Neketai v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 244 198 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 TAIKATO JAMES NEKETAI DCA 215/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1998 APPEARANCES: Mr T J Neketai in person Ms S Scott, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel entitlements for the appellant on the grounds that the symptoms from which he may now be suffering were not as a consequence of the personal injury by accident for which he had cover. 2 Background In September 1995 the appellant, then aged 47 years, lodged a claim for cover in respect of symptoms which he attributed to his exposure to solvents in his employment as a French polisher. He complained of headaches, dizziness, low energy and general unwellness. It is noted that he had been a French polisher for some 30 years. In December 1995 the appellant suffered a cardiac arrest and was hospitalised for this. He was subsequently discharged and placed on medication. The Corporation sought the opinion of Dr Chris Walls, a specialist occupational physician in relation to the appellant's complaints of exposure to solvents and in his report of 28 February 1996 he stated: "I am unable to explain the nature of Mr Neketai's tumbly feeling in his head. However he does have most of the symptoms associated with chronic organic solvent neurotoxicity." Or Walls recommended that the appellant undergo formal neuro-psychological testing. Such testing was carried out by a clinical neuro-psychologist and in her report dated 14 June 1996 Dr Kersal stated: His description of the nature and course of his symptoms is consistent with clinical presentation of individuals who are experiencing the consequences of occupational exposure to solvents. The results of the neuro-psychometric assessment indicate that he has not experienced a generalised decline in his overall level of cognitive functioning. However there is an indication of impairment of very specific cognitive abilities. Specifically he has impairment in his ability to perform complex attention tasks and has impaired concentration abilities. Assessment of his motor functions was inconclusive. Despite this his pattern of performance is consistent with that seen in mild cases of organic solvent neuro-toxicity. Dr Walls, on receipt of that neuro-psychological report, confirmed that the appellant fulfilled the criteria set out for organic solvent neuro-toxicity and advised that he should not be re-exposed to solvents but that otherwise there would be no reason why he could not undertake another type of employment. Because of the other medical factors present in the appellant's circumstances, principally his heart problems, the Corporation sought to have the appellant reassessed in February 1997 and again referred him to Dr Walls for advice. Dr Walls reported on 28 February 1997: I think there are really two issues here. The Mild neuro-psychological impairment noted on testing which has been attributed to his prolonged organic solvent exposure, could only really be assessed by further testing. I would have expected this to have improved a bit but do not think that further testing is warranted given its extent and given that his major problem is these rather intermittent balance and visual symptoms. I find these difficult to relate to his organic solvent exposures or indeed to any other neurological problem arising from his cardiac arrest... In summary therefore I would expect his neuro-psychological functions to have improved and do not think it is worth the expense carrying out further tests. His main problem interfering with his work at the moment is these other symptoms and I wonder whether he would benefit from a withdrawal of some of his medications... Dr Walls again confirmed that the only limitation on the appellant's employment was his need to avoid solvent exposure. The appellant continued to be covered in relation to the personal injury of organic solvent neuro-toxicity and the Corporation again sought to have his case reassessed in October 1997 and referred him once again to Dr Walls. Dr Walls provided a report dated 6 November 1997 in which he noted that he had discussed this particular case with his colleague, Mr Evan Dryson, who was also a specialist occupational physician. It was their joint opinion that the appellant's continued complaint of tiredness and fatigue were not likely to be related to his previous exposure to solvents. He stated: Usually the tiredness and fatigue resolves as exposure to the solvents is withdrawn. Although we are aware of the odd case the majority of people do not suffer ongoing tiredness and fatigue. It is now 2 years since Mr Neketai 4 has been exposed to solvents on a regular basis. I do not think, therefore, that Mr Neketai's symptoms are related to his previous exposure. It is possible that his tiredness and fatigue is related to his cardiac medication but I do not recommend withdrawing this to experiment. The known effects of solvent neuro-toxicity are persisting deficits in the neuro-psychological functions in the brain including short term memory, and ability to concentrate. Dr Walls further stated that the appellant could return to his position as a French polisher provided he used a high quality respirator. He suggested a three months trial or 20 hours a week and then a review. On 29 January 1998 the Corporation advised the appellant that on the basis of Dr Walls' advice that his ongoing symptoms were not related to solvent exposure, his entitlements under the Act would cease. The appellant sought a review of that decision. At the review hearing the appellant advised that he was uncertain about returning to his former occupation as a French polisher. He was on medication for cholesterol, high blood pressure and was taking Prozac. It was the Review Officer's decision that the medical evidence pointed to the fact that his current troubles were not as a consequence of his exposure to solvents and in addition, the medical evidence was that he was able to return to his former employment. On that basis the Review Officer confirmed the Corporation's decision to cease entitlements. In submissions to this Court the appellant reaffirmed the fact that he was still suffering from tiredness and fatigue and that he had tried to find work away from that of French polishing but without success. He further stated that his ongoing illness was preventing him from getting any other form of work. Counsel for the respondent accepted that the appellant was still experiencing ill health, in particular feelings of vertigo and fatigue. However she submitted that the 5 medical evidence did not support the contention that those symptoms were due to previous solvent exposure. Counsel submitted that experts in the field had assessed the appellant's case over a period of time and were of the view that his current problems were not those of organic solvent neuro-toxicity. Decision The medical evidence establishes that the appellant is not prevented from returning to his previous employment by reason of the personal injury for which he had cover, but that it may be ongoing cardiac problems that are having their effect on him at present. It is noted that the assessment of his toxicity at the time he made his claim was that of only a mild impairment and that it would clear once he had withdrawn from continued exposure to that solvent. The appellant received entitlements in respect of his injury for some two years and three months and during which time of course he had the supervening event of his heart attack and ongoing health problems associated with that. This Court finds that the appellant is not prevented from returning to his previous employment by reason of any residual effects of his exposure to solvents and in terms of section 73 and 37A of the Act the respondent is entitled to cancel entitlements where there is no longer continuing incapacity by reason of the personal injury for which he has cover. I find that the Corporation did have sufficient evidence upon which it could be satisfied that the appellant was not entitled to continue to receive compensation in respect of his personal injury by accident and accordingly the decision of the Corporation to cancel same is hereby confirmed. Having stated that such is the nature of the evidence at this time, I would nevertheless advise that if there should be a return of symptoms which can be attributed to the appellant's solvent exposure then the appellant would be entitled to reapply for any entitlement that may then be 6 required. The decision to cancel is not final and absolute and can be reviewed at any time should the medical evidence so justify. For the foregoing reasons this appeal is dismissed. Dated this 27th day of November 1998 M J Beattie DISTRICT COURT JUDGE Neketai.doc