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.