MARKKO v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Kari Tapio Markko, is a Finnish national, who was born in 1966 and lives in Vaajakoski. He is represented before the Court by Minna Tyviö, a lawyer practising in Jyväskylä. The respondent Government are 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 was involved in an accident on 9 June 1997 while driving an ice cream van. He sustained injuries to his neck and upper back. A fracture in the applicant’s spine was diagnosed on 9 June 1997. An insurance company paid the applicant a daily allowance pursuant to the Act on Accident Insurance (tapaturmavakuutuslaki, lag om olycksfallsförsäkring; 608/1948) from 10 June 1997 to 20 August 1997, and reimbursed medical expenses. The insurance company decided on 28 November 1997 to cancel the daily allowance as from 20 August 1997 as it considered that the applicant’s working capacity was reduced by less than 10 % from that moment. In 1998 the applicant sought medical treatment for pain in his left shoulder, right leg and back as well as for pain and tactile disturbances in his right arm. Medical certificates regarded him as unfit to work from 19 January to 25 January 1998 and from 29 January to 10 June 1998 due to pain in his left shoulder and left knee, sciatic symptoms in his right side, compression of nerve roots in his right arm and whiplash injury. The applicant applied for a daily allowance and reimbursement of expenses as from 19 January 1998 from the insurance company. On 24 April 1998 the insurance company rejected the applicant’s claims. It maintained that the distension of a spinal disc was not caused by the car accident. The company apparently considered that sciatic symptoms, which affected the applicant’s lower limbs, were the principal reason for his incapacity to work as from 19 January 1998. It informed the applicant that it had transferred a medical doctor’s opinion of 1 April 1998 regarding some symptoms of sciatica to the Insurance Court (vakuutusoikeus, försäkringsdomstolen) which was examining a prior accident insurance claim regarding another accident on 17 January 1997. The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden). He also claimed continued payment of the daily allowance from 20 August 1997, maintaining that the principal reason for his medical examination in January 1998 was the problem with his neck and right arm and not sciatica as the insurance company had held. The applicant appended two medical opinions dated 30 January 1998 and 29 April 1998 respectively. The Accident Board rejected the application on 15 September 1998. It held that the accident on 9 June 1997 had caused whiplash injury and a spinal fracture, for which the applicant had received compensation until 20 August 1997, after which time the injuries no longer entitled him to a daily allowance. It further held that the applicant’s incapacity to work after 20 August 1997 was caused by muscular tension in the neck, nerve root problems in the right arm, pain in the left shoulder and left knee as well as sciatic symptoms in the right side of the body, none of which were caused by the accident on 9 June 1997. It finally maintained that the accident in question had not worsened the applicant’s pre-existing back illness. The applicant appealed to the Insurance Court repeating his claims. He argued that muscular tension in the neck, the nerve root problems in the right arm and pain in left shoulder were caused by the accident on 9 June 1997. He submitted a medical opinion dated 28 August 1998. The insurance company submitted its observations on the appeal and the applicant was invited to give a further response. On 2 February 1999 the insurance company submitted an additional medical statement of 14 December 1998 and a medical case history concerning the period from 7 to 10 December 1999. On 2 March 1999 the applicant submitted an additional decision of 23 February 1999 of the insurance company concerning his pension. On 8 June 1999 the Insurance Court issued its decision accepting the reasons given by the Accident Board and held that the new evidence presented to the Insurance Court did not give rise to any changes in the assessment of the case. The applicant sought leave to appeal to the Supreme Court. The leave to appeal was refused on 28 January 2000. Section 33 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag, 586/1996) provides that an appellate body must ensure that the case is examined properly. Subsection 2 provides that an appellate body must invite the production of any necessary further material of its own motion when the interests of justice, equality of arms or the nature of the case so require. Section 34, subsection 1 of the said Act provides that a party must be afforded a possibility to give his/her opinions on submissions made by parties or received from other sources and on other material which may influence the outcome of the matter. Section 5 subsection 1 of the Insurance Court Act (laki vakuutusoikeudesta, lag om försäkringsdomstolen, 14/1958), as in force at the relevant time, provided that a case before the Insurance Court was dealt with in a section that consisted of an insurance judge as a chairperson and two legally trained persons as members, or when the case concerned medical issues, one legally trained member and one medical member. In addition, when needed, two lay members participated in the panel making the decision. Since 1 January 2004, the proceedings before the Insurance Court have been governed by the new Insurance Court Act (vakuutusoikeuslaki, lag om försäkringsdomstolen, 132/2003).