Plaintiff (Law Firm LLC, Attorneys No Sang-won et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

December 9, 2016

Seoul Administrative Court Decision 2013Gudan23778 decided May 14, 2015

The judgment of the first instance shall be revoked.

The Defendant’s disposition to pay temporary layoff benefits to the Plaintiff as of April 18, 2013 shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

Except for the addition of the following, this Court’s reasoning is identical to the corresponding part of the reasoning of the judgment of the first instance (from February 1 to 15 of the judgment of the first instance). Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act, the Civil Procedure Act, and the main sentence of Article 420 of the Civil Procedure Act:

▣ 제1심판결서 2쪽 13행 다음에 아래 내용을 추가한다.

D. On July 18, 2007, the Plaintiff received a diagnosis of the instant additional injury and disease after being under the control operation for the treatment of the first approved injury and disease at ○○ Hospital. The Plaintiff’s doctor of ○ Hospital conducted a diagnosis that the Plaintiff needs to receive a three-time medical treatment and rehabilitation exercise treatment for about six months after the surgery.

E. On April 7, 2008, the Plaintiff’s director of the ○○ Hospital completed the treatment of the instant additional injury and disease.

2. Whether the instant disposition is lawful

A. Party’s assertion and issues

1) Parties’ assertion

The Plaintiff asserts that “Until the instant additional injury and disease was recognized through administrative litigation, the Plaintiff received medical care at the hospital and home and received medical care for the instant additional injury and disease, which led to which it could not be engaged in business operations during the period of request of this case (from April 8, 2008 to March 25, 2013), and thus, the instant disposition that the Defendant decided not to pay temporary disability compensation benefits to the Plaintiff during the said period of request was unlawful.”

As to this, the Defendant asserts, “The symptoms of the instant additional injury and disease have been fixed around April 7, 2008 due to the Plaintiff’s sufficient medical care during the first medical care period, and in fact, there was no fact that the Plaintiff provided medical care to the extent that employment was difficult due to the instant additional injury and disease, and thus, the Plaintiff is not entitled to temporary disability compensation, and thus the instant disposition is lawful.”

2) Issues of the instant case

Therefore, the key issue of the instant case is ① (i) whether the instant additional disease was fixed to the extent that the treatment effect cannot be expected as of April 7, 2008; and (ii) whether the Plaintiff was unable to be employed due to the medical care during the instant additional disease period.

B. Relevant legal principles

Temporary layoff benefits under Article 52 of the Industrial Accident Compensation Insurance Act are aimed at ensuring the minimum standard of living of workers and their family members who are under medical care due to occupational injury. In addition, the term "period of absence from medical care" refers to the period during which workers could not have been employed due to medical care due to occupational injury. Thus, since workers could not have been employed due to medical care due to occupational injury, it includes not only the period of occupational injury treatment at a medical institution but also the period during which they could not have been employed due to their actual employment as well as the period during which they could not receive wages (see Supreme Court Decision 88Nu2205 delivered on June 27, 1989). Therefore, in light of the degree of occupational injury suffered by workers, current status, methods of medical care, frequency of medical care, etc., if workers could not be employed due to the loss of certain labor force, but also if they could not have been employed due to the actual employment even after being able to be employed (see Supreme Court Decision 2002Du39792, Jul. 22, 2002).

Meanwhile, Article 5 Subparag. 4 of the Industrial Accident Compensation Insurance Act provides, “The term “the term “the term “the term “cure injury or disease is completely cured or the term of “the term is no longer expected to have the symptoms fixed,” and Article 47 of the same Act and Article 41 of the Enforcement Decree provide that if an industrial accident insurance-related medical institution submits a medical treatment plan that needs an extension of the term of medical care, the Defendant may examine whether the medical treatment plan is appropriate and take necessary measures, such as ordering the termination of the treatment or the reduction of the term of medical care.” Furthermore, Article 51 of the Industrial Accident Compensation Insurance Act provides that “the term “additional medical care” may be provided where active treatment is needed to cure the occupational injury or disease which was the subject of medical care becomes worse or worse after the treatment of the injury or disease is cured, and the injury or disease becomes more and more severe than the time of treatment,” and Article 57 of the same Act provides that disability benefits shall be paid in cases where there is a physical disability, etc. separate from the content and legislative purport of the above provisions.

C. Whether the instant additional injury and disease was cured around April 7, 2008

1) Facts of recognition

[Identification Evidence] Each statement of Gap evidence Nos. 16, 22-28, 43, and 44 (including each number), the result of the commission of the examination of medical records and the result of the commission of the supplementary examination of medical records to the director of the Ansan Hospital at the Korea University of University; the purport of the whole pleadings

A) Even after April 7, 2008 when ○○ Hospital finished treatment, the Plaintiff received the first approved medical personnel’s first approved medical personnel’s symptoms from △△ Medical Center until June 23, 2008.

B) From August 20, 2008 to March 11, 2013, the Plaintiff received out-of-the-counter treatment, etc. on the ground of “the shoulderer whose no tax age is known” from 3-5 times a month at the Gisung Public Health Center. From April 25, 2012 to April 27, 2013, the Plaintiff received treatment for the right shoulder from the department other than △△ One.

C) The medical record appraisal prescribed by this court revealed that “after April 7, 2008, the Plaintiff’s symptoms of the instant additional disease have not been fixed, so fundamental and active treatment was required for the improvement of the symptoms, and it is deemed that the Plaintiff was not employed due to the instant additional disease during the said period.”

D) On December 28, 2012, the head of △△△△△ University, who treated the Plaintiff, expressed his opinion that “the instant additional illness requires a surgical treatment” regarding the instant case through a diagnosis document issued on December 28, 2012. On July 4, 2012, the said head presented the opinion to the effect that “The doctor of △△△△ University, a physical therapy, and, in the absence of the call for symptoms, there is possibility of re-operation, and there is no possibility of re-operation due to symptoms, and that the present symptoms will result in a daily life.”

2) Determination

According to the above facts of recognition, it is difficult to view that the symptoms of this case were fixed around April 7, 2008, and therefore, the appraiser of the first instance court expressed his opinion that "it is deemed that the effect of treatment was no longer expected at the time of the completion of treatment, and the symptoms were fixed and that the treatment was completed as it was judged that the symptoms were fixed." However, according to the contents of the appraisal, it is deemed that the medical records, etc. referred to the appraisal of this court were insufficient (the appraisal of the first instance court also stated that there is a lack of records on the medical status at the time of the appraisal). Thus, it is insufficient to reverse the above recognition only by such contents of the written opinion that the appraisal of the first instance court stated that "it is insufficient to record the medical status at the time of the appraisal."

D. Whether the Plaintiff was unable to be employed due to medical care

According to the facts acknowledged above, the plaintiff recognized that the additional injury and disease in this case was a health condition to the extent that he could not be employed during the period of this case, and recognized that the plaintiff was unable to receive proper medical treatment for the above period, but it was inevitable for the plaintiff to accept the application for the medical treatment, which continued to receive medical treatment and other medical treatment for the above period. As seen above, the "period of absence from employment due to medical treatment" under Article 52 (a) of the Industrial Accident Compensation Insurance Act includes the period of absence from wages because the worker was not actually employed due to the worker's absence of medical treatment at his own house. Thus, the plaintiff's assertion pointing this out also has merit.

3. Conclusion

The plaintiff's claim of this case is reasonable. The judgment of the court of first instance that dismissed the plaintiff's claim is unfair. Thus, the judgment of the court of first instance is revoked, and the disposition of this case is revoked, and the total costs of the lawsuit are borne by the losing defendant. It is so decided as per

For the purpose of judge Lee e-mail (Presiding Judge)