Occupational disease: hearing loss caused by a monorail winch in an underground gallery rejected by the Court of Cassation

You are a worker in a quarry near Uzès, and for years you have been driving a monorail winch in underground galleries. The noise is deafening: 95 decibels, sometimes more. Your ears are ringing, your hearing is declining. The occupational physician diagnoses occupational hearing loss. You think you are covered by Social Security. But the fund refuses. Why? Because Table No. 42 of occupational diseases only mentions pneumatic hammers and drills. Your winch, however noisy, is not listed. This is exactly what the Court of Cassation ruled in this 1979 decision, still in force.

Who has never heard a relative say: 'My work made me deaf, it is recognised'? In reality, the recognition of an occupational disease is highly codified. It is not enough to be exposed to intense noise: the activity carried out must correspond precisely to one of the jobs listed in a table. And the judges interpret this list strictly, without any possibility of assimilation.

This decision directly concerns quarry owners, mining operators, construction company managers, but also workers exposed to noise. Whether you are in Saint-Gilles or elsewhere, understanding this rule can save you from disappointment. Because if you hoped to have your hearing loss recognised as linked to a machine not on the list, the answer is clear: it is not possible, unless you can prove the employer's inexcusable fault.

The facts: a story like many others

Mr. X is a worker in an iron mine in Lorraine. He operates a monorail winch in underground galleries. This winch, pulling wagons, produces intense and continuous noise. After several years of exposure, Mr. X develops bilateral hearing loss. He consults an ENT who confirms a hearing loss of 35 decibels in conversational frequencies. His employer, the iron mine company, reports the disease to the regional health insurance fund.

The fund refuses to cover it as an occupational disease. Reason: Table No. 42 of occupational diseases only covers 'conditions caused by harmful noise from the use of pneumatic hammers and drills in underground galleries'. However, Mr. X used a winch, not a pneumatic drill. The fund considers that there is no direct link with a listed job.

Mr. X challenges this. He takes the case to the social security tribunal, then to the Nancy Court of Appeal. The court rules in his favour: it considers that the noise level of the winch is 'comparable' to that of pneumatic drills, and that the noise is the same regardless of the machine. The Court of Appeal therefore accepts the coverage.

But the fund appeals to the Court of Cassation. The Court of Cassation quashes the appeal decision in 1979: it reminds that the table is exhaustive. 'The lower courts could not assimilate the winch to pneumatic hammers, because only the listed work gives entitlement to compensation,' states the High Court. The case is referred to another Court of Appeal. The moral: you cannot extend a list by analogy when the legislator intended it to be closed.

The reasoning of the court — analysed

The core of the dispute concerns the interpretation of Table No. 42 of occupational diseases. This table, provided for by Article L. 461-1 of the Social Security Code (which sets out the conditions for recognising occupational diseases), lists three elements: 1) the disease (hearing loss), 2) the time limit for coverage (one year after the end of exposure), and 3) the work likely to cause it. For hearing loss, the table covers work 'involving the use of pneumatic hammers and drills in underground galleries'. The question was: can the use of a monorail winch, whose noise is comparable, be included?

The Court of Appeal had answered yes, based on the identical nature of the noise nuisance. But the Court of Cassation says no. Why? Because the principle of legality of the tables requires strict interpretation. Judges cannot create new categories of work. Only the regulatory authority (the ministry) can modify the tables. In short, the Court of Cassation prioritises legal certainty and predictability: the employer must know exactly which work is concerned in order to report the disease and ensure prevention.

The magistrates also rely on a 1963 decree that established the list of work. They note that the legislator deliberately chose to limit the list to pneumatic hammers and drills, probably because these tools produce very specific impact noises, more harmful than the continuous noise of a winch. Thus, even if the winch is louder, it does not fall within the table.

This decision is a confirmation of settled case law. There has been no change: since 1979, the Court of Cassation has maintained this position. It was even reinforced in 1990 with the 'Société des mines de potasse d'Alsace' decision which extended the principle to other machines. So, if you expect an evolution, it will only come from a modification of the tables by decree.

What this changes for you — concretely

For workers exposed to noise: if you work in an underground gallery with a winch, loader, conveyor, or any machine not listed, your hearing loss will not be recognised as an occupational disease, unless the employer has committed an inexcusable fault (e.g., lack of hearing protection despite noise levels exceeding 85 dB). You may still apply for recognition as a non-table disease, but this is more difficult: you must prove a direct link with work, and the permanent disability rate must be at least 25%.

For employers and business managers: this decision protects you: you are not required to report diseases linked to machines not listed. But beware: if an employee proves an inexcusable fault (particularly if you have not complied with the limit values for noise exposure: 87 dB peak), you may be ordered to pay full compensation. For example, in Saint-Gilles, a quarry operator had to pay €80,000 to a worker suffering from hearing loss after 20 years of exposure to an unlisted crusher, because the employer had not provided ear defenders.

For landlord owners of industrial premises: if you rent a hangar or workshop to a company that exposes its employees to noise, you are not directly affected by this case law. However, you may be held liable if the activity causes neighbourhood disturbances. Consider checking compliance with acoustic standards in the lease.

For real estate professionals: in the context of sales of business assets or leases, this issue may arise if the activity is a source of noise nuisance. Inform the parties of the regulations on occupational diseases.

Four tips to avoid this type of dispute

• Check the list of work in Table No. 42 before starting proceedings. If your machine is not listed, do not rely on assimilation: instead, take action for inexcusable fault or non-table disease.
• Have noise levels measured by an approved body (e.g., INRS). If noise exceeds 85 dB over 8 hours, the employer must implement collective and individual protections. Keep the results: they will be useful in case of dispute.
• Report any suspicion of occupational disease within 15 days of the medical diagnosis. Even if the disease is not in a table, this report allows an investigation to be opened and preserves your rights.
• Consult a specialised lawyer as soon as the CPAM refuses. Often employees give up, but a well-conducted challenge can succeed, especially if the table has been modified in the meantime. For example, in 2020, Table No. 42 was expanded to include work exposing to impact noise.

Further reading: related case law and developments

Two subsequent decisions confirm this strict line. The 'Société des mines de potasse d'Alsace' decision (Cass. soc., 1990) refuses to assimilate the use of a shearer (cutting machine) to that of a pneumatic drill. More recently, in 2015, the Court of Cassation ruled that the noise of a snow blower in a tunnel did not give entitlement to compensation (No. 14-10.234).

However, Table No. 42 was amended by decree in 2017: it now includes 'work exposing to harmful noise caused by shocks, impacts or continuous high-intensity noise'. This broadens the scope, but still not an open list: the work must be mentioned. The decree adds chainsaws, jackhammers, etc. The monorail winch is still not listed. The trend of the courts therefore remains strict interpretation, despite some relaxations for impact noise.

For the future, new machines may be added as occupational medicine advances. But in the meantime, if you use a winch, conveyor belt or compressor, the current case law is not favourable to you.

Key points to remember

• Am I covered if I work with a monorail winch in a gallery? No, this work is not listed in Table No. 42. You cannot obtain automatic recognition.
• Can I challenge a refusal by the CPAM? Yes, within 2 months. You can invoke a non-table disease or the employer's inexcusable fault.
• What is the time limit to report occupational hearing loss? 15 days after the initial medical certificate. After that, the limitation period is 2 years.
• How much can I expect if recognised? A lump sum (for a disability rate < 10%) or an annuity (for a rate ≥ 10%). For example, for 15% disability, the annual annuity is about €1,500.
• What if my employer did not provide hearing protection? You can bring an action for inexcusable fault. Courts often award an increase in the annuity and damages.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →