E’ indennizzabile INAIL also bronchopathy resulting from exposure to secondhand smoke even though no case of occupational diseases table.
According to the Court of Cassation, in fact
1. the protection of employee accident prevention extends to cases of so-called specified risk abuse, defined as that which, while not material inherent in the act of work performance, deals with situations and activities closely linked to the performance itself (see, ex multis, Cass. 131/1990 regarding breaks physiological ex multis, Cass. 12652/1998, Cass. 10298/2000, Cass. 3363/2001, Cass. 9556/2001, Cass. 1944/2002, Cass.6894/2002, Cass. 5841 / 2002, Cass.7633/2004, Cass. 5354/2002, Cass. 16417/2005, Cass. 10317/2006, Cass. 27829/2009 on the subject of internal acts of locomotion, and still Cass.3765/2004 on the activity and instrumental work-prodromal)
2. the concept of environmental risk implies that the work is protected in and of itself considered and not just one made at the machines, since the hazard on the working environment (from Cass. SU 3476/94);
3. risk factors for diseases not tabulated include situations of harm that, while applicants for non-work activities, however, constitute a specific risk for the insured (see Cass. 14565/99).
".. indeed, in the case of occupational disease is not tabulated, as indeed multifactorial etiology for the disease, evidence of the cause of labor, which is charged the employee, must be assessed in terms of reasonable certainty in the sense that included the importance of the mere possibility of ' occupational in origin, it can instead be identified in the presence of a significant degree of probability. In this regard, the court must not only enable the insured to bring the evidence admissible in law and ritual, but must also consider the conclusions of probabilistic expert on the subject of causation through the use of any useful initiative ex officio, direct to acquire more (new surveys or request for clarification from the technical advisor etc..) depending on the extent of worker exposure and risk factors, and also considering that the professional nature of the disease can be inferred, with a high degree of probability, the type of work carried out , the nature of the machinery in the workplace, the working time and the absence of other factors unrelated to the job, or alternative competitors, which may constitute a cause of the disease (ex multis, Cass. 11128/2004; Cass. 5352 / 2002). In addition, the auxiliary
... appointed by the judge can reach a reasonable probability the trial even on the compatibility della malattia non tabellata con la noxa professionale, desunta dalla tipologia delle lavorazioni svolte, dalla natura dei macchinari presenti sul luogo di lavoro, della durata della prestazione lavorativa, e per l’assenza di altri fattori extra-professionali, utilizzando, a tale scopo, congiuntamente anche dati epidemiologici, per suffragare una qualificata probabilità. Per questa via probabilistica il dato epidemiologico, che di per sé attiene ad una diversa finalità, può assumere un significato causale, tant’è che la mancata utilizzazione di tale dato da parte del giudice del merito, nonostante la richiesta della difesa corroborata da precise deduzioni del consulente tecnico di parte, è denunciatabile per Cassazione (Vedine, and for all, Cass. 20665/2005, Cass. 8073/2004, 8073/2004).
In this case, the Supreme Court upheld the ruling of the Territorial Court has expressly referred to the conclusions reached by the consultant pulmonologist on the basis of the history and pathological and work the same way as more recent epidemiological studies have confirmed the strong correlation between ' exposure to environmental tobacco smoke and chronic respiratory symptoms.
addition, the Court held that evidence by documents in municipal offices where the workers are not providing any of the smoking ban was in force, which for decades until May 4, 1998 when, by order of that date, the ban was dictated smoking in the municipal offices of Lingfield. And yet, the Territorial Court, in the absence of evidence of the existence of adequate ventilation and extraction equipment
forced, ruled that the presence of windows in the room where the employee worked, however, allowed to reach an assessment of environmental health, pointing out that assessment on the ground that the harshness of the climate of the place where were the offices of the municipality and where the work done its work, did not allow the performance of work with open windows.
Source: http://www.studiodiruggiero.it/fumo-passivo-indennizzo-inail/
