Higher Social Court (LSG) - Hesse, Decision as of 9/22/2010
File number L 4 VE 11/10

Summary

The Higher Social Court denied the plaintiff’s appeal against the Social Court of first instance’s refusal to order retroactive benefits under the OEG.

The plaintiff was the victim of an assault in 1992 pursuant to which she received a gunshot wound to her leg. On her application in May 2001 for compensation under the OEG she was awarded social security benefits as from the filing of the application but was refused retroactive benefits. She appealed this decision to the Social Court of first instance, claiming benefits commencing with the time of the assault. She argued that for reasons including posttraumatic stress disorder caused by the assault, she had been hindered from making the application earlier.

The Social Court of first instance dismissed the action on the basis that there had been no fault-free hindrance [on the part of the applicant] to the making of an application as contemplated by section 60 (1) of the German Federal War Victims Relief Act (BVG). The court of first instance held that because the plaintiff was capable of independently conducting her life after the assault, she had also been capable of making the application. In the end, the Social Court came to the conclusion that the reason the application had been made late was not because of the plaintiff’s poor health but because of her lack of knowledge of her claim to compensation, which she had first become aware of in 2001 through a victim protection organization. A lack of knowledge of the law does not, in the court’s opinion, justify the granting of retroactive benefits under section 60 BVG.
The Higher Social Court upheld the findings of the Social Court of first instance. The court particularly stressed that the issue of whether the plaintiff’s reason for not making the application earlier was really because of her poor health stemming from the assault - and not because of a lack of knowledge of her claims - was something that could not be resolved because the plaintiff had been unable to adduce any medical reports in support of this.

Leave for appeal was denied.

Decision in full text: