Higher Social Court (LSG) - Hesse, Judgment as of 3/9/2011
File number L 4 VE 14/10

Key issues

Proceedings before the Social Court regarding benefits under the German Victims' Compensation Act (OEG) aggravation of psychological order through perpetrator’s escape justifies claim to pension; extensive comments on determining which event is the cause of a health impairment.

Summary

The Higher Social Court ordered the public pensions office of Hesse to recognize a posttraumatic stress disorder on the part of the plaintiff and to pay her pension benefits computed on a degree of disability (caused by the injury) of 40%.
The plaintiff was beaten up at the end of 2004 by her divorced husband who threatened to kill her while attacking her with a knife. The man was sentenced to imprisonment but fled to Serbia in October 2005 before going to prison.
After the attack, the woman initially managed to repress the event and to continue working. But after the man’s flight, her psychological problems broke out again in an intensified manner and she was no longer able to work fulltime. She applied for pension benefits under the OEG.

On the basis of an expert opinion, the public pensions office recognized a degree of disability (caused by the injury) of only 20%. However, in order to receive benefits, a degree of disability (caused by the injury) of at least 25% is required.
On the woman’s action against this to the Social Court of first instance, the court again obtained a variety of expert opinions, which for the most part diagnosed a posttraumatic stress disorder caused by the man’s flight and assessed the degree of disability (caused by the injury) at 40%. The court nevertheless dismissed the action due to an absence of causality. The court held that the degree of disability (caused by the injury) of 40% sufficient for obtaining benefits had been evoked by the flight and not by the man’s attack. And because the plaintiff had already been in psychiatric treatment before the act, there could also have been pre-existing ailments.
On the appeal of the woman to the Higher Social Court, the court obtained still another expert opinion. This opinion reviewed in detail the question as to which event had been the cause of the plaintiff’s ailments. The expert opinion concluded that no relevant pre-existing ailments existed, but that the plaintiff had psychological ailments on account of the act, such ailments having been aggravated by the man’s flight. The aggravation caused by the fear of further attacks by the husband after his flight could not be seen separately from the first act. The degree of disability (caused by the injury) in association with this was assessed at 40%.
The Higher Social Court was convinced by this assessment of the expert. The court also regarded the man’s original act as having been the cause of this health impairment and commented in this connection on the so-called causality theory. According to this, those things that substantially contribute to achieving the damage are considered to be the cause of it. Although the man’s flight intensified the disorder, it was not the cause of a new psychological impairment independent of the attack. The court found that at first the woman had obviously only repressed - but not overcome - the trauma caused by the act, so that it broke out again after the man’s flight. And because this was to be regarded as a consequence of the act, it had to be compensated for under the OEG.

Decision in full text:

LSG_Hessen_09_03_2011 (PDF, 117 KB, not barrier-free, in German)

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