I. Specific calculation formula of disability compensation
(1) Disability compensation (for people over 60 years old) = disability level (level I 100%, level II 10%, and so on) x per capita disposable income of urban residents in the previous year or per capita net income of rural residents in the place where the appeal court is located (age increases after 20 years);
(2) Disability compensation (people over 75 years old) = disability level (Grade I 100%, Grade II 100%, etc. X The per capita disposable income of urban residents or the per capita net income of rural residents in the previous year where the Court of Appeal is located was x5 years.
Two. Compensation standard for assistive devices with disabilities
Disabled assistive devices are self-help devices purchased and prepared by disabled victims to compensate their injured body and organ functions and help them take care of themselves or engage in productive labor.
Article 26 of the Interpretation of Personal Injury Compensation stipulates that the cost of assistive devices for the disabled shall be calculated according to the reasonable cost standard of generally applicable devices. If there is a need for special injury, the corresponding reasonable cost standard can be determined by referring to the opinions of the auxiliary equipment organization. The replacement cycle and compensation cycle of auxiliary appliances should be determined with reference to the opinions of the organization.
"Universal applicability" is the guiding principle for determining reasonable expenses. The basic requirements of this principle:
1. means "ordinary", that is, the auxiliary equipment prepared should exclude luxury and luxury, and should not blindly pursue high quality. 2. It is "applicable", and there are two inspection standards for application:
(1) can really play the role of functional compensation;
(2) Meet the requirements of "stability" and "safety".
Three. Medical expense reimbursement standard
Medical expenses refer to the expenses that the victim must pay for medical examination, treatment and rehabilitation training after personal injury.
Article 19 of the Interpretation of Personal Injury Compensation stipulates that medical expenses shall be determined according to the receipt of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence. If the obligor for compensation disagrees with the necessity and rationality of the treatment, he shall bear the corresponding burden of proof. The amount of compensation for medical expenses shall be determined according to the actual amount before the end of the debate in the court of first instance. After the necessary rehabilitation expenses of organ recovery training, appropriate beauty expenses and other follow-up treatment expenses actually occur, the right holder may sue separately. However, according to the diagnosis or appraisal conclusion, the inevitable expenses can be compensated together with the medical expenses that have already occurred.
The Interpretation of Personal Injury Compensation adopts the principle of differential compensation for specific losses such as medical expenses, that is, how much is actually paid. Follow-up treatment costs are subject to standardized compensation standards. The cost of follow-up treatment refers to the cost of secondary treatment for injuries with fixed signs, residual dysfunction or injuries that have not recovered after treatment. Stereotyped compensation does not consider the arithmetic difference of personal property loss of specific victims, but is based on the social appropriateness of damage compensation and the principle of fixing the standard of damage compensation for social justice.
Four. Compensation standard for lost time
The lost time fee refers to the compensation for the lost or reduced work and labor income due to the victim's inability to engage in normal work or labor during the period from injury to full recovery (that is, lost work).
Article 20 of the Interpretation of Personal Injury Compensation stipulates that the lost time fee shall be determined according to the lost time fee and income of the victim. The time of loss is determined according to the certificate issued by the medical institution where the victim is treated. If the victim continues to lose his job due to injury and disability, the lost working time can be calculated to the day before the fixed disability. If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income; If the victim can't prove his average income with evidence, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year. Personal injury compensation instructions compensate the actual expenses and lost time expenses according to the actual difference. In the original "Measures for Handling Road Traffic Accidents", the maximum loss of lost time for parties with fixed income cannot exceed three times the average living expenses of the place where the traffic accident occurred, and those without fixed income are calculated according to the average income of state-owned industries. This explanation does not set a maximum limit on lost time. There are two points to be clarified about "if the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income":
1. Fixed income must have legal proof;
The victim must actually reduce his fixed income. If the victim suffers damage, his employer will not withhold or withhold all his income, and his lost time should not be compensated or underpaid.
Verb (abbreviation of verb) compensation standard for nursing expenses
Nursing expenses refer to the expenses paid by the victim who suffers personal injury, can't take care of himself and needs help from others.
Article 21 of the Interpretation of Personal Injury Compensation stipulates that the nursing fee shall be determined according to the income status of nursing staff, the number of nursing staff and the nursing period. Nursing staff have income, according to the provisions of the calculation of lost time; If the nursing staff has no income or employs nursing staff, it shall be calculated according to the local labor remuneration standard for nursing staff at the same level. In principle, there are 1 nursing staff, but if medical institutions or appraisal institutions have clear opinions, the number of nursing staff can be determined by reference. The nursing period should be calculated until the victim recovers his self-care ability. If the victim can't recover his self-care ability due to disability, a reasonable nursing period can be determined according to his age, health status and other factors, but the longest nursing period shall not exceed 20 years. The nursing level of disabled victims should be determined according to their nursing dependence and the equipment of assistive devices for the disabled.
If the actual nursing period of the victim exceeds the nursing period determined by the court, and the victim sues the court for continuing to pay the nursing expenses, if it is really necessary to continue nursing, the court shall order the compensation obligor to continue to pay the nursing expenses for 5- 10 years. If the actual nursing period of the victim is shorter than the nursing period determined by the court, and the compensation obligor pays all the nursing expenses in one lump sum, should the overpaid nursing expenses be returned? We believe that the nursing period determined by the judgment is made by the judge within the scope of discretion according to the law, and the victim receives the nursing fee in one lump sum according to the judgment of the court. The heir of the victim has no obligation to return the excessive nursing expenses, and the compensation obligor may not ask for them.
Compensation standard for transportation expenses of intransitive verbs
Transportation expenses refer to the actual transportation expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment.
Article 22 of the Interpretation of Personal Injury Compensation stipulates that the transportation fee shall be calculated according to the actual cost of the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment. Transportation expenses are generally paid according to the standard of travel expenses of ordinary staff of state organs where the infringement occurred. Ordinary buses are the main means of transportation. You can take an ambulance or taxi under special circumstances, but the victim should explain the rationality of the use. The transportation fee is subject to the official bill; Relevant evidence should be consistent with the place, time, frequency and frequency of medical treatment. If not, the corresponding amount should be deducted from the compensation amount.
Seven, hospitalization food subsidy compensation standard
Hospitalization food subsidy refers to the expenses that need to be subsidized during the hospitalization of the victim or before the death of the victim.
Article 23 of the Interpretation of Personal Injury Compensation stipulates that the food subsidy for hospitalization can be determined with reference to the food subsidy standard for ordinary staff of local state organs. If the victim really needs to go to other places for treatment and cannot be hospitalized for objective reasons, he shall compensate the reasonable part of the accommodation expenses actually incurred by the victim himself and his entourage. Hospitalization food subsidy, the subsidy object is the "victim" of "hospitalization". If the victim is not hospitalized, there is no such compensation.
Eight, nutrition cost compensation standard
Nutritional expenses refer to the expenses paid by the damaged body after metabolic changes, which can not meet the needs of the damaged body for heat energy and various nutrients through daily diet, and must obtain nutrition from other foods. Article 24 of the Interpretation of Personal Injury Compensation stipulates that the nutrition fee is determined according to the degree of disability of the victim and with reference to the opinions of medical institutions.
It is very common that traffic accidents lead to disability. In judicial practice, it is also very complicated to determine the standard of disability compensation. Because there are too many kinds and situations of human disability, different kinds and situations get different levels of disability appraisal. The specific situation should be handled according to the actual situation.
2 How to calculate the lost time fee for traffic disability?
1. How to calculate the lost time for traffic disability?
The lost time fee refers to the actual reduced income that the compensation obligor should pay to the compensation obligee during the period from injury to full recovery (lost time fee). Compensation standard for lost time "If the patient has a fixed income, it shall be calculated according to the fixed income reduced due to lost time. If the income is higher than the average wage of employees in the previous year when the traffic accident occurred, it shall be calculated by 3 times; If there is no fixed income, it shall be calculated according to the average annual salary of employees in the previous year when the traffic accident occurred. " The calculation method of lost time can be divided into two types according to whether the patient has a fixed income.
1. Fixed income refers to legitimate income such as wages, bonuses, allowances and subsidies for special types of work. , which should have been obtained by state organs, enterprises and institutions and social group work personnel on schedule, but lost due to work delays caused by traffic accidents. Generally, the income certificate and salary table issued by the unit shall prevail, and the bonus shall be calculated according to the per capita bonus of the patient in the previous year. If the bonus tax threshold is exceeded, it shall be limited to the threshold. It should be noted that the income certificates issued by private enterprises such as sole proprietorship, partnership, limited company, etc., which are financially unsound, especially the income certificates that prove that the patient's "fixed income" is more than three times the average annual salary of employees in the previous year, can not 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 prove his average income in the last three years, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year.
2. People with no fixed income include two kinds of people, one is rural villagers engaged in agriculture, forestry, animal husbandry and fishery production; Second, there are street offices, township people's governments or relevant certificates, who engaged in some kind of labor before the traffic accident and whose income can maintain their normal life, including contractors, urban and rural individual industrial and commercial households, migrant workers (temporary workers, temporary workers), family workers and so on. Calculated according to the average annual salary of employees in the last year where the traffic accident occurred.
Compensation amount for lost time = lost time × income standard (fixed income of patients reduced due to lost time)
According to Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, the lost time fee is determined according to the lost time fee and income of the victim. Compensation amount for lost time = lost time income (day/month/year) × lost time.
Lost time:
(1) Discontinuous absenteeism, the time is determined according to the certificate issued by the medical institution where the victim is treated.
(2) The time for the victim to lose the ability to work continuously due to injury and disability shall be counted from the date of injury and delay in work to the day before disability identification.
(3) If the victim died of injury, it shall start from the infringement and end at the time of the victim's death (or the estimated income has been compensated by death compensation because the time cost of the victim's death has not been calculated).
Income calculation formula corresponding to identity:
(1) If there is a fixed income, the lost time fee = lost time fee (day/month/year) * lost time fee Note: If there is a fixed income, the compensation for lost time fee shall be calculated according to the actual reduced loss. Whether the victim can afford it is a matter of law enforcement.
(2) No fixed income:
A. If the victim can prove his average income in the last three years: lost time fee = lost time fee (days) × average income level in the last three years (days/yuan) Note: Income certificate includes tax payment certificate, certificate issued by the unit, etc.
B. If the victim can't prove his average income in the last three years (standardized standard): lost time = lost time (days) × average salary of employees in the same industry and similar industries in the previous year (days/yuan).
Note: Criteria for judging "similar industries":
① Industry classification standard;
② Social evaluation standard of the same industry;
③ Take provinces, autonomous regions and municipalities directly under the Central Government as the standard (different from "the seat of the sued court" in the Civil Procedure Law).
In practice, it is generally based on the statistics of the high courts of provinces, autonomous regions and municipalities directly under the Central Government on the relevant data in their respective jurisdictions (about May each year), taking Jiangxi as an example, such as the reference index of compensation items in the Interpretation of Several Issues Concerning the Application of Laws in Handling Personal Injury Compensation Cases in Jiangxi Province.
Other considerations:
1. Lost time expenses include: salary, funds, allowances, class fees, etc.
2. Lost time expenses include full-time work income and part-time work income.
3. Compensation should be based on "actually reduced" income (principle of differential compensation). For example, when the victim is an employee of some units, when he/she loses his/her job due to injury, the unit shall not withhold part or all of his/her income.
4. When the victim is the operator, it does not include the loss of business interests. Because commercial interests are not simply created by the labor of operators, but also include the comprehensive effects of funds, equipment, organization and management, intellectual property rights and other factors. However, the expenses incurred by business operators in hiring competent people to manage their business or property during their inability to work shall be compensated as lost time.
Second, the identification of the date of loss. According to Article 143 of the Opinions of the Supreme Court on Several Issues, "the date of missed work should be determined according to the actual degree of damage and recovery, with reference to the certificate issued by the treatment hospital or forensic identification." The date of missed work consists of two parts: the number of days in hospital and the rest day after discharge issued by the treatment hospital. It is calculated from the date of the traffic accident and will not be deducted in case of national legal holidays. Those who refuse to leave the hospital without justifiable reasons or refuse to rest without relevant certificates after treatment will not be charged for lost time. If the patient is disabled due to a traffic accident, the lost time fee will not be calculated after the technical appraisal of the traffic accident is issued by the expert appraisal group, that is, the lost time fee will not be compensated after the disabled person is disabled.
It is normal to claim compensation for lost time in traffic accidents, but when calculating lost time, it should be calculated strictly according to the actual situation. The time limit of this work should be combined with the actual degree of injury and recovery, and refer to the appraisal opinions of hospitals or medical personnel. If you refuse to leave the hospital without justifiable reasons after treatment, or don't want to prove that you have taken a break without authorization, there is generally no time loss compensation.