The case concerned claims for supplementary pension calculated under the rules for young disabled by the former special rules in Insurance Act § 3-21.
A, born 0.0.1975 , was diagnosed with celiac disease in August 1998. in June 2001, just before she turned 26 this year, she was diagnosed with ME (myalgic encephalomyelitis or chronic fatigue syndrome).
A finished high school in 1994. From 1995 to 1998 she took the exam in sports, foundation course and intermediate and work alongside their studies. She started the physiotherapy program in autumn 1998. In autumn 1999 and spring of 2000, she had a sabbatical. She dropped out in 2001 due to health condition. With the support of A-etat she completed part-time studies in acupuncture from 2002 to 2006. She took undergraduate medicine in 2006 and 2007. A has since 2007 has run his own practice part-time as an acupuncturist.
In April 2013 she was granted 65% disability pension justified by the diagnosis of ME. Disability timing was initially set at 1 June 2007. Following a complaint was disability date set at February 1, 2001, which was the time when she because of ME failed to step up to the scheduled exam.
In the same decision came NAV that she did not fulfill the conditions for being granted a supplementary pension that young disabled. The condition for the granting of such supplementary is that ‘become disabled before the age of 26 because of a serious and permanent illness, injury or defect which is clearly documented. ” NAV stated that she worked in ordinary work and that her suffering fell outside the most serious diseases referred to in § 3-21.
A appealed the decision and NAV appellate upheld the decision on 25 February 2014. It was in the connection stated that input condition of disability before the age of 26 were met, but that she did not fulfill the condition that the disability must be due to a serious illness. This was on the grounds that she would not then have been able to work so much and completed education.
A appealed the decision to the Insurance Court, which upheld the decision of the ruling of 13 February 2015. Trygderetten allow substantial weight that A has been “fairly active” with both studies and work, and concluded that the disease meant consequences in professional and daily life could not be considered serious enough that she could be considered to have a serious disease of the National Insurance Act.
A brought into Trygderetten ruling of the court of Appeal. Staten v / Labour and Welfare has taken to speak out. The hearing was held on 20 January 2016 in Trondheim Courthouse. A met with his counsel. For defendants met the legal and Line Breivik from NAV Appeals. A flue party explanation. About presentation of evidence refer to the court records.
A has essentially argued:
A satisfy the conditions to be granted a supplementary that young disabled, ref. Insurance Act § 3-21. She was undoubtedly disabled before the age of 26 because of a serious and persistent illness, which was clearly documented. The diagnosis of celiac disease was set in 1998 while ME was established in 2001. It will be an overall evaluation of ME and celiac disease. Diagnosis ME qualifying serious illness in the medical sense, triggering rights under the Insurance Act § 3-21.
Both celiac disease and ME has had major functional consequences for A in the form of sick leave, reduced hours, extended education, organized labor and impaired capacity for pleasure. A rests largely in his spare time. It is clear in As case that only ME and celiac disease that has permanently reduced her abilities. These diseases are the cause of As disability. There are no other factors that may explain the reduction in earning capacity.
The documentation requirements are met. Both As diagnoses has gone before A the age of 26.
Crucial to the evaluation is that she is partially disabled. The severity must be assessed from the proportion of functioning is impaired. Insurance Court has not specified which expected activity level A is considered from. She must be assessed in relation to the functioning before she became ill. A had a very high activity level before she became ill. She has had a reduced functioning since 1998.
Legal purpose is to give young disabled a guarantee scheme to compensate for the lack of opportunities to earn pension points. It is the legislator’s intention that the rules should not interfere with work experience, employment and schooling. A had a significant disability from the mid 90s. The requirement of disabilities are considered to be fulfilled.
A entered the following plea:
| ’1. | Trygderetten ruling of 13 February 2015 is repealed. |
| 2. | Staten v / Labour and welfare ordered to pay case costs A.” |
State v / Labour and welfare has essentially argued:
Trygderetten ruling is based on a correct application of the law, of law judgment and a correct fact. There is no evidence a serious illness in A before the age of 26, ref. Insurance Act § 3-21. Illness severity must be seen over time. It is a condition of lasting serious illness.
diagnosis ME, which lacks objective evidence, is not conclusive. It must be viewed anomaly, and it is the total disability that determines whether there is a sufficiently serious condition. In seriousness requirement is a requirement for a significant disability in relation to work and everyday life. There is no requirement for 100% occupational disability, but must undertake a specific assessment of whether the malfunction is so great that it meets the severity requirement, regardless of disability. The degree of disability says something about the severity of the condition.
A completed primary and secondary school at the regular time. Examination in sports foundation course and intermediate were conducted from 1995 to 1998 while she worked alongside their studies. Physiotherapy education was begun in 1998 but had to be withdrawn in 2001 due to health problems. She completed two years of education. In 1999 to 2000 she was more or less bedridden around the clock. This situation was not permanent. She got better after this year.
She conducted part-time studies in acupuncture in 2006 with support from A-etat. In addition, she took in the years 2006-2007 degree in medicine. After graduating A work in graded position in private acupuncture practice.
A was fresh until 1995 when the first symptoms arose. Diagnoses ME and Celiac Disease was asked before she turned 26 years. A has conducted studies and work despite the suffering. This expresses a certain ability in A. She has not proven a sufficient loss of function of the time limit. According to the National guidelines from the Health Directorate A ME in mild, or moderate extent.
Supplementary pension is meant for young disabled who have not had the opportunity to participate in gainful work because of early comprehensive medical disorder. A has with their work and educational shown that she has the opportunity to participate in any gainful employment and has a significant disability, despite the suffering.
State can not see that there is evidence that the suffering, isolation or as a whole, meant that she was significantly crippled, neither in relation to employment and daily life in general before she turned 26 years. In duration requirement is that one can not see isolated in the academic year 1999-2000.
Staten v / Labour and welfare has entered the following plea:
| ’1. | Staten v / Labour and welfare acquitted. |
| 2. | Staten v / Labour and welfare awarded the costs. “ |
the High court concluded that the appeal must be dismissed and should remark:
Insurance Act § 3-21 first paragraph read:
“A member who becomes disabled before the age of 26 because of a serious and permanent illness, injury or defect which is clearly documented receive including future pension with at least 3, 50 each year. It is a condition that the person born after 1940. “
§ 3-21 was abolished by the Act of 16 December 2011, no. 59 and replaced by a virtually identical provision in the Insurance Act § 12-13 third paragraph.
Insurance Act has since 1981 had provisions on supplementary pension for young disabled. The purpose of the scheme is to give birth disability and others who become disabled at an early age, and who have not had the opportunity to earn pension points that can provide supplementary impact, a guaranteed minimum supplementary. Until 1998 concerned the guarantee anyone who was disabled before the stipulated age limit.
An amendment which entered into force on 1 January 1998, it introduced a special medical conditions for this right. The condition was that there must be a serious and permanent illness, injury or defect which is clearly documented. In this, the medical conditions to get the guaranteed minimum supplementary stricter than the medical conditions for receiving disability benefits.
Off legislative history states that in this way would ensure that arrangement was more targeted born disabled and young disabled, who have not had the opportunity to participate in gainful employment because of an early occurred and comprehensive medical disorder. About severity of the disease states in legislative history that “more stringent requirements to illness, injury or lytets severity and suffering consequences for the functioning. The Ministry considers it however not appropriate to require a specific medical disability. ” It further stated that the National Insurance Administration will issue guidelines on disease severity and documentation of it, see. Ot.prp.nr.8 (1996-1997) page 13-14.
These guidelines are provided and in several rounds to date. It appears from the circular to the National Insurance Act § 3-21 that it shall have regard to the overall medical condition and that it must be made a specific assessment in each case. The guidelines include a non-exhaustive list of diseases that usually causes serious malfunction. ME and celiac disease is not on the list. It is stated in the circular that diagnosis alone is not decisive. It is the severity of the disease condition and its sequelae is essential.
As graded disability pension was granted on the basis of diagnosis of ME that were asked before she was 26 years. The requirement for disability and a clearly documented disease before the age of 26 is thus fulfilled.
The question in this case is whether incapacity, which occurred before the age of 26 was a result of “serious and persistent illness.” Decisive is about As functional on cutting date, 21 June 2001, was adequate and lasting reduced.
A has described himself as healthy and active until 1997. She began eventually become afflicted with diarrhea and abdominal pain. The diagnosis of celiac disease was in the summer of 1998. She started with gluten cost and experienced improvement in their conditions. A started in autumn 1998 at the physiotherapy program. The following year, from September 1999, she took a year’s leave from the study. Then she described as limp, tired and irritable and unable to keep up with studies. She spent a lot of time in bed. According to medical journals did exercise her worse, but she read up to four hours each day.
In autumn 2000 she started the second year of physiotherapy studies. In a medical record from 18 October 2000 stated that she had been improving over the past year and that she had enjoyed to start the program again. She struggled still remain and may have adapted practice periods.
spring 2001 described her fatigue so in outpatient note of 30 April 2001 from the medical department at St. Olav’s Hospital
“the patient comes to the agreed control of celiac disease and food allergies, but perhaps mainly fatigue syndrome.
The situation is quite unchanged. She has problems with teaching, practice and exams in their physiotherapy studies. How clean objectively she seems to be in reasonably good general condition, but she contends that she has much more likely to be tired than others. Actually, she has little discomfort from stomach …. “
In an outpatient note 15 June 2001 from the same place, just before the cut-off time, states:
“the patient is referred due to symptoms such as chronic fatigue syndrome. The patient has been mostly healthy until she in 1997 and then got diarrhea and eventually weight loss.
…
It was diagnosed coeliaki, normalization of intestinal mucosa after transition to gluten cost. The patient study physiotherapy, have had a one-year leave from the study due to current symptoms. She has studied with reduced progression over the past year, but feel it hard having to start a new academic year starting in the autumn. She has a partner which she thrives with, but actual symptoms create problems for cohabitation ….
Patient main symptom is fatigue, especially after physical activity or intense schoolwork or other tasks that require concentration. She has trained a lot, this she can not reach. She can, however, go for a walk in the city without problems. If she charges physically or mentally, something she particularly easy to do on “good days”, she can be bedridden for two to three days afterwards. If she has pushed over time, she has on one occasion been present for several weeks. She feels that she is unable to discharge the schoolwork adequate although academic progress is adapted her condition.
That year she was absent from the study, so she could relax as much as she felt she needed, went symptoms significantly back, she felt eventually close symptomless. The symptoms, however, came back quickly when she returned to their studies.
The patient has a moderate sleep problem, as she at times can sleep quite a lot, 9 to 10 hours at night as well as one to two hours a day, without feeling properly rested in the morning. She feels nevertheless in periods reasonably rested in the morning. Other times it may be difficult to get to sleep … “
A was according to the outpatient note considered to meet the criteria for a diagnosis of chronic fatigue syndrome. It further states:
“The patient is despite some ailments managed to maintain a certain activity, and it is important that she avoids interrupting studies”
at the intersection point, she was still a student, but she interrupted studies in 2001 because of health problems. In retrospect, she granted rehabilitation to undertake part-time studies in acupuncture in the years 2002 to 2006. In 2006 and 2007 she took undergraduate medicine. She has since 2007 worked as a self-employed acupuncturist part-time. The degree of disability was determined on the basis of a comparison between the average income as a physiotherapist with the income she had as an acupuncturist. In the years 2010 to 2012, she had an annual average entrepreneurial at about 170 000.
The severity of As chronic fatigue syndrome is in the lower segment. Directorate of Health in 2014 published a “National supervisor” of patients with CFS (Chronic Fatigue Syndrome) / ME. In Section 1.4 of severity and functioning goes subdivision from mild to very severe. In mild degree, the lowest level, the level of activity decreased by at least 50%, it means that you are self-reliant, for example perform light housework, some will be able to work, but this is often at the expense of leisure activities and socializing and one needs rest days and weekends to catch up.
This description matches well with As description of their everyday lives. A has constantly except for the year 1999-2000, has been able to be in work or studies. In the aftermath of the intersection, she has been in work and study part-time. Nevertheless, she managed to have a not insignificant level of activity, such business income shows. Although it is not a condition to be 100% disabled for having a serious illness in the legal sense, gives the Classified disability pension indicative of a functioning that is not consistent with being significantly crippled. She also runs a private clinic, “X Acupuncture.”
After the appellate court’s opinion was not As functioning sufficiently reduced by cutting the time in June 2001. It has also not been sufficiently lowered in the aftermath. She can not be said to have been high grade crippled privately and professionally. Her disability can not be considered to be of a “serious” illness that fall under the Insurance Act § 3-21.
The Court of Appeal has concluded that Trygderetten ruling is valid and state v / Labour and welfare acquitted.
the state has won the case fully and have the disputes Act rule in § 20-2 entitled to recover costs for the court of Appeal. Exemption provision in § 20-2 third paragraph can not be applied. Attorney Ramse Berg has put forward a legal expense statement showing a fee claim at 64,750 crowns without VAT. The requirement is upheld as necessary and reasonable, cf. Disputes Act § 20-5.
The verdict is unanimous.
Kingdoms Inference
| 1. | Staten v / Labour and welfare acquitted. |
| 2. | legal costs before the court of Appeal to pay A 64,750 -sekstifiretusensyvhundreogfemti- million to the state v / Labour and welfare within 2 -two- weeks from service of this judgment. |
