Asbestos compensation in Italy

Chapter 4
Asbestos compensation in Italy

A major producer and user of asbestos, Italy’s asbestos compensation emerged in the 1980s and bloomed in the 1990s combining workers’ compensation payments, social security benefits, and criminal trials to which a growing number of personal injury claims were joined.1 Asbestos compensation matured along the lines of the rigid distinction between cases of occupational exposure and cases in which the exposure was no occupational-secondhand exposure, environmental exposure, but also exposure in the workplace in occupations that, although risky, the law has not recognized as occupations entailing proper exposure to asbestos. This trajectory, which has resulted in exclusion of many asbestos victims from compensation, is rooted in the important role that unions have played in mobilizing claims and in the strict requirements that victims of asbestos personal injuries must meet to seek recovery in torts.

The exclusion of victims of non-occupational exposure from workers’ compensation and social security is certainly problematic and it has been both litigated and debated at great length since 1994, the year in which all major asbestos diseases were listed as compensable under workers’ compensation. A high volume of cases were brought to challenge the definition of “occupational” exposure as well as other eligibility requirements under workers’ compensation. While eligibility criteria have been relaxed as a consequence of judicial intervention, victims on non-occupational exposure have substantially lower expectations of recovery than victims of occupational exposure. Even the 2011 Asbestos Fund, which advocacy groups had supported in the hope that the compensation gap would be filled, was set up only to the benefit of victims of occupational exposure. As a way to overcome some of these restrictions, many victims resorted to the criminal system for answers. This resulted in a lively and rather unique series of criminal investigations and trials against officers of asbestos firms that have opened the door to compensation also to victims whose claims were not based on occupational exposure.

The legal framework that has emerged from the resilient stream of cases and the legislative reaction to incessant litigation is, in the words of Franco Lotito, the chairman of the advisory board of the workers’ compensation administrative body, highly “redundant, fragmented, and largely pushed by considerations of emergency” to the strenuous litigation rather than a clear policy vision.2 Lotito adds that “this state of affairs creates a dense institutional curtain of fog filled with confusion and uncertainty that workers and firms are forced to navigate with difficulty.”3

Lotito’s words are also very useful to frame my account of asbestos compensation in Italy. Although I am a scholar trained in the Italian legal academia, conducting research and drafting this chapter was not easy: the legal environment is unclear, redundant, ever changing, and difficult to grasp; reform and litigation and further reform densely populated the story of asbestos compensation. This chapter represents my best effort to account for a complex and purposely unclear legal framework.

Asbestos regulation and the lack of asbestos compensation

Asbestos compensation emerged in the 1980s. However, the regulation of asbestos dates back to the early twentieth century. In 1909, a royal decree mentioned asbestosis as one of the occupational hazards that women and minors working in dusty environments face.4 In 1917, Adolfo Mazza patented a form of asbestos-cement pipe that developed the ideas of Hatschek, Eternit’s inventor, and launched an asbestos-cement manufacturing facility in Casale that would soon attract foreign investment from entrepreneurs linked to the Eternit group and expand the production to one of the largest in Europe. In 1918, the largest chrysotile mine in Europe opened in Balangero. Extraction at this site positioned Italy as second after Russia on the list of European asbestos producers.

By 1943, in the midst of World War II, asbestosis made its appearance as one of the “prescribed” diseases that workers could develop if exposed to asbestos dust. In 1929, Mussolini had extended the mandate for employers to purchase insurance for occupational injuries, which had been established in 1898,5 to six occupational diseases, none of which was linked to asbestos exposure.6 The new legislation framed compensation for occupational injuries by deploying two principles which are still at the basis of contemporary policies compensation only for “prescribed” diseases and presumption that, in the presence of exposure to a known toxic industrial risk, the prescribed disease was caused by said industrial risk. Between 1933 and 1935, Mussolini took the further step of establishing a workers’ compensation administration with automatic coverage of workers involved in dangerous occupations.7 Workers’ compensation provided the exclusive remedy for victims of prescribed disease and victims lost the right to sue the employer.

These laws were part of Mussolini’s master plan to resolve labor disputes, and the entangled class conflicts, with “corporatism.”8 Proposed as a third way between capitalism and socialism, this approach entailed state control of labor relations by harmoniously coordinating and resolving, sector by sector, disputes between capital and labor in the economic interest of the nation. Mandatory insurance for occupational diseases, which awareness was growing among public health scholars and the medical profession, was a step towards state interventionism in labor disputes. History tells us that corporatism was more ideology than praxis: its implementation betrayed its spirit since Mussolini used the interventionist approach undemocratically to suppress free labor unionism and to “reestablish discipline … within the factory,” a promise that he had made to rubber and tire tycoon Alberto Pirelli in 1922 before rising to political power.9 Yet, the seeds were sewn for interventionist policies in labor relations and compensation for occupational injuries.

In 1943, before losing political power and projecting Italy into a two-year civil war, the Fascist majority in Parliament voted to extend workers’ compensation to asbestosis.10 Its recognition as a prescribed disease was rooted in the political alliance with Nazi Germany. A few months earlier, Nazi Germany had listed lung cancer with asbestosis as an occupational disease covered by its workers’ compensation. German public health officials had in fact concluded that there was sufficient evidence to link asbestos exposure to lung cancer. This path-breaking initiative had very limited impact in those countries that were fighting Germany, mostly because of the lack of scholarly exchange between scientists on opposed war fronts.11 Italians, who were war allies and engaged in free flowing of information with Nazi allies, followed the path of Germany and listed asbestosis as an occupational disease.12

After the end of the war, the word Fascist was dropped from the name of the workers’ compensation administration and it was renamed13 but the regime envisioned by Mussolini and implemented during his ruling remained untouched for over twenty years. The first major post-war reform took place in 1965. Parliament rewrote the Fascist law, and, in consolidating laws on occupational injuries and disease, confirmed the inclusion of asbestosis as a prescribed disease.14 By then, a wave of epidemiological studies was showing that asbestos was killing workers in factories. Researchers had reported cases of asbestos disease since 1955.15 In the 1960s, various epidemiological studies showed that Italian asbestos workers were becoming sick. In 1967, Donna linked a death due to lung cancer with the patient’s exposure to asbestos.16 In 1972, Rubino and colleagues published an early case control study that confirmed several cases of mesothelioma in patients who had been exposed to asbestos.17 This demonstrates that Italian epidemiologists were well aware of the findings of Doll and Wagner and that they worked towards confirming them on Italian cohorts. Nonetheless, the growing body of evidence did not equate lung cancer with mesothelioma.

Legislative action lingered to the point that these diseases would become prescribed only in the 1990s, mesothelioma and carcinoma of the lungs became prescribed in 1994;18 pleural thickening in 2008.19 Why such a long delay? During the 30 years, the growing consciousness of asbestos disease translated into political and legal action at a very slow rate because unions thought they could promote workers’ health and safety by working from within the factory and cooperating with the state institutions. The 1970 Statuto dei Lavoratori, or Workers’ Charters, shaped the legal framework of such strategy. It prohibited employers from hiring a doctor to assess occupational diseases and demanded the assessment is completed by a doctor employed by the state agency responsible for industrial disease. It also established workers’ unalienable right to unionize and to have a representative at the plant. This statute is seen as a policy victory for labor, which had become strong after the mobilization of 1968, and a partial institutionalization of operaismo or workerism, that is, movement fostering the affirmation of workers’ rights in autonomy from “the dictates of the labour movement and capital.”20 Labor’s idea was to protect workers’ health through unionization and dialogue with the institutions without jeopardizing full employment. Occupational health became integrated in labor relationship. Some issues were discussed at the national level as part of collective bargain negotiation. Other issues were negotiated by unions at the manufacturing facility level in direct dialogue with management. This strategy however resulted in a partial sacrifice of health and safety issues, which become conflated in broad collective bargaining negotiations and was often the object of unions’ concessions to management to secure workers’ full employment or better economic conditions. At national level, demands for employment stability and salary increase trumped health and safety considerations. Asbestos disease was one of the issues that were lost in translation. However, at European level and at the local level things operated differently.

The birth of asbestos compensation

The negotiated equilibrium that kept asbestos cancers off the list of prescribed diseases was cracked only when the European Union took legislative action to tightly control asbestos exposure and eventually ban the magical mineral. Since 1983, the EU passed several pieces of legislation focusing on the issue of exposure to asbestos. Directive 83/477/EEC set limits for asbestos exposure at work, limits that were further lowered in 1991.21 The two directives clearly indicated that the days of asbestos manufacturing in Europe were numbered. The prospect of the entire industrial sector being shut down changed the approach to negotiations of national unions that could no longer hope for collective bargaining negotiations to deliver full employment and salary increases. This led to the awakening of interest of labor unions’ national managers for the asbestos issue in the early 1990s. Yet, the most significant contribution to the emergence of asbestos disease consciousness and compensation advocacy came from grassroots initiatives that took place at the plant and community level in Casale Monferrato. A small blue collar town in Piedmont, the city of Casale hosted a large asbestos-cement plant owned and managed by the Eternit group. Since the early 1980s a group of local union organizers and of Eternit employees began keeping track of all cases of mesothelioma and started realizing that a significant epidemic was afflicting the community. The public health risks were particularly severe because substantial amounts of asbestos dust flew daily over the city as asbestos was transported from the railroad station to the plant and back to the station—a poor logistical choice that contributed to the high rates of mesothelioma in the city’s population.

Grassroots activities in Casale were led primarily by members of local branches of major labor union organizations and began by helping mobilization victims in their quest for compensation in workers’ compensation and in torts. The activists also realized early on that the proper way to address the asbestos epidemic, in addition to compensation, entailed banning the use of asbestos and cleaning up any contaminated area. Therefore these activists soon embraced a broader political agenda that aimed at creating a safety net for the soon-to-be unemployed or retired asbestos workers and their family. The prospect of financial hardship was certainly tangible as retired and retiring sick workers were experiencing major difficulties in securing workers’ compensation. Yet, activists thought that the answer was not in keeping asbestos in the community but by building a safety net for victims and relatives who were about to face unemployment and, in some cases, illness and death.

Activists therefore pushed a multifaceted agenda that combined supporting litigation, advocating an asbestos ban, expanding workers’ compensation, and creating ad hoc compensation that could reach victims of all forms of exposure to asbestos.22 This agenda was however challenged both at the local level, by those members of the Casale community who argued that an asbestos ban would have had devastating effects for the local economy that heavily relied on the asbestos-cement factory, and at the national level by labor unions’ headquarters that resisted the idea of a local group trying to dictate the political agenda at national level. Activists however did not desist in their lobbying efforts, which became increasingly strenuous with regular trips to Rome to demonstrate in front of the Parliament.

Eventually the national leadership of labor unions became involved, but only after asbestos had been banned. Unions’ labor relations agenda narrowly focused on full employment and wage increases were no longer viable: the wave of rising unemployment rates among union members as well as the generalized trend towards greater flexibility of the labor market, led unions to shift their strategy finally embracing the quest for compensation of asbestos victims. While unions understood the immediate need to effectively represent union members who were employed in the asbestos industry, their change of posture is also a consequence of broader changes in labor relations. By the 1990s, world capitalism had entered into a new epoch, one of transnational capital and neoliberal policies that greatly relied on job flexibility. Labor unions became caught in this new wave of capitalism and in 1992 they agreed to “an emergency industrial relations reform that abolished wage indexation and temporarily banned enterprise-level bargaining.”23 Once job security and salary increases were no longer the pillars of negotiations between labor and capital, health and safety issues, along with issues of preservation of the safety net that had been built since the end of World War II, attracted much more political attention among labor unions leaders.

The asbestos campaign that connected local activists with labor unions leaders brought home significant results. Chrysotile was banned in 1992.24 The law banning asbestos established social security payments to the benefit of already retired or newly unemployed asbestos workers in the form of a pension multiplier (the pension of each retiree was automatically increased by a certain percentage). Mesothelioma and carcinoma of the lungs became prescribed in 1994.25 Moreover, labor unions began supporting asbestos victims’ efforts to secure workers’ compensation awards. They did so by providing the financial support and expertise to challenge benefit denials and in lobbying for further expansion of the various compensatory schemes.

The early 1990s mark the birth of asbestos compensation. The emergence of asbestos compensation is certainly due to a reactive necessity rather than proactive vision. Political inertia reigned for many years and contributed to late governmental recognition of asbestos disease. Policymakers were not interested in asbestos and labor unions at the national level did not push the agenda for years. Since then, labor unions have played a central role in the political mobilization of asbestos victims. As the labor market readjusted to the disappearance of the asbestos industry, labor unions embraced asbestos compensation as a vehicle to maintain control of labor relationship in times of declining union membership and increasing job mobility: expanding compensation for asbestos victims, whether in the form of a higher pension or of greater compensation for disease, allowed labor unions to retain the (almost monopolist) role of the representatives of the working class. As noted earlier in the chapter, unions’ support has profoundly shaped the current legal framework of compensation, which is highly biased in favor of victims of occupational exposure and almost silent about victims of other kinds of exposure. A review of the litigation that emerged after the establishment of asbestos compensation mechanisms, as well as the informational material posted on websites of labor unions and administrative agencies discussing the mechanisms, reveals that labor unions greatly influenced and shaped victims’ expected path to compensation. Equality of treatment among workers and prioritization of occupational exposure over other kinds of asbestos exposure were championed by labor unions and became embedded in the legal struggle for greater compensation. Labor unions pushed the compensation agenda of asbestos victims towards social benefit and away from personal injury compensation in ways more pronounced than in other countries. This process of structuration led to interesting effects, such as the further expansion of the pension multiplier model: it has not been extended to non-occupational exposure victims but it has been used to accommodate demands for compensation of workers in other industries. In fact, 1,250 workers who had been exposed to chloride-nitro-ammonia, which similarly to asbestos is associated with reduced life expectancy, are now entitled to the same pension multiplier that was made available to victims of occupational exposure to asbestos in the early 1990s.26 Victims of occupational exposure currently receive compensation in the form of the pension multiplier, workers’ compensation, and, under narrow circumstances, damages in court. The next segment of the chapter discusses the details of each of these paths to compensation.

The pension multiplier

Negotiated as part of the political process that led to banning asbestos and the disappearance of the asbestos industry, the benefit was viewed as a social welfare measure for retired, unemployed, or soon-to-be unemployed asbestos workers. As for other Italian regulations in the area of asbestos compensation, deciphering eligibility under the scheme is complex and complicated. The legal framework and subsequent amendment is an intricate quagmire.27 Rules have been significantly amended over time, and eligibility requirements are difficult to map. In essence, victims of occupational exposure to asbestos dust, whether or not they developed an asbestos disease, may apply for a social benefit in the form of a pension multiplier, which operated as an additional payment on top of the recipient’s pension liquidated at retirement. It is applied only to the years of exposure to asbestos dust not to the entire professional life of the retiree.

The multiplier is either 1.50 percent or 1.25 percent. The higher figure applies to victims whose exposure ended on or before October 2, 2003, to those who filed an application to receive the benefit on or before June 15, 2005, and to those who are affected by an asbestos disease. The 1.50 percent rate applies to both the retirement age and to the pension amount. The result is that these workers could reach retirement age early. Eligibility is further restricted to cases in which exposure lasted for more than ten years and the asbestos firm was required to pay an asbestos supplemental premium for workers’ compensation coverage.28 These include a limited number of firms that the workers’ compensation administration had singled out because their manufacturing process involved significant and direct exposure to asbestos. The 1.25 percent multiplier is applied to all other victims, that is, those who were exposed after 2003, who failed to file a claim by 2005, or who worked for firms that were not required to pay the supplemental asbestos premium. To these victims, the 1.25 percent multiplier is applied only towards the pension amount not to retirement age.29 Self-employed victims are not eligible to receive the pension multiplier. The benefit is not paid to independent contractors and small business owners (such as artisans). The rationale, embraced by courts in the numerous attempts to be defeat the exclusion, has its foundations in the notion that self-employed victims were not legally required, by contract, to work in dusty environments, on a schedule set by the firm, and without proper protection against dust, in contrast to the many victims who were forced by their employers to be exposed.30

The 1.50 multiplier is notably applied to the pensions of “walking worry” victims, that is, individuals who are healthy but in fear of developing an asbestos disease because of substantial exposure to the magical mineral. The exposure is substantial because the benefit can only be paid to victims whose exposure is certified by the workers’ compensation administration as having lasted for at least ten years. Considerations of social welfare formed the basis for their inclusion as a means to rebalance the safety net of gainfully employed members of society who became unemployed in the aftermath of the disappearance of the asbestos industry. Over time, as the labor market readjusted to the rise of unemployment caused by the asbestos ban, policymakers and courts revisited the rationale behind the benefit, shifting its justification from a social welfare measure redressing unemployment to compensation for reduced life expectancy.31 The Constitutional Court has in fact held that “walking worries” are eligible to receive compensation on the assumption that prolonged occupational exposure to asbestos might have reduced their life expectancy.32

This benefit has been heavily contested since its appearance. With the support of unions, victims have extensively challenged eligibility requirements at the administrative level as well as in court, and have lobbied Parliament for their extension to new classes of victims. The current discipline is the outcome of legislative reforms, guidelines issued by the workers’ compensation authority, court cases that have clarified, refined and expanded the scope of entitlement in the course of the past twenty years. Extensive litigation, supported by labor unions, targeted the validity of four requirements: the 10-year exposure; the employer’s failure to pay the addition premium; eligibility under workers’ compensation (state employees and other categories were excluded from eligibility because the benefits were administered by a different system); and certification of exposure issued by workers’ compensation officials, which the workers’ compensation administration has often denied.

The first strand of cases challenged the constitutionality of the 10-year exposure requirement based on equal protection and due process considerations. Victims who did not qualify argued that the law failed to treat all victims equally because no consideration to the severity of the exposure to asbestos was given. The aim was to extend entitlement to asbestos victims who had been exposed to shorter periods of time. The Constitutional Court disagreed and ruled that the law was constitutional.33 The Court reasoned that setting a minimum length of time for exposure was constitutional since the benefit was meant to compensate the risk of developing a disease and that the its length (10 years) was a reasonable approach to identify any exposures that were “substantial” and therefore sufficient to create the risk that the law compensates.34

The second strand of cases challenged eligibility exclusion for victims who had worked for firms that had not paid to the workers’ compensation administration the supplemental premium for asbestos risks. These firms did not pay the supplemental premium either because the workers’ compensation authority had assessed the premium ignoring that asbestos was used in the manufacturing process or because the firm had simply failed to make payments. Pushed by an abundant stream of lawsuits that lasted a decade and that ultimately gained the court’s sympathy, Parliament ultimately embraced this challenge in 2003 and reformed the law so that asbestos victims could be compensated even if no payments had been made.

The third strand of cases was brought by asbestos victims who had been employed in sectors that had a pension system administered by a specialized agency. State employees (postal service, military police, and railroads) and maritime workers were among them. Once again in the wake of a robust stream of cases, some categories were able to push the argument further and gain enough political support that, at some point, they were granted eligibility. For instance, workers of the state-owned railroad firm raised due process and equal protection issues, which were eventually embraced by the Constitutional Court in 2002.35 The opinion extended to all state employees, who can now claim the pension multiplier. To this extent, in 2004, the Department of Labor issued guidelines that expressly explained the eligibility requirements for railroad workers.36 In similar ways, maritime workers (not shipyard workers but employees of companies offering public transportation services by boat) fought to remove certain barriers to compensation. In their case, a special statute of limitations applied: to claim a benefit or compensation for an occupational disease they were required to file a claim within five years from the day of retirement. If applied to the context of asbestos diseases, which have long latency and, in many cases, victims become aware of being sick only years after leaving employment, the statute of limitations resulted in ineligibility for compensation in mesothelioma or lung cancer cases. The inequity was litigated extensively until it reached the Constitutional Court. Once again, the Court found that the statute of limitations constituted an unreasonable restriction and indicated that the five-year limitation runs from the moment of diagnosis.

The last strand of litigation targeted the procedural requirement that workers’ compensation “certifies” asbestos exposure. Originally, victims were required to attach to their application an affidavit, signed by the employer, certifying both asbestos and payment of the additional premium. However, many employers refused to sign this document in fear that it could later be used in courts as evidence of exposure. Consequently, their applications were often rejected. Dismissals have been routinely challenged arguing that, even in the absence of the employer’s affidavit, exposure to asbestos could be demonstrated. Victims thus began submitting an employee’s generated record of exposure based on documentation, testimony, and other evidence. Local labor unions and victim support groups often helped victims by creating databases with data on exposure levels for each occupation and by contributing to the legal costs of challenging the workers’ compensation’s denial.37

These employee-generated records are currently considered to be sufficient to meet the procedural requirement. However, applications are often denied because of the workers’ compensation administration’s failure to certify exposure for certain industries and certain occupations. Once again maritime workers are a case in point. The workers’ compensation authority often dismissed requests for certification because the agency could not assess the amount of exposure of maritime workers on commercial boats. Lack of expertise on the part of the agency was often indicated as the reason for rejecting these claims. The problem with maritime workers was resolved by Parliament. In 2005, a law transferred the authority to certify asbestos exposure to the agency responsible for managing the pension system of maritime workers.38 This specialized agency is in a better position to assess which occupation involved exposure to asbestos. Unfortunately this reform has not made the process completely smooth. The agency processes requests at a very slow pace (a speedy turnover is often critical in asbestos cases due to the deadly nature of asbestos-induced cancer) and, in a discreet number of cases, rejects the request, in part because it experiences difficulties tracing down asbestos exposure that took place in boats that are no longer in use. Denials are often challenged in court. Some of these claims were even filed in the United States, with the assistance of US plaintiff lawyers who recruited clients in Italy, in the event victims had worked on an American vessel throughout their professional lives. The case for navy personnel is even harder because the authority to certify exposure has not been transferred to the specialized agency but it still with the workers’ compensation authority.

The social security administration does not make the statistics regarding this benefit available to the public. Thus it is only possible to retrieve partial data. The data that I gathered show that claiming rates have substantially grown since 1992. This was certainly to be expected given the rise of asbestos disease and the progressive relaxation of the eligibility requirements in the past 20 years. In 2003, Cazzola reported that, since 1999, the filing rate doubles every year (see Table 4.1).39

Table 4.1 Pension multiplier claims: trends (all claims) (1998-2003)

Furthermore, the percentage of applications filed by unimpaired claimants is growing. In 2003, in 40 percent of the cases, benefits were claimed by unimpaired applicants. In 1999, only 17 percent of claimants were unimpaired (see Table 4.2).40

Table 4.2 Pension multiplier claims: trends (unimpaired claims) (1999-2003)

Claims are not very successful if compared to the workers’ compensation system. So far, roughly 50 percent of the applications were processed and approved. Claims are routinely rejected. In 2003, the board had rejected roughly one third of the claims (69,159 out of 200,750).41 From these approximately 70,000 cases of denial, two thirds were determined by the lack of evidence that exposure to asbestos took place. Data from 2004 are consistent: increase in filings and only half of the claims led to a benefit award.42

Furthermore, cases are processed slowly. Roughly one quarter of the applications are still pending. As of 2009, 565,000 claims had been filed, 167,000 accepted, 300,000 rejected, and 185,000 were pending.43 In 2004, 254,703 had been filed, 87,302 rejected and 45,727 were pending (see Table 4.3).44 Once the request for benefits is rejected, the unsuccessful claimant may sue the governmental agency.

Table 4.3 Pension multiplier claims: status of applications as of June 2003

The system is funded by taxpayers. In the early years, the government allocated several million dollars each year. After the initial funding of roughly USD 3 million in 1992, funding has become more generous. In 1993, funding grew to USD 50 million and in 2004 additional USD 40 million were allocated.45 Over time, funding exceeded greatly the original estimates in great part because of the growing number of claims and increase in the value of pensions due to periodical adjustment of the cost of living.

In 1992, policymakers were advised that the projected number of applications would have been limited to 1,200! Consequently, the estimates indicated that USD 250 million were required to compensate all future claimants. Political opportunity may have led to such a grossly inaccurate prediction. Policymakers were trying to minimize the impact of banning asbestos on the employment rates. Asbestos victim advocates played with low numbers to contain fears that the scheme would be financially disastrous—yet knowing that the benefit would over time become the primary source of compensation for thousands of asbestos workers. By the year 2000, the financial coverage required was substantially higher than the amount originally allocated. In 2003, the government paid benefits to 51,400 former asbestos workers for an amount equal to 800 million dollars (roughly 15,500 dollars per beneficiary). In 2004, over USD 10 million were allocated annually for these payments,46 USD 15 million in 2008 and 2009, and USD 35 million in 2010.

In 2008, the government proposed converting the pension multiplier into the broader Asbestos Victims’ Fund (Fondo per le vittime dell’amianto), so that payments could be distributed to all asbestos victims including those who cannot recover from workers’ compensation.47 The Fund was established in 2011 but eligibility was limited to victims of occupational exposure who can recover from workers’ compensation. The pension multiplier survived.

Workers’ compensation

Workers’ compensation is the cornerstone of the compensation system for occupational disease. The system is compulsory, public, no-fault insurance, reinforced with fines levied against employers who fail to make periodical contributions to the system. The system is triadic: the government insures any worker exposed to an occupational risk for the physical and economic damages caused by workplace accidents or occupational diseases; the employer pays a premium; and the worker receives compensation. Workers’ compensation is also a no-fault system: the employer’s negligence—as well as the contributory negligence of the employee—is irrelevant. However, the employer’s fault is relevant with regard to the agency’s indemnification rights.48 In fact, if the employer is found criminally liable of manslaughter or negligent infliction of a bodily injury, the government can recoup the awards paid to a victim of an occupational disease. Workers’ compensation payments compensate lost wages, loss of working capacity, medical expenses, and loss of bodily integrity (bodily integrity is discussed later in the chapter). Since 2011, these victims also receive additional payments out of the Asbestos Victims’ Fund.

While the system originally recognized only prescribed diseases, in 1988 the system has become a mixed one. In this mixed system, victims of occupational exposure to asbestos dust who develop one of the asbestos diseases prescribed by the law must only prove exposure. Causation is presumed. Victims of nonprescribed diseases must prove both exposure to an industrial risk and causation between the risk and the disease. The transformation of workers’ compensation from a list system to a mixed one is the product of judicial intervention. In 1988, the Constitutional Court held that the ineligibility of nonprescribed disease offended due process.49 The opinion intended to push a system inherited from the Mussolini era towards modernization. The emergence of new forms of occupational risks, the increasing scientific knowledge of occupational diseases, and technological advances in medical diagnosis tools made prescription-based eligibility obsolete and unconstitutional. The Court reasoned that, if workers’ protection and compensation ought to be taken seriously, the system must be more flexible and contemplate the possibility of recovery for new occupational risks and diseases. However, the Court did not reject the achievements of the old system. Diseases that were prescribed in 1988 remained prescribed even after the reform, the reason being that their pre-1988 inclusion as occupational disease was assumed to be the result of legislative scrutiny of well-established scientific evidence.

Under the current regime, several asbestos diseases are prescribed. Asbestosis has been prescribed since 1943, mesothelioma and carcinoma of the lungs since 199450 and pleural thickening since 2008.51 To receive compensation for any of the prescribed diseases, asbestos victims must show that they meet two requirements: they must prove that they have been exposed to asbestos in the course of their employment and that they have been diagnosed with a prescribed asbestos disease. Because of the mixed nature of the system, asbestos victims can also seek compensation for an asbestos disease that is not prescribed. In this case, they victim must offer evidence of a causal link between occupational exposure and the disease. These claims are seldom successful.

To claim the benefit, victims must follow certain procedural steps, some of which are unique to Italy. First, the victim must give notice to the employer, who then files a claim with workers’ compensation and notifies local public safety authorities, which in turn give notice to the prosecutor of the jurisdiction where the disease occurred or the exposure took place. The law mandates that notice must be given to the agency within 15 days from the day when the first symptoms appear. However, the workers’ compensation administration routinely accepts late notices.52 However, late filing is taken into account in determining the amount of the compensation: each day of delay reduces the award. Notice was set as a requirement when workers’ compensation was first created during the Fascist era. It served a precise purpose: to ensure government involvement in the management of occupational diseases. This was part of Mussolini’s plan to establish “corporatism” as a common practice in labor relations so that workers’ opportunities for mobilization could be minimized.

Claims are adjudicated by an agency’s official, and denials can be challenged in administrative courts for abuse of discretion. If the claim is successful, the victim receives periodical payments in compensation for lost wages, loss of working capacity, medical expenses and any loss of bodily integrity that is unrelated to diminished working capacity.53 The number of claims submitted throughout the years is substantial: an estimated 20,000 claims were filed between 2001 and 2010.54 The asbestos claims filed were 2,294 in 2010 and 2,250 in 2011.55 Workers’ compensation claims for asbestos disease have risen over time. Published data suggest that claims for mesothelioma have increased between 5 and 10 percent since 2001. 2011 data show that the rate of workers’ compensation claims for an asbestos disease rose 7 percent between 2010 and 2011, 21 percent since 2005, and 53 percent since 2001.56 The coverage of mesothelioma under workers’ compensation did not immediately turn into victims claiming benefits. The effect on victims’ consciousness was not immediate, and was mediated by doctors and labor unions that made victims progressively aware of the existence of the remedy. Slowly, asbestos victims began claiming workers’ compensation benefits as they were becoming sick. The number of mesothelioma claims recognized in Italy is a case in point. After mesothelioma became listed, the number of claims increased at a regular but slow pace. There was no explosion of filings. Indeed, claims started growing only after the ban on asbestos and the forced retirement of the asbestos industry workforce after 1992.

Workers’ compensation claims based on a prescribed disease are often successful. Approximately 75 percent of claims based on a prescribed disease are accepted. Among all asbestos diseases, mesothelioma has the highest success rate. However, comparatively, asbestos diseases have a tougher time than non-asbestos diseases. In fact, on average, 90 percent of the claims for prescribed diseases are granted versus 75 percent of mesothelioma claims.57