Plaintiff (Attorney Cho Young-chul, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

November 24, 2010

Seoul Administrative Court Decision 2010Gudan1166 decided July 1, 2010

1. Revocation of a judgment of the first instance;

2. The Defendant’s correction of average wages and the disposition of paying the difference in the insurance benefits, which the Plaintiff rendered on June 25, 2009, shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of disposition;

A. The Plaintiff was receiving medical care until January 31, 1993 due to occupational accidents on January 24, 1991, while serving in the Daiam Mining Center. After closing treatment, the Plaintiff was determined by the Defendant on February 16, 1993 as class 9 of disability grade 15, which corresponds to “a person whose work remains in the function or mental function of the neurosis and has limited to a considerable degree,” and was paid a disability compensation amount calculated on the basis of average wage of KRW 34,703.73. The Plaintiff retired from a company on February 28, 1993, and was diagnosed with pneumoconiosis on June 21, 2005.

B. The Defendant determined that it is impossible to calculate the average wage on the ground that the total wage paid during the remainder of the period of medical care (from November 28, 1992 to February 27, 1993) is unknown during the calculation period (from November 28, 1992 to January 31, 1993) and thus, it is impossible to calculate the average wage. The Defendant determined it as an average wage pursuant to Article 38(5) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373, Apr. 11, 2007; hereinafter the same shall apply), 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) and Article 12(2) of the former Enforcement Rule of the Industrial Accident Compensation Insurance Act (amended by Ordinance of the Ministry of Labor Ordinance of August 31, 2006; hereinafter the same shall apply).

C. At the time of January 24, 191, the Plaintiff asserted that the average wage (34,703.73 won) should be increased or decreased on the basis of the average wage as of January 24, 1991. The Plaintiff claimed correction of the average wage and payment of the difference in the insurance benefits to the Defendant. On June 25, 2009, the Defendant issued the instant disposition rejecting the Plaintiff’s claim on the ground that the application of the average wage was legitimate.

【Ground for Recognition: Facts without dispute, entry of Gap 1 through 3, and the whole purport of pleading】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) On January 31, 1993, the Plaintiff retired immediately after the completion of medical treatment, and did not actually perform its duties after the completion of medical treatment. However, the date of calculating the average wage is treated as the date of retirement on February 28, 1993. The date of calculating the average wage shall be January 31, 1993, and the period of medical treatment shall be excluded from the calculation of the average wage, and the first day of calculating the average wage shall be January 24, 1991. The average wage of the Plaintiff shall be calculated based on the average wage (34,703.73 won) calculated by occupational accidents on January 24, 1991.

2) On January 24, 1991, the average wage as of January 24, 1991, which was confirmed by the Plaintiff, was paid temporary disability compensation benefits and disability benefits until January 31, 193. The average wage calculation period (from November 28, 1992 to February 27, 1993) excluding the period from November 28, 1992 to January 31, 1993, shall be applied based on the average wage (from November 28, 1992 to February 27, 1993) excluding the period from February 1, 1993 to February 27, 1993, where it is impossible to verify part of the wage paid pursuant to Article 4 of the Ministry of Labor (Article 2004-22). The increase or decrease of the average wage shall be applied based on the average wage (from November 28, 1992 to February 31, 1993).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 38(5) of the former Industrial Accident Compensation Insurance Act provides that "in the calculation of insurance benefits, where it is deemed inappropriate to apply the average wage to a worker who is entitled to receive insurance benefits due to an occupation-related disease prescribed by the Presidential Decree such as pneumoconiosis, the amount calculated according to the method of calculation prescribed by the Presidential Decree shall be the average wage for the worker concerned." In this case, Article 26(2) of the Enforcement Decree of the Act and Article 12(2) of the Enforcement Rule of the same Act provide that the method of calculating the average wage shall be the method of calculating the average wage. In the monthly labor statistics survey report prepared by the Minister of Labor, the sum of the total monthly wage for the worker concerned among the workers who belong to the business to which the worker in question belongs and the business and the scale similar to those to which the worker in question belongs shall be calculated by dividing the total

Special provisions on the calculation of average wages for workers transferred from occupational diseases apply to cases where a certain occupational disease, such as pneumoconiosis, is difficult to diagnose them, and the worker continues to perform his/her duties without verifying the disease caused by pneumoconiosis, etc. due to his/her duties. However, due to his/her occupational disease, the calculation of average wages based on the amount of wages is inappropriate for the protection of workers (see Supreme Court Decision 2005Du2810, Apr. 26, 2007).

In full view of the provisions of Article 19 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007; hereinafter the same) and Article 2(1)4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 20803 of Jun. 5, 2008; hereinafter the same), where a period of suspension of work for injury or disease care due to performance of duties is included in the period of average wage calculation, such period shall be deducted from the average wage calculation period and the total amount of wages paid during such period. The purport of exclusion from the average wage calculation period is that the average wage is the basic principle of calculating the actual living wage of an employee, so the "total amount of wages paid to the employee during the three-month period prior to the date on which the cause occurred" included in the average wage calculation is to exclude the amount substantially less than ordinary wages.

Since the diagnosis of occupational illness was confirmed after three months from the time of retirement of the plaintiff, the average wage paid to the plaintiff between March 28, 1993 (from November 28, 1992 to February 27, 1993) and the retirement of the plaintiff should be calculated. Among them, from November 28, 1992 to January 31, 193, although the plaintiff provided medical care due to occupational accident, the average wage was confirmed as 34,703.73 won, and after January 31, 1993, the average wage was calculated as 34,703.73 won.

Although the total amount of wages paid from February 17, 1993 to February 27, 1993 cannot be confirmed, in light of the fact that the plaintiff was immediately determined by the disability grade after the medical care was terminated, and that the retirement progress within one month thereafter and the disability grade determined by the plaintiff was class 9-15 that it was difficult for the plaintiff to continue to work, the above period is right to regard the period that the plaintiff was unable to work any longer due to occupational accidents as the period needed for the plaintiff to retire.

Since there is no dispute between the parties as to the fact that the amount of increase or decrease based on the average wage applied during the period of medical care to the Plaintiff exceeds the amount of increase or decrease due to the special average wage, the calculation of the average wage based on the average wage applied to the Plaintiff from November 28, 1992 to February 16, 193 is more favorable to the Plaintiff, and it does not seem that the average wage so calculated is more remarkably larger than that of ordinary cases.

However, the instant disposition that calculated the average wage by special exception that is disadvantageous to the Plaintiff on the ground that the total wage paid to the Plaintiff during the remaining period is not verified is unlawful, on the ground that the instant disposition was unlawful.

3. Conclusion

The judgment of the first instance shall be revoked. The disposition of this case shall be revoked.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)