2013Nu2414 Revocation of Disposition of Non-approval of Medical Care Benefits

A person shall be appointed.

Attorney ○-○, et al.

Korea Labor Welfare Corporation

Representative ○○○○

A litigation performer ○○, ○○○

Seoul Administrative Court Decision 2012Gudan20628 decided July 24, 2013

March 14, 2014

April 11, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of refusal to grant medical care to the Plaintiff on August 2, 2012 is revoked.

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

The order is as set forth in the text.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the overall purport of the arguments and videos as follows: Gap evidence 1, Gap evidence 2, Gap evidence 5, Gap evidence 7, Gap evidence 8, Gap evidence 9-1, 2, Gap evidence 10, Gap evidence 11-1, 2, 3, Eul evidence 1, Eul evidence 3, Eul evidence 5, Eul evidence 6, Eul evidence 12-2, and Eul evidence 12-4.

A. The Plaintiff’s form of work

① The Plaintiff, a inorganic contract worker belonging to ○○○ City, was in charge of the street cleaning duty for approximately approximately approximately approximately KRW 35,000 in the central Dong-dong, ○○ City. When the Plaintiff putting the collected garbage in an envelope while cleaning the street, the Plaintiff’s official vehicle in ○○ City collected it en bloc.

② The Plaintiff worked five day a week; the hours from 05:0 to 09:00; the hours of o’clock were 13:0 to 17:00; the hours of o’clock were 13:0 to 17:00; the places for meals and rest hours were not separately set.

③ The ○○○ City provided old containers to street cleanerss for use as an office and a rest room, and did not provide him with clothes, things, laundry facilities, etc., so street cleaners had no choice but to commute to and from their place of work without taking the contaminated cleaning clothes.

B. The plaintiff's attendance method

① The distance from the Plaintiff’s house to the nearest village bus stops is 696 meters and 1.33 km to the ordinary bus stops.

(2) The plaintiff's work at 05 A.M. commences at 00, so it is not possible to work at work using a bus.

③ The Plaintiff left a morning after completing his/her night work, and goes to work for the first time 13:0 p.m. to begin with 00 p.m., the Plaintiff is allowed to use the bus during this time period, but it is practically difficult to work using the bus due to his/her cleaning work that is not good, and that he/she has to attend cleaning tools such as brooms.

④ For the foregoing reasons, most of the street cleanerss, including the Plaintiff, commute to and from the workplace using a car, and some of them commute to and from the workplace by using a car or a foot. The ○○ City did not assign a separate work vehicle or a car to and from the street cleaners, and did not provide the oil cost.

⑤ The Plaintiff, after working at the cleaning place using the off-to-door, moved to the cleaning place, set up the off of the off-to-door and cleaning the surrounding area into the broom, and then putting garbage in the envelope and moving it to another cleaning place reported on the off-to-door.

(c) Accidents;

① On April 30, 2012: Around 20, the Plaintiff was diagnosed as a vehicle drilling accident (hereinafter referred to as “instant accident”) near the Home Stacker’s (hereinafter referred to as “the instant accident”) in the vicinity of the ○○○○ City Home Stack, while working at the central Dong office of ○○○○○ City on the part of his office. The Plaintiff was diagnosed as “the instant accident” (hereinafter referred to as “the instant accident”).

② At the time of the instant accident, cleaning tools, such as waste bags, brooms, and brooms, were loaded in the said brooms.

③ The Plaintiff’s choice as the attendance route for the instant accident site is the shortest route between the Plaintiff’s home and the workplace, and the Plaintiff was commuting to and from the workplace through this channel each day.

(d) Collective agreements, etc.;

According to the collective agreement concluded on November 7, 201, between the O market and the chairperson of the ○○○ City Trade Union Federation, all accidents at the time of members' commuting to and from work are dealt with in accordance with the Industrial Accident Compensation Insurance Act.

(e) Details of disposition;

The Plaintiff filed an application for medical care benefits against the injury or disease of the instant case with the Defendant, but the Defendant August 2012.

2. Non-approval of the instant injury and disease on the ground that it cannot be recognized as an occupational accident (hereinafter referred to as the "disposition of this case").

2. The assertion and judgment

A. The Plaintiff’s assertion 1) The instant accident occurred during commuting to and from work under the control and management of the employer.

As such, the instant disposition, which was made on a different premise, should be revoked in an unlawful manner.

2) Taking into account the equity with public officials, street cleaners entered into a collective agreement with ○○○ City to receive compensation under the Industrial Accident Compensation Insurance Act for commuting accidents. In that sense, the instant disposition should be revoked in an unlawful manner.

B. Relevant statutes

Article 5 (Definition) The terms used in this Act shall be defined as follows:

1. The term "occupational accident" means an injury, disease, disability or death of a worker caused by an occupational reason;

Article 37 (Standards for Recognition of Occupational Accidents) (1) Where a worker suffers an 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 relation between his/her duties and the accident:

1. An accident on duty. An accident which happens while to and from work under the control of the business owner, such as the use of a means of transportation provided by the business owner or any equivalent means of transportation;

The actual accounts shall be considered as an accident on duty under Article 37 (1) 1 (c) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act, if an accident occurred while a worker is commuting to and from work and meets all the following requirements:

1. An accident occurs while the business owner has used a means of transportation or a means of transportation deemed to have been provided for commuting;

2. It shall not be judged that the worker's right to manage or use the means of transportation used for commuting to and from work belongs to the exclusive authority of the worker.

1) Relevant legal principles

According to Article 37 (1) 1 (c) of the Industrial Accident Compensation Insurance Act, accidents that occur while commuting to and from work under the control and management of the business owner, such as the use of the means of transport provided by the business owner or other equivalent means of transport, etc.

However, in general, the business of commuting to and from work is a provision of labor.

Even if the workplace is in the workplace, as long as the method and route of commuting are reserved by the employee, the accident that occurred during the workplace cannot be caused by the occupational accident on the ground that the employee's choice of the workplace and the route is normal. However, if it can be deemed that the worker's commuting process is under the control and management of the employer, the accident that occurred during the workplace can also be caused by the occupational accident (see Supreme Court en banc Decision 2005Du12572 delivered on September 28, 2007).

On the other hand, the employer’s external appearance, including where the employee uses the means of transportation provided by the employer or allowing the employer to use the means of transportation corresponding thereto, appears to have been entrusted to the employee. However, it cannot be deemed that the employee actually reserved the means of commuting since there is no room for choosing the method of commuting to and from work due to the ordinary time of commuting to and from work, urgent handling of duties related to work or other characteristics of the workplace, etc. It cannot be deemed that the employee actually belonged to the employee. In a case where it is deemed that there is a close relationship between the accident and the work that occurred during the period of commuting to and from work, and the accident is closely related to the business under the employer’s control and management of the work (see, e.g., Supreme Court Decisions 2006Du2022, Mar. 27, 2008; 2010Du184, Apr. 29, 2010).

1. ① The ○○○ City did not provide the street cleaners with transportation convenience for commuting, and did not provide the shower room, shower room, clothes, things box, and laundry facilities. As such, street cleaners were forced to commute to and from their place of work without the contaminated cleaning uniform.

② As a result, most of the street cleaners belonging to ○○○ City commuting to and from a passenger car, and some of them commuting to and from the workplace by using a car, and these circumstances seem to have been well known to ○○ City.

③ The Plaintiff’s work begins at 05:00, so it is impossible to work using the bus, and even when working at 13:0 p.m. for the P. for the P.m. to begin from 00, it is practically difficult to work using the bus due to the Plaintiff’s attendance at the bus due to the Plaintiff’s cleaning clothes and attendance of cleaning tools such as brooms and fitnesss. Therefore, the Plaintiff has no room for any other choice than commuting to work by using brooms.

④ At the time of the instant accident, “the route that the Plaintiff selected as the attendance route at the time of the instant accident” was the lowest route between the Plaintiff’s home and the workplace, and the cleaning tool, such as a broom broom brooms, was in place in the offland.

⑤ Considering that the Plaintiff’s use of any means of public transportation (buses) other than off-to-air for working at work in the P.M., it is unreasonable to expect the Plaintiff to select other means of attendance, not only than off-to-air, at the time of the instant accident, in light of social norms, in light of the fact that the Plaintiff would inflict damage on neighboring passengers due to contaminated cleaning clothes, etc., and that the Plaintiff should also bear physical water and water that should transport heavy rainwaters and cleaning tools, such as health straws, etc.

6) The Plaintiff, with a wide cleaning area, moved to a cleaning place using Obaba, set up an Obaba, clean the surrounding area with brooms, and then, it was necessary for the Plaintiff to work on board the Obaba on duty as it was used to put garbage in an envelope and move it to another cleaning place.

3) Therefore, the Defendant’s disposition of this case is unlawful on the premise that the injury or disease of this case is not an occupational accident. Therefore, the Defendant’s disposition of this case must be revoked without having to examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim of this case.

The presiding judge Kim Jong-soo

Judges Nown Korea

Judge Lee Ro-man