[1] The case holding that it is not permissible to seek the difference between the legitimate insurance benefits and the insurance benefits actually received by an employee or the amount of temporary layoff benefits, in the absence of a decision on an increase in the average wage of Korea Labor Welfare Corporation or a decision on the temporary layoff

[2] The base point of time for calculating the average wage of various insurance benefits, such as temporary layoff benefits, paid during additional medical care

[3] The method of calculating the average wage when the date on which an injury or disease subject to additional medical care was confirmed by diagnosis for retired workers is calculated based on the cause for calculating the average wage

[1] Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007), Article 38 (see current Article 35) / [2] Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007; see current Article 5 subparagraph 2 of the Act); Article 38 (see current Article 35); Article 19 (see current Article 2 (1) 6 of the Act) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007); Article 4 subparagraph 2 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373 of Apr. 11, 2007; see current Article 4 subparagraph 2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (see current Article 5 subparagraph 2 of the Act); Article 30 subparagraph 12 of the former Enforcement Decree of the Labor Standards Act (see current Article 30 subparagraph 4)

[2] Supreme Court Decision 97Nu19755 delivered on October 23, 1998 (Gong1998Ha, 2788) / [3] Supreme Court Decision 2005Du2810 Delivered on April 26, 2007 (Gong2007Sang, 792)

Plaintiff (Law Firm Lee, Attorneys Song Byung-kin et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2004Nu17008 decided May 11, 2007

The part of the lower judgment against the Plaintiff regarding the period after December 5, 2000 among the disposition of return, such as the claim for temporary layoff benefits, against the Plaintiff on May 25, 2001, is reversed, and this part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

With respect to the insurance benefits under the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373, Apr. 11, 2007; hereinafter the same), the lower court determined that the payment claim of the amount of the insurance benefits in this case is unlawful, on the grounds that the insurance benefits under the former Industrial Accident Compensation Insurance Act (amended by Act No. 8373, Apr. 11, 2007; hereinafter the same) is not a specific claim, but a specific claim should take place only after the Defendant’s decision is made, rather than a specific claim that meets the requirements of the law, and that the increase or decrease of average wages should be deliberated and decided on the ordinary wage rate of the same worker in the occupational category at the time of the application of the beneficiary of the insurance benefits or when the Defendant deems it necessary.

In light of the records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the interest in litigation.

2. Regarding ground of appeal No. 2

After finding facts as stated in its reasoning, the lower court determined that the Plaintiff’s claim for lump-sum disability compensation benefits and the first additional medical care period expired all by prescription, and that the Defendant’s defense for the completion of extinctive prescription does not violate the good faith

In light of the records, the fact-finding and judgment of the court below is just, and there is no error in the misapprehension of legal principles as to extinctive prescription and good faith.

3. As to the fourth ground for appeal

Since additional medical care does not differ from the first medical care and its nature, except that the relevant injury or disease occurs after the medical care was terminated or that the relevant injury or disease occurred due to the relevant injury or disease, the standard point of time for calculating the average wage of various insurance benefits, such as temporary disability compensation benefits, etc. during the additional medical care, is "the date on which the injury or disease caused by the diagnosis becomes final and conclusive by the medical care" (see Supreme Court Decision 97Nu19755 delivered on October 23, 1998, etc.).

Meanwhile, Article 42 of the former Industrial Accident Compensation Insurance Act provides that if a worker suffers from a physical disability after treating an injury or disease due to his/her duty, his/her average wage shall be paid as a disability compensation annuity or lump-sum disability compensation annuity, and Article 4 subparagraph 2 of the same Act provides that the average wage under the Labor Standards Act refers to the average wage under the same. Article 19 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) provides that the average wage shall be calculated by dividing the total amount of wages paid to the worker during three months before the date of calculation, by the total number of days of the occurrence of the accident. Article 2(1) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 20142 of Jun. 29, 2007; hereinafter the same shall apply) provides that the average wage shall be calculated for the same period and reasons that the worker is excluded from the average wage for the same period of time as that of the worker’s first time during treatment.

Nevertheless, the court below determined otherwise that the average wage should be calculated by applying Article 38(3) of the Industrial Accident Compensation Insurance Act and Article 25(1) [Attachment Table 1] of the Enforcement Decree of the same Act, on the ground that the Plaintiff already retired on the date when the injury or disease subject to additional medical care was confirmed by the diagnosis. Thus, the court below erred by misapprehending the legal principles on the calculation of average wage, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, without determining the remaining grounds of appeal, the part of the judgment of the court below against the plaintiff as to the period after December 5, 2000 among the disposition of return, such as the claim for temporary layoff benefits, which the defendant made on May 25, 2001 against the plaintiff, shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal shall be dismissed. It is so decided as per Disposition by the assent

Justices Park Si-hwan (Presiding Justice)