HAUTAKANGAS v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Kalevi Hautakangas, is a Finnish national, who was born in 1948 and lives in Mutala. He was represented before the Court by Mr Jukka Ahomäki, a lawyer practising in Järvenpää. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant sustained injuries to his shoulder, arms and wrists in an accident on 9 March 1994 while driving a kick sledge. An insurance company granted the applicant a daily allowance (päiväraha, dagpenning) for 100 % reduction of his working capacity from 11 March 1994 to 8 March 1995. As the applicant apparently had continued problems, especially with his right wrist, he submitted medical opinions to the insurance company, applying for a continued daily allowance / accident pension for the period from 8 March 1995 onwards. On 14 June 1995 the insurance company rejected his application and denied the compensation claim for loss of income, considering that the applicant’s working capacity was reduced by less than 10 % and that he was able to work at his post as technical director in a company. The applicant sought medical help in 1996 and participated, inter alia, in a rehabilitation examination. Right elbow nerve damage and signs of damage to the right wrist as well as depression were diagnosed in a medical opinion dated 29 April 1996. The applicant also underwent an isotope survey on 7 January 1997 and submitted to the insurance company a medical opinion dated 7 March 1997 regarding his hands and wrists. On 22 October 1997 the insurance company upheld its previous decision and decided not to grant the applicant a daily allowance for the period 8 March 1995 onwards. On 18 November 1997 the insurance company corrected its previous decision of 22 October 1997 so as to grant the applicant an accident pension for 100 % reduction of working capacity from 9 March to 31 March 1995. The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden) requesting an accident pension (tapaturmaeläke, olycksfallspension) as of 8 March 1995. He relied, inter alia, on a medical opinion in which he was regarded as unfit to work until 31 March 1995; on a medical opinion of 20 April 1995, in which he was regarded as unfit to work for the following year; and on documents from the rehabilitation examination in 1996. The insurance company submitted in its observations that the applicant was not entitled to compensation after 31 March 1995. It maintained that the accident had caused impact injuries to the applicant’s left shoulder joint, left forearm and both wrists. The applicant claimed that he had sustained injuries in addition to his shoulder, neck, right shoulder joint and right forearm, requesting an accident pension as from 1 April 1995 with interest. The insurance company further adduced a medical opinion dated 11 December 1997 in which the applicant was regarded as unfit to work due to depression until 30 June 1998. The company maintained that the applicant’s neck strain and depression were not caused by the accident of 9 March 1994 and that the elbow nerve damage, which was caused by the said accident, was so mild that it did not render the applicant incapable to work. On 16 April 1998 the Accident Board upheld the insurance company’s decision of 18 November 1997. It reasoned its decision as follows: “Based on the medical evidence submitted [the applicant] has sustained impact injuries to both his wrists, left shoulder area and left forearm area as well as damage to his right elbow nerve as a result of the accident on 9 March 1994. These injuries have not reduced his working capacity by at least 10 % as from 31 March 1995 and [the applicant] is therefore not entitled to an accident pension pursuant to section 18, subsection 2 of the Act on Accident Insurance. [The applicant] must be regarded as capable of working as a managing director/technical director at his post. The Accident Board holds that [the applicant’s] present difficulties with his right hand and arm are to a high degree of probability not caused by the accident on 9 March 1994, given that hardly any tissue damage has been found in the magnetic scan of his right hand or in the ENMG-examination. The left elbow nerve damage, for which the applicant has received compensation from the insurance company, is mild and the Accident Board holds that it is probably sickness-related. The Accident Board further finds that [the applicant’s] depression, which reduces his working capacity, was neither caused by the accident of 9 March 1994, or by the subsequent injuries. Initially no neck strain was found and neither had any damage to [the applicant’s] right shoulder joint been reported in connection with the accident.” The applicant appealed to the Insurance Court requesting an accident pension as from 31 March 1995 with interest. He submitted to the Insurance Court two medical opinions dated 10 February 1998 and 13 July 1998 supporting his claims and a certificate indicating that the applicant had tried to find employment on 9 January 1998. According to the Insurance Court’s decision it invited observations from both parties and received letters from the applicant dated 15 October 1998. On 10 November 1998 the Insurance Court rejected the appeal and upheld the Accident Board’s decision. The Insurance Court reasoned its decision as follows: “Reasons mentioned in the Accident Board’s decision. The submitted new evidence does not give rise to different conclusions.” The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). The Supreme Court refused the applicant leave to appeal on 30 March 2000. Following an appeal on 20 June 2000 the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet) maintained that the insurance company had in some of its observations by mistake mentioned nerve damage in the applicant’s left elbow whereas the nerve damage was in fact in the right elbow. It however noted that the mistake had not affected the outcome of the case as the appellate bodies had had access to the original medical opinions which described the injuries correctly. Section 16 (969/1995) of the Constitution Act (hallitusmuoto, regeringsform, 94/1919), as in force at the relevant time, provided that everyone should have the right to have his case considered appropriately and without undue delay by a lawfully competent court of justice or other public authority as well as the right to have a decision concerning his rights and obligations reviewed by a court of justice or other independent judicial organ. Subsection 2 of the said section provided that the publicity of proceedings and the right to be heard, to receive a decision with stated grounds and to appeal against the decision as well as other guarantees of a fair trial and of good public administration were to be secured by Act of Parliament. At the relevant time chapter 24, section 15 (1064/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment had to be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which had led the court to hold a disputed issue established or unsubstantiated. Section 1 of the Decree on the Accident Board (asetus tapaturmalautakunnasta, förordningen om olycksfallsnämnden; 839/1981) provides that the Accident Board functions as the first appellate body in matters concerning obligatory accident insurance. Section 53 of the Accident Insurance Act (tapaturmavakuutuslaki, lag om olycksfallsförsäkring; 608/1948) provides that appellate bodies in accident insurance matters are the Accident Board, the Insurance Court and the Supreme Court. On the Accident Board there are a full-time president, at least two vice-presidents and at least three lawyer and medical doctor members as well as at least six members representing labour market organisations. They all bear the responsibility of a judge. The president, the vice-presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance. The medical doctor members must be registered and have a good knowledge of insurance medicine. All the members and their personal substitutes were at the relevant time appointed by the Council of State for a fixed term of three years. The labour market members were appointed on a proposal by the employers’ and employees’ organisations. Pursuant to section 18, subsection 2 of the Act on Accident Insurance (tapaturmavakuutuslaki, lag om olycksfallsförsäkring, 608/1948) an accident pension is paid on condition that an employee’s working capacity because of the injury or illness caused by an accident is estimated to have been reduced by at least 10 %.