III. Food Poisoning on a Business Trip Recognized as Occupational Fatality

A. Summary
1. The victim of the occupational illness, (hereafter referred to as “the Employee”) began working for Construction Company D on January 1, 1995 as an electric researcher at the company’s Technical Center. For a total of two days and one night—September 25, 2006 to September 26, 2006—the Employee went on a business trip to Daegu and Guje. When he returned to work the following day on September 27, he felt a chill, but continued to work normally. On August 28, he took a day off using his annual leave due to fatigue. On September 29, when his condition worsened, the Employee was hospitalized at Ajou Hospital, where he was treated, but died at 12:30 PM on September 30 from hepatitis B-induced cirrhosis of the liver and blood poisoning.
2. Following the Employee’s death, the surviving family applied for survivors’ pension and funeral expenses to the Branch Office of the Employee Welfare Corporation (hereafter referred to as “EWC Branch Office”), but the Branch Office rejected the application on the grounds that medical survey and objective investigation revealed little evidence that the Employee’s death was related to overwork. The Branch Office argued that even if the Employee, who was in poor health at the time, had died from eating food contaminated with the Vibrio virus on his business trip, there was no considerable causality between food consumption and work performance.
3. The surviving family consulted this labor attorney for a review of the rejected decision and appealed to the headquarters of the Employee Welfare Corporation. After further scrutiny, the Employee Welfare Corporation admitted the case as an occupational fatality.
B. Branch Office’s Claim

1. The Employee was admitted to Ajou University Hospital for body aches on September 29, 2006 and died the following day, with the cause of death suspected to be Vibrio virus-induced blood poisoning. The Employee worked five days per week as an electric researcher. It was investigated that he did not suffer from extreme stress or physical fatigue; it could be assumed he was infected with the Vibrio virus from oyster eaten at a restaurant while on his business trip. As a patient with hepatitis B, he was diagnosed with cirrhosis of the liver during his physical examination check-up in 2004. He neglected the doctor’s advice to seek further precision examination. Additionally, his medical records indicated that the Employee consumed three bottles of Soju during one sitting on average 3 times per week. Given the fact that those with cirrhosis of the liver are susceptible to blood poisoning from the Vibrio virus, we determined the Employee’s poor management of his own health had led to his infection. Hence, we concluded there was no considerable causality between food consumption and work performance.

2. As the Employee died on account of a blood-poisoning shock, Vibrio blood poisoning, acute insufficiency, and hepatitis B-induced cirrhosis, there was no basis to admit that his death was due to occupational fatigue. The doctor stated it would be difficult to relate work performance to his death, because the Employee was infected with the Vibrio virus when his health was so poorly managed. A similar judicial ruling showed there is no relation between food consumption and work performance. Hence, we concluded his death is an accident not related to work.

Although the Employee ate a swellfish that caused secondary infection of virus peritonitis, it is difficult to accept the occasion as an occupational fatality as there is little relation between food consumption and work performance. (Oct. 10, 2006, Seoul Administrative Court 2006guhap15202)

C. Survivors’ Claim

1. According to Article 36 (1) (Accident on a business trip) of the Enforcement Regulations to the Industrial Accident Compensation Insurance Act, in cases where an employee dies or becomes injured due to an incident while on duty outside the workplace—i.e. a business trip—it is admitted as an industrial accident. This is because the employee on a business trip is deemed to be working under the employer’s supervision and control.
2. The Employee contracted the Vibrio virus after he ate food provided to him by a client on the business trip. Dining with clients demands similar physiological performance as in a regular work setting. Even though the Employee had managed his health poorly, he had no problems carrying out his duties. According to the doctor, the Vibrio virus can be fatal for people with chronic liver disease, as in this case.
3. Despite being at fault for the poor management of his health, if the Employee had not eaten the food—essential physiological behavior—on his business trip under his employer’s supervision and control, he would not have contracted the Vibrio virus that resulted in his death.
4. Accordingly, there is considerable causality between the Employee’s death and his work performance, and the case should be classified as an occupational fatality under the Industrial Accident Compensation Insurance Act. Hence an application for review to the headquarters of Employee Welfare Corporation was submitted.

D. Related Legal Regulations

1. Accident on a business trip (Article 36 of Enforcement Regulations to the Industrial Accident Compensation Insurance Act)
① In cases where an employee dies or becomes injured due to an accident while carrying out his/her duty outside the workplace under the employer’s order, such as while on a business trip, it is admitted as an industrial accident. Provided, however, that if any of the following cases apply, it is not regarded as an industrial accident:
1. The accident occurred on a non-regular route while on a business trip;
2. The accident occurred as a result of the employee’s private behavior, self-injury or criminal actions, or due to a cause of such actions;
3. The accident occurred in violation of the employer’s direction.
② In cases where the employee dies or becomes injured due to an accident while enroute to or leaving the workplace under the employer’s supervision, Paragraph ① above shall apply.
③ In cases where the employee dies or becomes injured due to an accident that occurs during the period from work starting and work finishing off-site, under the employer’s direction, Paragraph ①shall apply.

2. Criteria for an accident to be deemed related to work (Article 32 of Enforcement Regulations to the IACI Act)
An accident to which any of the following apply shall be regarded as a work-related accident.
1) The accident takes place while the employee is performing contractual duties under supervisory control and management of the employer, or is due to defects of facilities or management;
2) There is considerable causality between the accident and injury of the employee;
3) The accident is not caused by the employee's intentions, self-injury, criminal actions, etc.

E. Conclusion

1. Fact finding
Before the accident, the Employee had carried out his ordinary duties as an electric engineer without much occupational fatigue or under extreme stress. He was advised to seek further precise medical diagnosis for his deteriorating liver, as he had hepatitis B, during his regular health checkup in 2004, but the Employee failed to take action. Admittedly, the Employee managed his health poorly through frequent consumption of alcohol. Nonetheless, the Employee was on a business trip at his employer’s request, during which he contracted the Vibrio virus from food (oyster rice, raw oyster, fried oyster etc.) provided to him by the client.

2. Legal reference
The Employee’s death resulted from Vibrio blood poisoning. It is believed the Employee contracted the Vibrio virus from contaminated seafood. As the seafood was eaten for lunch provided by the client during a business trip, this physical activity shall be treated as accompanying process in general unless other situations are involved.

3. Decision
Vibrio blood poisoning is an illness that results from eating raw seafood contaminated with the Vibrio virus or from infection through skin-wounds in contaminated sea water or foreshore. It is an acute viral condition particularly common to patients with chronic illness, alcoholics and habitual drinkers. The Employee had a serious liver problem due to chronic cirrhosis of the liver and died of a blood poisoning shock due to the Vibrio virus infection. It is acknowledged that his immune system had weakened from poor management of his health (e.g. heavy drinking); however, his death did not result from such damage to his health, but from eating contaminated seafood. Therefore, the liver’s fatal condition resulted as a direct consequence of the Employee’s consumption of food on a business trip, so this case is justifiably deemed as an occupational fatality.