Reasons for the decision

1. the plaintiff is entitled to payment of € 5,280.00 from the health insurance contract existing between the parties in conjunction with §§ 192 VVG. §§ 192 VVG, 1 para. 1 and 2 AVB. Accordingly, the defendant is obliged to pay the plaintiff the agreed daily sickness benefit of € 100.00 per calendar day for the period from 16.04.2014 to 03.06.2014.

According to § 1 para. 1, para. 2 sentence 1 AVB, insurance cover is provided against loss of earnings for the duration of incapacity to work as a result of medically necessary treatment due to illness or the consequences of an accident. According to § 1 Para. 3 AVB, incapacity to work exists if the insured person is temporarily unable to carry out their professional activity in any way according to medical findings, does not carry it out and does not pursue any other gainful employment. According to established case law, a complete, i.e. one hundred percent incapacity to work is required (see OLG Cologne, decision of February 18, 2005, Ref. 5 U 1/07). The standard of assessment is the specific professional activity of the insured person at the time of the occurrence of the insured event (see BGH, NJW-RR 2007, 1624. 1625). The existence of a conditional inability to work as a prerequisite for the occurrence of an insured event must be proven by the policyholder (see BGH NJW-RR 2000, 1414; VersR 2013. 848: OLG Cologne VersR 2008, 912).

According to the case law of the Federal Court of Justice, the criterion for the examination of incapacity for work is the previous occupation in its concrete form (see BGH, judgment of March 9, 2011, Ref.: IV ZR 52/08). Therefore, the insured person can also be unfit for work within the meaning of § 1 para. 3 MB/KT if the circumstances causing his illness are related to his previous job. The decisive factor is that the insured person is unable to carry out his previous occupational activity in its specific form due to his illness. The inability to work does not cease to apply because the insured person would be able to work again if the conflict situation at his specific workplace was resolved or if he changed his workplace (see BGH, loc. cit.).

Measured against these principles, the plaintiff was completely unable to work in the period from 16.04.2014 to 03.06.2014 within the meaning of § 1 para. 3 AVB. Taking into account the entire content of the hearing and the result of the taking of evidence, the Chamber is convinced that the plaintiff was unable to carry out his previous professional activity in its concrete form in any way during the period in question. The Chamber relies on

On the basis of the examination of the plaintiff and the evaluation of the medical records in his report, the expert came to the conclusion that the plaintiff was completely unable to work during the period in question. In the opinion of the expert, the plaintiff had an adjustment disorder due to psychosocial stress at work, which existed in the period from November 2013 to July 2014 to an extent relevant to function and everyday life and caused incapacity to work. There was a depressive-anxious symptomatology in a contextual and temporal connection to a change in the psychosocial conditions at the workplace. Despite the symptomatic improvement in the months of March to April 2014, there was also a subsequent inability to work due to the risk of a renewed deterioration in mental health. In the expert’s opinion, it was understandable that the subject’s mental health would have deteriorated again, and possibly permanently, if he had returned to the job he experienced as stressful. Only with the promise of a new job and release from work by the previous employer, i.e. the elimination of the factor causing the illness, was it possible to achieve sufficient stability of the complaints and a restoration of mental health.

The expert convincingly countered the defendant’s objections in his supplementary statement dated July 17, 2016. In it, the expert also clarified that, in addition to his employees PD Dr. *** and Dr. ***, he had also personally examined the plaintiff; moreover, he had been responsible for answering the expert opinion question for the drafting of the expert opinion and for reviewing, correcting and supplementing the expert opinion prepared. The expert also stated that the expert opinion was based on the sick notes of the family doctor and the specialist opinion of the treating psychiatrist, which is in the file; additional information was obtained by telephone. Insofar as the defendant argues that the low dosage of the antidepressant amitriptyline precludes the assumption of incapacity for work, the expert clarified that this medication can also be used in low dosage for symptomatic treatment, especially since the diagnosis of an adjustment disorder justifying incapacity for work does not necessarily require medication. He also confirmed that, in view of the risk that, under renewed

If the symptoms flare up again after exposure to the specific “stressor” – in this case when returning to the same workplace – the patient is unable to work in order to prevent detrimental health consequences.

The Chamber follows the comprehensible and convincing explanations of the expert. The expert opinion of the expert Prof. Dr. *** is well-founded, comprehensible and coherent. The expert deals comprehensively with the available treatment documents and evaluates them in full. There are no doubts about the qualifications and expertise of the expert, who is the Director of the Clinic for Psychiatry and Psychotherapy at the hospital.

Furthermore, Priv.-Doz. Dr. ***, who was appointed in agreement with the parties, convincingly explained in his oral hearing on November 16, 2016 that although a temporary return of the plaintiff to his previous job after the new job was promised was a conceivable therapy concept, this possibility was not considered in the specific case, according to the available documentation, as there was a risk of a recurrence of the psychological complaints. In response to the defendant’s complaint that the diagnosis of an adjustment disorder could only be made for a maximum period of six months – which was exceeded in this case – the expert Priv.-Doz. Dr. *** made it clear that this statement only applied in the event that the conflict situation had been resolved by then and that the six months mentioned were merely an average value. The fact that the plaintiff was in a position to write 40 to 50 job applications during the period in question is also a factor. to write 40 to 50 job applications during the period in question is, in the opinion of the expert Priv.-Doz. Dr. *** does not contradict the existence of a psychological complaint and, moreover, does not necessarily indicate that the plaintiff could return to his previous job without risk to his health. In any case, according to the supreme court rulings on workplace-related incapacity for work already set out above, it is irrelevant for legal reasons alone that the plaintiff was able to pursue professional activities outside his place of work.

The interest claim follows from Sections 280 (1) and (2), 286 (1), 288 (1) BGB.
Based on a value in dispute of € 5,280.00 and a reasonable business fee of 1.3, the plaintiff is also entitled to pre-trial legal fees of € 571.44 against the defendant for default, Sections 280 (1) and (2) and Section 286 (1) BGB.
4.The decision on costs is based on Section 91 (1) ZPO, the decision on provisional enforceability on Section 709 sentences 1 and 2 ZPO.

The amount in dispute is set at € 5,280.00