CASE OF ANDERSSON v. SWEDEN
Violation of Art. 6-1;Pecuniary damage - award
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
6. The applicant was born in 1930 and lives in Ingarö. 7. In September 1996 the applicant submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan –hereinafter “the Office”) of the County of Stockholm in which he requested that his lower back and hip joint problems be considered work-related, thereby making him eligible for occupational injury compensation (arbetsskadeersättning). 8. In a decision of 13 December 1996, the Office noted that the applicant had carried out heavy work as a slaughterhouse worker until 1982 when he had moved to the USA and worked on renovating walls. In 1988 the applicant had informed the Office that he could no longer carry out his work because of his hip joint problems. Thus, in June 1988, he had been granted early retirement pension on the ground that he suffered from lumbar spondylosis and coxarthritis (a degenerative joint disease of his lower back and right hip). On the basis of the above, the Office considered that it was possible that the applicant’s work in the USA had harmed him and, since it could only consider injuries which had occurred while working in Sweden, it could not examine the request. 9. Upon request by the applicant, the Office, on 17 February 1997, reconsidered its previous decision but decided not to change it. 10. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that his injuries had been caused by his work in Sweden. He stated that he had created a company in the USA to import Swedish fibreglass fabric but that, in order to get his business going, he had had to include measuring, installing and painting. However, since he already had pain in his hip joint and lower back, he had not been able to carry out the work and had sold the company. He further added that he had worked in slaughterhouses between 1948 and 1980, which had involved very heavy work in difficult conditions. In support, he submitted a medical certificate from Dr S.R., who had been working as a company doctor for more than 20 years in the food industry and had been the applicant’s company doctor between 1967 and 1980. According to Dr S.R., the applicant’s injuries were work-related, noting that he had carried animal carcasses and heavy pieces of meat up and down stairs, causing extreme strain on the back, hips, knees and ankles. Moreover, the work had been carried out in humid, draughty premises and with slippery floors. 11. On 15 September 1997 the County Administrative Court repealed the Office’s decision and sent the case back for renewed examination. It found that the applicant’s injuries could well have been caused by his work in Sweden and that the Office had the duty to evaluate whether this was the case. 12. To prepare the case, the Office requested the opinion of one of its own medical doctors (försäkringsläkare), Dr S.H., as to whether the applicant’s injuries were work-related. The doctor, who was a specialist in orthopaedics, gave his opinion on 23 September 1997. It was based on the information in the Office’s case-file and stated essentially the following. 13. It appeared from other medical certificates that the applicant had been healthy until his hip joint problems began in 1985-86. In 1988 his right hip and lower back had been x-rayed, which showed that the hip joint had degenerative alterations, whereas the lower back was not remarked on, having regard to the applicant’s age. In July 1996 the applicant had undergone a hip joint operation. In Dr S.H.’s opinion, the applicant suffered from moderate arthritis in his hip joint, which had developed slowly from the age of 55 and thus was age-related, not work-related. In this respect, he claimed that there was no general support in scientific literature for the proposition that elements in the working environment could cause arthritis. 14. On 14 January 1998, the Office decided that the applicant could not be granted occupational injury compensation as it considered that his injuries were not related to his work in Sweden. In reaching its decision, it had put much emphasis on the opinion of Dr S.H., since he was a specialist in orthopaedics. 15. The applicant appealed to the County Administrative Court, maintaining that he was entitled to occupational injury compensation due to his injuries, which were clearly work-related. In support of his appeal, he submitted a medical certificate by Dr P.H., specialist in orthopaedic surgery, who had treated the applicant. According to Dr P.H., the applicant had suffered from serious joint arthritis of the right hip when he first met him during the spring of 1996, which had led to the operation in July 1996. As the illness did not run in the applicant’s family and it had developed at an earlier age in the applicant than was normal, Dr P.H. considered that it was probable that the injury had been caused by the applicant’s heavy work in the slaughterhouse. Moreover, in his view, the applicant’s work in the USA had in no way affected the development of the arthritis. 16. The Office disputed the appeal and submitted that Dr P.H.’s opinion did not clearly show that the applicant’s work at the slaughterhouse had caused his injuries. 17. In May 1998 the applicant contacted the County Administrative Court and requested that an oral hearing be held in his case so that he could describe his working situation. However, by decision of 25 May 1998, the court rejected the request as it found that it was unnecessary with regard to the nature of the subject matter. The applicant was given three weeks in which to finalise his submissions. 18. On 29 June 1999, when asked by the County Administrative Court, the applicant renewed his request for an oral hearing but sent on the same day a fax to the court explaining that he did not request an oral hearing. 19. On 29 June 1999 the County Administrative Court rejected the applicant’s appeal. It did not question that his work had been of a very heavy nature. However, it noted that it had to be relatively widely accepted that certain factors in the working environment, with a high level of probability, could cause the relevant injuries. In the present case, the court found that the applicant had failed to show that there was a high level of probability that his work at the slaughterhouse had caused his hip joint arthritis. 20. The applicant made a further appeal to the Administrative Court of Appeal (kammarrätten) in Stockholm, maintaining his claims and adding that he wanted an oral hearing to be held so that he could prove his case, inter alia, by describing his working conditions in the slaughterhouse and developing the medical investigation. In this respect, he referred to Article 6 of the Convention and noted that he would later specify whom he wanted to call as expert witnesses. 21. Furthermore, the applicant submitted another medical certificate which supported his claim that his injuries were work-related. It was written by Dr H.B., specialist in orthopaedics, who had examined the applicant. In the certificate, Dr H.B. stated that studies existed which indicated a connection between heavy physical work and the development of hip joint arthritis. There were also studies which showed that the risk of developing hip joint arthritis increased with the number of tons that a person lifted during his working life. Having regard to the applicant’s background, his work at the slaughterhouse and the relatively young age at which he had developed the arthritis, Dr H.B. concluded that there were much stronger reasons in support of a connection between the applicant’s injuries and his work than against it. 22. The Office disputed the applicant’s appeal and the new medical certificate, submitting that the appeal should be rejected. 23. On 28 June 2001 the Administrative Court of Appeal rejected the applicant’s request for an oral hearing as it considered that, with regard to the nature of the subject mater, it was unnecessary to hold a hearing. The court granted the applicant two weeks to finalise his submissions in the case. 24. Subsequently, on 24 September 2001, the Administrative Court of Appeal rejected the appeal. Having regard to the medical investigation in the case, in particular the opinion of Dr S.H., as well as the time aspect (the applicant had stopped working in 1980 at the slaughterhouse but only been operated on in 1996), the court found that it had not been shown, with a high level of probability, that the work had caused the applicant’s injuries. 25. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) and requested that an oral hearing be held. He stressed that the lower courts had failed to hold a hearing, despite his express request and in violation of Article 6 of the Convention. Moreover, he submitted that a hearing was necessary in order for him to describe his working conditions at the slaughterhouse and to be able to question specialists to clarify his injuries and their causes. 26. On 16 July 2003 the Supreme Administrative Court rejected the applicant’s request for an oral hearing as it considered that there was no need for a hearing before it decided on whether or not to grant leave to appeal. It gave the applicant three weeks to submit any additional comments. 27. On 10 November 2003 the Supreme Administrative Court refused leave to appeal. 28. According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s place of work. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries. The insurance scheme is administered by the social insurance offices (as from 2005 the Swedish Social Insurance Agency) and includes, among other things, compensation for loss of earnings. A work injury must be immediately reported to the employer who is required to notify the social insurance office. The office must obtain a medical opinion concerning the injury. A medical doctor is attached to the office to assist it in medical matters. The assessment of whether an injury qualifies as a work injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the medical doctor’s assessment of these opinions and any other relevant information. 29. For an injury to qualify as a work injury, a causal link must be established between the accident or harmful effect in the workplace and the insured person’s health problems. What is meant by “harmful effect” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person (Chapter 2, section 1, of the 1976 Act in its wording from 1 January 1993 until 30 June 2002). At the relevant time, the question of whether a particular injury or illness incurred by the insured person was to be regarded as a work injury was subject to the following special rule of evidence. If the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion (Chapter 2, section 2, of the 1976 Act in its wording from 1 January 1993 and until 30 June 2002). 30. The amendments entering into force on 1 January 1993, and which applied to work injury reports that were submitted after 30 June 1993, the requirements in Chapter 2, sections 1 and 2, of the 1976 Act were tightened up. This meant, inter alia, that it had to be “highly probable”, and not merely “probable” that a certain factor in the working environment could cause a person’s injuries and, thereby, be considered as having harmful effects. The travaux préparatoires (see the Government Bill 1992/93:30, pp. 20 and 36) state that this implies that the responsible authorities have to consider more extensively than previously whether the exposure to a harmful factor at work has been of such an extent, intensity and duration that from this it can be concluded that the existence of harmfulness is highly probable. Furthermore, the collected knowledge must indicate with a considerable degree of probability that a factor in the environment is harmful. The view that a certain factor is very likely to cause an injury has to be relatively generally accepted. This is the case where substantial knowledge exists, within medical or other science, that a certain factor has such harmful effects. If there is a lack of such support, such as when, for example, there are profound differences in expert opinions, this requirement cannot be considered as fulfilled. Thus, the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effects. 31. The travaux préparatoires also state that the tightened requirement of harmfulness in many cases presupposes more careful investigations at workplaces regarding the harmful factors invoked and that the question of the causes of certain diseases has to be discussed more thoroughly. This, in turn, will result in the social insurance offices and the courts basing their decisions more extensively on different assessments of harmfulness within medical science. 32. Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen, Act no. 1971:291, as in force at the relevant time) was worded as follows: “The procedure shall be in writing. Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” 33. The travaux préparatoires to the Administrative Court Procedure Act emphasise that an oral procedure can be advantageous for the investigation of a case in two respects in particular. Firstly, such a hearing may be needed in order to examine a witness, expert or party or in cases where a party has difficulty expounding his or her claim in writing. Secondly, an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute. In the latter case, the procedure is typically of a preparatory nature. Moreover, the oral form of procedure envisaged in the 1971 Act is not to be seen as an alternative to the written form, but rather as a complement to that form (see the Government Bill 1971:30, p. 535). 34. The possibility of holding an oral hearing in order to promote an expeditious determination of the case, which was first introduced in 1983, was a clarification of a practice that already applied (see the Government Bill 1982/83:134, Parliamentary Committee on Justice JuU 36, Parliamentary Communication 378, SFS 1983:461). The purpose of the legislative amendment was to make it clearer that an oral hearing can and should be used for preparatory purposes in certain cases, to make for speedier and more effective proceedings. The amendment was primarily intended for tax cases associated with tax offence cases before courts of general jurisdiction. 35. Furthermore, the travaux préparatoires to the 1971 Act underlined, in connection with the provision in section 9 of the Act concerning the right of a party to an oral hearing in certain cases, that while serious consideration should be given to the wishes of a party for such a hearing, the party could hardly be allowed to have a decisive influence in the matter. The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case, but it should also be possible to accord significance to other factors, for example, if the case is very important for the party and a hearing would give him a better understanding of the import of the decision to be given in the case. One particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute (see Government Bill 1971:30, p. 537). 36. In recent years the Supreme Administrative Court has set aside a number of decisions on appeal and referred the case back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts (see, for example, RA 2002 ref. 23, BA 2003 note 68, RA 2004 note 65 and RA 2007 note 171; as more specifically regards work injuries, see RA 2004 note 66 and RA 2006 note 207). In the last mentioned case, an administrative court of appeal had changed the lower court’s judgment to the applicant’s disadvantage without holding an oral hearing. Furthermore, the applicant had requested that a medical doctor be heard as a witness.