The insured employee is entitled to the above:

• Even if the employer has not fulfilled his legal obligations or is not up to date with payment of insurance contributions
• Even if the employee is to blame for the accident (this does not apply in the event of fraud, concealment, or malicious aggravation of the consequences of the accident
• Without having to reach any agreement with the employer that permits him to avoid or reduce payment of the indemnity
• Without having to apply to welfare institutions offering free services
• Until the employee has completely recovered and after all care necessary for the purpose of complete recovery of work capacity has been duly administered, without any limitations in time

INAIL and biological damage

An historic decree issued by the Constitutional Court (n. 184, 30 June 1986) introduced the concept of biological damage as a paramount item of compensation payable to the injured party under civil liability laws.

After long debate, Legislative Decree n. 38 of 23 February 2000 introduced the concept of biological damage into the INAIL indemnity system, stressing its temporary character “pending a general definition of the concept itself and of the standards that will be used to determine compensation” (Article 13, Paragraph 1).

Under Article 13 of this Legislative Decree, the concept of biological damage is provisionally described as “damage to the person’s psychological and physical integrity, subject to medical and forensic examination”, as compared with the notions of “disablement” and “impairment” cited respectively in the sentence and in the proposal advanced by ISVAP (Istituto Superiore di Vigilanza sulle Assicurazioni Private, i.e. Institute for the Supervision of Private Insurance).

The accidents covered are the same as those specified in Article 2 of the Consolidated Text, the term “disablement” being substituted for “permanent incapacity for work”.

The Decree marks the introduction of several changes:

• The coverage offered no longer solely refers to the employee’s labour income capacity but now regards any permanent damage impairing his or her psychological and physical integrity (and therefore health), affecting all activities deemed as an expression of personality (whether regarding the social, emotional, cultural, sports, or religious field) and not only the professional sphere.
• The industrial and agricultural sectors are no longer subject to separate management and different standards for the evaluation of permanent disability.
• The permanent disability annuity is abolished and an indemnity system is established in its place.
• The employee does not receive any sort of compensation for injuries entailing a percentage degree of permanent disability of less than 6%, while injuries ranging between 6 and 15% or equal to at least 16% will entitle the insured party, respectively, to a capital indemnity covering the biological damage and to a regular allowance covering the same, plus an additional share covering the property implications of the injuries. The compensation will be proportional to the percentage degree of disability and to the age of the injured party. If the percentage of permanent disability is equal to 15% or less, the wages received before the accident will not be taken into account when calculating the compensation due; in other cases, the financial implications of the damage will be considered. This is because a higher percentage of disability is deemed to impair the injured party’s labour income capacity.
• A later assessment is set to take place six months after an interim compensation has been granted.

The above points suggest that while the new regulations establish a change in the indemnity status of employees who suffer a permanent disability, the situation has remained unchanged as regards workers entitled to total temporary disability benefits, which are paid out in accordance with the procedure laid down in the Consolidated Text.

Furthermore, employees subject to temporary biological disability and permanent slight disablement (biological damage less than 6%) will not be entitled to compensation.

Death is outside the scope of the new regulations. Since biological damage is caused by an infringement of the right to health, the injured party must be alive in order for him or her to receive the benefits due. The death of an insured worker is an infringement of the right to life, which is quite a different legal concept. This explains why the regulations governing survivors’ benefits have not been affected, since these benefits are deemed to be compensation for the financial loss suffered by the survivors following the worker’s fatal accident.

The new regulation came into effect on the date of the Decree’s publication in the Gazzetta Ufficiale (Official Journal of the Italian Republic), i.e. 25 July 2000.

The new system provides for three compensation procedures:

1. Disability chart

This illustrates all compensation cases due to injuries and/or illnesses, including dynamic-relational factors. The chart comprises 385 entries, arranged by number and in relation to the functional apparatus involved. It also contains three attachments regarding the assessment of damage to hearing, sight, and breathing capacity. The main change is the introduction of cosmetic damage as one of the factors listed in the chart entries.

2. Biological damage compensation chart

This presents the compensation standards applied in relation to the biological damage percentage (from 6 to 100%). The compensation due on the basis of the percentage score is calculated without reference to the employee’s working income but taking into account factors such as gravity of damage (increase factor), chronological age (in inverse proportion to the compensation granted), and sex (women tending to live longer than men).

3. Coefficient chart

This shows the standards used to establish the compensation percentage to be taken into account when calculating the amount of supplementary annuity intended to compensate for the financial loss caused by a disability of at least 16%.

The commonest mistake made by the enforcers of the new regulations is to confuse the indemnity system with the civil law provisions that govern compensation issues.

The biological damage compensation paid out by INAIL has a social function and aims to guarantee to the worker adequate means of living, as prescribed by Article 38 of the Italian Constitution.

In contrast, civil law provisions regarding biological damage aim to compensate biological damage according to its actual extent. This means that a civil action ends with the payment of an all-inclusive amount, thereby terminating the relationship between the parties, while the social indemnity system provides for an assessment of the injured party’s state of health over time. The economic compensation is revalued in the course of time and supplemented by services of various nature (medical care, prostheses, follow-up operations, social welfare).

INAIL casuistics

The following charts contain an analysis of data regarding burn accidents for which INAIL provided compensation in the period 1994-1999. It is important to bear in mind that the cases cited are those for which compensation was actually given: they do not represent the total number of accidents that occurred in the work environment (Tables I-IV).

The current scenario

The violent cause of a burn accident can be classified as being of electric, electromagnetic, or thermal origin.

The overall evaluation of burn-related injuries, from scarring to other burns sequelae, is inadequate in the light of what is known about thermal trauma.

With regard to scarring, the disability chart formulated in Article 13, Paragraph 2 of Ministerial Decree presents the following entries (Table V):

Apart from their frequent association with functional alterations, scar sequelae - by their very nature - represent one of the main problems posed by burn injuries.1 They constitute a pathology of their own secondary to the thermal trauma, affecting the patient’s functional and psychological recovery.

The clinical behaviour of burns sequelae is extremely variable. If the evolutionary phase and the time necessary for their stabilization are not accurately predicted, the clinical course presents prognostic problems. The assessment of their actual gravity is difficult and in some cases impossible.

The various clinical and biological categories that classify scars as hypertrophic, retracting, hypertrophic-retracting, and atrophic2 indicate the existence of different clinical statuses that are subject to evolution in time.

The behaviour of the various clinical types is extremely variable, often in the same patient.

The extent of the lesion is another very important factor. Scars covering a wide surface, even when not affecting the face and neck, are a manifestation of cutaneous damage that is much more significant than a simple bridle scar and causes far more serious problems. These include frequent blistering, with the subsequent destruction of the epithelium in wide areas, pyoderma, and the development in time of atrophies liable to develop into tumours.

Other important factors are the discomfort suffered by the patient due to modification in sweating, dysaesthesia, and the possible necessity of surgical repair of ruptures of cicatricial plates or bridle scars.3

Apart from scarring, other clinical elements need to be considered, e.g. the effects on unburned areas due to prolonged stay in bed and enforced immobility, or to contiguous scars and intra- and extra-articular ectopic calcification affecting the working of the joints.

The extreme uncertainty of prognosis is further increased by the varying nature of individual responses, which is the first and most important negative factor against correct and precise assessment of the damage, with the result that the assessment system we have considered is inadequate as regards actual reality. If strictly applied, it would lead to the assumption that the highest percentage degree of acceptable disability would be only 30%.

This score (equivalent to one-third of psychological and physical integrity) is not a fair assessment of the damage represented by the disfigurement of the face caused by third-degree or 80% BSA burns.

With regard to the burn illness and its consequences, it is hardly necessary here to remind the reader how this pathology affects the organs and body systems and how difficult it is to estimate its actual duration, even after clinical recovery.

Even though a disfigured face or damaged hands represent a very serious disability, burn victims cannot simply be regarded as “bearers of scars”: they are individuals suffering from alterations of their integument, limited joint functionality, organ deficiency, and social and affective repercussions.

For this reason, it is necessary in our opinion to proceed as follows:

1. We should immediately make use of the standards available charted for each disability category and create a separate chart (as has been done in the case of damage to hearing, sight, and respiratory function), evaluating the total functional damage suffered - from an absolute minimum (allowance) to total loss of function (100%).
2. On conclusion of the decree’s introductory stage, we should proceed to a reform of the charting system by introducing, alongside entries related to scarring, other separate entries permitting an assessment of burns sequelae and calculating the total disability percentage by means of a proportional formula based on single damage entries.

To this end, it might be useful to formulate a weighted estimate by analysing Italian and other national evaluation standards and by comparing international manuals and the current INAIL chart.

RESUME. Cette étude considère les données pour ce qui concerne les brûlures accidentelles compensées par INAIL (Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro - L’Institut National pour l’Assurance contre les Accidents Industriels). Cet Institut est l’organisme public en Italie qui s’occupe de l’assurance obligatoire et des maladies professionnelles dans l’industrie, le commerce et l’artisanat. Les données concernent la période 1994-2000. Il est important de souligner que les cas cités sont ceux pour lesquels la compensation a été effectivement payée - ils ne constituent pas le numéro total des accidents dans l’environnement industriel. Le nouveau règlement récemment entré en vigueur en Italie (2000) prévoit trois procédures de compensation. Celles-ci sont une carte des incapacités (385 articles, disposés par numéro et en rapport aux systèmes fonctionnels intéressés); une carte pour la compensation du dommage biologique (pour ce qui concerne les facteurs comme la gravité du dommage, l’âge chronologique et le sexe; et une carte des coefficients (pour compenser la perte économique causée par une invalidité d’au moins 16%). Pourtant, cette méthode pour l’évaluation globale des lésions dues aux brûlures, depuis les simples séquelles cicatricielles jusqu’aux complications de la maladie brûlure, est insuffisante si l’on considère les connaissances les plus récentes en matière des traumatismes thermiques. Il est possible de faire cette observation parce que l’application rigoureuse de la procédure signifierait que le degré le plus élevé d’invalidité acceptable pour la compensation serait seulement 30%. Ce pourcentage (l’équivalent d’un troisième de l’intégrité psychologique et physique) ne représente pas une juste évaluation du dommage constitué par un défigurement causé par des brûlures de troisième degré ou par des lésions dans 80% de la surface corporelle. Nous proposons une modification du système susmentionné des cartes avec l’introduction, à côté des évaluations des séquelles cicatricielles, d’autres facteurs séparés qui nous permettent d’évaluer les séquelles des brûlures et de calculer le pourcentage de l’invalidité définitive moyennant une formule proportionnelle basée sur des facteurs individuels de dommage. A cette fin, il pourrait être utile de formuler une évaluation pondérée à travers une analyse des standards italiens et d’autres pays et une comparaison entre les manuels internationaux et l’actuelle carte INAIL.

Bibliography

1. Muir I.F.K.: On the nature of keloid and hypertrophic scars. Brit. J. Plast. Surg., 43: 61-9, 1990.
2. Magliacani G., Stella M., Castagnoli C.: Classification of pathological burn scars. Ann. Burns and Fire Disasters, 12: 28-31, 1999.
3. Magliacani G., Stella M., Castagnoli C., Trombotto C., Ondei S., Calcagni M.: Post-burn pathological scar: Clinical aspects and therapeutic approach. Ann. Burns and Fire Disasters, 10: 105-9, 1997.