Nowogrodzki v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 89 19 7 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HENRYK NOWOGRODZKI of Papatoetoe, Auckland Appellant (Appeal No. DCA 365/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of April 1997 APPEARANCES Appellant in person with Mr Buczkowski (Interpreter) A W Pearson, Administration Manager for Bridon New Zealand Limited (employer) T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under section 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant had been working for the employer as a gas cutter/ driller for some 61/2 years. On 15 February 1996 he lodged a claim for cover with the respondent on which his General Practitioner Dr P Vincent gave his diagnoses as "pinguecula/dry 2 eyes" caused by the nature of his work. Dr Vincent referred the appellant to Dr P Polkinghorne, an Ophthalmologist whose report of 12 February 1996 states: "Many thanks for asking me to see this man who has been finding over the last few months that his eyes become very tired at the end of the day. He finds he is unable to watch TV at the end of the day and he has become aware of degenerative plaques growing on the surface of his eyes. Mr Nowogrodzki is a very hard worker as you know, working for some thirteen hours a day doing gas cutting and welding. I note you have treated him in the past for raised blood pressure. On examination today his unaided acuity in the right eye is 6/6. With a mixed correction his acuity in the left eye improves to 6/6. With an add (sic) he reads N5 print. Slitlamp biomicroscopy of the eyes showed there was a very deficient tear miniscus. The degenerative pinguecula that you noted were present and slightly inflamed. Intraocular tensions were normal. Optic disc, retinal vasculature and macula health. I performed a Schirmer's tear production test to see how much tears were present. I recorded no tears in the right eye and just 4mm in the left after a five minute interval. After five minutes a normal person should have made at least 10mm to 15mm of tears. Mr Nowogrodzki's diagnosis therefore is of dry eyes. This is very advanced and I suspect is related to his occupation. There is no cure for this problem and management relies on augmenting what tear production is present with tear substitutes. Accordingly I have given Mr Nowgrodzki (sic) a prescription for Tear Plus which he will need to use for at least four times a day. I have also given him some Lacrilube ointment to use at night to try and keep his eyes hydrated during the night. I have not made arrangements to see Mr Nowogrodzki again but of course would be happy to do so at any time in the future. Mr Nowogrodzki is aware that this problem will be a chronic one and will require continual drops." The appellant then provided a gradual process disease or infection questionnaire form which was completed by Dr Vincent in which he stated that the condition of pinguecula arose from bright light and dust in the work environment. When that form was received it was considered by the appellant's branch medical advisor who noted that Dr Polkinghorne had said "I suspect this is related to his occupation" and he thereafter noted "I have spoken to Dr Polkinghorne and he thinks suspects "equals" it is very likely". The branch medical advisor considered the claim should be accepted and the employer was notified accordingly. The employer then applied for a review of the decision. 3 At the review hearing the appellant was present together with an officer of his Union and the employer was represented by Mr Pearson and also Mr Dykstra, another employee. Before the review hearing took place Dr Polkinghorne advised the respondent by letter dated 12 July 1996 which states: "I saw this man for review today on account of his dry irritable eyes. I can confirm that he does have kerato-conjunctivitis sicca and that the ACC have accepted this as a work-related disability. The pinguecula in the right eye in my opinion should not be surgically removed because of his dry-eye state and that he should continue on topical tear substitutes. I have given him a repeat prescription today for Polytears and Tears Plus." After the review hearing had been concluded the Review Officer requested further advice from Dr Polkinghorne whose letter in reply dated 11 October 1996 states: "Thank you very much for your letter of October 9th. As regards to the cause of kerato-conjunctivitis sicca. There are multiple factors which can give rise to this disorder. Many are not known. It can be caused through exposure to ultraviolet irradiation. Mr Nowogrodski (sic) relates his symptoms to his recent employment rather than that to the Pacific Steel or Polish Shipyards In reply to question number two, 'over what time does the condition develop?'.... it can be quite variable, from days to decades, depending on the aetiological agent. In answer to question three, it is possible theoretically for the electro-magnetic radiation involved in gas cutting steel to damage the eyes but I think this is unlikely. As regards to the new information that Mr Nowogrodski's (sic) recent employers office, I would be happy to review any information they have suggesting that Mr Nowogrodski's eyes were normal at the time of employment but most of the information detailed in your letter is purely hearsay. I enclose my fee for this opinion. Without being rude or appearing to be unhelpful I regret I will not longer be available to provide any additional opinions on this man as I seem now to be going round and rounds in circles." The Review Officer concluded that the evidence was unclear as to whether the appellant's entitlement had a particular property or characteristic which caused or contributed to his to his eye condition nor could she conclude that there was a property or characteristic which caused his condition which was not found in his non-employment activities. She further held that there was no evidence that the risk of suffering the injury was greater in the appellant's job with the employer than for persons outside that environment. It is against that decision which the appellant now appeals. 4 The appellant submitted and this appears to be confirmed by a letter from the employer's medical advisor, Dr Leung that in 1985 when the appellant had been employed, every employee underwent a medical examination including visual acuity. The appellant stated that this had occurred and that no problem had then been found in regard to his eyes. He said that the nature of the work was not welding as appeared to have originally been considered but was more in the nature of bending and cutting steel which had to be heated and then placed in water which created fumes and sparks. He said that initially he had been supplied with a pair of dark glasses for protection to his eyes and he produced the glasses which he said had been supplied for that purpose. They appeared to me to be an ordinary pair of dark glasses with no particular safety features. He said that after numerous complaints he found some suitable safety glasses which he demonstrated to the employer and which were subsequently accepted as being more suitable for the nature of the job. This appears to have been confirmed by a letter from Mr Pearson to the Court on 19 February 1997 from which it appears that it was not until the appellant had been in the job for some three years before the employer anticipated the need for proper safety glasses. The appellant also produced the type of heating torch which he was required to use for the cutting of the steel and demonstrated that in order to do the job he bent over the steel with his face approximately 18 to 24 inches from it. The steel was heated up by the use of the torch and then went into the water which created the fumes and sparks which he said got up under the originally provided glasses and caused the problems to his eyes. Mr Pearson suggested that it was not necessary to carry out the work in that manner and that the appellant could have used a special device which would have kept him at arms length from the alleged problem. The evidence given at review appears to demonstrate that the appellant worked long hours at this particular job and was the only employee who did this particular work. Mr Cleary submitted that the issue falls to be decided under section 7 of the Act. He submitted that the appellant has been diagnosed as having two distinct problems, they being pinguecula and keratoconjunctivitis sicca which is also known as "dry eyes". Mr Cleary conceded that the appellant's employment environment was dusty and dry and that this contributed to the condition of dry eyes. He submitted that no work task undertaken by the appellant attributed to his condition. Mr Cleary conceded that the respondent now accepted that the medical evidence suggested that section 7(1)(a) should be answered in the affirmative insofar as the condition of dry eyes is concerned on the basis of that the dry and dusty environment of the workshop contributed to that condition. He submitted that in relation to section 7(1)(b) the dry and dusty environment could be found to a material extent in the appellant's non-employment activities on the basis that the existence of dust and a dry environment is not limited to the appellant's place of employment. Furthermore, he submitted that while the gas/ cutting activity which involved light contributed to the appellant's condition, Dr Polkinghorne had conceded that dry eyes can be caused by ultra violet irradiation. Mr Cleary submitted that ultra violet irradiation is found to a material extent outside the appellant's employment. In relation to section 7(1)(c) he submitted there is insufficient evidence to conclude that the risk of suffering dry 5 eyes is significantly greater for any workshop employee of the employer who welds, gas cuts or drills than for a workshop employee not performing those tasks. He submitted that the dry and dusty environment of a workshop is uniform for all industrial workers. The issue falls to be decided under section 7(1) of the Act 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 an 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 (b ) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and ( c ) 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." I agree with Mr Cleary's submission that the medical evidence establishes that the appellant does suffer the condition of dry eyes and that its cause is the nature of the dry and dusty environment of the workshop. Dr Polkinghorne has eliminated pinguecula from the issue before me because it is not accident related and is caused by the age process. I do not accept Mr Cleary's submission that the dry and dusty environment was not limited to the appellant's place of employment. I consider that on the basis of the demonstration of the manner in which the appellant was required to work and particularly prior to his wearing proper safety glasses the appellant was subjected to extremes of dust and heat in his face which would not otherwise be considered to be normal. I consider that the general atmosphere of the workshop on the basis of the evidence available to me was such that it was dryer and far more dusty than outside the work environment. I do not accept Mr Cleary's submission that welding or gas/ cutting produced similar light or ultra violet irradiation as to that generally found in the atmosphere. I consider that the particular job involved what I could describe as "embellished" light which did substantially result in the appellant's problem of dry eyes. The manner in which this appellant demonstrated the nature of the work involved a very close relationship to the source of the light and in my opinion cannot be equated to the normal concentration of ultra violet irradiation outside the appellant's employment. I do not accept Mr Cleary's submission that there is insufficient evidence to conclude that the risk of suffering dry eyes is significantly greater for any workshop employee of the employer who welds, gas, cuts or drills than for a workshop employee not 6 performing those tasks. I agree that the general atmosphere of the environment in the workshop was uniform for all the workers employed therein but the evidence indicates that this appellant was the only employee engaged in the type of work which he undertook for long hours per day and in a very concentrated manner. I consider that any employee and in particular, this appellant who was engaged in the workshop to do the particular work required of this appellant was at a greater risk of suffering dry eyes than the other employees working in the workshop. The appeal is therefore allowed and the appellant is granted cover under section 7 of the Act. DATED at WELLINGTON this 2 day of May 1997 A W Middleton District Court Judge dc365-96.doc (nr)