VERDICT
In the legal dispute
xxx,
— Plaintiff —
Legal representative: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
State of Lower Saxony, represented by the Lower Saxony State Office for Social Affairs, Youth and Family, represented by the President, Domhof 1, 31134 Hildesheim
— Defendant —
The 29th Chamber of the Social Court of Hildesheim, in the oral proceedings of December 8, 2017, with Judge xxx and Lay Judges Ms. xxx and Ms. xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decision of January 7, 2014, as modified by the partial remedy decision of July 25, 2014, and as modified by the appeal decision of November 24, 2014, to assess the plaintiff's functional impairment since September 25, 2013, with a degree of disability (GdB) of 50.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS
The plaintiff, born on xxx, seeks a determination of a degree of disability (GdB) of 50 since September 25, 2013.
By decision dated June 3, 2010, the defendant determined a degree of disability (GdB) of 30, effective January 1, 2010. This decision was based on the functional impairment of diabetes mellitus. The additional functional impairments of coronary artery disease, bypass surgery (individual GdB 10), hypertension (individual GdB 10), as well as osteoarthritis of the big toes and lipid metabolism disorder (each with no GdB), did not increase the overall GdB. A reassessment procedure conducted in 2011 was unsuccessful; see decision dated June 15, 2011, as amended by the appeal decision of August 1, 2011. Although a "bilateral deformity of the foot" (individual GdB 10) was identified, this did not increase the overall GdB.
On September 25, 2013, the plaintiff again submitted an application for a higher degree of disability (GdB). He stated that his diabetes, osteoarthritis in his big toes and shoulder, and heart disease had worsened.
The defendant subsequently obtained a medical report from the general practitioner Dr. xxx dated November 26, 2013, along with external findings. For further details, please refer to pages 32 to 38 of the administrative file.
By decision dated January 7, 2014, the defendant rejected the application. The defendant stated that there had been no significant change in the applicant's health that would justify an increase in the degree of disability.
By letter dated January 20, 2014, the plaintiff filed an objection to this decision. In support of his objection, he submitted a medical certificate from the general practitioner Dr. xxx dated February 6, 2014 (see page 46 of the administrative file).
The defendant obtained a medical report from Dr. xxx, a specialist in orthopedics, trauma surgery, chiropractic, and emergency medicine, dated June 2, 2014 (see page 51 of the administrative file). By partial remedy decision dated July 25, 2014, the defendant determined a permanent impairment of physical mobility. The decision is based on the following functional impairment:
1. Diabetes mellitus, polyneuropathy (individual degree of disability 30)
2. bilateral deforming foot changes (individual degree of disability 10).
The additional functional impairments of circulatory disorder of the heart, bypass (individual GdB 10) and high blood pressure (individual GdB 10) did not increase the overall GdB.
By letter dated August 12, 2014, the plaintiff, represented by his lawyer, filed a lawsuit with the Hildesheim Social Court.
By decision on objection dated November 24, 2014, the defendant rejected the objection insofar as it had not been remedied.
In support of his claim, the plaintiff stated that both the individual degrees of disability (GdB) for the heart condition and for the bilateral foot deformities had been assessed too low, and that the plaintiff had to terminate a stress ECG after only two minutes in September 2013 due to dyspnea. Furthermore, he suffers from stiffness of the big toe joints and bilateral hallux rigidus.
The plaintiff requests that
to order the defendant, by amending the decision of January 7, 2014, as amended by the partial remedy decision of July 25, 2014, as amended by the objection decision of November 24, 2014, to assess the plaintiff's functional impairments since September 25, 2013, with a degree of disability (GdB) of 50.
The defendant requests that
to dismiss the lawsuit.
The defendant referred to the statement of the medical assessment service dated September 1, 2015, as justification.
In the preliminary proceedings, the court obtained a medical report from the general practitioner Dr. xxx dated June 9, 2015, including external findings, and from the orthopedic surgeon, trauma surgeon, chiropractor, and emergency physician Mr. xxx dated August 7, 2015. For further details, please refer to pages 37 to 46 and 48 of the court file.
For details of the facts and the subject matter of the dispute, reference is made to the court file and the defendant's administrative file, which were available and formed the basis of the decision.
REASONS FOR DECISION
The admissible action is also well-founded.
The defendant's decision of January 7, 2014, as amended by the partial remedy decision of July 25, 2014, and as amended by the appeal decision of November 24, 2014, is unlawful and infringes the plaintiff's rights, cf. Section 54 Paragraph 2 of the Social Courts Act (SGG). The plaintiff has a right to a determination of a degree of disability (GdB) of 50 since September 25, 2013.
The legal basis is Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). According to this provision, an administrative act must be revoked with future effect if there is a significant change in the factual or legal circumstances that existed when the administrative act with continuing effect was issued. In this case, a significant change has occurred such that the diabetes mellitus is to be assessed with a degree of disability (GdB) of 40 and the foot problems with a GdB of 20, resulting in a total GdB of 50. Pursuant to Section 69 Paragraph 1 of the German Social Code, Book IX (SGB IX), the authorities responsible for implementing the Federal Supply Act—in Lower Saxony, the State Office for Social Affairs, Youth and Family—determine the existence of a disability and its degree. A disability exists according to Section 2 Paragraph 1 of the German Social Code, Book IX (SGB IX), if a person's physical function, mental capacity, or psychological health deviates from the typical normal state for their age for a period of more than six months with a high degree of probability, and this deviation impairs their participation in society. The degree of disability is determined in increments of ten. According to Section 159 Paragraph 7 of the SGB IX, the standards of Section 30 Paragraph 1 of the Federal War Victims' Relief Act (BVG) and the statutory instrument issued pursuant to Section 30 Paragraph 17 BVG (now Paragraph 16) are to be applied until a corresponding regulation is issued pursuant to Section 70 Paragraph 2 of the SGB IX. The Federal Ministry of Labor and Social Affairs issued the Ordinance on Medical Assessment for War Victims (VersMedV) on the basis of Section 30 Paragraph 17 BVG, effective January 1, 2009. This contains in its annex to § 2 the principles of medical assessment for disability benefits, which regulate, among other things, the details of the assessment of the degree of disability (GdB), the requirements for claiming compensation for disadvantages and the formation of the overall degree of disability in the case of multiple disabilities.
Diabetes mellitus is assessed with a disability rating (GdB) of 40. According to the principles of social medicine, the disability rating is 0 for people with diabetes whose therapy cannot routinely cause hypoglycemia and who are therefore hardly affected in their daily lives. They also do not experience any impairment of participation due to the effort required for therapy that would justify the determination of a disability rating. The disability rating is 20 for people with diabetes whose therapy can cause hypoglycemia and who are affected by restrictions in their daily lives. A disability rating of 30 to 40 is considered for people with diabetes whose therapy can cause hypoglycemia, who must perform documented self-monitoring of blood glucose at least once a day, and who are affected by further restrictions in their daily lives. These individuals experience a greater impairment of participation, depending on the extent of the therapy effort and the quality of their metabolic control. The degree of disability (GdB) is 50 for people with diabetes who undergo insulin therapy with four daily insulin injections, where the insulin dose must be adjusted independently depending on the current blood glucose level, the upcoming meal, and physical exertion, and whose lifestyle is significantly impaired by substantial restrictions. Blood glucose measurements and insulin doses must be documented. Exceptionally difficult-to-regulate metabolic conditions may warrant higher GdB values. In his report dated November 26, 2013, the general practitioner Dr. Opitz stated that the diabetes mellitus was well-controlled under intensified therapy and that there was no known tendency toward frequent hypoglycemia or other blood glucose imbalances. According to the plaintiff, he performs four to five self-monitoring of blood glucose levels daily. The intensified therapy inherently requires adjusting the insulin dose at mealtimes, taking into account the level of exertion. Since there are no severe hypoglycemic episodes, a GdB of 40 is sufficient and appropriate to the individual's condition.
The deformities of the foot and the polyneuropathy are assessed together with a degree of disability (GdB) of 20. According to the principles of social medicine, stiffness of the big toe joints in a favorable position warrants a GdB of 0-10, while stiffness in an unfavorable position (e.g., plantar flexion at the metatarsophalangeal joint exceeding 10°) warrants a GdB of 20. In cases of polyneuropathy, functional impairments result from motor deficits (with muscle atrophy), sensory disturbances, or a combination of both. The GdB for motor deficits is to be assessed analogously to peripheral nerve damage. Regarding sensory disturbances and pain, it should be considered that even mild disturbances can lead to impairments – e.g., of fine motor skills.
In his report dated November 26, 2013, the general practitioner Dr. xxx described mild peripheral sensory neuropathy in the feet with a tingling sensation under the soles. Furthermore, the plaintiff suffers from osteoarthritis of the metatarsophalangeal joints of both big toes. The joints are almost completely stiff. This information is confirmed by the orthopedic specialist, Mr. xxx, in his report dated September 9, 2013, who describes a pronounced hallux rigidus with practically complete loss of mobility in the big toe. At the beginning of 2014, the general practitioner, Dr. xxx, reported that the plaintiff suffers from constant pain, which increases significantly with exertion, even during normal walking on level ground. His gait is therefore very slow, and he has to take regular breaks after about 50-100 meters. The problem is exacerbated by the known peripheral neuropathy, which is diabetic and leads to neuropathic pain in the toes of both feet, described as burning and shooting. In his report dated June 2, 2014, orthopedic specialist Dr. xxx also noted a progressive impairment of walking ability and severe restriction of movement in both metatarsophalangeal joints of the big toes due to progressive diabetic polyneuropathy. In June 2015, Dr. xx reported a further deterioration of osteoarthritis and hallux rigidus bilaterally, with almost complete loss of mobility and severe pain. In his report dated August 7, 2015, Dr. Funke described both metatarsophalangeal joints of the big toes as instability. Considering the limitations in movement and the pain, a disability rating of 20 is appropriate and commensurate with the patient's condition.
The plaintiff's existing heart disease and hypertension, with mild LV dysfunction and EF of around 50%, result in only a slight impairment of pumping function and well-controlled blood pressure without organ damage, resulting in a disability rating of only 10, which does not increase the overall disability rating.
According to the available medical records, the spinal and shoulder impairments reported by the plaintiff do not warrant a disability rating.
There are no grounds for further investigations by the court, nor have any been raised by the parties involved.
The overall degree of disability (GdB) is to be assessed at 50, taking into account the highest degree of disability for diabetes mellitus (individual GdB 40) and the individual degrees of disability of 20 for the deforming foot changes and polyneuropathy.
The decision on costs is based on Section 193 of the Social Court Act (SGG) and takes into account the outcome of the proceedings.
The following is information on legal remedies.
