Wilkins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 67 197 HELD AT NAPIER IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ALLAN ROSS WILKINS Appellant (Appeal No. DCA 214/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of April 1997 H M Thomson for appellant F M Patterson for respondent DECISION OF JUDGE D A ONGLEY The appellant suffers an asthmatic condition which was brought about through his employment as a welder. The presence of chromatic oxides and other airborne chemicals involved in the welding process are capable of causing bronchial hypersensitivity. The appellant has developed a chronic condition which prevents him from engaging in employment as a welder which was his only employment for a period of 19 years from the time he left school. The question on the appeal concerns the time of commencement of his incapacity. The Corporation determined that his incapacity commenced some three years after he ceased work. The result of that decision is to disqualify him for earnings related compensation under s 40 of the Accident Rehabilitation and Compensation Insurance Act 1992. - 2. The appellant had worked for about ten years with K C D Engineering. During that time he was diagnosed by his general practitioner as being asthmatic and he was treated with anti-asthmatic medication. He worked with stainless steel, with dirty and contaminated metals, often in confined spaces, and in particular he worked in a tannery where he was welding in a vat made of stainless steel. Dr R H Armstrong, chest physician at Napier Hospital, gave the opinion on 16 March 1993 that there was: ".. little doubt that [the appellant's] asthma is aggravated by his welding. Chromium oxides generated by welding stainless steel and chrome plated metals have been categorically linked with long term respiratory disease (particularly bronchial hyper-reactivity) so I think he should be highly successful in his claim. Provided he takes regular medication, the asthma is controllable but obviously further exposure should be avoided if at all possible." The appellant began to require more time off after welding jobs in order to recover his health. His employer therefore provided work overseeing welding with some clerical duties. On 30 July 1991 the appellant attended Dr R C Eastcott at Napier. Dr Eastcott regarded him to be incapable of work and referred him for a specialist opinion to Dr R H Armstrong, specialist respiratory physician at Hastings Hospital. In an affidavit provided to the Court on the hearing of the appeal, Dr Armstrong maintained that a diagnosis of work related asthma had not been made previously because the respiratory lab had only recently been established in Hawkes Bay, and a full-time specialist respiratory physician appointed. Although the appellant was referred in July 1991 he was not seen until November 1992. During that period of delay for medical examination, the appellant went on the unemployment benefit. He had in fact stopped working when K C D Engineering closed down on 22 July 1991. By the time he had obtained a specialist report he had been on the unemployment benefit for some time and his application for compensation cover was not made until 30 December 1992. There ensued a further phase during which the Corporation deferred acceptance of his claim, later accepting it in December 1993 but revoking that decision in March 1994 in order to have the claim reassessed. His claim was not finally accepted for cover until 2 May 1994, but on the basis that his deemed dates of injury was fixed at 1 November 1992, that is to say when the work related injury was first diagnosed. The Corporation adhered to that view. The decision was evidently influenced by the fact that the appellant ceased employment only because the business closed down and he then obtained an unemployment benefit rather than a sickness benefit. On review, the Review Officer took the same view. Under s 138 of the Accident Rehabilitation and Compensation Insurance Act 1992, a claimant is entitled to weekly compensation if he would have been entitled under s 59 of the Accident Compensation Act 1982. He is therefore required to show that under s 59 of the 1982 Act he suffered a loss of earning capacity while an earner, or within the extended period of employment which is contained in s 69(2) of the 1982 Act. 3 - Despite the lack of contemporaneous certificates, I think there is little doubt in this case that the appellant did suffer a loss of his earning capacity. Dr Eastcott's evidence of the appellant's condition at 31 July 1991 is really not in doubt. Dr Eastcott referred the appellant only to ascertain that the condition was work related. It was not a temporary condition. It had been diagnosed as early as 1985 at least. It was sufficiently serious at 31 July 1991 to prevent the appellant working as a welder and the medical material supports Mr Thomson's submission that the appellant's condition prevented him from working in a welding environment even as a supervisor because he would then be likely to be exposed to welding pollutants. The supervisory. job was evidently provided by his employer to avoid having to dispense with his services completely, but there is no evidence that other similar jobs would have been available to the appellant. It does not matter whether he was physically unable to work, or whether he was able to work only at the cost of further damage to his health. In either case it was not reasonable for him to continue working. His occupation is that of a welder; his earning capacity was in that field alone and it is clear that he suffered a loss of that earning capacity. The fact that the appellant had left work through the closure of the company's business makes no difference in this case. His incapacity was clearly a continuing one and it must logically have existed for an appreciable time before Dr Eastcott examined him on 31 July 1991. There can be no viable argument that his incapacity, whether it is measured under the 1982 Act or the 1992 Act, evolved in November 1992 or at some later date. I am satisfied that insufficient weight has been given to those factors. The appeal should be allowed. I find that the appellant's loss of earning capacity commenced before he ceased working in July 1991. The appeal is allowed and the appellant will have costs of $800. DATED at WELLINGTON this 28th day of April 1997 D A Ongley District Court Judge