2020Nu44826 The revocation of revocation of the non-payment of survivor's benefits and funerals

A

Attorney Gyeong-hwan et al., Counsel for the defendant

Korea Labor Welfare Corporation

Seoul Administrative Court Decision 2019Guhap53822 decided May 28, 2020

October 23, 2020

2020, 11, 27

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. On November 6, 2018, the defendant revoked the disposition of bereaved family benefits and funeral expenses against the plaintiff.

1. Details of the disposition;

A. From December 21, 2015, the network B (hereinafter referred to as “the network”) worked at a transportation team of C Co., Ltd. (hereinafter referred to as “instant place of business”) that runs the storage and loading of container cargoes, loading and unloading, packing, transportation business, etc., the network B (hereinafter referred to as “the network”) was in charge of the control and control of container transportation vehicles entering the container terminal in Incheon Port by allocating vehicles so that containers arriving at Incheon Port can be transported to their destination, allocating the location of container containers and the order of loading, etc. to the article.

B. On March 26, 2018, the Deceased was found to have worked at around 08:10 hours, and at around 10:30, which was two hours later, to have no consciousness in the rest room of the instant workplace. At the time when the 119 first aid unit was called, the state of respiratory suspension and heart stop had already been in the state of death at the time of the arrival of the hospital, which was sent to the hospital at around 11:18 on the same day, and the cause of the Deceased’s death was not revealed due to the bereaved family’s intention.

C. The Plaintiff, the deceased’s spouse, claimed for the payment of bereaved family’s benefits and funeral expenses to the Defendant. However, on November 6, 2018, the Defendant, following deliberation by the Committee for Determination of Occupational Diseases, did not have a sudden and difficult incident or a sudden change in the work environment within 24 hours before the deceased’s death. The fact that the work hours within one week prior to the death increased by at least 30% between the 12 weeks prior to the death (excluding one week prior to the death) and the 12 weeks prior to the death does not have to be verified. The short-term and chronic course objectively verified by the deceased was insufficient in the standards for recognition of occupational accidents, and it was difficult to find a proximate causal relation between the deceased’s death and the work. As such, the Defendant issued a disposition of the bereaved family’s benefits and the funeral’s non-land portion (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 6, Eul evidence 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the course of performing the duties on vehicles with an average of at least 30 vehicles per day under high blood pressure, etc., the Deceased was unable to continue to work for at least 40 up to 50 days, due to the characteristics of the duties, such as having real-time contact with persons related to the duties, Kakakao Akakao Stockholm, NANA and telephone. They also worked before and after their work and during their work hours, including holidays. During that process, mental stress was serious due to equitable dispatch of vehicles to guarantee monthly sales by the borrower, complaints and complaints by the borrower related thereto, as well as influences of the shippers demanding timely transportation. From six months prior to the employment of new employees, the increase of transportation vehicles, retirement of new employees, and relocation of employees, etc., the Deceased did not work for at least five days a day. Although the Deceased did not work for the above period, the Deceased continued to contact with the relevant persons during his or her work hours, and thus, his or her work aggravated due to mental stress or stress in the course of his or her work.

In this case, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order to be recognized as “the death caused by an occupational reason” under Article 5 subparag. 1 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 16273, Jan. 15, 2019), the pertinent death is caused by his/her occupational reason, and there is a proximate causal relation between his/her duties and accident. In such cases, the causal relation between his/her duties and accident should be proved by the party asserting it. Meanwhile, the existence of proximate causal relation between his/her duties and accident should be determined on the basis of the health and physical conditions of the relevant worker. The degree of proximate causal relation between his/her duties and accident should not be necessarily proved by direct evidence, but it is presumed that there is a proximate causal relation between his/her duties and accident. However, considering all circumstances, it is difficult to see Supreme Court Decision 2005Du75759, Jul. 25, 2002).

2) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 38, 39, and Eul evidence Nos. 2, the deceased was diagnosed with 185cm in height weight, 98km in July 4, 2011, mixed and mixent geological blood transfusions, purely high lephrosiss, and alcohol diseases on December 11, 2015. In addition, the deceased was suspected of high blood pressure on September 27, 2013 and November 28, 2016 as a result of each health examination, and the deceased was in need of treatment with geological blood transfusions. However, the deceased did not receive treatment for high blood pressure, etc. even after having received the aforementioned health examination results, and it appears that the deceased continued to have continued to undergo treatment for high blood pressure, etc. (electronic tobacco) before he/she died, and it appears that he/she did not have any risk that he/she suffers from blood pressure, high blood pressure, and alcohol-related disease.

3) However, in light of the above facts and the following facts or circumstances, the evidence mentioned above, Gap's evidence Nos. 10 through 14, 16, and 18 through 37, witness D's testimony, and the Emedical conference at the court of first instance, and the F's request for the appraisal of medical records against the head of the court of first instance, it is difficult to recognize that there was a proximate causal relation between the deceased's death and his work.

A) From around 2009, the Deceased was employed at the instant workplace as a person who had been engaged in the dispatch service at another workplace, and was in charge of the dispatch service at the instant workplace for at least two years from January 2, 2015. The duties of the Deceased were to transport containers at the container terminal in Incheon Port.

It seems that all processes until the container arrives at the destination, including the management of shower and freezing power plant, the management of the state of oil, the return of container, the management of the borrower's sales, and the management of the borrower's sales.

B) Although the Deceased worked at around 07:50 and retired from office before and after 18:00, the Deceased appears to have been in the process of performing duties, such as: (a) contact with the container shippers on the condition of container transport lines; (b) distribution of the container location, order of loading, etc. at their request; and (c) contact with the Borrower and the Kakaok Messenssen, cellular phone, etc. during the hours outside the service hours, including break time, break time, break time after and off; and (d) adjustment of the difference in the monthly sales of the Borrower to prevent any imbalance between the Borrower and the monthly sales.

It appears that considerable mental tension, severe stress, and stress were found. However, the deceased, who did not have a considerable experience in the dispatch duty, performed the dispatch duty without changing the duty for a long time, and it does not seem that there was a sudden and difficult incident or sudden change in the duties themselves around the time of death of the deceased.

C) The average working hours per week (including three days of maternity leave) before the deceased’s death were 20 hours in total, 18 minutes in total, 42 hours in total, 28 minutes in total, and 47 hours and 30 minutes in average working hours per week before the deceased’s death, and 47 hours and 30 minutes in average working hours per week before the deceased’s death, and even if the deceased’s death was excluded from the State with a maternity leave, the average working hours per week before the deceased’s death were 49 hours and 59 minutes in average working hours per week. This does not exceed the working hours assessed as much as the working hours are long as they are related to the work (amended by the Ministry of Employment and Labor No. 2017-117, Dec. 29, 2017).

D) Until September 6, 2017, the Deceased was employed by new employees G as assistant personnel and placed in the instant workplace, and was in charge of the vehicle operation until G voluntarily retires on January 6, 2018, and on March 13, 2018, he was in charge of the vehicle operation. In light of the fact that the instant workplace increased transport vehicles around the time of the recruitment of the Deceased, and that D and H are in charge of the vehicle operation of the Deceased after the Deceased’s death, it appears that the number of new employees increased before and after the replacement of the deceased. Meanwhile, it was difficult to view that there was a significant increase in the number of the deceased’s work hours or the number of employees before and after the deceased’s relocation, it was difficult to view that there was a significant increase in the number of the deceased’s work hours or the number of employees in relation to the deceased’s work hours when compared with the transport vehicle operation experience of up to 30 vehicles in the instant workplace.

E) The Deceased was given a maternity leave from March 21, 2018 to March 23, 2018, and on March 24, 2018, Saturdays fell under a regular leave of absence (e.g., on a day-to-day day), and did not work for five days from March 21, 2018 to March 25, 2018. Although the Deceased appears to have worked for several occasions with a driver or employee during the said period, it is difficult to view that the Deceased was in a state of excessive duties or mental tension immediately before the Deceased’s death.

F) The cause of death was written in the deceased’s death report, and the cause of death was not revealed because the autopsy was not conducted. Medical record appraisal also responded to the purport that it is difficult to presume the cause of death of the deceased, even though there is room for presumption of a sudden heart funeral due to sudden death in the situation where the deceased was not on credit, it is difficult to presume the cause of death solely by blood pressure and abnormal blood transfusion in the general health examination, and it is difficult to presume the cause of death of the deceased due to the lack of autopsy.

4) Therefore, the Defendant’s disposition of this case is legitimate, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just, the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge or assistant judge shall be appointed;

Judges Han Young-young

Judges Sung-ju

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.