CASE OF KUKKONEN v. FINLAND
No violation of Art. 6-1
Nicolas Bratza
6. The applicant, who is a carpenter by profession, was born in 1967 and lives in Helsinki. 7. On 31 January 1994 the applicant had an accident at work. He sustained a splinter fracture of his left elbow which later developed into degenerative arthritis. The insurance company paid him an occupational injury pension (tapaturmaeläke, olycksfallspension) until 31 May 1996. 8. The applicant applied to have the pension continued from 1 June 1996 onwards. On 8 May 1996 the insurance company rejected his application finding that the applicant's working capacity had been reduced by less than 10%. It further held that the applicant's inability to return to his previous profession as a carpenter was not based on the injury to his left arm, but on his neck and shoulder pains which had not been caused by the accident. 9. The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden), repeating his requests. He relied on a medical opinion dated 13 May 1996 in which he was found to be unfit for carpentry work as well as an another medical opinion dated 4 June 1996. He submitted two further medical opinions dated 28 June 1996 and 19 January 1996 respectively. 10. The Accident Board rejected his appeal on 13 March 1997 by four votes to one. It ruled, inter alia, as follows: “[t]he medical opinions at its disposal show that the strain tolerance of [the applicant's] left elbow was reduced due to the limitations on moving it and its susceptibility to pain. Therefore he is incapable of full-time carpentry work. ... In the work-testing project (työkokeilututkimus, arbetsprövning) no plan for vocational education was tested due to [the applicant's] pain. [The applicant's] neck and head pains were not caused by the accident and therefore cannot be compensated under the Act on Accident Insurance.” 11. The applicant, represented by a lawyer, appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen) submitting further evidence. The Insurance Court received several other documents, for example medical opinions and case histories of the applicant. The insurance company gave its opinion, to which the applicant replied. 12. On 17 November 1998 the Insurance Court rejected the bulk of his appeal. It however modified the Accident Board's decision so as to grant the applicant a 100% occupational injury pension for the period 20 May to 19 June 1997, during which the applicant had participated in a work-testing project. 13. Having telephoned the Insurance Court, the applicant was told that his case file consisted of over 1,000 pages of material. He acquainted himself with the case file at the office of the court's registry and found three documents, which allegedly had not been communicated to him by the Insurance Court. In his application for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) he claimed, inter alia, that he had not been sent all the documents relevant to his case. 14. The Supreme Court refused the applicant leave to appeal on 21 October 1999. 15. On 27 March 2000 the applicant, using an extraordinary procedure, requested the Supreme Court to annul its decision and that of the Insurance Court. He argued that the latter court had failed to send him documents, including a hand-written memorandum dated 9 October (year not indicated) written by a lawyer of the insurance company concerning her telephone conversation with an employee of the Insurance Rehabilitation Association (Vakuutuskuntoutus VKK r.y., Försäkringsbranschens Rehabilitering r.f., “the Association”). The note included, inter alia, the following comments: “[the applicant] does not consider pain rehabilitation possible” and “[the applicant] is currently awaiting the Insurance Court's decision”. On 22 January 2002 he submitted that the case file had also included an assessment and rehabilitation advice by the Association dated 11 April 1995 and 8 February 1996, respectively, which had not been sent to him. 16. On 13 November 2003 the Supreme Court rejected his application by a majority. It found that the non-communicated documents related to decision-making within the insurance company and that it remained unclear when and how the memorandum was included in the case file, which was exceptionally voluminous. In any event, the non-communicated documents were not submitted to the court in connection with either of the parties' submissions relied on in evidence by them or by the court in reaching its decision. One of the Justices considered that the three documents mentioned by the applicant were not entirely irrelevant to the proceedings before the Insurance Court. In his view, the Insurance Court had made a procedural error and concluded that the applicant had not received a fair trial within the meaning of Article 6 of the Convention.