[1] Whether the “health damage of a fetus” caused to a pregnant female worker by reason of his/her duties is included in the “occupational accident” of an employee under Article 5 subparag. 1 of the Industrial Accident Compensation Insurance Act (affirmative)

[2] In a case where an occupational accident that causes damage to the health of a fetus, which is part of the mother's body, due to a pregnant female worker's work, occurs, and the relationship between the supply and demand of medical care benefits under the Industrial Accident Compensation Insurance Act was established, and the fetus which has formed a single body with the mother's body is separated from the mother'

[1] Comprehensively taking into account the purport, character, and content of the industrial accident insurance system and health care benefit system, the “health damage of a fetus” caused to a pregnant female worker by her occupational work under the interpretation of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”) is included in the “occupational accident” of an employee under Article 5 subparag. 1 of the Industrial Accident Compensation Insurance Act regardless of the degree of impact on the female worker’s labor ability

[2] If an occupational accident caused by damage to the health of a fetus, which is a part of the mother's body, due to a pregnant female worker’s work, occurs, and the relationship between the supply and demand of medical care benefits under the Industrial Accident Compensation Insurance Act was established, the relationship between the supply and demand of medical care benefits already established shall not be deemed extinguished even if the fetus, which has formed a single body with the mother's body, was separated from the mother's body due to childbirth after the childbirth. Therefore, female workers do not lose the right to medical care benefits for congenital diseases, etc.

[1] Article 5 subparagraph 1 of the Industrial Accident Compensation Insurance Act / [2] Articles 5 subparagraph 1, 40, and 88 (1) of the Industrial Accident Compensation Insurance Act

Plaintiff 1 and three others (Attorneys Shin Young-hun et al., Counsel for the plaintiff-appellant)

Korea Workers' Compensation and Welfare Service (Law Firm, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for defendant-appellant

Seoul High Court Decision 2015Nu31307 decided May 11, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case summary

According to the reasoning of the lower judgment, the following circumstances are revealed.

A. The Plaintiffs are all nurses working at “△△△△△△△”, which is the Jeju Special Self-Governing Province ○○ Hospital. In common, the Plaintiffs were pregnant in 2009 and gave birth to her child in 2010, and both their children had congenital heart disease. The rest of the Plaintiffs except Plaintiff 3 had a miscarriage in 4 parking in pregnancy.

B. Among the nurses working at △△△△△△△, 15 persons, including the Plaintiffs, were pregnant in 209, and only six of them gave birth to a healthy baby, and only four of the Plaintiffs given birth to a congenital heart disease child, and other five of them were put to miscarriage. Accordingly, the working conditions and working environment of nurses became an issue between labor and management, and the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△ was requesting an epidemiological investigation to the Foundation for Industry Cooperation in Seoul National University. The Seoul University Industry Cooperation Foundation submitted an epidemiological investigation report on February 29, 2012 to △△△△△△△△△△△△△△△△△

C. Based on the content of the above epidemiological investigation report, the Plaintiffs: (a) disclosed the elements harmful to the health of a pregnant woman and a fetus at the early stage of pregnancy, and caused an obstacle to the formation of the heart of the fetus; (b) asserted that the childbirth of a congenital heart disease child constitutes occupational accident; and (c) on December 11, 2012, the Defendant filed a claim for medical care benefits with the Defendant (the Jeju Branch Office) on the ground that the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”) only means the injury, disease, disability, and death of “worker himself” and the Plaintiffs’ child cannot be deemed an employee subject to the Industrial Accident Compensation Insurance Act, and thus, (d) rendered a disposition of the medical care benefit site pay on December 27, 2012.

D. The Plaintiffs, by seeking legal advice from an attorney, filed a claim for medical care benefits with the Defendant again on September 12, 2013, arguing that “The fetus was part of the mother body at the time of the outbreak of a disability to the formation of the heart of the fetus, and thus, at the time of the outbreak, the disease of the fetus should be deemed to be the disease of the mother body, and whether the Industrial Accident Insurance Act shall apply to an employee at the time of the outbreak of the disease, and even if the status of an employee was lost after the outbreak of the disease, the industrial accident insurance shall continue to apply, and thus, the congenital heart disease of the child born should be recognized

E. Accordingly, on September 26, 2013, the Defendant demanded the Plaintiffs to supplement the data stating that “The date and time of the occurrence of a disaster is specified, the first medical examination report on industrial accident insurance, and all kinds of examination data and results that can verify the applicant’s disease are shipped off.” The Plaintiffs, on October 2013, specified the time and time of the occurrence of a disaster as “prestigious,” rather than the date of delivery, submitted additional “medical records during pregnancy” and “medical records on congenital heart diseases” to the Defendant. Nevertheless, on November 6, 2013, the Defendant rendered a “disposition rejecting civil petition documents” against the Plaintiffs on the ground that “the time and time of the occurrence of a disaster is specified, and the customer’s disease is unknown because the first medical examination report on industrial accident insurance has not been submitted, and the period of medical care, etc.” (hereinafter “instant refusal disposition”).

2. The judgment of the court below

A. The lower court determined that the instant refusal disposition was lawful on the grounds that the Plaintiffs cannot be the beneficiary of medical care benefits under the Industrial Accident Insurance Act with respect to the congenital disease of each child of childbirth on the following two grounds.

1) Even if the Plaintiffs, who are female workers, were exposed to harmful factors in the working environment during pregnancy, thereby hindering the formation of the heart of a fetus, and accordingly, given birth to a child with a congenital heart disease, each of the congenital diseases of a child of childbirth is merely the disease of a child of childbirth, but is not the individual’s own disease, which is an employee, and thus cannot be included in the Plaintiffs’ occupational accidents.

2) Separate from whether each child born can be seen as a beneficiary of the industrial accident insurance benefits in light of the interpretation of the Industrial Accident Insurance Act, deeming the congenital disease of each child born as an occupational accident, the Plaintiffs cannot be seen as a beneficiary of the industrial accident insurance benefits related to the congenital disease of each child born, regardless of whether each child born can be seen as a beneficiary of the industrial accident insurance benefits.

B. However, it is difficult to accept such judgment.

3. Judgment of the Supreme Court

(a) Industrial accident insurance system and health care benefit system;

1) Article 34(2) of the Constitution declares the State’s duty to promote social security and social welfare, and Article 34(6) of the Constitution declares the State’s duty to prevent accidents and to protect workers from danger. The purpose of the Industrial Accident Insurance Act is to compensate rapidly and fairly for occupational accidents through the implementation of industrial accident insurance business, and to establish and operate insurance facilities necessary therefor in order to facilitate the rehabilitation of workers suffering from occupational accidents and their return to society, and to contribute to the protection of workers by carrying out activities to prevent accidents and promote workers’ welfare (Article 1). The basic ideology of the Industrial Accident Insurance Act is to guarantee the right to life of workers suffering from industrial accidents and their families, and the entitlement to industrial accident insurance benefits is embodied by the Industrial Accident Insurance Act on the basis of the fundamental right to survival under such Constitution (see, e.g., Constitutional Court en banc Decision 2004Hun-Ba97, Nov. 24, 2

2) The purpose of the industrial accident insurance system is not to transfer the occupational safety and health risks, which are occupational accidents that may arise to workers at the workplace, to either an employer or employee, but to share them among the industries and society through public insurance. The purpose of this system is to indirectly induce workers to improve the inferior working environment, and ultimately, to provide a minimum level of social safety network for the safety and health of workers who can be excluded in the course of economic and industrial development, thereby reducing social conflicts and costs as a whole, thereby contributing to the stable industrial development and economic growth (see, e.g., Supreme Court Decision 2015Du3867, Aug. 29, 2017). Insurance benefits under the Industrial Accident Insurance Act perform the liability insurance function with the nature of the employer’s liability insurance in relation to the accident compensation for workers under the Labor Standards Act, as well as the nature of the employee’s livelihood security for workers, and the State is ultimately liable for compensation in relation to employers and the State (see Supreme Court Decision 93Da38266, May 24, 1994).

3) According to the Industrial Accident Insurance Act, “occupational accident” refers to an employee’s injury, disease, disability, or death caused by an occupational reason (Article 5 subparag. 1); medical care benefits are paid to the employee when the employee is injured or affected by a disease due to an occupational reason (Article 40(1)). The scope of medical care benefits extends to the provision, treatment, surgery, medical treatment, treatment, other treatment, hospitalization, nursing, nursing, transfer, etc. of medicine or medical treatment materials, artificial limbs, and other auxiliary devices (Article 40(4)). Medical care benefits are paid at the request of a person entitled to such insurance benefits (hereinafter “beneficiary”). The employee’s right to receive insurance benefits is not extinguished even after retirement (Article 8(1)2). Medical care benefits should be determined whether the symptoms have arisen only due to a disaster rather than mere comparison of disability conditions, and the scope of medical care benefits should be determined at least 160 percent (Article 40(1)6).

B. Whether “health damage of a fetus” due to work constitutes an employee’s occupational accident

In full view of such purport, character, and content of the industrial accident insurance system and health care benefit system, it is reasonable to view that the “health damage of a fetus” caused to a pregnant female worker by her occupational performance under the interpretation of the Industrial Accident Insurance Act is included in the “occupational accident” of a female worker under Article 5 subparag. 1 of the Industrial Accident Insurance Act regardless of the degree of impact on the female worker’s labor ability.

1) In a trial of a specific dispute case, the authority to determine the meaning, content, and scope of application of the law or the provision of the law, immediately the authority to interpret and apply the law is an essential substance of the judicial authority, and the interpretation of the law to be in harmony with the constitutional norm is a major principle for the interpretation and application of the law. When a variety of interpretations are possible with respect to a certain provision of the law, the court should choose an interpretation consistent with the Constitution, i.e., constitutional interpretation so that the norms enacted by legislators can be respected as possible and maintained (see, e., Supreme Court en banc Decision 2004Du10289, Feb. 12, 2009; Constitutional Court en banc Decision 89Hun-Ga113, Apr. 2, 1990).

2) Article 32(4) of the Constitution provides for the State’s duty to protect women’s work from motherhood, by providing that “the work of a woman shall be subject to special protection, and there shall be no unfair discrimination in terms of employment, wages, and working conditions,” and that the State’s duty to mitigate the social burden and restriction of female workers and to guarantee working conditions considering physical and biological characteristics, etc. Furthermore, Article 36(2) of the Constitution provides for the State’s duty to protect women’s work from motherhood by stipulating that “the State shall endeavor to protect motherhood.” Meanwhile, Article 36(2) of the Constitution provides that “the State shall endeavor to protect motherhood.” Inasmuch as family, society, and the State’s community cannot continue and maintain without pregnancy and childbirth, the protection of motherhood is also related to the continuation and maintenance of the community. Accordingly, the State has the duty to relieve the burden of pregnancy, childbirth, etc.

Such special provisions of the Constitution may be deemed to have been embodied by gender in consideration of the characteristics of the area where Article 11 of the Constitution does not be discriminated against in all areas of political, economic, social and cultural life. However, in order to find the meaning of the above provisions of the Constitution in the “area of the vocational performance of women through the provision of labor,” the pregnant female workers and their fetus shall be fully protected from the occupational harmful factors that may arise in the course of pregnancy and delivery, and the State shall also be obliged to provide sufficient protection for female workers from such harmful factors.

3) A person is the subject of rights and duties during his/her lifetime (Article 3 of the Civil Act). As long as an individual Act does not provide for exceptionally recognizing the legal capacity of an embryo, a fetus is not capable of rights in principle. There is no separate provision that recognizes the legal capacity of an embryo, under the Industrial Accident Insurance Act, the fetus and the fetus are treated as “one body,” i.e., a body of the mother,” i., a body of the mother, without the mother’s body. The fetus cannot exist without the mother’s body, and the fetus may be exposed to accidents and risks at any time because it is at the work site along with the mother’s body as part of the mother’s body. Meanwhile, medical care benefits under the Industrial Accident Insurance Act are paid to a worker who suffers from an injury or disease due to an occupational reason, and thus, it does not require that the employee lose the legal capacity

Therefore, it should be viewed that the health damage of a fetus caused by a pregnant female worker's work based on his/her work constitutes an occupational accident of female workers regardless of the impact or degree on the female worker's labor ability.

On the other hand, the defendant takes a view that only when a pregnant female worker suffers from a work and is recognized as an occupational accident by deeming it as an injury to the body of a female worker. It is also unreasonable to distinguish whether the occupational accident is recognized depending on the degree of injury to the health of a fetus, which is a part of the mother’s body. This is because there is no reasonable ground to distinguish the health damage of a fetus from the health damage of a fetus in terms of the protection of the life of a fetus. It cannot be said that a miscarriage is a serious result that requires preferential protection than the health damage of a fetus (the congenital disease, disability, childbirth as a result of an inevitable result). This is obvious that there is much more serious result than the former in terms of the economic burden that a female worker suffers from an economic burden, and the mental suffering is significant, but the latter is continuously causing a long-term and mental pain after childbirth, so it cannot be concluded that the latter is less than the latter in terms of mental pain.

4) Furthermore, taking account of the fact that it is an interpretation faithful to the purpose of the industrial accident insurance system that does not transfer the risks of industrial accidents to either employer or employee, and that it is desirable for an employer as well as an employee to include the health damage of a fetus due to the duties of a pregnant female employee in the occupational accident and to be subject to the Industrial Accident Insurance Act, taking into account the opportunity that the industrial accident insurance has developed from the civil relief to the social insurance, difficulties in proving civil liability, insolvency of an employer, prolonged relief period, etc.

If it is impossible to receive medical care benefits under the Industrial Accident Insurance Act, female workers are bound to bear necessary expenses for the treatment, etc. of a child given birth or to bear the burden of claiming and proving compensation for damages against a business owner. This leads to unfair results that leads to the transfer of economic responsibility and mental suffering to female workers with respect to any accident caused by his/her work. The business owner is unable to be protected through the public insurance called industrial accident insurance, and thus, is able to bear excessive compensation costs at one time, so that the health care benefit system under the Industrial Accident Insurance Act can not function rationally.

(c) Whether female workers lose entitlement to medical care benefits due to childbirth;

1) As long as the basic legal relationship related to the supply of and demand for insurance benefits is established as a result of an occupational accident that occurred to an employee under the Industrial Accident Insurance Act, it does not affect such insurance benefits supply and demand relationship even if the employee loses his/her status thereafter. Article 88(1) of the Industrial Accident Insurance Act also provides that “The employee’s right to receive insurance benefits shall not be extinguished even

For the same reason, if a occupational accident caused by damage to the health of a fetus, which is a part of the mother's body, arising in the course of performing his/her duties, led to the establishment of a medical care benefit supply relationship under the Industrial Accident Insurance Act, the relationship between the supply of and demand for medical care benefits already established even if the fetus, which has formed a single body with the mother's body, was separated from the mother's body due to childbirth after childbirth, is not deemed extinguished. Therefore, female workers should not lose the right to receive medical care benefits for the congenital disease, etc. of a baby born after separation from

This is because occupational accidents under the Industrial Accident Insurance Act only require an accident to occur to an employee due to an occupational reason, and there is a proximate causal relation between the workplace and the accident, and since the accident or the beneficiary still does not require the worker to be an employee at the time of the outbreak of the disease or at the time of the payment of insurance benefits, it cannot be viewed that the occupational accident was a previous occupational accident until that time merely because the personality of the body and the fetus is separated by childbirth.

2) The recent development of medical technology leads to the expansion of cases where a fetus can undergo surgery and treatment even in the state of an embryo. If a fetus has undergone treatment, this is inevitable to view it as treatment for the mother’s body. Therefore, there is no obstacle to a pregnant female employee to claim medical care benefits. If a pregnant female employee cannot receive medical care benefits in a case where it is inevitable to postpone the treatment period for health damage of a fetus after the fetus’s birth for reasons of medical science and technology, it would result in a significant unreasonable consequence because the latter treats the latter more disadvantageous than the former, and is contrary to equity.

3) Medical care benefits under the Industrial Accident Insurance Act are the principle of spot benefit that receives medical care from an industrial accident insurance-related medical institution, and exceptionally, medical care expenses may be paid instead of medical care (Article 40(2)). Even if female workers are entitled to medical care benefits even after childbirth, it is evident that the content of such medical care benefits ought to be provided with medical care services for treating congenital diseases, etc. of a child born. Whether a claim for medical care benefits should be made and submitted after childbirth in the name of the mother female workers, or whether a female worker should be made and submitted in the name of the child, who is the child, or not, to be made and submitted in the name of the child, is an issue of operation of legal and technical systems. If a occupational accident, such as health damage of a fetus, caused by a pregnant female worker’s occupational accident, then the demand for medical care benefits after childbirth, cannot be justified for refusing to provide medical care benefits for congenital diseases, etc. of a child born.

4) In interpreting and applying the concept of occupational accidents under the Industrial Accident Insurance Act, denying entitlement to medical care benefits for the health damage of a fetus by deeming that the fetus during pregnancy of a female employee is in the entirety of the mother’s body, on the ground that the entitlement to medical care benefits is separated from the mother’s body after the female employee was given birth, is in violation of the legislative purpose of the Industrial Accident Insurance Act of the Republic of Korea that “the right to receive medical care benefits for the congenital health damage of the child born by compensating for occupational accidents promptly and fairly,” and that “the right to receive benefits for the protection of workers” is not properly guaranteed under Article 34(2) and (6) of the Constitution, and the obligation to protect motherhood under Article 32(4) of the Constitution is not fully implemented.

If the health of a pregnant female employee due to work causes damage to the health of the fetus, then it is reasonable to evaluate that there was an occupational accident under the Industrial Accident Insurance Act. However, whether the life of a pregnant female employee has been born, and thus, the previous legitimate evaluation of “the occurrence of an occupational accident” should undergo the “the occurrence of an occupational accident”? The beneficiary of medical care benefits can not be seen as having meaning and value to the extent that the provision of the Industrial Accident Insurance Act, which has already been duly assessed as an employee, has a meaning and value to circumvent the essence of “occupational accident that occurred to the plaintiffs who are workers,” which has already been duly assessed as an employee? It is not so long as the above detailed reasons are stated in detail. However, if taken place from the perspective of the defendant who affirmed the above question, it is not a typical aspect to consider the purport and spirit of the provision of the Constitution, which provides for special protection of women and women’s maternity, but rather, it is difficult to accept the legal opinion of the defendant rejecting the plaintiffs’s claim on the grounds that it is not a

D. Determination on the instant case

1) Examining the aforementioned facts in light of the aforementioned legal principles, if a congenital heart disease occurred to each fetus due to the Plaintiffs’ duties, who are pregnant female workers, it constitutes occupational accidents of workers under Article 5 subparag. 1 of the Industrial Accident Insurance Act. Since then, even if the mother body and fetus are separated from each other due to the birth of the Plaintiffs and the birth of a child with independent personality, the Plaintiffs shall not lose the entitlement to medical care benefits for the congenital heart disease of each child.

2) Nevertheless, the lower court determined that the instant refusal disposition was lawful, on the congenital disease of each child born, since the Plaintiffs cannot be a beneficiary of medical care benefits under the Industrial Accident Insurance Act. In so determining, the lower court erred by misapprehending the legal doctrine on “occupational Accidents” and “beneficiary of medical care benefits” under the Industrial Accident Insurance Act, thereby affecting the conclusion of the judgment. The allegation contained in the grounds

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)