Presentation of an expected train accident can be an accident at work

LSG Halle: psychic trauma due to trapped car under barrier

If a Deutsche Bahn dispatcher pinches a car while lowering a railway barrier, the rail worker's shock can justify an insured accident at work. This applies even if the barrier incident has gone off lightly and the insured only expected a collision of the approaching train with the car, decided the State Social Court (LSG) Saxony-Anhalt in Halle in a recent decision of April 19, 2018 (Az. : L 6 U 150/14).

In the specific case, the plaintiff worked in a flatbed of Deutsche Bahn and had closed on 25 November 2011 for the passage of a train, the barrier at a railroad crossing. But then the railroad workers had suddenly seen from afar, like a car, despite the approaching train stuck under the barrier system.

The man suffered a shock because of the idea of ​​the expected accident, especially since he had experienced similar incidents in the past. That the car driver had already left his car, the railway employee had not been able to recognize. The approaching train finally drove narrowly and slowly past the car. There was no accident except for a few scratches.

After the near-miss accident, the employee's mental health problems such as depression, drive, concentration and memory disorders, as well as inner restlessness and blinking of the eyes were noticeable. An appraiser found an accidental adjustment disorder with anxiety and depressive disorder. As a result of mental illness, the man was classified by the Railway Medical Service on 2 October 2013 as permanently inoperable.

The responsible accident insurance carrier refused recognition as an accident at work. The entire danger situation existed only in the presentation of the dispatcher. The car was indeed trapped under the barrier, but had not stood on the tracks. The railway employee himself was also not in mortal danger, so that in view of the former serious threat situations a retraumatisierung not present. Moreover, the aggregation of various accident events in the past does not provide for accident insurance law.

But the LSG ruled that there was an accident at work. The plaintiff, as a dispatcher, was under the protection of accident insurance. The event happened in the course of his work. The event is also an "external impact on the body", as required by law.

It is crucial that an external event - in this case the car trapped under a barrier - causes health damage as the cause. After closing the barrier, the dispatcher would no longer have had any measures available to prevent the collision with the car, which had been foreseen as safe.

According to the case law of the Federal Social Court (BSG) shock reactions are included in the accident insurance. Here the plaintiff suffered a psychological trauma because of the expected accident. This is also causally connected with the insured activity. Because it had not been proven that the psychosomatic disorder suffered by each everyday event could also have been triggered.

The judgment was appealed to the BSG. There the case is pending under reference B 2 U 8/18 R.

Already on 29 November 2011, the BSG had decided that even a near miss accident can be an accident at work (Az .: B 2 U 10/11 R and B 2 U 23/10 R). Specifically, it was about two locomotive drivers who could prevent an accident with an emergency stop with a pedestrian or a car. Decisive for the recognition as an accident at work is that an externally occurring, suddenly occurring event leads to a health disorder in the insured person. fle / mwo / fle