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The Council of Appeal’s ruling of 16 September 2022
On 16 September 2022, the Council of Appeal ruled in an occupational injury case in which the Council of Appeal were summoned by Kennedys on behalf of the occupational injury insurance company.
The case concerned an occupational accident, that took place on 30 November 2017 where the injured party, at the time of accident a 32-years old woman, fell from a short ladder at her workplace and hit her neck and the back of her head on the floor.
Prior to the occupational accident, the injured party had a loose affiliation to the labour market with sick leaves due to mental problems and an earlier occupational injury from 2012. Furthermore, the injured party had problems with her lower back, headaches and neck pain and was therefore on large quantities of pain medicine. Prior to the occurrence of the injury, the injured party tried – unsuccessfully - to obtain a certificate of chronical illness for the purpose of being granted a municipal § 56 agreement.
After the occupational accident in question, the injured party mainly complained about headaches and neck pain radiating to her left shoulder. The injured party was after the injury on a short sick leave and subsequently went through a municipal job clarification program, where she had quite a lot of absence and an unstable attendance.
During the proceeding of the case, the Labour Market Insurance (hereafter LMI) ruled on 25 February 2019 acknowledgement of the occupational accident and on the level of impairment.
LMI acknowledged the accident as an occupational accident and the acknowledged occupational injury consisted of worsening of headaches and neck pain of which LMI assessed the injured party’s level of impairment to 8%. No deductions from the pre-existing impairments were made.
On 29 April 2019, LMI decided on loss of working capacity. In the decision, LMI assessed that the injured party had a temporary loss of working capacity on 85 %. No deductions from the pre-existing disorders were made here either as LMI assessed that the pre-existing neck pain and tension headaches with overwhelmingly probability would not have impacted the injured party’s capacity to work in the near future, had the accident not taken place.
The occupational injury insurance company appealed LMI’s ruling of loss of working capacity to the Council of Appeals, where the Council of Appeals on 16 January 2020 upheld the decision made by LMI.
The Council of Appeal assessed the pre-existing disorders to be without importance to the case as they had not resulted in long-term sick leaves. The Council of Appeal emphasized the level of impairment and the fact that the injured party had been diagnosed with bodily distress disorder in March 2019, which the Council of Appeal assessed not to give cause for deduction, as the disorder with overwhelmingly probability would not have occurred had the accident not taken place.
Hereafter, the occupational injury insurance company summoned the Council of Appeal, whereafter the Council’s ruling of 16 January 2020 was put to trial.
During the preparation for the trial, the Council of Coroners presented a statement concerning casual connection. In their statement, the Council of Coroners found that the occupational accident on 30 January 2017 had alone resulted in occasional and light headaches. Furthermore, the Council of Coroners assessed that none of the symptoms or disorders that the injured party complained about were with more than 50 % probability caused by the occupational accident on 30 November 2017.
As a result of the Council of Coroners’ statement, the Council of Appeal reopened the case and thus presented its ruling of 16 September 2022 with the assessment that the injured party were not entitled to compensation for loss of working capacity.
The Council of Appeal emphasised the Council of Coroners statement, and especially the Coroners assessment that the work accident only caused occasional and light headaches. Therefore, the Council of Appeal assessed that an occasional and light headache was not sufficient to cause loss of work capacity, why the Council of Appeal’s decision of 16 January 2020 was in violation with the Council of Coroners’ statement, which is an essential procedural error.
The Council of Appeal made the final assessment that the decision of 16 January 2020 was invalid, why the ruling of 16 September 2022 replaced the decision of 16 January 2020.
All previous rulings of loss of work capacity were also repealed and LMI had to decide whether the Council of Coroners’ statement provided a basis to resume LMI’s ruling from 25 February regarding acknowledgement and level of impairment.
Thus, the occupational injury insurance company was fully successful in the claim before the court.
The Council of Appeal’s decision of 29 September 2022
On 29 September 2022, the Council of Appeal ruled in another occupational injury case, where Kennedys on behalf of the occupational injury insurance company had summoned the Council of Appeal. In this case, both the Council of Appeal and LMI had been summoned.
This case concerned an incident taking place on 15 June 2018. It occurred as the injured party, a at the time of incident 21-year old man, was driving a forklift while gathering items and collided with another forklift at his place of work.
Prior to the incident, the injured party was physically healthy in both neck and back, but the injured party had a socially burdened background with a loose affiliation to the labour market.
After the incident, the injured party complained about constant pain in the entire back and neck together with constant headaches. The injured party went after the incident on sick leave.
During the occupational injury case, a statement from a medical specialist were obtain for the use of LMI’s assessment of the case. In this, the specialist concluded that there were inconsistencies between the trauma, the consequences and the objective examination. This was particularly due to the fact, according to the medical specialist, that the trauma was of very poor character, that the injured party at the objective examination had been largely intact as well as that the injured party, according to the specialist, seemed to be fixated on symptoms during examination.
On 24 September 2019, LMI ruled on acknowledgement and level of impairment. LMI acknowledged the incident on 15 June 2018 as an occupational injury as LMI assessed that there were both timely and medical causal connection between the work accident and the injury since the injured party was treated at the emergency room shortly after the accident. Furthermore, LMI determined the injured party’s level of impairment to be 12 % for lumbar- and neck pains.
The occupational injury insurance company appealed LMI’s ruling, as the company did not perceived the incident to qualify to entail permanent inconveniences. Hereafter, the Council of Appeal upheld the ruling of LMI in their decision of 8 June 2020.
Subsequently, the occupational injury insurance company submitted a request for reopening of the case to the Council of Appeal as the company forwarded information from the employer stating that the crash between the two forklifts happened with a speed of 5 km/h, as well as the fact that there were no materiel damages on either of the two forklifts after the crash.
The Council of Appeal rejected the request for the reopening of the case, whereafter the occupational injury insurance company issued a write of summons. The decision from the Council of Appeal from 8 June 2020 about acknowledgment and LMI’s ruling of 24 September 2019 concerning the level of impairment were henceforth put on trial.
Expert opinions from Dancrash were obtained during the preparation for the trial, which showed that there at the collision of the two forklifts were absolute minimal impact of force on both lower back and neck of the dummy that Dancrash used as a test person at the investigation.
The Council of Coroners subsequently came forward with their statement on 30 May 2022. The Council of Coroners assessed, the incident on 15 June 2018 to be a low-energy trauma without structural tissue damage or neurological impact, and hereby assessing the incident to be unsuitable for triggering permanent symptoms.
As a result of the statement from the Council of Coroners, the Council of Appeals reopened the case and came forward with a decision on 29 September 2022, in which the Counsel of Appeal assessed that the lumbar- and neck pains of the injured party were not a result of an occupational injury.
The Council of Appeal empathised the assessment of the Council of Coroners, including amongst other things that the incident was unsuitable for triggering permanent symptoms. Therefore the Council of Appeal stated that the assessment from the Council of Coroners to showed an essential assessment error in the previous processing of the case, why the decision from the Council of Appeal from 8 June 2020 was invalid.
Kennedys’ comments
The two cases are similar as they concern relatively young people who both physically and socially have had difficulties in the past.
There is a temporal connection between a larger or a smaller trauma and a subsequent sick leave, subjective health complaints and the initiation of a social process.
It seems like the Council of Appeal in these types of cases have difficulties assessing the requirements of the evidence of the consequences after the incidents. Both cases are acknowledged and a level of impairment is calculated, as well as a decision of significant loss of work capacity is made in one of the cases. The correct medical assessment should have led to a primary decision stating that there were no health related consequences to such an extent that the incidents according to the occupational injury insurance law could be acknowledged as accidents.
It is unfortunate that the persons concerned have to be dragged through court cases against the Council of Appeal, but the reality is, that especially the young age cause the insurance companies’ reservations for these types of cases to be significant. Therefore the insurance companies have to keep a critically mindset when it comes to the decisions and apply for the cases to be reopened, when the such foundation is present.
The cases were for the occupational injury insurance companies led by Legal Director Thomas Arleth and Trainee Solicitor Karoline Ulnits, to whom any questions can be forwarded.
Denmark