File number: 68 C 562/15
Announced on 15.08.2017
Bergisch Gladbach Local Court
IN THE NAME OF THE PEOPLE
Judgment
In the lawsuit
of Mr. ***,
plaintiff,
Attorney of record: Bernd Brandl, Neusser Straße 182, 50733 Cologne.
vs.
HUK Coburg ***
Defendant,
Counsel: Rechtsanwälte ***
The Bergisch Gladbach Local Court
ruled at the hearing on 25 July 2017 by the judge ***
:
The defendant is ordered to pay the plaintiff EUR 1,820.00 plus interest of 5 percentage points above the respective base interest rate since 9 January 2016. In all other respects, the action is dismissed.
The costs of the legal dispute are set off against each other.
The judgment is provisionally enforceable. The respective debtor may prevent enforcement by providing security in the amount of 110% of the amount due on the basis of the judgment.
The court can avert the enforcement of the judgment if the respective creditor does not provide security in the amount of 110% of the amount to be enforced prior to enforcement.
Facts:
With the present action, the plaintiff is seeking daily sickness benefits for the period from 11.09.2015 to 11.12.2015. The plaintiff maintains daily sickness benefits insurance with the defendant under the tariff “KT6” with the insurance number 300/265536-V. A daily sickness allowance in the amount of EUR 40.00 is insured. The contract is based on the insurance conditions MB/KT 2009. The insurance conditions state:
Ҥ 1 Object. Scope and area of application of the
insurance cover
(1) The insurer offers insurance cover against loss of earnings as a result of illness or accidents, insofar as this causes incapacity to work. In the event of an insured event, the insurer shall pay a daily sickness allowance to the contractual extent for the duration of the incapacity to work.
(2) An insured event is the medically necessary treatment of an insured person due to illness or the consequences of an accident, in the
course of which incapacity to work is medically established. The
insured event begins with the medical treatment; it ends when, according to medical findings, there is no longer any incapacity for work and no longer any need for treatment [..1.
(1) Incapacity for work within the meaning of these conditions exists if, according to medical findings, the insured person is temporarily unable to carry out his or her professional activity in any way and does not pursue any other gainful employment.”
The plaintiff worked as a financial advisor. The daily working hours varied between 6 and 12 hours. The plaintiff worked 5-6 days a week. He completed an average of 3 hours of consultations per day. The rest of the time he worked on the computer, dealing with applications and inquiries. The claimant spent approx. 10% of his working time in the office and approx. 90% with customers, to whom he traveled by car.
The claimant was unable to work from March 10, 2015. The doctor treating him, Ms ***, diagnosed “exhaustion depression due to a traumatizing work situation”. Furthermore, the plaintiff suffered from acute lumbar spine syndrome, a flu-like infection, palpitations, sleep disorders and bronchitis. The defendant initially paid a daily sickness allowance of EUR 40.00.
From April 2015, the plaintiff underwent treatment with the psychotherapist Dr. ***.
In June 2015, at the instigation of the defendant, a review of his incapacity to work was carried out by the psychiatrist ***. She certified that the plaintiff suffered from a moderately severe lavated exhaustion depression with psychosomatically increased back pain, non-organic insomnia, state of exhaustion (ICD-10: F32.81. F51.0. F 48.0) and was 100% unable to work due to these illnesses,
In September 2015, the defendant arranged for a new assessment. This was carried out by Prof. ***. The expert came to the conclusion that there was no longer any incapacity for work.
In a letter dated 22/09/2015, the defendant then discontinued payment of the daily sickness allowance as of 10/09/2015
The claimant claims that he was also incapacitated for work beyond 10/09/2015. As a financial advisor, he had to deal with numerous people on a daily basis, was under considerable pressure to meet deadlines and perform and had to make decisions quickly. This was not possible for him due to his illness. The lumbar spine syndrome also hinders him during car journeys and consultations. He is of the opinion that the expert opinion of Prof. Dr. *** did not deal sufficiently with his state of health. In particular, the medical history was not included. The expert merely relied on the clinical examination on the day of the examination.
The plaintiff requests that
the defendant be ordered to pay him EUR 3,640.00 plus interest in the amount of 5 percentage points above the base interest rate from the lis pendens.
The defendant requests that
the action be dismissed.
The defendant is of the opinion that the expert opinion of the expert Dr. *** is not suitable. It was drawn up by a medical expert in the wrong field.
The action was served on the defendant on 08.01.2016. The court took evidence in accordance with the order to take evidence of 14.06.2016 by obtaining an expert opinion and on 25.07.2017 by oral explanation of the expert opinion. Reference is made to the written expert opinion of Dr. med. *** (BI. 126 et seq. of the file) and the minutes of the hearing of 25.07.2017 (BI. 153 et seq. of the file) with regard to the result of the taking of evidence.
Reasons for the decision:
The claim is admissible and justified in the amount of EUR 1,860.00.
The claimant is entitled to payment of a daily sickness allowance in the amount of EUR 1,860.00 from the insurance contract existing between the parties.
According to the result of the taking of evidence, the court is convinced that the claimant was unable to work on 50% of the days in the period from 11.09.2015 to 11.12.2015 within the meaning of Section 1 (3) of the tariff conditions. The plaintiff was unable to carry out his professional activity as a financial advisor on at least 50% of the days during the period in question. According to § 1 Para. 3 of the tariff conditions, incapacity to work exists if the insured person is temporarily unable to carry out their professional activity in any way according to medical findings. A 100% incapacity to work is therefore required The last profession exercised in its concrete form is decisive here (see BGH, judgment of 09.03.2011 – IV ZR137/10, NJVV 2011, 1675).
In his expert opinion and in the course of the oral explanation, the expert Dr. *** stated comprehensibly that in the period in dispute there was a 100% inability to work on 50% of the days. The expert’s reasoning is comprehensible and convincing. As part of his examination of the plaintiff, the expert established that the plaintiff suffers from type 2 diabetes mellitus, arterial hypertension and cervical disc damage with radiculopathy on the right. Furthermore, the expert established that the plaintiff suffers from a moderately severe depressive episode. The expert stated in his written report that there were no indications of a serious mental disorder. However, he also explained that in the case of a depressive episode, a distinction must be made between three forms: mild, moderate and severe depressive episodes. In order to make a diagnosis of severity, various symptoms must be present over a certain period of time. To be able to reliably diagnose depression, a feeling of deep sadness and/or loss of interest must persist for at least two weeks. In addition, there must be at least four other symptoms, such as weight loss, insomnia, etc.
The expert stated that the plaintiff had somatic symptoms. These included weight loss, sleep disorders and a tendency to brood. Due to the presence of such somatic symptoms, the expert came to the diagnosis of a moderate depressive episode. Due to the symptoms present in the plaintiff, the expert considers the certificate of incapacity for work for the long period to be comprehensible. However, since he only assessed the plaintiff one year after the period in dispute, he cannot say with 100% probability whether the incapacity for work existed during the entire period in dispute. However, the expert also maintained in his oral explanation that there was incapacity for work on at least 50% of the days in the period in dispute. The expert justified this in a way that was comprehensible to the court by stating that mental illnesses have a wavelike course and in this respect there is sometimes an improvement in the symptoms, but also a worsening again. The court follows the expert’s convincing explanations in this respect.
It is also unproblematic that it is not clear beyond doubt on which specific days the plaintiff was unable to work and on which days he was not. The court considers it sufficient that the expert assumed an inability to work on 50% of the days. It cannot be the plaintiff’s responsibility to prove on which specific days he was unable to work during the period in question. An explicit designation of the individual days is not possible subsequently. Even in view of the decision of the Higher Regional Court of Cologne of 26.09.2014 – 1-20 U 49/14, 20 U 49/14, no other result is justified. In the case decided by the Higher Regional Court of Cologne, the expert had established that the plaintiff had been able to pursue her professional activity as a financial advisor at times. In the case to be decided here, however, the expert stated from his medical point of view that there was a severe restriction of the ability to work, but that he could no longer determine the exact period of incapacity to work due to the passage of time. However, the expert did not state that the plaintiff was able to carry out his work in phases. Rather, he stated that the certificate of incapacity for work over the long period of time was comprehensible to him.
The court has no doubt that the expert, as an internist, can make the diagnosis of a moderate depressive episode. In the course of the oral explanation, the expert explained that depressive moods are common in internal medicine and are manifested by somatic symptoms. He clearly explained that in cases in which more than three somatic symptoms are present over a period of more than three months, one can suspect or diagnose a moderate depressive episode. The expert stated that the plaintiff had somatic symptoms. Even during the examination in November 2016 and thus one year after the period in question, the plaintiff still had symptoms. It is true that the expert stated that it was difficult to determine the exact days of incapacity for work in retrospect. However, he testified that the moderately severe depressive episode had not yet subsided at the time of the assessment and that he was still able to detect symptoms in the plaintiff in this respect. The time gap between the period in dispute and the examination therefore does not contradict the expert’s diagnosis. This is particularly true in view of the fact that the expert has already stated in his written report that the course of depression can last for several years.
The fact that the expert has stated that the findings are largely based on subjective statements by the plaintiff also does not cause the court to doubt the expert’s diagnosis. It is inherent to depression that the symptoms can only be determined objectively to a limited extent. As the expert explained, depression is present if the person concerned suffers from a depressed mood and a reduction in drive and activity, and if other somatic symptoms are also present. The somatic symptoms include complaints such as loss of appetite, insomnia or increased sleep, psychosomatic restlessness or slowness. Tiredness and loss of energy, feelings of worthlessness or guilt. Restrictions in the ability to concentrate, think and make decisions as well as recurring thoughts of death. Furthermore, emotional rigidity, feelings of guilt and self-blame, a feeling of inner petrification (feeling of numbness) and an inability to cry can occur. These symptoms are subjective feelings that the attending physician can only determine through questioning and observation.
In contrast to many physical illnesses, which are objectively perceptible and detectable, mental illnesses such as depression are mainly experienced by the person affected and cannot be measured objectively.
The expert bases his diagnosis, among other things, on the fact that the plaintiff has suffered considerable weight loss. It is true that the expert stated that the weight figures were based solely on the information provided by the plaintiff. However, in addition to the weight loss, the expert named other symptoms from which the plaintiff suffered, which speak for a depressive episode. These are circling thoughts, sleep disturbances, loss of self-esteem and self-confidence. The court has no doubt that the symptoms were present in the plaintiff. During the personal interview at the hearing on June 3, 2016, the plaintiff credibly described that he suffered from sleep disorders. He testified that he was sometimes only able to sleep for an hour and then had to get up again. Furthermore, the plaintiff reported that he suffered from concentration difficulties. The sleep disorders and concentration difficulties in particular meant that the plaintiff was restricted in the performance of his job. As a financial advisor, he worked 5-6 days a week and had to carry out customer consultations, among other things, so that he had to work in a concentrated manner.
Moreover, the expert does not base his findings solely on the information provided to him by the plaintiff during the examination. In his expert opinion, he deals with the two expert opinions commissioned by the defendant. In addition, the expert was provided with the statement of Mr. *** and a letter from Ms. ***. The expert took a critical look at the statements. This can already be seen from the fact that the expert testified during the oral explanation that statements from treating physicians are often not scientifically usable. In particular, the expert questioned the diagnoses. On the basis of his findings, he was able to confirm the diagnoses, even if he himself had chosen a different designation.
Furthermore, the expert dealt with the expert opinions of Prof. Dr. *** and Ms. *** and attempted to explain the discrepancy between the expert opinions. The expert clearly explained that, in his opinion, the plaintiff’s somatic complaints had not been sufficiently taken into account in Prof. Dr. ***’s report and that, on this basis, it was assumed that he was fit for work.
The claim for interest arises from §§ 286. 288 BGB.
The ancillary rulings are based on §§ 92 para. 1. 708 no. 11, 711 ZPO. The amount in dispute is set at EUR 3,640.00.
Notice of appeal:
This judgment may be appealed against by anyone whose rights are adversely affected by this judgment.
1. if the value of the object of the appeal exceeds EUR 600.00 or
2. if the appeal has been admitted in the judgment by the local court.
The appeal must be received in writing by the Regional Court of Cologne, Luxemburger Str. 101, 50939 Cologne, within an emergency period of one month after service of this judgment. The notice of appeal must contain the name of the judgment against which the appeal is lodged and a declaration that an appeal is lodged against this judgment.
The appeal must be lodged in writing with the Regional Court of Cologne within two months of service of this judgment, unless already stated in the notice of appeal.
The parties must be represented by a lawyer before the Regional Court of Cologne; in particular, the notice of appeal and the statement of grounds of appeal must be signed by such a lawyer.
A copy or certified copy of the contested judgment must be submitted with the notice of appeal.
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