Plaintiff 1 and three others (Attorneys Shin Young-hun et al., Counsel for the plaintiff-appellant)

Korea Workers' Compensation and Welfare Service (Law Firm, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for defendant-appellant

April 20, 2016

Seoul Administrative Court Decision 2014Gudan50654 decided December 19, 2014

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

On November 6, 2013, the Defendant’s disposition of the medical care benefit site payment against the Plaintiffs is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasons for the judgment of the court of first instance (from 8 to 4 pages). Thus, it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the second rejection disposition is legitimate.

The court's explanation on this part is as stated in the judgment of the court of first instance, except where the corresponding part of the reasoning of the judgment of the court of first instance (paragraph (2) is used as follows. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ 7.3 by inserting the following information:

【The Industrial Accident Insurance Act provides that even if the Plaintiffs’ children are entitled to industrial accident insurance benefits, only the beneficiaries of the industrial accident insurance benefits shall have the right to claim, so it cannot be interpreted separately from the beneficiaries of the insurance benefits and the claimant. Therefore, the Plaintiffs’ claims are without merit.】

○ From the bottom of the 10th to the bottom of the 38th parallel to the 8th parallel shall be as follows:

(B) Although the defendant explicitly states the grounds for the second rejection disposition as the "in-depth submission of industrial accident compensation insurance," the aforementioned evidence and the following circumstances revealed by the facts acknowledged earlier, the grounds for the second rejection disposition shall be deemed not to constitute occupational accidents against the plaintiffs under the Industrial Accident Compensation Insurance Act, such as the grounds for the first rejection disposition.

① The reason for the second rejection disposition is that the disease of an employee as well as his/her child is not included in occupational accidents under the Industrial Accident Insurance Act. The reason for the second rejection disposition is that the plaintiffs' first rejection disposition cannot be confirmed along with the submission of the first rejection order. This can be seen as requiring the submission of the first rejection order by workers as materials for the determination of the reason for the second rejection disposition, which is based on the premise that only the disease of the worker himself/herself constitutes occupational accidents. Therefore, the reason for the second rejection disposition is merely a matter of non-submission of the first rejection disposition within the scope of the ground for the first rejection disposition, and therefore, it is not different from the ground for the first rejection disposition.

② Article 79(1) of the Enforcement Rule provides that “The form of a report, application, notification, and statement of payment necessary for the enforcement of the Act, the Decree, and this Rule shall be determined by the Service after obtaining approval from the Minister of Employment and Labor.” Accordingly, the Defendant’s provision on medical care handling affairs shall provide that “when a worker intends to first apply for medical care benefits, he/she shall have the worker file an application for medical care benefits specified in attached Form 2 with the applicant for medical care benefits specified in attached Form 3 attached hereto.” The aforementioned attached Form 2 provides that “An application for medical care benefits and temporary disability compensation benefits” and attached Form 3 provides that “an application for medical care benefits and temporary disability compensation benefits” are “an application for industrial accident compensation benefits and industrial accident compensation benefits” and the attached Form 3 provides that “one copy of the first medical care benefits and temporary disability compensation benefits” shall be deemed to be “disaster,” and the form of the application for medical care benefits and temporary disability compensation benefits, such as the name, resident registration number, and the date of disaster.” The Defendant’s submission of personal information, including the above and his/her children, can be viewed.

③ The Defendant asserts in the instant lawsuit that “the Plaintiff did not submit his first diagnosis, and the diseases inflicted upon the Plaintiffs’ children are not included in the scope of compensation under the Industrial Accident Insurance Act, and since the Plaintiffs’ names are impossible to confirm, the second rejection disposition is legitimate on the ground that the Plaintiffs’ second rejection disposition is not submitted.” As such, the Defendant also acknowledges that the second rejection disposition is based on the premise that the grounds for the second rejection disposition are basically the same as the grounds for the second rejection disposition, and that the second rejection disposition is based on the second rejection disposition, the second rejection disposition is based on the second rejection disposition.

④ The Plaintiff also asserts that the grounds for the second rejection disposition are the same as the grounds for the second rejection disposition, since the Plaintiff did not explicitly state the grounds for the second rejection disposition, but repeats the same as the grounds for the first rejection disposition in the instant lawsuit.

⑤ Furthermore, even if the Defendant’s claim that a disease that occurred to an employee’s child is not included in the scope of compensation under the Industrial Accident Insurance Act is an addition or modification of the original reason for disposition, the ground for disposition such as “the claimant’s failure to verify the name of the injury or disease caused by failure to submit a written opinion of the first diagnosis and the period of medical care,” is naturally premised on the ground for disposition that “the disease of a child who is not the employee himself/herself does not constitute an occupational accident under the Industrial Accident Insurance Act.” Therefore, the specific factual basis prior to the legal evaluation of the

(6) Meanwhile, Article 1 of the Industrial Accident Insurance Act aims to contribute to the protection of workers by compensating for the "worker's accident" promptly and fairly, and Article 5 subparagraph 1 of the same Act provides that "the injury, disease, disability, or death of an employee caused by any occupational reason" is "the injury, disease, disability, or death of an employee" and thus, an occupational accident under the Industrial Accident Insurance Act is premised on the premise that an employee himself/herself is related to an occupational accident. Therefore, the reason for the disposition that the disease of a child who is not an employee does not constitute an occupational accident under the Industrial Accident Insurance Act is naturally premised on the premise that the occupational accident under

(3) Issues and the subject of the hearing and determination

As long as the grounds for the second refusal disposition can be seen as “the disease of a child who is not the employee himself/herself does not constitute an occupational accident against the Plaintiffs under the Industrial Accident Insurance Act,” the issues of the instant case are whether the disease of a female worker, when the female worker was exposed to harmful factors during pregnancy and gave birth to a congenital heart disease, may be included in the occupational accident of the employee himself/herself under the Industrial Accident Insurance Act, and whether there exists a proximate causal relationship between the congenital heart disease of the individual child and the work of the Plaintiffs. The latter assumes the premise that the judgment on the former is positive, and thus, the latter is examined with respect

Furthermore, the defendant, even if the right to receive the industrial accident insurance benefits from the plaintiffs' children is not separated from the beneficiary and claimant under the interpretation of the Industrial Accident Insurance Act, so it is argued that there is no insurance benefit claim against the plaintiffs, and therefore, it is possible to add the reason for such disposition and its legitimacy are examined.

D. Whether the congenital disease of a child born constitutes an occupational accident of the worker himself/herself

(1) Legal nature of entitlement to industrial accident insurance and provision of the Industrial Accident Insurance Act

(1) The entitlement to industrial accident insurance benefits is actively demanding payment to the State, so it cannot be realized only by the constitutional provisions, and needs to be formed by law. In other words, the requirements for receiving industrial accident insurance benefits, the scope of the beneficiary, amount of benefits, etc., which are the specific contents of entitlement to industrial accident insurance benefits, shall be determined only by law. The Industrial Accident Insurance Act specifically provides for the contents of insurance benefits in Chapter III, provides that insurance benefits shall be provided for the injury, disease, physical disability, death, etc. of workers, and provides for beneficiaries of the insurance benefits, calculation criteria, and payment timing, etc. Accordingly, the entitlement to industrial accident insurance benefits is the right that is specifically formed by law (see, e.g., Constitutional Court en banc Decision 2002Hun-Ba52, Nov.

(2) According to the Industrial Accident Insurance Act, insurance benefits include medical care benefits, temporary disability compensation benefits, disability benefits, nursing benefits, survivor's benefits, injury-disease compensation annuities, funeral expenses, vocational rehabilitation benefits, etc., and all of the remaining insurance benefits except for double survivors' benefits and funeral expenses, pneumoconiosis survivors' annuities are workers injured or suffering from a disease due to occupational reasons (Articles 40(1), 52, 57(1), 61(1), 66(1), 72(1), and 91-2), survivors' benefits and funeral expenses, and pneumoconiosis survivors' annuities are survivors (Articles 62(1), 71(1), and 91-4(1)).

(3) Therefore, a beneficiary of industrial accident insurance benefits is limited to a person himself/herself who suffers from an injury or disease due to any reason related to his/her duties and dies due to any reason related to duties.

(2) The relationship between the congenital disease of a child born and the worker's occupational accident

In full view of the legal nature of the right to receive industrial accident insurance benefits as seen earlier and the provisions of the Industrial Accident Insurance Act, the congenital disease of a child born due to the health damage of a fetus caused by a female employee’s occupational reason cannot be deemed as an occupational accident of the employee himself/herself.

(1) The specific content of entitlement to industrial accident insurance benefits is finalized only by the Industrial Accident Insurance Act, except in cases where the Industrial Accident Insurance Act provides that a female worker himself/herself shall be a beneficiary of insurance benefits, as long as the entitlement to insurance benefits is limited to the person himself/herself who suffers from an injury or disease due to occupational reasons with respect to a beneficiary of insurance benefits, even if the fetus is deemed an insured accident due to harmful factors to the extent that it may cause an occupational disease to female workers, such female worker shall not be deemed a beneficiary of insurance benefits after the childbirth.

② In this case, when the Industrial Accident Insurance Act does not recognize a female worker himself/herself as a beneficiary of insurance benefits, and furthermore, when the concept of occupational accident excludes the damage to health of an embryo caused by his/her occupational accident, or even though it is included in an insured accident, if the fetus or the child who given birth does not grant a beneficiary of insurance benefits to the fetus or the child who given birth to the insurance accident, the discrimination against the pregnant female worker and the fetus without any reasonable ground, and thus, may be in violation of the principle of equality under the Constitution, and thus, it does not constitute a violation of the principle of equality under the Constitution or a violation of the State’s duty to protect maternity and to promote social security and social welfare.

③ The Plaintiffs’ assertion is that the fetus’s health damage of the fetus as a body of the mother and a single body is a disease of the mother’s body, and that the application of the Industrial Accident Insurance Act is at the time of the outbreak of the disease to an employee, so even if the fetus lost its status as an employee after the outbreak of the disease, the industrial accident insurance shall continue to apply even if the fetus lost its status. According to the above assertion, when the fetus was treated as a disease of the mother’s body at the time of the occurrence of health damage to the fetus, but becomes a unique congenital disease of the baby due to childbirth, even if the fetus lost congenital disease of the mother’s body due to childbirth, even if the fetus lost her status as an employee, it cannot be changed to that of an occupational accident at the time of the fetus’s loss of the mother’s body and the fetus’s separation of the mother’s fetus, and thus, the disease of a child born still falls under an occupational accident under the Industrial Accident Insurance Act.

④ Furthermore, the position to view the damage to health caused by the fetus as an occupational accident by considering it as a disease of the mother’s body is logical, including the reason that the fetus and the mother’s body are single body, and so long as the mother’s body and the child are separated from the mother’s body due to childbirth, the occupational accident should also be regarded as about the child of childbirth. If the Industrial Accident Insurance Act provides that the injured or the worker who suffered from a disease can claim medical care benefits due to an occupational reason, it shall be interpreted that the right to receive insurance benefits can be acknowledged to a child who is not the Plaintiffs even if it is based on the aforementioned logic, as alleged earlier by the Plaintiffs, and it cannot be said

⑤ In the case of miscarriage and miscarriage, there is an aspect that may cause the reduction of working ability by impairing the physical integrity of female workers themselves, whereas the delivery of a child suffering from congenital disease, including the health damage of a fetus, may be deemed to have no particular impact on the reduction of the physical function or labor capacity of female workers themselves. In light of this, in the case where a pregnant female worker suffers from a “recretion” or “recretion” due to his/her work, and where a pregnant female worker gives birth to a child with a congenital disease, including health damage caused by his/her work, based on the injury to the fetus, it is essentially different in terms of the infringement of the completeness of the female worker’s body and the recovery thereof, and it is difficult to view that the childbirth itself of a general female worker is based on occupational cause, and it is difficult to regard that the beneficiary of insurance benefits is a female worker, and it is not a discrimination without reasonable grounds,

E. Whether the grounds for the disposition against the beneficiary and claimant are added and the grounds are legitimate

(1) Whether it is possible to add the reasons for the disposition

As seen earlier, the grounds for the second refusal disposition are premised on the premise that “the disease of a child who is not an employee himself/herself does not fall under an occupational accident under the Industrial Accident Insurance Act,” and this is based on the premise that the Plaintiffs are the claimant for industrial accident insurance benefits. The disease of the Plaintiffs’ children, which is the grounds for the second refusal, is not an occupational accident of the Plaintiffs under the Industrial Accident Insurance Act, and under the premise that there is no right to receive industrial accident insurance benefits for the diseases of children, the Plaintiffs’ children, who are the grounds for new addition, cannot be separated from the beneficiaries of the insurance benefits and the claimant for the insurance benefits, and thus, the grounds for the second refusal disposition are based on the premise that there

(2) Whether the new grounds for disposition are lawful

The Industrial Accident Insurance Act provides that “The right to receive insurance benefits shall be paid at the request of a person who is entitled to receive the insurance benefits (hereinafter referred to as “beneficiary”), and “the right to receive the insurance benefits shall not be transferred, seized, or offered as a security” (Article 88(2)). As such, the Industrial Accident Insurance Act provides that a beneficiary of the insurance benefits shall also belong to the beneficiary of the insurance benefits, and that the right to receive the insurance benefits shall be protected as an exclusive right that cannot be disposed of by transfer, etc., and that the right to receive the insurance benefits shall be prevented if the beneficiary and the claimant are separated from the beneficiary of the insurance benefits under the Industrial Accident Insurance Act, and thus, the possibility of occurrence shall be prevented if the beneficiary and the claimant are unable to receive the insurance benefits, etc.

As seen earlier, a beneficiary of industrial accident insurance benefits shall be bereaved family members in cases where a female worker dies due to occupational reason or dies due to pneumoconiosis while limited to a female worker himself/herself due to occupational reason. Furthermore, apart from whether a congenital disease of a child born due to a harmful factor to the extent that it may cause occupational disease is only the disease of a child and is not the disease of the mother, and at least the mother does not have the right to receive insurance benefits for the child. As seen earlier, as seen earlier, there is no independent personality as the mother at the time of diagnosis of disability of the formation of the heart caused by the Plaintiffs’ fetus, so the heart disease of a fetus belongs to the mother, so long as the fetus has given birth to a child with a congenital heart disease as an occupational accident for the mother, the time of the claim for medical care benefits and the time of the claim for medical care benefits, and thus, the right to claim medical care benefits shall not be accepted for the mother, as long as there is no additional claim for insurance benefits against the Plaintiffs’ child's occupational disease.

○ From 40, 12 to 41 under the bottom to 5 of the relevant Acts and subordinate statutes, "in addition to the relevant Acts and subordinate statutes" shall be added to the Industrial Accident Compensation Insurance Act.

3. Conclusion

Since the second rejection disposition of this case is legitimate, it is necessary to dismiss the plaintiffs' claims, and the first instance court's decision is unfair as it has different conclusions, so the judgment of the first instance is revoked and all of the plaintiffs' claims are dismissed.

[Attachment]

Judges Kim Yong-open (Presiding Justice)