Estate of Sundram v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 167 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ESTATE OF SOMA WATI SUNDRAM, deceased Appellant (Appeal No. DCA 350/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND BUMPER REPLACEMENTS NZ LTD Employer HEARD on the 15th day of July 1997 APPEARANCES N D Smith for appellant K W Reid for employer (Bumper Replacements NZ Limited) P A McBride for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether Mr Sundram (the deceased) suffered a work injury which resulted in his death. 2 The deceased had worked for some 36 years in the electroplating industry and died on 3 July 1995 from fungal pneumonia. The deceased had been employed in that industry in Fiji until he immigrated to New Zealand in 1981. The evidence indicates that in the course of his work he was exposed to both nickel and chrome. The deceased's widow lodged a claim with the respondent on 2 October 1995 in which she stated that the cause of death was work related because of his exposure to chemicals. The Pathologist's report which had been provided for the Coroner gave his opinion that the death was due to fungal pneumonia. In his report the Pathologist, Dr T D Koelmeyer commented: "1. Fatal fungal pneumonia is extremely unusual in a patient with structurally normal lungs and whose immune mechanisms are normal. 2. I have been informed that the patient was engaged in the elctroplating (sic) industry and would have been exposed to the fumes of lead, nickel and chromium. The latter two metals can cause damage to the lung. It is likely that this industrial exposure predisposed to the fatal fungal pneumonia. 3. The autopsy has not revealed any disease state that may have depressed the patient's immunity. However, depression of immunity can best be demonstrated by tests performed in life." The respondent then requested an opinion from Dr E W Dryson, an Occupational Medicine Specialist his report of 25 January 1995 states: "I am in receipt of a copy of the file relating to Mr Sundram's death and the claim that chemical exposure to metals during welding predisposed him to his fungal infection. The Coroners report states that there were high levels of nickel and chromium in Mr Sundrams hair and a high level of chromium in the liver. The actual levels do not make sense as reported and it is assumed that the phraser per 1.00 micrograms should be 106 micrograms). On this basis the hair sample of nickel is about 10 times that normally seen, and nickel in the liver is also elevated at about five times the normal upper limit. Nickel has been shown to have immunosuppressant effects. I have communicated with Dr Mike Beasley of the National Toxicology Group, Otago University. He has directed me to a monograph on nickel prepared by the International Programme on Chemical Safety of the ILO1 which shows that nickel can reduce host resistance to viral and bacterial infection. Although these studies were in animals and do not mention fungal infections, it is not impossible that fungal infection could have resulted in a human being as a result of a chance infection with the fungi in association with reduced resistance due to nickel exposure. 3 Mr Sundram had scanty hair of fairly short length and the hair samples would have represented about 3cm of growth or about 3 - 4 months growth at usual hair growth rates. This would suggest that the nickel uptake had only occurred in the few months prior to death, although Mr Sundram may have had little hair growth. There was, as I understand it, nothing particularly unusual about the work place, and the question therefore is whether electplaters (sic) in general have increased body burdens of nickel. I have found little in the medical literature to help. However one study 2 on electroplaters showed midshift urine samples of 64 +-63 ug Nickel/L urine compared with 2.7+-1.bug/L in unexposed controls, an increase by a factor of 25. The range of values was wide however. The air level of nickel in this study was 9.3 +-4.4ug/m3, similar to typical New Zealand electroplating works at 3 - 40ugm3, as reported by Dr Beasley. There have been no reports that I can discover on hair or liver levels in electroplaters. It seems clear that electroplaters can have elevated body levels of nickel however. To conclude therefore, although it is a difficult claim to assess, it has to be accepted that there did appear to be excessive nickel in Mr Sundram's system, that nickel is an immunosuppressant agent depressing host resistance to certain infections and that there was at least some exposure to nickel in Mr Sundram's work environment, and none as far we know in his nonwork environment. On balance therefore I am prepared to support the claim. The chromium levels would appear to have no relevance to his death." The employer notified the respondent that it did not consider that the appellant had suffered a work accident in a letter from its counsel dated 3 April 1996. The employer gave as its reasons for that view; "(a) Dr Dryson's report is tentative and with respect somewhat speculative. He says in conclusion there was at least some exposure to nickel in the work environment and none elsewhere yet, indicates that chemical exposure to metals during welding brought about a predisposition to fungal infection. From my client's instructions the evidence is quite clear that the deceased was never at any stage required to carry out welding in the workplace but he was doing a considerable amount of welding at home on a fence. (b) It has to be borne in mind that the cause of death was fungal infection not chemical poisoning and as such this is excluded from cover under the Act. (c) The Pathologist Report merely goes as far to postulate that exposure to metals can cause a predisposition to fatal fungal pneumonia and found the cause of death was fungal pneumonia. It has to be borne in mind at all times that this was the cause of death not chemical exposure. Another significant feature of this situation is that other employees in the workplace have not been similarly affected and in conclusion it is submitted that the necessary degree of causation has not been established." 4 On 18 July 1996 the respondent notified Mrs Sundram that pursuant to section 58 of the Accident Rehabilitation and Compensation Insurance Act 1992 she was entitled to weekly compensation. The quantum of compensation was assessed under that section at 60% so that she would be entitled to receive 60% of 80% of the deceased's earnings. The employer lodged an application for review of that decision. All parties were represented by counsel at the review hearing. The Review Officer in a careful decision outlined the background to the claim and the medical reports. He considered that there were two issues in which he had to consider, they being: "1. Can Mr Sundram's death be ascribed to his employment, and if so: 2. Was that cause of death personal injury caused by gradual process, disease or infection arising out of and in the course of employment in terms of section 7 of the Act." The Review Officer was told that the deceased had done a small amount of work welding a fence at his home but did not consider that it was of sufficient length of time to have contributed to his death. He accepted that the medical evidence showed that the appellant's system suffered reduced resistance because of occupational exposure to nickel and that the inhalation of fungi which would not normally pose a problem to health had proved fatal in his case. The Review Officer did not consider that there was anything outside his employment which was a material contributor to the exposure. On the question of whether the deceased's death could be attributed to his work, the Review Officer found that it could not. He found that while the deceased's system had been weakened because of the exposure to nickel, his death was caused by the inhalation of fungi which caused fatal pneumonia which was the direct cause of his death. It is against that decision which the appellant now appeals. Mr Smith submitted: 1. That the environment in which the deceased worked did cause his death, or alternatively, did contribute to his death. That there was an unbroken chain of causation linking his exposure to an immunosuppressant substance to his diseased state and death. That the inhalation of fungi was an involuntary act which led to fatal fungal pneumonia which was a probable and foreseeable consequence for someone having decreased immunity. 2. That in terms of section 7(1)(a) the working environment contributed to his personal injury and that there was no break in the chain of causation. 3. That the Review Officer erred in that he failed to analyse the wording of the statute in finding that there had been a break in the chain of causation. That a novus actus interveniens could not have occurred based on an interpretation of the causal connection drawn from the wording of the statute. 5 4. That in general intervening acts or occurrences fall into two wide categories, being: (a) voluntary human action; (b) abnormal occurrence. That on this basis, the deceased's conduct in inhaling the fungi was involuntary and therefore the chain of causation remains unbroken. However, in the alternative, if the conduct is viewed as voluntary then lack of knowledge and intent removes the conduct from the realm of novus actus interveniens. 5. That preventative precautions could not have been taken by the deceased and it would be unreasonable to expect him to do so. That he was not negligent in the conduct of inhaling ordinary air which happened to contain the fungi. The deceased was unaware of his immuno-deficient condition and was therefore unable to take preventative precautions if such precautions were able to have been taken. 6. That in relation to the second category, being an abnormal occurrence, it could not be unreasonable or extraneous for the deceased having a deficient immune system to continue to breathe the air around him and moreover, it was necessary for him to continue breathing in order to live. That the inhalation of the fungi was not an abnormal occurrence. 7. That in relation to section 7(1)(a), the fact that the Review Officer had found that there were two diseases commonly associated with electroplating, being dermatitis and "chrome nose", fungal pneumonia is not commonly associated with electroplating. However, it is one of a number of different diseases from which immuno-deficient people may suffer and, in fact, no particular one of these diseases are recognised as common in the electroplating business but this should not exclude the appellant from cover under this section. 8. That the Review Officer had based his conclusion on the evidence given by the employer that no other employee had developed fungal pneumonia in the long history of his company but no evidence as to other diseases from which the employees may have suffered. That the deceased worked in this work for 36 years and for periods in excess of 60 hours per week so that it was unlikely that his position was comparable with any other employee in the business. Mr Reid submitted: 1. That regard must be had to the definition of the accident in section 3 of the Act under which a gradual process is excluded and an accident is deemed to have occurred if there has been an inhalation or oral ingestion of any solid, liquid, gas or foreign object where the inhalation or ingestion occurs on specific occasions but does not include inhalation or ingestion of a virus, bacterium, 6 protozoa or fungi unless that inhalation or ingestion is the result of a criminal act of another person. 2. That fungal pneumonia which must have come from the ingestion of fungi is medically classified as a disease and not an accident so that causation can be general and non-specific with the result that other causes could be investigated rather than the appellant's simply linking the problem to a particular occupation. 3. That the evidence established that before the deceased came to New Zealand, he already suffered from "chrome nose" 4. That the evidence does not establish that the working conditions caused or compromised the deceased's immune system. If so, there would be evidence that other workers in the same industry and environment would no doubt have suffered the same problems. 5. That on the basis of Dr Dryson's report, it is not impossible that the immunity problem could have originated through a number of years in the industry in Fiji but that this issue was not investigated. 6. That Dr Dryson, being the specialist in this field, was unable to provide any information that similar problems were a recognised health problem amongst electroplaters and that he could only postulate that electroplaters can have elevated body levels of nickel but that this did not constitute proof of causation. 7.. That the essential ingredient in this appeal is to link the fungal pneumonia and. not just the depressed immune system to the requirements of section 7(1)(a) and (c). That there was no evidence of this. 8. That the Review Officer was correct in finding that there was a novus actus interveniens, being the contraction of fungal pneumonia from a non-work source by the deceased who already had a compromised immune system. 9. That on the basis of the decision in Te Huia v ARCIC (79/95) while a predisposition existed the causative factor or trigger stimulus is external to and unrelated to the employment and cannot be brought in by a process of underlying assumptions to incriminate the employment itself. Mr McBride submitted: 1 . That on the basis of the decision in West v Firestone Tyre and Rubber Company [1992] 2 NZLR 23, the appellant must establish that the disease was or is due to the nature of the deceased's employment. 7 2. That in relation to section 7(1)(a), the appellant must show on the balance of probabilities that but for the employment task, the disease would not have been a factor. 3. That on the medical evidence fungal pneumonia can be fatal irrespective of the impaired immune system although Dr Koelmeyer said that this was extremely unusual. 4. That Dr Dryson had considered that "it is not impossible that fungal infection could have resulted in a human being as a result of a chance infection with the fungi in association with reduced resistance due to nickel exposure." 5. That Dr Koelmeyer had stated that it was not possible after death to determine the state of the deceased's immune system. 6. That in relation to section 7(1)(b) there were no non-employment activities which could have contributed to the problem. 7. That the evidence establishes that fungal pneumonia is not a known risk in the electroplating industry and that the two commonly occurring known risks are dermatitis and chrome nose so that there is no benchmark of the occurrence of the disease in people performing that task in that environment compared to people not performing that task in that environment. 8. That it cannot therefore be said that the appellant has established on the balance of probabilities that the risk of suffering fungal pneumonia is significantly greater for persons performing that employment task in that environment than for persons who are not performing that task in that environment. 9. That the only evidence of the risk in that environment is that this appears to be the first event of its type in this business which has continued in the same premises since 1938. The issue falls to be decided under section 7 of the Act and in particular, section 7(1) which states: "7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment--(1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if-- (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (6) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and 8 ) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment." The evidence establishes that the employer has been established in this business since 1938 in the same premises and that no other worker has suffered from fungal pneumonia. The only two known employment risks in the electroplating business appeared to be dermatitis and chrome nose and the deceased had chrome nose as a result of being engaged in a similar business in Fiji prior to his coming to New Zealand in 1981. While Mr Smith has submitted that there is no break in the chain of causation because the deceased either involuntarily inhaled the fungi while suffering from a weakened immune system brought about by exposure of nickel or alternatively that it was an abnormal occurrence which he could not have been possibly foreseen. I do not accept that submission. The medical evidence indicates that while this appellant did suffer from a depressed immune system, which could have been the result of exposure to nickel in the course of his employment, there is no evidence to suggest that the onset of pneumonia came about in his place of employment. It may have done so or it may have come from outside sources and because of the condition of the appellant's immune system, he was more at risk than would have been a normal healthy person. This is clearly established by Dr Koelmeyer's evidence. While Dr Koelmeyer and Dr Dryson have suggested that on balance the exposure to chemicals in the workplace may have predisposed the appellant to fungal pneumonia, they do not go so far as to claim that it was the work which caused the fatal onset. I do not consider that there is any evidence as to how the appellant contracted the fungal pneumonia. In order to satisfy the requirements of section 7 and obtain cover under the Act the appellant must establish on the balance of probabilities that the fungal pneumonia was a particular hazard in the workplace and that he contracted it in the course of his work because that was what caused his death, not chemical exposure. I do not consider that the appellant has established that onus and the appeal is dismissed. DATED at WELLINGTON this 8th day of August 1997 Quunddubin A W Middleton District Court Judge dc350-96.doc (nr)