Plaintiff (Attorney Lee Jong-hoon, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

April 20, 2010

Seoul Administrative Court Decision 2009Gudan4039 decided August 18, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's rejection of correction of average wages and the disposition of the difference in the amount of the insurance benefits paid by the plaintiff on February 12, 2009 shall be revoked.

1. Reasons for the disposition and the plaintiff's assertion

This Court's explanation is the same as the statement of the reasons for the decision of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Relevant statutes;

As shown in the attached Form.

3. Determination

A. First, we examine the assertion that there is no room for the Plaintiff to receive medical care benefits before July 11, 2008, since the medical care received from this time is the first medical care, and there is no room for the Plaintiff to receive medical care.

According to Article 40(1), (2), and (4) of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Compensation Insurance Act”), medical care benefits shall be paid in cases where a worker suffers from an injury or disease due to an occupational reason and can be treated for at least three days. In principle, medical care benefits shall be provided in an industrial accident insurance-related medical institution for medical care. However, if it is inevitable, medical care benefits may be provided in lieu of medical care. The scope of medical care benefits include diagnosis and examination, treatment and operation, other medical care, rehabilitation treatment, hospitalization, nursing, nursing, and delivery, and other matters prescribed by Ordinance of the Ministry of Labor.

However, according to the evidence Nos. 2, 4-1, 2, and 6 of the evidence Nos. 4-1, 4-2, and 6, the plaintiff received a diagnosis of a disease subject to insurance benefits under the Industrial Accident Compensation Act on July 8, 1987 due to the disease of this case, and received a lump-sum disability compensation on March 25, 198, and the plaintiff had received a lump-sum disability compensation payment on March 24, 197 due to the disease of this case, from March 24, 1997 to March 29 of the same month, and from March 15, 1999 to March 20 of the same month, from the Industrial Accident Compensation Act, at least two days after being hospitalized at the Central Hospital, which is an industrial accident medical institution, and received a close diagnosis. Thus, the plaintiff's assertion is without merit.

In addition, as seen below (B)(3), the issue is when the date of occurrence of the cause for payment of average wages, which serve as the basis for calculating temporary layoff benefits paid for health care benefits after July 11, 2008, and it cannot be said that whether the person received health care benefits before July 11, 2008, directly affects the calculation of average wages. Thus, in this regard, the plaintiff's allegation disputing the illegality of the disposition of this case for the above reason is without merit.

B. Furthermore, the argument that a person who received disability benefits due to the previous pneumoconiosis is unconstitutional because the part inside each of the overall subparagraphs of Article 48(1) of the Enforcement Decree of the Industrial Accident Compensation Act and Article 33(2) of the Enforcement Rule of the same Act, which provides that the person who received disability benefits shall apply for additional medical care regardless of whether he/she received the first medical care, deviates from the delegation scope of the mother law, or is discriminated against the person who received disability benefits without temporary disability benefits and thereby receiving a more temporary suspension payment than the first medical care, thereby violating the equality principle under the Constitution and infringing on the

(1) Article 51(1) and (2) of the Industrial Accident Compensation Act (hereinafter “instant provision”) provides that if there is a medical opinion that a person who received medical care benefits under Article 40 of the said Act suffers from a recurrence of an occupational injury or disease, which was the subject of medical care after recovery, or becomes worse than at the time of recovery and thus active treatment is needed, he/she may receive additional medical care. Necessary matters concerning the requirements, procedures, etc. for additional medical care are prescribed by Presidential Decree. This does not directly stipulate the additional medical care of the recipient of disability benefits.

The provision of this case is prescribed in order to provide medical care benefits again in cases where active treatment is deemed necessary due to the recurrence or aggravation of occupational injury or disease, which was the object of medical care, even if the medical care was cured due to occupational injury or disease.

However, medical care benefits are provided when there is a possibility of cure after injury or disease. Here, treatment means that injury or disease is completely cured or the effect of treatment is no longer expected, and the symptoms thereof becomes fixed (see Article 5 subparag. 4 of the Industrial Accident Compensation Act). Thus, treatment is no longer possible if symptoms are fixed, and treatment is excluded from the subject of medical care benefits due to the completion of treatment (see Supreme Court Decision 2009Du7332, Sept. 10, 2009). Thus, given that disability benefits are subject to disability benefits (see Article 57 of the Industrial Accident Compensation Act) depending on the degree of disability in a fixed state of symptoms (see Supreme Court Decision 2009Du732, Sept. 10, 2009). Therefore, even if a recipient of medical care benefits received disability benefits without receiving the previous medical care benefits, it is difficult to view it as a new medical care benefits for which new medical care benefits have been provided for more than the first time after the payment of disability benefits, and it is also difficult to view it as one of modern medical care or additional medical care.

In addition, the additional medical care under the Industrial Accident Compensation Act does not differ from the first medical care and its nature, except that the medical care is provided for a recurrence after the completion of the medical care, or for a merger certificate due to the relevant injury or disease (see Supreme Court Decision 2002Du1762, Apr. 26, 2002, etc.). Therefore, it should be deemed that the medical care is not practically disadvantaged solely on the ground that the medical care is provided without the first medical care.

Furthermore, if the relevant provisions of the Industrial Accident Compensation Insurance Act provide the criteria for disability grade under the Enforcement Rule of the Industrial Accident Compensation Act, unlike other ordinary diseases, the pneumoconiosis is completely cured or cannot be expected to have the effect of treatment, and thus, it does not require the payment of disability benefits according to the relevant disability grade. The pertinent provisions of the Industrial Accident Compensation Insurance Act provide that disability benefits shall be paid immediately, considering the characteristics of pneumoconiosis symptoms, to promote the welfare of pneumoconiosis workers (see Supreme Court Decision 98Du5149, Jun. 22, 1999). Thus, if a person entitled to insurance benefits pursuant to the Industrial Accident Compensation Insurance Act becomes entitled to insurance benefits pursuant to the Industrial Accident Compensation Act after receiving diagnosis of pneumoconiosis symptoms, the need for active treatment by permitting additional medical care is greater than that of other ordinary injury and disease.

In full view of these circumstances, the provision of this case provides medical care benefits to the effect that “if an occupational injury or disease subject to the medical care becomes worse or worse than the time of recovery,” it cannot be interpreted as allowing additional medical care only to the previous person who has received temporary disability compensation benefits. Therefore, the term “person who received the medical care benefits” under the provision of this case refers to “a person who has actually completed the medical care after the commencement of the insurance benefits.” As such, the term “a person who actually received the medical care benefits” refers to not only a person who has actually received the medical care benefits but also a person who has completed the medical care benefits under the Industrial Accident Compensation Act, i.e., a person who has received the medical care benefits, as well as a person who has actually received the medical care benefits, can receive the medical care benefits due to the occupational injury or disease, but it is reasonable to interpret that the medical care benefits can be included in the person who has already been recovered or deemed to have been treated as unlawful or equivalent.

Therefore, Article 48(1) of the Enforcement Decree of the Industrial Accident Act provides the requirements and procedures for re-medical care as delegated by the provision of this case. Article 48(1) provides that when receiving medical care benefits for occupational injury or disease, the re-medical care is recognized as the case that falls under each of the following subparagraphs. Meanwhile, even in the case of injury or disease receiving disability benefits without receiving medical care benefits, disability benefits shall be deemed as medical care benefits and thus, Article 33(1) of the Enforcement Rule of the Industrial Accident Compensation Act provides that when determining the application for medical care benefits for pneumoconiosis symptoms, a person who received medical care benefits or disability benefits due to previous pneumoconiosis under Article 33(2) of the Enforcement Rule of the Industrial Accident Compensation Act can apply for re-medical care (hereinafter collectively referred to as the “Enforcement Decree of this case, etc.”), it is clearly meaningful that the person who received disability benefits without medical care benefits and the person who received such benefits and the person who suffers from pneumoconiosis should be given an opportunity for medical care by allowing re-medical care.

Therefore, it is reasonable to see that the Enforcement Decree of this case, etc. provides for the requirements for additional medical care within the legislative intent and delegation scope of the provision of this case, and it cannot be said that there is a provision contrary to equity that discriminates against the recipient of the medical care benefits and the recipient of the disability benefits

(2) (A) Meanwhile, Article 56(1) of the Industrial Accident Compensation Act provides that a person who is subject to additional medical care shall be paid temporary disability compensation benefits by calculating the average wage on the basis of the wage at the time of the additional medical care. In the event of receiving additional medical care, there are many changes in the average wage at the time of providing the work causing the injury or disease, and thus, there is a difference in the case of receiving the first medical care.

(B) However, the average wage, which is the basis for calculating various insurance benefits under the Industrial Accident Compensation Act, refers to the average wage under the Labor Standards Act (Article 5 subparagraph 2 of the Industrial Accident Compensation Act), and the average wage is calculated at the point of time as of the day when the ground for calculating the amount occurred (Article 19 (1) of the Labor Standards Act). In the event of accident compensation, the day when the cause for calculating the amount occurred is the day when the accident which is the cause of ideas occurred or the day when the disease was determined by diagnosis (Article 52

Accordingly, the base point of time for calculating the average wage, which is the basis of the insurance benefits, such as temporary layoff benefits paid due to an occupational accident, is "the date on which an accident causing the occupational accident, or the date on which the disease becomes final and conclusive by the diagnosis."

Meanwhile, in the event that the pertinent injury or disease occurs after the medical care has been terminated or the additional medical care has been provided to the relevant injury or disease, the base point for calculating the average wage of various insurance benefits, such as temporary disability compensation benefits, etc. paid for the period of the additional medical care, should be interpreted as the date on which the cause occurs, i.e., the date on which the symptoms have been fixed and the date on which the injury or disease subject to the additional medical care has become final and conclusive by the diagnosis (see Supreme Court Decision 97Nu19755 delivered on October 23, 198).

“Temporary disability compensation benefits” under Article 52 of the Industrial Accident Compensation Insurance Act refer, in essence, to a worker who suffers from an injury or a disease due to occupational reasons, to a “period during which he/she is unable to obtain wages because he/she was unable to provide his/her labor due to medical care due to occupational injury.” As such, the term “period during which he/she was unable to obtain wages” refers to the period during which he/she was unable to receive wages due to occupational injury. Thus, when calculating the average wages, the amount of wages that could have been received during the period of suspension of business corresponding to the relevant calculation grounds shall be the standard for the amount of wages that could have been received, and even in cases of additional medical care, the calculation based on the average wages that he/she

In addition, since the wage at the workplace employed at the time of the re-medical care is expected to exceed the amount calculated through an increase or decrease in the average wage at the time of a disaster, calculating based on the wage at the time of the re-medical care cannot be deemed to be disadvantageous to the affected worker. Furthermore, even if the wage at the time of the re-medical care is less than the amount of the pre-medical care, given that the injury or disease was already paid prior to the re-medical care and received compensation based on the degree of injury or disease, unlike the case of the medical care at the time of a disaster, it cannot be deemed to be a discrimination without reasonable

Therefore, Article 56(1) of the Industrial Accident Compensation Insurance Act provides that the average wage shall be calculated on the basis of the wage at the time of such additional medical care, and further, Article 52 of the Enforcement Decree of the Industrial Accident Compensation Act provides that the date of occurrence of the cause for calculating the average wage shall be “the date of receiving a diagnosis that requires additional medical care for the injury or disease subject to additional medical care” as the date of occurrence of the cause for calculating the average wage, is reflected in the previous interpretation in the legislation, taking into account the nature of such temporary disability compensation benefits

(C) In addition, unlike other general injury and disease cases, the payment of disability benefits pursuant to the pertinent disability grade is immediately made without requiring a fixed condition of symptoms, unlike other injury and disease cases. However, in a case where a new cause for payment of health care benefit occurs after the payment of disability benefits, the calculation of average wage is unreasonable or contrary to equity, based on the date when such cause for payment occurred.

In other words, when suffering from pneumoconiosis and the type of pneumoconiosis under attached Table 4 of the Enforcement Decree of the Industrial Accident Compensation Act is equal to or greater than Type 1, if medical care is deemed necessary as it falls under any of the causes prescribed in each subparagraph of Article 35(3) of the Enforcement Decree of the Industrial Accident Compensation Act (including where there is an infectious disease, such as pulmonary tuberculosis, due to a combination of pneumoconiosis, or where there is a high-level disability under attached Table 4 in cardiopulmonary function). In this case, given that the date when the disease or symptoms being the subject of the medical care becomes final and conclusive after the occurrence of the cause for the medical care benefits, it is reasonable to calculate the average wage on the basis of the date of the first diagnosis if it becomes final and conclusive after the payment of disability compensation. Furthermore, even if medical care benefits are provided after the payment of disability compensation, if the cause for the payment of the medical care benefits is caused by the first diagnosis of pneumoconiosis that became the cause for the payment of disability compensation, the average wage will be calculated on the basis of

As such, as long as the average wage can be calculated on the basis of the fixed date pursuant to the general principle on the date of occurrence of a cause for calculating the average wage in cases of pneumoconiosis pursuant to the requirements for medical care benefits under the Industrial Accident Compensation Act, as long as the payment of disability benefits after disability benefits is the first medical care or the second medical care, the Plaintiff’s assertion that the Enforcement Decree of this case, etc. is inconsistent with the provisions of Article 56 of the Industrial Accident Compensation Act, thereby going against the equity in calculating the average wage and causing infringement of the people’s property rights is rejected.

(D) In this regard, Article 36(6) of the Industrial Accident Compensation Insurance Act provides that where it is deemed inappropriate to apply the average wage to a worker when calculating the insurance benefits due to an occupation-related disease, including pneumoconiosis, the amount calculated by the method of calculation prescribed by Presidential Decree shall be the average wage of the worker concerned. Accordingly, Article 25(2) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that in the case of an occupation-related disease, including pneumoconiosis, the total average wage of the worker is similar to the average wage of the worker during one year before the end of the quarter preceding the quarter in which the job-related disease is verified by dividing the total average wage of the worker during one year before the end

However, in the case of a certain occupational disease, including pneumoconiosis, it is difficult to diagnose the disease caused by the worker's work, and the worker continues to conduct his/her work without confirming the disease caused by pneumoconiosis, etc., due to the occupational disease, the calculation of average wages based on the amount of wages is inappropriate to protect the worker, considering that it is inappropriate to protect the worker even though the worker failed to provide his/her work properly due to the occupational disease, the calculation of average wages based on the amount of wages of the same kind of worker whose average wages are similar (see Supreme Court Decision 2005Du2810, Apr. 26, 2007).

Therefore, it is necessary to protect workers by applying the above provisions in cases where medical care benefits are provided for the disease or symptoms at the time of diagnosis of pneumoconiosis. However, if the pneumoconiosis is confirmed and the disability compensation is paid pursuant to the degree of such disability, it is difficult to conclude that there is a need to protect workers by applying the above provisions in cases where the cause of health care benefits arises after a considerable period of time thereafter, it cannot be concluded that there is a need to protect workers by applying the above provisions. As asserted by the plaintiff, even though considering the existence of the above provisions that can adjust the amount of average wages for the protection of workers suffering from pneumoconiosis, it cannot be said that the judgment may interfere with the above subparagraph (c) in relation to the time when the average wage calculation standard for pneumoconiosis is calculated (In addition, if the above provisions apply for the exception of the method of calculating average wages under the above provisions, there is no proof that the plaintiff underwent the procedure, and thus, the above provisions do not consider the exception in this case).

(3) In addition, the proviso to Article 55 of the Industrial Accident Compensation Act provides that the attached Table 1 shall not apply to cases where a person who received disability benefits due to an occupational disease under Article 37(1)2 prior to age 61, receives the first medical care for an occupational disease after age 61. Thus, the Plaintiff asserts that if a person who received disability benefits under the Enforcement Decree, etc. of the instant case treats the medical care benefits of the person who received disability benefits as a re-medical care, it would be unreasonable because

However, the special exception under the proviso of Article 55 of the Industrial Accident Compensation Act is interpreted and applied in accordance with the relevant provision, and it cannot be readily concluded that the scope of application is limited by the interpretation of the provisions of this case or by the Enforcement Decree of this case, and thus, the above assertion

(4) Therefore, the Plaintiff’s assertion that the instant Enforcement Decree, etc. deviates from the scope of delegation under Article 51(2) of the Industrial Accident Compensation Act, which is a superior law, or that it is unconstitutional because it is against the principle of equality, etc. and infringes on the people’s property rights, by discriminating against a person who received disability benefits due to pneumoconiosis

C. In this case, the plaintiff was diagnosed with pneumoconiosis on July 8, 1987 and received several medical examinations and tests, and from July 11, 2008, the plaintiff received the medical care benefits of this case from July 11, 2008. In light of these progresss, since a disease or symptoms meeting the requirements for the payment of the medical care benefits of this case is deemed to have newly become final and conclusive on July 11, 2008, the disposition of this case, which calculated the average wage for the period of the medical care benefits of this case based on the plaintiff's wage at the time of commencement of the medical care benefits of this case corresponding to the time of confirmation, is just, and the plaintiff's claim of this case

3. Conclusion

The judgment of the first instance is just and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Kim Yong-deok (Presiding Judge)