BSG: With high chromium pollution there are no other causes
Kassel (jur). The Federal Social Court (BSG) has made it easier for chain smokers with lung cancer to have access to compensation for occupational diseases. For example, if the exposure to chromium was so high that this alone can be regarded as a "major cause" for the disease, other causes such as tobacco consumption are no longer important, the BSG ruled on Thursday, March 30, 2017, in Kassel (Az .: B 2 U 6/15 R).
It recognized the bronchial carcinoma of a former welder as an occupational disease. From 1977 to 1985, ThyssenKrupp in Dillenburg, Hesse, was heavily exposed to chromium, nickel and asbestos. However, he was also a heavy smoker: he had smoked 20 cigarettes a day for 30 years.
According to the Occupational Diseases Ordinance, various toxic substances are assumed to trigger certain diseases. In some cases, there are fixed limit values above which workload - regardless of other possible causes - is considered to be the main cause of a disease, such as asbestos and lung cancer. However, this threshold had not yet been reached here.
For other substances, the scientific data do not give such a clear limit. Instead, there are “orientation values” from which at least one of the causes can be assumed. The orientation value for certain chromium compounds has been reduced several times in recent years. The currently accepted value was exceeded here.
Nevertheless, the trade association said that such cause research is not important here. Given the years of heavy tobacco use, the main cause of lung cancer is clear.
The BSG did not follow that. Then the cause research must be separated into two clearly separated steps. Only on the "first level" should be checked which of the known causes and with what probability could have led to the disease.
Which cause is considered to be an "essential cause" should only be clarified in the "second stage". It should be borne in mind that cancer in particular always has several causes. The reason for the statutory accident insurance as "essential" is therefore no longer a question of statistics, but "a purely legal question", emphasized the Kassel judges.
Here, the Hessian State Social Court (LSG) made a binding determination that the chromium contamination of the welder by itself would very likely have caused lung cancer. In this situation "the existence of further influences is no longer legally relevant", the BSG judged.
The LSG should therefore now clarify how high the welfare reduction of the welder caused by the lung cancer was. This then gives rise to possible earlier claims for injuries and the widow's possible claims to survivor benefits. mwo / fle