12/04/2019
Two rulings where resubmission to the Danish Medico-legal Council was rejected
The Danish Eastern High Court and the District Court of Randers within the same week both gave rulings rejecting resubmission to the Danish Medico-Legal Council.
The ruling of the Danish Eastern High Court
The ruling of 1 April 2019 made by the Danish Eastern High Court concerned an appeal regarding an alleged work-related accident. It was uncontested that the injured party had previously had knee problems, and had suffered a knee injury during a football match in his spare time. This happened in the weekend prior to the alleged work-related accident, where the injured party explained that he had fallen from a ladder. After the football incident, the injured party went to the hospital emergency room and was thoroughly examined, and he got an appointment for a check-up a week later. After the alleged work-related accident the injured party, however, did not go the hospital emergency room, but instead put off going to the hospital and just went to the arranged check-up. At the check-up no objective changes in the condition was found, only a subjective worsening, as the injured party informed that he had more pains.
The district court based its ruling on the fact that the work-related accident had happened, and that the employer was liable. The court, though, found for the employer, as the court was not of the opinion that the obtained statement from the Medico-legal Council was sufficient documentation for establishing a causal link. In the statement, the Medico-legal Council noted that there had been a subjective worsening after the work-related accident, but that the information in the matter pointed to the football incident being the cause of the injured party’s discomforts and the following sickness absence. The district court found that the statement from the Medico-legal Council could give rise to doubts because of the wording “... point to...”. However, after an overall assessment the court did not find that the burden of proof had been met.
The case was appealed with a request for resubmission to the Medico-legal Council. The additional questions, however, essentially related to a new fact based on the injured party having changed his statement during final hearing about the date of the injury. Furthermore, from the way in which the questions were asked it seemed as if they in different ways were trying to get the Medico-legal Council to graduate the probability for causal link on the basis of facts in the case singled out by the injured party.
The employer objected to the resubmission and argued that it was unnecessary evidence. On the one hand, no new medical material had been produced, and on the other hand, the questions conflicted with the guidelines from the Medico-legal Council, as they were not impartial.
The Danish Eastern High Court found that the Danish Medico-legal Council had made a clear statement and noted that no further medical information had been produced. On this basis, the court found that a resubmission would be unnecessary evidence. The resubmission was then rejected in accordance with section 341 of the Danish Administration of Justice Act.
The ruling of the District Court of Randers
The ruling of 4 April 2019 from the District Court of Randers also concerned a work-related accident where a nursery and childcare assistant believed that she had suffered back problems in connection with jumping on a trampoline embedded in the ground. She landed seated on the trampoline after one of the jumps, and believed she hit the ground under the trampoline when she landed.
At the first submission, the Danish Medico-legal Council among other things stated that the extent of the impact that the injured party had suffered could not be determined on the existing basis, and that none of the injured party’s discomforts with certainty could be ascribed to the accident. In addition, the Danish Medico-legal Council noted that there were divergent information in the medical material regarding the injured party’s prior back discomforts and the consequences of the accident. Finally, the Danish Medico-legal Council noted that the trauma could have resulted in the injured party suffering pelvic support problems in connection with her pregnancy later on, but that there was no documentation in support of this.
The injured party requested the case resubmitted to the Danish Medico-legal Council and drew up a further 8 questions, which in different ways should get the Danish Medico-legal Council to elaborate on the probability assessment based on the facts of the case singled out by the injured party. No further new medical information were obtained in this connection.
The employer objected to this and argued that the answers to the additional questions were provided in the existing answers. Furthermore, the additional questions were not impartial and were therefore not in keeping with the guidelines from the Danish Medico-legal Council.
The court relied on the employer’s argumentation and for that reason rejected resubmission to the Danish Medico-legal Council in accordance with section 341 of the Danish Administration of Justice Act.
Comment
A very large part of all personal injuries is submitted to the Danish Medico-legal Council, and the Council’s statements are not always clear. It has therefore become usual practice that the cases are often submitted to the Danish Medico-legal Council more than once. It is obvious that this practice prolongs the case processing time, and when the additional statements are available, the parties, in many cases, have not come any closer to obtaining a clear answer to the question of causal link.
This practise has developed over the years based on the assumption that a resubmission is beneficial, if the clarification questions will get the Danish Medico-legal Council to elaborate on the medical assessment in order to create a better basis for considering the question of causal link. However, this has all but resulted in resubmission being allowed, if it could not be ruled out that a further reply from the Danish Medico-legal Council could create a better basis for the court’s ruling, see to this UfR 2002.2886Ø and UfR 2004.1494Ø.
The two current rulings have in common that the Danish Medico-legal Council has not made a clear statement on the causal link in connection with the first submission. They therefore fall within the situation where it cannot be ruled out that a resubmission might create a better basis for the court’s ruling.
However, it is common to the two rulings that there are no new medical information on which to assess the case.
Finally, the rulings are almost identical, as the injured party in both cases is trying to mend a disadvantageous statement by asking the same question in a new way or by defining a fact for the Danish Medico-legal Council to consider, where the disadvantageous part of the fact are left out.
It seems that the courts in these situations are now tightening the practice so that we are moving away from a situation where resubmission is usual practice. This is definitely beneficial to the case processing time, and it is not likely to result in any great risk of loss of rights, as the decisive answer to the question of causal link is seldom given in connection with a resubmission.
Lawyer Thomas Arleth appeared before the courts on behalf of the employers. If you have any questions to the above, please send them to Thomas at thomas.arleth@kennedyslaw.com.
