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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 27/02/01)

Judgment Text

DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
This appeal concerns the respondent's decision of 19 January 2000 declining the appellant's claim for cover for personal injury arising from exposure to solvents in the workplace. That decision of the respondent was upheld on Review by Review Officer J R Orange in a comprehensive decision of 31 May 2000 following a hearing at Paihia on 25 May 2000. 
Background 
[2]
On 19 September 1998 the appellant (now aged 50 years) lodged a claim for cover and entitlement for personal injury allegedly arising from exposure to solvents when employed by AHI Plastics from 1978 to 1981 as a Quality Control Officer. 
[3]
In that application the appellant claimed entitlements of $26,000 representing “expenses directly arising from symptoms”. In his claimant questionnaire he referred to the symptoms as being “tachycardia, nausea, palpitations, anxiety and panic, muscle twitching, lethargy, decrease in exercise tolerance and bowel and stomach upsets”
[4]
The appellant's general practitioner, Dr Potts, felt unable to make a diagnosis one way or the other on the claimed personal injury arising from the alleged solvent exposure. Opinions were obtained by the respondent from Dr Fernando, a neuropsychologist, Dr Beasley, toxicologist, and Dr Cliff, a consultant psychiatrist. 
[5]
Following a consideration of those opinions by Dr Monigatti and the respondent's Corporate Medical Advisor, Dr Morris, the Corporation issued a decision on 19 January 2000 declining the said claim for cover for solvent induced neurotoxicity. 
[6]
Mr Jones sought the said Review and the Review Officer determined that Mr Jones had not discharged the onus on upon him to prove that the symptoms he complained of arose out of exposure to chemicals. The Review Officer concluded “there is simply insufficient evidence to link the symptoms to an exposure to chemicals during the period 1978-1981”
The Relevant Statutory Provisions 
[7]
There was passing reference to s 422 of the Accident Insurance Act 1998 dealing with claims for cover lodged under the Accident Rehabilitation and Compensation Insurance Act 1992, but not determined as at 1 July 1999; s 7 of the 1992 Act providing cover for personal injury caused by gradual process, disease, or infection, arising out of and in the course of employment, in terms of the criteria of that section; and to s 8 of that Act which creates cover for personal injury occurring in New Zealand after 1 July 1992 in certain circumstances including that the personal injury be caused by an accident to the claimant, or by gradual process, disease, or infection arising out of and in the course of employment in terms of s 7 or 11 of the Act, or is medical misadventure as defined in s 5 of that Act, or is a consequence of treatment for personal injury covered by that Act. 
A Summary of the Submissions for the Appellant 
[8]
In particular, the appellant referred in quite some detail to the various medical reports adduced to me, and to the history of his employment as a Quality Control Officer at AHI. There, he dealt with chemicals in the factory and their testing, and the treating of plastic, and there were usually fumes in the air from burning plastic; and to his health problems from them to date. 
[9]
The appellant submitted that he had no health problems prior to gaining employment and training at AHI Plastics and that he was then a particularly fit sportsman. A theme of the appellant is that he had “good psychological and physical health prior to working at AHI”, but that after commencing work there he developed severe and distressing symptoms over a period of time, and that there can be no issue that injurious chemicals were present in his workplace there. He emphasised his healthy lifestyle. In terms of his seeming to develop “classic neurotoxicity symptoms”, he submitted that it is a well known fact that “some unfortunate individuals are extremely sensitive to injurious chemicals and solvents”. He directed much criticism to his perception of attitudes of officers of the respondent. 
[10]
He submitted that the nature of his symptoms and their timing strongly suggest a causal link between them and his work environment. He referred to these symptoms having worsened over a period of time “consistent with length of exposure” and to the medical witnesses having failed to outline any alternative “scenario” which would account for those symptoms. He referred to the medical witnesses having made no allowance for the AHI plastics factory in 1979 to 1981 having been relatively small and poorly ventilated. He criticised the respondent for failing to investigate his claim fully and rejecting the advice of Drs Cliffe and Beasley, and for failing to obtain further opinion. He submitted that his claim should be accepted on the balance of probabilities, or that further specialist medical opinion should be obtained. 
[11]
The appellant referred to there being available testimony from his wife, and medical evidence gathered at material times 17 or so years ago. He said that, while at the AHI employment, he also developed allergies to other things such as types of food, and that the AHI workplace must have effected his immune system. He accepted that he did have a cardiac condition which had now been rectified. He submitted that the chemicals in his said workplace at AHI in the early 1980's aggravated his health condition at the time, which seemed to be cardiological. He said that when he left that employment there was a dramatic improvement after only a few weeks and there has been slow improvement ever since. From cessation of that AHI employment in 1981, until now, the appellant has often been on an unemployment benefit. He had heart surgery about 1½ years ago and his health has improved considerably since then. 
[12]
The appellant emphasised that, in the early 1980's, medical specialists attached little significance to the effect of a workplace environment on a claimant's health. He also referred to his control drug medication creating further health problems. He had seen no point in making two claims for the same injury, so he has been pursuing claims with the respondent on the basis of medical misadventure, rather than on toxicity. The medical misadventure claims seem to have been based on allegations that a medical practitioner made errors about the appellant, but litigation about that failed, and that is the same health condition which the claimant now relies upon regarding the toxicity claim. Naturally, the appellant rejected the suggestion for the respondent that the appellant has made so many claims under the Act that they cannot all be “honest” (to use his word, but I would prefer “valid”). Over the years in question, he seems to have had two motor accidents. 
Reasons for Decision 
[13]
The claim for cover was lodged in September 1998 so that it is to be considered under the ARCI Act 1992. That was the approach correctly adopted by the Review Officer in his decision. 
[14]
Essentially, the issue in this appeal is one of fact and, in particular, whether or not it is established that the appellant has suffered a personal injury caused or contributed to by exposure to solvents in his workplace during the period 1978 to 1981. The burden of proof lies upon the appellant and it is well settled that the claim must be proved on the balance of probabilities. 
[15]
The appellant has a long history of medical complaints and injuries which is summarised in the 20 July 1999 report of Dr Beasley. I understood that he has made 49 claims on the respondent over the years and most of these have been based on similar symptoms to those referred to in the present claim. However, many of the claims have been quite minor. Some appeared to have arisen in the course of sport (including soccer and diving), one from a bee-sting, others from falling off a motorbike. This history is documented from 1978. I noted, in addition, that the appellant suffered a significant nasal/sinus injury as a result of an assault in 1976. 
[16]
The symptoms which the appellant complains of in his present application for cover have been the subject of extensive medical investigation and opinion over the years. 
[17]
A 9 January 1985 letter from Dr Cumming, Psychiatrist, discloses that these symptoms, or similar symptoms, were investigated at least as early as 1981. 
[18]
A letter of 18 February 1986 from Dr Smith, Cardiologist, discloses that he was investigating the appellant's cardiac complaint by 1985, if not earlier, and there had been earlier involvement of Dr Gatman, also a cardiologist. A letter of 12 June 1985 from Dr Lowe, Physician, mentions ECG investigations as early as 24 July 1976, i.e. pre-dating Mr Jones' employment with AHI and suggesting, even then, a pre-existing symptomatic heart condition. 
[19]
At the Review Hearing, the appellant stated that he himself had always regarded the symptoms he was suffering as primarily due to exposure to chemicals but that he had not made a claim for cover because at that time, he says, such claims were difficult to prove or were “unfashionable” - (refer page 9 of transcript). 
[20]
Although the appellant claims that he was reluctant to file a claim that his condition was caused or aggravated by exposure to solvents, in 1992 he did, however, make a claim for cover for the condition he was suffering in 1981. This 1992 claim alleged that the prescription of the drug Imipramine in 1981 caused “postural hypertension/severe breathlessness, palpitations, extreme fatigue feeling with zombie anxiety, ongoing stress-related illness, anxiety and general ill heath” and that this was a medical misadventure. This claim was declined and unsuccessfully appealed to the High Court. 
[21]
The appellant has been examined by numerous medical specialists from at least 1981 and a diagnosis of personal injury arising from exposure to solvents had not been made. 
[22]
Following the appellant's application for cover in 1998 he was first examined by Dr Fernando, a neuropsychologist, who completed a neuropsychological assessment on 22 February 1999. Dr Fernando was unable to make a firm diagnosis of solvent neurotoxicity. The most that he was able to conclude was that the tests were “suggestive” of that diagnosis. However, irrespective of that highly tentative diagnosis, Dr Fernando was unable to establish a cause and effect relationship. 
[23]
The appellant was then examined by Dr Beasley, a toxicologist. Dr Beasley reported at length on 20 July 1999 and considered two broad possibilities, namely:- first, whether panic attacks in someone suffering an LGL syndrome (as does the appellant) could be caused or aggravated by chemical exposure; and second, whether the neurobehavioral abnormalities suggested by Dr Fernando were caused by exposure to solvents. 
[24]
The appellant was first diagnosed in 1983 as having the LGL syndrome. This is a cardiac condition and Dr Beasley says “the underlying abnormality is a structural one”, i.e. it is a constitutional condition. It would therefore seem that although the LGL syndrome was not diagnosed till 1983, it is a condition that the appellant would have always had. Dr Beasley said the structural abnormality would have been present at birth. The respondent does not dispute that. 
[25]
Having described the abnormal process which is the LGL syndrome, or is associated with the LGL syndrome, Dr Beasley wrote:- 
“I think it is unlikely that his chemical exposures could aggravate this process and thereby increase the chance of such complications from this anomalous pathway, with a consequent increased occurrence of circulatory symptoms. ”
[26]
This conclusion is based on the fact that a fairly significant dose/exposure to solvents would be required to give rise to adverse circulatory symptoms and that such does would give rise to other symptoms which the appellant had not experienced. Dr Beasley considered therefore that the doses/exposures were not sufficient to cause or aggravate cardiac symptoms. 
[27]
Dr Beasley further considered that the exposure to solvents did not cause or aggravate cardiac symptoms because these symptoms “persisted for years” after the appellant left his employment with AHI. Dr Beasley says: 
“This temporal pattern is not consistent with the known kinetics of toluene (or indeed ethanol or MEK). ”
[28]
For these two broad reasons then, Dr Beasley did not implicate exposure to solvents with the cardiac disorder or complications suffered by the appellant. In this regard he concluded: 
“Therefore I do not believe there is a causal link between the solvents and his episodes of cardiac rhythm disorder …  ”
[29]
As to the second broad consideration, Dr Beasley was not satisfied that a solvent neurotoxicity had been established. He noted that while the appellant had some symptoms which may be associated with neurotoxicity, he thought that those symptoms were more likely stress-related. He writes: 
“While Michael experienced some of these [symptoms] during this time with AHI, it is my opinion that these would have been largely stress-related, arising from the anxiety produced by his sudden illness attacks, which commenced during his time there. ”
[30]
By “illness attacks” Dr Beasley is referring to the medical condition, LGL syndrome, which causes amongst other things, markedly irregular heart rhythms. 
[31]
Overall, Dr Beasley concluded: 
“In summary, my opinion is that it is very unlikely that workplace chemical exposures were directly responsible for any of Mr Jones' major adverse health effects that he has experienced since 1978. ”
[32]
The appellant was then referred to Dr Cliff, a consultant psychiatrist, who examined the appellant and considered the opinions of Dr Fernando and Dr Beasley. On 2 September 1999, Dr Cliff wrote at page 6: 
“On the basis of chemical data available to me, as provided by Mr Jones and stated by Dr Beasley, it seems most unlikely that there would have been sufficient concentration of any of the organic chemicals to cause a dose-related, direct toxic effect. 
I note that Dr Fernando has, on the basis of neuropsychological testing, postulated that Mr Jones has suffered a type 2 organic solvent neurotoxicity, but it seems that this probably refers to high dosage, direct toxicological effect (although I have not seen the original reference quoted, viz Ogden (1996)). ”
[33]
That must mean that Dr Cliff is discounting the postulated solvent neurotoxicity because the dosage/exposure is unlikely to have been high enough. Dr Cliff continues: 
“It is however conceivable that Mr Jones suffered a type of allergic/hypersensitive/intolerance phenomenon to one or more of such organic chemicals so that there was an indirect effect on his physical and mental health. Strictly speaking, this is an issue within the province of the toxicologist rather than psychiatrist …  ”
[34]
As Mr Barnett put it, that which is “conceivable” is, of course, well short of being proven. In his very thorough review, Dr Beasley as the reporting toxicologist, does not suggest or diagnose an allergic or hypersensitive intolerance phenomenon. 
[35]
In conclusion, Dr Cliff wrote at page 7 of his 2 September 1999 report: 
“Summarising my foregoing comments, and a huge amount of documentary information at my disposal, I can say no more than that in my opinion, adverse effects from chronic solvent exposure during the period 1978 to 1981 cannot with certainty be ruled out. ”
[36]
Once again, that adverse consequence cannot with certainty be ruled out, falls well short of proof when the onus of proof is on the appellant (to the standard of the balance of probabilities). Dr Cliff also noted: 
“If Mr Jones is still suffering from the effects, then they are minimal and do not appear to materially impair his functioning and activities of daily living …  ”
[37]
Dr Monigatti reviewed the medical opinion and reported on 8 October 1999 stating at page 1: 
“Mr Jones was employed at AHI Plastics for 3 years. The OSH Solvent Panel has recently reviewed its data relating to 193 notified cases of solvent neurotoxicity between 1993 and 1997. The mean length of exposure for Type 2 cases was 19.8 years, ranging from 8 to 36 years. This is in line with overseas data which suggests that chronic symptoms do not develop much below 10 years of exposure, and upon which the WHO criteria for diagnosis of occupational solvent neurotoxicity are based. ”
And: 
“Dr Fernando's testing of Mr Jones revealed above average psychomotor and attentional skills and variable memory function. These results are inconclusive for cerebral impairment, and you may wish to obtain the raw data for interpretation by an independent authority. ”
Dr Monigatti concluded: 
“Mr interpretation of the evidence is that whatever the cause of his psychological problems, Mr Jones is most unlikely to be suffering from solvent, induced neurotoxicity. ”
[38]
The appellant must prove a personal injury (that is a physical injury) and that it was caused or contributed to by an exposure to solvents in the workplace between 1978 and 1981. This claim is made some 17 years after the event and is reliant upon the appellant's account of the claimed exposure. 
[39]
The constellation of symptoms now claimed have been the subject of extensive medical investigation by a range of specialists from as early as 1981 — including psychiatrists, cardiologists and a pharmacologist. Despite those early investigations, there does not seem to have a suggestion (other than from the appellant), let alone a diagnosis, of injury due to exposure to solvents. 
[40]
Since the said claim has been made by the appellant of an injury caused by exposure to solvents, current investigations have been completed by Drs Fernando, Beasley and Cliff, and these have been reviewed by Dr Monigatti, who is an occupational physician. Their opinions do not provide proof on the balance of probability that a personal injury has been caused by exposure to solvents. 
[41]
Dr Fernando thought the symptoms may be “suggestive” of solvent neurotoxicity but, even with this tentative diagnosis, he was reluctant to find a cause and effect relationship. Neither Drs Beasley nor Cliff support a diagnosis of solvent neurotoxicity, nor does Dr Monigatti. 
[42]
Dr Beasley is not satisfied that the exposure to chemicals aggravated the appellant's constitutional cardiac condition. He thinks that that would be “unlikely”. Further, the mere aggravation of constitutional or pre-existing medical condition is not of itself a personal injury. In so far as the appellant submitted that the said workplace caused a pre-existing health problem to flare up, even if proved, that would not create cover. Judge Beattie helpfully explains why at page 24 of Tran (Decision No.220/98) as follows:- 
“Where, as in this case, that claimant has pre-existing conditions I find as a matter of law that the fact that flare ups of those conditions may be triggered by workplace factors cannot bring that person within the provisions of section 7(1)(a) of the Act. It is a feature of this Act that personal injury caused by gradual process, disease or infection is not covered under the Act unless that personal injury is caused by a particular property or characteristic in the work place. Thus, there is a specific exception from the exclusion for occupational disease. However, it can only be that a property or characteristic of that occupation must be the cause, the creator of that disease, for cover to be contemplated. If one has the disease when one comes to the workplace, where that workplace or its environment may be inimical to that disease and the disease is triggered or flares up, that does not mean that the property or characteristic caused or contributed to the establishment of the disease. It must be the disease itself that is created in the work place, not simply a more acute manifestation of it. 
This state of affairs I find is different from that which might prevail under the principle sometimes described as the eggshell skull principle, that is ‘you must take your victim as you find him’. I find that the eggshell skull principle has no application where there is a pre-existing or underlying disease or infection which is exacerbated by work place conditions. The propensity to contract the disease is different from the exacerbation of a pre-existing condition of disease. ”
[43]
At page 6 in his report of 2 September 1999, Dr Cliff, having discounted neurotoxicity, makes the most tentative postulation of “a type of allergic/hypersensitivity/intolerance phenomenon to one or more of such organic chemicals so that there was an indirect effect on his physical and mental health”, but this is no more than a postulation and, as he says, is not within his domain as a psychiatrist but is within the province of the toxicologist. Dr Beasley is a toxicologist. 
[44]
All in all, the evidence falls well short of establishing the appellant's claim on the balance of probabilities. The appellant simply cannot prove his claim to the required standard. In other words, it simply is not possible to ascertain, on the balance of probabilities, whether the health problems outlined by the appellant were in any way caused from his workplace at AHI Plastics in the early 1980's. Accordingly, this appeal is hereby dismissed. 

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