On the recognition of the illegal expert opinion of the Department of medical and social expertise, the compulsion to conduct a medical and social examination
No. 6001-24-00-6ap/3158 dated March 06, 2025
Plaintiff: S.U.
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: the recognition of the illegal expert opinion of the Department of medical and social expertise, the compulsion to conduct a medical and social examination
Review of the defendant's cassation complaint PLOT:
The plaintiff, having received an occupational injury, was examined for the first time in the Department of Medical and Social Expertise on February 14, 2024.
No. 4 (ITU Department No. 4) based on medical documents: ITU report (Form 031/u) No. 43 of LLP "C" dated January 26, 2024; Act No. 3 on industrial accidents (Act H-1), drawn up on October 13, 2023 by LLP "K" - PO "Zh", Rudnik; hospital discharge No. 5905 dated September 5, 2023, No. 218-2 dated January 4, 2024; additional examination data; objective examination data, the plaintiff received a clinical and expert diagnosis: "Consequences of combined injury at work from
September 5, 2023. Post-traumatic thoracolumbalgia with musculotonic manifestations on the background of thoracic osteochondrosis, compression fractures of the Th5, Th6, Th11 vertebrae of the first degree without impaired conduction along the spinal cord, minor pain syndrome."
Taking into account the assessment of the degree of impairment of bodily functions conducted by the ITU Department No. 4, the plaintiff was found to have 25% loss of professional disability for a period of 1 year with additional types of assistance for a period of 1 year without establishing a disability group.
Disagreeing with this conclusion, the plaintiff filed a complaint with the Department, providing an addendum to Act N-1, drawn up on February 20, 2024, based on the results of an audit of the Department The Committee
medical and Pharmaceutical Control of the Ministry of Health of the Republic of Kazakhstan" (DCMFC), which changed and supplemented the diagnosis: "TBI, concussion of the brain, acute period. Closed compression fracture of the Th5, Th6, Th11 vertebral bodies of the first degree without impaired conduction along the spinal cord. Closed fracture 4-5 ribs on the left, 5 ribs on the right with displacement. Small hemothorax on the left. Subcutaneous hematoma, abrasions of the scalp, scapular and iliac region on the left. Bruise, overstrain of the ligaments of the left ankle joint."
On February 28, 2024, the plaintiff was re-examined at the ITU DKTSZ Methodology and Control Department (Department of the ITU OMK Department) with a diagnosis of "Consequences of a combined injury at work dated September 5, 2023, TBI, concussion, recovery period. Cerebrasthenic syndrome. Post-traumatic thoracolumbalgia with musculotonic manifestations on the background of thoracic osteochondrosis, compression fractures of the Th5, Th6, Th11 vertebrae of the first degree without impaired conduction along the spinal cord, minor pain syndrome." As a result, the ITU Department's expert opinion No. 4 dated February 14, 2024 was left unchanged.
The plaintiff, challenging this act of the ITU, appealed to the court with the claim in question, justifying it by the fact that, when making the decision, the Department violated the law, considered that the ITU was not carried out according to the full diagnosis, but only in part. In addition, when undergoing an examination at the ITU Department, the defendant intentionally changed the diagnosis that had already been established, reduced the severity of the disease for the plaintiff, and established a 25% CST for the plaintiff, without a disability group.
Judicial acts:
I am the authority: the claim was denied.
Appeal: the decision of the court of first instance was overturned with a new decision on the satisfaction of the claim. Essentially, it was decided: to declare illegal and cancel the expert opinion of the Department of Medical and Social Expertise No. 4 of the Department of the Act of February 14, 2024 on the establishment of 25% loss of professional disability for the plaintiff; to oblige the Department to conduct an examination of the plaintiff, taking into account the legal position of the court.
Cassation: the appeal ruling is upheld.
Conclusions: the Court of Appeal, overturning the decision of the SMAS, proceeded from the following:
there were violations of the administrative procedure during the examination of the plaintiff by the ITU Department No. 4 and the re-examination in the OMK of the ITU Department;
during the examination of the plaintiff by the ITU Department No. 4, the changes made with the correction of the diagnosis with the indication "TBI, Concussion, acute period" were not taken into account to the statement
M LLP dated October 12, 2023, as well as the DCMFC act dated November 10, 2023, before sending the documents for examination;
Having established that the conclusion of LLP "C" No. 65 dated February 8, 2024, sent to the ITU Department No. 4, which reflected the full diagnosis of the plaintiff, was not investigated by the ITU Department Commission, the SMAS did not give this circumstance a legal assessment.;
According to the Rules2, the medical institution, in this case LLP "C", was obliged to re-send the conclusion dated February 8, 2024 to the ITU Department No. 4, but it was not sent.;
the defendant's failure to accept the conclusion of LLP "C" dated February 8, 2024, which reflects the plaintiff's full diagnosis, indicates that an examination was conducted in violation of the procedure, since this conclusion was not the subject of research during the examination, in this regard, based on the requirements of paragraph 17 of the Rules, the conclusions of the ITU regarding the assessment of the degree of impairment of body functions and the limitations of the plaintiff's life, including his ability to work, are premature;
Having established an unjustified expert opinion, the Department's OMK ITU conducted an in-person re-examination of the plaintiff, taking into account the diagnosis of "TBI, Concussion, acute period." At the same time, when conducting the re-examination, the OMK of the ITU Department, as well as the ITU Department, did not take into account the conclusion of LLP "C" from
On February 8, 2024, he did not take into account the diagnosis indicated in the medical documents: "Optic nerve atrophy is descending, incomplete. Angiopathy", which was revealed after the plaintiff received an occupational injury in the form of "TBI, Concussion, acute period";
at the hearing, the defendant's representative gave contradictory explanations regarding the presence of visual impairments in the plaintiff, indicated in medical documents. However, from the Department's response submitted to the court of first instance, it appears that this diagnosis was not taken into account during the examination, due to the lack of examination results confirming the concentric narrowing of the visual fields, as it is questionable.;
The incompleteness of the submitted medical documents led to poor-quality ITU. According to paragraph 23 of the ITU Rules, in order to resolve controversial expert issues requiring clarification of the diagnosis and degree of functional disorders, consultants (cardiologists, oncologists, ophthalmologists, pediatricians, psychologists and other specialized specialists) are invited to a meeting of the ITU methodology and control departments, however, to clarify the above diagnoses that have not been investigated by the ITU Department No. 4. and the OMK of the ITU D Department, as well as the degree of functional disorders, specialized specialists are not invited.;
After evaluating the submitted medical opinion of an ophthalmologist, the court questioned the defendant's conclusions about the plaintiff's absence of impaired bodily functions leading to disability.;
It has been reliably established that the examination of the plaintiff by the defendant was carried out on the basis of incomplete documents, which, in accordance with paragraph 71 of the Rules, entails a re-examination.
Thus, based on these and other arguments, the Court of Appeal, in addition to declaring the administrative act disputed by the plaintiff illegal and annulling it, also imposed on the defendant the obligation to conduct an examination of the plaintiff, taking into account the legal position of the court.
Having checked the conclusions of the court of appeal and their legal reasoning for compliance with the circumstances of the case and the applicable standards of industry and procedural legislation in this case, the judicial board considered that the judicial act appealed by the defendant-cassator was rendered lawfully and reasonably.
The cassation appeal argues that the representative of LLP "S" provided the court of appeal with false data, did not provide documentary evidence that their conclusion dated February 8, 2024 was delivered to AIS "CBDI", while it was not delivered because it did not pass the format and logical control. In addition, according to the cassator, the Court of Appeal incorrectly interprets the objectives of the examination in the OMK ITU Department, conducted on February 28, 2024.
However, these arguments were not accepted, because, firstly, the court of the previous instance gave a full and objective assessment of the circumstances of the case related to these arguments. Secondly, based on the circumstances of the case, the formal nature of the arguments of the defendant-cassator, in the actions of the latter to fail to comply with the decision of the SCAD, and its appeal, the unfair attitude of the defendant's officials to their official duties and abuse of the right is seen, which, by virtue of Article 8 of the Civil Code of the Republic of Kazakhstan, serves as a self-sufficient legal basis for the refusal of a person to judicial protection of his rights.
Considering this, as well as the totality of the above, there was no need to additionally substantiate the conclusions of the court of appeal, which are detailed and reasonably set out in its judicial act. The court clarified the circumstances of the case to the extent sufficient for its legal resolution, and correctly applied the norms of substantive and procedural law. In this regard, there were no grounds for canceling or changing the judicial act appealed by the cassator, nor were there grounds for satisfying his cassation appeal.
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