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

Korea Labor Welfare Corporation

July 7, 2009

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of non-approval of correction of average wages on February 12, 2009 and disposition of non-payment of the difference in the amount of insurance benefits shall be revoked.

1. Details of the disposition;

A. The Plaintiff was diagnosed with pneumoconiosis on July 8, 1987 (hereinafter “the injury and disease in this case”) and received a lump sum 4,120,460 won in disability compensation falling under class 11 of disability grade on March 25, 1988.

B. The Plaintiff’s injury or disease of this case was approved for additional medical care from July 11, 2008, and the Defendant calculated temporary disability compensation benefits on August 2, 2008 based on Article 56 of the Industrial Accident Compensation Insurance Act, Article 48 of the Enforcement Decree of the same Act, and Article 33(2) of the Enforcement Rule of the same Act, calculated on the basis of the average wage of the worker of the worker of the Taebag-si, who was engaged in the Plaintiff at the time of additional medical care, 79,676 won.

C. From July 11, 2008, the Plaintiff filed an application for correction of the average wage to the effect that the Defendant would be entitled to temporary disability compensation benefits based on the average wage calculated based on the average wage increase or decrease around March 25, 198 after receiving the determination of disability since the medical care was not re-treatment, but the first medical care was conducted. However, on February 12, 2009, the Defendant received medical care benefits and temporary disability compensation benefits for about five to seven days at the time of the precise diagnosis as of July 11, 2008, and accordingly, the Plaintiff’s application for re-treatment constitutes a lawful re-treatment. Furthermore, under Article 33(2) of the Enforcement Rule of the Industrial Accident Compensation Insurance Act, the Plaintiff’s application for re-treatment constitutes an additional medical care based on the average wage calculated based on the average wage increase or decrease, and accordingly, the Plaintiff’s application for re-treatment at the time of receiving the above additional medical care based on Article 56(1)6(2) of the Industrial Accident Compensation Insurance Act.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In accordance with Articles 32 through 39 of the Enforcement Rule of the Industrial Accident Compensation Insurance Act, medical care benefits for pneumoconiosis symptoms are determined in accordance with the application for medical care benefits to affected workers, request the Corporation to determine whether the medical institution is subject to a precise diagnosis, conduct a precise diagnosis, review the necessity and degree of disability for the pneumoconiosis review committee, and order of decision on insurance benefits. Thus, even if the Plaintiff was subject to a precise diagnosis for five to seven days for the determination of pneumoconiosis symptoms, this constitutes the first medical care for which the Plaintiff was receiving from July 11, 2008 because it does not fall under medical care benefits as prescribed in the above Rule, and thus constitutes the first medical care. Accordingly, the Defendant is obligated to pay the Plaintiff temporary disability compensation benefits on the basis of the average wage calculated by the increase or decrease of the average wage based on the average wage before March 25, 1988. Thus, the disposition of this case rejecting the Plaintiff’s application for correction of the above average wage and the claim for the difference in the amount thereof is unlawful.

(2) Furthermore, Article 48(1) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act and Article 33(2) of the Enforcement Rule of the same Act provide that a person who received disability benefits due to the previous pneumoconiosis shall apply for additional medical care. Thus, the above medical care starting from July 11, 2008 upon the Plaintiff’s application for disability benefits due to pneumoconiosis symptoms is subject to additional medical care. However, according to Article 51(1) of the Industrial Accident Compensation Insurance Act, which is a superior law, a person who received health care benefits, is allowed to receive additional medical care if the person becomes worse or aggravated after recovery. Article 48(2) of the same Act provides that the requirements and procedures for additional medical care shall not be included in the scope of the person who received disability benefits without receiving medical care, and thus, the above provision of the Enforcement Rule and the Enforcement Rule provide that a person who received additional medical care without being determined as unconstitutional by the Presidential Decree should receive medical care benefits based on the average wage before being determined as unconstitutional by the Defendant’s application for additional medical care without reasonable reasons.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Therefore, pursuant to Article 40(1), (2), and (4) of the Industrial Accident Compensation Insurance Act as to whether the Plaintiff undergone a precise diagnosis for five to seven days to determine pneumoconiosis as of 1987, 197, and 199 includes the scope of the medical care benefits, medical care benefits shall be paid in cases where a worker suffers from an injury or disease due to his/her occupational reason and can be treated for three or more days. The scope of the medical care benefits includes diagnosis and examination, treatment, surgery, other medical treatment, hospitalization, nursing, and delivery of medicine or other auxiliary devices, and other matters prescribed by the Ordinance of the Ministry of Labor. Thus, if the Plaintiff has undergone a precise diagnosis for diagnosis of pneumoconiosis, it shall be included in the scope of the medical care benefits under the above Act, and the Plaintiff’s assertion to the purport is without merit.

(2) Furthermore, Article 48(1) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that a person who received disability benefits with the above previous pneumoconiosis symptoms shall apply for additional medical care regardless of whether he/she had received the first medical care. As such, it is difficult to view that a person who received health care benefits under Article 40 of the Industrial Accident Compensation Insurance Act explicitly requires additional medical care at the time of receiving the above medical care benefits under the premise that he/she would suffer from an occupational injury or disease beyond the scope of delegation under Article 51(2) of the Industrial Accident Compensation Insurance Act, or would discriminate against a person who received disability benefits with pneumoconiosis without reasonable grounds. Thus, it is difficult to view that the person who received health care benefits under Article 40 of the Industrial Accident Compensation Insurance Act would have received additional medical care under the premise that he/she would have received additional medical care under the premise that the person would suffer from an occupational injury or disease even if he/she had not received such additional medical care under the premise that it would have been subject to aggravated or aggravated medical care. Accordingly, it is difficult to determine the requirements and procedures for additional medical care under the previous provision.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of legitimate disposition of this case is without merit, and it is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Full Order