[1] Where a new medical care begins due to a recurrence of an occupational injury or disease, which was the subject of the medical care benefits, after a considerable period of time after recovery of the occupational injury or disease, or the aggravation of the occupational injury or disease, which was the subject of the medical care benefits, the date on which the grounds for calculating

[2] In a case where Gap received medical care benefits by receiving a diagnosis of pneumoconiosis symptoms and receiving a lump-sum compensation for disability falling under class 11 of disability grade, and receiving new medical care benefits by obtaining approval for medical care due to a recurrence or aggravated pneumoconiosis after receiving a lump-sum compensation for disability falling under the disability grade 11, the case holding that the date of occurrence of the ground for calculating the average wage, which serves as the basis for calculating temporary disability compensation benefits

[1] Where a new medical care is commenced due to the recurrence or aggravation of an occupational injury or disease, which was the subject of medical care benefits, after a considerable period of time after recovery of the occupational injury or disease, which was the subject of medical care benefits, the diagnosis that the medical care needs to be provided should not be deemed to have been severed because it is not recognized in time and medical continuity with the examination, treatment, etc. of the disease, etc., which was the subject of medical care, and further, Article 56(1) of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”) provides that a person who received additional medical care should be paid the average wage at the time of receiving additional medical care, not at the time of the first medical care, based on the amount of wages at the time of the first medical care, not at the time of the first medical care, and the purport of Article 52(1)6 of the Enforcement Decree of the Labor Standards Act is to be based on the average wage so as to reflect the normal living wage of the worker in calculating temporary disability compensation benefits.

[2] The case holding that in a case where the Korea Workers' Compensation and Welfare Service rejected an application for correction of the average wage and a claim for the payment of difference in insurance benefits on March 25, 198, after receiving a lump-sum compensation for disability falling under Grade 11 of the disability grade while working in a remote workplace, and received medical care benefits upon obtaining approval for the medical care due to a recurrence or aggravated pneumoconiosis from July 11, 2008 (hereinafter "the medical care in this case"), the Korea Workers' Compensation and Welfare Service calculated Gap's temporary disability compensation benefits based on the average wage for the viewing street cleaners employed by Gap at the time of the medical care in this case, as the medical care in this case was not re-medical care, since the medical care in this case was the first medical care, it should be deemed that the medical care in this case would be the criteria for calculating the amount of temporary disability compensation benefits for the average wage for the period of employment in this case, which was calculated based on the average wage calculated based on an increase or decrease in the average wage around March 25, 1988.

[1] Article 5 subparag. 2 and Article 56(1) of the Industrial Accident Compensation Insurance Act, Article 2(1)6 of the Labor Standards Act, Article 52 of the Enforcement Decree of the Labor Standards Act / [2] Article 5 subparag. 2 and Article 56(1) of the Industrial Accident Compensation Insurance Act, Article 2(1)6 of the Labor Standards Act, Article 52 of the Enforcement Decree of the Labor Standards Act

Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

Seoul High Court Decision 2009Nu26076 decided May 4, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Various insurance benefits under the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”) shall be paid at the request of a beneficiary when a cause for accident compensation under the Labor Standards Act occurs. Under Article 5 subparag. 2 of the Industrial Accident Compensation Insurance Act, average wages as a basis for calculation thereof refers to average wages under the Labor Standards Act. Article 2(1)6 of the Labor Standards Act provides that average wages shall be calculated at the time when the cause for calculation occurred as of the date when the cause for accident occurred. Article 52 of the Enforcement Decree of the Labor Standards Act provides that average wages shall be the date when the cause for calculation thereof is determined as of the date when the accident causing death or injury occurred or the date when the disease becomes final and conclusive by diagnosis. Accordingly, the date when the cause for calculating the insurance benefits, such as temporary layoff benefits, etc., such as the date when the cause for calculating the insurance benefits, becomes final and conclusive,

Furthermore, in a case where a new medical care is commenced due to a recurrence or aggravation of an occupational injury or disease, which was an object of the insurance benefits, after a considerable period of time after recovery, the diagnosis that the medical care needs to be provided, shall be deemed to have been severed since it is not recognized for time and medical continuity between the examination, treatment, etc. of the disease, etc., which is the object of the insurance benefits, and the period of time and medicine. In addition, Article 56(1) of the Industrial Accident Compensation Act provides that a person who received the additional medical care shall calculate the average wage and pay the temporary disability compensation benefits based on the wages at the time of the additional medical care, not the initial medical care market price, and the purport of the aforementioned relevant provisions are based on the average wage so as to reflect the normal daily wage of the employee in calculating temporary disability compensation benefits. In full view of the purport of the aforementioned provisions, the occurrence of the ground for calculating the average wage, which serves as the basis for calculating the temporary disability compensation benefits paid for

2. According to the reasoning of the judgment below, the court below found that the plaintiff received lump sum payment of disability compensation falling under the disability grade No. 11 on July 8, 1987 after receiving the diagnosis of pneumoconiosis symptoms which are the disease disease of this case on July 8, 1987 while the plaintiff was working at a dust-free workplace, and that he received the medical care benefits of this case after obtaining the medical care approval from July 11, 2008. In calculating the plaintiff's temporary disability compensation benefits after July 11, 2008, the court below determined that it was just based on 79,676 won calculated based on the average wage of the worker of Taeba-si, who was working at the time of the medical care of this case, since the medical care of this case was not the additional medical care, the medical care of this case should be calculated at the time of calculating the average wage as of March 25, 1988.

In light of the above legal principles, even if the medical care benefits of this case were to be considered as additional medical care after July 11, 2008, as well as the first medical care as alleged by the plaintiff, even if 10 years have passed since the payment of disability benefits due to pneumoconiosis, and as a result, the date of occurrence of a ground for calculating the average wage, which is the basis for calculating temporary disability benefits to be paid for the period of non-employment due to the medical care of this case newly commenced due to recurrence or aggravation of pneumoconiosis which was the object of the insurance benefits, shall be deemed as July 11, 2008, which became final and conclusive that the pneumoconiosis symptoms that are the object of the medical care of this case newly

3. Meanwhile, under the premise that the date of occurrence of the ground for calculating the average wage, which serves as the basis for calculating temporary layoff benefits, differs from the date of the first disability determination rather than the date of commencement of the medical care in this case, the Plaintiff’s ground of appeal in this case, on the premise that the Plaintiff did not have received the original medical care benefits. Thus, even though the medical care in this case falls under the first medical care, Article 48(1) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act and Article 33(2) of the former Enforcement Rule of the Industrial Accident Compensation Insurance Act (amended by Ordinance of the Ministry of Employment and Labor, No. 8, Nov. 24, 2010), which stipulates that the person who received disability benefits due to pneumoconiosis symptoms, must apply for additional medical care, are unconstitutional. However, even if the medical care in this case is deemed as the first medical care in this case, the average wage for temporary layoff benefits paid on the basis

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)