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Can courts order an additional expert opinion in proceedings for the confirmation of incapacity for work?

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​​​​​​​​​​​by Michał Zakrzewski

19. November 2024


In the Polish legal system the confirmation of incapacity for work is a key element in many court proceedings, in particular those relating to social security and pensions. In these cases, the key piece of evidence on which the court bases its findings is usually a forensic expert's opinion delivering specialist medical knowledge. 

The statements of the forensic experts may dissatisfy the person seeking benefits – if the opinion states their capacity for work – but also the pension authority, if in the light of the opinion the entitled person is incapable for work. 

In certain situations, the court can order the same or different experts to deliver an additional expert opinion. Below, we will explain, in what situations and for what reasons a court can take such a decision and describe its consequences.


TABLE OF CONTENT


When can a court order an additional forensic expert opinion – legal basis


According to the Polish Code of Civil Procedure (CCP), a court can appoint forensic experts from different disciplines if the nature of the case so requires. In the case of a confirmation of incapacity for work, these are usually experts in occupational medicine, neurology, psychiatry or orthopaedics.

Moreover, according to Article 286 of the CCP, a court is empowered to request an additional forensic expert opinion if it deems this necessary to clarify significant circumstances of the case. This provision plays a key role for a court ordering an additional forensic expert opinion. It vests the court with extensive powers to obtain additional expert opinions to thoroughly clarify all significant circumstances of the case.


additional expert opinion


EXAMPLE


The Social Insurance Institution (the “ZUS”) has refused the entitlement of the insured person, S.J., to pension based on incapacity for work because the ZUS's medical commission had ruled that the insured person was not incapable for work.

S.J. appealed against the decision of ZUS to the regional court but his appeal was rejected.
The court ruled that, in the past the insured person had received regular psychiatric treatment, suffered from adaptive disorder, later from depressive disorder, with the recurring depressive episodes being mild or moderate, and responded well to treatment. 

The forensic expert appointed in this case did not find any symptoms of depression that would significantly limit the appellant’s capacity for work and issued a correspondent expert opinion. However, taking into consideration the disordered flow of thoughts as well as the emotional disorder and deterioration of cognitive functions reported by S.J., the forensic expert asked for assessment by a psychologist. The forensic psychology expert did not find in her opinion a low mood or a disorder of cognitive functions that would indicate an injury of the central nervous system (CNS) and restrain the examined person in any way whatsoever from taking up work. 

Subsequently, the forensic experts prepared a joint opinion in which they, having considered anew all documents and examinations, did not confirm any incapacity for work (even partial) on the part of S.J. The regional court rejected the appeal on the basis of the conclusions drawn in the opinion. 

According to the court of first instance, the opinion issued by the forensic experts was prepared reliably and professionally on the basis of an examination of S.J. and the entire available medical and court documentation. The opinion contained all components necessary for assessing the degree of impairment of the insured person’s physical fitness and his possible incapacity for work. Considering the logical statements expressed in the opinions, the regional court held that there were no reasons whatsoever for challenging them. S.J. filed objections in which he challenged the forensic experts’ opinions but the court did not identify any inconsistencies or ambiguities in them. 

In this, the regional court pointed to the fact that without any doubt the insured person was struggling with diverse conditions and afflictions but nevertheless his examinations did not reveal a malfunction to a degree that would cause incapacity for work in the meaning of the above-mentioned provision.  

Invoking one of several Supreme Court judgments, the court stated that a benefit is granted on the basis of assessment of the physical condition of the applicant prepared by forensic experts. The subjective feelings of the person concerned are of no relevance. 

S.J. appealed against the entire judgment claiming that a disability pension be awarded.

He stated that the judgment had been issued based on unreliable expert opinions. S.J. claimed that both opinions were issued based on examinations the results of which depended on the respective situation he had been in at that time and, therefore, the examinations were not representative. S.J. stressed that he was still suffering from emotional disorder and the experts trivialised the underlying cause. The experts’ opinions were general, inaccurate and vague. S.J. requested other experts to be appointed.

The appellate court dismissed the appeal and, basically, followed the argumentation of the court of 1st instance. ​

When do courts apply Article 286 of the CCP?


Established court practice shows that just because the courts have the possibility of ordering an additional expert opinion from the same or different experts, this does not mean that such an additional opinion is necessary in every case. This is because such necessity must result from the circumstances of the case and be assessed by the court concerned. Therefore, an application for another/other forensic expert(s) to be appointed is not justified just because the existing opinion is unfavourable to the party. When filing such an application, the party must demonstrate faults, inconsistencies or other defects of the opinions taken on file that disqualify such opinions and, thus, justify an additional expert opinion or the appointment of other forensic experts.

In fact, effectively challenging an expert opinion is very difficult because they are issued by specialists having specialist knowledge which, unavoidably, the appellant or even their professional attorneys lack. 

In practice, the most effective arguments which may convince a court to order an additional expert opinion in the case for a confirmation of capacity/incapacity for work can be divided into 4 categories:

  1. Ambiguity or repugnancy of the opinion: if an expert opinion is ambiguous or repugnant, a court may order an additional expert opinion in order to clarify these doubts. For example in a situation where experts differently assess the degree of incapacity for work or its causes. In such cases, an additional opinion may help determine the facts of the case unambiguously.
  2. New evidence or circumstances: a court may conclude that an additional expert opinion is necessary if new evidence or circumstances emerge that may affect the assessment of incapacity for work. This refers e.g. to new results of medical examinations which were not available at the time when the first opinion was prepared.
  3. Doubts about the experts’ competence: if there are doubts about the competence of the experts who issued the original expert opinion, a court may want to appoint other experts in the same field of expertise.
  4. Degree of complexity of a case: in very complex cases, a court may conclude that it is necessary to order expert opinions from several forensic experts from different areas. This can be the case e.g. where incapacity for work results from many coexisting conditions the existence of which is discovered during further examinations.


Procedure of ordering an additional expert opinion​


Bear in mind that although it is the court which orders an additional expert opinion to be admitted, civil law process is adversarial – which means that each party should be interested in proving their own statements. And therefore, the party should challenge an opinion accordingly by delivering appropriate arguments and apply to the court to issue such an order.  

Konsekwencje dodatkowej o​pinii


An additional expert opinion may significantly affect the course and the outcome of the proceedings. It either confirms or challenges the former findings and can, thus, change the court’s decision about the incapacity for work. In practice, an additional expert opinion often makes the decision in a case more precise and fairer. 
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Podsumowa​nie


A court order for an additional expert opinion from the same or different experts is a tool aiming to ensure reliability and correctness of process. In proceedings for the confirmation of incapacity for work, an additional expert opinion may be key for the decision about the case. However, to make it happen, a respective application should be based on defectiveness of the existing expert opinion.  


[1] Supreme Court's ruling of 20 May 2013, file no. I UK 650/12.​

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Michał Zakrzewski

Attorney at law (Poland)

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