Cancer can be recognized as an occupational disease despite long-term smoking. This is the case if, after years of abstinence, nicotine consumption is no longer sufficiently likely to have caused the illness, the Federal Social Court in Kassel decided on Wednesday (file number B 2 U 8/21 R).
A plaintiff born in 1956 was a long-time smoker before becoming abstinent in 2000. According to the court, he was employed as a welder from 1998 to 2013. Among other things, he welded fat baking devices. To test cracks in weld seams, the plaintiff used dye-containing sprays with the carcinogenic o-toluidine, a chemical substance from the aromatic amine class. In 2014 he was diagnosed with bladder cancer.
The defendant professional association refused to establish an occupational disease. The plaintiff’s long-term nicotine consumption led to a doubling of the risk of illness, she argued. The man initially successfully sued the Reutlingen social court. In the second instance, the Baden-Württemberg State Social Court dismissed the claim for recognition of an occupational disease.
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The exposure dose to o-toluidine does not come close to the level of the technical reference concentration (TRK value). It indicates the concentration of a harmful substance as a gas, vapor or suspended matter in the air at the workplace that can be achieved using the current state of technology.
The 2nd Senate of the Federal Social Court has now overturned this decision. The Kassel judges argued that occupational disease number 1301 (mucous membrane changes, cancer and other neoplasms of the urinary tract) did not require a minimum exposure dose to aromatic amines. Specific non-work-related causes of the illness have been ruled out. In particular, since he gave up smoking in 2000, cigarette consumption was no longer sufficiently likely to be a cause of the plaintiff’s cancer.