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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 3 CLR 1201
1986 July 10
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
HARITOS STAVRINOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1. THE DEPARTMENT OF SOCIAL INSURANCE
OF THE MINISTRY OF LABOUR AND
SOCIAL INSURANCE AND/OR
2. THE DIRECTOR OF SOCIAL INSURANCE,
Respondents.
(Case No. 56/85).
Administrative Law—Administrative act—Judicial control— Principles governing the non-reviewability of the scientific merits of a finding of a technical nature—Principles governing the non-reviewability of the merits of a decision.
On the 11.6.83 the applicant, who had sustained injuries by reason of a traffic accident, which occurred on 12.2.83, whilst he was returning from his work to his home, applied for disablement pension. The Orthopaedic Medical Board finally assessed his disability at 3% for "painful movement of the right knee-joint on account of dislocation" and the Psychiatric Medical Board temporarily assessed his disability at 15% for post-traumatic concussion.
At the request of the applicant and his Trade Union the applicant was also examined by the Ophthalmic Medical Board, which assessed a permanent degree of disability of his left eye to a degree of 8% "probably due to the age of the applicant".
On the basis of this conclusion and the advice of the Medical Counselor of the Department of Social Insurance this percentage was not added to the other percentages of 3% and 15% on the ground that it is not related to the accident of the 12.2.83. The applicant impugned the said decision by means of this recourse.
The Court after stating the principles governing the non-reviewability of the merits of a decision and in particular the non-reviewability of the scientific merits of a finding of a technical nature,
Held, dismissing the recourse, that in this case it is clear that the determination on the merits was based on facts and opinion of the medical board and there does not exist a question of either violation of law or abuse or excess of power or misconception of fact or wrong exercise of discretion.
Recourse dismissed.
No order as to costs.
Cases referred to:
Heraclidou and Another v. Compensation Officer (1968) 3 C.L.R. 45;
Diosmis v. Ministry of Labour and Social Insurance (1975) 3 C.L.R. 461;
Public Service Commission v. Lefkos Georghiades (1972) 3 C.L.R. 594.
Recourse.
Recourse against the decision of the respondents to turn down applicant's application for disablement pension.
Applicant appeared in person.
A. Vassiliades, for the respondents.
Cur. adv. vult.
A. Loizou J. read the following judgment. The applicant with this recourse seeks from the Court the following relief:
"Declaration of the Court that the administrative decision and/or act of the Director of Social Insurance communicated to the applicant by letter dated 5th November 1984, (exhibit A) is null and void and with no legal effect whatsoever."
The facts of the case are the following. The applicant who was born on the 10th August 1924. applied on the 4th March 1984 for injury benefit regarding a traffic accident which occurred on the 12th February 1983 whilst returning from his work to his home. The medical certificates cover the period of disability of the applicant for work from the date of the accident until the 12th April 1983. For this period the applicant was paid injury benefit of a total amount of £215.04, the amount of his weekly benefit was £25.20.
On the 11th June, 1983, the applicant applied for disablement pension. On the 12th March, 1984, the applicant was examined by the Orthopaedic Medical Board which assessed his disability at 3% for light "painful movement of the right knee-joint on account of dislocation". The assessment was final. On the recommendation of the aforesaid Medical Board the applicant was examined on the 10th April 1984, by a Phychiatric Medical Board also, which assessed his disability at 15% for post-traumatic concussion. This assessment was temporary.
On the 17th May, 1984, the applicant by his letter (exhibit 1, red 34), asked to be examined by an ophthalmic Medical Board because as he alleged he had problems with his eye-sight. On the 9th June, 1984, the trade union to which the applicant belongs submitted the same request.
In view of the above the applicant was on the 14th September examined by the Ophthalmic Medical Board which assessed a permanent degree of disability of his left eye to a degree of 8% which degree, as mentioned in exhibit 1, red 38, is probably due to the age of the applicant.
Dr. Andreas Georghiou, Medical Officer Grade I, of the Ministry of Health seconded to the Ministry of Labour and appointed by the Council of Ministers as Medical Adviser to the Social Insurance Department on account of his specialization (M. Sc. in Occupational Medicine of London University) testified on oath before me and said that he examined all elements of the decisions, opinions, of the Medical Boards and advised the Department on these facts. He referred to the certificate of Dr. M. Constantinides, exhibit 1, red 33 of the 5th August, 1983, which gives the first clinical picture of the applicant after the accident:
"He was admitted to the Surgical Department of the Nicosia General Hospital from the 12th February, 1983 to the 18th February 1983, with the diagnosis of concussion. He visited the Eye-Clinic with complaints of blurring of vision in his right eye."
During the examination the Ophthalmic Surgeon Dr. Constantinides found the following:
"On examination
VAR: 6/24 VAL: 6/18
Fundi: Lt. normal. Rt macula distorted foveolar reflex, Oedema; some preretinal haemorrhages at the periphery of the fundus. (These findings suggest the diagnosis of Berlin's oedema).
Tension: R 17 mm Hg L 16 MM Hg.
He has also Lt. ectropion and a slight antosocoria. He has also bilateral lens opacities. He was treated with ambezin tabs and eye drops. He is still under conservative treatment at the Outpatient Department of our Clinic."
The doctor mentioned that there is blurring in the right eye which is a kind of cataract and stressed that the Medical Board gave in accordance with exhibit 1, red 38, 8% disability for the macular scar but no disability was given for the right eye.
On the basis of the aforesaid conclusion and the advice of the Medical Counsellor of the Department of Social Insurance this percentage was not added to the previous percentages of 15% and 3%. The relevant letter/decision was sent to the applicant by respondent 2 on the 5th November 1984 (exhibit A) which is the following:
Subject: Assessment of the amount of disablement.
I refer to the aforesaid subject and 1 inform you the following:
During your examination by the Ophthalmic Medical Board on the 14th September 1984, the final percentage of disability assessed was 8%. Bu, however, this percentage cannot be added to the 3% of the Orthopaedic-Surgical and the 15% of the Psychiatric Medical Board as it is not related to the industrial accident which happened to you on the 12th February, 1983.
Consequently the total percentage of disability on account of an industrial accident remains at 18% that is a percentage of permanent disability 3% by the Orthopaedic Surgical Medical Board and 15% temporary disability from the Psychiatric Medical Board.
As regards the aforementioned temporary percentage of disability you will be summoned for re-examination in April 1985."
Bearing in mind the aforesaid facts and opinion o\' the specialists, 1 turn now to the examination of the principles of Law governing the case. In the case of Antigoni Heraclidou and Another v. The Compensation Officer (1968) 3 C.L.R. 45 at pp. 53-54 it mentions:
"Secondly, it must be borne in mind that this Court in the exercise of its revisional jurisdiction, cannot go into the scientific merits of a finding of a technical nature, such as the finding of the Board, about the death of the deceased (see inter alia. Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 227). But the Court can. of course, examine whether in adopting such finding the Board has acted in a proper manner from the point of view of constitutionality, legality and excess or abuse of powers."
In the second supplement to the Case Law (1935-1952) by Zacharopoullos at p. 41 and under the title "The Non-reviewability of Determination on the Merits" in paragraph 295 it is mentioned:
"295. On pure medical matters."
In the case of Kyriakos Diosmis v. Ministry of Labour and Social Insurance (1975) 3 C.L.R. 461 at p. 465 it is mentioned
".... it would, indeed be, normally, beyond the competence of this Court, in a case of this nature to examine the correctness, from the scientific aspect, of the report of the Board."
On the question of the non-reviewability of the determination on the merits, an analysis is also made in the case of the Public Service Commission v. Lefkos Georghi-o.des (1972) 3 C.L.R. 594 at pp. 692-693.
It is clear therefore that the determination on the merits by the respondents was based on facts and opinions of medical boards and there does not exist a question of either violation of law or abuse or excess of power or misconception of fact or wrong exercise of discretion by the respondents. It was therefore reasonably open, the decision that the percentage of disability at 8% is not due to the accident.
For all the above reasons the recourse is dismissed with no order as to costs.
Recourse dismissed.
No order as to costs.