Ruling in residual compensation claim

High Court ruling in case BS-35651/2020-VLR

For dansk venligst ændre sprog øverst til venstre i den grønne boks. 

On 16 September 2021, the Western High Court ruled in a case concerning the limitation of a claim for residual compensation for loss of earning capacity. In its ruling, the High Court upheld the ruling of 19 August 2020 of the District Court of Herning.

The case concerned an employee at a meat processing facility who suffered an injury on 2 July 2008 while at work.

The employee fell and injured her left shoulder. However, she resumed her work about 6 weeks after the accident.

In the ensuing course, however, she continued experiencing an increased discomfort from the shoulder, and she continued to go to medical examinations.

The Danish Labour Market Insurance made a decision on 27 August 2009. According to the decision, the accident was recognised as eligible under the Danish Occupational Injury Insurance Act and a 10% compensation was awarded for permanent injury. The loss of earning capacity was estimated to less than 15% as the employee had resumed her work after her sick leave.

However, the employee continued to experience discomfort in her left shoulder and the pain worsened after another incident at work. On 18 January 2013, the employee was terminated from the meat processing facility. Her trade union assisted her and requested the reopening of the industrial injury case on 22 January 2013, and after a clarification process, the employee was granted a temporary flex job by decision dated 26 June 2013.

Subsequently, the Danish Labour Market Insurance made several decisions on the recognition of her temporary loss of earning capacity.

On 19 January 2018, the employee's lawyer contacted the employer, meat processing facility, and argued that they were liable for the accident according to the Danish general rules on compensation.

The meat processing facility rejected liability on 27 June 2018, and the employee issued a subpoena on 17 October 2019.

During the legal proceedings, it was agreed that any temporary insurance items were time-barred, but the employee maintained that the claim for residual compensation for loss of earning capacity was not time-barred. She alleged her view was supported in particular by a case referred to in “UfR 2017.2583H”, according to which the limitation period for the claim for residual compensation for loss of earning capacity only begins to run from the final decision in the occupational injury case.

The meat processing facility argued, in the light of the legal position set out in the supreme court decision referred to in “UfR 2012.3181H”, that the limitation period ran from the first decision of the Danish Labour Market Insurance of 27 August 2009, which was also final as regards the loss of earning capacity. The Supreme court ruling states that the request for resumption of an occupational injury case does not affect the beginning of the limitation period. The limitation period thus begins to run from the first final decision on loss of earning capacity.

The district court in Herning ruled on 19 August 2020 with a panel of three legal judges.

The anonymised ruling can be read here.

The district court held that there were no circumstances justifying that the limitation period for any residual claim of the employee should be calculated at a later date than the 5th anniversary of the first final decision on the loss of earning capacity dated 27 August 2009. The limitation period thus ended on 27 August 2014 and the case was time-barred when legal proceeding were initiated on 17 October 2019.

The case was appealed to the Western High Court, which delivered its ruling on 16 September 2021.

During the High Court proceedings, the same pleas were raised as in the district court proceedings.

The High Court found that at least on 22 January 2013, when the employee requested the Danish Labour Market Insurance for a resumption of the question of loss of earning capacity, she was aware of her possible claim for compensation for residual claims. Therefore, the limitation period began to run no later than 22 January 2013, which is why the claim was time-barred. The district court's conclusion was upheld.

The anonymised ruling can be read here.

Kennedys notes

At Kennedys, we note that both the district court and the High Court agreed that the employee's compensation claim was time-barred. It is striking, however, that the reasoning for the acquittal of the meat processing facility differs.

The district court's ruling was based on relevant case law and noted that the actual course of events did not constitute special circumstances justifying a later date of limitation than the first final decision on the loss of earning capacity from 27 August 2009. That statement of reasons is consistent with the principal plea, and thus no emphasis is placed on what subjective knowledge of a claim, the employee may have had when the case became time barred on 27 August 2014.

The High Court does not confirm this view, but places a decisive emphasis on the subjective knowledge of the employee of her potential claim. Consequently the court find that at the time of the request to the Danish Labour Market Insurance for resumption of the employee also knew of her potential claim against the meat processing facility and this triggered the limitation period.

The high court's ruling does not seem to be fully in line with the current Supreme Court practice, since the emphasis is solely on the employee's subjective knowledge of her potential claim. We do not known whether the difference in reasoning will lead the employee to request leave to bring the claim to the supreme court.

At the district court, the meat processing facility was represented by attorney Safinaz Altintas and at the High Court by attorney Medea Plesner Petersen. Any questions relating to the case or the ruling can be directed to attorney Thomas Arleth.