Houlbrooke v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 151/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN CATHERINE ANNE HOULBROOKE (AI 401/02 and 402/02) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at Auckland on 10 June 2003 APPEARANCES Mr N Ormsby, counsel for appellant. Miss F Becroft, counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] There are two separate and distinct issues for determination in this appeal: Firstly, the respondent’s decision of 14 August 2001 to decline cover for the appellant for a work related claim for chronic inflammation of the nasal passages said to have been caused by her exposure to Glutaraldehyde arising from her employment as a radiographer with Hamilton Radiology Limited. [2] Secondly, the respondent’s decision of 25 January 2002 whereby it determined that the appellant was not entitled to weekly compensation for her accepted work related gradual process injury of neurotoxicity on the basis that such injury had not caused incapacity. Claim for cover for chronic inflammation of nasal passages (sinusitis) [3] The background facts relevant to the determination of this issue may be stated as follows: 401.402.02 (pg) 2 • The appellant was at the material time employed as a radiographer by Hamilton Radiology Limited. • In May 2001 the appellant lodged a claim for cover for sinusitis claimed to have been caused by her exposure to the chemical Glutaraldehyde in the course of her employment. • The appellant had been employed by Hamilton Radiology Limited since June 1986. She worked three days a week and in the course of her work she could be exposed to the Glutaraldehyde fumes during the development process for between one and one-and-a-half hours per day. • The respondent sought expert opinion on the appellant’s claim and reports were received from Dr E W Dryson, Occupational Medicine Specialist, Dr J R Monigatti, Occupational Medicine Specialist, Dr Andrew Currie, Specialist in ENT and Otology, and Dr M Giles, Otolaryngologist. • It was following consideration of those specialist reports that the respondent made its decision on 14 August 2001. The respondent declined cover, stating that the medical evidence indicated that the appellant had an underlying allergic component to her condition which was not attributable to work factors and the claim did not therefore come within the statutory requirements. • The appellant sought a review of that decision and for the purposes of that review further specialist evidence was introduced from Dr Bill Glass, Occupational Medicine Specialist, and further reports were also obtained from Dr Currie, Dr Giles and Dr Monigatti. • In his decision dated 30 July 2002, the Reviewer found that the appellant had not established to the necessary degree that there was a causative connection between the chronic sinusitis and her exposure to the chemical but rather that her condition was a consequence of an underlying allergic condition. • For the purposes of the appeal to this Court the appellant has introduced further evidence being a report from Dr Chris Walls, Occupational Medicine Specialist and a report from Dr Giles. The respondent has introduced a further report from Dr Monigatti. 401.402.02 (pg) 3 [4] The controversy in this case is whether the appellant’s sinusitis is to be classified as irritant sinusitis, that is there has been local irritation of the mucosa by a provocative substance, in this case Glutaraldehyde, or whether it is allergic sinusitis where the appellant has an allergy to the particular antigen or allergen which causes the body’s immune system to react. In the former no immunological response is involved, in the latter there is an immunological response which occurs on exposure to the allergy. Closely associated with the latter situation of allergic sinusitis is atopic sinusitis and it too has an immunological basis. The difference is that atopic is a genetic pre- disposition to particular antigens. [5] It is the case that neither of the latter two situations, namely allergic sinusitis or atopic sinusitis would have cover under the Act as the element of causation is absent. [6] The various specialists to whom I have referred have given consideration to which particular type of condition has been created arising from the appellant’s workplace and her exposure to the chemical known as Glutaraldehyde. It seems to be accepted by all experts that exposure to the chemical Glutaraldehyde can cause irritation of the skin, eyes and nose and create the chronic sinusitis which this appellant suffered. [7] I now propose to set out what each of the specialists has said in their various reports and which forms the majority of the evidence in this appeal. 1. Dr J R Monigatti – Occupational Physician • Exposure to Glutaraldehyde, sulphur dioxide and acetic acid vapour, being the radiotherapy chemicals identified, can cause irritation of the skin, eyes and nose. • The irritant effects are dose related and short-term and abate within hours or days of ceasing contact. • It is reasonable to expect that the appellant suffered upper respiratory tract irritation including acute sinusitis at the time she was working with Glutaraldehyde. • There is no physiological reason why an irritant sinusitis should persist long after cessation of exposure. • The appellant has chronic sinusitis, neurotoxicity and possibly multiple chemical sensitivities. 401.402.02 (pg) 4 • There is scientific evidence of cause and effect associated between Glutaraldehyde exposure and both acute skin/mucous membrane irritation and chronic neurotoxicity. • There is no medically recognised association between exposure to Glutaraldehyde and the development of either chronic sinusitis or multiple clinical sensitivity. • If the appellant had developed acute irritant sinusitis from chemicals in the workplace, which is possible, one would have expected it to have resolved after exposure ceased. • There are four possible explanations as to why the symptoms have not settled away from work. (i) She may have irritant sinusitis provoked by non-work substances; (ii) Atopic sinusitis maintained by environmental factors; (iii) Allergic sinusitis caused by a non-work agent. (iv) Allergic sinusitis secondary to a workplace allergen that primed her to non-specific irritants. • It is common ground that there were irritant chemicals in the workplace but no recognised allergens. • Irritant sinusitis requires ongoing exposure to an irritant whereas allergic sinusitis requires past or ongoing exposure to an allergen. • Past contact with an irritant does not cause ongoing sinusitis. • The distinction between irritant and allergic sinusitis is not merely academic. • The causal nexus between the appellant’s past workplace exposure to chemicals and her present condition of chronic sinusitis has not been established to the required standard. 2. Dr E W Dryson, Occupational Medicine Specialist It is important to note that Dr Dryson examined the appellant nine days after she had ceased work. Dr Dryson diagnosed her as having chronic sinusitis. • The appellant gave no indication of widespread multi-system symptoms being triggered in response to a variety of unrelated chemicals. • There was insufficient evidence to reach a diagnosis of multiple clinical sensitivities. 401.402.02 (pg) 5 • Dr Dryson’s preferred diagnosis was chronic sinusitis on the basis of exposure to irritant fumes. 3. Dr Andrew Currie, Specialist in ENT • A degree of nasal and/or sinus mucosal inflammation is extremely common in the population. • It is difficult to accurately identify exactly what causes this inflammation but atopy is a common cause of chronic rhino-sino-bronchitis. • The majority of Dr Currie’s patients with chronic rhino-sinusitis have not had exposure to Glutaraldehyde. • The appellant first consulted Dr Currie in January 2000 with demonstrated widespread sinus mucosal thickening. • Dr Currie stated it was impossible to categorically state what was causing the airway inflammation or the other non-specific symptoms identified. 4. Dr Malcolm Giles, Otolaryngologist • Dr Giles first saw the appellant in February 2001 and she gave him a history consistent with chronic sinusitis over eighteen months. His examination confirmed a diagnosis of chronic sinusitis. • At his first examination he considered that the appellant probably had an underlying allergic rhinitis that would require some form of treatment with a steroid spray. • Whilst the signs of sinusitis had improved after withdrawal from the work environment there is evidence of an allergic component not related to work exposure. • A proportion of her chronic sinusitis can be attributed to exposure to chemicals at work but that proportion cannot be quantified. • It is also possible that without the workplace exposure she might never have developed sinusitis. • Even if she had an underlying tendency to allergic rhinitis (commonly known as hay-fever) this may not have been enough by itself to cause her nasal and sinus symptoms without the added exposure to Glutaraldehyde. • Allergic rhinitis is a common diagnosis in the presence of chronic nasal symptoms. 401.402.02 (pg) 6 • Irritants can cause an allergy like response which could well mimic allergic rhinitis. • The long-term effect of irritant chemicals on mucous membranes of the nose is outside his field of expertise and should be referred to an occupational health specialist. 5. Dr Chris Walls, Occupational Medicine Specialist Dr Walls examined the appellant in December 2002. She had been out of the workplace for some sixteen months. • There is clear clinical evidence supporting the diagnosis of chronic sinusitis. • Trying to make a distinction between allergic and chronic irritant sinusitis becomes a little academic. • There is nothing in the appellant’s history or family to suggest a history of allergic rhinitis preceding her working at Hamilton Radiology. • It is a common complaint amongst radiographers to have irritant symptoms of this nature arising from this type of workplace. 6. Dr Bill Glass, Occupational Medicine Specialist Dr Glass examined the appellant in November 2001 and he had seen the reports of Dr Giles and Dr Dryson. • Dr Glass agreed with Dr Giles and Dr Dryson that there was a recognised relationship between the appellant’s exposure to Glutaraldehyde and her upper respiratory tract symptoms. • In the past ten years Dr Glass has reviewed more than sixty cases of Glutaraldehyde exposure and in more than twenty percent of the cases there is a pattern of symptoms not dissimilar to those displayed by the appellant. • The appellant’s symptoms are attributable to her exposure to Glutaraldehyde at work and fit a pattern consistent with such exposure. 401.402.02 (pg) 7 DECISION [8] In this appeal it is important to identify the particular decision which is the subject of this appeal and from it what the particular issue is that this Court has jurisdiction to consider and determine in the context of its appellate jurisdiction under the Act. [9] The answer to that is quite clear in that it is the respondent’s decision of 14 August 2001, as confirmed by the review decision of 30 July 2002. The review decision itself takes its jurisdiction from Section 135 of the Act which provides that an insured may apply for a review of any decision on the claim. [10] Thus it is that the Court must consider the respondent’s decision on the claim, that is the appellant’s claim for cover lodged on 31 May 2001 for chronic sinusitis said to have arisen from her workplace exposure to certain chemicals. It is therefore quite clear that the condition for which the appellant sought cover was that which she presented in May 2001 at a time when she was still working at Hamilton Radiography. [11] I am satisfied on the evidence that the appellant’s exposure to radiographic fumes during development processing did give rise to the chronic sinusitis which has been positively diagnosed as being her condition at the time she presented her claim for cover. [12] Having regard to the reports of Dr Giles, Dr Dryson and Dr Monigatti I am further satisfied that the chronic sinusitis so diagnosed had an irritant component which was, at the very least, a partial cause of her condition. In the words of Dr Giles, a proportion of her disability was due to her exposure. Even Dr Monigatti, who must be considered to be the respondent’s chief advocate, accepted that the circumstances of the appellant’s employment could give rise to an irritant condition and that the Glutaraldehyde is an irritant chemical which can cause sinusitis. [13] An important consideration is also the fact that the appellant has never been tested for any allergy relating to Glutaraldehyde even though this was mooted on two occasions. It therefore cannot be asserted with any confidence that the appellant has an allergy to Gluteraldehyde but it leaves a big question-mark over whether it is a substance to which she is atopic. Again on the evidence that has been presented this is only raised as a possibility by Dr Monigatti as a plausible explanation but it is no more than that as it has no basis in fact as no testing has been done. 401.402.02 (pg) 8 [14] The only indication of the appellant having some allergy condition is the advice from Dr Giles that because she gave a history of sneezing during Springtime this was suggestive of an allergy which causes hay-fever. The Court has not been told that this allergy in any way has some cross-relationship with any allergy relating to chemicals such as Glutaraldehyde. As I previously noted, no such testing has been done to establish that one way or the other. [15] The Court is aware of Dr Monigatti’s advice that irritant chronic sinusitis would be a condition which would be expected to resolve when the particular cause of irritation was removed. That opinion is not universally held but for the purposes of this appeal I find that this Court need not enter into a determination on that subject as I am satisfied that at the time that the appellant was first examined she was, on the balance of probabilities, suffering from irritant chronic sinusitis and it is for that condition that she is entitled to cover. [16] In the event that medical opinion should indicate that eighteen months or more after ceasing to be exposed it could be expected that the appellant’s condition should have resolved, then its continuation may well give rise to questions for which further testing would need to be done to provide the answers. [17] For the avoidance of doubt I state that the Court is not making a finding one way or the other on the more recent advice of Dr Monigatti and his assessment of the situation as it presents some eighteen months to two years after the claim for cover was made. The issue which he raises, and which I identified earlier on in this decision, may need to be considered when the question of ongoing entitlements is being reassessed. [18] For the sake of completeness I am satisfied, based on the evidence of Dr Walls and Dr Glass, that the various criteria for Section 33 of the Act have been met, including the criteria of significantly greater risk as the Court must be considering that criteria on the basis of persons in general not having any allergy or atopic pre- disposition. I find that persons who are exposed to Glutaraldehyde in the course of their workplace environment are at a significantly greater risk of suffering irritant sinusitis from the effects of chemical exposure than for persons who are not so exposed to that particular environment. 401.402.02 (pg) 9 [19] The appellant does have cover, by independent decision, for the neurotoxicity affects which her exposure has caused and this cover is in no way compromised by my decision in this appeal. [20] The effect of my decision is that the respondent’s decision of 14 August 2001 declining cover to the appellant for her chronic sinusitis is hereby quashed and cover is duly granted to the appellant for that work related injury. Claim for weekly compensation entitlement [21] The appellant ceased her employment in June 2001 and it was the advice of Dr Monigatti, Dr Giles and Dr Dryson that the appellant should not be in an environment where she was exposed to the Glutaraldehyde. Furthermore, it is accepted that the appellant has cover, and did have cover for the neurotoxicity which had been caused as a consequence of her exposure to the Glutaraldehyde. [22] However, the appellant’s claim for weekly compensation under that cover was declined by the respondent’s decision of 25 January 2002 as the information which the respondent had was that the cause of the appellant’s incapacity was the chronic sinusitis rather than the mild cognitive impairment which was assessed as being her injury from neurotoxicity. [23] The only medical evidence that has been presented on the question of incapacity was that of Dr Monigatti who gave his opinion on the cognitive testing that Dr Gronwall had carried out and it was his view that the appellant’s impairment was mild and compatible with any employment that did not invove a lot of memorising or mental calculation. [24] I note the advice of Dr Newburn, Neuropsychiatrist, who is of the opinion that because Glutaraldehyde remains a significant component of developing fluid it would not be possible for the appellant to return to her previous employment. [25] I am not satisfied with that opinion as I find that it is more related to the workplace rather than to the capabilities of the appellant. The Court would need to receive evidence that if all proper safety measures were set in place, nevertheless a radiographer in the type of employment such as the appellant had would inevitably 401.402.02 (pg) 10 succumb to Glutaraldehyde exposure and the consequences thereof. Dr Newburn’s assessment may then have some validity. [26] At the present time the Court cannot accept that such is the case in the workplace of radiographers within New Zealand. Whilst Hamilton Radiology, as a particular entity, may have had some problems, because of a poorly ventilated working environment and other conditions which contributed to the increased opportunity for exposure, the Court has no indication that such is the case in general. [27] I find that the cognitive defects consequent on the neurotoxicity thus far are not sufficient as to be considered as incapacitating. [28] For the foregoing reasons therefore the respondent was correct by its decision of 25 January 2002 to decline to grant weekly compensation in respect of the appellant’s covered injury of neurotoxicity. However, in the light of my decision on the other aspect of this appeal relating to the appellant’s entitlement to cover for her chronic sinusitis it would naturally follow that the appellant would be entitled to weekly compensation as a consequence of her incapacity arising from this condition. [29] The appellant has been largely successful in this appeal and I allow costs to the appellant of $1,750.00, together with the costs associated with the obtaining of the medical reports from Dr Glass, Dr Walls and Dr Newburn. DATED at WELLINGTON this 17th day of July 2003 M J Beattie District Court Judge 401.402.02 (pg)