Mallia v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 3 / 197 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN LYNETTE DIANNE MALLIA Appellant (DCA 282/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 22nd day of November 1996 G DS Taylor for appellant A D Barnett for respondent K F Horne for employer DECISION OF JUDGE D A ONGLEY This appeal concerns a claim for cover for personal injury caused by gradual process arising out of and in the course of employment. From 1987 to 1990 the appellant worked for Wellington City Council without experiencing health problems. During that time she was working as a stationery officer in an old building with open windows. In 1990 her duties changed to involve telephone work dealing with complaints. She was still located in an old building with natural ventilation through open windows. She progressed to the designation of client liaison officer for the Works Department. In March 1991 she was transferred to a new building, the Civil Administration Building, known as CAB. She began working on the 5th floor whilst building work - 2- was still progressing on three other floors of the building. Only two floors were occupied at the time. Her work area was an open plan area with no open windows and air circulation through floor vents. The floor was carpet tiled, there were new chairs with a chip board base, desks made of chip board covered with formica-type finish, venetian blinds, no curtains, movable fabric covered partitions made of bisonboard and wooden chip-board filing units. About 60 people worked in the open area. During 1991 the appellant experienced health problems. In her evidence before the review officer she said: "A short time after my actually moving into that building I started to lose my voice and this progressed slowly, throughout the year, progressed to a much deeper loss of voice. I go home in the weekends. I live on the coast, I love the outdoors and I used to find my voice would come back in the weekend. Slowly and progressively over the period of 91 my voice deteriorated and went down for longer periods of time. And in actual fact, towards the end of 91, a work colleague and myself actually did a survey on sickness levels in the building and we were surprised at the amount of time and that that people had actually had off work. It appeared to be, the sickness level appeared to be a lot higher during that period of time since being in a new environment. It was assessed that during the nine months that I was actually in that building of that I had six months of basically no voice. Along with the loss of voice there came, I became very tired, I became very listless, lethargic, I started to develop a cough, it was almost like bronchitis cough, but there was nothing indicated that it appeared to be bronchitis. There was no way that I could shake it off. It just sort of was there. Finally in November of 91 I went home so ill that I ended up taking at least three months off work and I had used all my sick leave, I used up all my holidays and I ended up taking leave without pay. At that point of time I was very sick, I was tired, I was lethargic, I had a bad cough, I had stomach complaints and was generally totally feeling unwell. My family then sent me on a holiday to Australia in December, and I finally returned to work in December, January 92 after a long weekend, after the Wellington Anniversary Weekend feeling refreshed, totally with voice again and ready to start work again. During the period of 92 I continued to lose my voice again. The symptoms again were dry skin, headaches, lethargicness, I started to develop bruising over my body which was unexplained, and especially to the arms and legs and the buttocks. Upper respiratory problems, irritations and my eyesight started to deteriorate. In August 92, my skin broke out in a rash. This rash slowly spread over my body and just about drove me up the wall. It was itchy and it irritated day and night continuously. The hotter my body got, the worse it developed." The appellant had previously enjoyed general good health except for a persistent loss of voice (dysphonia). When she was later examined by Dr Lissa Judd of Occupational Safety and Health Service in 1994 she gave an account of having suffered from a dysphonia which began in 1985 when she was working in an air- conditioned building in Palmerston North. She experienced similar symptoms when working in 1986 in a supermarket checkout in proximity to an air-blower vent. The - 3 - problem resolved when she ceased working in that building and recurred when she moved to the CAB in 1991. The appellant was referred by the Waikanae Health Centre to Dr Graeme Webster, Otolaryngologist. Dr Webster reported on 28th August 1992: "She has had intermittent loss of voice almost since she was a teenager and over the last 12 months or so this has been occurring for long periods at a time. These episodes appear to be precipitated by upper respiratory tract infections. She does not seem to have to use her voice excessively in her job and although she has had considerable domestic stress in the past, this is not the case at present. She is a non-smoker. The quality of her voice varied considerably during the consultation and at times was extremely breathy, almost a whisper. Laryngoscopy revealed normal vocal chord movements with involuntary actions such as coughing and laughing but on phonation she had incomplete closure of her chords with a large gap between them. I think therefore that her main problem is muscular tension dysphonia and she definitely needs some voice therapy to sort this out. I will arrange for her to see Gay Williamson in this regard." In 1992 she went to a naturopath and was recommended to see Dr Bruce Duncan, an ear, nose and throat specialist. Dr Duncan reported (18 October 1993) that he had seen the appellant first in November 1992 "... complaining of a painless laryngitis (husky voice) with a voice that at times disappears when fatigued. An allergy and virutherapy (Multiple Latent Viruses) work-up improved and cleared several other symptoms, but the voice changes were resistant to therapy." In December 1992 the appellant moved into a re-vamped old office building, the Municipal Office Building (MOB) where she was situated next to an open window. Her voice returned but the skin rash continued. She said at the review hearing: "Still feeling lethargic, dry skin and still having bruising. Finally January 93, the itchy skin continued throughout the year along with the other complaints I previously mentioned. Still having a voice. Throughout 93 this continued. I started to get dizziness, light headed, disorientated at various times and though this was rather a strange feeling. Had no answers and just put it down to the fact that I was getting older. After all this time I'm starting to realise that maybe this is not really an age situation because as it was, when I started asking around, a lot of other people were suffering with similar type problems. August 93: I was moved from this open office, from this office which had open windows into an air conditioned office again and during that time within a matter of days I lost my voice again. The tiredness developed again, I started to get tightness of the chest, my respiratory system, upper respiratory system started to break down again. Problems developed. I started to get a terrible cough and the bronchitis type feeling again. September 93: I was sent home against my will and told to go home and stay home until such a time as my voice returned. October 93: Still at - 4 - home and without a voice, I received a letter stating that I was to return to work and was not allowed any more sick leave and that I was to seek medical clearance to state that I would take no further time off work and that I would come back with voice. I point out that I still had no voice at this time. Still also having the skin rash and slowly dealing with that. Whilst having the skin rash I was on an extremely strict diet which left me eating totally and only vegetables. We suddenly discovered that the possibilities of the skin rash and that could be the high levels of formaldehyde which were found to be in the building. The petrochemicals and the reports that came out from Wellington City Council were not favourable." On 18 October 1993 Dr Duncan reported after seeing the appellant on six occasions between November 1992 and September 1993, as follows: "I have seen and examined many patients over the years who work in certain buildings in Wellington with fixed windows. They have what is now called 'The Sick Building Syndrome' and present with a variety of symptoms, but in particular, the nose, chest and headaches are the main symptoms with less often headaches, depression, skin itch. Several, I recall, had voice changes. M/s L Mallia has 'The Sick Building Syndrome' in my opinion and she demonstrated this in the early stages while being on sick leave, away from the room and appliances. Resulting in a recovery of her voice. On return to the workplace the symptoms recurred in the larynx. She reports to me a similar sick leave experience in 1991, that was before she contacted me. She has undergone a complete series of blood tests, some repeated and all have been normal. She has had her eyes checked because of eye irritation at work - they were normal. The symptoms that were resistant to the treatment I carried out on her were, it seemed, those provoked by her workplace conditions. An examination of the larynx during a period of hoarseness showed rounded cord edges and reasonable movements and tension of the cords. The cords do not approximate in a normal manner but these movements are not those that suggest a functional voice loss. SUMMARY: Symptoms related to allergy and virutherapy responded but those experienced at her workplace did so poorly and the improvement fell away after a few days. From her description of the working place, which I have not examined, I consider it to be one of the causes, probably the principal one of her voice changes to hoarseness, and in addition headache fatigue from 'The Sick Building Syndrome'. Continual use of her voice as a telephone operator in these working conditions are not suitable for her voice. RECOMMENDATION: To be transferred if possible to a working room or site, in a part of the office building where there are opening windows. She should have less voice usage. It is probable that if she remains in the present working conditions and constantly using her voice, some permanent changes to the vocal cords in the larynx will occur, resulting in a chronic hoarseness In my opinion this would be a disaster for a woman. She will probably need further examinations to check vocal cord appearances and action." The appellant's general practitioner, Dr Giresh Kanji, filed an ACC claim on 6 October 1993. He described the diagnosis as laryngitis due to building environment. Doctors who examined her at about that time did not report the variety of symptoms that the appellant described to the review officer. She saw Sandra Rattenbury on 16 August 1993. Dr Rattenbury reported: "Lyn told me she suffers hoarseness and loss of voice in airconditioned environments. She has been examined by several ENT specialists with nothing specific to see on vocal cord visualisation. Her current problems have arisen since moving into an airconditioned office. That resolved when she temporarily moved into a non-airconditioned part of the WCC building. There is a past history of voice problems with another job." Dr Webster reported on 3rd November 1993: "She reports fluctuations of her voice quality which vary broadly from being quiet down to virtually absent, and she finds these fluctuations to be related to her working environment, in particular her current air-conditioned office. She does have to use her voice considerably at normal conversational level with telephone work, but there appears to be no vocal overuse either at work or recreationally. When I saw her in August last year she reported problems with her voice since she had been a teenager and at that time she reported a one year history of worsening problems which seemed to be related to respiratory tract infections. The clinical findings were identical, both then and on today's examination. She had a breathy voice of very low amplitude and laryngeal examination while she was talking revealed incomplete adduction of her vocal chords with speaking, but normal movement of the vocal chords during involuntary action such as coughing or laughing. There were no changes of the vocal chords to suggest irritation or inflammation. My opinion regarding her voice problem is unchanged since last year, in that I found her to have a muscular tension dysphonia. In this condition Ms Mallia fails to adequately close her vocal chords and therefore fails to produce an adequate sound from her larynx. This appears to be involuntary but may have a psychogenic relationship to changes in her working environment. However, her working atmosphere itself is certainly not the cause of her condition." Dr Catherine Ferguson, Otolaryngologist, reported on 30th December 1993: "Diagnosis; Functional Dysphonia -6- Thank you for referring Mrs Mallia with a three year history of a voice problem. This is intermittent and is aggravated by working in conditions of air conditioning. However she has not been working for some months now and her voice has not improved. It is painless and there is no difficulty swallowing. She is a non-smoker and finds that her voice does get worse if she talks a lot. She had a similar problem eight years ago but this settled spontaneously. Examination today shows a typically weak and strained breathy quality to the voice. Examination of the vocal cords shows bowing of the cords with incomplete meeting of the cords on phonation but a completely normal cough with normal vocal cord movement on coughing. The rest of the examination was unremarkable. I have reassured Mrs Mallia that there is no structural abnormality causing the problem in the voice box but that her voice problems are as a result of the way she is using her voice. I think that voice therapy is absolutely mandatory here and have referred her to the voice therapist at Kenepuru Hospital." The above extracts are set out at length because they demonstrate that little or no attention was given to symptoms other than voice and throat problems. Either the appellant did not describe other symptoms, or they were not considered significant in the context of diagnosis and treatment of her hoarseness or laryngitis. The exception was Dr Duncan who referred, in October 1993, to eye irritation and headache fatigue as well. Building Inspections The City Council buildings in question were the subject of a survey conducted by Mr Leonard Stratton, an environmental scientist employed by ESR in the area of health and safety in industry and commercial buildings, later employed by Command Environment and Energy Services (NZ) Lid before establishing his own company, Healthy Environments Limited, as a specialist consultancy. In June 1992 he surveyed the indoor air quality in eight areas within the CAB, and in August 1993 he surveyed indoor air quality in areas in the MOB. His first survey coincided with the period when the appellant was working on level 5 of CAB. Mr Stratton reported that carbon dioxide and carbon monoxide levels were well within the guidelines indicating sufficient fresh air was provided to maintain a comfortable work environment. Microbiological indicators were within safe levels and formaldehyde levels were found to be within comfortable guidelines and not of concern to the health or comfort of most individuals. Mr Stratton monitored the indoor air quality of the customer service area in the MOB on level 4 for 48 hours from 31 August 1993 to 2 September 1993. He said that the appellant was then working there. There were opening windows and a door to an outdoor balcony. He found the carbon dioxide and carbon monoxide levels to be satisfactory, indicating more than sufficient outdoor air volume to control other contaminants arising from sources within the office space. Mr Stratton's brief of evidence to be heard in the course of the appeal was accepted without the necessity of - 7 - calling the witness. A similar concession was made in respect of the evidence of Professor W I Glass and Mr W E Sisk. In Mr Stratton's brief of evidence he said: "Total volatile organic compounds ('VOC') and formaldehyde As commented above, the ventilation rate held down overall levels of internally generated pollutants including all VOC's to minimal levels. The VOC concentration in the Customer Services area during office hours was recorded consistently well below the 1.5 pm target limit suggested by Environmental Protection Agency. Formaldehyde is a common indoor pollutant that is emitted from a variety of materials, including consumer products. The common source of emissions in the indoor environment are from plywood, particle boards and other compressed boards, urea-formaldehyde foam insulation, some adhesives, and furnishings such as drapes, carpets, textiles, etc. The emission of formaldehyde gas from these sources is generally steady state and the rate of off-gassing relates to environmental conditions, such as humidity, temperature and ventilation rate. It should be noted that formaldehyde is also emitted from consumer products such as hair spray, perfume, deodorisers, furniture polish and nail varnish, which may have been used by staff in the appellant's work area. Smoking is another source of formaldehyde gas. The emission of formaldehyde gas from these sources fluctuates due to occupant activity. The guideline comfort limit for formaldehyde levels is 0.1 ppm. The limit cited is a guideline only and is regarded as an acceptable limit given current knowledge - see NZ$4303:1990 appendix C (annexed and marked as 'D'). Accordingly, it is desirable to maintain levels below this guideline using the indoor air quality procedure which is a minimum ventilation rate as listed in Table 2 NZ$4303:1990 (annexure "A'). I would note here that the guideline of 0.1 pm for formaldehyde levels is calculated by taking the industrial standard of 1 ppm and dividing it by 10 which equals 0.1 ppm. It is not an enforceable standard, but merely a guide as to the acceptable level in the office environment so as not to cause discomfort to employees. The standard for offices is therefore only one-tenth of the industrial standard of 1 ppm. That indoor level is significantly lower than what would be considered as a totally unacceptable level, to ensure a safety gap is present to minimise irritation and the potential for health effects in reaction to chronic long term exposure." The significance of formaldehyde in the air is connected, in the scientific literature, with a collection of symptoms frequently described as 'sick building syndrome'. Professor Glass examined the appellant for the purposes of this appeal. He said that she had 15 positives out of 20 symptoms in keeping with the type of response confirming sick building syndrome. The tenor of Professor Glass' brief is that those symptoms were present before she took leave in late 1991, but the language of his brief is by no means clear on that point. He obtained a history from the appellant, and his description of her symptoms is more emphatic than her evidence at the review - 8 - hearing. It is puzzling that symptoms of the kind described by Professor Glass were not recorded by the doctors consulted by the appellant during 1992 or even during 1993. For example, he said: "By April [1992] she had severe headaches as if her head would explode, she also had nausea and vomiting with her headache. She could not even brush her hair, her whole head felt so sore. She also had dizziness, disorientation and felt she was going mad. In spite of all this, she continued at work as she was running out of sick leave." Possibly the doctors who attended the appellant in those years focused on the condition of dysphonia and dismissed other symptoms as unrelated or temporary. Professor Glass recorded that the appellant felt a little better when her duties in October 1993 were changed to entering data in a laptop while driving around Wellington, but she became distressed again on the occasions she returned to the building. Professor Glass said that since leaving work her general health gradually improved in 1994 and afterwards, but she remains sensitive to certain environmental situations; some perfumes, aftershaves, household cleaners, aerosol sprays, carpet shops and paints. Mr Taylor dealt carefully with the sampling graphs for formaldehyde in the MOB over the 48 hour survey. The levels of formaldehyde and total volatile organisms were separately recorded. Disregarding the peaks, the fluctuation of formaldehyde rose above 2 ppm (parts per million). This appeared to occur particularly during night hours while the building was closed. During day time hours the average levels fell around 1 ppm. That variation is consistent with formaldehyde being emitted while ventilation was switched off at night time. Mr Stratton's report recognised that there were a number of formaldehyde emitters in the building and he said: "The formaldehyde levels during normal work hours in all four areas surveyed were consistently above the guideline upper limit of 0.1 ppm as recommended in SANZ 4303. This guideline limit is based on evidence that sensitive people begin to experience irritation of eyes, skin and throat. The level of formaldehyde is twice the recommended limit in several areas. The real-time profile for this pollutant, shows it builds-up in the office areas after hours when the ventilation system is shut off The level of formaldehyde in air during normal work hours is not acceptable. The low space humidity recorded at the level 2 site, is the cause of the higher concentration of formaldehyde in air during normal work hours in this office area. Low humidity and high indoor formaldehyde levels will cause discomfort to people and is documented to cause rashes, eye, throat and other health complaints in sensitive people. Action required: There needs to be a reduction in the Total Volatile Organic Pollutant burden in the office environments, and more particularly the formaldehyde level." - 9- Mr Stratton concluded that the TVOC's (total volatile organic compounds) were generally low during normal work hours, which reflects the air delivery rate (air exchange) in office areas was reasonable. He made the following recommendations: "1. Increase the humidity in all four office spaces to near the ideal of 50%. This will help reduce the emission rate from specific sources in the indoor environment. 2. Increase the ventilation rate during office hours. 3. Run the air conditioning system with a higher proportion of outdoor air. This is one way to raise the humidity. 4. Adopt a pre-occupancy purge to lower the pollutant levels that have built-up over-night. A high proportion of outdoor air should be used. 5. Investigate removal materials that are volatile emitters and segregation of specific equipment that releases fumes. It may not be practical to remove or treat materials to reduce the emission rate of volatiles, particularly formaldehyde. To assist the court, counsel provided some of the literature concerning formaldehyde emission and sick building syndrome: Gammage and Gupta, "Indoor Air Quality" Chapter 7; Jaakkola and Miettinen, "Ventilation Rate in Office Buildings & Sick Building Syndrome", Occupational and Environmental Medicine 1995, page 709; Patricia J Sparks and others "Multiple Chemical Sensitivity Syndrome: A Clinical Perspective; JOM Volume 36 No. 7 July 1994. There is general agreement that formaldehyde in air can cause irritation to some people at levels around and above .1 part per million. Eye irritation occurs when formaldehyde dissolves in fluid to produce formalin. Irritation of eyes, nose and throat is detected first and causes discomfort but is not known to have any worse effect. Symptoms of that kind were being experienced by staff members in the Council buildings from 1992 to 1994 when a study was carried out by Dr Keir Howard, commissioned by the City Council. He examined 32 persons who took advantage of the offer of medical consultation. He commented: "The smallness of the sample makes it difficult to be confident of the representative nature of the complaints and examination results. Symptoms were mainly related to the respiratory tract and included soreness/dryness of the throat, nasal symptoms, wheeze and chest tightness and an increased susceptibility to upper respiratory tract infections. In addition there were complaints of dry and irritated skin, headaches, tiredness and irritability. These symptoms are classically those described by people working in environments of poor air quality ('sick building syndrome'). ... The results of this survey suggest the existence of a genuine problem with air quality, although the reporting patterns suggest that other factors may be influencing the levels of discomfort felt by staff. Staff may be reassured that symptoms, while irritating and annoying, are not precursors of significant illness or long term health problems. However, the existence of such symptoms will - 10- reduce morale and affect productivity and the possible causes should be addressed and removed as far as is reasonably practicable. Recommendations are made with respect to ways in which the working environment may be improved." Dr Keir Howard also commented on the present understanding of the collection of symptoms known as sick building syndrome. He said: "4.2 'Sick Building Syndrome This condition is an umbrella term for a variety of symptoms which are thought to be due to inadequate indoor air supply and the presence of various chemical pollutants and micro-organisms, particularly fungal spores. Modern ventilation systems have replaced old-fashioned window ventilation with methods of increased recirculation of air to reduce heating and other energy costs. The result of recirculation may be to allow a gradual build up of indoor air pollutants. The effects of such systems may be enhanced by poor design and maintenance, particularly when there are inadequate air exchanges in the building, so-called 'dead' pockets, as well as overcrowding. People will also often report symptoms when comfort levels are poor as a result of the indoor environment being at the wrong humidity or temperature. There is still considerable discussion about the possible causes of this condition. Various statistical associations have been reported, but such associations do not necessarily constitute proof of causation. The presence of volatile organic compounds has often been implicated, although some recent Swedish work has not supported this view. More likely culprits are materials and substances which may be irritant or likely to induce mild sensitisation effects. Of these, substances such as formaldehyde and various micro-organisms (especially fungi), as well as general dust, are likely to be the most important. Symptoms of 'sick building syndrome' that are most commonly reported are: general tiredness and lethargy, upper respiratory tract irritation, eye irritation, skin irritation and dryness and headaches. It will be seen that these are the symptoms reported by the group in this survey. There is no reason to suspect collusion in the reporting of symptoms and they are consistent with the widely recognised pattern resulting from so-called 'sick building syndrome'. It needs to be stated, however, that such symptoms are not uncommon in the general population and may also arise from such simply causes as inadequate temperature and humidity control, especially low humidity which has been a problem within the Council buildings. Furthermore, home circumstances may often contribute significantly to the problem and it has been noted in several studies that psychosocial factors, such as dissatisfaction with the work situation, work load or supervision will strongly influence the reporting of symptoms. It should be a matter of concern to note that the majority of persons seeking medical examination in this study came from one particular area of the building. This fact adds to the difficulties of making assumptions about the representative nature of the group as a whole. It would seem that in this study, a variety of factors has contributed to the problem. Of these raised levels of formaldehyde being 'gassed off" from new furnishings, carpets, etc, and low levels of humidity have been among the more - 11 - important factors. In addition psychosocial factors should not be ignored and there appears to be some evidence that they may be implicated due to the very obvious variations in reporting characteristics from different areas of the buildings. What is important to emphasise, however, is the fact that there was no clinical evidence of significant pathology arising from the work environment in those people who were examined. Again, it needs to be stated that the group was small and may not be representative, but it seems reasonable to assume that those who presented for examination were those who felt that they had the greatest problems from their working environment. Previous studies throughout the world have shown that as a general rule and in virtually all cases, symptoms represent no more than a threat to comfort and productivity and are not precursors of more sinister diseases nor the evidence of some specific illness. Staff need to be reassured that although their symptoms are irritating and often unpleasant they are not a threat to their long term health. On the other hand, this fact should not be used an excuse for ignoring a problem which will affect morale and productivity within the organisation unless it is adequately addressed." Dr Keir Howard also made recommendations mainly relating to ventilation. The appellant adduced a brief of evidence of Mr W E Sisk who is a registered valuer with degrees in Bachelor of Business Studies and Master of Philosophy in Building Technology. His masters thesis was "Building Related Illness - a Procedure to Detect Symptomatic Buildings". He extracted the appellant's history from the review papers and an unspecified interview. He ventured the conclusion that she had become sensitised to one or more pollutant and as a result was unable to work in a sealed, air- conditioned environment. He said that the majority of her symptoms were consistent with the sick building syndrome, and the most likely cause or trigger was probably the elevated levels of volatile organic compounds. He referred to dysphonia as an inconsistent symptom but one which is occasionally mentioned in air quality literature, but which is idiosyncratic. He supported Dr Webster's conclusion that her dysphonia was related to respiratory tract infections - given her history of problems. Those conclusions by Mr Sisk have been criticised by counsel for the respondent as amounting to an attempt at medical diagnosis. They should indeed be regarded with care because Mr Sisk does not have the clinical expertise to differentiate symptoms and illnesses in order to attempt to locate a probable cause. His expertise is based in a specialist area and there is a recognisably danger that he may be likely to more readily identify symptoms with the area in which he has some specialised knowledge than with other possible causes. In dealing with the literature, he said that the appellant is probably one of a small percentage of the population that has been or will be disproportionately affected by chemical exposure within her working environment. These people are sometimes referred to as "index cases" or "canaries". His conclusion relating to a probable diagnosis of the appellant should be put to one side, however, the literature bears out that some especially sensitive people are likely to be affected by volatile organic - 12- compounds below the threshold of discomfort for the general population. In relation to Dr Keir Howard's report, Mr Sisk said: "The immediate line of enquiry that presents to any investigator looking at City Council Building at the time of Dr Howard's report would be to initially suspect elevated levels of organic compounds. The majority of freshly retrofitted buildings will have elevated levels of Volatile Organic Compounds (almost by definition), possibly for as long as twelve months. The levels decay over time due to a curing process. Many of these volatiles are known irritants and intoxicants and include xylene and toluene from paint, formaldehyde from particle board and ketones from lacquers and adhesives. Hedge et al., (1989), indicate that in temporarily sick buildings, symptom onset is acute and declines over time with most problems ceasing within one year. They report that studies of temporarily sick buildings frequently identify volatile organic compounds as the likely source of the problem. We note that when Dr Howard's report was produced it was more than two years after the Appellant first moved into the building, indicating the possibility of a deeper seated problem." All the foregoing material raises the possibility that the appellant's symptoms were related to exposure to VOCs in the Council buildings in the course of her employment. In considering whether that can be raised to the level of probability, other factors have to be examined. The principal matter on which the appellant relied is the temporal relation between her working in enclosed spaces in the Council buildings and the development of her troublesome symptoms. That relationship can be seen from the evidence mentioned above without traversing the significant times and symptoms in detail. On the other hand, there is evidence that she had experienced similar symptoms before. She had suffered dysphonia from time to time since 1985 well before she began working in the buildings in question and she had experienced discomfort when working near an air-conditioning vent in a supermarket. The onset of her symptoms are not therefore wholly connected with the commencement of her employment in the City Council buildings. Statutory Requirements The requirements of s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992 are as follows: "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 - 13 - (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. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment. (3) For the avoidance of doubt, it is hereby declared that personal injury attributable to - (a) Air-conditioning systems; or (b) Passive smoking - shall be deemed not to have been caused by gradual process disease, or infection arising out of and in the course of employment for the purposes of this Act. ....... Personal injury This inquiry concerns more than mere discomfort. The injury for which the claimant seeks cover is a condition of increased sensitivity to a range of chemicals or to air- conditioning systems carrying airborne chemicals so that she is unable to work in modern air-conditioned buildings or buildings constructed with processed structural material and furniture which is a common and inescapable element of commercial buildings generally. The central issues on appeal are whether there is a probability of her having suffered an injury and that the cause, or a contributing cause, was to be found in the environment in which she worked in the Council buildings. The appellant provided a report by Dr E W Dryson of Penrose Occupational Health Centre. He classified her present condition, attributable to her employment environment, as a condition of multiple chemical sensitivity. Counsel for the appellant did not rely on Dr Dryson's opinion because it consisted of an exposition of medical theory rather than an examination of the appellant's history and symptoms. The appellant relied rather on a combination of the expert opinions of Mr Sisk, in relation to the sick building phenomenon, and of Professor Glass, in relation to diagnosis of the appellant's condition. He said: Since leaving work her general health has gradually improved. However, she remains sensitive to certain environmental situations. Some perfumes, aftershaves, household cleaners, aerosol sprays, carpet shops and paints. Section 7(1)(a) There is sufficient evidence to demonstrate that the environment in which she performed her employment task had the property or characteristic of the presence of volatile organic compounds and formaldehyde at concentrations around .1 ppm more or less continuously. When she began working there the building was still being constructed. The evidence and the literature indicates that emission from modern - 14- process building materials is high. The level of formaldehyde is scarcely likely to have been less in 1991 than it was at the time of Dr Keir Howard's study in late 1994. The whole of the evidence shows a probability that levels were sufficiently high to cause the appellant's discomfort, at least. Section 7(1)(b) The second question is whether that property or characteristic is not found to any material extent in the non-employment activities or environment of that person. The appellant had said that she was building a house in 1991. She gave evidence at the appeal hearing that she moved into her new home in August 1992. She lived there for only a short time. Dr Duncan eventually raised the question whether her symptoms might by caused by formaldehyde. She said that Dr Duncan was aware of all her symptoms. As a result of his advice she did not live in her new home but stayed with other people during the week and returned to the home in the weekends. The house had no floor coverings nor to her knowledge did it have particle board. She had old furniture in it. Her description of it is consistent with there being little in the way of formaldehyde emitters and she was spending less time there than she was at work. She said that the other house in which she stayed and the house where she had lived before building a new home were older houses with carpet and old furniture. Her evidence was that she in fact had some relief from her symptoms during weekends when she was away from work. I am satisfied on the balance of probabilities that if the cause of her ongoing symptoms was formaldehyde or other VOCs then the property or characteristic was not found to any material extent in her non-employment activities or environment. Materiality has to be associated with causation. A contributory cause from non- employment activities with marginal effect which is not "material" does not disentitle a claimant from cover. There is no real evidence to indicate that there was an outside level of VOCs sufficient to cause the sensitivity which she now appears to have developed. Section 7(1)(c) The appellant has to show on the balance of probabilities that the risk of suffering 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. This requirement gives rise to two separate difficulties of construction. The first is that the conjunctive expression in s 7(1)(c) produces a possible interpretation that an appellant must show that the risk is significantly greater for persons performing her employment task in the environment than for persons performing other employment tasks in the environment. The alternative construction might be viewed, as Mr Taylor put it, on the basis that the drafter has telescoped the concept so as to avoid cumbersome circumlocution and to make it clear that paragraph (a) is to be related to paragraph (c). He suggests that on the facts of this case paragraph (c) should be read as if saying "the risk of suffering that personal injury is significantly greater for - 15 - persons performing their employment task in that environment than for persons who do not perform their employment task in that environment". I agree that such an interpretation appears to give best effect to the apparent intention of s 7. Counsel for the respondent did not argue otherwise. Mr Barnett did, however, raise a question of interpretation that has already been dealt with in this court in the case of Bilkey. He submitted that the word "persons" must be read as being "persons generally" and not the person claiming cover. The appellant's case is based partly on the proposition that she probably fell into the "canary" group. The weight of evidence tends to show that persons generally would not have a significantly greater risk of developing sick building syndrome in the environment of the Council buildings by comparison with persons who are not performing a task in that environment. There is a shift from reference to "the affected person" in subclause (a) and "that person" in subclause (b) to "persons" in subclause (c). Mr Barnett submitted that the change in expression must have been deliberate and it indicates an intention that subclause (c) refers to persons generally. Mr Taylor has submitted that such a construction would lead to manifest unfairness, including discriminatory results where persons with disabilities or other persons who might have a predisposition to certain types of injuries, and who comprise a small percentage of the population, would be disadvantaged. The construction urged by the appellant is consistent with the "eggshell skull" principle which has always been part of the jurisprudence of compensation for personal injury liability. Furthermore, if subclause (c) referred to persons in general, a new layer of evidence and proof would have to be introduced to establish cover in cases where it would become necessary to show that the general population was more or less amenable to suffering injury in a given environment. I think that such an intention in the legislation is unlikely. Subclause (c) deals with risk, that is to say the risk carried with the employment task or the environment in which it is done. There has to be a comparison between the risk existing in those circumstances with the risk existing elsewhere. The test is cumulative with subclause (b) so that an appellant has to show that he or she does not experience the property or characteristic causing the injury outside the employment task or environment, and that there is a greater risk in that task or environment than otherwise. The word "persons" in subclause (c) can be read as "all persons" or "any person". In the context of 7(1)(c) it is capable of including any of those persons. It strains the wording, as well as introducing difficulties of proof, to suggest that the expression means "persons generally". If the expression is read as "any person" it permits consideration of the range of characteristics that a person may have, including a predisposition or "eggshell skull". The comparison is, then, a comparison of environmental or task risk rather than a comparison of vulnerability of different groups or proportions of persons in the general population. Another way of looking at the question is that increased risk to any person in the general population increases the general or average risk to the whole population. It can not possibly be intended that a claimant must prove that every person in the population would suffer a significantly greater risk. - 16- If that interpretation is correct, it leads to consideration of risk to a person with the characteristics of the claimant. I reach the same conclusion, with respect, as Imrie DCJ did in Bilkey. Air-conditioning Under s 7(3)(a) it is declared, for the avoidance of doubt, that personal injury attributable to air-conditioning systems shall be deemed not to have been caused by gradual process, disease, or infection arising out of and in the course of employment for the purposes of the Act. The appellant argued that the cause of the appellant's injury was independent of the air-conditioning, because volatile organic compounds were emitted from her immediate surroundings and not conducted by air-conditioning. The graphs produced with Mr Stratton's evidence showed that the VOC's increased in parts per million during the night when the air-conditioning was turned off. The effect of air- conditioning appears to be that VOC's are reduced by circulation of air, including the fresh air introduced into the air-conditioning system. The respondent argued that the cause of sick building syndrome suggested by the appellant is one that involves a multiplicity of causes contributing to an effect, thus the pollutants, or even the sources of pollutants, may be the immediate cause but that does not exclude from consideration the air-conditioning system as a material cause. It was submitted that the focus of causation should not be confined exclusively to the immediate cause but the work environment or system of work should properly be looked at as a whole. It is said then that in the office building that was not naturally vented by opening windows, the system of work required alternative ventilation provided by an air-conditioning system which, as it turned out, did not sufficiently clear the air. The failure of the air-conditioning was therefore a material cause of the injury. An analogy was drawn with a guard on machinery intended to provide protection, but providing only partial protection resulting in injury, and amounting to a cause of the injury even although it had ameliorated the risk to some degree. The respondent submitted that, if formaldehyde or VOCs were found to be causative, then the system of work had failed and a material part of the failure was the air- conditioning. There is no definition of "air-conditioning" in the Act. For the purposes of this decision it can be assumed that the expression is wide enough to cover a system of air circulation, including a mixture of fresh air and recirculated air, as in the buildings in question. The respondent's argument takes the system of work as a whole. Because the building is not naturally ventilated, the state of the air and the chemicals present in it are regulated by the mode of management of the atmosphere in the building which includes circulation at a greater or lesser rate, introduction of fresh air, and introduction or removal of whatever chemicals are emitted within the building or within the air-conditioning system, or introduced into the system from elsewhere. Thus the air-conditioning system does not simply consist of the ducts, fans, motors and other paraphernalia, but the whole of the air contained in the building. - 17- If the respondent is correct, it is difficult to see that injury concerned by gradual process disease or infection from the air could be covered under s 7 at all in employment situations where air-conditioning is provided. A worker might obtain cover in a building without an air-conditioning system, where another worker in a virtually identical position might be deprived of cover because of the presence of an air-conditioning system, even if the system reduced the risk of the injury in question. It is possible that the Act intended that there should be a special area of exemption for employers providing air-conditioning, but that is not what s 7(3)(a) says, instead it deals with a cause and effect relationship between air-conditioning and injury. The exclusion in respect of air-conditioning systems or passive smoking appears to be a policy exclusion. The reasons for it are not manifested in the section. I find that the injury in question in this appeal was not attributable to an air-conditioning system because the operation of the air-conditioning system did not contribute to the injury or increase the risk. Having dealt with those matters, the central considerations are the following questions of fact: 1. Whether a collection of symptoms known as sick building syndrome constitute an injury 2. Whether the appellant suffers from sick building syndrome or an injury which can be categorised by reference to a set of symptoms having a common cause. -3. Whether such an injury was caused or contributed to by volatile organic compounds in the air in the City Council buildings where the appellant worked. None of those considerations can be resolved with any degree of real certainty because the nature and cause of sick building syndrome is still controversial. On the evidence before the court, however, I find there is a probability that the collection of symptoms suffered by the appellant is common to a cause found in buildings with volatile organic compounds in the air. I find therefore that there is an injury, whether or not the cause is physical or psychogenic in origin. Dealing with the appellant's personal history of symptoms and exposure, there is considerable difficulty in identifying the commencement of the injury. Apart from the symptom of dysphonia, she experienced some other symptoms of discomfort when working near an air-conditioning vent in the supermarket at Waikanae. That resolved when she ceased work and she was symptom-free apart from occurrences of dysphonia until 1991. The coincidences of time are indeed important when considering proof on the balance of probabilities. It has been said before, particularly in cases before the Accident Compensation Appeal Authority, that a Tribunal cannot reach a conclusion that an injury was caused simply because the medical condition was not present before an alleged accident but was present afterwards. That is a matter of common-sense. The court cannot jump to a convenient conclusion of cause and effect just because of a temporal relationship. In this case the relationship is demonstrated on a much stronger basis because of the fluctuation or disappearance of symptoms coinciding with the appellant's working in a closed environment in the - 18 - Council buildings and living or working outside that environment, and because of evidence identifying the presence of VOC's in a significant quantity. Before 1991 the appellant may well have had a disposition for a range of symptoms to flare up when she was introduced for an appreciable period of time into a closed environment with VOC's at a level of . 1 ppm or thereabouts. Her medical condition eventually advanced to a point where she has become sensitised to an extent that she reacts almost immediately to a range of chemicals. Before 1991 she had not experienced her symptoms in response to casually . entering air-conditioned environments or carpet shops. Her symptoms occurred only when she was constantly near an air-conditioning vent. I am satisfied, on the balance of probabilities, that the environment in the City Council buildings at least contributed to a significant increase in her sensitivity to formaldehyde, VOCs or other airborne chemicals. She worked there for sufficient time for that sensitivity to become marked and by the end of 1993 for it to become so troublesome that it did not abate when she was removed from the environment. The factual basis of this finding is derived from a credible account of her development of symptoms given in the appellant's evidence before the Review Officer, her evidence given on the hearing of the appeal, and the record of reported symptoms adopted by various expert witnesses. After weighing all the evidence I am satisfied that the elements of's 7 of the Act have been established on the balance of probabilities. The decision of the review officer is therefore reversed and the appellant has cover under the Act. The complexities of the appeal warrant an award of costs in excess of the usual level. If costs cannot be agreed, leave is reserved for the appellant to apply for costs to be fixed DATED at WELLINGTON this 6 th day of March 1997 D A Ongley District Court Judge