Estate of Conner v Accident Compensation Corporation (Work Related Gradual Process)

IN THE DISTRICT COURT AT WELLINGTON I TE KOTI-A-ROHE KI TE WHANGANUI-A-TARA [2019] NZACC 59 ACR 276/18 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF BARRY CONNER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 May 2019 Appearances: Ms B H Woodhouse for the appellant Mr S M Bisley for the respondent Judgment: 4 June 2019 RESERVED JUDGMENT OF JUDGE C J MCGUIRE Section 30 and section 60 - Work Related Gradual Process Injury [1] This is an appeal from the Accident Compensation Corporation decision dated 15 August 2018 which declined cover for Mr Conner's death. [2] The decision was made on the basis that there was "no medical evidence that Mr Conner had a physical injury or disease from exposure to asbestos" [3] This case concerns the determination of whether Mr Conner suffered an Idiopathic Pulmonary Fibrosis ("IPF") or asbestosis as caused asbestos exposure. If it is the former, he would not be covered by the Accident Compensation Act 2001 (the "Act"). If it is the latter, he would be covered by the Act. Background [4] Mr Conner was referred to Dr Myer, respiratory physician, on 17 December 2012 following experiencing a chronic cough. Dr Myer's clinical letter of 17 December 2012 records that Mr Conner's pulmonary function tests "certainly are not normal". [5] CT imaging of the chest was done on 18 January 2013 and Dr James Fulton, consulting radiologist, interpreted this as follows: There is extensive interstitial opacity with fibrosis in the periphery of both lungs. Appearances are consistent with idiopathic fibrosing alveolitis. [6] Dr Myer saw Mr Conner again on 21 January 2013 and reported: He continues to work full time as a builder. In the past he had been involved in both commercial and residential property building, and also demolition. There had been some asbestos exposure in the 1970s although at the time he was cutting cement board which was kept irrigated in order to minimise dust exposure, in the 1980s he had been involved in some demolition work including a freezing works although at that point he had been wearing PPE (personal protective equipment) ... Impression: At this point this is consistent with diffuse parenchymal lung disease with a usual interstitial pneumonitis picture. There is evidence of traction bronchiectasis. He had a significant asbestos exposure. I suggest that at this point I was not certain about the degree of activity and the exact aetiology. Right now I don't think he is a candidate for a lung biopsy. It would have to be a thoracic surgical lung biopsy in order to come up with any meaningful results. [7] On 27 May 2013 Dr Myer saw Mr Conner again. His clinical letter to the GP records: I believe that there may be reasonable grounds to lodge an ACC claim for asbestosis, i.e. asbestosis related pulmonary fibrosis. The ICD 10 code for asbestosis is J61. Any claim could be made best accompanied with a copy of the clinical letter + the radiology report and lung function test. I would be most grateful if it could be done through your practice but please let us know if this can't be done and I need to find someone at Southland Hospital to do it for me as I do not have a system for ACC claims. [8] On the same day Dr Myer referred Mr Conner to a physiotherapist for a walking test, describing his condition as "parenchymal lung disease, most likely asbestosis" [9] Dr Conner's GP lodged a claim for work related gradual process injury cover in July 2013. In an ACC 2198 asbestos questionnaire on 3 July 2013 Mr Conner stated that, between 1965 and 1976 and then from 1984 to 1990, he was exposed to asbestos while working. He said: In building work, very careful only contact may be in working with polite which we cut using skill saw and hose with water for the dust. With Downer Construction we had white paper overalls to take out asbestos on the "Birmer Road" a causeway for carcasses at Bluff Ocean Beach Freezing Works. This was rolled up on polythene and buried at the back of the works. [10] Dr Luecker completed an ACC 2207 form on 4 July 2013, noting the current diagnosis as "fibrotic lung change" [11] The Corporation sought advice from Dr John Monigatti, an occupational physician. He provided a memorandum on 15 August 2013 concluding that it was reasonable to withhold cover for asbestosis until the diagnosis was established with more certainty. In summary, he explains that Mr Conner had been diagnosed with Pulmonary Interstitial Fibrosis ("PIF"). PIF can be caused by exposure to asbestos dust, and the resulting condition is called asbestosis. However, he went on to say: In most cases there is no known cause, however, and the condition is known as idiopathic pulmonary fibrosis. [12] Mr Monigatti went on to say: It is generally agreed that it takes prolonged and heavy exposure to asbestos to cause asbestosis, usually for at least 10 years. From what Mr Conner has said his exposure is probably not that great. Imaging has shown no pleural plaques, a mark of asbestos exposure usually (but not invariably) found in association with asbestosis. In addition, Mr Conner's lung fibrosis is mainly peripheral whereas in the pneumoconiosis it is centred more on the airways where the dust is most concentrated. [13] Mr Monigatti continued: In light of the above I think it reasonable to withhold cover for asbestosis until we have established the diagnosis with more certainty. [14] Mr Monigatti accordingly recommended that a CT scan, performed earlier that year on 18 January 2013, be forwarded to Mr Milne, a chest radiologist in Auckland. This was to decide whether appearances were in keeping with asbestosis or Idiopathic Pulmonary Fibrosis. [15] This was not undertaken, and the Corporation has conceded a service failure in this regard [16] On the basis of Mr Monigatti's opinion, cover was declined on 20 August 2013. [17] A chest x-ray was done on 13 December 2013 noting: Patchy infiltrates are again seen at the bilateral lung bases, likely due to some background fibrosis. [18] He also noted in his report that there were no pleural effusions or pneumothoraxes. [19] A further CT scan of the chest was done on 10 December 2014. Dr de la Ray, the radiologist, reported that no pleural effusions were seen on the imaging. [20] A chest x-ray in June 2014 showed no change in respect of bilateral fibrotic changes in the left and right lung compared with 2012. [21] Mr Conner continued to have periodic medical check ups in 2014, 2015 and 2016. In the findings of a CT chest scan in June 2016, the report noted: The appearances have remained unchanged when compared with previous CT. No pleural plaques, pleural effusion or other abnormality is seen. [22] On 10 January 2017 Dr Myer again reviewed Mr Conner. He noted there had been no acute changes. He notes that Pirfenidone is now available in New Zealand and that he would request it. His report includes: Pirfenidone has been shown to be an antifibrotic treatment for pulmonary fibrosis of the idiopathic type. [23] On 2 March 2017 Mr Conner had a further review with Dr Myer. As with previous reviews the diagnoses included "asbestos exposure, minimal previous smoking history". Dr Myer's report noted that Pirfenidone was being prescribed and tolerated well. On 5 September 2017 Dr Myer again saw Mr Conner. Dr Myer noted that his breathing was worse and his exercise tolerance markedly diminished. Regarding Mr Conner, Dr Myer also states: He obviously worked at Downers and his main side of employment was at the freezing works. He also recalls being exposed to solvents. The asbestos exposure now many years later was not as memorable. [24] Dr Myer again reviewed Mr Conner on 25 September 2017, and on this occasion, under the heading "diagnosis" he included "pulmonary fibrosis, likely asbestosis". In his report Dr Myer also said: I understand that an ACC form for asbestosis was lodged by Mr Conner's general practitioner in the year 2013. I understand that the claim was rejected. I do not have any specific information. I would be most grateful if this could be reviewed. On 6 September 2017 Mr Conner collapsed while walking to his car. He was admitted to hospital and died on 8 November 2017. [25] Dr Efstathiou completed the hospital record of death form, and recorded: Background of interstitial pulmonary fibrosis + previous asbestos exposure ... [26] Under the heading "your opinion as to the cause of death" Dr Efstathiou recorded: Interstitial pulmonary fibrosis due to asbestos exposure. [27] Dr Efstathiou completed the medical certificate of cause of death in the same way. [28] Mr Conner's death certificate again records: Interstitial pulmonary fibrosis. Asbestos exposure. [29] Mr Conner's estate then made a further claim for cover for his death as a personal injury caused by a work related gradual process. [30] The Corporation sought further advice from Mr Monigatti. [31] Mr Monigatti reviewed the clinical notes and states: When Mr Conner lodged a claim for asbestosis in 2013 I noted the absence of pleural plaques and his modest occupational exposure to asbestos. Though often it is not possible to distinguish between idiopathic pulmonary fibrosis and asbestosis on radiological grounds, features such as the distribution of the scarring may point more to one than the other. In 2013 I suggested that we seek a comment from Dr Milne, chest radiologist, in regard to Mr Conner's CT scan but this never eventuated. As there has been at least one other scan since then, you might consider asking Dr Milne's opinion now. [32] In reviewing Dr Myer's notes Mr Monigatti refers to an entry on 5 September 2017: The asbestos exposure now many years later was not as memorable. [33] He then says: So it is surprising to see, in Dr Myer's letter to ACC less than a month later, the diagnosis "pulmonary fibrosis, likely asbestosis" which he had not used since 2013. In October 2017 Mr Conner was still on Pirfenidone, which is not known to have any therapeutic value in asbestos so is not funded for it. [34] Dr Milne's opinion was obtained, and he reported on 27 February 2018. Dr Milne reviewed Mr Conner's CT scans for 2013, 2014, 2016 and 2017. He noted they showed inexorably progressive lung fibrosis. Dr Milne says: In the absence of a history of asbestos exposure, the imaging and the disease progression would be considered "probably IPF". It was very reasonable therefore to consider Mr Conner for treatment of this condition with Pirfenidone. Asbestosis can have identical appearances to IPF both histologically and on CT imaging. Pleural plaque disease is a frequent marker on chest imaging of exposure to asbestos fibre but is not invariably present in exposed individuals. The absence of pleural plaque disease in this case does not exclude asbestosis as a cause for the fibrosis. [35] Dr Milne continues: In summary I believe it is not possible to be certain whether the progressive ung fibrosis is due to asbestosis or IPF. Supporting asbestosis is a history of exposure although typically exposure to asbestos fibre needs to be heavy and prolonged to cause asbestosis and this assessment would be better made by an occupational physician. The relatively young age of onset of fibrosis would be slightly against IPF. Supporting IPF is the aggressive progression of fibrosis. A family history of lung fibrosis would add support for IPF. [36] On 1 March 2018 Mr Monigatti recommended that the Corporation not accept the claim for accidental death. Amongst other things he noted: In 2013 ACC declined cover for asbestosis on the basis that Mr Conner had had only minor occupational exposure to asbestos, as confirmed in the claimant questionnaire. Typically, it takes about 10 years of prolonged and heavy exposure to asbestos to cause asbestosis and Mr Conner had nothing approaching that. Submissions of appellant [37] In her submissions Ms Woodhouse points to the failure by the Corporation to undertake the investigations directed by Mr Monigatti, namely for a CT scan to be performed in January 2013 and forwarded to Dr Milne, chest radiologist. [38] She points to the death certificate recording death due to asbestos exposure as being of primary evidential importance. She notes that s 71 of the Births, Deaths, Marriages and Relationships Registration Act 1995 directs that a "death certificate ... shall in any proceedings be received as prima facie evidence of the truth of the information it contains." [39] Ms Woodhouse refers to Dr Mine's report in 2018 where he notes: The relative young age of onset of fibrosis would be slightly against IPF Idiopathic Pulmonary Fibrosis) as supporting IPF is the aggressive progression of fibrosis. A family history of lung fibrosis would add further support for IPF [40] Ms Woodhouse notes that Mr Conner's daughter gave evidence that she was unaware of any family history of lung fibrosis. 41] Ms Woodhouse says that weight can be attributed to Dr Myer's final report in October 2017, which outlined that he was of the opinion that Mr Conner's condition was asbestosis. The respondent's submissions [42] Mr Bisley notes the criticism that the Corporation did not obtain Dr Milne's opinion in 2013. However, Dr Milne's opinion was obtained in 2018. [43] Mr Bisley says that what is contained in the death certificate does not oust the jurisdiction of the Court and notes that the High Court decision in Scarano v White does not stand for the proposition that a certificate will be "conclusive evidence" of truth of its contents rather, a Court should exercise caution before looking behind the certificate. ! [44] He submits that weighing the evidence in this case points to Mr Conner's death being caused by IPF. He says the deceased's level of exposure to asbestos was not sufficient to cause asbestos and that Drs Monigatti and Milne agree that prolonged and heavy exposure to asbestos is required to cause asbestosis. He refers to the fact that no pleural plaques were visible on the CT scan imaging which are usually a marker of asbestos fibre exposure and that the deceased's lung fibrosis is mainly peripheral whereas in dust induced conditions the fibrosis is centred more on the airways where the dust is most concentrated [45] He refers to the fact that Dr Fulton, radiologist in 2013 considered the imaging consistent with IPF. He also refers to the fact that Mr Conner was treated with Pirfenidone which does not have therapeutic value for asbestos. [46] He also says it is unclear how Dr Myer reached his asbestosis diagnosis as the doctor has said at different times that Mr Conner was suffering from both IPF and asbestosis. The law [47] To be entitled to cover in this case the estate must show that death was caused by a work related gradual process condition, namely asbestosis. Section 30 of the Act applies, and asbestosis is listed as a personal injury in Schedule 2 of the Act. [48] The relevant legal question therefore is simply whether Mr Conner's death was caused by asbestosis. Mr Bisley reminds the Court that causation can only be drawn on the basis of facts supported by evidence, and not on the basis of supposition or Scarano v White [2017] NZHC 443. conjecture,2 and that in the same decision, the Court of Appeal cautioned that it must:3 [70] Always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a Court to draw even a robust inference on causation. Risk of causation does not suffice. Decision Service failure [49] The issue raised here primarily relates to the fact that in 2013 the Corporation did not seek Dr Milne's opinion as Mr Monigatti had requested. However, Dr Milne's opinion was eventually sought in 2018 and by then Dr Milne had the benefit of several further CT scans of the deceased's lungs. That enabled the doctor to be in a better position than he would have been had he received Mr Conner's file in 2013. Whilst the service failure was regrettable I do not regard it as a major issue. Two other matters are raised which are frankly of little moment. There was an inaccurate recording of Mr Conner's injuries and Mr Monigatti made an inappropriate comment in his February 2018 opinion. Again, while both are regrettable they are not pivotal to this decision. The death [50] The information in the death certificate follows the information recorded in the hospital record of death and the medical certificate of cause of death. Section 71 of the Births, Deaths, Marriages and Relationships Registration Act 1995 rightly describes what is contained in the death certificate as prima facie evidence of the truth of the information it contains in any proceedings. As Scarano's case says, a Court should not "completely abdicate its jurisdiction in this area"." The doctor who completed the hospital record of death and medical certificate of cause of death was plainly relying on Mr Conner's clinical records which, until his acute entry into hospital on 6 November 2017 (i.e. the day before he died), all listed diagnoses that included interstitial pulmonary fibrosis or pulmonary fibrosis and all listed previous 2 Accident Compensation Corporation v Ambros [2007] NZCA 304. Above n 2, at [70]. Above n 1 at paragraph [32]. asbestos exposure. The cause of death recorded in the death certificate is therefore completely understandable but not necessarily conclusive. [51] The medical professional most associated with treating Mr Conner was Dr Myer. He treated him from December 2012 when he was experiencing a chronic cough. Dr Myer treated Mr Conner with Pirfenidone but in his final referral letter just over a week before Mr Conner died the doctor said: He has got interstitial lung fibrosis and things seems to be worsening. He is on disease modifying treatment with Pirfenidone but there are objective and subjective parameters suggesting a decline. [52] Dr Myer prescribed Pirfenidone in January 2017 as it was shown to be an antifibrotic treatment for pulmonary fibrosis of the idiopathic type. 53] The fact that this medication was prescribed, in itself, is not evidence that Mr Conner's lung condition was not asbestosis. Reading Dr Myer's report, it is plain that virtually throughout the period of time he was treating Mr Conner he was unsure whether Mr Conner's condition was interstitial pulmonary fibrosis or asbestosis. If his condition had indeed been interstitial pulmonary fibrosis, for which Pirfenidone was a medication that might slow down or halt progression, then as such it failed. If anything, in these circumstances the recourse to Pirfenidone contraindicates a diagnosis of interstitial pulmonary fibrosis. [54] It may be inferred therefore that when Dr Myer wrote to the Corporation on 2 October 2017, he was in a position where he concluded that the pulmonary fibrosis was in fact "likely asbestosis" as he says in that letter. Also in that letter, he says: There is evidence of progressive lung fibrosis, he is currently being treated with Pirfenidone a medication trying to halt progression of this condition. Plainly the Pirfenidone was not working [55] On 27 February 2018 Dr Milne, the chest radiologist, viewed the CT imaging from 2013, 2014, 2016 and 2017 and noted that this shows "inexorably progressive lung fibrosis." He then says: He has been treated with Pirfenidone a treatment for IPF over this time but clinicians are retrospectively considering whether the diagnosis could be asbestosis. [56] Dr Milne notes "asbestosis can have identical appearances to IPF both histologically and on CT imaging". Dr Milne further notes: Mr Conner was in his mid 60s when he had his first CT scan showing established interstitial lung fibrosis and this is young for IPF in the absence of a family history of ILD (Interstitial Lung Disease) or other indications of telomerase mutation. I would be interested to learn if there was a family history of interstitial lung disease. [57] This latter comment is significant. The state of evidence on this point is that there is no known family history of interstitial lung disease. [58] It is significant in my view that Dr Milne commenced his summary saying; I believe it is not possible to be certain whether the progressive lung fibrosis due to asbestosis or IPF. [59] He then sets out the factors that would support asbestosis or IPF. The remainder of the summary might suggest that Dr Milne perhaps is leaning more to a diagnosis of IPF. [60] Given the uncertainty in the mind of Dr Milne based on the information that he has, the additional factors that I conclude should be weighed are the absence of family history of lung fibrosis and the fact that Dr Myer, who had treated Mr Conner for approximately five years, finally in October 2017 gave a diagnosis of "pulmonary fibrosis, likely asbestosis". [61] It is clear from the medical opinions on the file that reaching any firm diagnosis in Mr Conner's circumstances was challenging. However, given there was documented exposure to asbestos, which was noted in all the medical reports, the possibility of asbestosis was always there to be considered. [62] I conclude that the evidence of a lack of family history together with Dr Myer's conclusion of "likely asbestosis" after treating Mr Conner for almost five years tips the balance to a point where I conclude that it is more probable than not that Mr Conner suffered from asbestosis and that it was a work related gradual process injury. Accordingly, the appeal is allowed. [63] Leave is given to counsel to file submissions on costs should the need arise. Judge C J McGuire District Court Judge Solicitors: John Miller Law, Wellington, for the appellant Buddle Findlay, Wellington for the respondent ACR 276-18-Conner