clr/1977/1977_3_144.pdf

(2)* of the above Law. Whilst this recourse was pending Counsel for the respondent arranged an examination of the applicant by a Medical Board, convened in accordance with s. 51 of the said Law. In the opinion of this Board the applicant was "unable to perform any manual work due to complete functional disuse of right hand's end. Nevertheless, he can perform light work with his left hand's end, such as running a kiosk, selling lottery tickets, running a coffee shop etc.". Held,

(1)that having in mind the injuries which the appli­ cant has sustained in the industrial accident .there are serious doubts whether it was open to the Minister ίο reach the con­ clusion that the applicant could not remain permanently in­ capable of work by means of his disablement, particularly so, having regard to the medical report; that though the onus re­ mained on the applicant -toconvince the Minister that because of his injuries it was anticipated that he would remain per­ manently incapable of work, once Law 106/72 was enacted in order to provide with certain benefits both the self-employ­ ed and .the employed persons, and because the applicant has provided both the Claims Officer and the Minister with ame­ dical certificate which on the face of it showed that it was anticipated that the applicant would remain permanently in­ capable of manual work, the applicant had discharged that onus and this Court would therefore, have expected the appli­ cant to have been examined by a medical board in accordance with s. 58 of the Law; that having failed to complete the in­ quiries and because of insufficient material before the Mini­ ster, this Court has reached the conclusion that the decision of theMinister is wrong and mustbeannulled.

(2)(On the questionwhether the decisionof theMinister is a validone because of the decisionof the Medical Board): That having in mind the principles of administrative law this Court has reached the view that once the report of theMedi* Quoted at p. 150 post. 145 1977 May 19 SAWAS C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) 1977 May 19 SAWAS C HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) cal Board was not before the Minister at the time of taking his decision, the said decision cannot be validated ex post facto; and that, accordingly, the Minister's decision was invalid and must be annulled. Subfudicedecision annulled. Recourse. Recourse against the refusal of the respondent to pay applicant a disability pension under the Social Insurance Law, 1972 (Law 106/72). A. Pouyouros, for theapplicant. C. Kypridemos, Counsel of the Republic, for the respondent. Cur.adv.vult. Thefollowing judgmentwasdeliveredby:HADJIANASTASSIOU, J.: In these proceedings, under Article 146 of the Constitution, the applicant seeks to challenge the decision of the respondent rejecting applicant's application for the payment of disability pension in respect of his serious permanent disability under the SocialInsuranceLaw, 1972asbeingnulland voidandofno effect whatsoever. The applicant was a self-employed person within the meaning of thesaidlaw and wasworking inhisflour mill. He was 57 years of age and had paid fully his insurance contributions tothe Social Insurance Fund. On December 2, 1970, the applicant, whilst he was operating the said mill,he met with an accident and as a result of that accident, hewas taken tothehospital and it becamenecessary to amputate three of his fingers. According to a medical certificate whichwasissued tohim,hewasadmitted inthe hospital on December 2, 1970, and was discharged on January 13, 1971.Hehad thefollowing injuries:

(1)traumatic amputation of 2nd, 3rd and 4th fingers of the right hand; and

(2)Angylosis of the phalangs of (right) thumb and thesmall finger. On January, 20, 1973,the applicant applied to theMinistry of Labour and SocialInsurance for adisability pension. In fact, he has filed a printed form and attached the medical certificate issued to him by the District Medical 146 Officer of Famagusta. On January 20, 1973, i.e. on the same date, the application of the applicant was rejected by the Claims Examiner, theperson in charge of examining the applications for disability pension in accordance with s.58 of thelaw, andI mustconfess, Ifind no reasons for rejecting theapplication ofthe applicant. The applicant, in accordance with that letter, appealed to theMinister of Labour and SocialInsurance complaining about the refusal to grant him disability pension. On August 13, the Director of Social Insurance, informed the applicant that the Minister of Labour andSocial Insurance, having gone through his application, and havingexercised hispowersunder s.62 of thelaw,decided to dismiss the recourse made by the applicant, and the reason given was that it was not expected that he would remainpermanentlyincapableofwork. The applicant, feeling aggrieved because the Minister did not even exercise his discretionary powers under s.62 of the law, to afford him a hearing, filed the present recourse claiming that his case was within the meaning of s.23

(2)of Law 106/72, that because of his injuries he would remain permanently incapable of work and he ought to have been paid incapacity pension for the rest of hislife. Counsel onbehalf of theRepublicgavenoticeopposing the application—though he conceded that the applicant has paid to the fund his contribution as a self-employed person—on the ground that the decision of the Minister was taken in accordance with the Social Insurance Law of 1972,theprovisions of theConstitution andthegeneral principles of administrativelaw. I think before dealing with the submissions of counsel I would like to make it clear once again that the injuries of the applicant weresustained as a result of an industrial accident at the place of hiswork. The applicant, asI said earlier in this judgment, was a self-employed person and quite fairly counsel on behalf of the Republic in his address did not dispute that fact, and admitted that theapplicant had complied with the requirements for his social insurance contribution. 147 1977 May 19 SAWAS C. HADIIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) 1977 May 19 SAWAS C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) Furthermore, I consider it pertinent to state that coun­ sel on behalf of the Republic, feeling no doubt as I do that in the case of the applicant he did not receive proper medical attention, had agreed to have him examined by a medical board once the Claims Officer relied only on a certificate in which no medical opinion was expressed apart from the description of the injuries of the applicant. I take the opportunity to express my indebtedness tocoun­ sel of the Republic for his very fair stand and on May 22, 1975, a Medical Board consisting of 2 Medical Officers was convened in accordance with s.51 of the law. Accord­ ing to the document (exhibit 6), the Medical Board's opi­ nion was based on these questions at p. 3 of the Medical Board's report:" 1 . Is the claimant at present incapable for work that is, his own work and any other remunerative work which he could reasonably be expected to do? 2. If your opinion is that claimant is at present incapable for work state whether: (

1. a)he will remain permanently incapable; or (
2. b)he will remain incapable in the foreseeable future; or (
3. c)he will remain incapable for a certain period (specify period) but a statement cannot be made now whether after that period claimant will or will not be incapable for work; or 3. (
4. a)If your opinion is that claimant is not at present incapable state whether he is fully or partially capable for work". Then we have this opinion expressed in Greek:"Ανίκανος προς χειρονακτικήνέργασίαν λόγω τελείας λειτουργικής άχρηστεύσεωςτης δ. άκραςχειρός. 'Εν τούτοις δύναται να συντέλεση ήπιαν έργασίαν δια της αρ. άκρας χειρός, ως περιπτεριοϋχος. λαχειοπώλης. καφετζής, κ.τ.λ.". And in English it reads:"Unable to perform any manual work due to com148 plete functional disuse of right hand's end. Neverthe­ less, he can perform light work with his left hand's end, such as running a kiosk, selling lottery tickets, running a coffee shop etc". 5 10 15 Now, in the light of the medical report, it seems clear to me that the Board was of the view,that because of the injuries of his fingers the functional operation of the hand became useless and as a result the applicant was unable to do any manual work. Whether or not the Medici Board could in law proceed to express an opinion that the appli­ cant could do lighter work by using his left hand, such as running a kiosk or selling lottery tickets or working in a coffee shop, I have my doubts in view of the prevailing circumstances in Cyprus as to work in these tragic days, and in any event, I leave this point open because I do not think it is necessary to express a view on this matter at this stage. I think it is necessary to state that Law 106/72 came into force on January 1, 1973 and it repealed the earlier 20 law, the Social Insurance Law, 1964 (No. 2/64) which latter law established a scheme providing cash benefits for marriage, maternity, sickness, unemployment, widowhood, orphanhood, old age, accidents and death. Furthermore, it is clear that under the new law, s.ll, thebenefits, other 25 than those due to industrial injuries are more extensive than the corresponding benefits in the repealed law con­ tained in s.13. The benefit known as "incapacity pension" has been introduced for the first time under s . l l ( l )

(2). As I said earlier, the applicant claims that his case falls 30 under the provisions of s.23 of Law 106/72, which, so far as relevant, provides:" 2 3 . —

(1)Τηρουμένων των διατάξεων τοΰπαρόντος Νόμου, ήσφαλισμένος δικαιούταιεις σύνταξιν άνικανότητος εάν — 35 40 (α) ήτο ανίκανος προς έργασίαν δι' εκατόνπεντή­ κοντα εξ ημέραςεντός οιασδήποτεπεριόδου δια­ κοπής της απασχολήσεως ληγοΰσης οΰχι ένωρίτεροντης ορισθείσης ημερομηνίας' (β) εντός της τοιαύτης περιόδου διακοπήςτηςάπασχολήσεως, απόδειξηότι προβλέπεταινα παραμείνη μονίμως ανίκανος προς έργασίαν 149 1977 May 19 SAWAS C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) 1977 May 19 SAWAS C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) (γ) δεν συνεπλήρωσε την συντάξιμον ήλικίαν και (δ) πληροί τάς σχετικάς προϋποθέσεις εισφοράς.

(2)Τηρουμένων των διατάξεωντοΰ άρθρου 58, ή συνταξις άνικανότητος καταβάλλεται απότής σχετικής ημερομηνίας εν οσω όήσφαλισμένοςπαραμένει μονίμως ανίκανος προς έργασίαν και δεν έχει συμπληρώσει την συντάξιμονήλικίαν". And in English it reads:"23

(1)Subject to the provisions of this law, an in­ sured person is entitled to disability pension if (

1. a)he was incapable of work for a hundred and fifty-six days during any period of interrup­ tion of his employment ending not earlier than the appointeddate; (
2. b)within such period of interruption of his em­ ployment proves that it is anticipated that he will remain permanently incapable of work; (
3. c)he has not reached pensionable age; and (
4. d)fulfils the relevant contribution prerequisites.

(2)Subject to the provisions of section 58, disabi­ lity pension is payable from the relevant date whilst the insured person remains permanently incapable of work and has not reached pensionable age". I do not think that it has been doubted by counsel that by "work" in thisconnectionwe meanremunerative work, that is to say work whether part-timeor full-time for which an employer would be wiling to pay or work as a selfemployed person in gainful occupation.With this in mind, I have serious doubts whether the Medical Board, in spite of what we have said earlier, had this in mindwhen it was suggested in their report that the applicant could run a kiosk or a coffee shop or sell lottery tickets. In the first place, one should not forget that the applicant as well as thousands of other refugees in the year 1974-1975 could not secure a kiosk or a cafe in a village or a town; or in­ deed a licence to sell lottery tickets of a sufficient number to come within the meaning of a gainful occupation.Hav150 ingregard to thethenprevailing circumstances inCyprus, .1,think it isnecessarytostateonceagain that it wouldnot have been an easy matter to securework of any kind in a gainful occupation. 5 Mr. Pouyouros, counsel for the applicant said, Mr.Kypridemosagreed—thatnosufficient material(asitappears from the medical report) was in the hands of the Claims Officer, or indeed before the Minister of Labour andSocialInsurancewhen thelatter reviewed thedecision of the 10 former in order to enable him to decide the appeal of the applicant. Having in mind the injuries which the applicant has sustained in that industrial accident, I entertain serious doubts whether it was open to the Minister to reach the 15 .conclusion thattheapplicantcouldnotremainpermanently incapable of work by means of his disablement, particularly so,having regard to the medical report. It istrue, of course, that the onusremained on the applicant toconvincetheMinister that because of hisinjuries, it wasanti20 cipated that he would remain permanently incapable of work. But with respect, onceLaw 106/72 wasenacted in order to provide with certain benefits both the self-employed and the employed persons, and because the applicant has provided both the Claims Officer and the Mini25 ster with a medical certificate which on the face of it showed that it was anticipated that the applicant would remain permanently incapable of manual work, in my view, the applicant has discharged that onus andI would, therefore, have expected the applicant to have been exa30 mined by a medical board in accordance with s.58 of the law. Having failed to complete the inquiries and because of insufficient materialbefore theMinister, I havereached the conclusion that the decision of the Minister, is wrong andI aminclined to annulit. 35 The next question, therefore, iswhether because of the decision of theMedicalBoardI candecidefinally whether the decision of the Minister is a valid one.I must confess that I have given this matter a lot of consideration and particularly in order to avoid a lot of duplicity of work, 40 butfinally, havinginmindtheprinciplesof administrative law, I have reached theview that once the medical report of the Board was not before the Minister at the timeof .151 1977 May 19 SAWAS C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL rNSURANCE) 1977 May 19 S A W A S C. HADJIYIORKI v. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE) taking his decision, the said decision cannot be validated expostfacto. I would, therefore, declare that thedecision of the Minister was invalid and for the reasons I have given earlier, ithas to be annulled and thecase of theapplicant to be examined in the Ught of both the opinionof the Medical Board and the observations made in this judgment. Before concluding this case, I would like to expressmy indebtedness to both counsel for their valuable assistance in preparing thisjudgment. Decision, therefore, annulled as being void and of no effect whatsoever. Recourse succeeds but in the circumstances of this case, I am not making an order for costs. Sub fudice decision annulled. No orderastocosts. 152