PPCS Limited (Silver Fern Farms Ltd) v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2013] NZACC SS UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 656/11) BETWEEN PPCS LIMITED (SILVER FERN FARMS LTD) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 December 2012 Appearances: Ms A Fisher for appellant Mr D Tui for respondent Judgment: 11 March 2013 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The question in this appeal is whether a claim is to be regarded as a work- related accident when the accident causing personal injury had no connection with the claimant's employment apart from the bare fact that it occurred at his workplace. [2] The appellant (PPCS) was the employer and was bound by an accreditation agreement under s 184 of the Act. It assumed liability for the appellant's cover and entitlements to the extent defined in the agreement. [3] The claimant suffered severe brain damage caused by an anaphylactic episode when he ingested a Naproxen tablet while at work. The definition of work-related personal injury in the Accident Compensation Act 2001 does not require a causal connection with employment, but only that the injury occurs at the claimant's place of work. The parts of s 28 that are relevant in this appeal are as follows: 28 Work-related personal injury (1) A work-related personal injury is a personal injury that a person suffers (a) while he or she is at any place for the purposes of his or her employment, including, for example, a place that itself moves or a place to or through which the claimant moves; ... 5) Work-related personal injury includes personal injury suffered by a person resulting from treatment for a work-related personal injury as defined in subsections (1), (3), or (4), whether or not the injury is a treatment injury as defined in section 32. Background [4] The following background facts are taken largely form the appellant's written submissions and accurately reflect the evidence in the appeal; a) In May 2006 the appellant employed Mr Wainohu in the boning room of its Paeroa meat works. Mr Wainohu was 43 years old and suffered from severe asthma and an allergy to aspirin and anti-inflammatories. (b) While at work on the morning of 23 August 2006 Mr Wainohu complained to his workmate Greg Hines that he had a toothache. Mr Hines gave Mr Wainohu a 500mg Naproxen tablet. Mr Wainohu took the tablet at approximately 12 noon while on his way to his lunch break. (c) Naproxen is a non-steroidal anti-inflammatory drug which can cause serious anaphylactic shock with respiratory and cardiac arrest in people who have asthma and are allergic to aspirin. (d) On returning to work after lunch, Mr Wainohu became unwell with difficulty breathing and profuse sweating. His supervisor took him to the first aid area for assessment. Mr Wainohu wanted to go home alone, but his supervisor refused to let him leave alone and instead arranged for him to be taken to his GP, (e) Mr Wainohu described to his GP symptoms of shortness of breath and told his GP that he had taken a Naproxen tablet. His GP diagnosed an acute asthma attack and treated Mr Wainohu with intravenous hydrocortisone and inhalers. (f) Mr Wainohu continued to deteriorate and was sent by ambulance to Thames Hospital at about 2 pm. During the trip, he became increasingly short of breath and, two minutes before arrival at Thames Hospital, suffered a respiratory arrest. He was treated by artificial respiration/bag masking. CPR was not undertaken and adrenaline was not administered. g) On arrival at hospital, Mr Wainohu was in cardiac arrest and profoundly unconscious with no pulse. He became responsive after CPR and intravenous adrenaline. He was subsequently transferred to Waikato Hospital. (h) On 13 September 2006, Mr Wainohu was diagnosed as having suffered a hypoxic brain injury secondary to cardiac arrest as a result of anaphylaxis from having taken Naproxen. He is unable to work and his interests are managed by the Public Trust. (i) On 16 November 2006, PPCS granted Mr Wainohu cover for personal injury caused by an accident at work. ACC separately considered and declined cover for a treatment injury in respect of the treatment by Mr Wainohu's GP and the ambulance crew. [5] The claim for cover for a treatment injury concerned events that did not happen at work. But under s 28(5) the liability for treatment injury attaches to the work- related injury claim. So that the question of cover for a treatment injury does not have the potential to relieve PPCS of liability under the accreditation agreement for a work-related injury. [6] The accreditation agreement was produced. It does not appear to contain any provisions enabling PPCS to avoid liability by reason of lack of any work-related cause for the claimant's injury. Liability under the agreement is a matter of contract between PPCS and the Corporation and is not for decision in this appeal. [7] Although PPCS at first accepted cover on 16 November 2006, it later reviewed the claim and issued another decision on 19 October 2007 revoking cover on the ground that the injury was unrelated to any work activity, and that the outcome was substantially caused by Mr Wainchu's existing condition of asthma. [8] The Corporation then assumed management of the claim under provisions in the accreditation agreement and on 15 November 2007 issued a decision accepting cover for Mr Waihonu's brain damage as a work-related injury. PPCS made an application for review of that decision and the review was dismissed. This appeal is brought against the review decision confirming cover for a work-related injury. [9] The review hearing was extended over a long period of nearly three and a half years to allow the parties to obtain medical information concerning the causes of the injury. The three causes that were considered in detail were the Naproxen tablet, the existing asthmatic disease and errors causing delay in administering treatment appropriate for anaphylaxis. The argument at the review hearing before Reviewer Ms M H Donovan covered the medical ground and the Reviewer issued a thorough and careful decision reaching the conclusion that the injury was nevertheless a work- related injury because it was caused by an accident event at the claimant's place of work. [10] The appellant is understandably concerned that it should be liable for the significant cost of cover for an injury that was not caused by a work-related activity. The appeal [11] In this appeal, the parties have ageed that the issues are confined to two questions, namely whether the ingestion of Naproxin was a work-related injury, and whether the brain hypoxia was nevertheless a treatment injury for which PPCS is not liable. [12] On a literal application of s 28 of the Act both questions must be answered in favour of the respondent. There is no dispute that Mr Wainohu happened to be in a place for the purposes of his employment when he took the Naproxen tablet, and s 28(5) extends a work-related injury to personal injury resulting from treatment. [13] That the taking of a Naproxen tablet fell within the description of an accident is answered by s 25(1)(ba) which provides that an accident means, amongst other things: (ba) the oral ingestion of any solid, liquid, gas, fungus, or foreign object on a specific occasion, which kind of occurrence does not include the ingestion of a virus, bacterium, or protozoan, unless that ingestion is the result of the criminal act of a person other than the injured person: [14] The Reviewer found, as was substantially agreed between the parties once full medical evidence was available, that the injury was anaphylaxis and not asthma. Because pre-existing asthma was not implicated, the issue of exclusion for injury caused substantially by a disease condition did not apply in this case. The Reviewer also found that the injury occurred while the appellant was still at his place of work. The possibility that the injury was a later cardiovascular episode causing brain hypoxia was rejected. The appellant no longer pursues that kind of argument. [15] The appellant does submit that the Reviewer fell into error by making some unsupported associations with work causation. The Reviewer inferred from the evidence that Mr Wainohu took the Naproxen so that he could remain at work, that he took it because other pain relief was not available, and that if it had not been available he may have left work to obtain it. An affidavit from Mr Gary Williams, Employment Relations Manager at PPCS in Hastings was introduced for the purpose of the appeal. Mr Williams deposed that medication was not kept at the work premises because of safety concerns such as contamination and allergic reaction. An employee needing medication would be taken to a first aid centre or a medical centre. There was also a protocol for employees having their own medication in the workplace. Discussion and decision [16] The agreed facts that are relevant to the appeal are straightforward. Mr Wainohu's workmate gave him a Naproxen tablet, which was a readily available toothache remedy. Mr Wainohu took the tablet at work. Ingestion of the tablet was an accident as defined under s 25(1)(ba). It caused personal injury by the anaphylactic reaction which was also an event that occurred in his place of work. Under s 28 (1)(a) a personal injury suffered while at a place for the purposes of employment is defined as a work-related personal injury. [17] Under s 28(5) the work-related injury includes personal injury resulting from treatment. If Mr Wainohu's condition had been correctly diagnosed in good time, he would probably not have suffered brain hypoxia. Unfortunately, his symptoms were thought to be asthmatic and were treated with hydrocortisone and not with intramuscular adrenaline until he reached Thames Hospital. By that time he had suffered cardio-respiratory arrest. [18] The appellant submits that the ingestion of the Naproxen tablet was not for the purpose of any work activity, and was contrary to the internal policy of the employer. The appellant submitted that the purpose of's 28 is to catch injuries that are caused by circumstances connected with the purpose of eimployment. [19] Ms Fischer for the appellant submitted that it is contrary to the purposes of the legislation to impose liability on an employer for injuries that have no relation to work. She submitted that the Reviewer's finding imposes onerous obligations on the employer for the ongoing care of a person who had been in its employ for only seven weeks. It was submitted that the review finding lacks sound legal and factual reasoning and that the Reviewer relied on facts which had no evidential basis and misapplied the principles in Rotorua Forest Haulage Limited [1998] NZACC 198. [20] In Rotorua Forest Haulage Limited an employee was stung by a bee while driving his employer's truck for purposes of his employment. The judgment included a finding that the accident, in the particular way that it occurred, could only have occurred at work. Ms Fischer argued that the accident in the present case was one that could have occurred at any place and that no causative link with the appellant's work can be shown. As Mr Tui pointed out, the Rotorua Forest Haulage case was decided under the 1992 Act in which "work injury " was defined as "personal injury arising out of and in the course of employment of that person." Under that definition, the Naproxen injury could well be excluded. However the comparison of the different definitions in the 1992 Act and subsequent legislation serves to strengthen the respondent's argument that the personal injury by accident does not have to relate to the course of the claimant's employment, but need only occur in the place of work. [21] Ms Fisher argued that a narrow interpretation of the legislation is not justified, because it would mean, for example, that an employer would be responsible for the consequences of an employee taking an unlawful drug while at work. Similarly, if the appellant had brought a Naproxen tablet to work and had taken it, whether or not aware of the danger, he would have suffered a work-related injury. [22] It is worth noting that s 28(7) specifically includes work-related injuries when the claimant is acting outside the terms of his or her employment; (7) It is irrelevant to the decision whether the person suffered a work- related personal injury that, when the event causing the injury occurred, he or she - (a) may have been acting in contravention of any Act or regulations applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or Subsection (7) appears to be a provision for the avoidance of doubt. It does not suggest that unlawful acts would otherwise be excluded from work-related injury. It supports the interpretation based on the natural meaning of the text that all events described in subs (1) are caught irrespective of arguments that they did not occur for the purpose of employment. Also, in the present case this provision answers directly whether it is relevant that the supply of Naproxen contravened the rules of the workplace. [23] The inferences that the Reviewer made concerning a degree of need for relief for the appellant to continue working are not unfounded, but for the purpose of this judgment they may be put aside. The appeal was argued on the basis that the only link with employment was that the injury occurred at the place of work. The appellant accepted that the anaphylactic reaction must have started before the appellant left the workplace. [24] The outcome rests squarely on interpretation of the sections that have been referred to, particularly section 28(1)(a). I hold that the classification of work- related personal injury requires no more than the natural meaning of the subsection, that is to say that the personal injury by accident is suffered while the claimant is at any place for the purposes of his or her employment. Whether an accreditation agreement can adopt a different classification is a matter for contract between the parties, but in this appeal the only question to be answered is whether the claimant suffered a work-related personal injury by way of anaphylactic reaction and its severe consequences following delayed diagnosis and treatment. [25] For the foregoing reasons, the appeal is dismissed. Judge D A Ongley District Court Judge