Report of the Ministerial Advisory Panel on Work Related Gradual Process Disease or Infection
Section 31 Injury, Prevention, Rehabilitation and Compensation Act 2001
Part 4 - Problems With the Current Law
58. There are three general problems with the current criteria for determining whether or not a claimant has cover for a gradual process disease or infection. Those problems are:
58.1 The burden of proving personal injury;
58.2 The limited scope of Schedule 2;
58.3 The burden of proving personal injury is caused by work related circumstances (causation).
Each of these problems will be explained in further detail.
The Burden of Proving Personal Injury
59. The requirement that a claimant prove they have suffered personal injury (in most cases this requires proof of physical injuries) creates anomalies and inequities for many who are disabled because of their employment. The advisory panel is aware that many claimants have been denied cover because of their inability to prove they have suffered physical injuries notwithstanding the fact they have been disabled by reason of their work. This problem is perhaps best highlighted by reference to three groups in our community, namely:
59.1 Those who suffer regional pain syndrome (RPS) which is a type of condition that is more commonly known to fall under the umbrella term of occupational overuse syndrome (OOS);
59.2 Those who suffer multiple chemical sensitivity (MCS);
59.3 Those who suffer serious injuries and illnesses caused by stress.
Regional Pain Syndrome Sufferers
60. Those who suffer RPS, as a result of work related activities where there is no other physical injury present are currently denied cover because ACC does not recognise RPS on its own as being a "physical injury". The Corporation's stance has been endorsed by the High Court.[27] But ACC does cover those people who suffer RPS where there is a previous physical injury.
61. The medical community is divided over whether or not RPS constitutes physical injury. For example, in the Teen case reference was made to research which suggests that with RPS there is deterioration (physical damage) to the sensory cells. This damage can, according to some medical experts, be regarded as physical injury.
62. ACC and the Courts have been far from consistent in their views as to whether or not RPS constitutes physical injury. The conflicting Court approaches can be illustrated by reference to two cases:
62.1 In Waitemata Health Limited v ACE Insurance Limited[28] the District Court heard evidence from three experts. The judgment refers to all three experts accepting RPS
" …involves physiological changes, they being changes of the central nervous system …".
The Judge emphatically concluded:
"For these reasons therefore I rule that the condition known as a regional pain syndrome is a physical injury within the definition of personal injury…".
62.2 In Teen v ARCIC and Telecom[29] the same Judge who decided the Waitemata Health Limited case ruled that RPS was " pain without tissue injury" and therefore not a personal injury.
63. The advisory panel has examined 19 cases of RPS (and associated conditions) considered by the District Court during 2001, 2002 and 2003. In seven of those 19 cases RPS (or associated conditions) were held to be personal injury and the claimant's application for cover allowed. In 12 cases RPS (or associated conditions) were not thought to be personal injury and the claimant's applications for cover were dismissed.
64. An examination of the cases on this topic reveals that an application for cover by a person suffering RPS is unlikely to be accepted today. However this was not always the case. Applications by those who suffered RPS during the latter half of the last decade were likely to be accepted. ACC's changed stance about RPS reflects the fluctuating positions on this topic which can found in Court decisions. This unsatisfactory state of affairs can be directly linked to the fact that there is a lack of unanimity in the medical community about whether or not there is an identifiable biological structural change associated with RPS. The medical view which holds sway with the Courts at the moment (namely that RPS is not a physical injury) is not shared by equally authoritative medical experts.
65. Applications for cover by persons who have suffered work related RPS resemble many of the unfortunate features of common law personal injury claims criticised in the Woodhouse Report. In particular, in recent years those who have suffered work related RPS have effectively entered a lottery when seeking cover. The outcome of their applications has often hinged on debatable medical distinctions which in turn have led to conflicting Court decisions.
66. Those who suffer RPS are often seriously disabled and unable to return to work. Some continue to debate that RPS is not caused by repetitive strain relating to unsatisfactory work practices and environments. However the advisory panel's assessment of the evidence leads to the conclusion RPS is usually caused by repetitive strain which in turn is related to unsatisfactory work practices and environments. The fact a significant group in our community is disabled by reason of their work but are still denied any cover by ACC is an issue that has caused considerable concern to the advisory panel. A more principled solution needs to be found to the plight of these people.
Multiple Chemical Sensitivity
67. In 2003 the Minister of Labour established an Inquiry Into the Management of Certain Hazardous Substances in Workplaces. The hazardous substances in question were glutaraldehyde, aldehydes and organic solvents. The Minister of Labour's decision to establish that Inquiry was influenced in part by the experiences of nurses and radiographers who had suffered considerable frustration with ACC after succumbing to MCS as a result of being exposed to glutaraldehyde.
68. The Inquiry's report was published in July 2003.[30] The Report notes that people who suffer MCS react adversely and severely to a wide range of types and concentrations of chemicals encountered in every day life by most other people without any adverse affect. A typical range of symptoms of MCS referred to in submissions before the Inquiry included severe loss of breath, asthma, heart palpitations, dizziness, muscular pain, nausea, fatigue, mood swings, lack of concentration and memory loss.
69. The Inquiry's report notes that views on MCS and whether it should be recognised as a disease cover a wide spectrum of opinions. At one end of the spectrum, MCS is regarded as a spurious diagnosis for any number of separate health phenomena, many of them of psychological origins. At the other end of the spectrum, MCS is seen as a disease of the 21 st Century, plain evidence that we are poisoned by the world around us. In medical circles, proponents of a more traditional, evidence based approach generally do not accept MCS as a disease, nor exposure to chemicals as its cause. Others in the medical community are generally receptive to concerns about adverse affects of chemical exposure. Practitioners in this category worry less about scientific certainty as to cause and effect and accept the illnesses identified by their patients and treat those illnesses with a variety of approaches, often involving detoxification techniques.
70. The Inquiry's report notes that MCS has received the greatest degree of official recognition in the United States. MCS is recognised in the United States in a variety of ways at both Federal and State levels. American attitudes towards MCS are perhaps most succinctly summarised in the US Federal Inter-Agency Working Group on Multiple Chemical Sensitivity (Draft Statement) 1998 in which the authors stated:
" It is currently unknown whether MCS is a distinct disease and what role, if any, the biological mechanisms of specific chemicals have in the onset of this condition. The Working Group finds that MCS is currently a symptom based diagnosis without supportive laboratory tests or agreed upon clinical manifestations. This dependence on symptom based diagnosis has resulted in the absence of a uniformly agreed upon case definition. The Group could locate no previously published reports of definitive end organ damage attributable to MCS. However, scientific knowledge changes over time as additional findings are reported; it is therefore important not to lose sight of lessons from the past in which suspected health effects of environmental exposures were verified at a later date through scientific research."
71. ACC's official position in relation to MCS is that:
" A physical injury must involve bodily harm or damage. As multiple chemical sensitivity syndrome does not have the basic requirement of being a physical injury, it cannot be seen to constitute a personal injury under the IPRC Act 2001."[31]
72. ACC's view that MCS does not constitute physical injury has been supported by a number of District Court decisions.[32]
73. Sufferers of MCS have not always been denied cover by ACC. Section 28 of the Accident Compensation Act 1982 referred to "total or partial incapacity resulting from any disease, and the disease being due to the nature of any employment". In those circumstances, cover existed as if the disease were a personal injury by accident. Under the provisions of the 1982 Act the Accident Compensation Appeal Authority accepted a number of claims for MCS.[33]
74. As with sufferers of RPS, those who suffer MCS are also frequently seriously disabled as a result of being exposed to hazardous substances in their work environment. It is totally unsatisfactory that persons who would otherwise be productive members of our community are frustrated by being denied cover by our ACC scheme. The most important consequence of MCS sufferers being denied cover is that they are frequently denied the opportunity of rehabilitation.
Sufferers of Serious Injuries and Illnesses Caused by Stress
75. A further problem caused by the requirement that a claimant establish they have suffered personal injury as defined since 1992 before they are eligible for cover is that those who suffer serious psychological and psychiatric conditions such as post traumatic stress disorder as a result of work related stress are ineligible for cover. This particular difficulty was illustrated by a case involving a former police officer who sought cover for a serious and debilitating psychological condition caused by being exposed to unusual stress while working as a police officer. Because he did not suffer any identifiable physical injury his claim could not be accepted.[34]
76. The provisions of s.30(5)(a) IPRC Act which precludes cover for "personal injury related to non physical stress" raises a parallel and equally important issue. Section 30(5)(a) excludes from cover those who suffer physical injuries (such as for example, a cardiovascular infarct) caused by non physical factors such as emotional stress.
77. Those who have the misfortune to suffer a serious debilitating psychological/psychiatric condition such as post traumatic stress disorder, or a major physical injury, such as a heart attack caused by work stress deserve assistance and support. As a minimum, they deserve the same entitlements to treatment and rehabilitation as those who suffer equally debilitating physical injuries at work. In all cases persons who were otherwise productive members of society are precluded from working and functioning as normal because of their misfortune to work in an environment that has caused them to become disabled.
78. Our community should not countenance any suggestion that would preclude cover from those who suffer stress induced physical and mental injuries because of their susceptibility to succumbing to stress related conditions. For a century the courts have recognised that:
" If a man's physical condition is such to render him peculiarly susceptible to grave consequences for an accident which in a normally healthy person would have no such consequences, that will not affect the right to compensation for the more serious results."[35]
79. Precisely the same considerations apply in relation to those who suffer serious debilitation through work stress, even though others working in the same environment may not suffer adverse consequences.
80. The difficulties faced by those who have the misfortune to suffer RPS, MCS or stress related conditions arising from their work environment illustrate that the requirement a claimant prove they have suffered physical injury creates too many anomalies and inconsistencies. The advisory panel recommends abandoning the need to prove physical injury as a pre-condition to cover under s.30 of the IPRC Act. This would create a more principled approach to providing cover for those who become disabled because of work environments.
The Limited Scope of Schedule 2
81. A second general problem with the current criteria for determining whether or not a claimant has cover for gradual process, disease, or infection is the limited scope of Schedule 2. Schedule 2 was introduced to ease access for cover in limited circumstances where a claimant's gradual process, disease, or infection invariably arose because of their work environment.
82. Section 32(3) Accident Insurance Act 1998 introduced the concept of a presumption that certain occupational diseases were "work related personal injuries" for which the claimant would have cover.
83. The occupational diseases referred to in s.32(3) Accident Insurance 1998 were listed in Schedule 2 of the Accident Insurance Act 1998. That Schedule was copied from International Labour Organisation Convention No.42 which had been adopted by members of the ILO in 1934. The Convention was ratified by New Zealand in 1938. ILO Convention 42, and Schedule 2 of the Accident Insurance Act 1998 was divided into two columns. One column listed 11 diseases. The other column listed a series of "corresponding trades, industries or processes" most of which related to the manufacture of metals, alloys or compounds listed in the schedule.
84. If a claimant suffered one of the diseases listed in Schedule 2 and also established they had worked in one of the corresponding occupations listed in the schedule then it was presumed they had suffered a "work related personal injury".
85. Schedule 2 of the IPRC Act includes an additional six occupational diseases which were not referred to in Schedule 2 of the Accident Insurance Act 1998. The six additional occupational diseases inserted into Schedule 2 of the IRPC Act 2001 are:
85.1 Lung cancer or mesothelioma diagnosed as caused by asbestos;
85.2 Diseases of a type generally accepted by the medical profession as caused by beryllium or its toxic compounds;
85.3 Diseases of a type generally accepted by the medical profession as caused by chrome or its toxic compounds;
85.4 Diseases of a type generally accepted by the medical profession as caused by manganese or its toxic compounds;
85.5 Diseases of a type generally accepted by the medical profession as caused by carbon bisulfide;
85.6 Leptospirosis diagnosed as caused by work with animals or their carcasses.
86. Schedule 2 of IPRC Act also dispensed with the need for claimants to establish they were employed in one of the occupational categories listed in the second column of Schedule 2 of the Accident Insurance Act 1998 and ILO Convention 42. This change eliminated a fundamental injustice. The list of "corresponding trades, industries or processes" in Schedule 2 Accident Insurance Act 1998 and ILO Convention 42 generally referred only to occupations involved in the handling and manufacture of metals, alloys and compounds as well as some specific occupations which were renowned for using those substances. Schedule 2 of the Accident Insurance Act 1998 was of little assistance to those who were exposed to hazardous substances in the workplace but who were not engaged in one of the specific occupations listed in Schedule 2 of the Accident Insurance Act 1998.
87. Section 30(3) IPRC Act requires the claimant to only prove they have one of the 17 occupational diseases listed in Schedule 2 and that they were exposed to the dangerous substances in employment described in the schedule in relation to that type of personal injury. A claimant who passes this threshold does not have to prove that their personal injury was caused by gradual process, disease, or infection and that their personal injury was caused by the circumstances defined in s.30(2) IPRC Act.
88. Under s.60 IPRC Act the Corporation can rebut the presumption of cover in Schedule 2 cases if the Corporation establishes that:
88.1 The claimant "is not suffering from a personal injury of a kind described in Schedule 2"; or
88.2 That the claimant's "personal injury has a cause other than his or her employment".
89. Parliament attempted in the IPRC Act to address some of the injustices and anomalies created when it adopted ILO Convention 42 as Schedule 2 of the Accident Insurance Act 1998. Nevertheless there are still significant deficiencies with schedule 2 of the IPRC Act.
90. Schedule 2 IPRC Act is still fundamentally based on ILO Convention 42. As a consequence it is antiquated and, apart from the modifications made when the IPRC Act was passed, Schedule 2 diseases substantially reflect pre World War II epidemiological and medical knowledge. The shortcomings of Schedule 2 can be quickly illustrated by referring to a number of illnesses and diseases widely accepted as being capable of being caused by exposure to hazardous substances in a work environment:
Disease or Illness Cause Cancer of the Liver Hepatitis B and C infection and hepatocellular carcinoma arising from occupational exposures (eg healthcare workers) Cancer of the Stomach Arising from occupational exposures to grain dust, herbicides, diesel fumes Cancers of the Oral Cavity and Oesophagus Arising from polycyclic aromatic hydrocarbons Cancer of the Pharynx and Colon Arising from welding fumes, soldering fumes and grain dust Cancer of the Liver Arising from aflatoxins from crops used by the livestock feed processing industry Cancer of the Pancreas Arising from rubber chemicals such as acrylonitirile and pesticides Cancer of Nasal Cavity - Middle ear Arising from wood dust and leather dust Cancer of Larynx Arising from welding fumes Cancer of Trachea, bronchus and lungs Arising from cadmium dust, secondary tobacco smoke Cancer of Bladder Arising from textile dust, rubber, chlorinated hydrocarbon solvents Cancer of Kidney Arising from gasoline solvents, cadmium dust Chronic Bronchitis Arising from welding fumes COPD Arising from organic dust, endotoxins, welding fumes, secondary tobacco smoke Asthma Arising from grain dust, hay dust, animal epithelia, epoxy resins, flour dust, welding fumes, textile dust, secondary tobacco smoke
91. It is to be stressed that the preceding list does not purport to be exhaustive. It has been drawn from authoritative sources to illustrate the arbitrariness of listing diseases such as those found in Schedule 2 IPRC Act for special attention when many equally deserving claimants are faced with complex causation hurdles before they can qualify for cover.
92. Schedule 2 provides comparatively easy access for cover to a limited number of claimants who meet the schedule criteria. However many persons in our workforce suffer personal injury that is caused by work related gradual process, disease, and infection but are denied cover because of the difficulties of proving causation. This is an important issue which is addressed in paragraphs 94 to 104 of this report. Suffice to say for present purposes Schedule 2 is substantially based on antiquated knowledge. The conditions listed in Schedule 2 do not fairly reflect the medical community's knowledge about the causes of occupational illnesses and diseases. There is a fundamental inequity in providing cover to one group who satisfy the Schedule 2 criteria and at the same time deny cover to those who are equally deserving of assistance but cannot meet the difficult evidentiary burden of proving their personal injury was caused by a work related gradual process, disease, or infection. The magnitude of this problem is not to be underestimated. In paragraphs 119 to 121 the advisory panel provides some guidance on the number of persons affected by occupational diseases but who do not receive ACC cover.
93. In paragraphs 132 to 136 of this report the advisory panel recommends an immediate and thorough review of Schedule 2. The conditions listed in that schedule should be amended so that it reflects modern epidemiological and medical knowledge.
The Burden of Proving Causation
94. The third general problem with the current criteria for determining whether or not a claimant has cover for a gradual, process, disease, or infection concerns confusion and misunderstanding about the test of proving a causal connection between a claimant's work environment and their condition.
95. Claimants who wish to have cover under Schedule 2 need to establish that their condition or disease (i.e. their personal injury) is caused by exposure to one of the toxic substances listed in that schedule and that they came into contact with that toxic substance during their employment. Those who do not meet the Schedule 2 criteria must establish that their personal injury was caused by a gradual process, disease, or infection and, in addition, satisfy the following three part test:
95.1 That they performed an employment task that has a particular property or characteristic, or that they were employed in an environment that has a particular property or characteristic; and
95.2 That the particular property or characteristic caused or contributed to the claimant's personal injury. Furthermore, the claimant must establish that the particular property or characteristic is not found to any material extent in their non employment activities or environment;
95.3 Persons who perform the claimant's employment task, or work in the same environment are at significantly greater risk of suffering from the personal injury suffered by the claimant.
96. The onus is on the claimant to show, on the balance of probabilities, that their circumstances satisfy the tests described in the preceding paragraph.
97. Legal scholars acknowledge that an:
" … inquiry into cause is apt to produce perplexing legal and philosophical problems …"[36]
The obligation on a claimant to prove causation on the balance of probabilities is fraught with difficulties in claims based on exposure to hazardous substances.
The Courts frequently apply the "but for test" which is based on the premise that A is a cause of B if B would not have occurred "but for" A. A is not a cause of B if B would have occurred, irrespective of A.[37] The "but for" test "merely acts as a preliminary filter to eliminate the irrelevant".[38] In complex cases which involve an analysis of epidemiological and medical evidence the "but for test" frequently proves to be a very unsatisfactorily blunt tool of analysis[39]. Whereas lawyers and Judges are content to establish causation (at least in a civil context) upon a balance of probabilities, such a simplistic approach is frequently an anathema to members of the medical profession for whom causation is important in discharging their clinical tasks of prevention, diagnosis and treatment.[40] To those who wish to know the cause of a patient's condition in order to discharge their clinical responsibilities a simple balance of probabilities provides little assurance.
98. It is the fundamental difference in purpose between law and medicine when establishing causation that leads to much confusion and difficulty when trying to assign a legal test of causation to a medical condition.
99. These difficulties can be illustrated by reference to one case in which ACC wrongly denied an applicant's claim for cover.[41] The applicant was involved in degreasing and cleaning the inside of containers using solvents. In 2002 the claimant started to feel unwell and to experience changes in his personality and behaviour. The claimant saw his general practitioner who lodged a claim for cover on the basis that he suffered work related gradual process, disease, and infection, namely solvent toxicity. The claimant was subsequently assessed by five medical specialists.
100. ACC relied on the advice of one expert who concluded chronic solvent neuro-toxicity was "extremely unlikely" in the claimant's case.
101. The claimant's circumstances were also evaluated by a Department of Labour (OSH) Solvent Neuro-toxicity Panel which concluded unequivocally the claimant had "chronic solvent induced neuro-toxicity".
102. The claimant's employer was prosecuted under the Health and Safety in Employment Act 1992 for not providing a safe working environment by exposing the claimant to hazardous substances. The employer accepted their responsibilities and pleaded guilty.
103. Thus, in this case, ACC concluded that chronic solvent neuro-toxicity was an extremely unlikely consequence of the claimant's exposure to solvents. At the same time, a solvent neuro-toxicity panel and the claimant's employer concluded the claimant's illness was solvent induced neuro-toxicity.
104. It must be a source of bewilderment to any objective person that two dramatically different conclusions can be drawn from the same facts. However, whilst the advisory panel was concerned by this case, it was not overly surprised by what had occurred. It is a case which graphically illustrates the lack of harmony that can exist between medical and legal assessments of causation.
"Test of poisoning"
105. The advisory panel is aware that considerable efforts have been made to devise tools of analysis to assist in determining whether or not a claimant's disease or illness was caused by exposure to hazardous substances. One particularly important test is the "test of poisoning" established by the Australasian Faculty of Occupational Medicine of the Royal Australasian College of Physicians. That test was devised in response to the dilemmas faced by doctors who practise occupational and environmental medicine when asked to determine the likelihood of a patient's health problems being caused by poisoning.
106. The "test of poisoning" is based on the classification of a patient's symptoms and findings into major, intermediate and minor categories. The major criteria are allocated ten points each, while the intermediate and minor criteria are each respectively allocated five and two points. The criteria that are applicable to a patient are identified, points are allocated for each of the criteria and a total reached to determine the likelihood of whether or not the patient's health problems are a result of poisoning.
107. The categories of the "test of poisoning" are:
Category Description Points A.1 The patient has both body levels of the chemicals in excess of that which has been associated with toxic effect and objective biological markers of the poisoning effect being considered and that are characteristic of the chemical. 10
A.2 The patient has symptoms and findings that are both characteristic of the chemical and that either be precipitated or aggravated by the chemical, or relieved by specific antidotes to the chemical 10
B.1 The patient has had an appropriate exposure to the chemical and/or the chemical has been measured in the subject environment at levels that have been associated with toxic effects 5
B.2 The patient has either body levels of the chemical in excess of that which has been associated with toxic effects or objective biological markers of the poisoning effect being considered and that are characteristic of the chemical. 5
B.3 The patient has symptoms and findings that are characteristic of the chemical. 5
C.1 The patient has symptoms and/or findings that have a clear temporal relationship to an exposure to the chemical and that resolve within the expected time frame after the exposure ceases. 2
C.2 The patient has symptoms and/or findings that can not be explained by alternative mechanisms, or alternative mechanisms that can cause the same symptoms and findings have been reasonably excluded. 2
C.3 The patient has symptoms and/or findings that are biologically plausible effects of the chemical. 2
It is to be noted that Category A.1 cannot co-exist with Category B.2 and Category B.3 cannot co-exist with Category C.3.
108. The likelihood of health problems being due to poisoning is calculated by reference to the following scale:
Number of Points Probability of chemical poisoning
2 - 4 The chemical is unlikely to be the cause of the patient's symptoms, signs or findings. 5 - 8 The chemical is possibly the cause of the patient's symptoms, signs or findings. 9 - 14 The chemical is probably the cause of the patient's symptoms, signs or findings. 15 - 20 The chemical is a highly probably cause of the patient's symptoms, signs or findings. Greater than 20 The chemical is almost certainly the cause of the patient's symptoms, signs or findings.
109. The "test of poisoning" has its detractors. One group of researchers has said:
"The "test of poisoning" asks questions of the claimant which ACC knows cannot be answered with our current scientific understanding of PCP and dioxins … the main reason why so few of the questions raised by the "test of poisoning" cannot be answered with regard to PCP/Dioxins is that few, if any, epidemiological studies have been done on the dioxins found in all technical grade PCP."[42]
110. An occupational physician has said:
"The [test of poisoning] formula builds as it does on the concept of major and minor criteria, has a logical approach but is flawed by our limited state of knowledge concerning the absorption, metabolism and excretion of the great majority of toxic substances … the formula is robust only in those circumstances where evidence based measures of toxicity exist, in themselves making the formula unnecessary."[43]
111. Another senior physician has suggested the "test of poisoning" is not appropriate for those who suffer occupational asthma where it is said doctors have to assess the probability of cause on the basis of symptoms and clinical findings. The same doctor said that the "test of poisoning" is not appropriate where objective findings (such as self monitored peak expiry flow rates by asthma suffers) are either not available or may not be reliable.[44]
112. The advisory panel believes there were many commendable objectives to the "test of poisoning", not the least being its goal of trying to achieve consistency in evaluations. Nevertheless the test is capable of being mis-applied as evidenced by the fact that an application for review by M F Tokana (discussed in paragraphs 99 to 104 of this report) ACC's medical advisers applied the "test of poisoning" and assessed the claimant's score as zero.
113. The advisory panel is also aware that many claimants are sceptical about the "test of poisoning" and how it is applied by ACC.
114. Special reference needs to be made to representatives of an organisation called Sawmill Workers Against Poisoning (SWAP). The advisory panel met with representatives of SWAP in Whakatane in December 2003. The experiences of those people was distressing. Their patience has been immeasurable.
115. Members of SWAP were former employees at the Whakatane Sawmill and were exposed to PCP and other chemicals used in treating timber. The former employees of the sawmill had linked a high incidence of cancer and deaths to their exposure to PCP and other chemicals. Those affected appeared not only to have been those employed in the immediate vicinity of where PCP was used. For example some claimants recalled eating their lunch while sitting on freshly treated timber, and taking treated timber off-cuts home to be burnt in domestic fires, thereby exposing whole families to PCP.
116. The list of diseases affecting those formerly employed at the Whakatane Sawmill was very distressing, as was the evidence of debilitating conditions and illness amongst the children and grandchildren of former workers at the sawmill. The advisory panel was told by the SWAP representatives that 59 claimants had sought cover from ACC but of those 59 approximately 40 had been denied cover by ACC on the grounds that they had failed to establish that they had suffered a work related gradual process, disease, or infection.
117. The experiences of those represented by SWAP appear to have been very similar to the experiences of many who gave evidence to the Ministerial Inquiry into Management of Certain Hazardous Substances in Workplaces. Of the 120 submissions received by that Inquiry 78, (approximately 2/3rds) were made by or in relation to individuals who had suffered or who had identified themselves as suffering adverse health consequences from exposure to hazardous substances in their places of employment. Of those 78 submissions, 52 commented adversely on ACC and the experiences they had with the Corporation. At the centre of their complaints is the practical and philosophical difficulty of trying to prove a causal connection between their exposure to hazardous substances and their subsequent illnesses.
118. The advisory panel was satisfied after meeting with representatives from SWAP that a comprehensive and equitable method of providing cover must recognise the plight of those disabled as a result of being descendent from or otherwise associated with the "primary victim".
Magnitude of the Problem
119. The advisory panel is very concerned that a significant number of persons who succumb to work related gradual processes, diseases, and infections may be denied cover by ACC because of confusion over the test as to what constitutes a causal connection between their condition and their work environment. The advisory panel examined a report prepared by the National Occupational Health & Safety Advisory Committee's (NOHSAC) Report on Occupational Disease and Injury in New Zealand. That Committee's researches reveal that each year somewhere between 700 and 1,000 die in New Zealand from occupational diseases and that between 17,000 and 20,000 new cases of work related diseases occur. The figures calculated by NOHSAC are estimates based upon international studies and limited information from New Zealand. Of particular concern is the conclusion drawn by NOHSAC that ACC claims represent a significant understatement of the number of persons truly affected by work related diseases in New Zealand. For example, NOHSAC has estimated that between 300 and 800 occupational cancers occur each year in New Zealand. However ACC rarely provides cover for occupational cancer. In 2001 and 2002 ACC provided cover for occupational cancer on only four occasions. The disparity between NOHSAC's estimates and ACC's rates of cover are dramatic.
120. The NOHSAC figures are calculated from 1999 records. The advisory panel endeavoured to obtain comparative figures from ACC and sought information about the number of fatal and non fatal claims accepted by ACC as resulting from work-related gradual process, disease, or illness. Unfortunately ACC was unable to provide statistics for fatal claims. However, the claims accepted for non fatal work related gradual processes, diseases, and illnesses are significantly below NOHSAC's estimate. ACC's records suggest there have been on average approximately 6,500 non fatal claims for work related gradual process, disease, or infection each year since 2000.[45] It is surprising ACC does not have more comprehensive statistics which identify fatal claims based on work related gradual process, disease and illness.
121. The fact that there is such a wide divergence between the estimates calculated by NOHSAC and ACC's records of non fatal work related diseases strongly indicates that many who are subjected to work related diseases are not accepted for cover because of difficulties in establishing either that they have succumbed to a personal injury as defined in the IPRC Act or are unable to satisfactorily answer the causation questions posed by the questions in s.30(2) IPRC Act.
122. It may never be possible to establish a completely effective test of causation which satisfies the potentially conflicting demands of law and medicine. However, notwithstanding the inherent differences in approach to causation taken by the medical and legal communities, the advisory panel believes that claimants should not be placed in the invidious position of having to prove the cause of their incapacitation in order to qualify for treatment and rehabilitation services. The two crucial questions should be:
122.1 Is the claimant disabled or suffering sickness or injury? If so,
122.2 What, if anything, can be done to treat and/or rehabilitate them?
123. Despite the fundamental problems associated with proving a causal connection between a claimant's disability, sickness, or injury and their work environment, the advisory panel believes it desirable to retain the existing causation test of work-relatedness for those seeking to obtain weekly and lump sum compensation. It is imperative however that those administering the scheme ensure that questions of causation are assessed by fairly applying the balance of probabilities test. The advisory panel believes that many of the difficulties encountered in applying the existing causation criteria can be overcome if those charged with making determinations bear uppermost in their minds that the legal test of causation differs significantly from the approach medical people instinctively take to answering the question of what has caused a person's gradual process, disease, or infection.
124. The advisory panel believes it has an important role to play in continuing to monitor the way the troublesome issue of causation is administered under s.30 of the IPRC Act. The advisory panel intends to continue to monitor and report to the Minister on cases which illustrate a failure to correctly apply the causation criteria set out in s.30 of the IPRC Act.
Footnotes
[27] Teen v ARCIC and Telecom (unreported HC Wellington, CIV 2003-485-1478, 11/11/03, Wild J.
[28] Unreported DC Auckland, 68/2002, 7 March 2002, Beattie DCJ
[29] Unreported DC Wellington, 244/2002, 3 September 2002, Beattie DCJ
[30] Report of a Ministerial Inquiry into the Management of Certain Hazardous Substances in Workplaces: http://www.hazsubstancesinquiry.osh.govt.nz/index.html
[31] Paragraph 196 Report of a Ministerial Inquiry Into Management of Certain Hazardous Substances in Workplaces.
[32] See for example, Robertson v Accident Compensation Corporation, District Court, Auckland, 21 March 2001, Decision No. 58/2001, Beattie DCJ
[33] See for example Wilde v ACC, Cartwright P, 20 November 2001, 10/2002
[34] Gill v ARCIC (1996) 1 BACR 151; see also WDS v ARCIC DC Christchurch, 1/98, 7/1/98, Beattie DCJ
[35] McCarthy v Union Steam Ship Coof New Zealand Limited [1916] NZLR 1154
[36] The Law of Torts in New Zealand, Third Ed, 2001 paragraph 20.1
[37] Cork v Kirby MacLean Limited [1952] 2 All ER 402
[38] Winfield and Jolowicz "The Law of Torts" (15 th Ed) 1998 p.199
[39] See Chester v Afshar [2005] 1 AC 134, Gregg v Scott [2005] UKHL 2 as recent examples of departures from the "but for test" in claims of medical negligence
[40] Fletcher, Fletcher and Wagner 1988
[41] Application for Review by M F Tokana, Review No.23203, 17 March 2004
[42] PCP in the Timber Industry, Wellington School of Medicine 1999.
[43] C Walls, 1998 NZ Med J; 111; 258
[44] O'Donnell 1998 NZMed J 111; 372
[45] 2000/2001 - 7,337; 2001/2002 - 6,454; 2002/2003 - 6,368; 2003/2004 - 6,137