Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) - French Polynesia

With reference to its previous comments, the Committee notes that according to the Government's last report there has been no change concerning the schedule enumerating occupational diseases which is annexed to Order No. 826/CM of 6 August 1990 and has the same characteristics as the schedule prescribed in sections L.461-2 and R-461-3 of the Social Security Code of Metropolitan France. In these circumstances, the Committee can only once again express the hope that the necessary measures will be taken shortly to bring the national legislation into full conformity with the Convention on the following points: (a) the restrictive nature of the pathological manifestations listed under each of the diseases included in the schedules of the national legislation; (b) the absence from the those schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all compounds of phosphorous; and (c) the omission, from among trades likely to cause primary epitheliomatous cancer of the skin, of processes involving the handling of certain products mentioned by the Convention.

The Committee also asks the Government to refer to the observation it is addressing to France with regard to the application of Convention No. 42, as follows:

For many years the Committee has been drawing the Government's attention to the need to bring national legislation into full conformity with the Convention on the following points: (a) the restrictive nature of the pathological manifestations listed under each of the diseases included in the schedules of the national legislation; (b) the absence from those schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all compounds of phosphorous; and (c) the omission from among trades likely to cause primary epitheliomatous cancer of the skin of processes involving the handling of certain products mentioned by the Convention.

The Committee therefore expressed the hope in its previous observation that the establishment of a new supplementary system for the recognition of occupational diseases - which the Government had stated would make it possible to compensate a disease not included in a schedule but that is attributable on a case by case basis to certain specific working conditions - could lead to the adoption of the necessary measures to give effect to the Convention.

In its latest report, the Government notes the establishment, under the terms of section 7 of Act No. 93.121 of 27 January 1993 (amending section L.461-1 of the Social Security Code), of a supplementary system for the recognition of occupational diseases based on an individual examination of cases carried out by the regional committees for the recognition of occupational diseases established under Decree No. 93.683 of 27 March 1993. This system makes it possible for workers who suffer from a disease that is not included in a schedule or which does not meet the criteria contained in the schedule, to claim compensation in respect of occupational diseases provided that the occupational nature of the disease is demonstrated in an adversarial investigation of the claim by the regional committees for the recognition of occupational diseases. The procedure for recognition established for workers suffering from a disease that is not included in one of the schedules of occupational diseases is nevertheless only available in cases in which the disease has caused the death or permanent incapacity of at least 66.66 per cent under the terms of Decree No. 93.692 of 27 March 1993 (section R.461-8 of the Social Security Code).

The Committee notes this information with interest. It also notes the guide prepared by the Ministry of Labour for the regional committees for the recognition of occupational diseases. The Committee notes in particular that, as regards cases of serious diseases covered by paragraph 4 of section L.461-1 of the Social Security Code, although the existence of a direct and fundamental connection between the disease and the normal occupational activity of the victim is required for the recognition of the occupational origin of the disease, this connection does not necessarily exclude the effect of factors other than those of an occupational nature. In this latter case, it is nevertheless necessary for occupational factors to constitute the determinant and overwhelming causal factor in the emergence of the disease. The guide also contains certain methodological indications for the use of the committees concerning the diseases that are likely to arise most frequently in the context of the procedure referred to in paragraph 4 of section L.461-1.

The Committee recalls that the Convention, with its enumeration under each of the diseases included in its schedule of the occupations and industries liable to cause these diseases, is intended to relieve workers in the above occupations and industries of the obligation to provide proof that they have in fact been exposed to the risk of the disease in question, which may in certain cases be particularly difficult to demonstrate. In this context, the Committee notes that, according to the above guide prepared by the Ministry of Labour, the file that has to be submitted to the regional committee by the primary Fund must endeavour to describe the medical characteristics of the disease and the technical nature of the exposure, as well as providing any relevant information concerning the pathological case history of the victim and, where appropriate, the non-occupational pathogenic factors to which the victim may have been exposed. The attribution of the disease to risk factors has to follow the usual procedures. The analysis of the symptoms and the evaluation of the diagnosis are determinant factors in the attribution of the disease, as well as the examination of the chronological relationship between exposure and the onset of the disease, with particular importance being attached, where appropriate, to any delay in the appearance of symptoms and any reincidence following further exposure. The elements in the file must not be confined to the last identified employer. Finally, the investigation must be adversarial in its nature and include all the expert opinions that can contribute information on the disease from which the claimant suffers, on his or her working conditions and the circumstances surrounding the exposure to the alleged harmful agents. All of the proof produced must also be communicated to the parties concerned, who have full latitude to produce the opinions and documents which appear to them to be necessary.

In view of the objectives of the Convention as recalled above, the Committee would be grateful if the Government would provide detailed information on the effect given in practice to the new supplementary system for the recognition of occupational diseases, particularly with regard to the establishment of the direct and fundamental link between the disease with the normal occupational activity of the victim (as set out in paragraph 4 of section L.461-1 of the Social Security Code) and the furnishing of proof in the specific cases of the diseases included in the schedule attached to the Convention. It also requests the Government to provide information on the outcome of any procedures initiated before the regional committees for the recognition of occupational diseases where they relate to the diseases included in the above schedule to the Convention.

The Committee hopes that, as emphasized in the guide prepared for the regional committees, the implementation of the new procedure for the recognition of occupational diseases will also lead to the adoption of legislative measures to supplement the schedules contained in French legislation in accordance with the objectives of the Convention. Furthermore, with regard to workers suffering from partial permanent incapacity, the Committee considers that the determination of a minimum rate of 66.66 per cent considerably limits the scope of the new procedure established under paragraph 4 of section L.461-1 by excluding diseases which result in a high degree of invalidity and which are liable to prejudice the social and occupational situation of the victims in a particularly significant manner. The Committee hopes that the Government's next report will contain information on all further measures which have been adopted or are envisaged in this respect.