of the Labor Insurance Program. Therefore, in this paper, Article 21 of Regulations of the Examination of Injuries and Diseases Resulting from the Performance of Duties by the Insured Persons of the Labor Insurance Program: “The diseases of insured persons caused or made deteriorated by work are considered vocational diseases.” is mainly discussed. According to Article 21 of the regulations, the "diseases" triggered in the work are unspecified and whether the "disease" triggered is the occupational disease in the provisions of the Occupational Disease List in Article 3 Paragraph 2 of Regulations of the Examination of Injuries and Diseases Resulting from the Performance of Duties by the Insured Persons of the Labor Insurance Program or the "disease" identified in Reference Guide for Determination of Overwork is not explained. However, why the same "diseases" cannot be identified according to the definition of "Individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved."? In other words, the “disease" triggered in the work is through physician's identification shall be deemed as the occupational disease and the labor suffering from the disaster can be applied in Article 59 of Labor Standards Act: "An employer shall pay compensation to a worker who is dead, injured, incapacitated or sick due to occupational accidents according to the following provisions…" In this paper, the rules of occupational hazard identification, scholar's opinions, and judicial cases in Taiwan are collected and arranged to discuss whether the medical causal relationship can be the only occupational disease identification method for the diseases of the labors triggered during the performance of their duties and explore if there is any possible solution. Also, whether survival rights, work rights, and property rights of the people in Article 15 of the Constitution can be claimed to apply for the J.Y. Interpretation so as to really protect workers suffering from occupational disasters and their families from being confused or helpless is studied. The suggestions of this paper are as follows. i. The identification of occupational diseases should be broadly recognized to the spirits of the Constitution protecting human rights, life, and property. ii. Since the definitions and payment provisions of occupational disasters are scattered in various regulations, the Act for Protecting Worker of Occupational Accidents should be modified or the special law for professional disaster should be set additionally to integrate the definitions, establishment requirements, causes, compensation systems, matters of leave, and relief procedures of occupational hazards into a complete law.