According to Chinese laws and regulations, compensation for lost work expenses refers to the losses incurred by the victim during the treatment period. If the victim has a fixed income, the cost of work delay shall be calculated based on the actual reduced income per day.

If the victim's actual salary has not been reduced, can they still claim compensation for work delay? Generally speaking, during the period of treatment and rest, the victim is normally paid wages by the unit, and the victim has no loss of wages, so of course, they have no right to claim compensation for work delay. Is there no exception to this? Of course there is.

In a motor vehicle traffic accident case represented by our team, our client encountered a situation where they applied to the company for paid annual leave after a traffic accident occurred. During the client's treatment period, the unit paid wages normally. In this situation, does the customer have the right to claim for work delay fees?

On the one hand, the customer did not experience a decrease in income during the treatment period; On the other hand, the fact that customer income has not decreased is based on sacrificing their annual leave as a statutory benefit. From this perspective, the victim does have a "loss" caused by being unable to work normally. This' loss' is the victim's annual leave loss, or 'annual leave benefits'.

So, how does judicial practice determine this?

For this purpose, we searched multiple judgments from regions such as Beijing, Shanghai, Tianjin, Zhejiang, and Hunan. We found that there are a large number of effective judgments in the Shanghai region that recognize the above views, and there are individual effective judgments in the Beijing and Tianjin regions that also support them.

The People's Court of Xuhui District, Shanghai (2023) Hu 0104 Min Chu No. 426 Civil Judgment holds that "in view of Wu Baogang's use of annual leave for related treatment, although his salary income has not been actually reduced, it will indeed affect his original income that can be converted into salary without taking annual leave. The amount claimed is still reasonable, and this court will follow suit

The People's Court of Songjiang District, Shanghai (2022) Hu 0117 Min Chu No. 14221 Civil Judgment holds that "although the plaintiff was actually absent from work for 8 days and the unit did not withhold wages, the plaintiff offset the number of days of absenteeism with their annual leave, which is the plaintiff's welfare treatment. Therefore, the plaintiff's claim of 8 days of absenteeism loss is supported by this court. The plaintiff's monthly salary is 19273 yuan, so this court determines that the loss of absenteeism is 7088.92 yuan (19273 yuan ÷ 21.75 days) × 8 days)

The People's Court of Hongkou District, Shanghai (2022) Hu 0109 Min Chu No. 6352 Civil Judgment holds that "work delay fees: Although the plaintiff pays wages normally due to the use of compensatory leave, the compensatory leave used by the plaintiff also has value. The work delay fees should be determined based on the difference between the plaintiff's normal monthly salary for attendance and the sick leave salary from October 18, 2021 to November 5, 2021. Therefore, the work delay fees in this case are determined to be 1950 yuan

The People's Court of Chaoyang District, Beijing (2022) ruled in Civil Judgment No. 17111 of the People's Court of Beijing 0105 that "although the plaintiff did not withhold wages during the period of work delay, considering the actual situation of using annual leave to offset sick leave, this court supports 5000 yuan at its discretion

The judgment that holds the opposite opinion is more based on a strict grasp of "income reduction".

The People's Court of Yanqing District, Beijing (2021) Jing 0119 Min Chu No. 2734 Civil Judgment holds that "Jiang Yanyan has not submitted sufficient evidence to prove that there was indeed a loss of work delay for the aforementioned 8.5 days (annual leave days). Therefore, the amount claimed in this part is 22353 yuan, lacking factual and legal basis, and the court does not support it

The First Intermediate People's Court of Beijing (2022) recognized the above first instance opinion in its civil judgment No. 6783, stating that "regarding the loss of annual leave, it is Jiang Yanyan's voluntary choice of punishment for statutory leave and injury leave, and there is no evidence to prove the objective existence of the loss. The first instance court does not support this part correctly

The Beijing Second Intermediate People's Court (2022) ruled in Civil Judgment No. 10469 of Jing 02 Min Zhong that "although Tao Song took annual leave due to this traffic accident but did not take sick leave, Tao Song's use of annual leave to offset sick leave was a choice made by himself, unrelated to others, and the resulting decrease in income should be borne by him. Therefore, his request for compensation for his annual leave subsidy lacks basis, and this court will not accept it

In summary, it can be seen that during the treatment period, if the victim applies for annual leave and obtains the normal salary paid by the unit using the annual leave, it is not impossible for them to claim work delay fees. We have noticed that the issues addressed in this article are not clearly defined in Chinese law, and local judicial documents do not provide relevant answers or guidance. We will wait and see if the Shanghai court's opinion on this issue can be promoted nationwide.