On the recognition of an illegal act of medical and social expertise regarding the establishment of the degree of loss of professional ability to work
No. 6001-24-00-6ap/2485 dated February 20, 2025
Plaintiff: G.I.
Respondent: Russian State Institution "Department of the Labor and Social Protection Committee of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition of the act of medical and social expertise (hereinafter - ITU) as illegal in terms of establishing the degree of loss of professional ability to work, on the compulsion to restore violated rights by establishing (restoring) the previous degree of loss of professional ability to work
Review of the plaintiff's cassation complaint PLOT:
In 2019, the plaintiff was recognized as a disabled person of the third group, due to an occupational disease, with a diagnosis of: "Chronic recurrent lumbosacral radiculopathy with damage to the motor and sensory fibers of the S1 root on the background of osteochondrosis of the spine at the level of Th12-S1 vertebrae, sequestered herniated disc L3-L4, posterior herniated disc Th12-L1, protrusion of discs L1-L2, L2-L3, moderate pain syndrome. An occupational disease." The degree of loss of general working capacity was 45%, and the degree of loss of professional working capacity was 50%.
During the next examination in 2023, the plaintiff was diagnosed with: "Chronic recurrent lumbosacral radiculopathy with damage to the S1 root on the background of osteochondrosis of the spine at the level of L1-S1 vertebrae, herniated discs L1-L2, L2- L3, L3-L4, L4-L5, L5-L6, L6-S1, narrow bone canal, spondyloarthrosis at the L1- S1 level, moderate pain syndrome. The disease is occupational, repeated," with a concomitant diagnosis:
"Two-string deforming arthrosis of both shoulder and elbow joints with pain syndrome. Bilateral deforming gonarthrosis of II-III degree, pain syndrome. Mixed contractures of both knee and shoulder joints, with problems in self-care and
by necessity. NSF II-III degree. The disease is common." Degree of UPT
-35%.
The plaintiff, disagreeing with the above conclusion, appealed to the court with this claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: the decision of the appeal is overturned. The case has been sent for new consideration to the judicial board for administrative cases of the regional court with a different composition of judges.
Conclusions: The judicial board concluded that the lower courts had incorrectly determined and clarified the range of circumstances relevant to the case.
The plaintiff's illness is occupational and is associated with the effects of physical overloads on the body.
According to the conclusion of the ITU dated October 18, 2023 by the KGP Polyclinic, the plaintiff was referred to the ITU due to the lack of positive dynamics in the disease and a decrease in the quality of life.
During the ITU, the defendant did not assess the increase in herniated discs, narrow bone canal, spondyloarthritis at the L1- S1 level, concomitant with the diagnosis of "Two-string deforming osteoarthritis of both shoulder and elbow joints with pain syndrome. Bilateral deformable gonarthrosis".
The ITU Department's opinion was issued taking into account the retirement age of the plaintiff and the absence of harmful industrial factors on him. Whereas the ITU is carried out based on a comprehensive assessment of the body's condition based on an analysis of the clinical, functional, social, professional and psychological data of the person being examined.
From the conclusion of the rehabilitologist, in the appendix to the form 031/uot from
On October 18, 2023, the rehabilitation prognosis was determined to be relatively favorable.
According to paragraph 38 of the Rules of Medical and Social Expertise, a relatively favorable prognosis is the possibility of partial recovery and (or) compensation for impaired bodily functions and categories of disability with a decrease in the degree of their limitations or stabilization, with increased ability to integrate and transition from full to partial social support.
The local courts have not given a legal assessment of the above circumstances, and it has not been established which visible improvements in the plaintiff's health led to a change in the loss of professional ability to work from 50% to 35%, which is a relatively favorable prognosis for rehabilitation in the presence of a concomitant diagnosis.
The violations of substantive and procedural law mentioned above cannot be eliminated by the court of cassation, since this requires establishing the factual circumstances of the case through research and evaluation of evidence.
Upon a new review, the court of appeal should eliminate these shortcomings, consider the claim in full, if necessary, appoint a forensic medical examination, ensuring the protection of the rights of persons involved in the case, and, depending on the established, in accordance with the norms of substantive and procedural law, decide on a lawful and reasonable judicial act.
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