Appealing an ITU decision in 2021: sample complaint and what to do if you are denied disability

The question of how to challenge a disability group arises when a citizen does not agree with the decision of a medical and social examination (MSE) made against him. The results of the bureau's work may vary. A citizen applying for disability may be denied it. A situation may arise in which the existing disability category is downgraded, upgraded or maintained (extended). Nobody has canceled the legal right to challenge the results of an examination, and it can be used.

Criteria for awarding disability

Based on the results of the examination at the ITU bureau, a person receives a certificate containing confirmation that he is recognized as disabled to any degree.

If a citizen is not recognized as disabled, the certificate contains information about the results of the work carried out with him. In both cases, the contents of the received document may not satisfy the patient. Then the question of appealing the medical report naturally arises.

Registration of disability

When deciding to protest the results of the ITU, the patient needs to understand what conditions established by the legislator are used today when awarding a disability of a particular group.

In 2015, the Ministry of Labor and Social Protection approved an order, according to which bureau employees, when conducting MSE, are required to make decisions based on the results of examination of citizens, taking into account special classifications and criteria. The document lists:

types of long-term health disorders;
categories of human life.

The possible degrees of such disorders and the degree of disability in these categories are indicated here.

Disability is assigned depending on the degree to which the functional limitations of the body caused by a long-term illness are expressed.

The disability group is determined in accordance with the degree of limitation of any categories of life activity.

The result of this approach is that recognition of a person as needing social support measures due to disability does not depend on the presence of a disease or defect in the body. The main condition is the extent to which they prevent a person from leading a normal lifestyle:

serve yourself independently;
get education;
perform labor activities;
control your behavior;
communicate with others;
move freely without assistance from others;
navigate in space and surrounding reality.

Obviously, this is why the examination was called medical-social. Its task is to establish not only the presence of a defect, but also its social significance for a person.

In addition, a condition for classifying a citizen as a disabled person is also the need for social support, mainly the need for rehabilitation.

When assessing the patient’s condition, ITU specialists must take into account possible improvements in his condition as a result of rehabilitation. For example, to what extent the proposed prosthetics can reduce the severity of limitations in one or more categories of life activity.

Decision of the Timiryazevsky District Court of Moscow

Case No. 2-90/2012

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

01 February 2012

Timiryazevsky District Court of Moscow, composed of presiding judge N.S. Baranova, with secretary L.N. Lyubetskaya, with the participation of the representative of the plaintiff - lawyer P.A. Domkin, having considered civil case No. 2-90/12 in open court P.V.A’s claim against the Federal State Institution Federal Bureau of Medical and Social Expertise to recognize the decision of branch No. 29 of the Federal State Institution GB MSE as illegal, declaring the refusal of the Federal State Institution GB MSE illegal, declaring the certificate of examination of the Federal State Institution GB MSE illegal, recognizing the response of the FGU GB MSE as illegal,

INSTALLED:

Plaintiff Ch.V.A. filed a lawsuit against the defendant Federal State Institution FB ITU and asks to recognize the decision of the mixed-profile expert panel No. 13 of the Federal State Institution FB ITU, which carried out the examination in order to appeal the decision of the State Budgetary Institution ITU of Moscow, as illegal, as taken in violation of current legislation.

During the consideration of the civil case, the plaintiff clarified the claims, according to which he asks to recognize the decision of branch No. 29 GB ITU of Moscow dated April 23, 2010 as establishing P.V.A. 50% loss of professional ability to work is illegal, declare illegal act No. 361-1213 of May 31, 2010 of the Federal State Institution GB ITU for Moscow establishing P.V.A. 50% loss of professional ability to work, recognize as illegal the inspection act No. 368 of October 19, 2011 of the Federal State Institution FB ITU, which established P.V.A. 50% loss of professional ability to work, to recognize as illegal the response of the Chairman of the State Security Service of Moscow dated May 31, 2010 regarding the recognition as justified the decision of branch No. 29 of the Federal State Institution of State Security Service of the State Security Service for Moscow dated April 23, 2010, which established Ch.V.A. 50% loss of professional ability to work, oblige branch No. 29 of the Federal State Institution GB ITU in Moscow to carry out in relation to P.V.A. examination to establish the degree of loss of professional ability in accordance with the norms of current legislation, to recover from the Federal State Institution GB ITU in Moscow and the Federal State Institution FB ITU in favor of Ch.V.A. legal expenses in the amount of RUB 75,684.

The plaintiff’s stated claims are motivated by the fact that Ch.V.A. line pilot first class, from 1986 to 2006 pilot-in-command of the IL-62 aircraft, performed international flights under the terms of the International Civil Aviation Organization (ICAO), flight experience - 37 years, flight time 18,000 hours, mastered several types of aircraft, last place of work - airport Domodedovo. On May 29, 2006, by decision (Certificate No. 11556) the Central Medical Flight Expert Commission of Civil Aviation (hereinafter referred to as the TsVLEK GA) declared the plaintiff completely unfit for flight work for health reasons. By the act of the commission dated September 4, 2006, approved by the Ministry of Health of the Russian Federation on September 20, 2006, the disease Ch.V.A. recognized as professional.

By the conclusion of the advisory clinic of the State Research Institute of Occupational Medicine of the Russian Academy of Medical Sciences dated September 25, 2007, C.V.A. The main diagnosis was established - bilateral sensorineural hearing loss with a significant degree of hearing loss.

Making a conclusion about the unsuitability of Ch.V.A. for flight work, professional activities preceding an occupational disease, that is, performing the functions of a line pilot, commander of an IL-62 aircraft, including international flights, the TsVLEK GA was guided by the regulatory documents of the Ministry of Transport of Russia, the Ministry of Health of Russia and the Federal Aviation Rules. Based on the above conclusion of the TsVLEK GA, the direction of the TsKB GA Ch.V.A. turned to the Defendant, represented by Branch No. 29 of the Federal State Institution “Main Bureau of Medical and Social Expertise in Moscow” to undergo an examination to determine the degree of loss of professional ability. On March 23, 2010, based on the results of the examination of Branch No. 29 (in the ITU certificate, the date was corrected to November 1, 2009) with the previously established third disability group for an indefinite period, C.V. established. A. loss of 50% loss of professional ability to work, and indicated that he is 50% able to perform professional activities preceding the occupational disease, that is, perform the functions of a line pilot, pilot-in-command of an IL-62 aircraft, including performing international flights with a pronounced reduction in qualifications (as pilot 2nd or 3rd class), or with a decrease in the amount of work performed.

A similar decision was made by Branch No. 29 despite the fact that the TsVLEK GA, on the basis of the specified legislation and license, is the highest body of medical flight examination of civil aviation in the Russian Federation and has the exclusive right to issue an objective, substantiated medical opinion on fitness (unfitness) for flight work aviation personnel, based on modern achievements of medical science and practice, as well as international standards and recommended practices of the ICAO, decided on the complete unfitness of the C.V.A. to flight work preceding an occupational disease. To resolve the disagreements that arose in the decisions of the above-mentioned authorized state bodies, on November 18, 2011, the plaintiff submitted an application to the Chairman of the TsVLEK GA for the issuance of a medical expert opinion on his fitness for health reasons to perform flight work as a commander of an IL-62 aircraft in normal production conditions, in specially created ones, with a pronounced reduction in qualifications, with a moderate or slight reduction in qualifications, with a decrease in the volume of work performed, with changed working conditions, as Branch No. 29 indicated in its decision. Having considered the application of Ch.V.A., the Chairman of the TsVLEK GA gave him a reasoned answer that due to the health status of Ch.V.A. cannot perform professional activities preceding an occupational disease as a line pilot in command of an IL-62 aircraft, either in normal production conditions or in specially created ones, or with a pronounced reduction in qualifications, or with a moderate or insignificant reduction in qualifications, or with a decrease in the volume of work performed , not with changed working conditions, under any conditions and under any circumstances. On this basis, the plaintiff was denied a re-examination. Thus, the TsVLEK GA re-confirmed the plaintiff’s complete professional unfitness to perform activities preceding the occupational disease as a line pilot, commander of the IL-62 aircraft. Guided by the response of TsVLEK GA, the plaintiff concluded that Branch No. 29, going beyond. limits of competence and refusing to recognize the loss of the plaintiff’s professional ability to work, makes an illegal conclusion about his fitness to fly, in fact allowing him (the disabled person) to fly under the above conditions.

P.V.A. appealed the decision of Branch No. 29 of March 23, 2010 to its chairman. By letter dated May 21, 2010, the head of Branch No. 29 refused to satisfy the complaint of Ch.V.A., indicating that the commission when appointing Ch.V.A. the degree of disability was guided by legislation. On May 31, 2010, not agreeing with the conclusions of Branch No. 29, the plaintiff appealed the decision of the commission to the defendant, namely to the Federal State Institution “Main Bureau of Medical and Social Expertise in Moscow.” Later, the head of the Moscow Medical and Social Examination Center rejected the complaint of P.V.A in letter No. Ch3029 . , indicating that the establishment of P.V.A. 50% of disability is justified.

June 16, 2010 P.V.A. appealed the decision of the ITU of Moscow to the defendant represented by the Federal State Institution Federal Bureau of Medical and Social Expertise. Based on the results of consideration of his complaint, the Federal Bureau of ITU drew up an examination report No. 368, in which the commission confirmed the degree of disability at 50%. In the covering letter, the head of the commission informed that the degree of loss of ability to work for the plaintiff was established at 50% before the end of the current period; at the next examination, allegedly, the Decree of the Government of the Russian Federation of October 16, 2000 No. 789, gives grounds to establish for him 30% loss of ability to work, reducing the degree severity of the disease from significant to insignificant.

By making such conclusions, the ITU Federal Bureau, as well as its lower structural divisions, went beyond their powers. Despite the fact that establishing the degree of disability is the prerogative of a medical and social examination, the degree of impairment of body functions (the severity of an occupational disease) is not within its competence, but is the exclusive right of a health care institution. (Clause 9 of the “Rules for determining the degree of loss of professional ability to work as a result of accidents”, approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789).

In addition, the conclusions of ITU institutions do not correspond to paragraph 5 of the “Temporary criteria for determining the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases”, approved by Order of the Ministry of Health and Social Development of the Russian Federation dated April 18, 2007 No. 280. In accordance with paragraph 1 of paragraph 1 of the Temporary Criteria, when determining the degree of loss of professional ability to work, it is necessary to take into account the professional factor, in particular, the ability of the victim after an accident at work or the occurrence of an occupational disease to perform work in full in his previous profession (before the accident or occupational disease) in ordinary or specially created production or other working conditions.

In order to objectively confirm his conclusions about the illegality and unfoundedness of the defendants’ decisions, the plaintiff turned to the Center for Forensic Medical Examination of Roszdrav in order to obtain an independent opinion on the degree of disability. Based on the research conducted, the Center issued a specialist’s conclusion that the plaintiff’s occupational disease and its severity correspond to 100% loss of professional ability. Based on Article 98 of the Code of Civil Procedure of the Russian Federation, the defendants are subject to recovery of legal costs associated with the consideration of the claim, in the form of payment for the services of a representative in the amount of 50,000 rubles, a state fee in the amount of 200 rubles, costs in the amount of 25,484 rubles associated with obtaining the conclusion of the Center for Judicial- medical examination of Roszdrav. Plaintiff Ch.V.A., his representative Domkin P.A. They appeared at the court hearing, supported the claims, and asked to satisfy the claims.

Representatives of the defendant FGU FB MSE M.E.I. appeared at the court hearing, did not admit the claims, and asked to refuse to satisfy the stated demands.

The representative of the defendant FGU GB MSE - B.Yu.N., appeared at the court hearing, objected to the satisfaction of the stated claims, and asked to dismiss the claim.

Having listened to the explanations of the participants in the process and examined the written materials of the case, the court finds the claims subject to partial satisfaction on the following grounds. In accordance with Art. 7, 8 of the Federal Law of November 24, 1995 No. 181-FZ “On the social protection of disabled people in the Russian Federation”, medical and social examination is carried out by federal institutions of medical and social examination, subordinate to the authorized body determined by the Government of the Russian Federation. The procedure for organizing and operating federal institutions of medical and social expertise is determined by the federal executive body authorized by the Government of the Russian Federation. Federal medical and social examination institutions are responsible for:

Establishing disability, its causes, timing, time of onset of disability, the need of a disabled person for various types of social protection
Development of individual rehabilitation programs for disabled people
Study of the level and causes of disability of the population
Participation in the development of comprehensive programs for the rehabilitation of disabled people, disability prevention and social protection of disabled people
Determination of the degree of loss of professional ability to work

Determining the cause of death of a disabled person in cases where the legislation of the Russian Federation provides for the provision of measures of social support to the family of the deceased.

In accordance with paragraph 16 of the Decree of the Government of the Russian Federation of October 16, 2000 No. 789, if a victim as a result of an accident at work and an occupational disease can, under normal production conditions, continue professional activities with a pronounced reduction in qualifications or with a decrease in the volume of work performed, or if he has lost the ability to continue professional activities due to a moderate impairment of body functions, but can, under normal production conditions, perform professional activities of lower qualifications, the degree of loss of professional ability to work is established from 40 to 60 percent.

In accordance with paragraph 19 of the Government of the Russian Federation No. 789, when re-examining a victim after rehabilitation measures, specialists from a medical and social examination institution, when establishing the degree of loss of professional ability to work, take into account damage to health due to an industrial accident and occupational disease, the ability to perform work in the profession acquired in as a result of training or retraining, the ability of the victim to perform professional activities preceding the industrial accident and occupational disease, taking into account his existing professional knowledge and skills.

In accordance with paragraph 27 of the Decree of the Government of the Russian Federation of October 16, 2000 No. 789, the degree of loss of professional ability of the victim is established indefinitely in the case of irreversible consequences of damage to health due to an industrial accident and occupational disease with a persistent impairment of professional abilities and the ability to perform production activities.

Professional work ability is a person’s ability to perform work of a certain qualification, volume and quality.

The degree of loss of professional ability to work is a persistent decrease in the insured person’s ability to carry out professional activities, expressed as a percentage, before the occurrence of an insured event.

Medical and social examination is carried out on the basis of a comprehensive assessment of the state of the body based on the analysis of clinical, functional, social, professional, labor, and psychological data of the person being examined using classifications and criteria developed and approved in the manner determined by the Government of the Russian Federation. In accordance with paragraphs 2, 3, 12, 14 and 16 of the Rules for establishing the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789, the degree of loss of professional ability to work is established as a percentage at the time of examination of the victim, based on the assessment of the loss of ability to carry out professional activities due to an industrial accident and occupational disease, in accordance with the criteria for determining the degree of loss of professional ability, approved by the Ministry of Health and Social Development of the Russian Federation.

In accordance with paragraphs 2, 3, 13, 14 and 20 of the Temporary criteria for determining the degree of loss of professional working capacity as a result of industrial accidents and occupational diseases, approved by the Resolution of the Ministry of Labor and Social Development of the Russian Federation of July 18, 2001 No. 56, the main methodological The principle of examining the professional working capacity of the victim is a cumulative analysis of the following criteria:

clinical and functional;
the nature of professional activity (qualifications, quality and volume of work, ability to perform it);
categories and degrees of disability

Clinical and functional criteria include:

nature and severity of injury, occupational disease;
features of the course of the pathological process caused by an accident at work or occupational disease;
nature (type) of dysfunctions of the body;
degree of dysfunction of the body (significantly expressed, pronounced, moderate, insignificant);
clinical and rehabilitation prognosis;
psychophysiological abilities;
clinical and labor prognosis.

The main methodological principle of the examination of a victim’s professional ability to work is a cumulative analysis of the following criteria: clinical and functional; the nature of professional activity (qualifications, quality and volume of work, ability to perform it); category and degree of disability (clause 2 of the Temporary Criteria).

When determining the degree of loss of professional ability to work within the framework of the clinical-functional criterion, a cumulative analysis of the nature and severity of the injury or occupational disease is carried out; features of the course of the pathological process caused by an accident at work or occupational disease; nature (type) of dysfunctions of the body; degree of dysfunction of the body; clinical and rehabilitation prognosis; psychophysiological abilities; clinical and labor prognosis (point 3 of the Temporary Criteria).

At the court hearing it was established that from March 23, 2010 to April 19, 2010, Ch.V.A. on the basis of a personal application, he passed the next re-examination at the branch of Bureau No. 29 of the Federal State Institution GB MSE in Moscow. Based on the results of the examination, Ch.V.A. 50% loss of professional ability to work was established for a period of two years - April 1, 2012. According to the submitted act N21213, the examination of Ch.V.A. carried out by a team of doctors - a therapist, a surgeon, a neurologist. During the examination, it was accepted (iogram - dated November 13; -: 2 09 goals - hearing loss of the 3rd degree. It follows from the report that the consultation with the ENT doctor - expert of the ITU General Directorate Ch.V.A. refused. The based diagnosis is indicated - bilateral neurosensory loss hearing. Bilateral sensorineural hearing loss of the 3rd degree, with a significant degree of hearing loss in both ears. The basis for issuing an expert opinion was the report of the investigation of an occupational disease dated September 4, 2006, form 088, form 070, the conclusion of the EEC on additional medications, the results of an outpatient study.

To substantiate the expert’s conclusions, he indicated - Resolution of the Ministry of Labor of the Russian Federation dated July 18, No. 56, Decree of the Government of the Russian Federation dated October 16, 2000 No. 789, paragraph 16. Ch.V.A. 50% loss of professional ability to work was established.

Having disagreed with the decision of the Moscow branch of the Federal State Institution GB ITU, Ch.V.A. submitted a corresponding application to the Federal State Institution GB ITU. As can be seen from the presented report of the Federal State Institution GB MSE composition No. 3 (case sheets 160 -162), the examination of Ch.V.A. no appeal was carried out against the branch's decision. It follows from the report that the patient demanded a recording of the examination for audio equipment, but refused the examination.

From the inspection report at the ITU Federal Bureau, it follows that the inspection was carried out by way of appeal on October 19, 2010; based on the results of the inspection, it was established that the decision of the ITU Main Bureau was not changed, however, Ch.V.A. minor impairments of sensory function were identified, which, in accordance with paragraphs 17, 27 of the “Rules for establishing the degree of loss of professional ability to work as a result of accidents at work and occupational diseases,” provide grounds for establishing 30% loss of professional ability to work. As indicated in the act, since the examination of the victim was carried out on an appeal against the decision of the Federal State Institution GB ITU, the decision on 50% loss of professional ability was left until the end of the term.

Thus, the court believes that the inspection report of the Federal State Institution GB MSE and the Inspection Act of the Federal State Institution GB MSE, which left the decision of the Federal State Institution GB MSE unchanged, cannot comply with the requirements of the law, since: the examination of Ch.V.A. at the Federal State Institution GB MSE on his application was not carried out; the decision of the FGU GB MSE on the issue of appealing the decision of the branch was not made. Despite this, during the examination of the Federal State Institution GB ITU, a commission of doctors decided on the validity of the decision of the Federal State Institution GB ITU.

At the same time, during the examination at the Federal State Institution GB ITU in Moscow, any statements from P.V.A. There was no refusal to carry out an examination at his request, but the examination by a commission of doctors was not carried out, the report does not contain information about the state of health of Ch.V.A., the medical documents submitted for examination were not examined, as evidenced by the submitted examination report.

Despite this, on May 31, 2010, P.V.A. the answer was given by the head of the Federal State Institution GB MSE in Moscow that the decision of branch No. 29 establishing 50% loss of professional ability to work was made reasonably on the basis of regulatory documents.

Thus, the court comes to the conclusion that the right of Ch.V.A. was violated. to appeal the decision of the branch, the Main Bureau of ITU, provided by clauses 31-32 of the Decree of the Government of the Russian Federation of October 16, 2000 No. 789.

Under such circumstances, the court believes that the requirements of Ch.V.A. to the FGU FB ITU and the FGU FB ITU on recognizing the act of May 31, 2010 of the FGU FB ITU, the response of the FGU FB ITU dated May 31, 2010, the act of the FGU FB ITU dated October 19, 2011 as illegal shall be satisfied.

In addition, the court believes that the requirement of Ch.V.A. on recognizing the decision of Branch No. 29 GB ITU dated April 23, 2010 as illegal and the obligation of Branch No. 29 GB ITU to carry out in relation to P.V.A. examinations to establish the degree of loss of professional ability to work are also justified.

As follows from the presented inspection report of branch No. 29 of GB ITU, during the inspection (case sheet 138-141), during the inspection Ch.V.A. - complaints noted - noise and ringing with whistling in both ears, decreased hearing in both ears. Data from a therapist, surgeon, and neurologist are provided. At the same time, objective data indicating the state of health of Ch.V.A. — the state of hearing at the time of the next examination is not provided. The doctors came to the conclusion that it was necessary to obtain additional consultation from an ENT doctor to resolve expert issues. A substantiated and motivated conclusion about what indicators C.V.A. The act does not contain 50% loss of professional ability to work. In addition, when substantiating the expert opinion, paragraph of the Resolution of the Ministry of Labor of the Russian Federation of July 18, 2011 No. 56 is not given, there is a reference only to paragraph 16 of the Government of the Russian Federation of October 16, 2000 No. 789 (in the event that the victim as a result of an accident at work and of an occupational disease can, under normal production conditions, continue professional activities with a pronounced decrease in qualifications or with a decrease in the volume of work performed, or if he has lost the ability to continue professional activities due to a moderate impairment of body functions, but can, under normal production conditions, perform professional activities of a lower qualification, the degree of loss is established professional ability to work from 40 to 60 percent), while the criteria for determining the degree of loss of professional ability to work are determined by Resolution of the Ministry of Labor and Social Development of the Russian Federation of July 18, 2011 No. 56, but the point of the temporary criteria applied by the commission of doctors is not specified.

In addition, the doctors' commissions did not indicate the severity of the impairment of body functions, which was taken into account when determining the degree of loss of professional ability. The examination certificate does not contain substantiated conclusions of the expert commission on this issue.

In such circumstances, the court believes that during the medical and social examination there was a violation of the procedure for determining the degree of loss of professional ability to work, established by the “Rules for determining the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases”, namely, the basic data were not determined, necessary to make a conclusion about the extent of loss of professional ability established by clause 12 of these Rules, in connection with which the court is deprived of the opportunity to draw a conclusion about the legality or illegality of such a decision, to check the legality of the conclusions of such a conclusion, including whether there are grounds for establishing the plaintiff 100% loss of professional ability to work.

Under such circumstances, the court believes that the decision of branch No. 29 of the Federal State Institution GB MSE dated April 19, 2010 cannot be recognized as legal and justified, is subject to cancellation, the court obliges the Federal State Institution GB MSE to conduct an examination of Ch.V.A to establish the degree of loss of professional ability. In accordance with Art. 100 of the Code of Civil Procedure of the Russian Federation, the court believes that in connection with the satisfaction of the stated demands, the costs of paying for the services of a representative must be recovered from the defendants in favor of the plaintiff. The plaintiff presented an agreement for the provision of legal assistance dated December 12, 2011, the plaintiff under the agreement made payment for services in the amount of XX,000 rubles. Taking into account the requirements of reasonableness, the volume of services provided, taking into account that with the participation of the representative, Domkin believes that expenses in the amount of XX,000 rubles, XX,000 rubles from each of the defendants, are subject to recovery from the defendants in favor of the plaintiff.

In accordance with Art. 98 of the Code of Civil Procedure of the Russian Federation, the costs of paying the state duty in the amount of 200 rubles are subject to recovery from the defendants in favor of the plaintiff, that is, 100 rubles from each of the defendants.

At the same time, there are no grounds for imposing on the defendants the costs of paying for the examination carried out at the initiative of the plaintiff (obtaining the opinion of specialists) and its payment in the amount of 25,484 rubles, since the basis for canceling the decision is a violation of the examination procedure provided for by the “Rules for determining the degree of loss of professional disability as a result of industrial accidents and occupational diseases”, approved by Decree of the Government of the Russian Federation of October 16, 2000 No. 789.

Based on the above, guided by art. Art. 194-198 Code of Civil Procedure of the Russian Federation, court

DECIDED:

Claims of Ch.V.A. to the FGU FB ITU, to recognize the decision of branch No. 29 of the FGU FB ITU as illegal, to recognize the act of the FGU FB ITU as illegal, to recognize the inspection report of the FGU FB ITU as illegal, to partially satisfy the response of the FGU FB ITU as illegal.
Recognize the decision of Branch No. 29 GB ITU dated April 19, 2010 as illegal, oblige Branch No. 29 GB ITU to carry out in relation to P.V.A. examination to determine the degree of loss of professional ability to work.
Recognize act No. 361-123 of May 31, 2010 of the FGU GB MTU, the response of the head of the FGU GB MTU of April 23, 2010 as illegal.
Recognize act No. 368 of October 19, 2011 of the Federal State Institution FB ITU as illegal.
To recover from the Federal State Institution FB MSE in favor of Ch.V.A. expenses for paying the state duty in the amount of 100 rubles, expenses for paying for the services of a representative in the amount of XX.000 rubles, total XX.00 rubles.
To recover from the Federal State Institution GB MSE in favor of Ch.V.A. expenses for paying the state duty in the amount of 100 rubles, expenses for paying for the services of a representative in the amount of 3,000 rubles, a total of 3,100 rubles (three thousand one hundred rubles 00 kopecks).
Refuse to satisfy the rest of the demands.

The decision can be appealed to the Moscow City Court within a month from the date the court made the decision in final form by filing an appeal through the Timiryazevsky District Court of Moscow.

Judge N.S. Baranova

When is an appeal necessary?

The existing system for assessing a person’s health status does not always allow the patient to undergo MSA with the desired result. Then he has to undergo re-examination, proving not the presence of a defect in his body, but the impossibility, due to a particular disease, of leading a lifestyle that is recognized as normal in society.

In a citizen’s application with a request to review the results of an examination conducted by ITU members or to conduct a re-examination, it is necessary to indicate as accurately and correctly as possible the grounds that determine the need to satisfy such an application.

Taking into account the criteria for recognition as a disabled person established by the Russian legislator, such grounds are:

The presence of a health disorder in a patient that is long-lasting and persistent to a moderate, severe or pronounced degree has not been taken into account by a commission of specialists.
The presence in the patient of such consequences from an illness that limit his suitability for performing work activities or servicing his own needs.
The presence of a group of consequences that led to a disruption in the normal existence of a person in society.
Due to a mental disorder, the inability to fully communicate with other people and perform social functions.
Absence of limbs and the inability for some reason to replace them with prostheses.

Application for MSA
The listed grounds for appealing the conclusion on recognition/non-recognition of disability arise from the classification of health disorders and impairment of life functions and the severity of these categories.

The presence of any of the listed factors, ignored by the specialists of the ITU Bureau, gives the patient the opportunity to challenge:

refusal to recognize that a citizen has sufficient grounds to assign a disability;
assignment of a disability group that does not correspond to the situation;
Inadequate execution of documentation required by the patient by office staff.

Such violations are subject to mandatory elimination, since their result is an infringement of the constitutional rights of citizens.

The patient's requirements include:

invalidation of the commission's decision;
conducting a new survey;
assignment of disability to a group corresponding to the current situation.

It is not so difficult to achieve a review of the results in accordance with current legislation. It is much more difficult to prove that the commission’s conclusions are incorrect and violate the rights of a citizen guaranteed to him by the state.

Strengthening the disability group

An increase in the category of disability can be the result of passing an examination, when the state of health of the person being examined and the emerging grounds allow the doctors of the commission to change the status of the disabled person. Strengthening the category of disability sometimes occurs when a case is reviewed after filing a corresponding complaint.

From 2 groups to 1 group

During a free consultation, the attending physician identifies the presence/absence of medical indicators and, if necessary, refers the patient for re-examination. If we are talking about increasing the disability group, then the patient’s health condition should deteriorate significantly, positive dynamics should be completely absent, and the prescribed treatment (conservative or surgical) should not lead to an improvement in the condition. The reasons why experts may decide to assign a new disability group must be objective.

The first disability group is assigned to a person who constantly needs outside help, has a serious illness, and there is almost never any talk about his ability to work. Although there is no such thing as a “non-working” category of disability. If the underlying disease does not affect brain function, a disabled person can carry out work activities at home. Therefore, for promotion to this level there must be good reasons, this rarely happens. Cases of reduction are more common.

From group 3 to group 2

To obtain the second group if there is a third, there must also be good reasons. Strengthening often occurs only when the disease (despite treatment) progresses and develops to moderate severity. The main factor in increasing the disability group is a decrease in the ability to work and the functioning of the body.

If a disabled person of the third group has the following signs, then he is assigned the second:

Self-service is only partially possible. Difficulties arise when boarding public transport, when leaving home on the street, etc.
Communication with other people requires the involvement of an assistant.
The reaction to the surrounding reality (especially unusual) is not always adequate. It takes much more time to orient yourself in space and time.
There is no opportunity to undergo training on the same basis as other people. This requires visiting specialized training centers.
Labor activity is impossible without the creation of proper conditions.

The amount of social benefits for the second category of disability is higher, so the desire of disabled people to change their status is understandable.

Complaint

Having determined the actual existence of grounds for appealing the ITU conclusion, recognized by law as sufficient, you can proceed to the procedure itself. It can go in two directions:

administrative (we contact higher authorities);
judicial (we go to court).

Many lawyers advise their clients to take the first route first. This is due to the fact that otherwise the court will still order a re-examination.

Having received an unsatisfactory result of the examination, you can apply for restoration of justice to the body that conducted the examination.

The Bureau for Medical and Social Examination has three levels:

ITU Bureau of Cities and Regions.
The main ITU bureau operating in a single subject of the Russian Federation.
A federal bureau whose decisions are relevant to all corners of the country.

The initial stage of appeal may be filing a complaint with the head of the city/district bureau or directly to the main bureau. If you cannot achieve the desired result there, you must file a complaint with the Federal Bureau of ITU.

Sample application to appeal an ITU decision

At each stage, the period when a complaint can be filed is one month from the date of the commission's decision.

The application sent to the ITU Bureau must indicate:

to whom the application was sent;
who is its author (full name, passport details with registration and indication of residence, telephone number and email address (if available);
topic (statement of appeal against ITU actions);
when the examination was carried out;
what is considered by the author to be untrue;
grounds for appeal;
patient requirements;
number and signature.

A sample of such a statement looks like this:

Example of an application to appeal an ITU decision

The Appendix lists the documents that are attached to the application:

Copies of passports, birth certificates.
A certificate issued by ITU based on the results of the survey.
Documents confirming the arguments and grounds listed in the application.

Consideration of such a complaint occurs within one month. As a result, an extract is issued indicating a reasoned decision regarding the application. This may be a refusal to fulfill the requirements or their satisfaction. Depending on the result, you can proceed further.

Features and nuances

Some cases of violations by the bureau require separate consideration. For example, during a re-examination the person’s cause of disability was changed. Should I file a complaint? It’s worth it if a technical error occurred or experts considered it possible to infringe on the rights of a disabled person by transferring to another group.

However, it is worth considering options for legal actions of the ITU institution that change the cause of disability:

For the first year, a citizen received disability on the basis of a “general disease”, when the diagnosis was not reliably established or there were several causes of the disease. During the re-examination, the clinical picture was reliably established.
The disabled child has reached the age of majority; the examination criteria have changed.
Another disease began to dominate in the citizen, with new symptoms and a different picture of his general condition.

These and similar reasons are acceptable and natural. However, if a change in reason arose on their basis, the authorized person will issue a reasoned statement with an explanation.

Among the complaints, the issue of disability of children with such defects as “cleft lip” and cleft palate is acute. The fact is that the existing list did not include persons suffering from this disease among the criteria for obtaining disability. A cleft lip appeal proceeds as follows.

The defect is successfully operated on, resulting in sufficient rehabilitation. However, the operation is quite expensive, which does not allow some families to calculate the family budget by allocating funds for treatment.

As a result, children suffer . Often the disease radically disrupts the baby’s eating process. In such cases, it is advisable to rely not on the diagnostic criterion, but on the general condition of the baby, for whom basic types of life activities are inaccessible.

In addition, disability due to this disease allows for subsidies for surgery as part of an individual rehabilitation program.

Going to court

When all possible options have been exhausted, and the result remains unsatisfactory, it makes sense to turn to the courts. It is important to provide the court with evidence that the plaintiff has taken measures to resolve the issue out of court.

Submission of an application is preceded by payment of a state fee in the amount of three hundred rubles. Persons listed in Article 333.36 of the Tax Code are exempt from it.

Appealing the ITU decision in court

The jurisdiction of such cases lies with the district court. Like most lawsuits, this document is filed with the court at the location of the defendant, that is, the bureau that conducted the medical and social examination. An application to the court is drawn up in the traditional form for lawsuits. It states:

Name of the court.
Plaintiff's details.
Defendant's details.
Title of the application.
Description of the current situation, indicating the dates and output of the documents mentioned.
Requirements.
Number and signature.
An application listing all documents provided along with the application.

When drawing up a claim, it is important to mention those examples that can be proven with documents. It is quite possible that witnesses will participate and can confirm the facts presented.

The package of documents corresponds to the one provided when appealing to the bureau. Additionally, a copy of the application is provided. All documents must be submitted to the court in a quantity that corresponds to the number of persons participating in the case.

Consideration of such cases occurs within a period of one to two months.

To draw up a statement of claim, you can use the following sample.

Sample statement of claim

The judge's decision on this statement of claim takes legal force one month after it is rendered by the court. It can also be appealed to higher authorities.

Grounds for filing a complaint against ITU

First of all, you should understand that you will have to document any arguments against the decision made by the experts. Discharge summaries, acts, extracts from the medical history, certificates - all this will have to be provided in full.

Often the grounds for appeal are:

health impairment ranging from moderate to significant;
loss of the ability to self-care or work, associated with injury or as a consequence of past illnesses (the determination of disability may be carried out by VTEK);
manifestations of the consequences of several diseases/injuries, resulting in a significant deterioration in a person’s ability to support normal life;
mental disorders associated with loss of communication skills;
recorded and significant cases of deformity (congenital, acquired);
amputation of limbs or their congenital absence.

IMPORTANT! The diagnosis itself is not the basis for experts to make a decision on assigning a disability or disability group. Its presence only indicates that a person has identified health problems.

According to the order of the Ministry of Labor and Social Protection dated December 17, 2015 No. 1024n, a number of diseases, even though the diagnosis is complex and cannot be changed, do not imply disability.

You can read about what criteria and classifications are used by the ITU to establish disability in this article. We also advise you to familiarize yourself with useful information on how to undergo a medical and social examination, which will help you get the desired result.

To confirm that there are legal grounds for determining the degree of disability, the patient will have to provide other evidence of the need for the status of a person in need of social protection and related benefits.

It is worth adding that, according to this order, complaints from citizens who have one of the diseases/signs listed above are considered in the prescribed manner. The review period is no more than three working days , provided that the documents are completed correctly.

How to draw up a statement of claim

The statement of claim is drawn up according to a model approved by law. An example of filling can be found on the official website of the court, as well as on the stand in the building.

The header of the appeal indicates the name of the judicial authority to which the claim is being filed. Information about the plaintiff who is filing the claim and about the defendant. This will be the organization that made the decision.

Please note! After the name of the application, the following points are written:

statement of claim to invalidate a decision to refuse recognition as a disabled person free of charge in word format

the date when the citizen applied to the ITU bureau for an examination,
the diagnosis with which the person contacted specialists,
questions asked by doctors and accompanying signs of the disease,
extracts of the wording of the bureau's decision,
an explanation of the reasons for disagreement with the decision made,
link to medical certificates attached to the application,
confirmation that the person has taken all measures to resolve the issue out of court.

The emphasis in the application should be on those points that a person can document. Particular attention should be paid to the current state of health.

It must be pointed out that it does not correspond to the norm and interferes with his full functioning. After the main part of the application has been described, the citizen asks to establish a disability group in accordance with his state of health.

Free consultation with a disability lawyer.

What decisions does the ITU make regarding disability?

Thus, ITU can either award a particular disability group, or remove or change it.

Award

Disability is awarded to a person if there are restrictions on his normal life activities. To do this, the commission evaluates the situation according to the following parameters:

work activity;
behavior control;
orientation in space;
ability to learn;
communication skills;
self-service option;
possibility of movement.

Disability can be assigned for obvious violations of one, several or all of the listed types of activities.

Deprivation

Disability can be lifted in the following cases:

During an inspection of the expert medical file, forged documentation and uncertified corrections in tests and diagnoses were discovered.
ITU recognition of improved patient health. In this case, the group may be reduced, and complete deprivation of disability is possible.

Change group

The disability group can be lowered or increased if the patient's health condition worsens or improves. This procedure is carried out at the time of re-examination of disability. The disabled person must undergo this procedure annually and must provide medical certificates about his or her health every year. Thus, if the commission, when reviewing the patient’s tests, finds it necessary to change the disability group, it has the right to do so.

Appealing an ITU decision: instructions for out-of-court settlement

First of all, it is recommended to try to solve the problem without going to court. It is recommended to file a claim if appealing to higher authorities does not produce any result.

Where to complain about the authority?

If a person wants to appeal the commission’s decision without going to the Court, he must write an appeal to a higher organization. The bureau in which the examination of the patient’s health condition was carried out must be subordinate to her. The procedure for filing an appeal is regulated by Government Resolution No. 95, which was adopted on February 20, 2006.

People go to court if pre-trial attempts to resolve the situation have failed.

Deadlines for appeal

Important! A citizen can file a protest against the decision of the ITU Bureau within 30 days from the date of its adoption. You can submit a complaint in person by contacting the organization, by email or through your personal account on the State Services portal. You can also apply through the official website of the Territorial Bureau.

What documents are needed?

To appeal, an application is submitted from a citizen who wants to challenge the decision of the commission. The appeal can be submitted either personally by the patient or by his legal representatives, for example, a guardian. It can also be submitted by a representative with the presentation of a power of attorney.

The application form contains the applicant’s data, as well as information about the bureau whose actions the person wants to appeal. The main part of the application sets out the claim and states the bureau's decision. It is imperative to provide reasons on the basis of which the person believes that the decision was made unlawfully.

All documents related to the examination are attached to the application.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

What to Expect

After the application is received by the organization and registered, the patient will be invited to undergo the examination again. This happens no later than 30 days from the date of registration of the application.

Based on the re-examination, the refusal decision may be upheld or changes may be made to the previously made decision of the ITU Bureau. After the examination, the citizen is sent a letter with a written decision the next day.

Legislation

Application for appealing the decision of the ITU sample of filling
In Soviet times, the work of VTEK was regulated by the regulations on VTEK, adopted by the Council of Ministers of the Union Republics, the Ministry of Health and the social system. In 1995, the provision was replaced by the adopted law No. 181-FZ, which included Article No. 7, covering the definition of MSE (medical and social examination, which replaced VTEC). The normative legal act regulates the following points:

the commission's decision on working conditions for a disabled person is mandatory for employers;
workers, civil servants, workers with a disability established by the ITU receive exemption from professional work with further social security;
the main function of a labor examination is to determine the degree, causes, duration of disability and the need of a person with a health disorder for social security;
the commission is obliged to develop new rehabilitation programs and therapeutic and social measures in relation to disabled people, as well as study the level and causes of persistent, long-term or permanent violations of the legal capacity of the population of the Russian Federation;
VTEC (ITU) determines the cause of death of a disabled person if the legislation of the Russian Federation provided for the provision of social assistance to close relatives of the deceased.

Order of the Ministry of Health of the Russian Federation No. 310n. approved the ITU institutions on October 11, 2012. These included:

BMSE (bureau) - operates in large medical institutions;
GBMSE (main) - are engaged in challenging the decisions of lower bureaus;
FBMSE (federal bureaus) - build their work on challenging the decisions of the main departments.

Structure of ITU institutions

The examination can be carried out in a hospital setting where the patient is undergoing treatment or in absentia by decision of the VTEK department. In some cases, the commission is allowed to visit the patient’s home if, due to poor health, he cannot come for an examination himself.