Whether a request for examination and a request for reexamination must be made to file a revocation lawsuit against a decision on insurance benefits under the Industrial Accident Compensation Insurance Act (negative), and the period of filing a lawsuit where a revocation lawsuit is filed with only voluntary request for examination (negative)

According to the provisions of Articles 88(1), 90(1) and (3), and 94(2) of the Industrial Accident Compensation Insurance Act, a request for examination and a request for reexamination may be made with respect to the decision on insurance benefits. However, in case of a request for reexamination, a request for examination and a request for reexamination shall be made within the prescribed period from the date when the decision on insurance benefits is notified through the request for examination, and there is no legal basis to interpret that the decision on the insurance benefits should be made voluntarily. Thus, a person who is dissatisfied with the decision on the insurance benefits can immediately file a lawsuit for cancellation without the request for examination and a request for reexamination under the Industrial Accident Compensation Insurance Act, and a lawsuit for cancellation may be instituted arbitrarily only after the request for examination and a request for reexamination are made voluntarily, and if a lawsuit for cancellation is filed without voluntary request for examination, the period for filing a lawsuit for cancellation shall be calculated from the date when the decision on the request for examination is served in accordance with Article 20(1) of the Administrative Litigation Act.

Articles 88(1), 90(1) and (3), and 94(2) of the Industrial Accident Compensation Insurance Act; Article 20(1) of the Administrative Litigation Act

Supreme Court Decision 98Du2546 delivered on May 12, 1998 (Gong2001Ha, 2283) 200Du2662 Delivered on September 18, 2001

Plaintiff (Law Firm Samil General Law Office, Attorneys Song-hyeong et al., Counsel for plaintiff-appellant)

Korea Labor Welfare Corporation

Daegu High Court Decision 2001Nu2349 delivered on July 12, 2002

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

1. Regarding ground of appeal No. 1

According to the provisions of Articles 88(1), 90(1) and (3), and 94(2) of the Industrial Accident Compensation Insurance Act, a request for examination and a request for reexamination may be made with respect to the decision on insurance benefits: Provided, That in case of a request for reexamination, a request for examination and a request for reexamination must be made within the prescribed period from the date when the decision on insurance benefits is notified through the request for examination, and there is no legal basis to interpret that the decision on insurance benefits should be made voluntarily, and there is no longer a request for examination and a request for reexamination. Thus, a person who is dissatisfied with the decision on insurance benefits can immediately file a lawsuit without the request for examination and a request for reexamination under the Industrial Accident Compensation Insurance Act and can bring a lawsuit for cancellation immediately after the voluntary request for examination and a request for reexamination can bring a lawsuit for cancellation. Thus, in case of a lawsuit without voluntary request for examination, the period from the date when the decision on the request for reexamination is served pursuant to the provisions of Article 20(1) of the Administrative Litigation Act to the same purport shall be counted as the local Tax Act.

The court below determined that the plaintiff filed the lawsuit of this case within 90 days of the filing period under Article 20 (1) of the Administrative Litigation Act, counting from the date on which the plaintiff filed a request for review of the disposition of non-approval of medical care of this case and received notice of its decision. This is justifiable in accordance with the above legal principles, and there is no violation of law of incomplete deliberation or misapprehension of legal principles as alleged in the ground of appeal. Further, the precedents cited in the ground of appeal cannot be a different precedent

2. Regarding ground of appeal No. 2

The term "occupational accident" under Article 4 subparagraph 1 of the Industrial Accident Compensation Insurance Act refers to an occupational disease caused by the worker's occupational injury while performing his/her duties. Thus, there should be a causal relationship between the occupational disease and the disease. However, if the main cause of the disease is not directly related to the performance of his/her duties, but at least the occupational route or stress overlaps with the main cause of the disease and causes the disease, and causes or deteriorates the disease, the causal relationship between them should be deemed to exist. The causal relationship does not necessarily have to be proved clearly, but if it is presumed that there is a proximate causal relationship between the occupational disease and the disease when considering all circumstances, it shall be deemed that there is proof even if the basic disease or existing disease which can normally work is presumed to have caused the occupational accident, and it shall be included in the case where there is a proof that there is a sudden aggravation of the occupational accident beyond the natural progress speed. The existence of a causal relationship between the occupational disease and the disease shall be determined based on the health and physical condition of the worker concerned, and as long as the occupational accident, etc. causes the occupational accident, it shall not be seen (see Supreme Court Decision 200202.).

In full view of the Plaintiff’s age and reputation health status, work and living environment, details and degree of work, and the occurrence of the injury and disease of this case as shown in the facts acknowledged as above, the court below held that the injury and disease of this case in this case is an occupational accident as a disease in proximate causal relation with the business, even though the Plaintiff was out of the place of business and did not occur while performing his duties, since the Plaintiff was donated to his usual school by causing the act of donation on the wind that the Plaintiff accumulated in his usual school with a little symptoms, and thus the injury and disease of this case was caused together with his bicycle. Thus, the court below held that the injury and disease of this case in this case are a disease in proximate causal relation with his duties. It is just in accordance with the above legal principles, and there is no violation of the rules of evidence or misapprehension of legal principles as to occupational

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Seo-sung (Presiding Justice)