Lietuviškai
Case No. 9/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 37 OF THE REGULATIONS
CONCERNING SOCIAL INSURANCE BENEFITS FOR ACCIDENTS
AT WORK AND OCCUPATIONAL DISEASES WHICH WERE
CONFIRMED BY RESOLUTION NO. 506 OF THE GOVERNMENT
OF THE REPUBLIC OF LITHUANIA "ON CONFIRMATION OF
THE REGULATIONS CONCERNING SOCIAL INSURANCE
BENEFITS FOR ACCIDENTS AT WORK AND OCCUPATIONAL
DISEASES" OF 8 MAY 2000 WITH PARAGRAPH 1 OF
ARTICLE 29 (WORDINGS OF 23 DECEMBER 1999 AND 5
JULY 2001) OF THE REPUBLIC OF LITHUANIA LAW ON
SOCIAL INSURANCE OF ACCIDENTS AT WORK AND
OCCUPATIONAL DISEASES
7 February 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Government of the Republic of
Lithuania, the party concerned, who was Alfreda Šatrauskienė,
the Head of the Social Insurance Division of the Social
Insurance and Pensions Department of the Ministry of Social
Security and Labour of the Republic of Lithuania, and Vida
Marija Zabarauskienė, the Chief of the Legal and Personnel
Division of the same ministry,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 2
February 2005 in its public hearing heard Case No. 9/02 which
originated in a petition of the Supreme Administrative Court of
Lithuania, the petitioner, requesting to investigate as to
whether Item 37 (wording of 8 May 2000) of the Regulations
Concerning Social Insurance Benefits for Accidents at Work and
Occupational Diseases which were confirmed by Resolution No.
506 of the Government of the Republic of Lithuania "On
Confirmation of the Regulations Concerning Social Insurance
Benefits for Accidents at Work and Occupational Diseases" of 8
May 2000 is not in conflict with Paragraph 1 of Article 29
(wordings of 23 December 1999 and 5 July 2001) of the Republic
of Lithuania Law on Social Insurance for Accidents at Work and
Occupational Diseases.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling the court suspended the investigation of the case and
applied to the Constitutional Court with the petition
requesting to investigate as to whether Item 37 of the
Regulations Concerning Social Insurance Benefits for Accidents
at Work and Occupational Diseases (hereinafter also referred to
as the Regulations) which were confirmed by Government
Resolution No. 506 "On Confirmation of the Regulations
Concerning Social Insurance Benefits for Accidents at Work and
Occupational Diseases" of 8 May 2000 (Official Gazette
Valstybės žinios, 2000, No. 38-1065) is not in conflict with
Paragraph 1 of Article 29 (wordings of 23 December 1999 and 5
July 2001) of the Law on Social Insurance for Accidents at Work
and Occupational Diseases (hereinafter also referred to as the
Law).
II
The petition of the petitioner is based on the following
arguments.
1. According to Paragraph 1 of Article 29 (wording of 23
December 1999) of the Law on Social Insurance for Accidents at
Work and Occupational Diseases the insurance benefits are paid
to the insured person as from the day of the event insured
against (occurrence of an accident at work or becoming ill with
an occupational disease), and according to Paragraph 1 of
Article 29 (wording of 5 July 2001) of the Law-as from the day
of the event insured against (occurrence of an accident at work
or diagnosing an occupational disease). In the opinion of the
petitioner, the period of time of paying the benefits, which is
established in Article 29 (wordings of 23 December 1999 and 5
July 2001) of the Law, is to be applied in regard to payment of
all the social insurance benefits for accidents at work
provided for in Article 11 of the Law: allowances for illness
resulting from an accident at work or occupational disease,
one-time work disablement indemnities, periodic work
disablement indemnities, funeral expenses allowances, and
periodic insurance benefits.
2. According to Item 37 of the Regulations, a periodic
work disablement indemnity is granted and paid as from the day
of appearance of entitlement to this indemnity (the day when
the State Medical Commission of Social Expertise (SMCSE)
establishes the incapacity to work).
3. In the opinion of the petitioner, the commencement of
payment of periodic work disablement indemnity is linked in
Paragraph 1 of Article 29 of the Law with one legal
fact-becoming ill with an occupational disease (wording of 23
December 1999) or diagnosing an occupational disease (wording
of 5 July 2001), meanwhile in Item 37 of the regulations it is
linked with another legal fact, namely the moment of diagnosing
the incapacity to work. Therefore the petitioner doubted as to
whether Item 37 of the Regulations is not in conflict with
Paragraph 1 of Article 29 (wordings of 23 December 1999 and 5
July 2001) of the Law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of A.
Morkūnienė, the Secretary of the Ministry of Social Security
and Labour, which were prepared by A. Šatrauskienė and V. M.
Zabarauskienė, the representatives of the Government, the party
concerned, were received. It is stated in the explanations that
Item 37 of the Regulations is not in conflict with Paragraph 1
of Article 29 (wordings of 23 December 1999 and 5 July 2001) of
the Law. This opinion is based on the following arguments.
1. The period of commencing of payment of social insurance
benefits for all the accidents at work provided for in Article
11 of the Law, which is established in Article 29 of the Law,
is the day of the event insured against. However, various
articles of the Law establish concrete conditions of granting a
benefit of particular type, and the right to such benefits is
related with particular facts.
2. A compulsory condition of granting a one-time work
disablement indemnity or periodic work disablement indemnity is
the establishment of loss of capacity to work. The loss of
capacity to work is expressed in percentage. Having established
that one has lost up to 30 percent of capacity to work, a
one-time indemnity is granted, and having established that 30
and more percent of capacity to work is lost, a periodic work
disablement indemnity is granted. The basis for granting the
periodic work disablement indemnity is a respective decision of
the SMCSE.
3. Diagnosing an occupational disease and establishment of
incapacity to work are different procedures. They are performed
by different institutions upon the established procedure.
Moreover, the establishment of an occupational disease does not
mean in itself that the SMCSE will recognise the person as
disabled or as the one who has lost his capacity to work. Often
the persons to whom an occupational disease is diagnosed do not
lose their capacity to work, and they apply to the SMCSE only
after some time upon diagnosing an occupational disease. The
capacity to work of the insured person may change (increase or
diminish) throughout the time until the SMCSE makes a decision,
therefore the loss of capacity to work established at a certain
moment may not be applied retroactively.
IV
In the course of preparation of the case for the
Constitutional Court hearing written explanations were received
from the representatives of the Government, the party
concerned, who were A. Šatrauskienė and V. M. Zabarauskienė,
which were identical to the written explanations of A.
Morkūnienė, the Secretary of the Ministry of Social Security
and Labour.
V
In the course of preparation of the case for the judicial
hearing written explanations were received from J. Olekas, the
Minister of Healthcare of the Republic of Lithuania, P.
Abaravičius, acting Chief State Labour Inspector of the
Republic of Lithuania, M. Mikaila, the Director of the State
Social Insurance Fund Board, and R. Navickienė, the Director of
the State Medical Audit Inspection under the Ministry of
Healthcare of the Republic of Lithuania.
VI
At the Constitutional Court hearing, the representatives
of the Government, the party concerned, who were A.
Šatrauskienė and V. M. Zabarauskienė, virtually reiterated the
arguments set forth in their written explanations.
The Constitutional Court
holds that:
I
1. The petitioner had doubts as to whether Item 37 of the
Regulations Concerning Social Insurance Benefits for Accidents
at Work and Occupational Diseases which were confirmed by
Government Resolution No. 506 "On Confirmation of the
Regulations Concerning Social Insurance Benefits for Accidents
at Work and Occupational Diseases" of 8 May 2000 is not in
conflict with Paragraph 1 of Article 29 (wordings of 23
December 1999 and 5 July 2001) of the Law on Social Insurance
for Accidents at Work and Occupational Diseases.
2. On 23 December 1999, the Seimas adopted the Law on
Social Insurance for Accidents at Work and Occupational
Diseases. The Law became effective on 1 January 2000.
2.1. The Law has been amended and/or supplemented more
than once, inter alia by the Republic of Lithuania Law on
Amending and Supplementing Articles 4, 8, 29, 30, and 31 of the
Law on Social Insurance for Accidents at Work and Occupational
Diseases, by Article 3 of which Paragraph 1 of Article 29 of
the Law was amended (wording of 23 December 1999).
2.2. It was established in Paragraph 1 of Article 29
(wording of 23 December 1999) of the Law: "Insurance benefits
shall be paid to the insured person as from the date of the
event insured against (accident at work or occupational
disease)."
It was established in Paragraph 1 of Article 29 (wording
of 5 July 2001) of the Law: "Insurance benefits shall be paid
to the insured person as from the date of the event insured
against (establishing an accident at work or diagnosing an
occupational disease)."
2.3. On 11 November 2003, the Seimas adopted the Republic
of Lithuania Law on Amending the Law on Social Insurance for
Accidents at Work and Occupational Diseases, by Article 1
whereof it set forth the Law on Social Insurance for Accidents
at Work and Occupational Diseases in a new wording. The Law on
Social Insurance for Accidents at Work and Occupational
Diseases of the new wording became effective as from 1 January
2004, save Article 29 thereof (which regulates relations other
than those regulated by Article 29 (wordings of 23 December
1999 and 5 July 2001) of the Law, which had to become effective
as from 1 January 2005; by the Republic of Lithuania Law on
Social Insurance for Accidents at Work and Occupational
Diseases adopted by the Seimas on 11 November 2004 and Article
2 of the Law on Amending the Law on Amending the Law on Social
Insurance for Accidents at Work and Occupational Diseases the
date when Article 29 of the Law on Social Insurance for
Accidents at Work and Occupational Diseases had to become
effective, was postponed until 1 January 2006.
Thus, Paragraph 1 (wording of 23 December 1999) of Article
29 of the Law on Social Insurance for Accidents at Work and
Occupational Diseases and Paragraph 1 (wording of July 2001) of
Article 29 of the Law are no longer effective at the time of
investigation of this case of constitutional justice.
3. On 8 May 2000, by Item 1 of Resolution No. 506 "On
Confirmation of the Regulations Concerning Social Insurance
Benefits for Accidents at Work and Occupational Diseases" the
Government confirmed the Regulations Concerning Social
Insurance Benefits for Accidents at Work and Occupational
Diseases.
3.1. It was established in Item 37 (wording of 8 May 2000)
of the Regulations: "Periodic work disablement indemnity is
granted and paid as from the day of appearance of the right to
it (the date of establishment of incapacity to work by the
SMCSE), if the insured person applies for it not later than
within 3 years from the day of appearance of the right to it.
If the person applies when the period of 3 years as from the
day of appearance of the right to the indemnity has elapsed,
the indemnity is granted and paid from the date of
application."
3.2. On 1 April 2003, the Government adopted Resolution
No. 396 "On the Amendment of Resolution No. 506 'On
Confirmation of the Regulations Concerning Social Insurance
Benefits for Accidents at Work and Occupational Diseases' of
the Government of the Republic of Lithuania of 8 May 2000", by
Item 4 of which Item 37 (wording of 8 May 2000) of the
Regulations was amended and set forth as follows: "Periodic
work disablement indemnity is granted and paid as from the day
of appearance of the right to it, if the insured person applies
for it not later than within 3 years from the day of appearance
of the right to it. If the person applies when the period of 3
years as from the day of appearance of the right to the
indemnity has elapsed, the indemnity is granted and paid from
the date of application."
3.3. On 22 March 2004, the Government adopted Resolution
No. 309 "On Confirmation of the Regulations Concerning Social
Insurance Benefits for Accidents at Work and Occupational
Diseases", by Item 2 of which Government Resolution No. 506 "On
Confirmation of the Regulations Concerning Social Insurance
Benefits for Accidents at Work and Occupational Diseases" of 8
May 2000 and Government resolutions which amended it, were
recognised as no longer effective, and by Item 1 whereof the
new Regulations Concerning Social Insurance Benefits for
Accidents at Work and Occupational Diseases were confirmed.
4. According to Paragraph 4 of Article 69 of the Law on
the Constitutional Court, the annulment of the disputed legal
act shall be grounds to adopt a decision to dismiss the
instituted legal proceedings. In its rulings, the
Constitutional Court has held more than once that under the
Constitution, in the cases when a court investigating a case
applies to the Constitutional Court after it has had doubts
concerning the compliance of a law applicable in the case with
the Constitution or laws, the Constitutional Court has a duty
to investigate the request of the court regardless of the fact
whether or not the disputed law or other legal act is valid.
Otherwise, the doubts which had originated to the court
concerning the compliance of the applicable legal act with the
Constitution or laws would not be eliminated, and the
constitutional rights of a person could be violated.
5. It is clear from the material of the case that the
petitioner had no doubts concerning the compliance of whole
Item 37 (wording of 8 May 2000) of the Regulations with
Paragraph 1 of Article 29 (wordings of 23 December 1999 and 5
July 2001) of the Law, but only concerning the fact whether the
provision "periodic work disablement indemnity is granted and
paid as from the day of appearance of the right to it (the date
of establishment of incapacity to work by the SMCSE)" of Item
37 (wording of 8 May 2000) of the Regulations was not in
conflict with Paragraph 1 of Article 29 (wordings of 23
December 1999 and 5 July 2001) of the Law in regard to the
aspect that, in the opinion of the petitioner, in Item 37
(wording of 8 May 2000) of the Regulations the appearance of
the right to periodic work disablement indemnity is linked with
a legal fact (establishment of incapacity to work by the
SMCSE), which does not coincide with the legal fact (becoming
ill with occupational disease), with which the appearance of
this right is linked in Paragraph 1 of Article 29 (wordings of
23 December 1999 and 5 July 2001) of the Law. Thus, the
petitioner had doubts as to whether the provision "periodic
work disablement indemnity is granted and paid as from the day
of appearance of the right to it (the date of establishment of
incapacity to work by the SMCSE)" of Item 37 (wording of 8 May
2000) of the Regulations was not in conflict:
1) with the provision "insurance benefits shall be paid to
the insured as from the date of the event insured against
(<...> becoming ill with an occupational disease)" of Paragraph
1 of Article 29 (wording of 23 December 1999) of the Law;
2) with the provision "insurance benefits shall be paid to
the insured as from the date of the event insured against
(<...> diagnosing an occupational disease)" of Paragraph 1 of
Article 29 (wording of 5 July 2001) of the Law.
It is clear from the material of the case that the
petitioner had doubts concerning the compliance of the said
provision of Item 37 (wording of 8 May 2000) of the Regulations
with the aforementioned provisions of Paragraph 1 of Article 29
(wordings of 23 December 1999, and 5 July 2000) of the Law only
to the extent that the notion "insurance benefits", used in the
provisions of the Law, comprises also the periodic work
disablement indemnities to the insured person who is ill with
an occupational disease, but not the social insurance benefits
of all types provided for in the Law.
II
1. Article 52 of the Constitution provides: "The State
shall guarantee the right of citizens to receive old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws."
When construing Article 52 of the Constitution, the
Constitutional Court has held many a time that the State of
Lithuania is socially oriented and every citizen of it has the
right to social protection; that the social maintenance, i.e.
contribution of the society to maintenance of such its members
who are incapable of providing themselves from work or other
means or who are not sufficiently provided as a result of
important reasons provided by law, is recognised as having the
status of a constitutional value; that the measures of social
protection express the idea of social solidarity, they help a
person to protect himself from possible social hazards; that
pensions and social assistance provided for in Article 52 of
the Constitution are one of the forms of social protection;
that the provisions of Article 52 of the Constitution
guaranteeing citizens' right to social maintenance, obligate
the state to establish sufficient measures to implement and
legally protect the said right; that the formula "the state
shall guarantee" in Article 52 of the Constitution inter alia
means that various types of social assistance are guaranteed
for the persons on the bases and by the amounts that are
established in laws; that separate types of social assistance,
persons who are granted social assistance, the bases and
conditions of granting and paying the social assistance,
amounts thereof may, according to the Constitution, be set
solely by the law; and that the legal regulation of the social
assistance relations is one of the most important guarantees of
the constitutional right to social assistance.
2. When construing Article 52 of the Constitution,
according to which the state guarantees the citizens' right to
receive inter alia disability pension and social assistance in
the event of unemployment, sickness, widowhood, loss of
breadwinner, together with Paragraph 1 of Article 48 of the
Constitution, according to which each human being may freely
choose a job and business, and shall have the right to have
proper, safe and healthy working conditions, and inter alia
social security in the event of unemployment, as well as
together with Paragraph 1 of Article 53 of the Constitution,
according to which the state inter alia looks after the health
of the people, and also taking account of the constitutional
principle of justice and the imperative of social harmony
entrenched in the Constitution, it is to be held that the state
is constitutionally obligated to render respective social
assistance to the person whose health was impaired as a result
of improper, unsafe, unhealthy working conditions (including
accidents at work and occupational diseases). The legislator
may choose and consolidate in laws a model of providing the
said assistance. However, it is not permitted to establish the
legal regulation which would create prerequisites for
appearance of a situation where a person whose health was
impaired as a result of improper, unsafe, unhealthy working
conditions (including accidents at work and occupational
diseases) would not receive respective social assistance.
The content of legal regulation of social protection and
social assistance relations is based on various factors, inter
alia resources as well as material and financial possibilities
of the state and society. The legislator, having taken account
of these factors and respectively regulating the said
relations, enjoys a broad discretion. Law-making subjects, who
issue substatutory legal acts, enjoy certain discretion in this
area as well; it is to be noted that this discretion must be
based on the powers of respective institutions (officials)
established in laws, and it may not deny the legal regulation
established in laws. When regulating relations of social
protection and social assistance, one must pay heed to the
norms and principles of the Constitution, inter alia the duty
of the state established in Paragraph 1 of Article 48 of the
Constitution to ensure the right of every human being to have
proper, safe and healthy working conditions, and social
security in the event of unemployment, to the principle of
equal rights of the persons and the principle of
proportionality, as well as to the right of every person to due
process. One may not establish any such legal regulation, where
the appearance of the person's right to social assistance
entrenched in the Constitution would be related to
constitutionally unreasoned conditions, subjective decisions of
certain institutions or officials, or other incidental
circumstances.
3. The principle of a state under the rule of law
entrenched in the Constitution implies the hierarchy of legal
acts as well, inter alia the fact that substatutory legal acts
may not be in conflict with laws, constitutional laws and the
Constitution, that substatutory legal acts must be adopted on
the basis of laws, that a substatutory legal act is an act of
application of norms of the law, irrespective of whether the
act is of one-time (ad hoc) application, or permanent validity.
A legal act of the Government is a substatutory legal act, it
may not be in conflict with the law, nor amend the content of
norms of the law, nor contain any legal norms which would
compete with the norms of the law.
4. In its rulings, the Constitutional Court has held more
than once that by substatutory legal acts (thus, the Government
resolutions as well) one may establish solely the procedure of
implementation of laws regulating relations of social
protection and social assistance. The substatutory legal
regulation of relations of social protection and social
assistance may comprise the establishment of respective
procedures, as well as the legal regulation based on laws,
where the need to provide more details about and particularise
the legal regulation in substatutory legal acts is objectively
caused by the necessity in the law-making process to lean upon
special knowledge and special (professional) competence in a
certain area. However, as the Constitutional Court has held
more than once in its rulings, one may not establish any
conditions of appearance of person's right to social
assistance, nor to restrict the scope of this right by
substatutory legal regulation.
III
On the compliance of Item 37 (wording of 8 May 2000) of
the Regulations Concerning Social Insurance Benefits for
Accidents at Work and Occupational Diseases which were
confirmed by Government Resolution No. 506 "On Confirmation of
the Regulations Concerning Social Insurance Benefits for
Accidents at Work and Occupational Diseases" of 8 May 2000 with
Paragraph 1 of Article 29 (wording of 23 December 1999) of the
Law on Social Insurance for Accidents at Work and Occupational
Diseases.
1. It has been mentioned that the petitioner had doubts as
to whether the provision "periodic work disablement indemnity
is granted and paid as from the day of appearance of the right
to it (the day of establishment of incapacity to work by the
SMCSE)" of Item 37 (wording of 8 May 2000) of the Regulations
was not in conflict with the provision "insurance benefits
shall be paid to the insured as from the day of the event
insured against (<...> becoming ill with an occupational
disease)" of Paragraph 1 of Article 29 (wordings of 23 December
1999 and 5 July 2001) of the Law (to the extent that the notion
"insurance benefits" comprises also the periodic work
disablement indemnities to the insured person who is ill with
an occupational disease).
2. The legal regulation established in Paragraph 1 of
Article 29 (wording of 23 December 1999) of the Law is to be
construed not only linguistically and verbatim, but also
systemically-by taking account of the legal regulation
established in other articles (parts thereof) of the Law.
2.1. It was established in Article 1 of the Law that this
Law regulates the relations of social insurance against
accidents at work and occupational diseases (which has a
shorter title-social insurance against accidents at work),
establishes categories of the persons insured with the social
insurance of this type, their rights to the benefits of such
insurance, as well as conditions of granting, calculating and
paying the benefits, and defines events insured against and
those not insured against. It is established in Paragraph 1 of
Article 9 of the Law that the ones entitled to the insurance
benefits established in Article 11 of the Law are the insured
persons whose health was impaired as a result of accident at
work or occupational disease after suffering the event insured
against provided for in Article 6 (pursuant to Article 6 of the
Law, the events insured against are the accidents at work and
occupational diseases which are examined and recognised such
under the procedure established by the Government or
institutions authorised by the latter). The persons insured by
the social insurance against accidents at work were established
in Article 4 of the Law, and their insurers-in Article 5 of the
Law. The insured income of the insured person is the total
income which was subject to payment of the state social
insurance contributions, as well as other income specified in
Paragraph 10 of Article 3 of the Law. According to Paragraph 1
of Article 2 of the Law, in the events established by laws the
social insurance against accidents at work indemnifies for the
income lost as a result of accident at work or occupational
disease.
2.2. The periodic work disablement indemnity is one of the
types of social insurance benefits in case of accident at work,
which are provided for in Article 11 of the Law. Article 11 of
the Law provides for the following insurance benefits: illness
benefit as a result of accident at work or occupational
disease, one-time work disablement indemnity, periodic work
disablement indemnity, funeral expenses allowance, periodic
insurance benefit. The ones who enjoy the right to the
insurance benefits established in Article 11 of the Law are the
insured persons whose health was impaired as a result of
accident at work or occupational disease after suffering the
event insured against provided for in Article 6 (Paragraph 1 of
Article 9 of the Law), and in case the insured person dies as a
result of accident at work, which becomes recognised as an
event insured against, the ones who are entitled to the
insurance benefit are the persons incapable to work who were
maintained by the deceased or who had to get maintenance from
him on the date of his death, as well as a child (children) of
the deceased who was (were) born after his death-this benefit
is paid to them irrespective of other income received by the
recipients of the benefit (Article 30 of the Law). It is to be
noted in this context that members of the family of the insured
person have the right to certain insurance benefits established
in Article 11 of the Law, namely a funeral expenses allowance
and periodic insurance benefit (Paragraphs 2 and 3 of Article
11 and Article 31 of the Law).
2.3. Becoming ill with an occupational disease is one of
the events insured against provided for in the Law, i.e. one of
the legal facts with which the appearance of legal relations of
social insurance against accidents at work and occupational
diseases, thus the appearance of the right of the insured
person to respective benefits as well, is linked in the Law.
According to Paragraph 2 of Article 3 of the Law, the
occupational disease is sudden or chronic deterioration in the
health of an employee, caused by one or more harmful and/or
dangerous factors in the work environment, which in accordance
with the established procedure has been recognised as an
occupational disease. If they are examined and recognised such
upon the procedure established by the Government or an
institution authorised by the latter, occupational diseases are
considered to be events insured against (Paragraph 1 of Article
6 of the Law).
In order to recognise the disease of the insured person as
an occupational disease, one must find the link of cause and
effect between one or more harmful and/or dangerous factors in
the work environment and the health impairment of the insured
person; it was established in Paragraph 2 of Article 6 of the
Law on the basis of which documents one may prove inter alia
the reasons of becoming ill with an occupational disease.
Pursuant to Paragraph 4 of Article 36 of the Law, it is the
Government or an institution authorised by it, which confirms
the procedure of acknowledging accidents at work or
occupational diseases as events insured against.
2.4. The fact of becoming ill with an occupational disease
may be the reason of loss of capacity to work. Moreover, the
state of health of the person who is ill with the occupational
disease, even if he has lost his capacity to work, may change.
On the other hand, total or partial loss of capacity to work of
the person does not mean in itself that the reason of it is
namely the occupational disease or accident at work, i.e. the
event insured against, with which the Law relates the
appearance of the right of the insured person to respective
benefits provided for in the Law.
The lost capacity to work is expressed in percentage. The
percentage of the loss of capacity to work as a result of
becoming ill with an occupational disease is established by the
SMCSE upon the procedure established by the Government or an
institution authorised by it (Paragraph 6 of Article 3 of the
Law). The payment of periodic work disablement indemnity is
linked in the Law with such loss of capacity to work where the
insured person has lost 30 and more percent of the capacity to
work (Paragraph 1 of Article 24 of the Law); this indemnity is
calculated according to the formula established in Paragraph 2
of Article 24 of the Law.
Meanwhile, if the insured person has lost up to 30 percent
of the capacity to work, under the Law he becomes entitled to
the right to another type of social insurance benefit of
accidents at work, namely the one-time work disablement
indemnity, the size of which is established in Article 23 of
the Law.
The Law provides also for still another type of social
insurance benefit for accidents at work, namely the allowance
for illness caused by an accident at work or occupational
disease (a shorter title of which is illness allowance), which
is not related to establishment of lost capacity to work by the
SMCSE, this illness allowance is granted when the insured
person becomes temporarily incapable to work as a result of an
accident at work or occupational disease (having suffered an
accident at work or having become ill with an occupational
disease), save the exceptions specified in Article 7 of the
Law, which are events not insured against (Paragraph 1 of
Article 12, and Article 13 of the Law). It is established in
Article 17 of the Law that should the insured person suffer an
accident at work or become ill with an occupational disease,
the illness allowance shall be paid as from the first day of
incapacity to work until resumption of capacity to work or
until such time when disability is recognised (Paragraph 1),
and that should the persons receiving a state old age social
insurance or disability pension suffer an accident at work or
become ill with an occupational disease, the illness allowance
shall commence to be paid as from the first day of incapacity
to work and continue until resumption of capacity to work or
until such time when the disability shall be re-examined
because of this (Paragraph 2).
Certain social insurance benefits are provided for in
other laws as well, inter alia benefits, paid to the person who
is incapable to work, but to whom no occupational disease has
been diagnosed, nor any injury caused by an accident at work
was established. For example, according to the Republic of
Lithuania Law on Social Insurance of Illness and Maternity, the
insured persons who have become temporarily unable to work as a
result of illness or trauma and who have lost, therefore, a
part of income from work, save the cases of granting and paying
illness allowance provided for in the Law on Social Insurance
for Accidents at Work and Occupational Diseases, have the right
to illness allowance (Paragraph 2 of Article 5). The right to
invalidity pension, which is not in itself linked with the fact
that the person became ill with an occupational disease either,
is entrenched in the Law on State Social Insurance Pensions.
2.5. The fact of becoming ill with an occupational disease
and loss of 30 and more percent of capacity to work, to which
the Law relates the appearance of the right to periodic
indemnity for lost capacity to work, are two different legal
facts. These legal facts may even not coincide in regard to the
time. According to the laws, these legal facts-an occupational
disease and loss of 30 and more percent of capacity to work-are
established by different institutions, which are, respectively,
labour medical establishments acting in compliance with the
conditions and procedure of establishing, registering and
examining occupational health injuries set down by the
Government (Articles 14 and 16, as well as Item 6 of Paragraph
1 of Article 17 of the Republic of Lithuania Law on Vocational
Health Care) and the SMCSE acting in compliance with the
procedure established by the Government or an institution
authorised by it (Paragraph 6 of Article 3 of the Law on Social
Insurance for Accidents at Work and Occupational Diseases).
3. Thus, in order to acquire the right to periodic work
disablement indemnity provided for in the Law, the insured
person must meet the following conditions established by the
Law: (1) he must be ill with an occupational disease or he must
have suffered an accident at work, i.e. the event insured
against must have taken place; (2) he must have lost 30 and
more percent of capacity to work. If the person insured under
the social insurance against accidents at work and occupational
diseases fails to meet any of these conditions, pursuant to the
Law he has no right to periodic work disablement indemnity, to
such a person, upon the bases and procedure established by the
laws (inter alia the Law on Social Insurance for Accidents at
Work and Occupational Diseases), other social insurance
benefits may be paid.
Thus, according to the Law, neither solely the
establishment of the fact that the person is ill with an
occupational disease or that he has suffered an accident at
work, nor solely the established loss of 30 and more percent of
capacity to work, constitutes a sufficient condition for the
insured person to acquire the right to periodic work
disablement indemnity.
4. If the legal regulation established in Paragraph 1 of
Article 29 (wording of 23 December 1999) of the Law is
construed only linguistically and verbatim, one could state
that, purportedly, the appearance of the right of the insured
person to the periodic work disablement indemnity is linked
solely with getting ill with an occupational disease or
accident at work, and does not depend upon any other conditions
established in the Law. Such construction would be unreasoned.
The fact that only one condition, the occupational disease, of
payment periodic work disablement indemnity from among those
established in the Law is mentioned in the said provision of
Paragraph 1 of Article 29 (wording of 23 December 1999) of the
Law does not deny the fact that periodic work disablement
indemnity must be paid only in case of existence of the second
condition established in the Law, i.e. when the insured person
has lost 30 and more percent of the capacity to work.
5. It needs be noted that it is only medical personnel
(and other specialists) who diagnose the illness and the
relation of cause and effect between one or more harmful and/or
dangerous factors in the working environment and health
impairment of the insured person, may establish the concrete
date which is to be considered the day when the insured person
became ill with an occupational disease; the establishment of
this date may not be regulated by legal acts so that a
possibility to establish, in every individual case, the day
when the insured person became ill with an occupational
disease, while considering all the important circumstances,
becomes denied. The doctors and other persons who participated
in the investigation (the commission) have the duty to
establish the day when the insured person became ill with an
occupational disease after having considered all the important
circumstances.
It is only the medical personnel (and other specialists)
who adopt a respective decision who may establish which day is
to be considered the date when the insured person has lost 30
and more percent of the capacity to work; the establishment of
this day may not be regulated by legal acts either, so that a
possibility to establish, in every individual case, the day
when the insured person has lost 30 and more percent of the
capacity to work, while considering all the important
circumstances, becomes denied. The SMCSE has the duty to
establish the time of loss of 30 and more percent of capacity
to work of the insured person after having considered all the
important circumstances.
It should be stressed that it is not permitted to
establish any such legal regulation, where the established day
when the insured person became ill with an occupational disease
or lost 30 and more percent of the capacity to work becomes
dependent upon the fact as to when respective decisions are
made, but not on when the insured person in fact became ill
with an occupational disease or in fact lost 30 and more
percent of the capacity to work.
6. It is established in Paragraph 1 of Article 30 of the
Constitution: "The person whose constitutional rights or
freedoms are violated shall have the right to apply to court."
In its rulings, the Constitutional Court has held many a time:
the constitutional principle of judicial defence is a universal
one; the right to apply to court is an absolute one and it may
not be restricted or denied; the legislator has the
constitutional duty to establish the legal regulation so that
it could be possible to settle all disputes concerning
violations of the constitutional rights and freedoms, as well
as the acquired rights of the person in court; legal acts can
also establish a procedure of out-of-court settlement of
disputes, however, it is not permitted to establish the legal
regulation which would deny the right of a person, who thinks
that his rights or freedoms have been violated, to defend his
rights or freedoms in court.
It needs to be mentioned that it is established in Article
35 of the Law that disputes concerning the application of this
law shall be settled upon the procedure established by laws.
Thus, the insured person has the right to challenge in court,
upon the procedure established by laws, any decision of an
institution or official related to application of this law or
substatutory legal acts which provide more specific or concrete
details about it, thus the decisions concerning the fact of
becoming ill with an occupational disease (including decisions
concerning the establishment of the day of becoming ill with an
occupational disease) and the decisions concerning the
establishment of loss of capacity to work (including decisions
concerning the expression of lost capacity to work in
percentage) as well.
7. It was mentioned that it is established in Item 37
(wording of 8 May 2000) of the Regulations that "periodic work
disablement indemnity is granted and paid as from the day of
appearance of the right to it (the day of establishment of
incapacity to work by the SMCSE)". It is to be held that the
formula of Item 37 (wording of 8 May 200) of the Regulations
"the day of establishment of incapacity to work by the SMCSE"
should be construed as the one which means the day when the
SMCSE after considering all the importance circumstances
establishes as the day when the insured person lost 30 and more
percent of the capacity to work and which may not be construed
as the one which means the day when the SMCSE adopts a
respective decision, unless those two dates coincide.
8. When deciding whether the provision "periodic work
disablement indemnity is granted and paid as from the day of
appearance of the right to it (the day of establishment of
incapacity to work by the SMCSE)" of Item 37 (wording of 8 May
2000) of the Regulations was not in conflict with the provision
"insurance benefits shall be paid to the insured as from the
day of the event insured against (<...> becoming ill with an
occupational disease)" of Paragraph 1 of Article 29 (wording of
23 December 1999) of the Law (to the extent that the notion
"insurance benefits" comprises also the periodic work
disablement indemnities to the insured person, who is ill with
an occupational disease), one should stress that one of the
conditions, i.e. an accident at work, of payment of the
periodic work disablement indemnity established in the Law is
mentioned in the said provision of Paragraph 1 of Article 29
(wording of 23 December 1999) of the Law, meanwhile in Item 37
(wording of 8 May 2000) of the Regulations one mentions another
condition of payment of the periodic work disablement indemnity
established in the Law, which is loss of 30 and more percent of
capacity to work.
It is to be held that although in none of the said
provisions one mentions both conditions of payment of the
periodic work disablement indemnity established in the Law,
while on the other hand, none of these provisions denies each
other and one does not mention in this provision the conditions
of payment of the periodic work disablement indemnity.
Thus, the provision "periodic work disablement indemnity
is granted and paid as from the day of appearance of the right
to it (the day of establishment of incapacity to work by the
SMCSE)" of Item 37 (wording of 8 May 2000) of the Regulations
does not compete with the aforementioned provision "insurance
benefits shall be paid to the insured as from the day of the
event insured against (<...> becoming ill with an occupational
disease)" of Paragraph 1 of Article 29 (wording of 23 December
1999) of the Law (to the extent that the notion "insurance
benefits" comprises also the periodic work disablement
indemnities to the insured person who is ill with an
occupational disease).
9. Taking account of the said arguments, it is to be
concluded that the provision "periodic work disablement
indemnity is granted and paid as from the day of appearance of
the right to it (the day of establishment of incapacity to work
by the SMCSE)" of Item 37 (wording of 8 May 2000) of the
Regulations was not in conflict with the provision "insurance
benefits shall be paid to the insured as from the day of the
event insured against (<...> becoming ill with an occupational
disease)" of Paragraph 1 of Article 29 (wording of 23 December
1999) of the Law (to the extent that the notion "insurance
benefits" comprises also the periodic work disablement
indemnities to the insured person who is ill with an
occupational disease).
IV
On the compliance of Item 37 (wording of 8 May 2000) of
the Regulations Concerning Social Insurance Benefits for
Accidents at Work and Occupational Diseases which were
confirmed by Government Resolution No. 506 "On Confirmation of
the Regulations Concerning Social Insurance Benefits for
Accidents at Work and Occupational Diseases" of 8 May 2000 with
Paragraph 1 of Article 29 (wording of 5 July 2001) of the Law
on Social Insurance for Accidents at Work and Occupational
Diseases.
1. It was established in Paragraph 1 of Article 29
(wording of 5 July 2001) of the Law: "Insurance benefits shall
be paid to the insured person as from the day of the event
insured against (establishing an accident at work or of
diagnosing an occupational disease)".
2. It has been mentioned that according to the Law, one of
the conditions for payment of the periodic work disablement
indemnity is an occupational disease of the insured person. It
is to be held that the formula "diagnosing an occupational
disease" of Paragraph 1 of Article 29 (wording of 5 July 2001)
of the Law is to be construed as the one which means the day
which is established by the labour medical establishments
(commissions, doctors, other persons, who participated in the
investigation) provided for in the Law on Vocational Health
Care, after considering all the important circumstances, as the
day when the insured person became ill with an occupational
disease, and may not be construed as the one which means the
day when the labour medical establishments (commissions,
doctors, other persons, who participated in the investigation)
provided for in the Law on Vocational Health Care adopt
respective decision, unless those two dates coincide.
Thus it is to be held that the legal content of the
provision "insurance benefits shall be paid to the insured as
from the day of the event insured against (<...> diagnosing an
occupational disease)" of Paragraph 1 of Article 29 (wording of
5 July 2001) of the Law is virtually identical to the legal
content of the provision "insurance benefits shall be paid to
the insured as from the day of the event insured against (<...>
becoming ill with an occupational disease)" of Paragraph 1 of
Article 29 (wording of 23 December 1999) of the Law (to the
extent that the notion "insurance benefits" comprises also the
periodic work disablement indemnities to the insured person who
is ill with an occupational disease).
3. Having held that the provision "periodic work
disablement indemnity is granted and paid as from the day of
appearance of the right to it (the day of establishment of
incapacity to work by the SMCSE)" of Item 37 (wording of 8 May
2000) of the Regulations was not in conflict with the provision
"insurance benefits shall be paid to the insured as from the
date of the event insured against (<...> becoming ill with an
occupational disease)" of Paragraph 1 of Article 29 (wording of
23 December 1999) of the Law (to the extent that the notion
"insurance benefits" comprises also the periodic work
disablement indemnities to the insured person who is ill with
an occupational disease), it is also to be held that the
provision "periodic work disablement indemnity is granted and
paid as from the day of appearance of the right to it (the day
of establishment of incapacity to work by the SMCSE)" of Item
37 (wording of 8 May 2000) of the Regulations was not in
conflict with the provision "insurance benefits shall be paid
to the insured as from the day of the event insured against
(<...> diagnosing an occupational disease)" of Paragraph 1 of
Article 29 (wording of 5 July 2001) of the Law (to the extent
that the notion "insurance benefits" comprises also the
periodic work disablement indemnities to the insured person who
is ill with an occupational disease).
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that the provision "periodic work disablement
indemnity is granted and paid as from the day of appearance of
the right to it (the day of establishment of incapacity to work
by the SMCSE)" of Item 37 (wording of 8 May 2000) of the
Regulations Concerning Social Insurance Benefits for Accidents
at Work and Occupational Diseases which were confirmed by
Resolution No. 506 of the Government of the Republic of
Lithuania "On Confirmation of the Regulations Concerning Social
Insurance Benefits for Accidents at Work and Occupational
Diseases" of 8 May 2000 was not in conflict with Paragraph 1 of
Article 29 (wordings of 23 December 1999 and 5 July 2001) of
the Republic of Lithuania Law on Social Insurance for Accidents
at Work and Occupational Diseases.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas