[1] The method of determining a final disability grade in cases where a person was determined by the criteria for disability grade under the former Enforcement Decree of the Industrial Accident Compensation Insurance Act prior to the amendment and received additional medical care, and where the status of a worker who had completed medical treatment after the enforcement of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act, which was wholly amended by Presidential Decree No. 20875, Jun. 25, 2008, applied the criteria for disability grade under the amended Enforcement Decree of the same Act, but the disability grade would be lower if the person was treated as additional wounded after the enforcement of the amended Enforcement Decree of the same Act

[2] The case affirming the judgment below holding that in case where the worker Gap was not entitled to additional disability compensation on the ground that the final disability grade of the worker Gap fell under class 10 under Article 53 (2) 3 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act as amended by Presidential Decree No. 20875 of Jun. 25, 2008, although the worker Gap was judged as Grade 8-5 under the former Enforcement Decree of the Industrial Accident Compensation Insurance Act before the revision of the occupational accident, received additional medical care and completed medical care and claimed compensation for additional injury to the Korea Workers' Compensation and Welfare Service, but the Korea Workers' Compensation and Welfare Service did not change the status due to additional medical care, the disposition was unlawful

[1] If a disability grade is determined by the criteria for disability grade under the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875, Jun. 25, 2008; hereinafter “former Enforcement Decree”), and the criteria for determination of the revised Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 22269, Jul. 12, 2010; hereinafter “former Enforcement Decree”) is applied even though the status of a worker who has completed the medical treatment was not improved, the disability grade would be lower if the criteria for determination of the revised Enforcement Decree would be applied. Furthermore, when a final disability grade is determined after the enforcement of the amended Enforcement Decree, the disability grade should be first determined by applying the former Enforcement Decree under Article 11(1) of the Addenda to the Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 2085, Jun. 25, 2008) and then the final disability grade should be adjusted under Article 5(2) of the amended Enforcement Decree.

[2] In a case where a worker Gap was issued a disposition of additional disability compensation for reasons that the final disability grade of the worker Gap constitutes class 10 under the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875, Jun. 25, 2008; hereinafter “former Enforcement Decree”), based on the disability grade criteria under the former Enforcement Decree of the Industrial Accident Compensation Insurance Act, after receiving a judgment of class 8 subparagraph 2 of the disability grade, and completing additional medical care and completing medical treatment for additional injury, but the worker Gap filed a claim for disability compensation with the Korea Workers' Compensation and Welfare Service; however, according to the criteria for disability grade determination under Article 53 (2) 3 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 22269, Jul. 12, 2010), the case affirming the judgment below that there was no additional disability grade adjustment for the reasons that the final disability grade of the worker Gap was lower than the previous disability grade No. 10 under Article 15 of the amended Enforcement Decree of the Industrial Accident Compensation Insurance Act.

[1] Article 31(1) [Attachment 2] and (2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875 of Jun. 25, 2008), Article 53(1) [Attachment 6] and (2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 22269 of Jul. 12, 2010), Article 11(1) [2] Article 31(1) [Attachment 2] and (2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (wholly amended by Presidential Decree No. 20875 of Jun. 25, 2008), Article 53(1) [Attachment 6] and (2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (Amended by Presidential Decree No. 20875 of Jun. 25, 2008); Article 53(1) [Attachment 205]

Plaintiff

Korea Labor Welfare Corporation

Seoul High Court Decision 2010Nu34363 decided April 7, 2011

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

The grounds of appeal are examined.

1. A. Article 53(1) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 20875 of Jun. 25, 2008 and enforced July 1, 2008; hereinafter “former Enforcement Decree of the Industrial Accident Compensation Insurance Act”; Article 53(1) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that “The disability grade criteria under Article 57(2) of the Act shall be in accordance with [Attachment Table 6].” Article 53(2) of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act provides that “Where there are two or more disabilities meeting the criteria for disability grade under [Attachment Table 6], the disability grade adjustment shall be in accordance with the transitional provisions concerning the criteria for disability grade, and Article 11(1) of the Addenda of the Enforcement Decree of the amended Enforcement Decree (hereinafter “the Addenda provisions of this case”) provides that “If a person whose disability grade was determined at the time of enforcement of this Decree is less than the previous disability after receiving re-treatment, the disability grade shall be applied.”

B. In full view of the above provisions of the Enforcement Decree of the amended Act and the supplementary provisions of this case, ① if the disability grade is lower due to the amendment of the Acts and subordinate statutes on the criteria of disability grade even if the treatment effect did not appear due to the additional medical care, it appears to the purport of the supplementary provisions of this case that it would be too unfavorable for employees to determine disability grade pursuant to the previous provisions, not the provisions at the time of the completion of the additional medical care. ② Meanwhile, the supplementary provisions of this case provide that “if the revised provisions of Article 53(1) apply, the disability grade would be lower” and Article 53(1) of the revised Enforcement Decree provides that “if the disability grade is applied, the disability grade shall be determined by the parts of each body, and the adjustment of disability grade to be determined by the final disability grade shall be interpreted in accordance with Article 53(2) of the amended Enforcement Decree, and (3) The supplementary provisions of this case provide that the disability grade of this case is lower than the final disability grade, and thus, the supplementary provisions of this case shall be interpreted as follows.

C. Therefore, in a case where a worker who was determined a disability grade based on the criteria for disability grade under the former Enforcement Decree prior to the revision, received additional medical care and completed additional medical care but applied the criteria for determining the criteria for determining the revised Enforcement Decree with respect to such disability, the disability grade becomes lower if the worker applied the criteria for determining the additional injury or disease after the enforcement of the amended Enforcement Decree. Furthermore, in determining the final disability grade, the disability grade should first be determined by applying the previous Enforcement Decree with respect to the disability subject to additional medical care pursuant to Article 53(2) of the amended Enforcement Decree, and then the final disability grade for such additional injury or disease should be adjusted pursuant to Article 53(2) of the amended Enforcement Decree.

2. According to the reasoning of the lower judgment, the lower court: (a) as an employee of the U.S. mine, the Plaintiff was diagnosed on June 27, 2003 with “the 1st century escape certificate, 4-5 conical signboards escape certificate” due to occupational accidents; (b) obtained approval from the Defendant on March 4, 2006 for medical treatment; and (c) obtained additional medical care for the remaining parts of the disability grade No. 8 subparag. 2 (the remaining parts of the 3nd degree disability) (the 1st degree of disability) (the 1st degree of the 4th degree of the 5th degree of the 1st degree of the 5th grade of the 1st grade of the 5th grade of the 1st grade of the 5th grade of the 1st grade of the 5th grade of the 1st grade of the 5th grade of the 1st grade of the 1st grade of the 5th grade of the 1st grade of the 3th grade of the 1st grade of the 1st grade of the 3th grade of the 4th grade of the amendment.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the determination of disability grade as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)