Leading to death duty of the housewife
Fatally ill because of asbestos cleaning dusty work clothes of her husband?
Currently, we employ the most insidious cases of statutory accident insurance, namely asbestos mesothelioma of wives and children of asbestos workers.
To the particular case:
During nine years, from 195O to 1959, cultivated the wife of the asbestos worker HJhis work clothes at home to clean the asbestos dust. In the 8O-cent years, the wife fell ill mesothelioma as a result of a deadly asbestos.
The trade association, which was responsible for the company, in which the asbestos workers HJ been employed, is not the only responsible for this pension committee dealt with this matter.
Rather, the claim for compensation was associated with an informal letter from the trade association management, however, after all, rejected the appeal.
The insurance company literally
"When cleaning the work clothes of your husband, GJ did not like an insurance gem. § 539 para 2 RVO for the above companies have been active. According to our findings included the cleaning of work clothes are not the tasks that were added to the operation, but it acted This is work that were exclusively assigned to the private sector. "
This reasoning may shed light on how little a causal thinking seems to be common in the professional associations.
Already from the factual it could not act in an emergency to include "activities", "who were exclusively assigned to the private sector."
They also adopted the insured, so the bad asbestos workers posthumously, that he had gone into his dusty work clothes home instead to knock out this site as other workers in the company.
Although this does not alter the causality may be, but the judges were impressed later.
In the further course it turned out that other colleagues in the same company T. Mülheim / Ruhr took their work clothes from the assembly about home and there could be cleaned by the wives. In its defense, the professional association put one more thing, literally:
"It is common ground should be established that the applicant has the work clothes of her husband in their impact marriage is purified from the Treaty obligations."
As if the deadly cleaning would work clothes of her husband in a marital duty. Sure it was a mixed activity, namely an activity in their own homes, but directed at removing dirt work, which arose from the member companies of the trade association.
In terms of causation standard of causation was essential with the housewife "as an insured" operates somewhat like an employee who knocked out the work in the local clothing company and was assured it of course.
While the Social Court dismissed the complaint promptly, it was the appellate court, the Social Court of North Rhine-Westphalia, different.
In a first case of its kind that is at least the appellate court recognized because of the obvious causality of an occupational disease of the insured GJ, occupational disease BK 41O5 in conjunction with § 539 RVO II.
This left the trade association but by no means rest. The trade association lodged an appeal, rather than the
To take the opportunity with both hands, leaning in this terrible attack on the positive assessment of the affected food Landessozialgericht respectively. To help survivors.
What had been feared, the author joined a little later.
That court reversed the revision of the professional association for the ruling of the Higher Social Court.
Occasionally a later session on asbestos mesothelioma in Bad Reichenhall was heard from the lips of the judges, that the case would have caused sleepless nights.
But how then could easily applicable standard of § 539 II RVO are so misunderstood in the CHST judicial decision?
Here retaliated fatal, that in the recent case law to determine an insured activity followed the trade association wishful thinking of a now retired association CEO and commentator and the compensation provided a so-called "final action tendency" of the injured person was.
In other words, the final action has the tendency to an insured person deliberately aligned his work at the time of the accident or injurious exposure to occupational disease.
So far, sufficient causal factors relating to the professional relationship, also liked the person subjectively do not recognize the overall context.
Only the causal approach could offer in the limit of compensation aid.
In the case of the damaged house wife led the Federal Social Court in the following:
"The action tendency of such a term paper is essentially directed solely on the budget. That it excludes consideration of the objective use of harmful performing well for the company still accept insurance. May be why it undecided whether it is actually the necessary real or at least suspected sake of the company would have met, that the wife had cleaned as outsiders instead of her husband as an employee of the company for this outside of the company's clothes. "
The sentence does not make clear whether the Federal Social Court was ever aware. significant enough that one of the causes and the causality criteria were met.
The Federal Social Court literally in another place: "This action was the action tend to be strongly eigenwirtschftliche alone, namely directed to the interests of the spouses' own household."
Here the situation is turned upside down, under the help of the highly disputable notion of so-called final action tendency.
In fact, the wife certainly was aware that she was cleaning work clothes and that the dirt work, namely asbestos dust had.
In the T. Company, it was his time to undertake an asbestos insulated.
It acts as a more constructed, if one assumes the wife posthumously, I meet my wife here just conjugal duty.
Such objections, which lie because the own economic moment when soiled work clothes were cleaned, the Federal Social Court, however, unmoved.
The refusal of insurance coverage in this case meant that the doctors work to some extent on the barricades went and created a publication of the occupational health point of view not just in the medical journal The social justice.
This case is certainly not the last word.
Legal notice: In case the policy board of the professional associations under the law and the legal representatives.
Even though the need for complaint BG administration to demonstrate that the power of attorney representative or the appointment of an appeal is covered by the Board or any of them know this.
According to the author, the following applies:
Had the administration of the trade association before, ie Before Revisionseinlegung against the positive Landessozialgericht verdict to the volunteers occupied BG Board (employer and employee representatives in tripartite occupation) submitted the question correctly, if revision should be filed, the Occupational Health and Safety Administration had not received the okay or the consent to Revisionseinlegung.
In this case the ruling of the Higher Social Court had become final and it would not come to the misjudgment of the SPA. The Federal Constitutional Court was the case despite detailed justification of the constitutional complaint, just a dismissive couplet worthy of illuminating not even know that the acquisition of symptoms was actually taken note of some of today's federal president, who was then chairman of competent
was.
The constitutional complaint in another case, a housewife, on the basis of a comparable case of cleaning the work clothes of her husband, also employees of the company mentioned T. Mülheim an asbestos which bore mesothelioma encounters, now more interest to the Federal Constitutional Court.
The Federal Constitutional Court launched a questionnaire to BMA, Association etc.. Whether the constitutional complaint is accepted, or will yield success is uncertain.
** The above legal arguments are naturally not constitute legal advice, but merely to serve as the first information and guidance. It should be noted that the legal situation can change at any time and thus not represent the above in every conceivable case, the most current legal situation can.
Home | About Us | Blog | The Firm | Attorneys | Areas of Focus | Practice Areas | Occupational Diseases | work accidents | Accidents | Employment Law | Social Law | Publications | Contact | Links
© Battenstein Lawyers & Battenstein
A LAW FIRM
BATTENSTEIN & BATTENSTEIN
Leostr. 21
40545 Düsseldorf (Oberkassel)
Federal Republic of Germany
Tel: 0211 / 57 35 78
Fax: 0211 / 55 10 27
kanzlei@battenstein.de
Competent Authority and Chamber:
Düsseldorf Chamber of Lawyers (RAK)
Public corporation
Freiligrathstraße 25
40479 Düsseldorf
Federal Republic of Germany
Tel: 0211 495 020
Fax: 0211 495 0228
info@rechtsanwaltskammer-duesseldorf.de
Occupation: Lawyer (awarded in the Federal Republic of Germany)
The main legal basis for the exercise of the profession as a lawyer, see the Federal Lawyers' Act, the federal attorney fees as well as the professional code for lawyers.
Rules of Professional Conduct:
- Federal law (BRAO)
- Code of Conduct for Lawyers (BORA)
- Specialised Lawyers (FAO)
- Fees for Lawyers (Brago)
- Rules of professional conduct for lawyers of the European Union
No comments:
Post a Comment