II. Can an Accident on the Way to the Office before a Business Trip be Related to Work? This case is of an industrial accident that occurred before the commuting accident guidelines were formally recognized in 2018. The verification process was critical, and so was inserted into the commuting accident section for better understanding.

        
A. Introduction
When an accident at work is determined to be work-related, this can provide the injured employee and his/her family the opportunity to more easily recover from the misfortune. A certain employee left home two hours earlier than usual to go to his office before beginning a business trip, and got into a traffic accident, which resulted in his becoming paralyzed from the waist down. A branch office of the Korea Workers’ Compensation & Welfare Service Corporation (hereinafter referred to as “the Agency”) rejected the employee’s application for accident compensation, on the grounds that the accident occurred on the way to a gathering place for a business trip, not on the business trip itself, and that an accident occurring on the way to work is not recognized as a work-related accident under current labor laws. The employee appealed to the Agency’s head office for a reexamination of his application, claiming that even though the accident involved his own car and occurred on the way to work, the employer assigned the employee to take part in the business trip and designated his car as the main form of transportation. Therefore, the accident could be considered to have occurred during the business trip. The Accident Compensation Appeal Board confirmed that the company had designated his car as the main form of transportation, and that the accident occurred on the way to work to pick up his colleagues, and so it reversed the branch office’s rejection of his application for accident compensation.
Herein, we will review the main points of dispute and the criteria for determining whether an accident that occurs during the commute to and from work before a business trip can be considered a work-related accident.

B. Actual Facts & Main Points of Dispute
1. Actual facts
The employee drove away from his house (in Daebang-dong, Seoul) at 5:30 am in his own car, which would be the main vehicle for the business trip, to participate in a meeting in Changwon, South Gyeongsang Province at 11 am, June 26, 2015. On the way to the office (located in Anyang City) to pick up the company president (the employer) and a colleague, his car slid on the road (wet from rain) and hit some trees on the side of the road, causing injuries that resulted in him being paralyzed from the waist down. The employee applied for accident compensation, but the Agency rejected it.

2. Reasons for the Agency’s rejection
In cases where employees receive an order from their employer to take a business trip, are to meet at a certain gathering place and move on to the workplace in a vehicle provided by the employer, the business trip is from the time of meeting at the gathering place to the time of returning to the gathering place at the end of the business trip. Therefore, the time during which the employees travel to the gathering place from their respective residences, and the time during which they return to their respective residences from the gathering place shall be regarded as outside of the business trip. This means that cases where several employees are ordered to go on a business trip and are asked to meet at a certain gathering place and travel to the working place together in one particular employee’s car should be regarded as the same. Therefore, this accident was a traffic accident that occurred on the way to the gathering place while the employee was driving his own car outside the employer’s control. Therefore, the accident is an “accident during the commute to and from work” and is not recognized as a work-related accident.

3. The employee’s claim
(1) The route and means of transportation had been ordered.         
The employee usually left his house around 7:30 am, traveling to work either by public transit or his own car. However, on the day the accident occurred, he left his house around 5:30 am, two hours earlier than usual, to meet his employer and a colleague at the office (in Anyang), as substantially directed the day before (June 25, 2016) by the employer, to take the business trip together in the employee’s car.
The place where the accident occurred was on a main road, the typical route the employee used to commute to work from his house. The employer confirmed that the accident occurred while the employee was following company instructions, covered some medical expenses and lost wages, and submitted the Application for Medical Care Benefits on behalf of the employee. Since the employer had designated the applicant’s own car as the main transportation for the business trip, the means of getting to the gathering place was restricted to that car, and the route was also determined. Therefore, as the employee’s car was used for business purposes from the time he left his house on the day of the accident, the employee’s right to use his vehicle had changed hands to the employer, making this accident one that occurred while under the employer’s direction.
(2) This accident was an occupational accident regardless of whether it occurred during a commute or on the business trip.
The employee had to use his car for the business trip as the employer had directed, and had the accident on the way to the office (in Anyang) to pick up the president and a colleague who were waiting there. This accident should therefore be considered an occupational accident because the employee’s car was at the time being operated by the employee while he was acting according to the employer’s direction and supervision: the fact that the employee was using his own car for the business trip to Changwon via the company premises in Anyang was in the course of implementing the employer’s instructions. Therefore, the vehicle that the employee drove to the office in Anyang was not the vehicle that the employee could choose, but the vehicle the employer chose, making this accident one that occurred while commuting to work under the employer’s direction and supervision.

4. Main points of dispute
This case revolves around whether a traffic accident caused by individual negligence can be considered an accident during a business trip or a simple commuting accident. Generally, accidents during the commute to work for the purpose of taking a business trip are not considered occupational accidents, but in cases where the employer has designated a certain employee’s car as the vehicle for the business trip, a traffic accident occurring during that employee’s commute to work in that designated vehicle can be recognized as an occupational accident. These controversial issues are the main points of dispute.

C. Legal Principles for Commuting Accidents

1. Related laws
The term “work-related accident” refers to any injury, illness, disability or death of a worker, that occurs in the course of carrying out his/her duties. Article 5 of the Industrial Accident Compensation Insurance Act.
The criteria for recognition of an accident as related to work: “an accident is admitted as an occupational accident when it happens while the worker is commuting to and from work under the control of the employer, such as using transportation provided by the employer or the equivalent thereof: ① The accident happens while the worker is using a means of transport which either is provided by the employer for the worker’s commute to and from work or can be regarded as being provided by the employer; ② The worker shall not have entire and exclusive responsibility to manage or use the means of transport used for his/her commute to and from work.” Article 37 of the IACI Act (Criteria for Recognition of Work-related Accidents); Article 29 of the IACI Act’s Enforcement Decree (Accidents while Commuting to and from Work).

2. Related judicial rulings                 
(1) A Supreme Court ruling stipulates, “In considering the content of the above provisions and forms and the legislative intent, Article 29 of the Presidential Decree enumerates some work-related accident examples to give requirements for accidents to be considered work-related. Article 37 of the IACI Act (Accidents while Commuting to and from Work) regulates that work-related accidents include “an accident which happens while the worker is commuting to and from work under the control of the employer, such as using transportation provided by the employer or the equivalent thereof.” This Article does not regulate that other work-related accidents occurring while commuting to and from work should be excluded from what can be deemed as occupational accidents. ① In cases where the employee uses the means of transportation provided by the employer or has to use another equivalent means of transportation as directed by the employer; ② In cases where the employee has to fulfill work-related duties while commuting to and from work, or the employee has to conduct urgent assignments before or after ordinary working hours; ③ In cases where the employee did not have any other choice in means of transportation to commute to and from work due to characteristics of the job or special characteristics of the workplace: Such accidents occurring during the commute to and from work can be directly and closely related to work, and so such accidents shall be recognized as work-related accidents occurring while under the employer’s direction and supervision.” Supreme Court rulings on Nov. 29, 2015 (2001do28165) and Sept. 25, 2008 (2006du4127).

(2) In cases where an accident occurs during a situation involving commuting and a business trip, judicial ruling determines the following: “Article 34 (Paragraph 4) of the IACI Act’s Enforcement Decree regulates that in cases where the employee is injured while commuting to and from work, only the following two cases are recognized as work-related accidents: ① The accident should happen while the worker is using a means of transport provided by the employer for the worker’s commute to and from work; or ② The worker should not have entire and exclusive responsibility to manage or use the means of transport used for his/her commute to and from work. Accordingly, the employee concerned went on a business trip with his team leader and colleagues, then returned to the gathering place, where each person went to their respective homes. On the way back to his house, the employee concerned drove his own car and had a traffic accident. The employee concerned was not under the employer’s direction and supervision. He drove at his own volition, so this accident cannot be regarded as an occupational accident.” Supreme Court ruling on Sept. 4, 2002 (2002do5290): The employee died on the way back home from the business trip. The accident occurred out of the regular route and means, and so could not be recognized as a work-related accident.

3. The Agency’s criteria for determining accidents while commuting to and from work as work-related: Guidelines for handling accidents occurring while commuting to and from work: Korea Workers’ Compensation and Welfare Service, Compensation Department – 10195 (Dec. 17, 2013). The Agency distributed guidelines that included a wider recognition of accidents while commuting to and from work to be determined as work-related.

(1) Basic principle: Whether the traffic accident while commuting to and from work can be recognized as work-related or not shall be determined by whether the route for commuting to and from work was under the direction of the employer. Therefore, it shall consider whether the means of transportation was provided by the employer or whether the employee could decide the means of transportation and his/her commuting route or not.
(2) Whether the traffic accident while commuting to and from work can be recognized as work-related or not shall be determined by the following:
① 1st step: The accident should satisfy the requirements in Article 29 of the Enforcement Decree to the IACI Act. That is, the employee should use a means of transport like the company’s commuter bus and its route exclusively, or use its equivalent means.
② 2nd step: Whether the route and means of transportation can be determined by the employee. That is, even though an employee uses his/her own car for commuting, if the employee cannot use another means of transportation or route, it shall be regarded as an occupational accident.
(3) Choice of route and means are determined to be limited in the following cases:
① The employee carries out assigned duties during the commute to and from work;
The employee carries out urgent duties related to work before or after the usual contractual working hours; and
In view of other job characteristics or special characteristics of the workplace, the employee’s choice of means of transportation and route for the commute to and from the workplace is limited by the employer.
However, in ① and ②, until the employee completes his/her duties and tasks and returns to the ordinary commuting route, his/her trip is treated as a business trip, and any accident occurring after the employee returns to the ordinary commuting route shall be determined as an “accident while commuting to and from work.” Korea Workers’ Compensation and Welfare Service, Compensation Department – 7065ho, Aug. 30, 2013.


D. Decision by the Industrial Accident Review Committee & Evaluation

1. Decision
The employee usually used the subway to commute and only used his own car when he had a business trip, usually two or three times a week. In the morning, he arrived at the office around 8:30. On the day when the accident occurred, he was directed by his employer to use his own car, and drove it towards the office to pick up the president and a colleague before leaving together on the business trip. The employee left his house around 5:30 am, two hours earlier than ordinary, and had the accident at 6:16 am. The accident occurred on the regular commuting route. In consideration of these things, the employee’s accident is considered a work-related accident occurring while under the employer’s direction and supervision as per the means of transportation and route, so the Committee unanimously reversed the Agency’s earlier rejection.

2. Evaluation
The day before the accident, the employer had designated the employee’s car as the means of transportation for the business trip. The employee did not use public transit as he normally did and instead drove his own car to work to use for the business trip as directed. On the way to the office, he got into an accident. Even though the car was his own, it was designated by the employer for company use, so the accident can be regarded as work-related as the employee used the car as designated by the employer under the employer’s direction and supervision.

E. Conclusion

The courts have continuously expanded the range of situations where accidents occurring while commuting to and from work are recognized as work-related, and on December 17, 2013, the Agency distributed updated work-process guidelines reflecting recent judicial rulings. The accident in this article was recognized as work-related in accordance with this gradually-widening scope of work-related accidents occurring while commuting to and from work.
Recently, revision of the Industrial Accident Compensation Insurance Act has been proposed to the National Assembly to extend the range of commuting accidents as related to work. Currently, in general terms, accidents occurring while commuting to and from work are not recognized as work-related accidents, even though they are the most frequent type of accident and seriously hinder employees’ abilities to earn a living. At present, commuting accidents are generally only admissible as work-related for government employees, which also goes against the principle of equal treatment for employees in the private sector. I look forward to such private-sector employees receiving equal protection under the principles of industrial accident compensation. As the legal representative for the employee in the case described in this article, it was with great satisfaction that I was able to assist him in successfully appealing the Agency’s rejection of his application for compensation, and thereby provide his family some hope and relief for the future.