Plaintiff (Attorney Lee Jae-ho, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

January 16, 2015

Daegu District Court Decision 2013Gudan3578 Decided August 8, 2014

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On November 19, 2013, the Defendant’s disposition of disability benefit site payment against the Plaintiff shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On February 21, 2001, while working in the Peace F&C Reserve Co., Ltd., the Plaintiff was approved of medical care on September 25, 2002 from the Defendant with respect to “brain color, parallel beer and beer, and beer care until February 29, 2008” (hereinafter “the instant injury”).

B. On August 7, 2012, the Plaintiff filed a claim for disability benefit with the Defendant, and the Defendant rendered a decision on disability benefit site payment on September 5, 2012 on the ground that “the prescription period of three years after the healing day has expired” with the Plaintiff.

C. After that, the Plaintiff again filed a claim for disability benefits with the Defendant on October 25, 2013, but the Defendant rendered a decision on November 19, 2013 on disability benefits site payment on the ground that “the period of prescription has expired three years after March 1, 2008, the day following the healing day” to the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 8, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On April 3, 2009, before the expiration of the extinctive prescription of the right to claim disability benefits, the Plaintiff filed a claim for disability benefits with the Defendant (hereinafter “the first claim for disability benefits”). However, the Defendant’s employee’s application for return of the first claim for disability benefits based on the instruction that “the claim for disability benefits after the approval of additional injury would be favorable to the Plaintiff,” and any subsequent guidance was not received from the Defendant. Although the Plaintiff’s disability status at the time of the first claim for disability benefits could have been determined as class 1 and 3, it was considerably difficult for the Defendant’s employee to exercise his right to claim disability benefits or extinctive prescription due to the exercise of his right to claim for disability benefits or the solicitation for unfair return, the Defendant’s instant disposition on the ground of the expiration of the extinctive prescription constitutes abuse of rights against the good faith principle.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

(c) Fact of recognition;

1) While the Plaintiff was working as a production-management worker in the Peace M&F Co., Ltd., the injury or disease in the instant case occurred due to continuous night work, changes in work volume, and stress on February 21, 2001. On September 25, 2002, the Plaintiff received medical treatment from the Defendant for the injury or disease in the instant case from February 21, 2001 to February 29, 2008, after obtaining medical treatment approval from the Defendant for occupational disease.

2) On February 29, 2008, the Plaintiff applied for the postponement of the medical care, but the Defendant decided to terminate the medical care as of February 29, 2008 with the opinion that “the instant injury and disease does not require any further medical treatment.”

3) On April 3, 2009, the Plaintiff filed a first claim for disability benefit with the Defendant. On April 23, 2009, the Defendant’s employee provided guidance to the effect that “Inasmuch as there is an obstacle to the Plaintiff’s leakage or Nonparty 1 (the Nonparty) who is practically acting for the Plaintiff’s work related to industrial accident treatment, it is more favorable for the Nonparty to make a claim for disability benefit after obtaining the approval for additional injury to other injury and disease,” the Plaintiff’s request for return of the first claim for disability benefit was made in accordance with the guidance given by the employee in charge of the Defendant, and was returned to the Defendant on April 24, 2009 in entirety as to the first claim for disability benefit.

4) After that, on August 2, 2010, the Plaintiff filed an application for additional injury and disease with the Defendant on August 2, 2010 and received the additional injury and disease approval from the Defendant on August 23, 2010.

5) On November 3, 2011 and September 11, 2012, the Plaintiff submitted an application for re-treatment to the Defendant on the ground of the aggravation of the injury and disease in the instant case, but received a decision of non-approval on both occasions, and then again filed a claim for disability benefits (hereinafter “second claim for disability benefits”) with the Defendant on August 7, 2012.

6) However, the Defendant rendered a decision that “the Plaintiff is in need of another person’s nursing at all times in daily treatment action due to sports paralysis and teams that the Plaintiff is not on both sides, and the disability grade falls under class 1 and 3 (an additional injury or disease shall not be considered as part of the part regarding an injury or disease),” but rendered a decision not to pay disability benefits to the Plaintiff on September 5, 2012 on the ground that “the prescription period of three years has lapsed as of the closing date of medical care on February 29, 2008.” The Plaintiff submitted a written request for examination on December 4, 2012, which was dissatisfied with the above disposition, but the Defendant decided to dismiss the request for examination on May 22, 2013.

7) On October 25, 2013, the Plaintiff filed another claim for disability benefits again with the Defendant, but the Defendant rendered the instant disposition that, on November 19, 2013, the Plaintiff did not pay disability benefits on the ground that “the period of three years from March 1, 2008, which was the day following the healing day, has expired” to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 4-8, Eul evidence 1-4, Eul evidence 1-4, non-party 2's testimony of the court of first instance, and non-party 1's testimony of the witness of the court of first instance and the purport of whole pleadings

D. Determination

1) The statute of limitations proceeds from the time when an objective right arises and it is possible to exercise the right. The term “non-exercise of the right” refers to a disability under the Act on the Exercise of the right, for example, the non-existence of the term or the non-performance of the terms and conditions. Even if the existence of the right or the possibility of the exercise of the right was not known and there was no negligence, such circumstance does not constitute legal disability (see Supreme Court en banc Decision 91Da32053, Mar. 31, 1992). Furthermore, the exercise of the obligor’s right of defense is subject to the rule of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, the obligor is unable or considerably difficult to exercise the right, or acted to believe that such measure was unnecessary, or when the obligee was once finished or the obligor did not use the right after the expiration of the statute of limitations, it shall be deemed that there is a need to exercise the right holder to exercise the right more than 10 and thus, it is unreasonable or unreasonable to exclude the obligor from the exercise of the right.

2) Based on the above legal doctrine, comprehensively taking account of the following circumstances acknowledged by the facts charged with the instant case, and the evidence and the purport of the entire pleadings, the Plaintiff’s right to claim disability benefits from March 1, 2008, the three-year extinctive prescription under Article 112(1)1 of the Industrial Accident Compensation Insurance Act, which is the day following the day when treatment is completed, has already been completed at the time of the Plaintiff’s secondary disability benefit claim, and the Defendant’s claim for the completion of extinctive prescription cannot be deemed to constitute an abuse of rights against the principle of

① Disability benefits under Article 57(1) of the Industrial Accident Compensation Insurance Act are insurance benefits paid to a worker in the event that the worker suffers from an injury or disease due to his/her occupational reason and the physical disability remains, the starting point of calculating the extinctive prescription period of the right to claim disability benefits is when the worker can exercise his/her right (see Supreme Court Decision 98Du8445, Jun. 27, 200). In this case, the worker who suffers from an occupational accident acquires the right to claim disability benefits in the event that the physical disability remains after recovering from an occupational injury or disease, and the term “cure” means that the treatment of the injury or disease would no longer be expected and the symptoms thereof would be fixed (see, e.g., Supreme Court Decision 2009Du732, Sept. 10, 2009). Accordingly, the period of extinctive prescription of the right to claim disability benefits is fixed from the time when the treatment is terminated, and the disease in the instant case is no longer expected to be effective.

② At the time of the Plaintiff’s first claim for disability benefits, the employee in charge of the Defendant instructed the Plaintiff to the effect that “it is more favorable to receiving a higher disability grade decision after filing an application for additional injury or disease with respect to an unapproved injury or disease,” and provided guidance on the application for the return of the first disability benefits in the process. The above tasks of the employee in charge of the Defendant sent an opportunity for the applicant to be recognized as an industrial accident insurance for the non-approved injury or disease, and then give an opportunity for the applicant to be recognized as an industrial accident insurance for the non-approved injury or disease, and finally, it is difficult to view that it is unfair in terms of civil petitioner protection.

③ The Plaintiff asserts that “Around September 5, 2012, the Defendant determined a disability grade 1 solely based on the Plaintiff’s disability condition as at the time of filing the first disability benefit claim without approval of additional injury and disease, but the employee in charge of the Defendant has been forced to make a return of the first disability benefit claim unfairly by requiring the procedure of obtaining approval for additional injury and disease, not a case affecting the Plaintiff’s disability grade determination.” However, according to the provisions of Article 57(2) of the Industrial Accident Compensation Insurance Act, Article 53(1) [Attachment 6] of the Enforcement Decree of the same Act, Article 48 [Attachment 5] of the Enforcement Rule of the same Act, the Plaintiff’s right to request the return of the first disability benefit claim remains as it is difficult to recognize that the Plaintiff’s ability to work falls under Grades 1 through 3, and in particular, the Plaintiff’s right to request the return of the said disability grade remains as it is, even if it is difficult to recognize the Plaintiff’s mental or physical disability’s mental function and mental function.

④ In addition, Nonparty 1, who was practically in charge of the Plaintiff’s industrial accident management, stated in the examination of the first instance court that “at the time of receiving the application documents for disability benefits, Nonparty 1 expressed that “at the time of receiving the application documents for disability benefits, the period of extinctive prescription was three years from the employee in charge of the Defendant at the time of receiving the application documents for disability benefits, and that the date of commencing the extinctive prescription was considered to have been returned, and that the Plaintiff could not exercise the right to disability benefits within three years from April 24, 2009 because treatment was given to the Plaintiff,” and that the period was from the time of rejecting the first claim for disability benefits to the time of obtaining additional injury benefits (the Plaintiff did not hear from the employee in charge of the Defendant at the time of requesting the return of the first claim for disability benefits, and it was difficult to accept the Plaintiff’s claim for additional injury benefits from the time of receiving the request for return of the said additional injury benefits after considering the fact that the Plaintiff’s request for return of the said additional injury benefits was made by the time of Nonparty 1’s negligence.

⑤ On November 3, 2011 and September 11, 2012, the Plaintiff asserted that, upon filing an application for re-medical care benefits, the Plaintiff was aware that the medical care benefit application had not been terminated by submitting the application for re-medical care benefits to the Defendant. However, in light of the following: (a) the extinctive prescription for the right to claim temporary disability compensation benefits during the period of re-medical care in addition to the extinctive prescription for the right to claim for re-medical care benefits; (b) where the fixed symptoms have deteriorated more than the previous symptoms after the re-medical care, a separate claim for disability benefits occurs after the re-medical care (Article 60 of the Industrial Accident Compensation Insurance Act); and (c) the latter part of Article 113 of the Industrial Accident Compensation Insurance Act provides, “in case of the first claimant requiring determination as to whether the claim is an occupational accident under Article 5 subparag. 1, the interruption of prescription due to the claim shall not affect other insurance benefits as provided for in Article 36(1).” Ultimately, the Plaintiff cannot be objectively assert the Plaintiff’s right to claim disability benefits or disability.

(6) Even if the Plaintiff’s disability status is considerably significant as alleged by the Plaintiff and it was difficult for the Plaintiff to exercise his/her right to claim disability benefits due to the Plaintiff’s lack of proper assistance from around his/her wife, such circumstance does not constitute a de facto or legal ground for disability that the Plaintiff cannot exercise.

3) Therefore, the instant disposition based on the premise of the completion of extinctive prescription is lawful, and the Plaintiff’s assertion disputing this is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment]

Judges private-public officials (Presiding Judge)