Tran v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 220 /98 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 THANH TIEN TRAN DCA 59/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of September 1998 APPEARANCES: Mr TT Tran in person Ms J Cheyne counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover for asthma and dermatitis being personal injury caused by disease or infection 2 arising out of his employment with Engmech Services Lid, pursuant to section 7 of the Act. BACKGROUND The appellant, now aged 33 years, came to New Zealand in 1992 as a refugee from Vietnam. He had done an engineering apprenticeship in Vietnam and had continued with engineering work in that country for some years before escaping and coming to New Zealand. After coming to New Zealand he worked as a machinist technician with a sewing machine company for about 2 years and he then, in 1995, did a year's course at Manukau Tech in fitting, turning and welding. He left New Zealand for a while in 1995 and obtained employment in Australia as a fitter and turner and returned to New Zealand at about June 1996. He commenced his employment with Engmech Services Ltd at Pukekohe in July 1996. The type of work he was engaged in was welding, gas cutting, painting and general engineering work. The appellant stated that shortly after commencing his employment at Engmech he began to experience asthma attacks and also developed severe contact dermatitis. He first consulted his GP, Dr Beetham, in September 1996 where his asthma was treated and he was instructed to monitor his breathing with a peak flow meter and the dermatitis was initially treated with lotions but this treatment did not prove successful. The appellant was forced to give up his employment in November 1996 principally because of the worsening dermatitis. 3 On 11 November 1996 the appellant lodged a claim for cover for "welding gas induced asthma and dermatitis". The initial medical certificate being issued by Dr Beetham. Dr Beetham referred the appellant to Dr Snow, Dermatologist at Auckland Hospital, and the Corporation referred the appellant to Dr Walls, Occupational Health Physician, for a report. On the basis of the opinion of Dr Walls the Corporation declined cover for the appellant on the grounds that there was no causal connection between the workplace and the onset of the two diseases. The appellant sought a review of that decision and for the purposes of that review the Review Officer sought further expert opinion from Dr Snow, Dr Deborah Greig, an expert in diseases of the skin and Dr Harrison, a Respiratory Physician. Reports from those experts were considered by the Review Officer and in his decision given on the 13 January 1998 he ruled that insofar as asthma was concerned, the appellant had an underlying propensity for asthma and that he had had it for sometime prior to the commencement of his employment with Engmech and that whilst he may have had an adverse reaction whilst there employed, it was simply a manifestation of his underlying propensity for subclinical asthma. Insofar as the dermatitis was concerned, he found that again the appellant had a history of dermatitis, that it was atopic and that again this disease may have been aggravated by the work environment but that his dermatitis was not caused by any property or characteristic of the work place. Furthermore, the Review Officer found that the appellant's non-work environment was also 4 a factor and therefore cover was excluded under both sections 7(1)(a) and 7(1) (b). For the purposes of the appeal to this Court a further medical report has been submitted by Dr Greig pertaining to the appellant's dermatitis. THE MEDICAL EVIDENCE The issue for determination in this appeal involves considerations of the appellant's history of asthma and dermatitis and the relationship that history has with the onset of asthma and dermatitis during the time of his employment with Engmech Services Lid and whether those circumstances do give rise to an entitlement to cover. 1. Asthma In his report dated 28 January 1997 Dr Walls, Occupational Health Physician stated inter alia: "The exact time sequence of the symptoms was a little unclear but I understand that Mr Tran noticed the onset of a cough which lasted one week. His face became red and burnt in appearance and towards the end of the week he became short of breath with a wheeze and a productive cough. He described a visit to a doctor in the middle of the night because of his shortness of breath. The doctor at the Pukekohe Medical Centre undertook peak flow measurements which Mr Tran though were about 250 litres per minute. He was given some treatment and his immediate symptoms resolved but he continued to be troubled by cough and shortness of breath. This occurred during the day, at night and during the weekends when he was away from work. 5 On examination he was a short slim Vietnamese man. He was in no respiratory distress ... His peak flow today was 600 litres per minute. His chest was clear and there was no sign of any wheeze. The rest of the examination was normal. Since leaving the work place Mr Tran feels his symptoms have improved dramatically. As Mr Tran was on treatment at the time I saw him I was unable to demonstrate reversible change in his peak flow. Nevertheless I would be confident that he has suffered an asthma attack. However although there is a temporal relationship with his work, there is no clinical evidence of reversible airways constriction occurring in the workplace or resolving away from the workplace. Nor is there a history of any exposure to a particular asthma causing agent in excess of his usual exposures (welding fumes) or of any exposure to any sensitising agent to explain his sudden deterioration. At this stage I cannot support a causal relationship between work and Mr Tran's condition. Welding does cause occupational asthma but there is no supporting evidence in this case of a workplace connection." Dr Adrian Harrison, Respiratory Physician, reported on 19 June 1997: "He has been a lifelong non-smoker. He was not aware of any chest complaints during his early life. However, on specific questioning in his teen years he found that he would get a head cold followed by a cough which would go on for a few days, with episodes like this occurring 3-4 times per year. I am not sure when this tendency stopped, but he has not been aware of these symptoms for at least the last seven years. These days he only gets head colds once or twice a year. 6 He returned to New Zealand in June 1996 and a few weeks later started work at Engmech where he remained until November 1996. His job comprised grinding, polishing, welding (mainly MIG but with some arc welding) and painting. The painting was mainly brush painting but there was occasional spraying. About two weeks after starting work he developed a cough and skin problems. He also experienced difficulty breathing with a tight chest and some wheezing. About a month later he was taken from the caravan where he was staying on the workplace premises to the Pukekohe Medical Centre with acute asthma and was helped by nebulised treatment. He subsequently saw a general practitioner who gave him Respolin and Respocort. He used them in a dosage of two puffs t.d.s. and they helped his breathing temporarily. His skin was also quite a major problem and I did not go into the history of this. He left the job after about four months because of a combination of chest and skin problems. After leaving the workplace his asthma improved markedly within three weeks. Since then he has had virtually no coughing and just gets a bit tight chested for a short period most days. He has discontinued regular asthma inhalers now. When he first started at Engmech he stayed in an old, damp caravan for about a three week period. It is possible that he could have had considerable allergenic exposure during this period. Subsequently he changed caravans, hiring the new ones for differing periods. I questioned him about upper respiratory tract symptoms. He is not aware of any symptoms as a rule. He says he only sneezes about twice a month, but on closer enquiry it turns out that he sneezes with exposure to dust and unusually strong smells. Pets don't seem to affect him He doesn't suffer from any upper GI symptoms. 7 Examination He has dermatitis on both hands. He had no clubbing or adenopathy. Both lung fields were perfectly clear with no wheezes audible today. Partial obstruction of both nostrils was evident. I didn't complete a full physical examination. FEV1/FVC + 3.5/3.9, equal to predicted normal values. You have provided a record with Mr Tran's peak flow diary card, but I am not certain when this record was kept. Mr Tran indicated that it was recorded some time during the period when he worked at Engmech. Peak flows then were generally between 400 and 450 litres/minute. He had one drop to 300 litres/minute and occasionally got up as 500 or even 550 litres/minute. These features are certainly diagnostic of asthma. Assessment I don't believe this man has occupational-caused asthma. Firstly, the time frame between starting work and the onset of symptoms was only two or possibly three weeks at most and I don't believe this is long enough for known asthma inducers to cause asthma de novo. Secondly, he has the history in his teen years of recurrent short periods of coughing associated with "head colds" and this is a common symptom with subclinical asthma. I strongly suspect that these symptoms reflect an underlying pre-existing tendency, despite the fact that he had no overt asthma prior to 1996. The history of recurrent rhinitis triggered by dust also is supportive of an underlying predisposition to asthma. 8 I think it is far more likely that some factor in the workplace at Engmech acted as a potent asthma trigger, and this could have been compounded by allergens in the caravan initially. Removal from the Engmech workplace and the irritant factors since leaving there lead to the unavoidable conclusion that something in the workplace triggered his asthma. I have discussed my assessment with Mr Tran, explaining the difference between causation of asthma and triggering of asthma." 2. Dermatitis In his report referred to earlier Dr Walls makes the observation "The distribution of Mr Tran's dermatitis is not typical for a work induced problem." Dr John Snow, Dermatologist, first examined the appellant on 31 January 1997: "I saw Mr Tran today in Dermatology Outpatients for an evaluation of his generalised dermatitis. It would seem that he has had dermatitis for some time now following his emigration in to New Zealand. I understand he worked as a fitter welder and has been heavily exposed to cuttings, oils etc. While he had an episode of dermatitis while living in Vietnam his condition has changed significantly since living in New Zealand. According to the interpreter present with Mr Tran on the day on consultation he developed problematic dermatitis affecting the back of the hands. In addition he had a more generalised dermatitis on the trunk, arms and legs. Clinical examination reveals hypopigmented scars on the arms and legs consistent with healing excoriation's. Plaques of chronic dermatitis were noted on the dorsal aspect of most fingers. 9 COMMENT: Clinically this man would appear to have an occupational related dermatitis. I do believe that it is likely he may have a contact allergic component. I believe at this stage treatment with topical corticosteroids and lubricants would be helpful as well as avoidance of his work environment. In this regard I believe he is a candidate for ACC review and I would be grateful if you could forward to the hospital an initial ACC form relating to his initial consultation time so that we can date his problem more accurately. I believe formal patch testing will be appropriate and I will proceed along this line." "I saw Mr Tran back in Dermatology Outpatient today. He has done very well with cessation of his working and also the application of topical Diprolene to the areas of chronic dermatitis on the finger tips. He has also benefited from the Doxepin medication and the QV oil as a soap substitute. At this stage we are waiting for formal patch testing. He did have immediate hypersensitivity testing performed at the Diagnostic Laboratory which revealed positive reactions to house dust mite. I would therefore surmise that he does have an allergic tendency and may in fact be atopic. However, this does not necessarily imply that his hand problem is not occupationally related. Clearly he has a form of chromic irritant hand dermatitis and may well in fact have a chronic allergic contact dermatitis component. I therefore believe that proceeding with patch testing will be important and I understand at this time ACC is serving its decision pending further information." Dr Snow's final report dated 4 August 1997 stated inter alia: 10 "In summary this gentleman is suffering from atopic dermatitis. He clearly has exacerbation of generalised dermatitis associated with his working environment. He clearly works with a number of potential chemical contactants which could either exacerbate or cause a primary contact dermatitis. It is my opinion that formal patch testing should be performed and Mr Tran has been referred within the Auckland Hospital for patch testing in the patch testing clinic. This of course could be done in the private sector although I would suggest that if this is what ACC wish to do that they consider referring him to Dr Deborah Greig who is particularly specialised in this area of patch testing. I had been hopeful that he would have had patch testing under Dr Greig's assistance at the Hospital, but the waiting list for this procedure can be long and I have no control over this. In summary, Mr Tran is suffering from atopic dermatitis. I think it is unreasonable to expect that contact dermatitis may not be a significant component of his problem and certainly this needs to be fully evaluated before definitive recommendation can be made regarding his skin complaint." Dr Greg, Specialist in Diseases of the Skin and Dermatology, first examined the appellant in June 1997 and subsequently thereafter and made a comprehensive 6 page report to the Review Officer dated 10 November 1997. That reported stated inter alia: "HISTORY OF SKIN DISEASE Tran Thanh Tien developed dermatitis when he was a child. His history indicates that he remembers being in hospital, for days or months at a time, hospitalised with eczema, when in Saigon, Vietnam. His eczema has continued, all of his life, up until the present time. Although he left work over a year ago, he still has hand and body dermatitis, requiring 11 ongoing treatment, which has been supervised in recent months, September 1997 and October 1997 by my colleague, Dr John Snow, at Auckland Hospital. There may have been time in later childhood, when his eczema was a little more settled. At the age of 17 years, he recalls quite severe eczema on his arm, leg, back and hand skin. It used to come and go and still until this time, although it can get somewhat better, it will flare up on its own, or, Mr Tran told me, depending on the weather, it can get worse. If he cleans his house or does work with his hands, his skin becomes worse such that he believes he is very sensitive in the house and at work to dust. His dermatitis became quite severe around about August 1996, after being much more settled in 1995. This was at a time when he had just taken on work at Pukekohe Engineering, where he worked from July 1996 to November 1996. He had body eczema, as well as hand eczema in 1996. During the time he was at work and for many months after he left he had rash that was particularly severe on his hands, but as well had a generalised dermatitis with involvement of his face, all of his body skin including his neck and his back. His legs were also involved with eczema, which extended to his heels. After he left his workplace in November 1996, his eczema did improve somewhat but his skin has in no way completely recovered from rash. The hand dermatitis rash is still coming and going, as well as body eczema, coming and going . 12 He had noted and been concerned about the fact that the eczema when it did fade, would go away leaving dark marks on his skin. These darks marks are a type of hyperpigmentation, that often appears after the inflammation of eczema. He had noted that his rash was more likely to appear, when he was working at Pukekohe Engineering, but also that it was flaring often with severe itch at night time. When he was at work, he had felt that, in particular, grinding dust in the workplace worsened his skin and had been concerned about soap. As well, hot water with house work affect his skin. He had noted that he had had much worse asthma coming up just before his eczema worsened. He had developed a cough after approximately two weeks at the Pukekohe Engineering workplace followed by flares of asthma. His asthma had even worsened after he had developed severe eczema and continued to be bad until he left the job. By the time he had been 3-4 weeks at his new workplace his skin was much worse. When he was seen by Dr Snow, at Auckland Hospital at the end of January 1997, 2-3 months after leaving work, he still had generalised eczema and hand dermatitis. When I saw him for the first time, at the time of patch testing at Auckland Hospital, in June 1997 and July 1997, he had a hand eczema and a body eczema involving his shoulders, trunk and leg skin. 13 When he was seen in October 1997, he still had a persistent hand dermatitis, as well as shoulder, arm, lower leg, and thigh dermatitis. His past history of eczema, from childhood through to adult life, is a long history of chronic constitutional endogenous atopic skin disease. He has a past history of asthma and of hayfever, with allergic reactions to dust. His personal history is the history of an atopic individual. EXAMINATION FINDINGS When his skin was examined in June 1997, he had a patchy vesicular dry palmar hand eczema and a nailfold eczema with overall generalised dry skin, but particularly dry hand skin and exaggerated skin markings. This is the pattern of a constitutional palmar atopic eczema. On his body skin he had a discoid eczema over his shoulders and a dry patchy eczema, that I had seen in July 1997 and October 1997, on his arms, legs and body. He has had post inflammatory hyperpigmentation, both from previous eczema and at the sites where he has had eczema as a result of his patch test reactions. His eczema has fluctuated in severity. After he had finished the patch tests at Auckland Hospital, when I saw him on 2 July 1997, he had had a marked flare of hand eczema which had followed cleaning a workshop at home. Although he had worn gloves, his hand dermatitis had flared up after doing some work at home. 14 DISCUSSION AND CONCLUSIONS Tran Thanh Tien is a man with a life long history of chronic constitutional atopic dermatitis with, in the time that I have seen him, a patchy generalised dermatitis and an ongoing constitutional hand eczema. Therefore in my opinion, his dominant problem has been his constitutional atopic eczema. When he worked at Pukekohe engineering, his eczema did flare in a severe fashion. From his history and the documentation, that I have seen with respect to his generalised dermatitis, is very likely that irritation from the grinding dust was an occupational factor that aggravated his skin disease. This worsened his skin. It is very clearly known, that in individuals who have atopic dermatitis as children, there is a very high likelihood of hand dermatitis and ongoing dermatitis in adult life. Often this dermatitis will start when young workers enter the workplace, which happened to Mr Tran in Vietnam. Atopic skin and dry skin is particularly sensitive to irritation. Many individuals with an atopic tendency and atopic dermatitis will aggravate their constitutional problem from irritation, ie they have occupational aggravation of their skin problems. 15 The skin barrier function is defective, with dry skin and the barrier is defective with atopic dermatitis. Eventually, because of the barrier breakdown, there is aggravation both by irritation and allergens can penetrate the skin resulting in an allergic contact dermatitis. Mr Tran's history indicates occupational aggravation of atopic eczema from dust. Mr Tran has documented allergic sensitivity to Chromate and Cobalt Chloride. It is not at all clear, when he acquired this allergic sensitivity. It may well have been long ago in Vietnam, when he had the very severe dermatitis as an apprentice, that made him need to see a skin specialist and when apparently he was hospitalised. Once an individual acquires an allergic contact dermatitis, their allergy persists for a very long time, usually for the rest of their life. Therefore if they are exposed again to the chemicals that they are allergic to, they will develop a flare of dermatitis. It is not absolutely clear that Mr Tran would have been exposed to Chromate at Pukekohe Engineering but it is possible, as there are sources of Chromate that are related to welding and to paint. I do not have any exact knowledge of his workplace. However, if there are exposure to Chromate at his Pukekohe Engineering Firm, and he had been previously sensitised to this chemical, then this would as well have been a complicating and aggravating factor that would have worsened his constitutional eczema. 16 It has been well documented that in those individuals with Chromate sensitivity, their dermatitis persists for a very long time. Indeed the advice that most occupational dermatologists would give to patients sensitised to Chromate is not to change work or cease their occupation, as this will in general not improve their prognosis or outcome. Mr Tran did leave his work. He still had severe dermatitis in early 1997, but had improved after leaving work and has had some slow improvement since that time, with ongoing treatment. He will need to continue treatment and management of his dermatitis, which is likely to be an ongoing problem, as his palmer hand dermatitis tends to be a cyclical type of dermatitis, with ongoing flares over many years. His dermatitis can not be said to be primarily the type of dermatitis caused by occupation and he has primarily a constitutional problem, atopic eczema. He has been occupationally aggravated, in my opinion, both by exposure to dust and probably by exposure to a substance, Chromate, to which he had developed an allergy at some time in the past." In a further report dated 30 June 1998 Dr Greig was asked to give further opinions on the findings she had made and the observations she had given in her earlier report and she stated inter alia: "Mr Tran has had atopic dermatitis, since childhood. This atopic dermatitis has been severe, as he has been hospitalised with his dermatitis when in Vietnam. He has had ongoing dermatitis, since leaving work in 1996. 17 His patch tests have revealed as allergens: potassium dichromate and cobalt chloride. The allergens, dichromate and cobalt, are linked allergens and can be occupational allergens. I do not have any detailed knowledge of his workplace at Pukekohe Engineering in order to be able to say that these allergens were present in his workplace at Pukekohe Engineering. It cannot be certain when he acquired his allergy to chromate and cobalt chloride. This allergy could well have been acquired in Vietnam. He told me, when he gave me his history, that when he worked in Vietnam he became very itchy with a rash all over his body. This very severe rash necessitated treatment from a skin specialist. He was hospitalised in Vietnam once, after working in an engineering firm in Vietnam. The work in Vietnam involved building factories, rice milling factories. He was involved with many metals, machine components, welding and wood, but not concrete in Vietnam. Concrete in cement work can be a very common cause of chromate and cobalt allergy. It is certainly true that when a patient has a pre-existing dermatitis or eczema their skin barrier becomes broken, such that they are more susceptible both to an irritant contact dermatitis and to an allergic contact dermatitis. The role of the grinding dust, to which he was exposed at Engmech, would be a role in aggravating his atopic eczema, as this dust was something that he had felt had worsened his skin. He has never been patch tested to grinding dust. I have no knowledge of the composition of the grinding dust. He was performing a metal grinding and polishing job. Therefore, it is based on the history given to me by the patient, that there is in his case an aggravation of eczema by grinding dust. 18 Any irritant substance in a workplace, or in a domestic situation, can aggravate a pre-existing dermatitis. There are a number of irritants to which the skin of workers can be exposed, but some of the principal irritants that can worsen the eczema would be water, soaps and detergents. Metal working fluids can be irritants, usually for hand eczema. Another irritant factor that would be relevant in Mr Tran's case would be the climate of the Engmech workplace, as heat from welding would have affected his skin and aggravated his eczema. The history that I obtained was that Mr Tran's eczema became very severe generalised eczema. It is not clear to me that all of his severe generalised eczema would have been the result of exposure to the grinding dust or any other irritant. It would have been expected, in my opinion, that clothing would have protected much of his skin from exposure to the grinding dust. The grinding dust would, in my opinion, largely have affected exposed skin, such as hands, perhaps forearms, face and neck. The other possibility is that the flare of eczema that he had when he was at Engmech was largely the flare of a constitutional atopic eczema. I did not see him at the time that he had this flare of eczema. Many flares of eczema can have partly endogenous and partly exogenous causes. It is very difficult to precisely attribute blame, unless at the time of the flare there is very careful assessment of the pattern distribution and factors involved in the flare. Other dusts, such as house dust, are dusts that would worsen Mr Tran's eczema and as commented on in my previous report his history had indicated that house dust and therefore dusty living conditions were factors exacerbating his eczema and his asthma. 19 With respect to an occupational aggravation of eczema, it is my opinion that while the person is exposed to the occupational irritant and allergen their eczema will be aggravated by these factors, but that after they leave work their prognosis for full recovery from these occupational factors is very good, as they are then in general completely avoiding these allergens and irritants. Therefore, in my opinion, when Mr Tran left his work at Engmech, he would no longer have been exposed to occupational irritants or allergens. With treatment of his eczema, after ceasing contact with irritants and allergens in November 1996, his eczema should have reverted to a purely constitutional eczema, within a relatively short period of time. Definitely, in my opinion, when I saw him to asses his skin in June 1997 at Auckland Hospital and again in October 1997 at my rooms in Manukau City, his pattern of eczema and the rash that existed at that time would have been his constitutional atopic hand and body eczema." SUBMISSIONS Mr Tran represented himself and made his submissions to the Court. He did have an interpreter assisting him but that interpreter was for his assistance rather than the Courts, the interpreter being there to assist the appellant to give the appropriate English expression that he was intending, should he only be able to express it in Vietnamese without such assistance. Mr Tran took issue with certain aspects of Dr Greig's and Dr Harrison's reports. He stated that it was incorrect that he had had skin problems since childhood but rather these have developed when he was about 18 years of age. Further, he said that he had not been in Hospital in Vietnam for any such 20 problems. He submitted that as he had not had dermatitis since childhood, the conclusion reached by Dr Greig could not be valid. When the Court sought further clarification from the appellant on these matters it was discovered that he had spent time receiving treatment in Vietnam in what might be described as clinics rather than hospital as we understand that expression. Insofar as Dr Harrison's opinion is concerned, he stated that this also was founded on the false premise that he had a long history of subclinical asthma. He stated that Dr Harrison supposedly gave this opinion based on his answer to the question "Have you ever had a cough?" to which he had replied that he did get colds several times a year and that he felt that most people had a cough following cold or flu. It was the principal submission of the appellant that he had not been suffering from either dermatitis or asthma before starting with Engmech and that within a short time of working there he was suffering severely from both diseases. It was his submission that both of these had been occupationally induced. Ms Cheyne, counsel for the respondent, submitted that the evidence did not support a conclusion that either disease had been caused or contributed to, in terms of section 7(1)(a) of the Act, by his employment at Engmech. In the case of asthma, she submitted that the evidence was clear that he had had it for sometime prior to commencement of his employment with Engmech and that his subclinical asthma was pre-existing and that his employment situation did not change or create that condition, all it did was to accelerate the experience of symptoms of his underlying condition. 21 Insofar as the dermatitis was concerned, counsel submitted that the appellant has atopic dermatitis as an underlying condition. His genetic make-up makes him susceptible to exacerbation of this condition and again that condition could only have said to have been exacerbated by the work environment and that the condition was not caused or contributed to by that work environment. DECISION In order for the appellant to obtain cover under the Act he must satisfy the requirements of section 7(1). That provision states 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 ( 6 ) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and 22 ( 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.' It is noted that the section is concerned with personal injury caused by gradual process disease or infection arising out of employment. In 7(1)(a) the employment task or the environment must have a property or characteristic which caused or contributed to that personal injury. "Caused" in this context I find has the dictionary meaning "to bring about - to be the cause of - the thing, event, state or action that produces an effect." Similarly "contributed" in this context must mean "to be partly responsible for" (the cause). In the context in which those words must be read I find that the evidence clearly points to the appellant suffering from a pre-existing asthmatic condition at the time he commenced his employment with Engmech. Despite the assertions of the appellant to this Court I find there is evidence, by way of statements to various medical people, that the appellant had suffered asthma prior to commencing his employment with Engmech. In the Medical questionnaire by his GP, Dr Beetham, in support of his claim for cover that doctor says that he has had asthma for the last two years. Dr Harrison is clear in his assessment that he expressed symptoms of subclinical asthma from his teen years. Furthermore, he considered that the onset of symptoms so soon after he commenced his employment were such that he considered it not long enough for known eczema induces to cause asthma de novo. Whilst Dr Harrison considered that it was likely some factor in the workplace acted as a potent asthma trigger, it must be noted that it was simply that, a 23 trigger, and that there was nothing in his symptoms or the work place which would have caused the appellant to become an asthmatic. It is also to be noted that Dr Walls gave a similar opinion and, whilst not stating so in so many words, gave as his opinion that there was no evidence of the appellant being exposed to an asthma causing agent. Nevertheless he accepted that the appellant had suffered an asthma attack, thereby giving rise to the obvious inference that something in the workplace triggered this asthma off. No medical evidence has been put forward which would proffer any contrary opinion to that given by those two experts. Insofar as the appellant's dermatitis is concerned, again there is the evidence of a history of this disease going back to his youth in Vietnam. Whilst Dr Snow initially may have stated that "this man would appear to have an occupational related dermatitis", he went on to say that the appellant's dermatitis was likely to be atopic. Or Greig's diagnosis was that he had atopic dermatitis and that again there was occupational aggravation of that atopic disease. She noted that where a person is exposed again to the chemicals that they are allergic to, they will develop a flare up of dermatitis. It was her opinion that his dermatitis was not caused by his occupation but that it was primarily a constitutional problem which had been occupationally aggravated. In terms of section 7(1)(a) of the Act I find that whilst the employment task and/or the environment in which it was performed had a property or characteristic which triggered the appellant's asthma and dermatitis, that property or characteristic cannot be said to have caused, that is brought about, or be partly responsible for, the creation of the diseases of asthma and 24 dermatitis. Both of these diseases were already part of the appellant's make- up and all that had occurred during the course of his employment with Engmech was that there were "flare-ups" brought about partly by the work conditions and partly by factors outside the work environment. Where, as in this case, the claimant has pre-existing conditions I find as a matter of law that the fact that flare ups of those conditions may be triggered by workplace factors cannot bring that person within the provisions of section 7(1)(a) of the Act. It is a feature of this Act that personal injury caused by gradual process, disease or infection is not covered under the Act unless that personal injury is caused by a particular property or characteristic in the work place. Thus, there is a specific exception from the exclusion for occupational disease. However, it can only be that a property or characteristic of that occupation must be the cause, the creator of that disease, for cover to be contemplated. If one has the disease when one comes to the workplace, where that workplace or its environment may be inimical to that disease and the disease is triggered or flares up, that does not mean that the property or characteristic caused or contributed to the establishment of the disease. It must be the disease itself that is created in the work place, not simply a more acute manifestation of it. This state of affairs I find is different from that which might prevail under the principle sometimes described as the eggshell skull principle, that is "you must take yourvictim as you find him". I find that the eggshell skull principle has no application where there is a pre-existing or underlying disease or infection which is exacerbated by work place conditions. The propensity to contract the disease is different from the exacerbation of a pre-existing condition of disease. 25 The foregoing is sufficient to determine that this appeal must be dismissed but in the event that it should be established that the foregoing ruling of law be found not to be correct then I find as a matter of fact that the appellant cannot establish the negative proposition required by section 7(1)(b). The medical evidence was again clear and overwhelming that non-work factors were equally evident and present during the time of the flare up of these diseases and I confirm the Review Officer's findings and rulings in relation to section 7(1)(b). For the foregoing reasons therefore, this appeal is dismissed. DATED at WELLINGTON this (3 day of OCTOBER 1998 M J Beattie District Court Judge Tran.doc(gm)