10/31/2022 – People who have to undergo a medical assessment as part of a court proceeding are generally entitled to have a person they trust accompany them to the assessment. The Federal Social Court decided on October 27, 2022 (B 9 SB 1/20 R).
The decision was based on a complaint by a disabled person, whose initially determined degree of disability should be reduced from 50 to 30 percent. He defended himself against this in court.
The Social Court in Osnabrück, which dealt with the case in the first instance, ordered the plaintiff to be examined by an expert. The man brought his daughter with him. He insisted that she must be present for the examination.
However, the doctor refused to provide an expert opinion. He considered the presence of third parties in the case of an expert investigation inappropriate for fundamental reasons. This makes it difficult to collect objective findings.
A similar argument was made by another expert who also refused to examine the plaintiff in the presence of an accompanying person. The Social Court then overturned the court order and dismissed the man’s complaint to downgrade as unwarranted for lack of evidence.
Clarification of the facts failed
The State Social Court of Lower Saxony-Bremen, to which the person appealed, agreed. Because, based on the knowledge base, the social court could not determine a higher rate of disability than 30 percent. Any doubt would go to the accuser. Because his behavior thwarted the clarification of the facts.
The draft assessment is subject to the expertise of the expert. As a result, the claimant had no right to be heard in the presence of a person whom he trusted.
Stage victory before the Federal Social Court
Since the plaintiff was not satisfied with this decision either, he appealed to the Federal Social Court. He won the stage there.
According to the court, the person being examined is fundamentally free to bring a person he trusts with him to the expert doctor’s examination. However, the court may order the exclusion of a confidant “if his presence makes it difficult or impossible for him in individual cases to properly, effectively or unfalsified evidence collection.”
Differences should be taken into account, for example according to the relationship between the person involved and the person accompanying them, the medical specialty or the different stages of the assessment.
The technical reasons mentioned need to be checked
Whether the lower courts rightfully waived the plaintiff’s assessment because he requested the presence of a person of trust cannot be definitively assessed based on their findings. Specifically, it was a failure to examine the technical reasons that the experts stated against the escort.
It must now be corrected by the state social court, to which the case has returned.