INFORTUNISTICS. – It studies accidents from the legal-medical and social points of view. The term “infortunio” derives from the Latin in (= against) and fors (= fortunate chance). An ancient definition is that of the Frenchman Maestang (1869), according to whom an accident consists in «an attack on the human body arising from the sudden and violent action of an external cause». Today the most commonly used definition is that of Moriani, according to whom an accident is «an event in which a violent cause, capable of causing injury in the environment, brought into fortuitous contact with a human being, injures to some degree his body or psyche».
An accident is thus characterized by the following attributes: casualty and unpredictability, suddenness of the event, its being extraneous to the will of the person who suffers it, externality, and abnormality of the event.
Casualty and unpredictability of the harmful event are to be understood in the sense that, although the possibility of an accident may be foreseen in a general way, neither the moment at which it will occur nor the person who will suffer it is known.
An event is sudden and extraneous to the will of the person who suffers it when it develops not only unexpectedly but also in a short space of time, without the intervention of that will which, legally speaking, is termed, according to the case, either culpable or dolose.
Externality of the event is to be understood in the sense that the harm must be the consequence of an external injurious fact and not of purely physiological or pathological phenomena that unfold according to the common laws of physiology and pathology. There are accidents in which the externality of the cause bringing about the harm is not evident, as in the case of an epileptic who falls from a high ladder on which he is working; yet in such circumstances the external event is not constituted by the epilepsy but by the conditions in which the worker was working. Abnormality of the event, according to Biondi, means that the harmful occurrence must consist in something unusual in the work that interrupts its normal course. According to Diez, the abnormality of the accident with respect to the work is not an indispensable characteristic; what is abnormal is the fact that a given occurrence, even one normal in the work process, produces harm. Even carelessness, negligence, or recklessness constitute an abnormal phenomenon that intrudes into the course of the work.
Italian insurance laws, like the vast majority of foreign insurance laws, refrain from giving a definition of an accident with the aim of leaving the way open to broader applications of a law that was passed to protect the worker from the risks of work.
In Royal Decree no. 1765 of 17 August 1935 (provisions for compulsory insurance against accidents at work and occupational diseases), the object of the insurance is specified by article 2 in the following words: «the insurance covers all cases of accident occurring from a violent cause in the course of work, from which death or permanent disability to work, whether total or partial, or temporary total disability resulting in absence from work for more than three days has ensued».
The practical application of the law has given rise to discussions among accident experts regarding the interpretation to be given to the phrase «violent cause in the course of work».
As regards the phrase «violent cause», it is generally held that it must be understood not only as one that produces harm suddenly but also as any other event generating harm through the repetition of injurious actions within a short period, during a single work shift. Such is the case of acute heart dilation that arises after a series of inadequate efforts during a work shift. It is also admitted that it is not necessary for the harm to follow immediately; it is sufficient that the harmful event marks the beginning of morbid processes that develop subsequently, belatedly. Such may be the case of pulmonary tuberculosis that manifests itself later as a result of a severe chest trauma.
The violent cause may consist of mechanical factors, chemical, microbial, meteorological, or electrical agents, as well as physical strains, severe emotions, etc.
The “occasion of work” lies in the risk to which the work has given rise.
A distinction is made between generic risk and specific risk; the former weighs equally on the worker and on the generality of men; the latter falls on the worker performing a particular job; the former does not give title to compensation, the latter does. However, compensation is admitted in the case of aggravated generic risk, as when a worker, in the interest of the firm, is obliged to submit to the action of harmful factors from which, if he were free, he could withdraw. A typical example of aggravated generic risk may occur when a worker is struck by lightning while working in a field of tall trees on a bad-weather day, obliged to remain at his post by the firm’s indispensable needs.
These distinctions form the basis for the compensability or otherwise of accidents in itinere. Damage is not compensable when the accident occurs while the worker is travelling along ordinary roads to reach the place of work; in such a case, indeed, the worker is exposed to a generic risk, and the mere purpose of going to work is not sufficient to establish a causal link between work and harm. Damage is, however, compensable when it arises from the use of particularly risky means, such as cable-cars, funiculars, etc., which the worker must necessarily use to reach the place of work; or also when the worker is obliged to cross walkways or difficult paths traced along the edge of precipices, generally not used by others, or railway lines, etc.
In any case, compensability is not linked to the risk faced during the time strictly devoted to work and in the actual place of work; accidents that occur during short breaks from work and those that occur when the worker moves from one point to another to receive orders or to attend to the physiological needs of the organism are also indemnifiable.
With regard to the risk faced in the performance of tasks extraneous to those proper to the worker, non-compensability is admitted when the work is performed for amusement or for the worker’s own benefit or that of third parties; on the other hand, damage arising from the rescue of fellow workers or superiors is compensable, as is damage caused by the criminal actions of third parties (assaults, brawls, etc.), provided that the accident was caused by reasons directly or indirectly connected with the work.
On the basis of the above norms, anthrax is recognized as a compensable accident, whereas malarial infection is not, because whoever contracts malaria in a given locality is the victim of a generic risk common to all the inhabitants of that region; however, in the case of death from pernicious malaria, article 329 of the Unified Text of Health Laws provides for the payment of a grant. Similarly, cold pneumonia, tetanus, rabies, and tuberculosis inoculated through wounds (attendants in anatomical halls, butchers, etc.) are indemnifiable.
Occupational diseases are distinguished from accidents; they derive from inevitable conditions of insalubrity inherent in certain types of work. In occupational diseases there is no such casualty or unpredictability as are attributed to accidents.
In Italy, insurance against accidents at work and occupational diseases was made compulsory by Royal Decree no. 1765 of 17 August 1935. Article 7 stipulates that the cost of the insurance must be borne exclusively by the employer, and Article 11 establishes that notice of an accident must be given within two days of the employer becoming aware of it, accompanied by a medical certificate. Article 21 then lists the benefits provided by the insurance, which are as follows: 1) a daily allowance for temporary disability; 2) a pension for permanent disability; 3) a pension to survivors in the event of death; 4) medical and surgical care; 5) the provision of prosthetic appliances. Article 39 contains the rules to be followed in determining the wage on the basis of which the amount of the pension payable to the worker or survivors is calculated. Pursuant to Article 25, the amount of the disability pension may be reviewed at the request of the pension holder or the insurance institute in the event of a decrease or increase in working capacity, and pursuant to Articles 32 and 35, the injured worker may not, without valid reason, refuse to undergo the medical and surgical treatments, including surgical procedures, which the insurance institute deems necessary, even after the pension has been established. The insurance is administered by the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro, with the exceptions noted in Article 48. There are provisions governing the settlement of disputes over the right to benefits and their assessment (Article 51 et seq.). For the assessment of the percentage degree of disability, there is a table listing the most significant anatomical and functional impairments that entitle a person to a pension. Among the measures for the benefit of workers who have suffered harm at work, mention should be made of the Istituto Nazionale per l'Assistenza ai Grandi Invalidi del Lavoro, established by Law no. 1416 of 19 July 1929.
Finally, worthy of mention are the Ente Nazionale di Propaganda per la Prevenzione Infortuni, a public-law body legally recognized by Royal Decree no. 2176 of 25 October 1938, and the Istituti di Patronato e di Assistenza Sociale, reorganized by Decree no. 804 of 29 July 1947.
It is evident that more than half of accident cases are attributable to human factors; scholars’ efforts therefore aim to highlight, through job analysis and the development of psychophysiological occupational profiles, the aptitudes most engaged according to the work, in order to achieve effective vocational guidance and, if possible, effective selection.