Supreme Court dismisses disablement benefit claim where medical evidence shows no statutory incapacity.

[*347] 1967 March 11

(TRIANTAFYLLIDES, J.)

REVTSIONAL JURISDICTION

Costas Charalambous,

Applicant,

and

The Republic of Cyprus, through

1. The Minister of Labour and Social Insurance,

2. Panayiotis Yiallouros Insurance Officer,

3. The Social Insurance Medical Officer,

Respondent.

(Case No. 69/66)

Social Insurance - Benefits - Disablement benefit - Decision of Respondent refusing Applicant a disablement benefit under the Social Insurance Law, 1964 (Law No. 2 of 1964) - Failure of Applicant to satisfy Court that he has been wrongly refused a disablement benefit.

Social Insurance - "Competent Court" under the Social Insurance Law, 1964 (Law No.2 of 1964) - Supreme Court, acting under Article 146 of the Constitution, is the competent Court envisaged by the provisions of Law No.2 of 1964 (supra).

Fr. Kolotas, for the Applicant.

K.C. Talarides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

TRIANTAFYLLIDES. J: In this Case the Applicant by claim 1 in the motion for relief complains against a decision of Respondent 2 - who comes under Respondent 1 - whereby he has been refused a disablement benefit under the Social Insurance Law, 1964 (Law 2/64). There is a [*348] further claim-claim 2 - for an omission to grant him such a benefit; this claim is, in my opinion, not well-founded because no question of an omission could arise once a decision has been taken in the exercise of the relevant statutory powers.

The decision complained of by the Applicant has been communicated to him by letter of Respondent 2, dated the 26th January, 1966, (see exhibit 1); it was based on a finding by the Medical Board, set up under section 60 of Law 2/64; copy of this finding was attached to the said letter.

The said finding of the Board is dated the 25th January, 1966, and, as claim 1 is drafted, it does not appear that the Applicant challenges directly such finding.

In my opinion the finding of the Medical Board and the consequential decision of Respondent 2 form together a composite administrative action and the validity of both is in issue once the decision of Respondent 2 as D based on the said finding, has been attacked.

The history of events in this Case is as follows: -

On the 26th February, 1965, the Applicant, who was at the time an unskilled labourer in the employment of building contractors at Akrotiri, had an accident while operating a concrete-mixer, as a result of which he suffered a fracture of the left leg just below the knee; the tibia and fibula bones were both fractured.

The Applicant having been in receipt of an injury benefit under Law 2/64 while recovering from the fracture [*349] applied, after such recovery, for a disablement benefit under section 31 of the same Law.

He appeared before the Medical Board on the 18th January, 1966, and it was found by the Board, as it appears from its relevant records (exhibit 6), that the fracture had healed, that there was no joint involvement, and that there was no shortening of the limb; as a result it was found that there was no disability in the sense of section 31 of law 2/64

Consequently, exhibit 1 was addressed to the Applicant by the appropriate Insurance Officer, Respondent 2, on the 26th January, 1966.

This recourse was filed on the 7th April, 1966.

Before deciding this Case on its merits I felt that I had to address my mind to the competence of this Court to decide it at all. Actually, this has not been doubted by either side, but as the relevant provisions of law 2/64 - provide that judicial competence in a matter of this nature shall be exercised by the "competent Court", without specifically starting which is such court I had to consider whether this Court is the competent Court in question.

I am of the view, bearing in mind the objects of Law 2/64 and that Respondent 2 is a public officer whose particular function has as its primary object the promotion of a public purpose i.e. the application, according to law, of a social insurance scheme, that this Court, acting under Article 146 of the Constitution is indeed the competent Court envisaged by the relevant provisions of Law 2/64 (see Eraclidou and the Hellenic [*350] Mining Company Limited. 3 R.S.C.C., p. 153).

It is correct that under sections 68, 70 and

71 of Law 2/64 there appear to be granted to this Court powers beyond those prescribed in paragraph 4 of Article 146, but, in my view, there is nothing Id prevent the Legislature from enlarging the powers vested in this Count in the exercise of its competence under Article 146; what cannot be done is to limit such powers.

Coming now to the merits of this recourse, its outcome depends on whether or not the relevant finding of the Medical Board, on which the refusal of the disablement benefit was based, was an erroneous one, in the sense that the Applicant ought to have been found to be suffering from an incapacity of 10% or more as a result of the aforementioned fracture; because only an incapacity of 10% or more would entitle him to a disablement benefit under section 31 of Law 2/64.

The Applicant has called as expert witnesses two orthopaedic specialists Dr, P. Michaelides and Dr. Th. Michaelides, A member of the Medical Board, Dr. A, Pelides, also an orthopaedic specialist, has given evidence in support of the finding of the Board.

The main issues around which the medical evidence has ranged have been to what extent, if any, there have resulted, because of the fracture, a shortening of the left leg of the Applicant and limitation of the flexion of his left knee.

I have felt no difficulty in coming to the

conclusion that no significant shortening of the left leg [*351] of the Applicant, such as would he material for purposes of incapacity either in general or in the sense of Law 2/64 - has occurred. Any difference in length between the two legs of the Applicant, which may have been ascertained from time to time, is properly ascribable to the inevitable margin of difference which exists in view of the manner in which according to the medical evidence given, the length of a leg is measured (from the anterior superior iliac spine to the middle of the medial malleolus); actually when the legs of the Applicant were measured twice, on one and the same occasion, during the hearing of this Case, by one of the experts called by the Applicant Dr. Th. Michaelides, on the one instance it was found that no difference existed between them and on the second instance only a very slight difference was detected.

What remains to be considered is whether the limitation of the flexion of the Applicant's left knee is such that it should have been treated as a disability in the sense of Law 2/64, thus rendering the relevant finding of the Board - and the consequent subjudice decision - an erroneous one on the face of the matter.

It is clear, on the basis of the medical evidence before the Court, including that called by the Applicant, that, once no shortening of the leg of the Applicant has actually resulted, the limitation of the flexion of the left knee, and all other symptoms which may have appeared as a result of the fracture of his leg, could not be rated as amounting to 10% incapacity or over; and nothing less than 10% incapacity would entitle the Applicant to a disablement benefit under Law 2/64. It is, therefore, not necessary to go further into this respect of the limitation of [*352] the flexion of the knee and examine whether such limitation is due, largely or wholely to preexisting osteoarthritis in the joint, or whether it is due, in whole or in part, to the after-effects of the fracture of the leg of the Applicant.

Counsel for the Applicant - who, I must say, has done his very best in presenting the case of his client - has advanced the argument that the limitation of the flexion of the left knee should be taken to amount to partial ankylosis, in the sense of the Ninth Schedule to Law 2/64, and, therefore, it amounts to 10% incapacity for the purposes of such Law, thus entitling the Applicant to a disablement benefit.

I take the view, on the basis of the medical evidence before me, and particularly that of Dr. Th. Michaelides, that ankylosis should be taken to be something of a more serious nature than the relatively small limitation of the flexion of the knee of the Applicant in this Case; it is something of a permanent nature and not of a diminishing nature, as the limitation of the flexion of Applicant's knee appears to be - even though, of course, it may not disappear completely because all doctors agree that at the age of the Applicant there may exist in both his knees some osteoarthritis which would involve permanent limitation of flexion to a certain extent. Dr. Michaelides himself was not prepared to describe the limitation of the flexion of the left knee of the Applicant as being partial ankylosis. Thus, I cannot regard it as partial ankylosis in the sense of the Ninth Schedule to Law 2/64.

For all the above reasons, I have reached the [*353] conclusion that the Applicant has failed to satisfy the Court that the finding of the Board, that there was no disability under Law 2/64, was an erroneous one and that, therefore, he has been wrongly refused a disablement benefit. In the result this recourse is dismissed.

Taking into account all relevant considerations I have decided to make no order as to costs.

Application dismissed.

No order as to costs.