Timeliness of an Appeal against a Decision of an Accident Insurer

Facts

A. - By decision of July 29, 1996, Helsana Versicherungen AG (hereinafter: Helsana) closed the accident suffered by M. on May 28, 1994 as of June 30, 1996 and stated that no further benefits would be paid beyond that date. By submission dated August 30, 1996, M. filed an appeal, to which Helsana did not enter due to lateness with the appeal decision of January 20, 1997.

B. - The Social Insurance Court of the Canton of Zurich dismissed the appeal filed against this in its decision of November 25, 1997.

C. - M. files an administrative court appeal with the request that the lower court decision be set aside and the respondent be instructed to enter the appeal of August 30, 1996.

Considerations

2. a) The decision of the respondent of July 29, 1996 was served on the appellant on July 31, 1996. The appeal period of 30 days pursuant to Art. 105 para. 1 UVG expired on Friday, August 30, 1996. If the suspension of time limits regulated in Art. 22a VwVG were to apply to decisions of an insurer licensed pursuant to Art. 68 para. 1 UVG, the appeal received (dated August 30, 1996) by the respondent on September 2, 1996 would be considered timely without further ado.

b) However, the lower court denied the application of Art. 22a VwVG to appeal procedures of insurers licensed pursuant to Art. 68 para. 1 UVG. This non-applicability of Art. 22a VwVG corresponds to the prevailing legal situation in various branches of social insurance, where there are federal, cantonal or private implementing bodies to which the VwVG, cantonal administrative procedure law or only the general principles of procedure pursuant to Art. 4 para. 1 BV and Art. 6 No. 1 ECHR apply.

3. a) The appeal is dated August 30, 1996 and, according to the information provided by the appellant's legal representative, was handed over to the post office unregistered on the same day. The following Monday, September 2, 1996, the appeal was received by the respondent, as evidenced by the receipt stamp of September 2, 1996. The envelope belonging to the appeal is not in the files and cannot be found.

b) Pursuant to Art. 4 BV, the person concerned has the right to be heard on the matter before a decision is made that affects his or her…