[1] In a case where the disability grade of an employee who suffered occupational accidents due to pneumoconiosis in a closed mine is changed after his/her death, whether the bereaved family should pay the disaster compensation benefits due to the change of the disability grade (affirmative)

[2] In a case where a person who suffered a physical disability due to an occupational accident claims for lump-sum disability compensation according to the changed grade of disability since he/she did not claim disability benefits according to the grade of disability determined at the time, but is unable to receive compensation for the existing disability due to aggravation of the existing disability, whether the Korea Workers' Compensation and Welfare Service shall pay lump-sum disability compensation according to the number of payment days for lump-sum disability compensation corresponding to the changed grade of disability (affirmative), and whether the Korea Workers' Compensation and Welfare Service may pay the lump-sum disability compensation according to the number of payment days for lump-sum disability compensation corresponding to the changed grade of disability (negative)

[3] In a case where a person who has suffered occupational accidents due to pneumoconiosis in an abandoned mine fails to claim disaster compensation benefits according to the existing disability grade because of the aggravation of the state of disability, and thus claims disaster compensation benefits according to the changed disability grade after the change of the disability grade, whether the person should pay disaster compensation benefits by "the lump-sum disability compensation benefits calculated according to the changed disability grade without deducting the number of payment days for lump-sum disability compensation benefits corresponding to the previous disability grade

[1] In full view of the contents of the relevant provisions and the legislative purpose of the accident compensation benefits paid as part of the mine closure expenses based on the characteristics of pneumoconiosis, in a case where a worker suffering from an occupational accident due to pneumoconiosis in an abandoned mine changes after his/her disability grade after his/her death, the bereaved family shall pay the accident compensation benefits due to

[2] The purport of Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 23468, Dec. 30, 201; hereinafter “former Enforcement Decree of the Industrial Accident Compensation Insurance Act”) is to prevent occurrence of unreasonable consequences, inasmuch as a person who has received medical care benefits and lump-sum disability compensation benefits due to occupational accidents is entitled to the full payment of disability benefits corresponding to the changed disability grade due to aggravation of the state of the disability after receiving additional medical care, if the person who has received the lump-sum disability compensation benefits due to occupational accidents is entitled to receive duplicate disability benefits. Therefore, if a person who has suffered physical disability due to occupational accidents claims disability benefits due to aggravation of the state of the existing disability and then has failed to receive all compensation for the existing disability due to the deterioration of the state of the disability grade, the Korea Workers’ Compensation and Welfare Service shall pay the lump-sum disability compensation benefits according to the number of days for which the changed disability grade was paid, and it shall not be applied as the ground for the payment of the existing disability grade.

[3] In full view of the contents and structure of Articles 51(1) and 60(2) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 11141, Dec. 31, 201); and Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 23468, Dec. 30, 201; hereinafter “former Enforcement Decree of the Industrial Accident Compensation Insurance Act”), Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 23468, Dec. 30, 201), where a person who suffered occupational accidents due to pneumoconiosis in a closed mine claims disaster consolation benefits according to the changed disability grade after the disability grade becomes worse, the disaster consolation benefits should be paid as “the changed disability compensation benefits calculated without deducting the number of payment days of lump-sum disability compensation corresponding to the previous disability grade.”

[1] Article 39-3 (1) 4 of the former Coal Industry Act (Amended by Act No. 4541, Mar. 6, 1993); Article 41 (3) 4 (see current Article 41 (4) 5) of the former Enforcement Decree of the Coal Industry Act (Amended by Presidential Decree No. 12899, Jan. 3, 1990) / [2] Articles 51 (1) and 60 (2) of the former Industrial Accident Compensation Insurance Act (Amended by Act No. 11141, Dec. 31, 201); Article 58 (3) 2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (Amended by Presidential Decree No. 23468, Dec. 30, 201); Article 41 (3) 4 of the former Enforcement Decree of the Mining Industry Act (Amended by Act No. 12894, Mar. 6, 193; Presidential Decree No. 14931, Nov. 14, 1997>

[2] Supreme Court en banc Decision 2012Du26142 Decided April 16, 2015 (Gong2015Sang, 697)

Plaintiff 1 and two others (Law Firm Han-soo, Attorney Cho Young-young, Counsel for the plaintiff-appellant)

Korea Mine Reclamation Corporation

Seoul High Court Decision 2018Nu65318 decided December 13, 2018

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) The deceased Nonparty (hereinafter “the deceased”) worked as a coal mine source from around 1977 to May 1989 at ○○ Mining Center (hereinafter “the instant mining center”). The instant mining center was closed on September 5, 1989.

2) On October 27, 1982, the Deceased was diagnosed with pneumoconiosis symptoms on October 27, 1982, and was determined by the disability grade No. 11 subparag. 9 under the Industrial Accident Compensation Insurance Act. On July 6, 1983, the Deceased was paid KRW 2,053,90 for lump-sum disability compensation benefits.

3) As a result of the precise diagnosis of pneumoconiosis on September 27, 1984, "Type 2/2 of pneumoconiosis disease type", "Type 1/2, cardiopulmonary function F0 (Abnormal) as a result of the precise diagnosis of pneumoconiosis on July 22, 1996," "Type 2/2, cardiopulmonary function F0 (Abnormal)" as a result of the precise diagnosis of pneumoconiosis on October 30, 200, "Type 2/2, cardiopulmonary function F0 (Abnormal)," "Type 2/2, F1/2 (Minor Disability)" as a result of the precise diagnosis of pneumoconiosis on January 15, 209, and "the symptoms of the pneumoconiosis type 2/2, f1/2, and malutic function of cardiopulmonary function" were gradually aggravated after the diagnosis of pneumoconiosis on October 30, 209.

4) 2018. 7.경 망인의 산업재해보상보험법상 장해등급을 2009. 1. 15.자 진폐정밀진단 결과에 따라 제7급 제15호로 상향하는 결정이 이루어졌고, 망인의 배우자인 원고 1은 망인의 사망 당시의 장해등급 제7급의 장해보상일시금으로 평균임금의 616일분에서 기존에 지급된 장해등급 제11급의 장해보상일시금인 평균임금의 220일분을 뺀 53,833,250원[≒ 135,942원 57전 × (616일 - 220일)]을 지급받았다.

B. The key issue of the instant case is: (a) If an employee who suffered occupational accidents due to pneumoconiosis in a closed mine changes after his/her death, whether to pay the disaster compensation benefits due to the change of the disability grade pursuant to Article 41(3)4 (hereinafter “instant provision”) of the former Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 12899, Jan. 3, 1990); and (b) if an employee who suffered occupational accidents due to pneumoconiosis in the closed mine claims for the accident compensation benefits due to the aggravation of the existing disability grade due to the aggravation of the disability grade, and then the disability grade is not paid, the amount of the accident compensation benefits should be calculated according to the changed disability grade only after the change of the disability grade; (i) whether the amount of the accident compensation benefits should be additionally paid according to the previous disability grade, namely, whether the number of days obtained by subtracting the average wage corresponding to the previous disability grade from the number of days paid for lump-sum disability compensation benefits corresponding to the changed disability grade, or whether the changed disability grade falls under the previous disability grade.

2. Whether or not the bereaved family members should be paid the disaster compensation benefits resulting from the change of disability grade if the disability grade of the affected worker is changed after his/her death;

A. Article 39-3 (1) of the former Coal Industry Act (amended by Act No. 4541 of Mar. 6, 1993) provides that "if a coal mining business operator of a mine subject to the payment of mine closure countermeasure expenses has completed the registration of extinction of the relevant mining right, mining concession right, or continuing operation right, the coal industry rationalization business entity shall pay the following amounts to the retired workers, coal mining business operators, etc. of the mine in question as mine closure countermeasure expenses," and subparagraph 4 of the above provision provides "other mine closure countermeasure expenses as prescribed by the Presidential Decree". According to the delegation of the above provision, the above provision provides that "if the coal mining business operator of the mine subject to the payment of mine closure countermeasure expenses has completed the registration of extinction of the relevant mining right, mining concession right, or continuing operation right, the amount of disaster compensation benefits shall be the same as the lump sum compensation for survivors under Article 9-5 (1) of the Industrial Accident Compensation Insurance Act or the lump sum compensation for survivors under Article 9-6 (1) of the same Act".

B. As part of the mine closure countermeasure expenses, the disaster compensation benefits paid to the workers suffering from occupational accidents in the closed mine is characterized by the consolation benefits paid in addition to the ordinary accident compensation in a social security level to the workers suffering from special difficulties such as occupational accidents, in light of the demand and supply of domestic coal, who are not considered desirable for the balanced development of the national economy, in closing coal mines without economic feasibility that are not considered desirable for the balanced development of the national economy (see Supreme Court Decision 2001Du9592, Mar. 29, 2002).

Pneumoconiosis is a representative occupational accident that may occur to workers of the coal mining center. Even if it is impossible to completely recover due to modern medicine and left the workplace where dust has occurred, its progress is difficult to predict (see Supreme Court Decision 98Du5149, Jun. 22, 199). In addition, if pneumoconiosis is caused, multiple mergers are exposed to pneumoconiosis, and medical care benefits are mainly paid for treatment of pneumoconiosis. Considering the characteristics of pneumoconiosis, the issue of whether the pneumoconiosis symptoms that occurred before the closing date can be immediately given the immediately disability grade or whether the disability grade is given after the closing date is difficult (see Supreme Court Decision 2017Du69830, Jul. 25, 2019; 2019Du69830, Sept. 25, 2019; 2019Du98196, Feb. 9, 2019).

C. Comprehensively taking account of the contents of relevant regulations and the legislative purpose of the accident compensation benefits paid as part of the expenses for countermeasures against pneumoconiosis based on the characteristics of the pneumoconiosis, in a case where an employee suffering from occupational accidents due to pneumoconiosis in an abandoned mine changes after his/her disability grade after his/her death, it should be deemed that his/her bereaved family should pay the accident compensation benefits arising from the change

1) The deceased’s disability grade change was based on the result of the precise diagnosis of pneumoconiosis conducted before the death (the precise diagnosis conducted on January 15, 2009). Therefore, only the determination of the change of disability grade was made after the death, and the substantial ground for change of disability grade was before the death. Therefore, it is reasonable to view that the right to disaster consolation benefits occurred before the death to the deceased, and this is inherited to the Plaintiffs, the heir of the deceased, as inherited property.

2) The diagnosis, which is the premise of the determination of a disability grade, was conducted before the deceased’s birth, and accordingly, the determination of a disability grade and the payment of lump-sum disability compensation benefits could have been conducted before the deceased’s birth. However, it is difficult to recognize a different need to determine whether to pay disaster compensation benefits equivalent to the lump-sum disability compensation benefits in cases where the deceased received lump-sum disability compensation benefits before and after the death, and where the bereaved family

3) Although the latter part of the instant provision provides that “the lump-sum disability compensation benefits received by retirement workers” are stipulated as “the lump-sum disability compensation benefits,” there may be cases where retirement workers have not received the lump-sum disability compensation benefits. Therefore, it cannot be interpreted that “the case where retirement workers have received the lump-sum disability compensation benefits,” and thus, the payment of disaster compensation benefits cannot be made only to “the case where the retirement workers have received the lump-sum disability compensation benefits,” which is contrary to the purport of the accident compensation benefits, which are paid in addition to the ordinary

4) The instant provision provides for “determination of a disability grade” rather than “determination of a disability grade” as a requirement for payment of disaster consolation benefits. In light of the characteristics of pneumoconiosis symptoms, it should be concluded to the effect that the determination of a disability grade based on the date of the closure of the mine can be subsequently changed, and that, if changed, disaster consolation benefits should be paid according to the grade of disability determined finally (see Supreme Court Decision 2017Du69830, Jul. 25, 2019). Therefore, as long as a retired worker suffers from an occupational disease, i.e., pneumoconiosis caused by the coal mine in the mine where the dismissed worker died after his/her death, the final disability grade determination was conducted after his/her death, and there is no reason to exclude the deceased or his/her bereaved family members from the subject matter of protection.

D. In the same purport, the lower court determined that the Defendant should pay disaster compensation benefits equivalent to the amount of lump-sum disability compensation benefits under class VII, which is the changed disability grade after the deceased’s death. In so determining, the lower court did not err by misapprehending the legal doctrine on the subject of the payment of disaster compensation benefits under the provision of this case, thereby adversely affecting the conclusion of the judgment.

3. Amount of disaster consolation benefits equivalent to the lump-sum disability compensation benefits to be paid to the plaintiffs;

A. Article 51(1) of the former Industrial Accident Compensation Insurance Act (amended by Act No. 11141, Dec. 31, 201; hereinafter “former Industrial Accident Insurance Act”) provides, “If there is a medical opinion that a person who received a medical care benefit needs active medical treatment because the occupational injury or disease, which was the object of the medical care, re-treatment after recovery, becomes worse, or becomes worse than the time of cure, then he/she may receive additional medical care again.” Article 60(2) provides, “If the state of disability becomes worse after recovery from additional medical care, disability benefits shall be paid according to the grade of disability corresponding to the aggravated state of disability, and the method of calculating and paying disability benefits after additional medical care, shall be prescribed by Presidential Decree.” Accordingly, the former Enforcement Decree of the Industrial Accident Compensation Insurance Act (amended by Presidential Decree No. 23468, Dec. 30, 201; hereinafter “former Enforcement Decree of the Industrial Accident Insurance Act”) provides, “If the person who received the lump-sum disability compensation benefits becomes more than the number of disability benefits paid.”

B. The purport of Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act is to prevent any unreasonable result from receiving disability benefits even in cases where a person who has received health care benefit and lump-sum disability compensation benefits due to occupational accidents receives the total amount of lump-sum disability compensation benefits corresponding to the changed grade of disability after receiving additional medical care. Therefore, if a person who has suffered a physical disability due to occupational accidents does not claim disability benefits due to his/her disability grade determined at that time, and thus, he/she does not receive any compensation for the existing disability. If a person claims lump-sum disability compensation benefits according to the changed grade of disability after the change of disability grade due to the aggravation of the existing disability condition, the Korea Workers' Compensation and Welfare Service is to pay lump-sum disability compensation benefits according to the number of days of payment for lump-sum disability compensation benefits corresponding to the changed grade of disability, and the number of days of payment for lump-sum disability compensation benefits corresponding to the existing disability grade of which has not been paid to an employee based on Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act should not be applied to this case.

C. Comprehensively taking account of the contents and structure of the above relevant provisions and the purport of Article 58(3)2 of the former Enforcement Decree of the Industrial Accident Insurance Act, where a person suffering from occupational accidents caused by pneumoconiosis in an abandoned mine fails to claim disaster compensation benefits according to the existing disability grade, and where a person claims disaster compensation benefits according to the changed disability grade only after the disability grade becomes worse due to the aggravation of the state of disability, it shall be deemed that “the lump-sum disability compensation benefits calculated according to the changed disability grade without deducting the number of payment days for lump-sum disability compensation benefits corresponding to the previous disability grade” should be paid. The detailed reasons

1) The instant provision is based on “determination” of a disability grade rather than “determination” of a disability grade. Therefore, even if there was a previous determination of a disability grade, if the disability grade was subsequently changed, it is reasonable to calculate and pay the amount of disaster compensation benefits based on the changed final disability grade.

2) Article 58(3) of the former Enforcement Decree of the Industrial Accident Insurance Act provides that “A person who received a lump-sum disability compensation benefits” has aggravated the status of disability after receiving additional medical care compared to the previous one, thereby making legislation on the premise that “an employee has actually received disability benefits.” This is to prevent duplicate payment of disability benefits with regard to the existing disability grade where a person who received disability benefits due to occupational accidents re-treatments the relevant injury or disease and changes the state of disability after receiving additional medical care. Therefore, in cases where the issue of duplicate payment of disability benefits does not occur due to the absence of the previous accident compensation benefits, the amount of the disaster compensation benefits should not be calculated by deducting the number of payment days of lump-sum disability compensation benefits corresponding to the previous

3) In calculating the insurance benefits, Article 36(3) of the former Industrial Accident Compensation Insurance Act provides that the average wage shall be increased or decreased according to the rate of increase or decrease of the average amount of the entire workers’ wages every year after one year from the date on which the cause for calculating the average wage occurred, but after the worker’s age reaches 60 years of age, the average wage shall be increased or decreased according to the consumer price fluctuation rate. This is intended to ensure that the substantial economic value of the insurance benefits remains maintained by paying the insurance benefits according to the average wage at the time of payment of benefits rather than the “time when the cause for payment occurred” of the benefits. It does not conform to the purport of the provision on the insurance benefits under the Industrial Accident Compensation Insurance Act, since the amount is simply calculated as the amount of the disaster consolation benefits according to the changed disability grade with the “Lump-sum disability compensation benefits according to the previous disability grade” and the “Lump-sum disability compensation benefits to be additionally paid according to the changed disability grade” is not considered

4) Whether an employee who suffered occupational accidents due to pneumoconiosis should be determined at a lower grade than the first person’s symptoms become worse, or whether a disability grade should be determined at a higher grade from the beginning is merely a sudden situation at the speed of pneumoconiosis symptoms difficult to predict. However, if a disaster consolation benefits are paid as a simple sum of “the lump sum disability compensation according to the previous disability grade” and “the lump sum disability compensation to be paid additionally according to the changed disability grade,” a person whose disability grade was first lower than the first person whose disability grade was determined at a lower grade and whose economic value is lower than the first person who was determined at a higher grade. However, it is difficult to find any reasonable ground to change the amount of two persons’ accident consolation benefits whose final and conclusive disability grade is the same as that of the first person’s accident compensation benefits.

D. In the same purport, the lower court determined that disaster consolation benefits equivalent to the amount of lump-sum disability compensation benefits that the Defendant paid to the Plaintiffs are the same amount as the lump-sum disability compensation benefits corresponding to class VII, which is the final disability grade of the Deceased, as at the time of paying disaster consolation benefits. In so determining, the lower court did not err by misapprehending the legal doctrine on the computation method of disaster consolation

4. Conclusion

Therefore, all appeals are 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 Ahn Jae-chul (Presiding Justice)