Occupational Disease resulting from Food Infection on a Business Trip
Bongsoo Jung (Korean labor attorney, Kangnam labor law firm)

This industrial accident case involved a construction company manager who, while on a business trip, attended a lunch hosted by a client. The food served at the lunch was contaminated with bacteria, causing food poisoning, which ultimately led to his death.

I. Case Summary

1. The victim of the occupational disease, (hereafter referred to as “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 suffering from fatigue. On September 29, when his conditions worsened, the Employee was hospitalized at Aju Hospital, where he was treated, but died at 12:30 PM on September 30, due to virus Cirrhosis of the liver by hepatitis B 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 “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 resulting from eating food infected with Vibrio virus on his business trip, there was no considerable causality between food consumption and work performance.

3. The surviving family consulted the 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 disaster.


II. Brach Office’s Claim

1. The Employee was hospitalized for body aches in Aju University Hospital on September 29, 2006 and died on the following day from blood poisoning suspected of a Vibrio virus infection. The Employee worked five days per week as an electric researcher. It was investigated that he did not suffer extreme stress or physical fatigue; it could be assumed he was infected with Vibrio virus from oyster rice eaten at the restaurant he had dined while on his business trip. As a patient of 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 who have Cirrhosis of the liver are susceptible to blood poisoning from 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-typed 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. 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 disaster as there is little relation between food consumption and work performance. (Oct 10, 2006, Seoul Administrative Court 2006 Guhap 15202)

III. Survivors’ Claim

1. According to Article 36 (1) (Accident on a business trip) of Enforcement Regulations, Industrial Accident Compensation Insurance Act, in cases where the employee dies or becomes injured due to an accident caused while on duty outside the workplace—
i.e. a business trip—it is admitted as an industrial accident. This is because the employee’s actions taken on a business trip are deemed as work under employer’s supervision and control.

2. The Employee was inflected with the Vibrio virus after he ate the food provided to him by a client on the business trip. Dining with clients demands similar physiological performance as in regular work setting. Even though the Employee had managed his health poorly, he had no problems in carrying out his duty. According to the Doctor, the Vibrio virus can be very fatal to patients with chronic liver diseases, 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 been infected with the Vibrio virus that resulted in his death.
4. As the Employee died from a Vibrio virus infection after eating the food –essential physiological behavior-- while on the business trip, there is considerable causality between the Employee’s death and his work performance, and the case should be classified as occupational disaster under the Industrial Accident Compensation Insurance Act. Hence an application for review to the headquarters of Employee Welfare Corporation was submitted..


IV. Related Legal Regulations

1. Accident on a business trip (Article 36 of Enforcement Regulation, the Industrial Accident Compensation Insurance Act)
① In cases where the 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 a business trip, it is admitted as industrial accident. Provided, however, that if this shall not apply to one of the following cases, it is not regarded as an industrial accident:
1.        The accident occurred at a non-regular route on a business trip;
2.        The accident occurred as a result of the employee’s private behavior, self-injury or criminal offense, or due to a cause of aforementioned 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 on route to or leaving the workplace under the employer’s supervision, it shall apply to Paragraph ①.
③ In cases where the employee dies or becomes injured due to an accident that occurs during the period from starting work and to finishing work off-site, under the employer’s direction, it shall apply to Paragraph ①.

2. Criteria of work-related accident (Article 32 of Enforcement Regulation, the IACA)
Accident caused by one of the following reasons shall be regarded as work-related accident.
1) When the accident takes place while the employee performs contractual duties under supervisory control and management of the employer, or when the accident occurs due to defects of facilities or management;
2) When there is considerable causality between the accident and the injury of the employee;
3) When the accident is not caused by the employee's intentions, self-injury, criminal behaviors, etc.

V. Conclusion

1.        Fact finding
Before the accident, the Employee had carried out his ordinary duties as an electric engineer without much occupational fatigue and extreme stress. He was advised to take further precise medical examination for his deteriorating liver as a patient of Hepatitis B during his regular health check-up in 2004, but the Employee failed to take action. Admittedly, the Employee managed his health poorly by frequent alcohol consumption. Nonetheless, the Employee was on a business trip at his employer’s request, and on this business trip, he became infected with the Vibrio virus after eating 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 became affected with the Vibrio virus after eating contaminated seafood. As the seafood was eaten for lunch provided by the client during the business trip, this activity shall be treated as accompanying process in general if there was no other situation.
3.        Decision
Vibrio blood poisoning is a disease that results from eating raw seafood contaminated with Vibrio virus or from infection through skin-wounds in contaminated sea water and foreshore. It is an acute virus disease particularly common to chronic patients, 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 drink); however, his death did not result from natural exacerbation of his health, but from eating seafood. Therefore, the liver’s fatal condition resulted as a direct consequence of the Employee’s food consumption on his business trip, so this case is justifiably deemed as an industrial accident.