Mitchell v Accident Rehabilitation and Compensation Insurance,Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 381 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUSTIN NOEL MITCHELL of Australia Appellant (Appeal No. DCA 110/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS The appellant and the counsel for the respondent have requested that I issue a decision on the papers. The issue before the Court is whether the respondent was correct in its decision of 19 November 1998 to decline the appellant's claim for multiple chemical sensitivity arising out of and in the course of his employment. The background to the claim is that in August 1998 the appellant had lodged an application for entitlement under the Act in which his General Practitioner, Dr A P Brown, in her first medical certificate gave as a diagnosis "possible chemical exposure-like symptoms". In her medical practitioner questionnaire, Dr Brown stated the appellant had suffered chemical exposure while working for Taranaki Newspapers Limited when he was "exposed to chemicals used in 'developers' + 'fixtures". In his claimant questionnaire, the appellant said that the problems he suffered were exhaustion and fatigue. He stated that he considered the condition had developed for the reason "I believe working on the processor units for the past 3 2 years. This involves cleaning processor racks & rollers, filling up chemical replenishment tanks, and maintenance on the processors." He said that the work involved approximately two to three hours each day over a period of three years. In a later questionnaire, the appellant indicated that following a holiday break, his condition had improved but then regressed when he returned to work. He also stated that another worker employed in the same area had complained to him of similar symptoms. In its employer questionnaire completed on 15 September 1998, Taranaki Newspapers Limited reported that the appellant had been a full-time Maintenance Technician from 26 June 1995 to 14 October 1995 which work included daily changing of chemicals which involved approximately 14 to 1/2 an hour per day. From 16 October 1995 to 28 August 1998, the appellant became a part-time Systems Operator with again " to 12 an hour daily changing chemicals while the balance of his time was spent using a keyboard and filing reports and deliveries. In that period, on Tuesdays only, the appellant assisted in making plates and negatives for approximately three hours each day. The employer also submitted a Department of Labour assessment made in July 1995 which had been provided following a similar complaint from another employee who had worked similar hours in the same department as the appellant. That report noted: "Although monitoring carried out did not detect chemicals in the air, it has been found that when more than one chemical is present then the health effects are more profound (synergism). Research in photographic laboratories have presented photographers with health symptoms at very low levels of chemicals." The employer also noted by way of comment that prior to his joining Taranaki Newspapers Limited the appellant had been in full-time employment as a Painter for 31/2 years The respondent then referred the appellant to Dr E W Dryson, an Occupational Medicine Specialist in Auckland, who examined the appellant on 19 October 1998. Dr Dryson, in a report dated 8 November 1998, noted the appellant's symptoms as "nausea, exhaustion, memory problems, concentration problems, 'dried blood' smell in nose all of 2 yrs duration." Dr Dryson's comment was "this claim cannot be sustained without evidence of significantly more exposure to solvents than is presently available." On the basis of that report the respondent notified the appellant on 19 November 1998 that his claim for cover under section 7 of the Act was declined because the medical evidence demonstrated that the appellant did not meet the criteria required for cover under section 7. The appellant applied for a review of that decision. In support of his application for review the appellant provided voluminous documentation taken from various articles and journals in relation to chemical exposure and the problems it creates. The appellant also gave evidence to the 3 Review Officer as to the problems he suffered and his belief that it was caused solely by exposure to chemicals in the workplace. In his decision the Review Officer noted that the threshold required to be established by the appellant was that he had suffered a personal injury. The Review Officer stated that while the appellant attributed his symptoms to the exposure to chemicals and as the Review Officer considered that the appellant was sincere in his submission, there was no medical evidence to support it. The Review Officer stated that "without such evidence of personal injury and there being a causal or contributory relationship to some property or characteristic in the work environment, Mr Mitchell's claim for cover cannot succeed under Section 7 of the Act." It is against that decision which the appellant now appeals. In support of his appeal the appellant has again supplied the Court with voluminous releases from various journals in relation to the effects of toxic chemicals. He submits that the Occupational Safety and Health report provided by the employer was made in 1995 and was not made at the time he made his complaint. The appellant also referred to a decision of the Accident Compensation Appeal Authority issued by Mr B H Blackwood on 20 October 1992 in the name of Marriott (402/92). He submitted that that appeal was support for his claim for cover for multiple chemical sensitivity. The appellant has submitted that his former employer has used anything to discredit him and to deceive the respondent. He has submitted that while the report of Taranaki Newspapers Limited denied his evidence it has never provided any proof to support its statements. The respondent submits that the only medical evidence, apart from the initial query raised by the appellant's General Practitioner of a possible problem arising from chemical exposure, is the report of Dr Dryson. The problem for this Court is the issue raised by the respondent that the only medical evidence in support of the claim by the appellant that he has suffered personal injury must be the initial certificate of Dr Brown. Against that is the report of Dr Dryson. While the appellant has produced a large quantity of articles and submissions on the question of multiple chemical sensitivity and documentation regarding the problems which can be associated with the materials used in radiographic and photography processing, there is no medical evidence to support the appellant's claim that he has suffered personal injury from his employment with Taranaki Newspapers Ltd. The basic fact is that he has self-diagnosed his problems and has endeavoured to uphold his claim by producing the large quantity of articles from various authors as to what can occur from exposure to the type of chemicals to which he was exposed. However, in order to succeed in his appeal he must demonstrate that he has suffered a personal injury and this can only be demonstrated by a medical report which confirms the nature of his problem and the reasons for it. While the appellant referred to Matriott in support of his claim to entitlement, the factual situation is quite different. While the appellant in Matriott worked as a Photo Engraver and was exposed to similar chemicals as the appellant, there was considerable medical evidence from Specialists who examined and reported on Matriott from which the Authority was able to find that he was entitled to cover. In contrast to that, it is not sufficient for the appellant to diagnose himself and to then endeavour to justify the claim by providing articles which he considers support his diagnosis. The Court can only act on medical certification that, in fact, the problems which the appellant attributes to his exposure to chemicals have caused him a personal injury. There is no evidence of that. Dr Dryson says there has not been sufficient exposure to cause a personal injury and that is where the position must rest. The appeal is dismissed. DATED at WELLINGTON this 230 day of December 1999 A W Middleton District Court Judge dca110-99.doc (nr)