WEINOHRL v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
The applicant, Mr Alois Weinöhrl, is an Austrian national who was born in 1944 and lives in Reichelsheim in Germany. He was represented before the Court by Mr H. Wenz, a lawyer practising in Fürth/Odenwald. The applicant had worked intermittently as a composition floor layer and construction worker in Germany since 1961. On 7 July 1994 the Employer’s Liability Insurance Association for the Engineering and Metal Industries (Maschinenbau- und Metall-Berufsgenossenschaft) received medical notification that the applicant was suffering from lumbar spine problems. It was further notified on 19 September 1994 by the applicant’s employer at the time that the applicant had given up work in March 1994 due to these problems. The Insurance Association therefore initiated a procedure to determine whether the applicant’s lumbar spine problems constituted an occupational disease. Following consultation of the Insurance Association’s Technical Supervision Service, the relevant health insurance funds, other insurance associations and the competent medical adviser at the Hessen Ministry for Women, Labour and Social Order, the Insurance Association found on 8 August 1995 that the applicant’s disease was not work-related and that the applicant was thus not entitled to the payment of benefits. Pursuant to No. 2108 of Annex 1 to the Guidelines pertaining to occupational diseases (Berufskrankheiten-Verordnung), lumbar spine problems can only be recognised as an occupational disease if the worker has been regularly lifting or carrying heavy loads or has had to work in an extremely bent position over a long period of time. In line with the outcome of its investigations, the Insurance Association held that the technical conditions of the applicant’s occupation did not meet those criteria. An administrative appeal by the applicant, referring to a medical certificate according to which it was likely that the applicant’s spine problems were related to his former occupation, was rejected by the Insurance Association on 12 January 1996. The applicant then referred the case to the social courts and was represented by counsel throughout the subsequent proceedings. The case was rejected by the Darmstadt Social Court (Sozialgericht) on 23 April 2002 following a hearing of the applicant and examination of two expert witness opinions that were collected in separate court proceedings dealing with a comparable case. The Social Court found that the applicant’s occupation and the conditions in which it was carried out were in general not capable of causing the alleged occupational disease and that it had therefore not been established that the applicant’s disease was work-related. The Social Court held that it was thus not decisive whether the applicant did in fact suffer from the alleged health problems and accordingly dismissed the applicant’s request for a further medical expert opinion. On 16 January 2004 the Hessen Social Court of Appeal (Landessozialgericht), following a hearing of the applicant and further consultation of the Technical Supervision Service, rejected an appeal by the applicant. It held that even when taking into account all of the applicant’s submissions as to the nature and duration of his previous employment, the conditions of his occupation did not justify the recognition of his spine problems as an occupational disease. The Social Court of Appeal therefore upheld the decision of the Social Court that it was not necessary to grant the applicant’s request for a further medical expert opinion and, further, rejected his newly introduced alternative application to hear evidence from a medical expert on the technical conditions of his work. On 17 June 2004 a complaint by the applicant against the Court of Appeal’s refusal to grant him leave to appeal to the Federal Social Court (Bundessozialgericht) was rejected as inadmissible. The Federal Social Court found that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of the Social Court of Appeal pursuant to section 160 (2)(3) of the Social Code Act. On 8 September 2004 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. Section 103 of the Social Court Act stipulates that the court has to investigate the facts of a case of its own motion and in consultation with the parties to the proceedings. Pursuant to section 106 of the Social Court Act, the President must endeavour to ensure the elimination of procedural shortcomings, clarification of unclear applications, submission of relevant applications, completion of the statement of facts of a case and submission of all declarations necessary for the assessment of the facts. Section 109 of the Social Court Act provides that, upon the request of the insured person, a particular medical expert has to be heard by the social courts unless the admission of such evidence would delay the proceedings or the court is convinced that the request was submitted in an attempt to delay the proceedings or that the request was not submitted earlier due to gross negligence. Section 160(2)(3) of the Social Court Act provides that an appeal against the decision of the Social Court of Appeal may only be admitted if it refers to procedural shortcomings that might affect the decision being appealed. A violation of section 109 cannot be considered as a procedural shortcoming for this purpose and a violation of section 103 can only be considered as such in the event that a refusal to accept an application to take evidence has not been sufficiently reasoned by the Social Court of Appeal.