ZWAR v. GERMANY
Inadmissible
Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
The applicant, Ms Gisela Zwar, is a German national who lives in Sonsbeck in Germany. She was represented before the Court by Mr R. Battenstein, a lawyer practising in Düsseldorf. From August 1967 to November 1995 the applicant’s late husband Z. exercised the profession of a painter. In November 1995 he was diagnosed as suffering from leukaemia. He died of the disease on 6 August 1996. On 29 December 1995 the medical clinic where the applicant was treated gave notice of the disease to the Wuppertal Insurance Association for the Building Professions (Bau-Berufsgenossenschaft) on the ground that Z.’s disease might have been work-related, which would entail pension benefits. On 28 January 1997 the Insurance Association refused to establish that Z.’s leukaemia was work-related for having been caused by his exposure to benzene during his work as a painter. Following enquiries on Z.’s former working conditions and relying on expert opinion, the Insurance considered that the dosage of benzene Z. had been exposed to during his work had not been sufficiently high to cause a work-related disease. On 4 February 1997 the applicant lodged an administrative appeal. She notably relied on two expert opinions commissioned by Z.’s health insurance. On 24 October 1997 the Insurance Association, having heard further expert opinion, rejected the applicant’s administrative appeal. On 21 November 1997 the applicant lodged a motion with the Duisburg Social Court (Sozialgericht), alleging that Z.’s disease had been caused by over-exposure to benzene, notably during the first years of his professional life. On 31 May and 26 August 1999 a court appointed expert submitted his expert opinion. He considered that there was no conclusive evidence that the applicant’s illness had been caused by exposure to benzene at his work-place. On 4 February 2000 the Social Court summoned Z.’s health insurance to join the proceedings as a third party. By judgment of 8 February 2000 the Social Court granted the applicant’s claim. Relying mainly on the expert opinions commissioned by the third party, the Social Court considered that it had been established with a sufficient amount of probability that Z.’s disease had been caused by his exposure to benzene at his workplace. This judgment was served on the applicant’s counsel on 28 February 2000. On 23 March 2000 the defendant Insurance Association lodged an appeal with the Northine-Westfalia Social Court of Appeal (Landessozialgericht). In support of her allegation that Z.’s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion. On request by the Court of Appeal one further expert submitted his expert opinion on 4 February 2002. Subsequently, the applicant asked for a fresh expert opinion to be prepared pursuant to section 109 of the Social Courts Act (see relevant domestic law, below), and named Prof W. as an expert. On 2 May 2002 Prof W. declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene. Following this, the applicant named another medical expert who submitted his expert opinion on 31 October 2002. In reply, the defendant party submitted a further opinion submitted by another expert on 30 April 2003. During the hearing held before the Social Court of Appeal on 15 October 2003 the applicant submitted a presentation held by the expert Dr G. on a conference relating to the assessment of exposure to benzene at painter’s workplaces. According to the applicant, this presentation established that Z. had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines. She requested the Court of Appeal once again to hear the experts with regard to these submissions. On 15 October 2003 the Social Court of Appeal quashed the Social Court’s judgment, rejected the applicant’s claim and refused to grant the applicant leave to appeal. Having regard to the expert opinions and statements submitted during the administrative and court proceedings, the Court of Appeal considered that it could not be established with sufficient probability that Z.’s disease had been caused by overexposure to toxic substances at his workplace. By way of conclusion, the Social Court of Appeal found as follows: “Summing up, the Senate considers that the facts of the case have been sufficiently established by the medical expertises and opinions by Dr P., Prof Wi., Prof T, and, in particular, by the expert Prof S. The differing assessment of the causation issue submitted by Prof M., Prof We. and the expert Prof No. - who had been heard according to section 109 of the Social Courts Acts - has been reliably rebutted. The plaintiff’s submissions do not induce the court to undertake further examinations. It was, in particular, not necessary to comply with the plaintiff’s request to hear the experts with regard to the presentation submitted during the oral hearing. Even assuming that the dosage of benzene Z. had been exposed to had exceeded the limits of the relevant safety guidelines, this does not prove that the disease had been work-related, as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages.” This judgment was served on the applicant’s counsel on 22 March 2004. On 9 July 2004 the Federal Social Court (Bundessozialgericht) rejected the applicant’s complaint against the refusal to grant her leave to appeal. That court considered that the applicant had failed sufficiently to establish which considerations should have induced the Court of Appeal to raise further evidence, as requested by the applicant. On 1 August 2004 the applicant lodged a constitutional complaint. On 8 September 2004 the Federal Constitutional Court (file-no. 1 BvR 1179/04), sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint as being inadmissible. This decision was served on the applicant’s counsel on 22 September 2004. Section 109 of the Social Court Act reads as follows: “(1) On application by the insured person, the disabled person, the person entitled to benefits or his surviving dependants, a physician to be determined shall be heard as an expert. The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and, unless the court decides otherwise, the applicant in the end bears the costs. (2) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence.”