Worker's Injury Inflicted during Commuting

[25-2(A) KCCR 630, 2012Hun-Ka16, September 26, 2013]

In this case, the Constitutional Court held that Article 37 Section 1 Item 1 (c) of the Industrial Accident Compensation Insurance Act does not violate the principle of equality. Under the law an accident is recognized as an ‘occupational accident’ only when a worker suffers injury, disease or disability or dies due to any off-premise accident occurring while he/she commutes to or from work using a transportation means provided by the employer or other similar means under the direction and control of the employer (Judgment of constitutionality was made as the opinion of non-conformity to the Constitution was the majority, but nevertheless fell behind the quorum of six Justices needed for declaring unconstitutionality).

Background of the Case

(1) The petitioner had been working for OO Television Network as chief of technology. On July 27, 2011 he received an emergency call from the company that the company building was flooded due to the prolonged local torrential downpour. On his way to comply with the call order, he was buried and injured from the landslide that occurred around Mt. Woomyeon located in the Southern district ofSeoul at 8:25 a.m. Due to the accident, he was diagnosed with tetraplegiaand spinal cord compression, etc.

(2) On September 2, 2011, the petitioner filed an application for medical care benefit pursuant to the Industrial Accident Compensation Insurance Act to the Korea Workers' Compensation & Welfare Service(hereinafter the ‘Service’) but the application was denied on September 16, 2011 on the basis that the injury could not qualify as resulting from an ‘occupational accident.’ The petitioner filed an administrative suit to vacate the Service's disposition in the Seoul Administrative Court on December 16, 2011(2011GuDan30741). While

the case was pending, the petitioner also filed a motion to request for a constitutional review of Article 37 Section 1 Item 1 (c) of the Industrial Accident Compensation Insurance Act on January 30, 2012. The court granted the motion and requested constitutional review on July 27, 2012.

Provision at Issue

The subject matter of review is whether Article 37 Section 1 Item 1 (c) of the Industrial Accident Compensation Insurance Act (Revised asAct No. 9988, Jan. 27, 2010) (hereinafter, the “Provision”) is constitutional.The Provision at issue is as follows:

Article 37 (Standards for Recognition of Occupational Accidents)

(1) If a worker suffers any injury, disease or disability or dies due to any of the following causes, it shall be deemed an occupational accident:Provided, That this shall not apply where there is no proximate causal relationship between his/her duties and the accident:

1. Accident on duty:

(c) Any accident that occurs while he/she commutes to or from work using a transportation means provided by the employer concerned or other similar means under the control and management of his/her employer.

Summary of the Decision

1.Discrimination between benefited employees and non-benefited employees

The Worker's Compensation Insurance (hereinafter, the “WCI”) is a no-fault compensation system in which an injured employee is entitled to receive benefit for an occupational injury without proving fault or negligence. This is based on the notion of liability insurance. In this regard, it is reasonable that workers who are injured while commuting routinely and not under the control and management of employer may

not be eligible for the WCI. The right to receive the WCI is a statutory right created by specific legislation, where a wide range of legislative discretion is recognized. Meanwhile the Supreme Court has applied more flexible interpretation in deciding whether an accident while commuting can qualify as an occupational injury, thereby expanding the scope of protection for those who are injured during commuting. Also it is legitimate to provide different compensation for those injured during a business trip from those injured during regular commute since a business trip is under the specific direction and control of the employer. While some foreign legislation on worker's compensation insurance covers a commuting accident occurring on the habitual route between workplace and home, some of the insurance premium must also be paid by employees, unlike our legislation where the employers pay all the cost for insurance. Considering the above-mentioned facts, we conclude that the Provision does not violate the principle of equality by awarding arbitrary and unreasonable discrimination, even though it does not recognize employers' injury sustained during the daily commute to or from work with use of personal vehicles or public transportation (hereinafter, “non-benefited employers”) as occupational accident, as opposed to employees who commute by vehicles provided by their employers or by similar means (hereinafter, “benefited workers”).

2. Discrimination between public officials and general workers

Given the legal characteristics of the WCI scheme to provide compensation for no-fault liability; the difference in status and position between regular employees and public officials; the differences in statutory basis, purposes and nature of public officials' pension system and worker's compensation; the difference in types and quality of benefits between public officials' pension system and worker's compensation (benefits under the WCI is more diverse and sufficient); the difference in sources of payment; the possible increase in financial burden of the WCI scheme by recognizing normal commute injuries as

industrial injuries; and the wide legislative discretion in the WIC scheme, the Provision cannot be deemed to arbitrarily discriminate against general employees even though it does not recognize normal commute accidents as occupational accidents.

Opinion of Incompatibility to the Constitution of Five Justices

1.Discrimination between benefited employees and non-benefited employees

It is true that worker's compensation also functions as assisting and financially supporting the injured employee's livelihood. Therefore, it is more compatible with the life assisting function of the worker's compensation to protect employees through recognizing injuries sustained during ordinary commute from/to work, which is no different to injuries sustained during a business trip, as occupational injuries. But the Provision unreasonably excludes non-benefited employees from coverage without any proper basis. In many countries like Germany, France and Japan, commute injuries have been compensable for a long time. In Korea, however, in spite of the long debate on this issue, there has yet to be any specific legislation for the protection of employees injured bycommute accidents. Possible financial difficulties the worker's compensationmight suffer can be overcome by state's active exercise of the right to indemnity against the injurer, or by limiting the scope of compensation only to injuries occurred while commuting through normal and routine route and ordinary transportation means, or by making employees share some of the insurance fee with employers. In contrast, the physiological, physical and financial damages to the injured but not-benefited employees are very serious. Therefore, the Provision, which arbitrarily discriminates against non-benefited employees by imposing unreasonable financial disadvantage on them, violates the principle of equality.

2. Discrimination between public officials and general employers

Considering the facts that commuting of general employees and public officials are practically the same; the purposes of worker's compensation scheme and civil service injury benefit scheme are basically the same in that both are designed to protect workers from all kinds of occupational injuries or disease; both schemes share similarity in operation methods and way of securing financial resource, we are of the opinion that the Provision is problematic in excluding normal commute injury from insurance benefits, unlike the civil service injury benefit scheme. But as we already held that the Provision is in violation of the principle of equality for discriminating on non-benefited employers, it seems redundant to go further with this issue.

3. Decision of incompatibility with the Constitution

If the Court holds the Provision unconstitutional, even the minimum legal basis for recognizing a certain commuting injury as an occupational injury will become void immediately, thereby leading to a legal vacuum and confusion. Therefore, it is desirable for the Court to declare the Provision as incompatible with the Constitution, making the Provision to be tentatively applied until the legislature amends it in accordance with the principle of equality.