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On social insurance indemnities for occupational diseases

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 THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 506) “ON THE 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’S LAW ON SOCIAL INSURANCE OF OCCUPATIONAL ACCIDENTS 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

The court reporter—Daiva Pitrėnaitė

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, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, 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, considered case No. 9/02 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into 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 the Resolution of the Government of the Republic of Lithuania (No. 506) “On the 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’s Law on Social Insurance of Accidents at Work and Occupational Diseases.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the petitioner, considered an administrative case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into 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 the Government Resolution (No. 506) “On the 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 of 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 of 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, should 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-off 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 the emergence of the right 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’s 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 the commencing of the 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-off 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-off 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’s 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’s 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 the Government Resolution (No. 506) “On the 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 of Accidents at Work and Occupational Diseases.

2. On 23 December 1999, the Seimas adopted the Law on Social Insurance of 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’s Law on Amending and Supplementing Articles 4, 8, 29, 30, and 31 of the Law on Social Insurance of 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’s Law on Amending the Law on Social Insurance of Accidents at Work and Occupational Diseases, by Article 1 whereof it set forth the Law on Social Insurance of Accidents at Work and Occupational Diseases in a new wording. The Law on Social Insurance of 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’s Law on Social Insurance of 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 of Accidents at Work and Occupational Diseases the date when Article 29 of the Law on Social Insurance of 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 of 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 the consideration of this constitutional justice case.

3. On 8 May 2000, by Item 1 of the Resolution (No. 506) “On the 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 the emergence 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 the emergence of the right to it. If the person applies when the period of 3 years as from the day of the emergence 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 the Resolution (No. 396) “On the Amendment of the Resolution of the Government of the Republic of Lithuania (No. 506) ‘On the Confirmation of the Regulations Concerning Social Insurance Benefits for Accidents at Work and Occupational Diseases’ 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 the emergence of the right to it, if the insured person applies for it not later than within 3 years from the day of the emergence of the right to it. If the person applies when the period of 3 years as from the day of the emergence 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 the Resolution (No. 309) “On the Confirmation of the Regulations Concerning Social Insurance Benefits for Accidents at Work and Occupational Diseases”, by Item 2 of which the Government Resolution (No. 506) “On the Confirmation of the Regulations Concerning Social Insurance Benefits for Accidents at Work and Occupational Diseases” of 8 May 2000 and the 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 impugned 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 considering a case applies to the Constitutional Court after it has had doubts concerning the compliance of the law applicable in that case with the Constitution or laws, the Constitutional Court has a duty to consider the petition of the court regardless of the fact whether the impugned law or other legal act is valid or not. 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 the emergence 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 of the emergence 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 of the emergence 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 the emergence 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 means, inter alia, 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 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 should 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 legislature 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 the prerequisites for the emergence 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, the resources as well as material and financial possibilities of the state and society. The legislature, 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 should 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 of law. One may not establish any such legal regulation, where of the emergence 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-off (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 means of substatutory legal acts (thus, government resolutions as well) one may establish solely the procedure of the implementation of laws regulating the relations of social protection and social assistance. The substatutory legal regulation of the 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 to 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 in its rulings more than once, one may not establish any conditions for the emergence of a person’s right to social assistance, nor limit the scope of this right by means of a substatutory legal regulation of the relations specified in Article 52 of the Constitution.

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 the Government Resolution (No. 506) “On the 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 of 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 the emergence 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 should 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 law 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: an illness benefit as a result of accident at work or occupational disease, a one-off work disablement indemnity, a periodic work disablement indemnity, a funeral expenses allowance, and a 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 of working 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 should 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 of the emergence of legal relations of social insurance against accidents at work and occupational diseases, thus, of the emergence 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 whose 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, the total or a 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 of the emergence 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-off 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 of working 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 of working, 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’s 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 of 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 of the emergence 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’s 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 of 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 means of laws (inter alia, the Law on Social Insurance of 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, of the emergence 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 should 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 the possibility of establishing, 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 should 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 the possibility of establishing, 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 that: 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 limited or denied; the legislature 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 law. Thus, the insured person has the right to challenge in court, upon the procedure established by law, 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 the emergence of the right to it (the day of establishment of incapacity to work by the SMCSE)”. It should 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 the emergence 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 should 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 the emergence 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 should be concluded that the provision “periodic work disablement indemnity is granted and paid as from the day of the emergence 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 the Government Resolution (No. 506) “On the 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 of 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 should be held that the formula “diagnosing an occupational disease” of Paragraph 1 of Article 29 (wording of 5 July 2001) of the Law should 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 should 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 the emergence 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 should also be held that the provision “periodic work disablement indemnity is granted and paid as from the day of the emergence 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 gives the following

ruling:

To recognise that the provision “periodic work disablement indemnity is granted and paid as from the day of the emergence 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 the Resolution of the Government of the Republic of Lithuania (No. 506) “On the 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’s Law on Social Insurance of Accidents at Work and Occupational Diseases.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced 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