Plaintiff (Attorney Lee Jae-ap et al., Counsel for plaintiff-appellant)

Korea Mine Reclamation Corporation (Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

September 14, 2017

Seoul Administrative Court Decision 2016Guhap57205 decided January 20, 2017

1. Revocation of the first instance judgment.

2. The defendant shall pay to the plaintiff 46,634,210 won with 5% interest per annum from April 1, 2016 to October 26, 2017, and 15% interest per annum from the next day to the day of complete payment.

3. All costs of the lawsuit are borne by the Defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The coal industry rationalization project team established under Article 31 of the former Coal Industry Act (amended by Act No. 7552 of May 31, 2005) carried out the coal mine mine mine mine mine closure countermeasure project, such as payment of disaster compensation benefits. The defendant was established under Article 31 of the Mining Damage Prevention and Restoration Act (amended by Act No. 7551 of May 31, 2005) and succeeded to all the rights and obligations of the coal industry rationalization project team under Article 3 (2) of the Addenda of the above Act.

B. From February 20, 1986 to August 31, 1990, the Plaintiff retired from office as a mining source belonging to the Plaintiff at the ○○ Mining Complex (hereinafter “instant mining center”). The Plaintiff, during the period from September 15, 1982 to February 25, 1985, and from March 2, 1985 to September 30, 1985, worked as a mining source belonging to the instant mining center during the period from △△ coal mine for the period from October 2, 1985 to February 15, 1986.

C. As a result of the precise diagnosis of pneumoconiosis on April 28, 1987, the Plaintiff was diagnosed as “type 1/1 of pneumoconiosis disease type, and no complication.” On February 18, 1997, the Plaintiff received KRW 10,878,560 from the Korea Workers’ Compensation and Welfare Service as the lump-sum compensation for disability under the Industrial Accident Compensation Insurance Act on May 19, 197, after receiving KRW 10,878,560 as the lump-sum compensation for pneumoconiosis under the Industrial Accident Compensation Insurance Act on May 19, 197, after which the Plaintiff was diagnosed as “3/2 of pneumoconiosis type, 1/1 of pneumoconiosis type, and 3/3 of the cardiopulmonary function, 75,650 won, which was aggravated as the result of the precise diagnosis of pneumoconiosis on February 24, 206, and raised as Grade 7, 35,75,650 won in the difference of the lump-sum compensation for disability on August 4, 2006.

D. On November 16, 1990, a limited partnership company for new industrial development has closed the instant mining center.

E. On February 19, 2016, the Plaintiff claimed the Defendant to pay disaster compensation benefits under the Coal Industry Act and subordinate statutes, but the Defendant rejected the claim.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 7, Gap evidence 8, Eul evidence 1, the first instance court and this court's response to fact-finding to the Labor Welfare Corporation, the purport of the whole pleadings as a whole.

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff worked as a mining source in the instant mining center and was diagnosed as pneumoconiosis (1/1) and recognized as an occupational accident before the mine was closed, but at the time, the Industrial Accident Compensation Insurance Act did not separately prescribe a physical disability grade due to pneumoconiosis, and was determined as a disability grade under the Industrial Accident Compensation Insurance Act due to the aggravation of pneumoconiosis after the date of the mine closure, and the disability grade was determined around that time, and thereafter the disability grade became final and conclusive at that time. Accordingly, the Plaintiff is obligated to pay disaster consolation benefits to the Plaintiff in accordance with the above Enforcement Decree. Therefore, the Plaintiff constitutes “a person whose disability grade has not been determined as of the date of the mine closure regardless of the period of the occurrence of a disaster,” who is a person subject to disaster consolation benefits under Article 41(3)4 of the former Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 13216, Dec. 31, 190; hereinafter “former Enforcement Decree of the Coal Industry Act”).

B. Determination

1) Article 39-3 (1) 4 of the former Coal Industry Act (amended by Act No. 4754 of Mar. 24, 1994; hereinafter “former Coal Industry Act”) which was applied as of November 16, 1990 by the Plaintiff at the time of the closure of the mine site of this case where the coal mining business operator who meets the criteria for mine closure support as provided in Article 39-2 has completed the registration of extinction of mining rights, etc., the coal industry rationalization business operator shall pay the retirement workers of the relevant mine and other mine closure support expenses as prescribed by the Presidential Decree to the retired workers, etc., and Article 41 (3) 4 of the former Enforcement Decree of the Coal Industry Act provides for the payment of disaster consolation benefits as one of the “other mine closure expenses as prescribed by the Presidential Decree” and provided for the lump sum compensation benefits or lump sum compensation benefits equivalent to the lump sum compensation benefits paid to the retired workers under the Act on the Protection of Industrial Accidents as of the date of closure or the date of occurrence of disaster.

2) Whether the Plaintiff suffered an occupational accident while working in the mining center of this case

A) As seen earlier, Article 41(3)4 of the former Enforcement Decree of the Coal Industry Act also provides that “a person whose disability grade is not determined as of the date of closure of a mine regardless of the period of occurrence of a disaster” as a person eligible for disaster compensation benefits. In light of the content, structure, and purport of the relevant provision, “Notwithstanding the period of occurrence of a disaster,” it is reasonable to interpret “a business accident which occurred one year retroactively from the date of closure of a mine area” to the extent of “a business accident that occurred one year retroactively from the date of closure of a mine area” and

B) As examined in the above “1. Recognition,” the Plaintiff was diagnosed with pneumoconiosis 1/1 type of pneumoconiosis as a result of the precise diagnosis of pneumoconiosis on April 28, 1987, while working as a mining source that performs dusty work in the instant mining center.

Meanwhile, according to the evidence evidence No. 1, the Plaintiff stated the date and time of the Plaintiff’s injury as “the date and time of the injury to the Plaintiff, February 18, 197.” However, in full view of the purport of the arguments as seen above, the Plaintiff’s health care card for pneumoconiosis workers was diagnosed as pneumoconiosis symptoms on April 28, 1987, and the Plaintiff was diagnosed as from May 16, 198 to May 21, 198, and was diagnosed as the result of the pneumoconiosis examination conducted on May 26, 198, with the purport that “the Plaintiff was diagnosed as pneumoconiosis No. 1(1/1),” and the purport of “the Plaintiff’s first diagnosis of pneumoconiosis No. 45,310 won” was stated as “the date and time of the diagnosis of the Plaintiff’s disease,” and the purport of “the Plaintiff’s first diagnosis of pneumoconiosis No. 187, May 4, 1988.”

Furthermore, considering the fact that the Plaintiff, from September 15, 1982 to April 28, 1987, had been engaged in dusty work at the mining center of this case for about four years and three months, excluding approximately four months during which the Plaintiff worked in △△ coal mine, during the period of four months during which the Plaintiff suffered pneumoconiosis, it is reasonable to view that the disease symptoms diagnosed by the Plaintiff was an occupational accident that occurred while the Plaintiff worked in the mining center of this case.

Therefore, while working in the mining center of this case closed on November 6, 1990, the Plaintiff is a person suffering from occupational accidents after being diagnosed with pneumoconiosis before the closure of the mine.

3) Whether the Plaintiff constitutes “a person whose disability grade is not determined as of the closing date”

In full view of the following circumstances, in a case where a mining source who has engaged in dusty work like the Plaintiff was diagnosed with pneumoconiosis before the date of the closure of a mine or was determined as a disability grade after the date of the closure of a mine, it is reasonable to interpret that the disability grade becomes included in the “person whose disability grade is not determined as of the date of the closure of a mine regardless of the period of the occurrence of a disaster” under Article 41(3)4 of the Enforcement Decree of the former Coal Industry Act. Therefore, the Plaintiff is a person eligible for disaster compensation benefits under the above provision and thus, constitutes “person whose disability grade is not determined as of the date of the closure of a mine regardless of the

A) Article 41(3)4 of the former Enforcement Decree of the Coal Industry Act provides that a person whose disability grade is not determined as of the date of the closure of a mine regardless of the period of the closure of a mine refers to the payment of accident compensation benefits regardless of the time of the occurrence of the accident if the disability grade is determined after the occurrence of the accident in the coal mine where the retired worker was closed, but the disability grade was determined after the occurrence of the accident in the mine where the worker was closed, and it does not require that the degree of disability grade can be given as of the date of the closure of the mine. In addition, the "person whose disability grade is not determined as of the date of the closure of the mine" subject to the above provision does not require that the person subject to the accident compensation should terminate the first medical care, and received the corresponding physical disability grade after the completion of the medical care and received the corresponding accident compensation benefits after the date of the closure of the mine, which caused a recurrence of the disease or a merger due to the disease (see, e.g., Supreme Court Decision 199Du5868, Feb. 198).

According to this, it is reasonable to interpret that a worker is entitled to disaster compensation benefits as stipulated in the above provision even if the disability grade is determined after the date of the closure of the worker, if the worker is diagnosed of pneumoconiosis due to a large quantity of dust exposure or smelting of dust related to occupational accidents as of the date of the closure of the worker.

In the case of the Plaintiff, as seen subsequent to the diagnosis of pneumoconiosis at the time of the diagnosis of pneumoconiosis, the Industrial Accident Compensation Insurance Act did not have any separate provision on the disability grade for pneumoconiosis under the Industrial Accident Compensation Insurance Act, and thus, it was judged by the Korea Workers' Compensation and Welfare Service that the above Act and subordinate statutes were amended after the mine closure of the instant mining center, and the Plaintiff’s pneumoconiosis aggravated, thereby receiving the determination of disability grade 11 and

B) According to the Industrial Accident Compensation Insurance Act, an occupational accident is “the injury, disease, disability, or death of an employee due to an occupational reason” and the healing refers to “the injury or disease has been completely cured or has no longer expected to have the effect of treatment, and the symptoms thereof have been fixed.” The term “the injury or disease has been cured, but has been lost or diminished by mental or physical damage.” The occupational injury or disease refers to a separate concept prior to the disability, so the symptoms of which the symptoms have not been fixed due to the failure to complete the healing process based on the date of the closure, cannot be seen as either whether the injury or disease will be a last disability or to a certain degree of disability. There is no reasonable reason to exclude an employee in the process of treating the occupational injury or disease as of the date of the closure of the mine, and there is no reasonable ground to exclude the employee in the process of treating it differently from the employee who has completed the healing process as of the date of the closure of the mine, and there is no provision of Article 41(3)4 of the Enforcement Decree of the former

C) Meanwhile, even if the pneumoconiosis is unable to completely recover due to modern medicine and has left a workplace where dust has occurred, it is difficult to continue its progress, and it is also difficult to predict the degree of progress. Furthermore, when suffering from pneumoconiosis, it is exposed to various mergers, such as active tuberculosis, pulmonary pulmonary tuberculosis by infection, chest infection by infection, organ infection, organ expansion, scarcitys, and discarded species. In addition, it is mainly paid for the treatment of complications caused by such pneumoconiosis.

Considering the characteristics of such pneumoconiosis, even if the Plaintiff did not undergo a separate treatment other than those diagnosed before the closure of the mining center of this case, such circumstance alone does not necessarily lead to the completion of the healing process leading to “a fixed state of symptoms,” but it is difficult to deem that the disability grade can be determined by completing the healing process leading to “a fixed state of symptoms.”

D) According to the Industrial Accident Compensation Insurance Act, Article 31(1) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended on April 15, 1995) and attached Table 2 provides for physical disability grades 1 through 14 in the table of physical disability grades. Article 57 and attached Table 5 [Attachment 5] of the Enforcement Rule of the Industrial Accident Compensation Insurance Act (wholly amended on April 29, 1995) provides for the criteria for medical care and disability grade for pneumoconiosis workers, criteria for determining disability grade, criteria for medical care and cardiopulmonary function disability, criteria for disability grade, and disability grade for pneumoconiosis’s first time, and maintains similar provisions until now (see, e.g., Articles 57 and 57 [Attachment Table 5] of the Enforcement Rule of the Industrial Accident Compensation Insurance Act, which provides that “any person whose form of pneumoconiosis has no cardiopulmonary function and has been determined as one type of pneumoconiosis, who has been determined as having no pneumoconiosis disability grade, shall be deemed as having been determined differently from the case of pneumoconiosis grade 13 above.”

The Defendant asserts to the effect that, as the Plaintiff was clearly excluded from the subject of disability grade at the time of the closure of the mining center of this case, the Plaintiff could not satisfy the requirements of “person whose disability grade is not determined as of the date of the closure of the mining center of this case.” As seen above, it is true that there was no provision on the physical disability grade for pneumoconiosis as well as the type 1 at the time of the closure of the mining center of this case. However, even if the newly established purport of the provision does not meet the requirements for recovery to promote the welfare of workers suffering from pneumoconiosis, the Defendant would immediately pay disability benefits according to the pertinent disability grade. In light of the above, it is difficult to accept the Defendant’s above assertion in view of the fact that the Plaintiff’s pneumoconiosis symptoms cannot be seen as a disease for which the symptoms of the Plaintiff did not complete the process of recovery and thus,

E) Article 41(3)4 of the former Enforcement Decree of the Coal Industry Act provides that “the person whose disability grade has not been determined as of the date of mine closure as of the date of mine closure,” or “the person whose disability grade has not been determined as of the date of mine closure regardless of the period of mine closure,” shall be excluded from the person subject to disaster compensation. The legislative intent of the above provision is to include the person subject to disaster compensation in the person subject to disaster compensation benefits because it is highly likely that the person subject to the above provision might have been put into the mine after being unable to receive appropriate compensation for the occupational accident from the coal mining business operator, and “the person whose disability grade has been determined after one year prior to the date of mine closure, was determined” in consideration of the fact that the person subject to disaster compensation was already paid or could have received compensation for the occupational accident from the coal mining business operator, and thus, it is difficult to view that the person subject to accident compensation under the above provision may not be paid compensation for the occupational accident due to the temporary mine closure after the death grade becomes final and conclusive. In addition to the legislative intent of the worker who suffered from the occupational accident.

F) As to the fact-finding of this court on the Korea Workers' Compensation and Welfare Service, the president of the Korea Workers' Compensation and Welfare Service responded to the opinion that "in the case of pneumoconiosis workers whose level of pneumoconiosis disorder was judged to be normal (F0) before July 1, 2003, the pneumoconiosis type No. 1 and cardiopulmonary function disorder was determined as normal (F0), it is reasonable to determine that they did not meet the disability grade standards and did not receive insurance

C. Sub-committee

Ultimately, the Defendant is obligated to pay the Plaintiff the same amount of disaster compensation benefits as the lump-sum disability compensation benefits under the Industrial Accident Compensation Insurance Act, as provided by Article 39-3(1)4 of the former Coal Industry Act and Article 3(4) of the former Enforcement Decree of the Coal Industry Act, to the Plaintiff, who is a retired worker of the closed mine water of this case.

The Defendant is obligated to pay to the Plaintiff 46,634,210 won (=10,878,560 won for lump-sum disability compensation received on May 19, 1997 + KRW 35,75,650 for lump-sum disability compensation received at a higher grade of the disability grade on February 24, 2006) and to pay damages for delay at each rate of 15% per annum as prescribed by the Civil Act from April 1, 2016 to October 26, 2017, when it is apparent that the date following the delivery of a copy of the instant complaint, as sought by the Plaintiff, to dispute over the existence or scope of the Defendant’s obligation to perform.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions. Thus, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the judgment of the court of first instance and accepting the plaintiff's claim.

Judges Yoon Sung-won (Presiding Judge)