[Plaintiff, Appellee] Plaintiff 1 and 1 other (Attorney Byun Hee-sam, counsel for the plaintiffs)
[Defendant, Appellant] Korea Workers' Compensation and Welfare Service
[Judgment Below] Seoul High Court Decision 2018Nu44458 decided September 20, 2018
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. Course of the Case
According to the reasoning of the judgment below and the record, the following facts may be found.
A. Plaintiff 1
1) Plaintiff 1 worked as a coal-mining assistant worker at the ○○ Mining Office of the Korea Coal Corporation from September 28, 1979 to March 31, 1984, a period of approximately 4 years and 6 months, and worked as a rock driller at the tunnel construction site of (Company Name 1 omitted) from October 16, 1992 to October 18, 1992, a period of 3 days, before retiring due to an occupational accident.
2) Plaintiff 1 received an initial pneumoconiosis diagnosis on December 1, 2006, and as a result of a detailed pneumoconiosis examination, was determined to have "Pneumoconiosis Type 1, normal cardiopulmonary function" and received a disability grade 13 determination.
3) The Defendant designated the ○○ Mining Office of the Korea Coal Corporation as the workplace for applying Plaintiff 1's average wage and paid insurance benefits accordingly.
B. Plaintiff 2
1) Plaintiff 2 worked as a tunneling worker at (Company Name 2 omitted) from June 1, 1973 to November 1, 1989, a period of approximately 16 years and 5 months, and worked as a rock driller at the tunnel construction site of (Company Name 3 omitted) from August 4, 1992 to August 19, 1992, a period of 16 days, before retiring due to an occupational accident.
2) Plaintiff 2 received an initial pneumoconiosis diagnosis on September 29, 1997, and as a result of a detailed pneumoconiosis examination, was determined to have "Pneumoconiosis Type 2, moderate cardiopulmonary impairment," and received a disability grade 3 determination.
3) The Defendant designated (Company Name 2 omitted) as the workplace for applying Plaintiff 2's average wage and paid insurance benefits accordingly.
C. The Disposition at Issue in This Case
Plaintiff 1 asserted that the average wage should be calculated using (Company Name 1 omitted) as the applicable workplace, and Plaintiff 2 asserted that the average wage should be calculated using (Company Name 3 omitted) as the applicable workplace, and accordingly filed claims with the Defendant for correction of the average wage and payment of the difference in insurance benefits. However, the Defendant issued a disposition disapproving the correction of the average wage and refusing to pay the difference in insurance benefits, on the grounds that, among others, the above workplaces could not be regarded as the workplaces that were the main cause of the Plaintiffs' pneumoconiosis.
2. Relevant Legal Principles
The former Industrial Accident Compensation Insurance Act (Act No. 8373, before its full amendment on April 11, 2007; hereinafter the "Industrial Accident Insurance Act") required that the amount of insurance benefits such as temporary disability benefits and disability benefits be calculated by applying the average wage (Articles 41, 42, etc.), and provided that the average wage means the average wage under the Labor Standards Act (Article 4, Item 2). Article 19(1) of the former Labor Standards Act (before its full amendment by Act No. 8372 on April 11, 2007) defines the average wage as the amount obtained by dividing the total amount of wages paid to the worker during the three months prior to the date on which the cause for calculation arose by the total number of days in that period, and Article 2(1) of the former Enforcement Decree of the Labor Standards Act (before its full amendment by Presidential Decree No. 20142 on June 29, 2007) provides that certain periods, such as the period during which a worker was on leave for medical treatment for an occupational injury, and the wages paid during such periods, shall be excluded from the period and the total amount of wages used as the basis for calculating the average wage. Considering that the purpose of the average wage system is to guarantee the ordinary standard of living by accurately reflecting the worker's living wage, and that the cause for calculating the average wage, such as the occurrence of an occupational disease, arises from work performed during the existence of the employment relationship due to the work itself, when calculating the average wage that serves as the basis for insurance benefits under the Industrial Accident Insurance Act after an occupational disease diagnosis is confirmed following a worker's retirement, the period from the worker's retirement date until the date on which the cause for calculating the average wage arose, i.e., the date the diagnosis was confirmed, must be excluded from the average wage calculation period. If the period to be excluded from the average wage calculation period is three months or more, the retirement date, which is the first day of the excluded period, shall be deemed the date on which the cause for calculating the average wage arose, and the average wage shall be calculated on that basis; the amount thus calculated, after being adjusted upward or downward pursuant to Article 38(3) of the Industrial Accident Insurance Act, shall be used as the average wage serving as the basis for calculating the worker's insurance benefits (see Supreme Court Decision 2005Du2810 decided April 26, 2007). Meanwhile, when a worker who has worked at multiple workplaces retires and is subsequently diagnosed with an occupational disease such as pneumoconiosis, and the average wage is to be calculated, the retirement date that serves as the basis for such calculation should, in principle, mean the date of retirement from the last workplace, among those workplaces where the worker performed work having a substantial causal relationship with the occurrence or aggravation of the occupational disease, that is closest in time to the date the occupational disease diagnosis was confirmed. The specific reasons are as follows.
A. In the case of an occupational disease such as pneumoconiosis, which develops from long-term exposure to hazardous factors and has a latency period, there are not a few workers who are diagnosed with the disease only after retiring from the workplace that caused the disease, and some of them work at workplaces unrelated to the occupational disease in the interim. The workplace that caused the occupational disease is generally a place where the worker worked for a long period, so it can be seen that the wage level there appropriately reflects the worker's living wage. If the average wage were calculated based on wages received at a workplace that did not cause the occupational disease merely because that workplace is close in time to the diagnosis, then even among workers who worked at the same workplace and contracted the occupational disease, the workplace serving as the basis for calculating the average wage could differ depending on the incidental circumstance of which workplace the worker happened to work at immediately before the occupational disease diagnosis. Such a result would run counter to the purpose of the Industrial Accident Insurance Act, which is to provide fair compensation for occupational accidents.
B. An occupational accident means an injury, disease, physical disability, or death of a worker that occurs due to the work performed by the worker in the course of performing his or her duties (Article 4, Item 1 of the Industrial Accident Insurance Act), and the existence of a substantial causal relationship between the work and the accident is a requirement for the payment of insurance benefits under the Industrial Accident Insurance Act (see Supreme Court en banc Decision 2017Du45933 decided September 9, 2021). The system of compensating occupational accidents based on the average wage was introduced in the original enacted Labor Standards Act and came to be provided for in the Industrial Accident Insurance Act; under the Labor Standards Act, accident compensation is compensation paid by an employer, based on the average wage received at the relevant workplace, for an accident arising from work at that workplace. Although the Industrial Accident Insurance Act does not expressly require a substantial causal relationship between the occupational accident and the workplace serving as the basis for calculating the average wage, in light of the content and history of the industrial accident compensation insurance system as described above, it is reasonable, in order to ensure appropriate and fair compensation for occupational diseases such as pneumoconiosis, to use as the basis for calculating the average wage the workplace where the worker performed work having a substantial causal relationship with the occurrence or aggravation of the occupational disease.
C. Interpreting the law in this manner does not result in insufficient protection for workers who have suffered occupational accidents. This is because, even if a worker retired from the last workplace having a substantial causal relationship with the occupational disease well before the date of the occupational disease diagnosis, the final average wage is calculated by applying the wage fluctuation rate of workers in the same occupation, up to the date of the occupational disease diagnosis, to the average wage calculated based on that retirement date, pursuant to the average wage adjustment provisions of Article 38(3) of the Industrial Accident Insurance Act.
D. Where, due to special and incidental circumstances, the wages included in the calculation of the average wage are markedly less or more than in the ordinary case, such wages cannot be used as they are as the basis for calculating the average wage (see Supreme Court en banc Decision 97Da5015 decided May 12, 1999). Accordingly, where it is recognized that a worker's work capacity declined due to continuous exposure to the hazardous factor causing the occupational disease, resulting in a markedly lowered wage level at the last workplace, that wage amount cannot be used as the basis for calculating the average wage. However, where this is not the case, the wage amount received at the last of the workplaces where the worker performed work having a substantial causal relationship with the occurrence or aggravation of the occupational disease would most accurately reflect the worker's living wage, and therefore calculating the average wage on that basis accords with the purpose of the Industrial Accident Insurance Act, which requires insurance benefits to be calculated according to the average wage.
3. Determination
Examining the facts found above in light of the foregoing legal principles: it is true that the rock-drilling work performed by the Plaintiffs at the construction sites of (Company Name 1 omitted) and (Company Name 3 omitted), respectively, constituted work involving exposure to hazardous factors of pneumoconiosis, such as dust. However, Plaintiff 1 worked at (Company Name 1 omitted) for only 3 days, and Plaintiff 2 worked at (Company Name 3 omitted) for 16 days. Plaintiff 2 had previously performed coal-mine tunneling work at (Company Name 2 omitted) for over 16 years, involving severe exposure to dust, and at the time he was diagnosed with pneumoconiosis, five years after retiring from (Company Name 3 omitted), his pneumoconiosis had already progressed to a considerable degree. Given these circumstances, the court below should not have regarded each of the above workplaces as the workplace that caused the pneumoconiosis merely on the ground that rock-drilling work can generally be a cause of pneumoconiosis; rather, it should have determined whether the rock-drilling work performed by the Plaintiffs at each of the above workplaces had a substantial causal relationship with the occurrence or aggravation of the Plaintiffs' pneumoconiosis, by comprehensively considering the content of the work performed by the Plaintiffs at each of the above workplaces, the period of employment, the degree of exposure to hazardous factors, the time interval until the pneumoconiosis diagnosis, and the degree of pneumoconiosis diagnosed, among other factors.
Contrary to this, the court below determined that the average wage should be calculated based on the wages the Plaintiffs received at each of the above workplaces, solely on the ground that it could not be concluded that the rock-drilling work had no effect on the Plaintiffs' pneumoconiosis. The judgment below erred by misapprehending the legal principles concerning the method of calculating the average wage under the Industrial Accident Insurance Act and by failing to conduct the necessary examination, thereby affecting the conclusion of the judgment.
4. Conclusion
The judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This Judgment is rendered in accordance with the unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Ahn Cheol-sang (Presiding Justice), Roh Jeong-hee, Lee Heung-gu (Justice in Charge), Oh Seok-jun