Kostelka: Disability pension for blind painter

Disability pension for blind painter

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of June 21th 2008

When to the conditions for the provisions of professional protection in the field of the disability pension apply? Mr. T. has had negative experiences considering the recognition of his professional career by the Pension Insurance Institution (PVA).

Mr. T., 46 years old, an apprenticed painter suffers from Juvenile Maculadegeneration, a disease which reduces the visual acuity significantly and impairs the colour vision. Unfortunately there is no treatment option and no view of improvement. The disease initially undetected was only identified as the visual performance of Mr. T. suddenly deteriorated severely in 2006. From then on due to his state of health he was no longer in a position to exercise his profession at the mixing of automotive varnishes because he was unable to distinct between colours, so he got laid off by his employer in February 2007.

In April 2007 Mr. T., whom the Federal Social Authority has confirmed a disability of 100% und who also receives nursing subsidies level 3 (a court opinion prospects de facto blindness) applied for a disability pension.

This application was rejected by the PVA. The given reasons were that Mr. T. is not entitled to professional protection and he would be able to exercise in the labour market for socalled “jobs for Blind”. But Mr. T. never enjoyed education and training required for the qualified Blind professions, as people do, who are born blind or become blind as children or adolescents. Mr. T. does not know Braille, can not deal with a computer and can not leave his home without company. He must first of all learn to cope with the deterioration of his health.

One can claim professional protection if this person mainly works in the profession in which one served an apprenticeship and if the working capacity due to physical or mental condition sunk to less than half than that of a physically and mentally healthy insured person of similar training and equivalent knowledge and skills in each of these professions.

According to Ombusdman Dr. Peter Kostelka, Mr. T. should doubtless receive professional protection because in the last 15 years he mostly was employed in his learned profession as a painter. The main question in this case, as Dr. Kostelka pointed out during the broadcast of Advocate for People on the 21th of June 2008, is actually the work of Mr. T. for a period of 5 years in a company, which among other things is acting in the ground marking sector. Dr. Kostelka accused the PVA of drawing the conclusion from to the name of that company to the fact that the work of Mr. T is not entitled to professional protection without checking what his actual activity was there. In support of the allegation that the complainant was mainly working as a painter in this company, and only incidentally did marking ground work, the Ombudsman presented a letter from this company which shows that Mr. T. mainly worked as a painter.

Regarding these new information the representative of the Pension Insurance Institution promised to check these details. Would on the basis of this data Mr. T. fall under professional protection nothing will be standing in the way of a quick and positive decision.

Dr. Kostelka also criticized the nonsufficient opionions of negative pension decisions, from whom usually can not be concluded which results of the preliminary proceedings lead to the negative decision regarding professional protection. In mass Social Security procedures often follows an application which does not refer closer on concrete fact elements and the expensive and sometimes mad practice of Labour and Social courts to instruct several medical expert advices before clearing decisive legal issues. This bar of opinions requires time and becomes wastage where professional protection must be affirmed as in cases like those of Mr T. where the eligibility criterias for obtaining a disability pension have to be recognised without further medical investigation without a doubt. The fact that the man is almost blind is proved without new advice. There is also no company on the labour market which would employ a blind painter. The PVA pointed out during the show, that the course of judicial proceedings of evidence are decided by the judiciary alone, but in the interest of the insured community, which comprises the costs of these procedures even if the insured loses, the PVA would too seek for a cost reduction. Ombudsman Dr. Kostelka noted once again that it is now in the hand of the PVA by a speedy review of de facto at last exercised activities to agree on extra-judicial agreement and to stop the judicial proceedings.

Professional disability through environmental disease

At the Advocate for People programme on June 21 2008, Dr. Kostelka reported a success in the case of Mrs. R.. Mrs. R., suffering from Multiple Chemical Sensitivity, an environmental disease, primarily caused by car exhaust, and therefore only able to leave her home late at night, had sought for a professional disability pension.

Mrs. R. a long time executive employee had to abandon her profession because of the disease. After years of unemployment she received with the justification “mental health problems” a professional disability pension for 5 years, followed by the declaration to be able to work.
The decision of the PVA rejecting the professional disability pension was fought in court by Mrs. R.. Her request for a medical for environmental diseases was initially rejected by the court recalling 2 other medical opinions.

The now present opinion coming from the special field of environmental diseases clearly shows that Mrs. R. `s symptoms are typical for Multiple Chemical Sensitivity and that she is unable to work. Already at the programme of 19th April 2008 Ombudsman Dr. Kostelka threw upon the PVA, that they do not take notice of the clinical picture of Mrs. R., that such a behavior is not lege artis, and instead they continue carrying on the case in court. The then present representative of the PVA, Prof. Dr. M. said, that the issue is not the disease itself, but the resulting limitation of performance, and that first of all he wanted to see the appropriate medical opinion.

Ombudsman Dr. Peter Kostelka could finally report that the presented opinion for environmental diseases has now been accepted by the PVA, and that there is an extrajudicial agreement on a professional disability pension for Mrs. R. from November 2007on.