Flanders v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 042/2004 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN MICHAEL FLANDERS (AI 368/01) Appellant AND - QBE INSURANCE (INTERNATIONAL) LIMITED Respondent HEARD at WELLINGTON on 18 February 2004 APPEARANCES Mr John Miller, Counsel for Appellant. Mr A Blair and Mrs P Jegatheeson, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the decision of the respondent's agent, HIH WorkAble, of 1 December 2000 whereby it suspended entitlements to the appellant pursuant to Section 116 of the Act, on the grounds that the appellant was no longer suffering from Acute Extrinsic Allergic Alveolitis, being the injury for which he had been granted cover. [2] Although the decision complained of was that made under Section 116, the real issue for determination is whether the appellant continues to be incapacitated as a consequence of his covered injury and is thereby still eligible to receive entitlements under the Act, particularly weekly compensation. [3] The background facts are not in dispute and may be stated as follows: 368.01 (pg) 2 • The appellant was employed as a maintenance engineer by Te Mata Mushroom Farm Limited between 1985 and January 2000. • The respondent in this appeal is the appellant's employer's insurer for the purposes of the Accident Insurance Act 1998. • Between 1994 and January 2000 the appellant experienced a number of episodes which were considered as possible viral infections, the symptoms being fever, breathlessness and cough. • At this time the appellant was also displaying certain symptoms of a heart condition and this tended to obscure the separate nature of his other symptoms. • In July 1999 the appellant had a pacemaker inserted to stop an abnormal heart rhythm but he continued to display symptoms of fatigue, fever and breathlessness. • Various tests were carried out on the appellant in December 1999 and January 2000 and the generally accepted diagnosis is that the appellant suffered from acute extrinsic allergic alveolitis. It was considered that this condition had been caused by his workplace exposure to bacteria or fungi or some other compost type material associated with mushroom farming. • The appellant lodged a claim for cover for his condition and although that claim was initially declined, cover was eventually accepted and granted to him on 4 August 2000. The cover then granted was for extrinsic allergic alveolitis. (E.A.A.) • It was determined that there was something in the environment at the mushroom farm which caused the allergic reaction complained of and the appellant ceased his employment in January 2000 and began to receive weekly compensation. • The appellant was advised not to return to his former employment at the mushroom farm because of the likely consequences of further exposure to material, dust or fungi in that environment which had caused the allergic reaction. • In September 2000 the appellant underwent pericardial biopsy and lung biopsy and the lung biopsy showed predominantly normal alveoli. 368.01 (pg) 3 • The biopsy report from Hastings Hospital was referred to Dr Andrew Veale, Respiratory Physician, who had earlier been consulted by the respondent in relation to the appellant's claim. It was Dr Veale's advice that the lung biopsy result excluded ongoing chronic allergic alveolitis and that any ongoing disability related to the appellant's cardiac disease. • It was on the advice of Dr Veale that the respondent issued its decision on 1 December 2000. [4] This is a case where the appellant suffered an acute case of extrinsic allergic alveolitis caused by the environment pervading at the mushroom farm where he worked. It is accepted that there is something in that atmosphere, not actually pin- pointed precisely, which caused the inflammation of the alveoli and to which the appellant has been determined as being allergic. [5] It is also the case that the medical advice to him is that he should not return to his former employment because of the probability of again suffering an allergic reaction. Indeed, the appellant did return on a courtesy visit, and did suffer such a reaction and so it is clearly the case that the appellant would be unwise to resume his former employment. [6] From Counsel for the Appellant's perspective, he asserts that this state of affairs amounts to an incapacity within the meaning of the Act namely, that the appellant is unable because of his injury, that is EAA, to engage in the employment in which he was employed when he suffered that personal injury. [7] The fact of the matter is that the appellant is only unable to work in a mushroom farm type environment but is not so precluded from working in any other environment where those particular properties are not found. [8] The competing assertions of Counsel for the Appellant and for the Respondent are that the former says that the appellant cannot return to his employment at Te Mata Mushroom Farm, because if he did he would immediately suffer another attack of EAA, and which if it were to continue may reach a chronic state. In those circumstances the appellant comes within the definition of being incapacitated. The latter contends that the injury for which cover was granted is now spent and it is not in any way precluding the appellant from resuming employment, either at the mushroom farm or elsewhere. 368.01 (pg) 4 The appellant cannot be regarded as continuing to be incapacitated within the meaning of Section 85(2) of the Act. He is not presently suffering from his covered injury. [9] It is the case that not everyone who comes into contact with the various substances associated with mushroom farming contracts Alveolitis. The Court has received evidence that it is only a comparatively small percentage of exposed workers who would suffer an allergic reaction. The Court has considered a 24 page report from Dr Mark Haywood, a Specialist in this field, and he has identified the appellant as coming within the Type 3 Hypersensitivity Reaction, and while the inflammation lasts for several hours after exposure, there is usually a spontaneous recovery when there is no further exposure. Dr Haywood advises that a person's allergic response is due in part to genetics and to susceptibility to specific antigens in the workplace. [10] Dr Haywood agrees with Dr Veale that there is no evidence that the appellant suffers from chronic extrinsic allergic Alveolitis, which would be evidenced by lung damage and which would be an ongoing injury. [11] The Incapacity Test set out in Section 85(2) is more specific than that which replaces it in the 2001 Act. The test for this appellant is whether he is unable, because of his personal injury, to engage in every part of every employment in which he was employed when he suffered the personal injury. This definition, I find, requires a consideration of whether it is the personal injury which is preventing him from resuming his employment. [12] The personal injury, being the EAA, is not preventing him from resuming his employment, as the medical evidence is that it has resolved because he has removed himself from the environment which caused it to flare up. I find that the matter can be put on the premise that providing the appellant does not return to the mushroom farm he will not be likely to again suffer a reoccurrence of EAA. [13] If that is taken as being the test then it must be the case that it is the appellant's pre-disposition caused by his genetic make-up that has made him allergic to a particular property or characteristic associated with mushroom farming, possibly in the compost or manure that is used, and it is only if he is exposed to that environment will he suffer an injury. 368.01 (pg) 5 [14] None of the specialists who have provided reports in this case has indicated that the appellant's disposition or allergy to certain antigens was caused by his workplace exposure to those properties. The evidence is that the appellant is taken to have a special sensitiveness to certain antigens and it is his make-up which causes an allergic reaction. [15] In Black's Medical Dictionary, 37th Edition, Extrinsic Allergic Alveolitis is stated to be − "A condition induced by the lungs becoming allergic to various factors or substances. It is characterised by the onset of shortness of breath, tightness of the chest, cough and fever. The onset may be sudden or gradual. Treatment consists of removal of the affected individual from the offending material to which he has become allergic. Alveolitis is the inflammation of the Alveoli which are the minute divisions of glands and air sacs of the lungs." [16] I find that the appellant is a person who has now been identified as having an allergic reaction to certain antigens in the environment connected with mushroom farming but that his allergy has not been caused by his exposure to the mushroom farm environment. Thus the allergy cannot be regarded as being the injury. The injury is or was the adverse reaction which the appellant had and cover was properly granted to him for that injury. [17] It may well be the case that if the appellant were to return to his former employment and was to again suffer an allergic reaction that required treatment and time off work then the Act would accept that as being a gradual process injury. However, I find it is the case that it is the genetic make-up or sensitivity of the appellant which is the reason why he does not and should not return to his former employment. In other words, it is not the personal injury which is preventing him from returning but rather something intrinsic in his genetic make-up which would make any return to that environment most unwise. [18] Leaving aside the appellant's heart condition and any problems it may be creating and which cannot come into consideration in this case, the appellant does not currently have symptoms of a covered personal injury which are preventing him from resuming his former employment. The injury which he suffered in the workplace environment has now, to all intents and purposes resolved, and it is only his genetic 368.01 (pg) 6 pre-disposition to that particular environment which is preventing him from resuming his pre-injury employment. [19] That circumstance, I find, does not come within the definition of "incapacity" and therefore I find that the respondent was correct to suspend entitlements. [20] The appellant, I find, is in no different position from any other person who has an allergy which makes it unwise to submit to the offending allergen. He adjusts his employment situation to minimise or prevent the risk of exposure. [21] For the foregoing reasons therefore this appeal is dismissed. DATED at AUCKLAND this 9th day of March 2004 M J Beattie District Court Judge 368.01 (pg)