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Accident Compensation Cases

Copson v Accident Compensation Corporation (DC, 15/04/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the appellant has an entitlement to weekly compensation. This appeal arises from the decision of the respondent on 16 May 2001 determining that the appellant was ineligible for weekly compensation on the grounds that he was not an earner immediately before the commencement of his incapacity. 
Background 
The appellant was at all material times a qualified marine engineer and fitter and turner. 
From December 1991 until 5 July 2000 the appellant was employed as a fitter and turner by Nalder and Biddle (Nelson) Limited, Marine Engineers. 
On 5 July 2000 the appellant was advised by his employer that he was being made redundant on the grounds that the company was suffering a downturn in work. 
The appellant ceased his employment at his employer's direction on 5 July 2000. 
The appellant subsequently commenced proceedings for Personal Grievance under the Employment Contracts Act contending that he had been improperly made redundant. 
The appellant had been under the treatment of Dr P J Sears, Dermatologist, since October 1997 in relation to eczema, particularly on his hands and arms, and which Dr Sears identified as being aggravated by the appellant's contact with various chemicals, greases, etc., at his workplace. 
On 26 May 2000 the appellant had been issued with a formal warning by his employer for poor work attendance. It was the appellant's explanation that his poor work attendance had been brought about by flare-ups of his dermatitis. 
On 21 August 2000 the appellant lodged a claim for cover with the respondent claiming eczema as a consequence of long-term exposure to a toxic atmosphere and substances at his workplace. 
The injury was variously described as contact dermatitis and atopic eczema. 
The appellant's GP, Dr Knight, certified the appellant as being unfit for work as from 6 July 2000 for a period of two months from that date. Dr Knight's signature is dated 21 August 2000. 
The respondent accepted the appellant's claim for cover for work related/induced dermatitis in February 2001. 
The appellant applied for weekly compensation as from 6 July 2000. By decision letter dated 16 May 2001 the respondent declined the appellant's request. The respondent gave as its reasons for declining as follows: 
“You have explained that you were working at Nalder and Biddle up to finishing work with them on 5/7/00 when you were made redundant. The redundancy letter of 5/7/00 states that your redundancy has arisen because of a downturn in business opportunities and you have stated that you feel the reason for your redundancy was due to having time off work due to your skin condition. 
After having a skin condition for a number of years, you lodged your ACC claim on 21/8/00 (after having been made redundant) stating an accident date of 6/7/00 (around the time of your redundancy) and an incapacity date of 6/7/00. And the first time you were certified off work for occupational dermatitis was when you saw Dr Knight on 21/8/00. 
In considering weekly compensation for a person with an accepted accident claim, we need to be satisfied that the incapacity from work is clearly because of the accident and that the incapacity is verified from the date seen by the GP for the purposes of the injury. You saw Dr Knight and lodged your claim approximately 1.5 months after your redundancy took effect, for which Nalder and Biddle do not accept was due to your condition but due to economic factors in the industry. As such ACC does not accept your being off work is due to your occupational dermatitis and ACC is unable to pay weekly compensation for this claim. ”
The appellant sought a review of that decision and for the purposes of that review a report from Dr Sears, Dermatologist, was introduced, which informed that the appellant had been under treatment for eczema since October 1997. 
In a decision dated 14 January 2002 the Reviewer found that the appellant had provided certification of incapacity from 21 August 2000 and that he was not an earner at that date. He went on to state 
“Although it is clear that the injury existed at the date of redundancy and even could be accepted that Mr Copson was having some difficulty with his employment there is no evidence that supports that he was incapacitated at that time. ”
The respondent's decision to decline weekly compensation was therefore confirmed. 
For the purposes of the appeal to this Court a medical report from Dr G C Hancock, Specialist Occupational Physician, has been introduced by the appellant's advocate. 
It should be noted that the appellant's Personal Grievance claim against his employer was settled with the appellant receiving a compensatory sum of $4,500.00. That settlement was obtained by way of mediation through the offices of the Employment Tribunal. 
The Medical Evidence 
[2]
As earlier noted, the appellant's GP, Dr Knight, certified the appellant as being unfit for work for a period of two months commencing on 6 July 2000. The reason given was the fact of the appellant's contact dermatitis and that he was under the treatment of a dermatologist. 
[3]
Dr Peter Sears, Dermatologist, advised the respondent of the circumstances of his treatment of the appellant in a letter to it on 10 August 2001. His letter stated as follows: 
“I saw him first on 9.10.97 in regard to his eczema at which stage I regarded it as primarily atopic in nature. However the reason for his attendance at that stage was clearly because his eczema had started to get worse. I made a comment at the time in my letter to his GP that I suspected that areas, particularly on his hands and arms, had been aggravated by a work contact, allergic or irritant situation. His eczema steadily deteriorated from that time and when I saw him next on 31.7.98 it was very severe and generalised and although I considered patch testing, this was not possible because of the generalised nature of his eczema and this situation persisted with minor fluctuations until he discontinued his work on 6.7.00. When I saw him on 14.8.00 he was definitely a lot better and by 15.11.00 much of his trunk was clear. On 12.2.01 he was ‘continuing to get better by the week’ although he still had some degree of fluctuation in the condition. At that stage I noted that he had lost his generalised erythroderma and had relatively minor subsiding eczema areas of his arms and upper back. He did ring on 5.6.01 for a further prescription of his eczema treatment which I prescribed but I did not speak with him or see him at that stage so I am unable to comment on the state of his skin. Presuming that he has continued to gradually improve further, I think it would be reasonable to regard the work aggravation as having now cleared and his eczema to be primarily atopic. Conversely I feel it would be reasonable to regard the work aggravation as having commenced prior to my first consultation with him in October 1997. I trust this helps with your decisions. ”
[4]
The respondent obtained a report from Dr Lissa Judd, Occupational Medicine Specialist and Dermatologist. For the purposes of her report Dr Judd had access to the notes of the appellant's GP and also to those of Dr Sears. Dr Judd advised inter alia as follows: 
“Currently there is some mild atopic eczema. The severe eczema for which Mark consulted Dr Sears has resolved since he stopped work. This would tend to suggest that some sort of occupational factor was at least contributory to his dermatitis (eczema). However, I am unable to be specific as to whether this was an occupational contact allergic dermatitis, contact irritant dermatitis or work aggravated atopic dermatitis, or some combination of these. An allergic dermatitis would usually principally affect the site of exposure, but may sometimes affect distant sites or even generalise. While oils may contain allergens, I cannot verify that the oils he was exposed to did, seeing as I did not have any material safety data sheets, and it would be impractical for him to acquire these seeing as he stopped work some months ago. Irritant dermatitis would normally only affect the sites of exposure, and it would be surprising for example for the face to be involved. 
Given that his eczema remained severe (frequently requiring systemic steroids for control) for some years in this occupation, and then improved dramatically within a few weeks of ceasing work, and this improvement has been long lasting over a period of several months, I think one can confidently conclude that workplace factors were significant in severely exacerbating his eczema. ”
Dr Judd went on to state that it was the case that workplace factors had exacerbated his eczema and that it was her suggestion that if the appellant was to be re-employed then it needed to be in employment which did not involve handling oils and greases and that he be patch tested in relation to any prospective employer's chemicals. 
[5]
It was on the basis of Dr Judd's report that the respondent granted cover to the appellant for his contact dermatitis/eczema. 
[6]
The Court has been provided with a report from Dr G C Hancock, Specialist Occupational physician, dated 23 February 2003. Dr Hancock did not examine the appellant but did have the medical reports from Dr Sears and Dr Judd. Dr Hancock made the following observations: 
Occupational Contact Dermatitis: This is a difficult condition to manage. In my experience, it can only be effectively managed if the patient is able to completely stop doing the tasks that involve contact with the causative agents. ‘Selective avoidance’ and the use of barrier cream, gloves, etcetera whilst continuing in the same work usually proves to be singularly ineffective. 
Where the patient works for a large employer and an ‘internal transfer’ to an entirely different work process and area is possible, the individual is generally able, with the employer's co-operation, to continue in employment. With a small employer, which I understand was the case with Mr Copson, where there is usually only one work area and process, it is seldom possible for the individual to stay in that work if the dermatitis is to be controlled. 
The issue with Mr Copson is whether he can reasonably be considered to have been incapacitated for his work at the time of his ‘redundancy’ on 5.7.2000. 
Capacity for Work: The fact that an individual ‘turns up’ for work and performs some or even all the tasks associated with a particular job does not necessarily imply ‘fitness’ to carry out that work. 
Causes of unfitness can be considered under the following categories. 
Physical inability to do some or all of the work. — While Mr Copson carried on doing his regular work until 5.7.2- his fitness to do this on a constant and regular basis was impaired as is evident from his poor attendance record resulting from his skin condition. He had, in fact, received a warning from his employers about his level of sickness absence. 
Unfitness for work because of safety issues for self and/or others. — A poorly controlled eplileptic would be quite properly considered unfit to work as a driver because of safety considerations, even though he or she may be physically able to do the work and may possibly drive for several years without experiencing a fit whilst at the wheel. 
Physical ability to do some or all of the work but carrying out the work may worsen a condition or injury.- An example of this would be an asthmatic working in an environment of respiratory irritants. The severity of the asthma may not prevent the person doing the work but the risks of the work environment significantly worsening the condition would reasonably render that individual ‘unfit’ for such work. A similar case applies with Mr Copson; while he continued to work until 5.7.2000, he was not medically fit to be carrying out such work as it was clearly leading to a progressive worsening of his skin condition. Dr Judd in her letter of 1.2.01 suggested that he should avoid work that involved handling oils and greases. Causes of incapacity in this category are frequently associated with gradual process injuries. In such cases, because the condition develops in a gradual manner, the unfitness or incapacity develops gradually also so that, in contrast to ‘single event’ physical injuries, the date an individual finally stops working, can be somewhat arbitrary and is, at times, determined by other factors. Mr Copson's employer's decision to make him redundant on 5.7.2000 is an example of this. 
Physical ability to do the work but doing so would possibly cause health-related risks to others; — examples would be a food worker with gastroenteritis or a surgeon who was a Hepatitis B carrier. This scenario is not relevant in Mr Copson's case. 
Conclusion: - Just because Mr Copson continued to work until 5.7.2000 and the reason for his stopping work was ‘redundancy’ imposed on him by his employer, it can reasonably be argued that he was unfit and incapacitated from that work for a considerable time before that date by virtue of the fact that his work had caused and was significantly worsening his skin condition. In view of this, it is my opinion that it is entirely reasonable to consider him incapacitated for his work as of 5.7.2000 as a direct result of his covered condition. ”
Relevant Statutory Provisions 
Section 82 of the Accident Insurance Act 1998 states — 
“Section 82 Entitlement to weekly compensation depends on insured's incapacity for employment and capacity for work — 
(1)
An insured who has cover and who lodges a claim for weekly compensation — 
(a)
Is entitled to receive it for each employment for which the insurer determines the insured to be incapacitated within the meaning of s 85(2)-(5), if the insured is eligible under Clause 7 of Schedule 1 for weekly compensation. 
Section 85 Insurer to determine the incapacity of the insured who, at time of incapacity was earning— 
(1)
The insurer must determine under this section the incapacity of an insured who was an earner at the time he or she suffered the personal injury. 
(2)
The question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in every part of every employment in which he or she was employed when he or she suffered the personal injury. 
(3)
If the answer under subsection (2) is that the insured is unable to engage in every part of every such employment, the insured is incapacitated for every such employment. 
(4)
If the answer under subsection (2) is that the insured is unable to engage in one or more of the employments, the insured is incapacitated for every employment he or she is unable to engage in. 
(5)
If the answer under subsection (2) is that the insured is unable to engage in a part of an employment, the insured is incapacitated for that employment. 
Clause 7 of Schedule 1 states — 
Insurer to pay weekly compensation to insured entitled to it under 
Section 82(1)(a) 
(1)
The insurer is liable to pay weekly compensation for loss of earnings to an insured who — 
(a)
Has an incapacity resulting from a personal injury for which he or she has cover and 
(b)
Was an earner immediately before his or her incapacity commenced. ”
Submissions 
[7]
It was the appellant's contention that he was incapacitated as from the date he ceased his employment with Nalder and Biddle (Nelson) Limited and that the evidence of Dr Knight, Dr Sears, and Dr Hancock confirmed that fact. The appellant further contended that his absenteeism, which brought about his unjustified redundancy, was evidence of the fact that his employment was aggravating his dermatitis and that his employment with Nalder and Biddle could not continue because of his allergy to the environment which existed there. 
[8]
Miss Keane, counsel for the respondent, submitted that there was no evidence that the appellant was incapacitated for work by his injury, but rather his cessation of employment was brought about by him being made redundant. Counsel noted that through his then solicitors he was asserting his willingness to continue work when bringing his claim for personal grievance. Counsel submitted that the appellant could not discharge the onus on him that his personal injury had caused him to cease work. 
Decision 
[9]
For the appellant to be entitled to weekly compensation pursuant to the provisions of the Accident Insurance Act 1998 he must establish the fact of incapacity within the meaning of s 85(2), and at the time that state of affairs commenced he was an earner, that is, he was engaged in employment. 
[10]
From the circumstances of the appellant's employment and its cessation, I am satisfied that the employer, rather clumsily, sought to use the excuse of redundancy to terminate the appellant's employment because he was having too much absenteeism. Further, and from the appellant's perspective, that absenteeism was being caused by the flare-ups of his eczema and dermatitis and that the cause of those flare-ups was the environment at the workplace. 
[11]
It is clear from the evidence of Dr Sears that the appellant was suffering from occupational based dermatitis/eczema from as far back as 1997 and that this was getting progressively worse and that it was associated with solvents, greases, etc., at his place of employment. 
[12]
I am further satisfied that the appellant's place of employment was one whereby he was inevitably going to continue to be exposed to contact with those allergic substances which would fuel and aggravate his eczema/dermatitis and that the only way his condition could be controlled or cured was by removing himself from such a work environment. 
[13]
I am satisfied that the appellant's normal work tasks required him to be in contact with those various chemicals, etc., which were inimical to his good health, and therefore I find that in terms of s 85(2) of the Act he was not able to engage in every part of his employment without causing further injury or aggravation and therefore in terms of the Act he was incapacitated. 
[14]
I find that the mere fact that this state of affairs coincides with the redundancy is purely coincidental. As a matter of fact and law the appellant was incapacitated in that he could not continue working at Nadler and Biddle because of the problem of his dermatitis and his allergy. That situation is in fact confirmed by Dr Knight's certificate on the claim form whereby he certified the appellant as being unable to work as from 6 July 2000. 
[15]
It seems that Dr Knight's certificate on the claim form has been overlooked, or at least misinterpreted, by the Reviewer who seemed to take it that Dr Knight was only certifying the appellant as being incapacitated as from 21 August 2000, being the date of Dr Knight's signature on the claim form. The body of the claim form clearly indicates that his incapacity was from 6 July 2000. 
[16]
The particular nature of this appellant's incapacity is one which I find can clearly be established retrospectively as it were, because Dr Knight was treating the appellant at the material time and he was also under the treatment of Dr Sears. His condition was well-known to both of those doctors and the fact of the matter is that the appellant had a condition which had been identified as work-based from as far back as October 1997. 
[17]
The circumstances of this appellant's injury are quite different from that say of a person who complains of a bad back and seeks to have a medical certification of incapacity acting retrospectively for it. Occupational dermatitis is an entirely different type of injury to that which would cause a question mark to be raised as to whether the specialist could effectively give retrospective certification of incapacity. 
[18]
I am satisfied on the evidence of Dr Hancock, Dr Sears and Dr Judd, corroborating as it does the certification made by Dr Knight of the appellant's incapacity as from 6 July 2000, that the appellant was so incapacitated as a matter of fact and law by that date. It therefore follows that the appellant was an earner immediately before his incapacity and therefore he does qualify for weekly compensation. He has an entitlement to same accordingly. 
[19]
The effect of my decision therefore is that the respondent's decision declining the appellant's application for weekly compensation is quashed and a decision granting the appellant an entitlement to weekly compensation is substituted therefore. The quantum of such weekly compensation will need to be the subject of a fresh decision from the respondent. 
[20]
The appellant is entitled to costs which I fix at $850.00 together with the sum of $337.50 for the cost of Dr Hancock's report. 

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