Compensation for loss of capacity for work to person close to retirement age

The Supreme Court has ruled that it is without any importance to the awarding of compensation for loss of capacity for work that the person is may receive state pension within a very short time.

A 62-year old man was injured in connection with an arthroscopy. The Patient Compensation Association recognised liability for compensation and paid compensation for loss of capacity for work from the time of the injury until the date when the man reached the age of 65.

NOT LIKELY THAT THE PERSON WOULD HAVE CONTINUED WORKING AFTER REACHING THE AGE OF 65

Referring to the fact that 62-year old man would probably not have continued working after reaching the age of 65, the Patient Compensation Association and the Danish Patient Injury Board of Appeal rejected that he was entitled to compensation for loss of capacity for work.
Both the District Court and the High Court agreed and found that the man had not proved that he would have continued working after reaching the age of 65 had he not been injured.

NOT IMPORTANT THAT THE PERSON WAS TO RECEIVE STATE PENSION

The Supreme Court ruled in the case setting aside the High Court ruling. 
In the Supreme Court's opinion, it was possible to estimate the loss of capacity for work already at the time of the Association's decision in September 2011 based on the medicinal information and the result of the man's work ability test. 
When deciding, the Association should have found that the man had proved that he was subject to a permanent loss of capacity for work of 75 % due to the injury (this percentage was fixed by the National Board of Industrial Injuries in a statement obtained by the man's attorney). 
The Supreme Court further stated that, at the time of the Association's decision, the injured party would still have been engaged in active employment had he not been injured. 
On this basis, the Supreme Court found that the man was entitled to compensation for loss of capacity for work irrespective of his age. The fact that the man was perhaps soon to receive state pension could not justify an additional reduction or lapse of the injured party's claim for compensation.

Comments

The Supreme Court ruling clearly determines that it is without importance to the assessment of entitlement to compensation for loss of capacity for work that the person may soon receive state pension. 
Instead, it is important whether the injured party - at the time when it is possible to fix the loss of capacity for work - could still have had an attachment to the labour market had he not been injured.   
Further, the ruling is interesting because the Supreme Court criticizes the Danish Patient Injury Board of Appeal as it should itself have included the question as to when the loss could have been fixed, and not only whether the man could have been expected to work after having reached the age of 65, in which period he had received compensation for loss of capacity for work.

 

contacts

Finn Schwarz

Managing Partner

Christian Traberg Bennetzen

Attorney