Published on Sole24Ore – NT Lavoro – on 13/10/2022
In the case examined by the Court of Cassation‘s judgment no. 29435/2022 of 10 October, a nurse working in an RSA claimed recognition of INAIL coverage and consequent compensation following the contractions of the HCV virus (hepatitis C).
The Court of first instance rejected the claim with judgment confirmed by the Court of Appeal which, starting from the possible multi-factorial origin of the disease, challenged the employee’s failure to fulfil his burden of proving the work-related cause or the special harmfulness of the working environment, since it was necessary to «certainly identify the fact that the illness originated», also in light of his previous illness (hepatitis B).
In fact, the employee had not cited any specific events that occurred during the performance of work activities, such as accidental punctures, but had merely listed the task performed in the ordinary way, such as caring for elderly, hepatopathic patients, often with bedsores.
Nor, still according to the Court of Appeal, could the evidence be considered to have been provided by virtue of examination report of the hospital medical Committee – formed during the proceedings for compensation under Law 210/1992 and which had ascertained the work-related origin of the illness – since it was a judgment that «does not disclose the factual elements on which it is based».
The nurse appealed to the Court of Cassation, arguing that INAIL could not have disregarded the effects of the medical commission’s finding and contesting the allocation of the burden of proof of the work-related origin of the illness, since it was a tabulated illness, albeit a multifactorial one. Finally, for the appellant, the assessment of reasonable probability can also be developed on the basis of the compatibility of the illness with the type of duties performed and the absence of other extra-occupational factors.
According to the Court of cassation, the Medical Commission’s report has no binding effect on INAIL, which is an autonomous entity with respect to the Ministry of Health, nor can the mere inclusion of hepatitis C in the table under Article 139 of Dpr. 1124/1965, in the group of illnesses for which there is a high probability of occupational origin, be considered grounds for a legal presumption of occupational origin.
However, the Court of Cassation questioned the Court of Appeal’s reasoning on the point in which it considered it necessary to prove that the infectious event occurred at work. On this point, the judges of legitimacy refer to their own well-established orientation according to which «in mandatory insurance against accidents at work, the action of microbial or viral factors that, penetrating the human organism, determine the alteration of its anatomo-physiological balance also constitutes a violent cause, provided that such action, even if its effects manifest themselves after a certain period of time, is related to the performance of the work activity, event in the absence of a specific violent cause underlying the infection», proof provided by simple presumptions also being sufficient in this regard.
Therefore, the Court of Cassation set aside the judgment under appeal and referred the case back to the same Court of Appeal, in order for it to carry out the required assessment by reconstructing on a probabilistic basis the existence or non-existence of a causal link between the illness complained of and the professional activity carried out, «without the need to establish the existence of a specific episode or infectious contract during work».