Stumpp v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 218 /99 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 ERIC WAYNE STUMPP DCA No.327/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act First Respondent AND GAS & TYRE CENTRE LTD Second Respondent HEARD on the 10" day of November 1999 APPEARANCES: Mr R J Barry counsel for appellant Ms S Scott counsel for first respondent Mr S J Ryan counsel for second respondent 2 RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the properties or characteristics which caused the appellant's irritant dermatitis arising out of his employment as motor mechanic with, inter alia, the second respondent was or was not found to any material extent in his non-employment activities. - BACKGROUND The appellant, now aged 35, is a qualified motor mechanic having obtained a trade certificate in automotive engineering from Bay of Plenty Polytechnic. He commenced his apprenticeship for his trade at age 16 and apart from a period of some six months or so in the latter part of 1994 he has been engaged in his occupation of an automotive engineer from 1981 through to September 1995 with various employers in the Tauranga District, but including a period in Australia in the late 1980s. The appellant was employed by the second respondent as a senior automotive engineer from December 1990 until the end of May 1994. From June 1994 to January 1995 he did not work as a mechanic but had employment as a salesman selling car parts. In January 1995 he resumed his employment as a motor mechanic, being employed in that capacity by The Car Company Lid. He was obliged to give up this employment in September 1995 as a consequence of the dermatitis to his hands which had again flared during the course of this employment. In September 1995 the appellant lodged a claim for cover with the first respondent for his dermatitis said to have been caused by his exposure to certain materials in the course of his employment as a motor mechanic. The claim was treated as a gradual process claim under section 7 of the Act.and the appellant's last employer, The Car Company Lid, was notified that this claim was being treated as a work injury. The Car Company Lid advised that it disputed that 3 the appellant's injury had been caused during the time of his employment with it as it was aware that he had been suffering from dermatitis since 1993. Although right from the outset the appellant's claim for cover was accepted and he commenced to receive various benefits including weekly compensation and cost of treatment, it appears that no formal notification was made at that time to any former employer and it was not until 19 February 1997 that the second respondent was formally notified of the first respondent's decision that the appellant's claim for cover for irritant contact dermatitis had been accepted and that insofar as the second respondent was concerned, responsibility for claim costs on it were fixed at 77% and 23% to The Car Company Ltd. The Car Company Lid had not sought to dispute that decision but the second respondent did so notify that it disputed the decision to grant cover on the basis that the appellant's non-employment activities, being the carrying out of mechanical work on his and various friends' vehicles in his own time contributed to the onset of his dermatitis. A review hearing took place on 14 August 1997 at which the appellant attended but was not represented. The second respondent was represented by its principals and by counsel. In his decision the Review Officer ruled that dermatitis irritants were present in the non-employment activities and he found them to be present to a material extent and ruled that the appellant could not satisfy section 7(1)(b) and therefore the review was successful and cover for the appellant was revoked. It is from that decision that the appellant has appealed to this Court. EVIDENCE 4 Both the appellant and a director of the second respondent gave evidence at the review hearing and the Review Officer had medical reports from Dr Marius Rademaker, - - Dermatologist, as well as reports from the appellant's GP. For the purposes of this appeal leave was granted to the appellant to adduce further evidence being evidence of the appellant himself and also further evidence from Dr Rademaker. The second respondent for its part obtained leave to adduce evidence of Dr J L R Hodge, Dermatologist, and the Court heard viva voce evidence from those three witnesses at the hearing. EVIDENCE RELATING TO APPELLANT'S NON-EMPLOYMENT ACTIVITIES At the review hearing Mr Pennell, a Director of the second respondent, had given evidence as to the appellant being in his employ from December 1990 through May 1994. He stated that he was not aware that the appellant was having a problem with dermatitis on his hands during the time of his employment with the second respondent. He stated that the appellant worked on cars outside work hours. He said that he regularly purchased parts through their account and the amount of parts that he purchased he believed indicated that he was doing significant private work. He also said that the appellant had an interest in classic or modified cars and would spend time on those projects. In a statutory declaration made on 9 May 1997 the appellant stated: "Between September 1990 and September 1995 I would have averaged approximately 1 to 1 1/ hours of mechanical work per week outside work hours. This figure is based on the fact that I may not have done any work at home for 6 10 8 weeks, then spend one day of a weekend working at home." The appellant acknowledged that right throughout his working career he has worked on cars, both his own and those of friends in his own time. The work was not regular 5 and he has assessed it as a weekly average. He acknowledged that he had a trade quality hand cleaner at home for cleaning his hands after doing any mechanical work. In his evidence to this Court the appellant stated that his dermatitis had first appeared when he was working at Gas & Tyre Lid and he said that the reason why he left that employment was the advice from his doctor that he would continue to have difficulty unless he did change his employment. It was for that reason he obtained employment as a sales representative for an automotive parts company. He said that during that time he had no problem with his hands whatsoever even though during that time he spent more time than usual on his hobby of tinkering around with motor vehicles. He said he had no ill effects to his hands as a consequence of this work. Insofar as commenting on the evidence given at the review hearing and in his statutory declaration he stated: I believe the evidence at the previous hearing suggested that I spent a very large amount of my spare time doing up motor vehicles and this is simply not correct. I was asked to average it by ACC themselves and I suggested I to 2 hours a week averaged over a year. The reality of my situation was that I could go for as long as 3 months at a time without touching a motor vehicle. When I was working on motor vehicles, it was almost exclusively on the weekends. I was a regular soccer player so my Saturday afternoons were generally involved in this activity. I was also a keen fisherman and spent about as much time fishing as I did on motor vehicles. I was also a busy new father helping my pregnant wife with the household chores and a young child. My wife gave birth to our second child about 2 months before I left my employment with Gas & Tyre. I would not work on motor vehicles in the evening after work other than on rare occasions because the noise of such work would wake the child whose bedroom was next to the garage. Also of course I was involved in helping with domestic duties after work. 6 I also take objection to the suggestion from Dr Hodge's report as to the number of times I would be using hand cleaners in my course of employment --- - - and at home. The reality is that I could wash with cleansers up to 10 to 15 times in a day at work as I changed from one job to another. There is a need to keep one's hands clean in handling tools and if one is test driving customers motor vehicles. I learnt from my apprenticeship days that it was very important to keep clean hands and have endeavoured to follow that policy in my work place ever since. If I was working at home, I would only be working on the one vehicle for a few hours at a time, so the same necessity to clean hands on a regular basis did not occur and would only be done once at the end of that particular activity." In cross examination Mr Stumpp stated that he would not to do any mechanical work at home when his hands were suffering from dermatitis. THE MEDICAL EVIDENCE In the claim for cover Dr Gudex, the appellant's GP, diagnosed severe dermatitis of hands/fingers - work related. In the Medical Practitioner Questionnaire Dr Gudex identified the cause as being degreasants/hand cleansers. He further noted that there had been a dramatic response from a change in the appellant's work activity and that his condition settled well with absence from work. Dr Gudex attached two reports from dermatologists with that questionnaire. The first report was from Dr Kevin Mckerrow, Dermatologist, dated 9 September 1993, his report states: "Diagnosis: Thank you for referring Eric for review. As you are aware, he has worked as a motor mechanic for the last twelve years. For the last five months he has been troubled by cracking of the distal tips of the fingers of the right hand. 7 On examination, the findings are consistent with that of fingertip eczema. -. . . .. - Fingertip eczema is a chronic form of dermatitis. Unfortunately Eric cannot discontinue being a motor mechanic, and therefore we have to treat him under the conditions for which he works. I have therefore suggested he should alternate between emulsifying ointment and a liquid paraffin mixture as moisturisers to his hands, and he should apply these between ten to fifteen times a day. Should there be any active inflammation of the eczema, then he is to continue with the application of Diprosone cream as you have suggested." Dr Rademaker made a report to the appellant's GP on 8 September 1995 and: "... From his history I have no doubt this is occupationally induced. It is probably a mixture of irritant contact dermatitis, with a possible allergic component as well. It would be helpful to patch test him but he thinks it is unlikely he will be able to get away from work to have this done. I spent a long time talking to him about the nature of irritant hand dermatitis, its aetiology and its treatment. The best way of managing him would be to get him away from his work environment for six to eight weeks, let his hands settle down and then restart his job, adopting good hand care practices. Unfortunately good hand care takes time, which is currently not available at his work place. He needs to use a moisturiser at least 10 times a day. He is to try and avoid contacts with degreasants and hand cleansers, and if possible, he. . should wear cotton-lined rubber gloves as much as possible." In a report dated 4 December 1995 Dr Rademaker advised that he had patch tested the appellant and that he had not shown any allergic reaction. He confirmed his clinical impression that the appellant had an irritant hand dermatitis which was likely to continue whilst he remained working as a mechanic. On 25 March 1997 Dr Rademaker made a further report to the first respondent which stated, inter alia: 8 "Mr Stumpp was referred in August 1995 by his general practitioner with a 2 "/ year history of problems with his hands. He felt this was related to his work ---. . . as a car mechanic as the rash cleared when not at work. During a short spell as a sales representative his hands cleared but on starting back as an automotive engineer his hand dermatitis recurred within two weeks. At times his hands were so badly affected he was unable to work. At these times his recreational and social activities where severely limited. In most of the jobs he worked as a car mechanic coming in to contact with a variety of chemicals including hand cleansers, greases, diesel, petrol, oil, degreasants, thinners and prepsols. He has had several breaks from work; during an 8 month spell as a sales rep his hands cleared completely. On the 12th September 1995 he stopped work because of this hands, within 2 weeks these had cleared. Unfortunately when, during this period away from work he helped repair a friends car, his hands flared within 24 hrs. From his history and the negative patch tests he clearly has an irritant hand dermatitis from an occupational source. I have recommended a variety of moisturisers and barriers. I have also suggested he needs to seriously consider changing his career as ongoing exposure to greases etc. will result in a flare of his hand dermatitis. As regards to your specific questions. 1. Is all his work as a mechanic back to 1981 contributory I regard his irritant hand dermatitis as a cumulative irritant dermatitis but would only extend the time frame to six months before the onset of his dermatitis. This is an arbitrary figure but I think is defensible. 9 2. Would any mechanic work, including home based, contribute . . Any exposure to the relevant irritant compounds, which in this case are greases, oils and diesels, will stimulate his dermatitis. There would be no difference between the source of contact e.g home or work. 3. Wayne's current status As he has not been doing any automotive work his hands are fine. He has been building his own home in his spare time and does have a little bit of irritant dermatitis affecting one thumb." In an affidavit sworn on 11 May 1998 Dr Rademaker advised that he was a Dermatologist with extensive experience and knowledge with dermatitis and had practised medicine since 1980. 'I have examined the appellant Wayne Stumpp on several occasions specifically the 8th of September 1995, the 4th of December 1995, the 121h of July 1996 and the 24th of March 1997. These were in relation to his referral to me for irritant hand dermatitis. My diagnosis is that I have no doubt Wayne Stumpp has an irritant hand dermatitis which is predominantly of an occupational nature. Whilst any exposure to irritants will contribute to an irritant hand dermatitis the clear . . history of improvement of the hand dermatitis when away from work, with the rapid exasperations (sic) on return to work, suggests that the predominant contact with irritants in Mr Stumpp's case was in the workplace environment. The particular properties that are characteristic of Mr Stumpp's workplace which contributed or caused personal injury are likely to have been exposure to a large number of irritants as a mechanic in the automotive industry, in particular oil, diesel, petrol, thinners, prepsols, degreasants, other detergents 10 and hand cleansers. Assuming his workload was similar to other automotive engineers it is likely that his hands would have been in contact with such .. - irritants for 6 to 8 hours per day. An irritant dermatitis can be triggered off by a single irritant. Any one of these listed above could be responsible. However it is more likely that each one contributed to a certain extent to the dermatitis. It is possible that some irritants could potentiale the effect of others, but it would be hard to establish this. It does not matter where the contact with the irritant is, be at a workplace, the home environment, or through leisure activity. I can make no comment on the level of exposure to irritants on Mr Stumpp's home environment. However it is likely they were not a major contribution as his hands cleared rapidly and remained clear in his months spell as a sales rep. This assumes fairly consistent home and leisure activities during this time. It is unknown specifically the amount of time necessary to induce an irritant dermatitis as there are many variables including the nature of the irritants, the type of work, the amount of hand care, the duration, etc. As an example one can develop an irritant dermatitis from a single exposure to a strong caustic substance i.e. chemical burn or it may take many weeks exposure to soap and water to induce a dermatitis (e.g. trainee hairdresser shampooing hair all day). As a general rule, the lower the grade the irritant, the longer the.. cumulative exposure required for it to induce an irritant dermatitis. The irritants Mr Stumpp was exposed to are generally low grade and you would therefore expect him to require substantial exposure to induce the dermatitis. Any and all exposure to irritants is contributory and the source of that exposure (work, home or leisure), is immaterial. The question which should perhaps be asked in this matter is whether the avoidance of all exposure to irritants in the non-work environment would make an significant difference to 11 the hand dermatitis. The improvement of the hand dermatitis when away from automotive work suggests the non-work related exposure to irritants was not - . .. ... . .significant. Mr Stumpp has an irritant hand dermatitis. The history of Mr Stumpp's dermatitis clearing when away from automotive work is highly suggestive that non-work related activities are of minor contribution. This history suggests that the dominant exposure is to irritants from an occupational source it is therefore my opinion that Mr Stumpp has an occupational hand dermatitis." In cross examination on his affidavit by counsel for the second respondent Dr Rademaker made the following points: "I think in the end it comes down to what level of exposure he's getting to irritants at home and what into the work environment and I think if you look at the fact that his hands improved over the weekends that he was at home and improved when he was not working, either when he was working as a car salesman or at other times when he was not working as a car mechanic his hands improved. Assuming that he doesn't change what he was doing in his leisure time, and that's the assumption I have to make, the amount of exposure at home was probably less, of little significance to his hand dermatitis. He was asked what he meant by the appellant having cumulative irritant dermatitis and he answered: "The dermatitis occurs when you damage the barrier function of the skin and that then leads to inflammation and that goes on to a dermatitis. Now there are a number of ways of damaging that barrier function of the skin. We classically divide hand dermatitis into three main categories, irritant dermatitis, allergic contact dermatitis when you're exposed to a chemical you become allergic to and then you develop a dermatitis within 48 to 72 hours of repeat exposure to that and into an indulgenous dermatitis which is really sort 12 of an internal sort of reaction. With an irritant dermatitis it depends on the level or the strength of the irritant as to how quickly you have got reaction. If - you put your hand into an acid or to an alkali you'll immediately develop a dermatitis within, you know, half an hour. If you wash your hands repeatedly with soap and water you will also develop a dermatitis but the signs of this will take much longer. We see that particularly in automotive mechanics. We see it in other occupations such as hairdressers, restaurateurs etc. We see it in mothers with young children because of the constant cleaning of their children. Now the dermatitis doesn't appear immediately it appears over a period of time and often the patients say well I've done nothing differently the day before the dermatitis started compared to the three to six months beforehand and that's, the reason for that is each time they're washing their hands or exposing themselves to irritant chemicals they're damaging their skin, not enough to cause the dermatitis but as that accumulates over a period of time you pass a threshold where a dermatitis appears and you then develop clinical evidence of the dermatitis so that's what we mean by cumulative irritant dermatitis, the cumulative effect." In answer to the question as to whether it is responsible to say that the non-work environment was not material in this case. He answered: ".. he's telling us that he worked for 40 hours, stops working and his hands get better over the weekend suggesting that the level of exposure to these irritants in home environment is not significant or is, certainly a lot less than .. in the workplace and if his hands are improving during that time that he's not working then that to me suggests that it's not a major contributing factor." Dr Rademaker was then asked whether the degree of contribution would vary depending on the amount of exposure to irritants in the non-work environment and he replied: 13 "Yes. It's clearly a linear relationship. The more exposure, the more exposure to irritants the more you're going to have problems with it. The less -.. .... .exposure the less problems, but if you go back again to the facts which is that he works during the week, his hands get worse, he stops working for the weekends, his hands get better, he stops working for six months or eight months and his hands get better, he goes back to work, within two or three weeks his hands are flaring up again. It's a difficult issue trying to attribute the amount." In re-examination he was asked: "But to reduce the present situation to common sense with your knowledge of the history of this man would you say that if he was not working with cars at home he'd still have problems in the workplace with his hands? " Answer: Yes. Dr Leicester Hodge then gave evidence. He is a dermatologist of 25 years experience and the past President of the New Zealand Dermatological Society. Dr Hodge did not examine the appellant but did have the benefit of the various medical reports from Dr Mckerrow and Dr Rademaker. Dr Hodge confirmed that the particular properties or characteristics of the appellant's work which caused or contributed to his dermatitis were diesel, petrol, thinners, degreasants, other detergents and hand cleaners. He went on to state that greases are . . not the predominant problem. He noted that the initial treatment prescribed by Dr Mckerrow was essentially grease albeit in a guise of medical ointments. He stated it was more likely to be exposure to solvents in the form of petroleum products and cleaners which breakdown over time the protective skin lipid (grease) barrier and so provoke dermatitis. In an uncomplicated irritant dermatitis the withdrawal of this chemical attack will see a restoration of normal skin function without any feature increased susceptibility to dermatitis. 14 Dr Hodge stated that from the evidence those properties were to be found in the appellant's non-employment activities. It was his opinion that it was not possible in - - this case to separate out the appellant's hobbies and automotive work at home from his occupational exposure to petroleum products and hand cleaners. The reason being that all exposure contributes to an irritant dermatitis. It was his opinion that it was not possible to say that that was not material when all exposure will contribute to an irritant dermatitis. In cross examination by Mr Barry, Dr Hodge stated that he believed the appellant may have had atopic eczema having regard to his history of hay fever and a skin rash when he was young. He went on to state: "It is however not uncommon for it to first present during adult life and we have the situation here of a man who has been exposed to irritating substances over many years in the course of his occupation suddenly developing an intolerance of it and in seeking the explanation why I believe the best explanation is that his skin has changed, that he has developed atopic skin disease which is irritated by work factors. I should say I have not doubt that his occupation was a major factor in provoking this but that isn't quite the question. Even if he didn't develop hand eczema while away from occupational irritants the question is whether non-occupational irritants could or did contribute to his problem and Dr Rademaker and I are in agreement. It matters not where you have the exposure it is what that exposure is and how much of it there is and I think the Court has set a hard task in deciding what is material because there is no threshold level that you can measure or ascertain. You would accept and you must the doctor's statement that the man's problems with dermatitis seemed to clear up when he was away from that type of work though? ... Yes that's so but that's not the question at issue in my mind. The question is whether his non-occupational exposure made a contribution to the total picture. I don't believe you have to demonstrate that 15 the exposure that he has domestically was sufficient in quantity that it by itself could have produced an irritant hand dermatitis. It's a different question. You have no mathematical precision of course to measure it by? ... No exactly, that's the very point that I'm making." It was put to Dr Hodge by Mr Barry that the appellant's evidence was that during the course of a day's work he might wash his hands up to 15 times with the special cleaner for the purpose and may wash his hands in the same way once a week at home. To that he answered "if you alter the numbers it comes out very differently. The question is whether it is significant of course". In answer to a question from the Court Dr Hodge stated that it was the cleaning of the hands that was the main cause of irritant dermatitis, not so much the grease from working on engines. He went on to state "I don't think you can discount everything except hand cleaner. It is just in this situation cleaners are usually considered by dermatologist to be the most important component because what they are designed to do is remove oil or grease from the skin and in doing that they break down the skin lipid barrier which gives you the protection. I make this point specifically because in .. . . the original hearing there was some reference made to grease as being causative and I felt that was wrong." SUBMISSIONS Mr Barry, for the appellant, submitted that common sense dictated that it was the characteristics of the workplace which were causative. He noted that it was medically established that the appellant's dermatitis cleared up when he was not engaged in mechanical work yet he continued to carry out occasional mechanical work on his and other vehicles in his spare time. He submitted that the test for section 7(1)(b) should be "whether but for" working at home (i.e. the non-employment activities) he would not have contracted dermatitis. 16 He submitted that if this test was not satisfied the non-employment activity could not be said to be material. Counsel referred to the meaning of "material" in the Shorter . Oxford Dictionary being "serious, important: of consequence... pertinent, relevant... of evidence or a fact, significant, influential especially to the extent of determining a cause. " Counsel submitted that the non-employment activities of this appellant could not be said to be material as is required by Section 7(1)(b). Mr Ryan, counsel for the second respondent, submitted that where there was evidence that non-employment activities contributed to the injury, materiality was made out. He submitted that on the evidence it was not possible to say that exposure to non- work irritants was not material. He submitted that the converse of material must be found, that is immaterial, and that the property or characteristic must be found to be immaterial. Ms Scott, counsel for the first respondent, noted that both dermatologists acknowledged that the workplace was causative of the dermatitis. She submitted that section 7(1)(b) should be considered in the light of the statement made by His Honour .. . . Judge Ongley in Wellington City Council (185/97) where he stated "A material extent means an extent capable of causing or contributing to the injury in question." Council further advised that the first respondent accepted that the test required under section 7(1)(c) was satisfied and that the onus was on the appellant to establish the inegative proposition in 7(1)(b). DECISION In this appeal the onus on the appellant is to establish on the balance of probabilities that the workplace property or characteristics which caused his irritant dermatitis were not found to any material extent in his non-employment activities. The key words are "not found to any material extent". 17 In a number of decisions since the decision of His Honour Judge Ongley in the Wellington City Council case this Court has affirmed that the words "material extent" means in a causative sense. This view would seem to be borne out by the dictionary definition of material identified by counsel for the appellant in his submissions. Particularly I identify the notions of significant, influential, to the extent of determining a cause. Furthermore, it must be remembered that the inquiry the Court must make is one of causation, that is, how did the appellant's dermatitis start. That is a different inquiry from considerations of its continuance or its flare-ups during the course of the three years or so that it was identified as a personal injury from his work place. The evidence is that the appellant commenced an automotive engineering apprenticeship at age 16 and, save for a short period in 1994, he has worked continuously as an automotive engineer since that time. Up until 1993 he had been so engaged in that work for 12 years with no indication of any problem of dermatitis. In September 1993 the appellant is examined by Dr Mckerrow, Dermatologist, and he diagnosis finger tip eczema which is a chronic form of dermatitis. The appellant relates to him that he has had trouble with his fingers for about 5 months. The appellant assessed that in the course of a working day he would wash his hands with cleansers up to 10 to 15 times. He also stated that if he worked at home or for a friend he would wash his hands once. He also stated that weeks could go by without. him doing any after hours mechanical work, and that it was irregular. It is to be noted that he was married with a young family and during this period had been building and moving into a home and he indicated that this took up most of his spare time. Nevertheless, it is a fact that as and when he did get his hands dirty and greasy from working on his or a friend's motor vehicle he would wash his hands in the same type of cleaner that he used at work. 18 Although both Dr Rademaker and Dr Hodge indicate that it is not necessarily cleansers alone which can be the irritant cause of dermatitis and that some petroleum - products, such as petrol itself or thinners, are also in the category of irritants, nevertheless it is the cleaning agents which are the principal cause. As was explained by Dr Hodge those hand cleaners are designed to remove oil or grease from the skin and in so doing they break down the skin lipid barrier and this loss of that protection is the cause for the irritant dermatology to begin. The evidence from the appellant's GP and Dr Rademaker makes it clear that during the time that he was not working as a motor mechanic his dermatitis cleared up completely, despite the fact, as the appellant said, he continued his spasmodic work on his and other motor vehicles. It is to be remembered that the appellant gave up his job with the second respondent purely because of the dermatitis problem and he was acting on the advice of his GP and Dr Mckerrow. It is not until he has been back at work again in a motor mechanic's role with The Car Company Lid that again his dermatitis flares up after a few months in that job. He is .. . . . again obliged to give up his employment as a motor mechanic and since which time he has again had no further trouble with dermatitis. Dr Rademaker stated that whilst one could develop irritant dermatitis from a single exposure to a strong caustic substance, the general rule was that the lower the grade of . irritant the longer the cumulative exposure is required for it to induce an irritant dermatitis. He advised that the irritants the appellant was exposed to were generally low grade and one would expect him to require substantial exposure to induce the dermatitis. Having said that he acknowledged that any and all exposure to irritants is contributory. It was his advice that the improvement of the hand dermatitis when he was away from automotive work suggested that the non-work exposure was not significant. 19 Dr Hodge in his evidence agreed with those observations of Dr Rademaker but said that it was his opinion that it was not possible to say that non-employment exposure - . . was not material when all exposure will contribute to an irritant dermatitis. However in cross examination he did consider that the Court had a hard task in deciding what is material because there is no threshold level that you can measure or ascertain. It was the opinion of Dr Rademaker that non-employment exposure to potential causes of irritant dermatitis would not be sufficient on its own. That opinion seems to be borne out by the history of the appellant insofar as the disease was concerned. It only came about during periods when he was washing and cleaning himself a substantial number of times each day in the course of his work. Each expert has accepted that the washing of hands or the exposure to particular products in the non-employment environment would have contributed to the injury. Common sense must indicate that this is so in view of the fact that the injury is brought about by the properties of the cleaning agent breaking down the skin lipid barrier. I take it to be accepted that the occasional use of such a cleaning agent is not likely to cause a breakdown of the skin lipid barrier but rather it is the repeated and sustained use which causes that condition. Section 7(1)(b) requires that the contribution be a material contribution, that is causative, and without which the condition would not have arisen. That being the test as I have found it, I find as a fact that the appellant's non-employment exposure to any dermatitis causing irritant could not of its self have caused him to suffer irritant . dermatitis, whereas I find that his exposure to the causes of irritant dermatitis in the workplace were sufficient of themselves to cause and did cause his dermatitis. In the big picture I find that the occasional and irregular exposure to potential irritants in his non-employment activities was insignificant in the scheme of things and whilst as a scientific fact it must be said to have had an effect, such as say a drop of water in a constant drip having some minuscule effect on the wearing away of the stone, 20 nevertheless for the purposes of exclusion from cover under the Accident Compensation Act I find that this is not the test. For these reasons therefore, I find that the decision of the Review Officer to revoke the appellant's entitlement to cover was wrong and that decision is itself revoked to the intent that the appellant is entitled to cover under the Act in respect of his dermatitis arising out of and in the course of his employment with the second respondent and his subsequent employer, The Car Company Ltd. The appellant is entitled to cost which I fix at $1,000 together with the disbursements associated with the giving of evidence of Dr Rademaker at the hearing of this appeal. I direct that the costs and disbursements so awarded be paid as to half each by the first respondent and the second respondent. DATED at WELLINGTON this 6 day of August 1999 -M J Beattie District Court Judge 327-97Stumpp.doc(gm)