Chambers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 336 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOHN GARDNER CHAMBERS of Christchurch Appellant (Appeal No. DCA 145/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 19th day of October 1999 APPEARANCES/COUNSEL A J Cadenhead for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is the effective date from which the appellant is entitled to cover as a result of having suffered industrial asthma. The appellant lodged a claim for cover on 23 May 1999 in which he stated that he suffered asthma as a result of his employment as a self-employed carpet cleaner. His claim form indicated that the date of injury was "1989" and that the injury was caused by "inhaling chemicals over a long period that are associated with the carpet cleaning industry." The diagnosis by his General Practitioner, Dr R Evans was 2 'asthma - ? secondary to chemicals used in carpet business." Dr Evans completed the medical practitioner questionnaire on 3 July 1996. In that questionnaire Dr Evans, in answer to the question as to details of the treatment, noted "he received treatment in Chch Hosp in 1994 (see letter) when his asthma was diagnosed during a bad attack." Further in the questionnaire, in answering the question as to the whether or not the appellant has a history of this complaint, or other similar related conditions, Dr Evans stated "presented with cough & green sputum + bronchitis in June 90, settled with EES 7 Late Boctrim. Similar episodes in February & May 1994 'before his industrial asthma was diagnosed in Sept 94." Further in the questionnaire, in answer to the question of whether the appellant was on any medication prior to the onset of this condition, Dr Evans stated "asthma treatment only started in 1994 after diagnosis of industrial asthma made. Prior to that he had received antibiotics for bouts of bronchitis & sinusitis and Rhinocort. Nasal spray for rhinitis." On 6 August 1996 the respondent accepted cover for the injury described as "occupational asthma". On 29 August 1996 the respondent notified the appellant that it considered the date of personal injury was 28 September 1994, being the date upon which the first diagnosis of the complaint was made. The appellant lodged an application for review of that decision. The Review Officer decided that the decision of the respondent to fix the date of incapacity of 28 September 1995 was correct. It is against that decision which the appellant now appeals. Prior to the hearing of the appeal Mr Cadenhead submitted a bundle of medical information for which he was granted leave to adduce. The only issue before the Court is whether section 7(5)(a) applies. There has been no evidence in relation to section 7(5)(b) so that is not an issue before the Court. In so far as it applies, section 7(5) states: "(5) The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which- (a) The person first received treatment from a registered health professional for that personal injury as that personal injury;" Mr Cadenhead submitted that on consideration of the medical evidence which includes his General Practitioner's diary records, the appellant had been suffering respiratory problems for many years. He noted that in report of 29 May 1997, Dr J O'Hagan, a Respiratory Physician, stated that he believed that the appellant's respiratory problems amounted to an obstructive respiratory difficulty "following significant occupational exposure." Dr O'Hagan considered that the problem was exhibited by deteriorating health since 1990. Mr Cadenhead submitted that a date alternative to the 28 September 1994 would be 11 March 1992 when the appellant had been examined by Dr J Robinson who undertook a spirometry rehabilitation exercise. Mr Cadenhead submitted that the purpose of the exercise was to assist the appellant's respiratory problems. He submitted that on that basis the appellant was attending for treatment for his physical injury. 3 The second alternative date submitted by Mr Cadenhead is 19 June 1990 when Dr Evans noted that the appellant had "a chest infection" which included "green sputum, chest clear - bronchitis." Mr Cadenhead submitted that this is reinforced by Dr O'Hagan's report of 16 July 1999 in which he stated: "I have perused the notes of his general practitioner, Dr Evans, and find that on three occasions, June 1990, August 1992 and July 1993, he attended his general practitioner with a cough, green sputum and respiratory symptoms which was interpreted as obstructive airways disease, which on reflection is the asthmatic form of this condition." Dr O'Hagan then said: "It is not surprising that this may not have been recognised as an industrial consequence by his general practitioner at that time. Further evidence of airways disease was manifest in March 1992 when the spirometry performed as a prelude to joining a gymnasium showed significant airways obstruction. I therefore believe that he had received treatment for an airways obstructive condition, at least from June 1990." Mr Corkill submitted that on the basis of the Court's decision in Martin v ARCIC (1994) 1 BACK 54, the first time the appellant sought diagnosis and treatment for the personal injury did not occur until 28 September 1994. He submitted that while Dr O'Hagan has proffered three particular dates in 1990, 1992 and 1993 when the appellant attended his General Practitioner with cough and respiratory problems, none of these visits were a diagnosis of the actual problem made. Furthermore, one of the consultations was in relation to the prospect of attending a gymnasium, a requirement of which was to undergo a further medical check which included a check on the appellant's lung function. Mr Corkill submitted that the statement by Dr O'Hagan on 16 July 1999 that "I have perused the notes of his general practitioner, Dr Evans, and find that on three occasions, June 1990, August 1992 and July 1993, he attended his general practitioner with a cough, green sputum and respiratory symptoms which was interpreted as obstructive airways disease, which on reflection is the asthmatic form of this condition" indicated that it was not until July 1999 that Dr O'Hagan had decided that the complex symptoms exhibited by the appellant could be the result of occupational exposure which could have produced the bronchitic symptoms. As I made clear in Martin, section 7(5)(a) is quite explicit. I stated "in my view, the provisions of s.7(5) contemplated a specific visit to a registered health professional with a view to obtaining an examination and diagnosis of the alleged problem for the purposes of effecting a cure." I made that observation because the section refers to the date on which the person first received treatment from a health professional for that personal injury as that personal injury. There is no doubt, on the medical evidence, that over the years this appellant has had respiratory problems but until 28 September 1994 the diagnosis of industrial asthma was never made. He certainly attended his General Practitioner with various complaints of respiratory problems but until 28 September 1994 he did not attend Dr Evans for the diagnosis of his problem and for treatment of that problem. That is the issue which has to be the guiding 4 position in this appeal. I consider that the decision of the respondent and the Review Officer was correct and that the date upon which the appellant first received treatment for industrial asthma was 28 September 1994. The appeal is dismissed. DATED at WELLINGTON this 19 th day of November 1999 A W Middleton District Court Judge dca145-97.doc (nr)