1 Reviewer - 2 Opinions: Prof. Dr. Stephan LETZEL

What does a court do and what does an expert do when both, by order from 'above' - have to judge and evaluate a second time but quite differently?

The following is the story of such a case. It shows how independent or dependent experts work. It concerns no one other than the Vice President of the German Society for Occupational and Environmental Medicine (DGAUM) - a third-generation representative of the VALENTIN School (German) in Erlangen.


The problem of justice

If one wants justice, one has to sue in court - against another. If he is in a better starting position because he has more resources in the form of money and expertise as well as contacts and old-fashioned standing within the judiciary, this will be difficult. One does not only need a very good lawyer but an excellent one. The lawyer must distinguish himself by being top fit in the relevant legal matter and be prepared to show a high level of commitment. The amount in dispute before the social law courts is not very high, the fee that a lawyer can earn with it remains within manageable limits - not a matter for every lawyer.

We have addressed the difficulties of providing full causal proof when it comes to the recognition of occupational health damages under human medicine vs. occupational medicine. Especially when long periods of latency or even a work-related (too early) death of a first ill and then deceased working person make the subsequent reconstruction difficult or even impossible, a dead person himself can no longer contribute to the clarification. The grieving descendants or life companions are often also overtaxed when it comes to documenting so-called exposure exposures of individual substances in detail over years or decades, i.e., below or above fixed limit values (if available) and this for clearly defined periods or workplaces afterward. Also, to be able to prove all this - to the satisfaction of the statutory accident insurance and-or the Social Courts.

These are the first problems to be mastered.

Others reveal themselves in the form of consultants. They are regularly employed. The statutory accident insurance usually commissions the same ones they always commission. Routine, so to speak. That way, both the client and the contractor know what is required - or desired.

Those who sue also have the right to involve an expert of their choice, but first must finance it themselves. If the Social Law Court then finds itself confronted with expert opinions to the contrary, the judges select an expert themselves. A "Professor Dr. med."  who researches and teaches at a renowned university is usually happy to do so. In other words, an experienced occupational physician.

He is then required not only to examine the conflicting expert opinions but also to comment on the relevant questions himself: as evident and as unambiguously as possible in order for the judges to be able to incorporate the formulated evaluations right away - utilizing copy & paste - into their reasons for the judgment.

So far, the usual procedure. It is extremely rare that actions for recognition of occupational health damage, i.e., an occupational disease, go beyond the second instance. It is the rule that the social courts dismiss such in the first instance. Also, the rule is that an appeal before the regional social law courts fail, which usually is associated with the decision that it may not be admitted to the last instance, the Federal Social Law Court. The judges in the second instance do not want to show any weakness towards the highest instance.

It is rare to succeed with a non-admission appeal before the highest Social Law Court at Kassel. On a statistical average, the Chamber, which is responsible for procedural questions in connection with accident insurance issues, only succeeds in 7.3% of all cases (2017). Approximately 93 percent of non-admission complaints fail and are not accepted.

The following reconstruction describes the arduous path taken by a widow whose husband had died of an occupational disease a quarter of a year after the first notification by the family doctor — a journey through all instances and a complicated one with several expert opinions.

The last expert had the most challenging job. The first expert opinion was probably easy for him - so everything seemed to be done. However, the judges at the State Social Law Court of Baden-Württemberg committed a procedural error and had to repeat the process. However, with a different result, respectively verdict. Because the previous one could not last, because the judges had made it too easy, too comfortable for themselves.

One can see how easy it is for experts to do this in general, but also when the "next time" another opinion for the same case is required, resp. "desired."

The following is the story of the painter, varnisher and floor layer Wolfgang E., and at the same time the story of a renowned occupational physician who, like all his colleagues, is also an expert witness.

Wolfgang E. - A Craftsman, who is Part of the German Economy’s Backbone.

Wolfgang E., born in 1932 and died in 1999, was what one calls a down-to-earth craftsman. At the age of 15, he finished his apprenticeship as a painter and then worked in this profession also as a varnisher for various companies and became independent as a floor layer at the age of 26 in 1958, the era of the so-called economic miracle.

Wolfgang E. lays textile goods and later also plastic, as well as flexplates, which consist of asbestos-containing carrier layers, has to prime, fill and glue, uses the usual products, which represent a colorful mix of various chemical ingredients, including so-called solvents. For example, specific "fuels," acetic acid ethyl ester, trichloroethylene (trichloroethylene), benzene and toluene (methylbenzene) and many more. Benzene, for example, is now banned.

Wolfgang E. equips entire apartment blocks for the GBG (Gemeinnützige Baugesellschaft) in Mannheim or renews the floors in the hospital there. These big clients put out tenders that can only be won if low-cost products are offered. Wolfgang E. also works on a by piece work basis for the most part. His son occasionally supports him. Both do not know that: The solvent toluene, a substance similar to benzene (now banned), is heavier than air. By working on the floor, one cannot avoid inhaling this volatile substance. Ventilation only works in summer. In winter, an internal temperature of less than 16C would make it impossible to lay out and glue the goods. 

Breathing masks with active carbon filters do not help. They narrow the field of vision, complicate the cutting to size of the carpeting, complicate aerial photography and make everything more strenuous if one has to work bent over. Altogether, not a very pleasant job. However, it secures the existence in an economic system called "social market economy."

Wolfgang E. has had a minor problem with his liver since childhood. He has elevated liver values, which do not result from alcohol consumption. He has had this problem for years up until he has to be admitted to hospital in December 1998. The diagnosis: suspected "hepatocellular liver carcinoma". In English: cancer, in the final stage. Exactly three months after his discharge from hospital, Wolfgang E. dies. After 51 years of work and 40 years of self-employment in the "social market economy" system.

Even before his death, the family doctor had reported his cancer as a work-related illness, as an "occupational disease", to the responsible employers' liability insurance association Bau (BG Bau).  Wolfgang E. as a self-employed person, had paid monthly premiums for many years.  Wolfgang E.  is autopsied.  The pathologist confirms the fatty liver and the "death as a result of liver cirrhosis with hepatocellular carcinoma".

The German occupational insurance "Berufsgenossenschaft Bau"

The first medical statements that pleased the BG-Bau were: "Alcohol abuse" and ‚hepatitis C’. Not due to professional reasons, but from personal health and lifestyle. Thus it goes back and forth, and the BG-Bau rejects the BG construction rejects the adjudication, the widow objects. BG-Bau rejects the objection.    

The widow does not resign herself to the death of her 67-year-old husband and sues for recognitionat the Social Law Court Mannheim. Her survivor's pension is at stake. She has to live from something.

The alleged alcohol abuse and hepatitis C  are quickly refuted.  Wolfgang E. regularly donated blood to the German Red Cross.

The „Hauptverband der Gewerblichen Berufsgenossenschaften“, HVBG (now: Deutsche Gesetzliche Unfallversicherung, DGUV), the leading association of trade associations, puts forward a new argument. They had "no information on new, scientifically proven medical findings" available to them, "that painters and varnishers suffer from liver cirrhosis and hepatocellular carcinomas as a result of the effects mentioned in the report of the Technical Field Service ... to a far greater degree than in the rest of the population".

The HVBG writes this as the central umbrella organization of all professional associations at a time (June 2001) when the health consequences of handling various solvents, contained in (e.g.) adhesives, have long been established in several recognized occupational diseases. (classified as  „BK 1302“, „BK 1303“, „BK 1317“: so-called „painter's disease“). Solvents are harmful to health.

In the report from the technical field service (TAD) of the BG-Bau it was stated:

"It can be assumed that Mr. E. continuously handled solvent-containing products during his work as a painter and floor layer and was exposed to solvent-containing vapors during their processing. The influence of solvents in the air at the workplace is particularly relevant during work as a floor layer, as the work took place in closed rooms and ventilation measures were only possible to a limited extent. The influence of solvents can also be assumed when working without direct contact with solvent-containing products, e.g., laying out, cutting, since experience has shown that the effect of the products already processed lasts for some time".

Even if these assessments speak for "work-related" for the first time, the BG-Bau does not want to know - as is (almost) always the case.

Social Law Court Mannheim

The Mannheim Social Court judge appoints Prof. Dr. Hans-Joachim SEIDEL, the head of the Institute of Occupational Medicine/ Ulm University Hospital, as an expert. However, he is also unable to identify a causal connection between exposure and liver cell disorders. Instead, his evaluation fits more closely with the "image of a person" who "also consumes alcohol at least occasionally beyond the tolerable level". Moreover, he states that in the medical literature, "only two studies have succeeded in identifying a liver carcinoma risk from exposure to solvents as increased."

Which means that such a damage pattern does not correspond with the "prevailing opinion". The rejecting judgment thus states: ".... the court is not convinced that the cirrhosis of the liver, from which Mr. E. died, was caused by his professional activity" (Ref: S 11 U 489/00 v. 14.10.2002).

Widow E. appeals, this time assuring herself of the advice and support of another lawyer who is knowledgable and has shown extraordinary commitment: Hans-Joachim DOHMEIER from Ludwigshafen.

The Lawyer

DOHMEIER is an expert. An expert on the side of the potentially inferior - those who have a hard time enforcing their rights.

DOHMEIER has published several articles on the subject. For example, he published a book about dioxin. He also revealed in detail the subtle tricks and factual mistakes of occupational physicians. For example, false quotes from the Heidelberg occupational physician Prof. Dr. Gerhard TRIEBIG, a VALENTIN pupil (see: The Erlangen VALENTIN School: How to organise the "prevailing opinion").

Heidelberg's public prosecutor's office investigated TRIEBIG because of false expert opinions, precisely the "suspicion of issuing false health certificates" (Az 25 Js 90411/93). Their conclusion was: "As far as it could be proven the accused assumed partially gravely false facts in some expert opinions. However, it must be assumed that this did not happen knowingly, but at most out of negligence, possibly caused by the high number of expert opinions issued by him".

DOHMEIER had already taken on a ‚big shot’ man in the industry: Prof. Dr. med. Gerhard LEHNERT. After the dioxin accident at the Hamburg plant of the Boehringer-Ingelheim pharmaceutical company, Gerhard LEHNERT had attributed the super poison "dioxin" as "harmless". DOHMEIER picked LEHNERT's report regarding dioxin (at www.ansTageslicht.de/Dioxin) down to the very last detail, apart. He analyzed that this second most important man in industrial medicine, also a VALENTIN pupil, had used wrong calculations for his ‚sample’ opinion.  "Only then the project could succeed to declare 2,3,7,8-TCDD (dioxin) as non-carcinogenic.", the end of his analysis states. (read HERE).

The chances for widow E. before the Social Law Court Baden-Württemberg are now increasing. Potentially.

Higher Social Law Court of Baden-Württemberg

The state social law judges do what they always do. They appoint an expert and ask Prof. Dr. med. Johannes KONIETZKO from the Johannes Gutenberg University in Mainz for professional assistance. KONIETZKO had only just two months earlier been under public criticism. Prof. Johannes KONIETZKO had falsified a "scientific leaflet" in connection with the occupational disease "BK 1317", also called "painter's disease," years before and this in his function as a member of the "Medical Advisory Board for Experts on Occupational Diseases" at the Federal Minister of Labour. The former Federal Labour Minister Norbert BLÜM (CDU) called this "organised misrepresentation" (more under "Organised Misrepresentation". Organised Crime?). The judges at the National Social Court do not seem to mind this.

Nevertheless, they do not get their expert witness. KONIETZKO has meanwhile retired. The Institute for Occupational Medicine seems to be very popular with social law judges. And so they commission his successor, Prof. Dr. med. Stephan LETZEL, a pupil of the VALENTIN school in Erlangen.

LETZEL compiles a 25-page "Scientifically founded Occupational Medical Report" and summarises the "Prehistory according to files". It reflects the findings by the Technical Field Service (TAD) of the BG-Bau according to which Wolfgang E. had "continuous handling of solvent-containing products" especially "in closed rooms." It  also lists relevant hazardous substances such as trichloroethylene, benzene, and toluene, and comes to the following conclusion on page 19:

"A quantification of the used amounts and pollutant measurements from Mr. E's  specialized work area is not present, and are retrospectively also not to be determined easily. Among the substances listed in detail, a carcinogenic potency for humans, in particular tar, bitumen, trichloroethylene, asbestos and benzene, is scientifically clearly proven. However, none of these substances has the liver as a target organ. A causal link between the diagnosed liver disease and exposure to these carcinogenic substances is, therefore, not likely."

And in summary on page 23:

"With the available data on the specific exposure situation, however, no causal relationship between the existing solvent exposure and the liver disease can (probably not)  be made from the point of view of occupational medicine. We, therefore, cannot recommend that Mr. E.'s liver disease be recognized as an occupational disease."

While occupational physician Prof. LETZEL was appointed by the court, widow E. commissions an expert of her own choice, whose fees according to § 109 SGB she has to pay herself: Prof. Dr. med. H.K. SEITZ, Chief Physician at the Salem Hospital in Heidelberg, an "Academic Teaching Hospital of the University of Heidelberg." As co-author of the textbook "Alkohol, Alkoholismus, Alkoholbedingte Organschäden" (Alcohol, Alcoholism, Alcohol-related Organ Damage), she expects him at least to refute the claim that the liver carcinoma was caused by "alcohol abuse."

The report proves to be a total flop. Also, this expert only forms his opinion "according to the files," thus he interprets only the previous information.

Neither LETZEL nor SEITZ consider involving an expert from the floor laying industry.  They also do not recommend involving an expert who could tell them more about the work methods of floor layers, the materials used, and the typical exposure times on an average working day. The shortcoming of all previous reports is: The full proof of causality cannot be clearly established due to the lack of subsequent reconstructibility. At least not as long as one does not take the trouble to reconstruct as much as possible despite all the difficult circumstances, to then be able to assess the probability of health impairments and their extent better.

Attorney Hans-Joachim DOHMEIER has many detailed questions for his own expert SEITZ. A lot is very vague and rambling, much is unclear or inaccurately quoted. DOHMEIER's catalog of questions can be seen as a prime example of the extent to which, and above all the depth with which, one must study occupational medical reports to identify inconsistencies, contradictions and what is useless. We, therefore, deposited questions in this link: as an indication for others who find themselves in a similar situation.

Expert SEITZ is adamant. Does not want to face the questions. Despite a request by the court. The judges at the Baden-Württemberg State Social Court in Stuttgart allow it to pass. Prof. Dr. med. K.H. SEITZ does not have to appear, does not have to give any answers.

The judges reject Hans-Joachim DOHMEIER's proposal to obtain a "technical expert opinion" from i.e. a painter or a floor layer who can describe a typical working day and to what a floor layer is normally exposed to, and what exposure levels and set limits. Justification of the rejection is: The expert LETZEL commissioned by them had already assumed a "relevant exposure to harmful substances," the exact level of which, however, could no longer be determined.

Judgment: Rejection of the appeal (LSG Baden-Württemberg: Az L 6 U 4712/02 v. 6.4.2006).

However, since the judges had stated in their reasoning that toxic damage to the liver "would require a very high exposure regularly above the limit values", which, however, "has not been proven and can no longer be determined", they fall into a trap. Because they do not want to pursue this question, the judgment is based on an "inadmissible anticipated assessment of evidence" — one for which no evidence was obtained.

Bundessozialgericht - BSG (federal social law), the Highest Authority

This is also the view of the highest (federal) judges at the Bundessozialgericht. DOHMEIER had filed a so-called complaint of non-admission. The judges of lower courts, i.e., the Regional Social Law Court, wanted to avoid a review of their verdict by the highest (appeal) instance.

To succeed with a non-admission complaint before the highest, the Bundessozialgericht, is very rare. The rejection rate is 93%. In other words: almost everything fails. However: Attorney DOHMEIER had worked out the error about the missing „fair hearing“. The right to a fair trial is one of the most essential cornerstones of our German legal and court system.

Germany's supreme judges of the social law courts named the error of their colleagues: The reason for the rejection of the appeal had "not come about according to the rules of procedure." In other words, it was based on an "anticipated assessment of the evidence." And that is why a technical expert opinion is indispensable, notably since it had been omitted so far. In addition, they gave the judges a  broad hint  (BSG Az: B 2 U 144-06 v. 10.10.2006):

"Upon this injury of the official investigation obligation, the contesting decision can be based, as it is conceivable that the (lower) Landessozialgericht could arrive at another conclusion after further investigations."

Higher Social Law Court Baden-Wuerttemberg, „take two“

The case is referred back to the Landesgerichthof of Baden-Württemberg. It is the year six since the filing of the first complaint, and lands on the table of the same judges. The presiding judge WIEGANDT, his colleague Dr. BUSER, and everyone else now has a problem.

On the one hand, they now have to make up for what they failed to do. Secondly, again, an expert is needed to make the appropriate assessments. Since the (same) judges at the Landessozialgericht Baden-Württemberg have had good experiences with Prof. LETZEL, he will again be assigned - the second time in round two.

And they listen to Wolfgang E.'s son as a witness. He had often helped his father and is a floor layer by profession. He sees himself in a position to explain to the judges very carefully and convincingly how floor laying works,  and about the resulting vapors and gases of very different solvents with which the primers, adhesives, and fillers are coated. In particular, how one is exposed to harmful chemicals like toluene when laying floors. This is confirmed by a technical report written by a graduate engineer who is also a master painter and varnisher.

The Scientific Balancing Act by Expert Prof. LETZEL

Building of the Institut of Occupational Medicine of Prof. LETZEL in Mainz. Foto: Günter STEINKE

University building no. 905 at Augustaplatz in Mainz: the seat of the Institute for Occupational, Social and Environmental Medicine.

For occupational health expert LETZEL, round two becomes a balancing act. He must now - due to the "broad hints" from the very top - evaluate the same facts differently and come to a different result. But expert opinions - from a purely legal point of view - are not factual assertions, but ultimately expressions of an opinion. In case of doubt, accurate claims are subject to the burden of proof when it comes down to it in court, i.e., they must be "demonstrably true," as it is called in legal German. To have an opinion falls under Article 5 of the Basic Law. And thus does also the change of opinion.  For example, due to the knowledge of new facts or a stronger emphasis on past points - which is likewise constitutionally protected. This makes the task much easier for Prof. LETZEL.

In his expert opinion no. 1 Toluene was only mentioned marginally. In expert opinion no. 2 this hazardous substance is now brought to the fore:

  • In expert opinion no. 1 it was stated on page 6: "Statements on limit value exceedances are not to be found in the statement of the TAD."
  • In expert opinion no. 2, it said on p. 8, that:  "A reassessment of the exposure risks of the patient leads to the fact" that "during his work as a floor layer he was highly likely to be exposed to toluene exceeding the limit value."

The same applies to the question of whether and to what extent organic solvents pose a risk to the liver:

  • In expert opinion no. 1 on p. 19, it was mentioned in connection with solvents that "none of these substances, however, has the liver as its target organ." A causal link between the diagnosed liver diseases and exposure to these carcinogenic substances cannot, therefore, be made probable."
  • On page 8 of opinion No. 2, the following can be read: "In principle, it can be stated that a whole series of organic solvents have liver-toxic effects, sometimes to very different degrees.

And on p. 10 even more clearly: "In summary, based on the existing file (which had already existed at that time, note d.R.), an exposure of Mr. E. to organic solvents for more than 37 years with the target organ liver is to be assumed.“

All in all, Prof. Dr. med. Stephan LETZEL then comes to the conclusion on page 10: "I, therefore, recommend the recognition of liver disease as an occupational disease." Full stop.

Since the judges are ultimately responsible for judgment and the ladies and gentlemen of the 6th Senate of the Bundessozialgericht Court want to be on the safe side this time, they ask Prof. LETZEL again for a (third) expert opinion, and that he should please express himself a little more clearly. In particular, about to what extent the substances in question would make it possible to classify them according to the classification list of occupational diseases. LETZEL had clearly rejected this in opinion no. 1.

But this time, the occupational physician arrives at a quite clear result:

  • „Concerning Toluol (BK 1303): "In summary, I, therefore, come to the conclusion that the listed substance 'Toluene' (BK No. 1303) is in itself an essential partial cause of Mr. E.'s liver cirrhosis, which developed into a hepatocellular carcinoma that ultimately led to the death of the patient due to cardiovascular failure".
  • As far as 'Trichloroethylene' is concerned: "If it can be assumed that Mr. E. was exposed to Trichloroethylene for several years, regularly and several times a month, in a concentration that exceeded the earlier toxicologically justified limit values, the listed substance Trichloroethylene (BK No. 1302) can in itself also be regarded as an essential partial cause of the cirrhosis of the liver, which led in Mr. E.'s case to the resulting clinical picture, which ultimately led to death due to cardiovascular failure."

Now the judges of the Landessozialgericht Baden-Württemberg have an easy game (LSG Baden-Württemberg, Az L 6 U 5889/06). On 29th September 2011, they make their final decision. After a detailed explanation and repeated quoting of the new findings of expert LETZEL, it is stated under item 70:

"It is therefore sufficiently probable that there is an essential causality between the occupational effects of Toluene and the cirrhosis of the liver disease of E., which gives rise to liability."

Now Wolfgang's widow is at least entitled to a survivor's pension.

(JL, translated by Bearnaidine BEAUMONT/www.aerotoxcicteam.com)


Note

Hans-Joachim DOHMEIER has been retired for several years and is no longer accepting new cases. In the chapter At "What can you do?" we offer further tips and suggestions.

We have asked Prof. LETZEL for his comments and to explain the changes in the expert opinions. Mr. LETZEL didn't feel obliged to answer the first inquiry made by the DokZentrum-AnsTageslicht.de. Prof. LETZEL only reacted when our cooperation partner, Süddeutsche Zeitung, inquired. The tenor of his answer was: 1) Because of medical confidentiality reasons, he could not comment "on details." 2) That he had "never written anywhere that 'organic solvents ... do not have the target organ liver'."

Apparently, he did not check his first report. Anyway: Here we document the questions and answers to/by Prof. Stephan LETZEL