OCCUPATIONAL ILLNESS: RECOGNITION EVEN WITHOUT COMPLETE PROOF
Many people affected by a confirmed occupational illness do not receive any benefits from their mutual assurance company. They fail to overcome the tough hurdles of providing medical evidence. A state social court is now reining one mutual assurance company in.
DARMSTADT. The State Social Court of Hesse has forced one mutual assurance company through a legally enforceable judgement to recognise asbestos-related mesothelioma of the pleura as an occupational illness - even without the complete legal proof that is usually required.
Producing this proof is often too great a hurdle in practice for those affected to obtain benefits from the mutual assurance company. <link http: www.aerztezeitung.de praxis_wirtschaft betriebsmedizin article>According to the German Legal Accident Insurance organisation (DGUV), the requirements that are also required under special insurance law for some occupational illnesses for them to be recognised as such in the legal sense were not met in 20,642 out of 71,589 cases in 2014, for example - even though it had been proven that the condition had been caused as a result of the patient's occupation.
Ex-metalworker dies from tumour
As the LSG has now ruled in the specific case of a former metalworker from Hersfeld-Rotenburg, a mesothelioma is proven once it has been diagnosed as probable based on the current understanding of medical science, stated the court. Once the medical facts have been established, no further demands must be made despite the fundamental complete legal proof that is required.
The widow of the man who, according to the LSG, worked as a metalworker and later as an electrician from 1948 to 1993, lodged a complaint against the mutual assurance company. As part of his job, the affected individual had to cut asbestos panels and frequently carry out soldering work with asbestos tape. In 2011, the 77-year-old man developed a tumour within his rib cage.
Based on the histological findings, a mesothelioma was diagnosed with secondary conditions. After a few months, the man died from the cancer.
According to the court, the mutual assurance company rejected the <link https: www.baua.de de angebote rechtstexte-und-technische-regeln berufskrankheiten pdf>acknowledgement of the occupational illness No. 4105 "Mesothelioma of the pleura, peritoneum or pericardium caused by asbestos" with the reason that a mesothelioma is only likely and was not fully proven. Since no autopsy was carried out, it was not possible to unequivocally determine the nature of the tumour.
More than 30 years of latency
Around 70 to 80 per cent of pleural mesotheliomas are caused by asbestos, according to the LSG. The diagnosis of "mesothelioma" is a diagnosis by exclusion, which includes not only histology but also clinical details of the tumour-related illness and information about asbestos exposure. Based on experience, an average of more than 30 years can elapse between the work-related exposure to the asbestos and the development of a pleural mesothelioma, says the LSG.
In certain circumstances, only a slightly increased exposure to asbestos is sufficient to be associated with fibrotic lung changes. Based on the wide range of histological tumour types, difficulties may arise in terms of the differential diagnosis when it comes to delineating this tumour from other types of tumour, as the judges of the 3rd LSG senate also pointed out.
On this background, the European Mesothelioma Panel has developed a scoring system. According to this, the diagnosis of "malignant mesothelioma" is classed as medically confirmed, provided category A (definite mesothelioma) or category B (probable mesothelomia) is present. The German Mesothelioma Register at the Ruhr University of Bochum also refers to this.
For recognition of an occupational illness, the complete proof must demonstrate that the condition in question is present, the LSG judges continued, however they pointed out that complete legal proof does not require absolute certainty.
If the diagnosis of a category B mesothelioma is regarded as medically confirmed, then it follows that the complete legal proof is to be regarded as having been provided. The requirements as regards complete legal proof essentially did not extend beyond the current understanding of medical science in relation to the establishment of medical facts, says the LSG.
Lack of clarity on the part of the mutual assurance company
The mutual assurance company also did not point out the importance of an autopsy to the relatives of the deceased. The lack of evidence situation resulting from this means that lesser demands ought to be made in terms of the proof of a mesothelioma.
<link http: www.aerztezeitung.de praxis_wirtschaft praxismanagement personalfuehrung article asbest-folgen-noch-immer-viele-opfer.html>Despite a comprehensive ban on asbestos in 1993, around 1,500 people still die every year as a result of exposure to the substance according to the national asbestos profile of the Federal Institute for Occupational Safety and Occupational Medicine. It also says that, in the past, up to 2.5 million employees in Germany have been at risk of asbestos exposure because they were exposed to dusts containing asbestos.
<link http: www.aerztezeitung.de praxis_wirtschaft betriebsmedizin article>According to estimates by the European Commission, around 160,000 people in the EU still die each year from work-related diseases.
State Social Court of Hesse
Ref. no.: L 3 U 124/14
Medical duty of cooperation
- § 202 SGB VII stipulates a duty of notification for doctors if there is justified suspicion of the presence of an occupational illness.
- § 9 SGB VII defines the occupational illnesses: "Occupational illnesses are illnesses that the federal government has defined as occupational illnesses through legislative decree with the agreement of the federal council and from which the insured parties suffer as a result of an activity justifying insurance cover according to Sections 2, 3 or 6."
- The occupational illnesses ordinance lists the individual occupational illness numbers.
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