2010 old-gu 12579 Average Wage Correction and revocation of revocation of a disposition of paying a difference in insurance benefits;

Fixed00

Korea Labor Welfare Corporation

November 2, 2010

January 18, 2011

1. On April 22, 2010, the Defendant’s refusal to rectify the average wage and the disposition of paying the difference in the insurance benefits to the Plaintiff is revoked.

2. The costs of lawsuit are assessed against the defendant.

same as the text entry.

1. Details of the disposition;

A. The Plaintiff’s husband Kim 00 was on duty in the Han-ri mine, and on January 14, 1982, the Defendant was under medical care with the Defendant’s approval from January 31, 1983. The Kim Won retired from the company around March 3, 1983, and was diagnosed with pneumoconiosis around May 30, 199, and died around June 16, 2009. Meanwhile, on January 14, 1982, the average wage of Kim 00 at the time of medical care due to an occupational accident was KRW 10,000,000.

B. In calculating the average wage due to symptoms of pneumoconiosis around November 2003, the Defendant was unable to verify the average wage as of March 1, 1983, which was at the time of the deceased’s retirement. For the reasons, the Defendant first issued a diagnosis pursuant to Article 38(5) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373, Apr. 11, 2007; hereafter the same shall apply in this Act), Article 26(2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 20142, Jun. 29, 2007; hereinafter the same shall apply), Article 25(2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 20142, Aug. 31, 2006; hereinafter the same shall apply), and Article 25(3)15(2) of the former Enforcement Rule of the Industrial Accident Compensation Insurance Act (amended by Ordinance of the Ministry of Labor No. 258.

C. Accordingly, the Plaintiff could not confirm the average wage at the time of his retirement, but confirmed that the average wage at around January 14, 1982, which was an occupational accident, is KRW 10,00,00,00,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,0000,000,0000,000

D. Accordingly, on April 22, 2010, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim on the ground that the aforementioned determination of the average wage was lawful.

[Ground of recognition] The entry of Gap evidence Nos. 1 through 3 and the purport of the whole pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As of March 3, 1983, the amount increased or decreased by KRW 10, 199, which was confirmed as the average amount for the medical care period during the average wage calculation period, and KRW 82, which was confirmed as the average wage for the deceased’s pneumoconiosis symptoms, shall be determined as the first average wage due to the deceased’s pneumoconiosis. However, the instant disposition based on the premise that the Defendant’s increase or decrease was less than the above increase or decrease was based on the average wage calculated as of May 30, 1990 is unlawful.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) The purpose of Article 38(5) of the former Industrial Accident Compensation Insurance Act, Article 26(2) of the Enforcement Decree of the same Act, and Article 12(2) of the Enforcement Rule of the same Act is to calculate the average wage for workers transferred from occupational illness under the Industrial Accident Compensation Insurance Act. The purpose of the provision is to calculate the amount of wages under the Industrial Accident Compensation Insurance Act by deeming the amount of wages under the report on the survey of labor statistics for the same occupational category as the average wage of the worker concerned as the average wage in such cases is to calculate the insurance benefits under the Industrial Accident Compensation Insurance Act (see Supreme Court Decision 2005Du2810, Apr. 26, 2007).

Meanwhile, considering the purport of the average wage system that intends to reflect ordinary wages in fact and the fact that the reason for calculating the average wage, such as occupational disease, etc., was caused by the work performed during the existence of a labor relationship, where a diagnosis of a retired worker becomes final and conclusive on the date on which the cause for calculating the average wage occurred, and accordingly, an insurance benefit is paid under the Industrial Accident Compensation Insurance Act, the date on which the cause for calculating the average wage occurred after the date of retirement of the employee, i.e., the period until the date on which the diagnosis becomes final and conclusive shall be excluded from the calculation period of the average wage. In addition, Article 19 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007; hereinafter the same shall apply), Article 2(1)4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 1805 of Apr. 27, 2005) provides that the total amount of the average wage is clearly included in the calculation period of the average wage for the ordinary period.

Therefore, with respect to workers whose diagnosis of occupational illness has been confirmed three months after the date of retirement, the amount calculated as mentioned above, namely, the amount obtained by adding the average wage to the average wage calculated on the basis of the amount received during the three-month period prior to the date of retirement, and the amount obtained by adding the amount obtained by adding the increase or decrease of the average wage to the wage amount of workers in the same kind of occupation on the basis of the worker statistics survey report in the employment statistics survey report as of the date of diagnosis of occupational illness, shall be the average wage of the worker concerned. If the average wage cannot be calculated on the basis of the amount received during the three-month period of calculating the average wage under the former Labor Standards Act because the wage during the period of calculating the average wage under

(2) We examine this case in light of the contents and purport of the above provisions.

According to the above, since the diagnosis of the deceased was confirmed after three months from the time of his retirement, the average wage paid to the deceased during the three months prior to the date of his retirement shall be calculated. However, although the time of the deceased's retirement was on March 3, 1983, there is no person who can be known of the specific date. However, according to the above, as long as the deceased retired on March 31, 1983, as long as it was confirmed on January 31, 1983, the deceased could not receive an increase or decrease of the average wage during the three months prior to his retirement (from December 31, 1982 to March 30, 1983, the average wage during the period from December 31, 1982 to September 19, 198, the deceased could not be recognized as the average wage during the period of the deceased's retirement.

Accordingly, in calculating the average wage, the date of the deceased's retirement was March 31, 1983, and based on this Section, the assessment of the average wage based on the amount of wages the deceased received from December 31, 1982 to January 31, 1983, which is the period for which the deceased received medical care due to occupational accidents, does not seem to be more favorable to the plaintiff who is a bereaved family member of the deceased, and it does not appear that it would be significantly more favorable to the plaintiff who is a bereaved family member of the deceased, but only for the reason that the amount of the total wages paid to the deceased was not verified during the remaining period, the disposition of this case, which calculated the average wage based on the average wage disadvantageous to the plaintiff et al., is unlawful.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the ground of the reasons.

this decision is delivered with the judgment of the court.

Judges 000

Attached Acts and subordinate statutes

◆ 산업재해보상보험법 ( 2007 . 4 . 11 . 법률 제8373호로 개정되기 전의 것 )

Article 38 (Types of Insurance Benefits and Calculation Criteria, etc.)

(3) In calculating insurance benefits, where ordinary wages paid to workers engaged in the same occupational category as the business to which the worker belongs are changed, or where suspension of business or other unavoidable reasons exist, the average wages may be increased or decreased according to the standards as determined by the Presidential Decree.

(5) In calculating the insurance benefits, if it is deemed inappropriate to apply the average wage to the worker who is eligible to receive the insurance benefits due to the pneumoconiosis or any other occupational disease as prescribed by the Presidential Decree, the amount calculated according to the method of calculation as determined by the Presidential Decree shall be the average wage for the worker concerned

◆산업재해보상보험법 시행령 ( 2007 . 6 . 29 . 대통령령 제20142호로 개정되기 전의 것 )

Article 25 (Increase or Decrease of Average Wage)

(1) In computing the insurance benefits under Article 38 (3) of the Act, any increase or decrease of the average wages to be applied shall be as shown in Table 1.

(2) An increase or decrease of average wages under Article 38 (3) of the Act may be made at the time when a beneficiary of the insurance benefits makes an application or when the Service deems it necessary to do so. In this case, when the beneficiary of the insurance benefits requests an increase or decrease of average wages, he/she shall submit to the Service an application

Article 26 (Special Cases for Calculating Average Wage for Patients with Occupational Diseases)

(1) The term “occupational disease prescribed by the Presidential Decree” in Article 38 (5) of the Act means any occupational disease provided for in Article 40 (1) of the Enforcement Decree of the Labor Standards Act: Provided, That diseases caused by occupational injury shall be excluded

(2) The term “amount calculated according to the method of calculation as prescribed by the Presidential Decree” in Article 38 (5) of the Act means the amount calculated as prescribed by the Ordinance of the Ministry of Labor in consideration of the wage amount of workers who work in the business to which the worker in question belongs and whose business type and size are similar on the basis of the date of confirmation of occupational disease,

(3) In the application of the provisions of Article 38 (5) of the Act, where occupational illness is confirmed after the suspension or closure of the business to which the worker belongs, the wages shall be calculated pursuant to the provisions of paragraph (2) on the basis of the date of suspension or closure of the business, but the amount increased or decreased pursuant to the provisions of Article 25 (1) until the date of confirmation as occupational disease

(4) A person who intends to be subject to the special exception to the calculation method of average wages under Article 38 (5) of the Act shall submit to the Corporation an application therefor.

◆산업재해보상보험법 시행규칙 ( 2006 . 8 . 31 . 노동부령 제258호로 개정되기 전의 것 )

Article 12 (Standards for Applying Special Cases on Average Wages for Patients with Occupational Diseases)

(1) "Date of confirmation as an occupational disease" in Article 26 (2) of the Decree means the date on which the first diagnosis or diagnosis certificate issued recently as at the time of confirmation that the person is eligible to receive insurance benefits is eligible is issued.

(2) For the purpose of Article 26 (2) of the Decree, the term “amount calculated as prescribed by the Ordinance of the Ministry of Labor” means the amount calculated by dividing the total monthly wages of the workers concerned, whose gender and occupation are similar, from among those in the monthly labor statistics survey report prepared by the Minister of Labor, which are designated as designated statistics under Article 4 (1) of the Statistics Act, by the number of days of the relevant period, and which are divided by the total monthly wages of the workers concerned from among those in the business to which the relevant worker belongs and the business type and size are similar for one

(3) Criteria for determining similar businesses and workers similar thereto under the provisions of paragraph (2) shall be determined by the Corporation.

◆근로기준법 ( 2007 . 4 . 11 . 법률 제8372호로 개정되기 전의 것 )

Article 19 (Definition of Average Wage)

(1) For the purpose of this Act, the term "average wages" means the amount calculated by dividing the total amount of wages paid on behalf of the relevant worker for three months prior to the date on which any cause for calculating his/her average wages occurred by the total number of days in such period. Less than three months after his/her employment

◆근로기준법 시행령 ( 2005 . 4 . 27 . 대통령령 제18805호로 개정되기 전의 것 )

Article 2 (Period and Wages Excluded from Calculation of Average Wage)

(1) Where the period for calculating average wages referred to in Article 19 of the Act includes a period falling under any of the following subparagraphs, the period and the wages paid during that period shall be deducted from the period that forms the basis for calculating average wages and total wages, respectively:

1. A probationary period as provided in subparagraph 5 of Article 35 of the Act;

2. A period of suspension of work due to causes attributable to the employer under Article 45 of the Act;

3. A period of maternity leave as prescribed in Article 72 of the Act;

4. A period of suspension of work for medical treatment due to occupational injury or disease as prescribed in Article 81 of the Act;

5. Period of childcare leave under Article 19 of the Equal Employment Opportunity Act; and

6. Period of the industrial action under subparagraph 6 of Article 2 of the Labor Union and Labor Relations Adjustment Act;

7. Period of temporary retirement or of non-work for the purpose of fulfilling the obligation under the Military Service Act or the Framework Act on Civil Defense: Provided, That the same shall not apply to the case where he has received wages during the said period; and

8. A period of suspension of business after obtaining approval from the employer due to an injury, disease or other causes outside work;

Finally.