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Wilde Vs Acc MCS Chemical exposure

#1 Guest_IDB_*

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  Posted 14 November 2004 - 08:53 PM

could some kind soul please help find the full copy of this judgement please



Wilde vs acc 10/2002 decision 28 june 2002

some quotes:

52: A claimant could be forgiven for wondering why the appeal authority has ever permitted the respondent (ACC) to "debate the work-relatedness of MCS when clearly, the respondent (ACC) has recognised MCS as an occupational disease since the Gordon claim of November 1983"

53: The reports from Professor Glass and D Harrison are, as one might expect, assessments of whether or not Mr Wilde is disabled by chemical sensitivity as claimed. However, it can be equally discerned that Professor Gorman's assessment far exceeds its intended purpose, in that it is almost entirely devoted to advocating that chemical sensitivity is symptomatic of psychiactric disorders.

90: it seems to the authority that Dr Dryson's superficial acknowledgement of the existence of MCS is fatally compromised by the advocacy of certain legal parameters as a precondition of acceptance of a claimin an ACC context.This view is borne out by reference to part of the text of a letter which Dr Dryson wrote to Dr Bremner of the respondent on 4 May 1995 in which he explained, by reference to the appealant[Wilde]:
"....There is no currently convincing evidence that the exposure to the chemicals has actually caused the intolerence.There is some evidence that the intolerence may be psychological or psychiactric in origin.....it is clear that in the present state of knowledge it is not possible to ascribe the causation of MCS to exposure to chemicals whether in the workplace or not." (Authority's emphasis)

[110] Professor Gorman then concludes in his report of 2 July 2001, "I remain convinced that there is strong evidence that Wilde has an underlying somatoform disorder....."

[111] Although Professor Gorman may be convinced that there is strong evidence that the appellant has an underlying somatoform disorder, the Authority is not so satisfied , even on the balance of probabilities , that this is the case....

[112] The point the Authority needsto make, and perhaps it can be addressed by way of a question is, if the appellant is considered to have an underlying somatoform disorder, whether it would be necessary to have specialist psychiactric or psychologicall evidence to this effect. It is the Aothority's understanding that Profesor Gorman is a Professor of Medicine and a specialist in occupational medicine. It is the Authority's tentative view, although unassisted in the sense of a helpful or credible submission made on behalf of the appellant, that reliance should not be placed on Professor Gorman's strong conviction that the appellant has an underlying somatoform disorder, in the absence of clear and unequivocal evidence to that effect from a psychological or psychiactric source.

[114] Another concern held by the Authority by reference to Professor Gorman's evidence, is the possibility that his position on MCS is pre-determined. In that event, the weight which can be afforded Profesor Gorman's evidence in this case is questionable. Annexed as Exhibit Q to an affidavit sworn by the appellant in support of his application for leave to appeal out of time, is a letter from Professor Gorman dated 6 November 1996 (name and address of addressee deleted). In that letter Professor Gorman describes the debate surrounding MCS in this way:

" There are no substantive studies of multiple-chemical-sensitivity syndrome (MCS), and certainly none since the correspondence that you received from Dr John O'Donnell. In that context, I agree entirely with Dr O'Donnell that to date there has been no.....(rest of text not at hand)


now go read the nohsac report:
http://www.accforum.org/forums/index.php?s...t=0&#entry11062


note how the report is flawed - read the section on MCS.

next on the agenda

chemical exposure
- LITHIUM AND LIES
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#2 User is offline   ernie 

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Posted 15 November 2004 - 10:17 PM

I think I may have a hard copy, but not sure where at the moment. I also recall it is rather long, so might take while to locate, scan and create code from it to post.

It is a very useful judgment in many respects, but we have to remember it is under the 1982 Act, before the restrictive definition of personal injury was introduced that has subsequently been interpreted by the Courts as meaning that multiple chemical sensitivity, like fibromyalgia, is not a physical injury, and consequently not a personal injury that can attract cover unless it has been caused by some discrete antecedent personal injury.
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Posted 25 November 2004 - 05:30 PM

IN THE MATTER

Decision No. 10 /2002
of the Accident Compensation Act 1982

AND

THE MATTER
of an appeal pursuant to s.107 of the Act

BETWEEN
GEOFFREY WILDE of Orewa (Ref; ACA 202/90) Appellant
AND

ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act
Respondent

BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY
P J Cartwright
HEARING: at AUCKLAND on 8 August 2001
FINAL SUBMISSIONS: Received on 20 November 2001
APPEARANCES:
D J Burston as appellant's advocate A D Barnett for respondent

DECISION
  • The delay in the issue of this decision is regretted. Background

  • The issue in this appeal is the appellant's claim for multiple chemical sensitivity under the Accident Compensation Act 1982.

  • Cover was declined both for personal injury by accident, per se, and arising out of an occupational disease.

  • In February 1988 the appellant lodged a claim with the respondent alleging that he had suffered from toxic chemical poisoning. A medical certificate from his general
    practitioner diagnosed chest pains, palpitations and red roused skin rash, allegedly caused by carrying boxes of toxic chemicals, some of which were broken and had
    come into contact with his skin.

  • After receipt of a number of routine medical reports sought in investigating the claim, the file was referred to the respondent's District Medical Officer at Takapuna. He indicated that the various reports disclosed that the appellant's disabilities were psychosomatic in origin, and that his disabilities were not related to occupation or accident but could be associated with mild chronic artery disease and psychological factors. By letter of 30 March 1988 the respondent advised the appellant that his claim had been declined.

  • From the respondent's primary decision the appellant sought review. The review hearing took place on 12 March 1990 before a Review Officer. The transcript of the hearing shows that it was very brief as the appellant had prepared for and presented to the Review Officer, a large file containing his submissions, and attaching numerous extracts from magazines, journals, reports and newspapers. The thrust of his submissions was that he had suffered from herbicide or pesticide poisoning.

  • In a decision which issued on 16 May 1990, the Review Officer upheld the respondent's primary decision. He summarised the lengthy submissions which had been presented by the appellant and noted that it was Dr M Tizard who, using the EAV technique, diagnosed the presence of chemicals in the appellant's body, identifying 245T, 24D, paraquat roundup and others. The Review Officer recorded the respondent's rejection of EAV as a diagnostic technique, that information being contained in Medical Information Bulletin No. 56, dated March 1987. The Review Officer concluded:
    "In claims of this nature as submitted by the applicant, a lay person like myself become (sic) entirely dependant on the diagnostic skills of the medical specialists. As already has been stated I can find no evidence or record on the files from specialists who have examined and treated the applicant that the (sic) is suffering from the affects (sic) of contact with herbicides or pesticides. In view of these factors I must uphold the Corporation's decision in declining to accept that the applicant has suffered personal injury by accident as covered under the Accident Compensation Act of 1982."

  • It was against the Review Officer's decision that the appellant lodged a notice of an appeal. The appeal was heard before Appeal Authority, the late Mr B H Blackwood who, in his decision of 25 March 1991, upheld the Review Officer's decision.

    Mr Blackwood's Decision

  • It is recorded in Mr Blackwood's decision that at the hearing the appellant had asked that the appeal be determined entirely on the basis of the written material which he had submitted to the Review Officer, and on the basis of further reports "by seven of the world's most prominent authorities on pesticide issues", which he had then handed to Mr Blackwood. After recording in summary form the appellant's extensive submissions, Mr Blackwood addressed the EAV diagnostic technique jjmployed by Dr Tizard known as "Electro-acupuncture according to Voll" (EAV). By reference to a report to the Director-General of Health of June 1986 from the Task Force on Chronic Agricultural Poisoning Notifications in an earlier appeal (McPherson 109/89), Mr Blackwood reaffirmed that in his opinion the respondent was continuing to reject the validity of EAV as a diagnostic technique.


  • in dismissing the appeal Mr Blackwood concluded:

    "Section 28 of the Accident Compensation Act 1982 states that the purpose of
    the Act is (inter alia) 'to make provision for the compensation of persons who suffer personal injury by accident'. The definition Of 'personal injury by accident' in S.2 of the Act expressly excludes 'damage to the body or mind caused exclusively by disease, infection, or the ageing process'.

    Various propositions may be stated in relation to the policy of the Act and the extent of the cover it is designed to afford:
    • The fact that a claimant suffers from ill-health does not entitle him or her to
      cover under the Act unless that ill-health has resulted from an accident
    • There must be a nexus or chain of causation between the accident and
      the subsequent symptoms.
    • While in some cases the facts almost speak for themselves (eg a serious
      motor vehicle accident with resultant serious injuries) in most cases the
      Corporation, the Review Officers and the Appeal Authority must very
      largely be guided by the medical evidence in being persuaded that the
      nexus or chain of causation between accident and symptoms exists.
    This is not a case where the facts speak for themselves, as Mr Wilde has not alleged a single traumatic incident as the cause of his problems, but rather the exposure to pesticides over a period of years, building up in his system and leading to his ill health. Thus I must largely be guided by the medical evidence in determining whether the nexus or claim of causation has been established.

    Only Dr Tizard diagnosed pesticide poisoning in Mr Wilde, and, as he made that diagnosis by the EAV technique, I do not accept that diagnosis. Dr Johnston, who first examined Mr Wilde on 13 April 1985, was uncertain in his diagnosis of Mr Wilde's problems, postulating the possibility of an allergy or a psychosomatic illness. Dr Bass considered that Mr Wilde's chest pains were musculo-skeletal in origin with a possibility of some angina. Dr Hart was of the opinion that most of Mr Wilde's symptoms were psychosomatic in origin, a view which Dr Butler seemed to share. I take the point made by Mr Wilde in his submissions that those medical practitioners had not been alerted to the possibility of pesticide poisoning, but I do not accept that with specialists of that quality such a diagnosis would not have been made if indeed pesticide poisoning was the cause of his problems. I do not accept Mr Wilde's sweeping criticism of 95% of the medical profession in New Zealand.

    The medical evidence does not in any way persuade me that the cause of Mr Wilde's ill-health was pesticide poisoning. On the acceptable medical evidence there is simply no nexus or chain of causation between Mr Wilde's exposure to pesticides and his subsequent symptoms.

    I turn then to examine Mr Wilde's other evidence. ...

    I accept that from time to time Mr Wilde, while working at Shakespear Park, was exposed to pesticides. I accept from all the literature furnished by Mr Wilde that under certain circumstances exposure to pesticides can lead to poisoning. In spite of the lengthy and careful documentation by Mr Wilde of the pesticidal and herbicidal incidents in the course of his employment and elsewhere during the relevant years, I am not persuaded that any of those incidents individually or indeed all collectively were the cause of his ill-health. In my opinion, following a self-diagnosis of pesticidal poisoning, confirmed by an unacceptable diagnosis by Dr lizard, Mr Wilde has attempted to reconstruct events to justify that diagnosis. I do not doubt Mr Wilde's sincerity, but it is my opinion that his assiduousness in pursuing that reconstruction has led to a lack of objectivity. ...

    In summary, therefore, neither the medical evidence nor Mr Wilde's own evidence persuades one that he has been the victim of pesticidal poisoning entitling him to cover under the Act I hold that both the Corporation and the Review Officer were correct in determining that Mr Wilde has not suffered personal injury by accident."

    Following Mr Blackwood's Decision


  • Leave to appeal to the High Court was refused by another Accident Compensation Appeal Authority (His Honour Judge A W Middleton).

  • An application for special leave to appeal to the High Court was not lodged until much later, in 1998.

  • When the application for special leave to appeal came before the High Court, Ellis J indicated that there was a lack of medical opinion to support the application. Before the argument was heard on this application for special leave, the respondent, mindful of Ellis J's concern, consented to an adjournment to enable the appellant to obtain further medical opinion.

  • Further opinion was then provided by Professor W I Glass, a specialist in Occupational Medicine. The respondent then obtained an opinion from Dr Des Gorman, Professor of Medicine and Head of Occupational Medicine at Auckland Uniservices Limited. Before the matter came back before the High Court, the respondent consented to the granting of special leave to appeal.

  • In addition there is now further medical opinion from Dr Frankel, Respiratory Physician, and from Dr Craft (specialty unknown to the Authority). Finally, further reports have been forthcoming from Professor Glass and Professor Gorman.

    Additional Medical Evidence Presented at the Hearing of this Appeal

  • It is to be noted that little reliance was placed by Mr Burston on the reports referred to in this section of the decision.

  • Apparently Dr Craft referred the appellant to Dr Adrian Harrison, a Respiratory Physician, in June 1992. At the commencement of his report Dr Harrison noted:

    " 'Significant symptoms after cleaning out a shed of pesticide in 1972' and other symptoms manifested during the 1970s which settled after about six months but returned about a year later and have persisted for many years."

  • Dr Harrison noted that the appellant saw Dr M Butler, having previously seen Dr Hamish Hart, in 1985, but that in the absence of a knowledge of multiple chemical sensitivity syndrome at that time, that the appellant was said initially to have
    sychogenic illness and later, musculo-skeletal pains with autonomic dysfunction, cause being uncertain.

  • After conducting a full physical examination which disclosed no cardiovascular, respiratory or neurological abnormalities, Dr Harrison concluded his report with the assessment which follows:

    "Taking into account the major and complex medical problems that this man has had, the frustration and injustice he has experienced in being regarded as having symptoms due to psychological and not physical causes, I found him a very rational and sensible person.

    His symptom complex is entirely compatible with the multiple chemical sensitivities syndrome as documented in the report to the New Jersey State Department of Health (December 1989) by N.A. Ashford and S.F. Miller.


    In this syndrome a chemical inciting agent (such as herbicide(s)) causes a complex pattern of symptomatology which persists indefinitely. Fatigue, difficulty with memory and concentration and bizarre combination of symptoms are usual. As part of this syndrome the person becomes incredibly sensitive to a number of common agents in the environment which trigger exacerbations of symptoms. Common triggers are exactly those which are listed above in Mr Wilde's history. This man has suffered severe and continuing disability from the multiple chemical sensitivity syndrome. He is permanently disabled from this without prospect of therapeutic cure in future."

  • Dr Dryson commenced his report of 11 September 1992 by stating, having perused the documentation which the appellant had left with him, that "You certainly have many of the features of Multiple Chemical Sensitivities, and it is a reasonable diagnosis in your case". However, Dr Dryson went on to explain that in his view there were a number of difficulties standing in the way of establishing a claim with ACC, such difficulties requiring, among other things, some documentable environmental exposure, insult or illness, symptoms involving more than one organ system, recurrence and abatement of symptoms in response to predictable stimuli, elicitation of symptoms by exposures to chemicals of diverse structural classes and toxicological modes of action.

  • Positing that for the appellant there was therefore no problem in making a clinical diagnosis of Multiple Chemical Sensitivities, but that when it came to making a claim on ACC, a clinical diagnosis was usually not enough, Dr Dryson explained that for ACC purposes there had to be some objective evidence of disease "(i.e. something that can be seen or measured, but not just what the patient says they feel)." Dr Dryson added that there also had to be some plausible link between the person's job and the disease. Dr Dryson completed his report with the observations which follow:

    "In your case there is of course no objective evidence of disease on examination or on blood tests, and this is a problem with establishing the diagnosis of MCS generally. There is also no link, or at best a weak one, to your job. To be caused by your job the condition has to have arisen from the nature of the job, not from chance exposure unrelated to the intrinsic nature of the job. In other words, being subjected to pesticide spray is not an intrinsic part of building a house. It is an environmental exposure, not an occupational one. The ACC does not compensate for environmental exposure. For these reasons therefore, I am unable to support your claim to the ACC. Indeed I feel that pursuing an unrealistic claim may be draining on your energies and not help your condition.

    You will realise of course that in your case the pesticides acted as a trigger to causing MCS. Other chemicals may do the same however, and it is not just pesticides that cause MCS. You will appreciate that your symptoms are not those described in acute or chronic poisoning by pesticides in a toxicological sense and there is therefore no direct link between pesticides and your illness other than a time relationship.

    Treatment of MCS is particularly difficult. Although it is obviously sensible to restrict exposure to known triggers, this process, if taken to extremes, can produce a lifestyle so restricted as to be counterproductive. Learning to accept and cope with symptoms and recurrences, and their effect on family and social relationships, is very important, and allowing anger and frustration to predominate will only add to the disability. Many people with MCS find that behavioural psychology can be helpful in this respect. It is important to adopt a positive attitude to the illness, to avoid adopting a 'sick role' and to set yourself goals rather than to just drift. This may be aimed at eventual employment, or at a satisfying lifestyle at home."


  • A short letter from Dr Hart, Manager of Medical Services at North Shore Hospital, addressed to the appellant and dated 1 October 1992, noted that the appellant attended his Outpatients several times between July and October 1985 when it was his conclusion that most of his symptoms were "psychosomatic in origin". Noting also the appellant's request of him to change this diagnosis in order to strengthen his case with ACC, Dr Hart explained that he was not, however, prepared to change his original diagnosis.

  • It was following procurement of Professor Glass' report of 1 March 2000, for the articulated purpose of reviewing a case of prolonged possible multiple chemical sensitivities symptomatology, and procurement also by the respondent of a report from Professor Gorman, that the respondent consented to the granting of special leave to appeal by the High Court, which was instrumental in referral of the claim back for further consideration or re-consideration by this Appeal Authority.

  • By way of background, Professor Glass surveys the appellant's work experience from 1965 to 1972 when he was exposed intermittently to horticultural chemicals as an inevitable consequence of his work as a self-employed landscape gardener working throughout the Auckland area, and between 1974 and 1975 when the appellant was occasionally exposed to chemical spraying of the boundary of a section adjoining the appellant's property. Professor Glass noted that between 1975 and 1983 the appellant began a painting contracting business, during which period, although he was frequently exposed to solvent fumes, he had no attacks of his "flu-like illnesses". From 1983 to 1985 Professor Glass noted that the appellant joined the Auckland Regional Authority as a PEP Project Supervisor for Northern Parks, and that during this time he was again exposed to horticultural chemicals, both on the job supervising the PEP workers, and in the chemical storage sheds, "the floors of which were contaminated with dust from pesticide and weedicide containers".

  • Professor Glass continued his report by reference to the then current state of the appellant's health, other medical reports, and a diagnosis in the context of whether MCS exists and what causes the syndrome, particularly in the context of temporality, plausibility and dose response considerations. Professor Glass completed his report with the following conclusion:
      " I am of the opinion that Mr Wilde's health was affected by exposure to a range of insecticides in the course of his work. Evidence is presented of a number of exposure episodes with consequent effects. In time his 'loss of tolerance' resulted in increased sensitivity to such chemicals as well as a developing sensitivity to non-insecticide related triggers.

      By dint of avoidance of such triggers his health has improved over the last few years although he continues to have a respiratory system response to some airborne and food exposures.

      As Dr Harrison noted 'taking into account the major and complex medical problems that this man has had, the frustration and injustice he has experienced in being regarded as having symptoms due to psychological and not physical causes, I found him a very rational and sensible person.'

      I concur with much of this, Mr Wilde told his story accurately and logically. As is so often the case he initially made no connection between his work exposures and his symptoms. However, it is my view that there is a clearly defined temporal connection. With cessation of exposure to both insecticides and triggers there has been an improvement which also acts to support an exposure-response relationship.

      Thus, all in all I see a well defined nexus between his work exposures and his illness and would agree with the diagnosis of Dr Dryson and that of Dr Harrison, namely that Mr Wilde suffered from multiple chemical sensitivity.'

  • Dr J R Monigatti, an Occupational Physician and Occupational Medical Adviser to the respondent, was asked by Mr Barnett "... to comment on this case". Dr Monigatti's letter of 29 June 2000 on ACC letterhead does not specify what background information he was given.

  • Dr Monigatti explained that "Multiple chemical sensitivity syndrome is a term used to describe a symptoms complex attributed to exposure to multiple chemicals that may be inhaled or ingested". Dr Monigatti described the symptoms as being "variable and nonspecific, with little to be found in the way of abnormal clinical signs or test results." Dr Monigatti said that "Without any objective means of verification, the notion that injury (tissue damage) is involved in multiple chemical sensitivity syndrome must always be speculative". Dr Monigatti concluded that he did not consider the appellant's claim to be valid, and furthermore, that he thought Professor Gorman was a good choice for providing a clinical opinion in this case.

  • In his report of 21 August 2000, it was noted by Professor Gorman that Mr Barnett had asked him to assess the appellant with respect to his ongoing health problems, in particular whether or not the appellant suffered a gradual process/occupational disease resulting from his exposure to chemicals, and to determine, in that the event that he did suffer an occupational disease of this type, when this disease was likely to have onset. In addition to being able to interview and examine the appellant, Professor Gorman noted that additionally his assessment was also facilitated by the large number of medical reports that had been made available to him. Selected extracts from Professor Gorman's lengthy but helpful report of almost four pages follow:

  • Professor Gorman said: 'There is no doubt that Mr Wilde satisfies the diagnostic criteria for a multiple chemical sensitivity syndrome (MCS)."

  • And: "... it needs to be noted that he has a long history of multiple possible exposures to various poisons."

  • And:

    "Mr Wilde's exposure to manufactured chemicals really began in 1983. In that context his exposures were, as cited above, multiple and various. Many of these induced acute irritant symptoms. In the context of the symptoms claimed by Mr Wilde, and in the specific context of the temporal relationship of these to the chemicals to which he was exposed, his irritant symptoms are plausible. That is, the type of agents to which he was exposed would be expected to produce such phenomena, it is also clear that most of these resolved in the expected time frame. During the next 20 years, it is nevertheless clear that Mr Wilde has gone on to accumulate a basal morbidity."

  • Under the heading of "Direct Tissue or Organ Injury" Professor Gorman explained:

    "The most impressive problem that Mr Wilde has, which could be considered a direct injury consequence of his work place exposures, is that of nasal polyposis. This caused significant breathing difficulty. However, this was surgically corrected earlier this year, such that Mr Wilde is now able to breathe through his nose without difficulty.

    On Mr Wilde's symptoms, the two other organ systems that require special attention in the context of possible direct injury are his respiratory and neurological system.

    Historically, Mr Wilde's symptoms are not suggestive of asthma or bronchitis, but rather are highly suggestive of a hyperventilation syndrome. This is a disorder of breathing regulation and is very frequently encountered in people who have been subject to irritant chemical exposures. However, it is not a toxic affect, but a reflex behavioural response. The fortunate thing about this problem is that it is eminently treatable by respiratory physiotherapy. To confirm this diagnosis of hyperventilation syndrome, I would recommend that Mr Wilde be referred to Dr Andy Veale, a local respiratory physician, for appropriate respiratory function testing. Dr Veale should also be asked to specifically exclude asthma. On examination of Mr Wilde's respiratory system today, there were no abnormalities to be detected."


  • And:

    " In the context of any other allergic phenomena, Mr Wilde's history is not Suggestive of asthma. Nevertheless, as cited above, given that a referral for respiratory function testing is indicated to establish a diagnosis of
    hyperventilation syndrome, I believe that asthma should be specifically excluded."


  • Under the heading of "Psychological Disorders" Professor Gorman explained:

    "A variety of psychological disorders had been proposed to underline MCS. These include somatoform disorders, factitious disorders and malingering. I have no doubt that Mr Wilde is neither factitious nor malingering. However, there is strong evidence of an underlying somatoform disorder; in response to homoeopathic doses of hyperbaric oxygen and large doses of vitamin C, which were administered by Dr Matt Tizard.

    ...

    The argument here then would be whether or not this somatoform disorder was induced as a psychological reaction to his workplace exposures. This may be possible, but such complex psychiatric disorders are considered to be far more likely to be related to pre-morbid personality."


  • Professor Gorman concluded his report by saying that the appellant had a series of health problems which he believed had no plausible relationship to his MCS and that he would be happy to provide further commentary once the appellant had been assessed by Dr Veale.

  • It transpired that another respiratory physician, Dr Anthony Frankel, reviewed the appellant on referral from Dr Craft, who outlined the appellant's history in his referral letter.

  • Dr Frankel noted that the appellant had had a constellation of symptoms over the last 16 years which he had put down to exposure to numerous chemicals, insecticides and other toxins. Although noting it was hard to gather exactly what may have caused his symptoms, Dr Frankel acknowledged: "I am no expert on multiple chemical sensitivity syndromes."

  • Dr Frankel indicated that it would important to define the appellant's respiratory physiology further, and to that end he had organised for him to have full lung function tests, including measurement of gas transfer and a saline challenge test to see if he had any bronchial hyper-reactivity. Dr Frankel expressed a suspicion that the appellant might have an element of hyperventilation and that he had referred him "to the physiotherapists for advice with respect to hyperventilation and its management".

  • Dr Frankel reviewed the appellant at the Asthma & Respiratory Service. Dr Frankel noted that the appellant had ongoing sinus symptoms with a yellowish mucus discharge. Also, Dr Frankel noted clinically that the appellant had some sinus tenderness with mild pharyngeal inflammation but that "his lungs were clear". Also a barium swallow showed no oesophageal obstruction. Also, Dr Frankel noted that the appellant had not yet had his lung function tests. Also Dr Frankel noted that the appellant had,

    " Chronic upper respiratory tract inflammation with acute exacerbations, presumably infective. Additionally, he probably does have mild bronchia! hyper-reactivity. His ongoing problems include awakening with difficulty breathing and discomfort when swallowing, amongst his other non-specific symptoms. I think that he probably does have some oesophageal dysmotility and reflux which may be playing a part in his throat symptoms."

  • Dr Frankel suggested a number of treatments for these problems. In view of the appellant's recurrent nasal symptoms, Dr Frankel said he would refer him to Mr Jim Bartley, Otolaryngologist, for further review.

  • Finally, Dr Frankel said again that he would review the appellant following his lung function tests.

  • Dr Craft's brief report of 29 May 2001 is helpful. Dr Craft said:

    "I saw Mr Wilde on 24/5/01 and have confirmed that he has Asthma as determined by lung function tests in hospital, his symptoms, his recent Peak Flow Diary and his Bronchodilator response. He has known severe Allergic Rhinitis, previously undergoing intranasal polypectomy on 20/7/2000. He continues on high dose intranasal corticosteroids in an attempt to control his nasal symptoms."

  • Dr Craft completed his report with these comments:

    "From my records there have been a variety of symptoms described to me over the years which Mr Wilde feels are due to Chemical Poisoning.

    He mentioned to me on 2/6/99 that he still gets reactions to respiratory antigens such as women's perfumes. He described chest tightness, coughing and wheezing. This suggests in retrospect that he had been having these symptoms for some time and that in retrospect it represented clear symptoms of asthma. I could not find in his records earlier mention of asthma type symptoms, but I must acknowledge it is not always possible to record verbatim every symptom patients mention when they present with multiple problems.

    My records indicate he presented with nasal congestion secondary to nasal polyps on 24/2/2000. He said his nasal congestion had been present since the winter of 1999. Given that his polyps were large and multiple and that polyps take many years to develop, it would suggest that he had allergic rhinitis for many years.

    In summary, Mr Wilde has developed severe allergies, rhinitis, asthma, eczema. Because of the delay in his diagnoses and the severity of symptoms he has been particularly unwell with significant disruption to his life."


  • The final piece of new medical evidence which was forthcoming between the period of Ellis J's referral of this claim back to the Appeal Authority and the actual rehearing of the appeal, is one last report requested of Professor Gorman by Mr Barnett. Because this report (dated 2 July 2001) specifically addresses the recent reports given by Dr Frankel and the report given by Professor Glass, and acknowledging that inclusion of this report in its entirety does have the effect of lengthening an already quite long decision, that report follows:

    " Thank you for your letter of 28 June 2001, asking me for some further
    commentary on Mr Wilde's health problems, and whether or not these can be attributed to his chemical exposures at work. I also note that you enclosed with
    your letter a series of reports and letters from Dr Anthony Frankel, a consultant respiratory physician at Waitemata Health Limited. These have shown Mr Wilde to have some oesophageal dysmotility and some bronchial hyper-reactivity. I note that Dr Frankel has referred to the latter on several occasions as being marked. This is not the case. Instead, Mr Wilde has evidence of underlying obstructive respiratory disease with mild bronchial hyper-reactivity. For example, you will note in one report, that Dr Frankel refers to an 18 percent improvement in one of the spirometric values (FEV1) following the administration of a bronchodilator. In general, a change of more than 20 percent is considered abnormal, whereas a change between 15 and 20 percent is considered to be suspicious. As such, an 18 percent change is hardly indicative of marked responsiveness. Nevertheless, taken together with Mr Wilde's symptoms, these findings are indicative of a diagnosis of asthma. This is also consistent with some of the blood tests reported by Dr Frankel, and in particular the eosinophil account cited in April of 0.73 x 10 ^9/L with an elevated IgE level. I agree entirely with Dr Frankel that this suggests an allergic tendency.

    The question here then is whether or not this diagnosis of asthma, and the underlying evidence of an allergic tendency, alters the comments I have made to you previously about Mr Wilde's multiple chemical sensitivity syndrome. The first point to be made in this context is that asthma is a very common condition and many people with asthma would have the blood test results as cited above. As such, the diagnosis of asthma here and the blood test results do not substantially alter the formulation of Mr Wilde's multiple chemical sensitivity syndrome.

    To summarise this, Mr Wilde satisfies the diagnostic criteria for this syndrome, but this is hardly surprising given the inclusive nature of this definition. With the exception of Mr Wilde's nasal polyposis, none of Mr Wilde's health complaints can be seen as a direct tissue or organ injury consequence of his chemical exposures at work.
    The respiratory function testing available to date does not support a diagnosis of hyperventilation syndrome, and as stated to your previously, I could find no evidence of any injury to Mr Wilde's nervous system. From the perspective of immune and allergic phenomena, the blood test results cited above are commonly found in the community, and especially in people with asthma.

    I remain convinced that there is strong evidence that Mr Wilde has an underlying somatoform disorder. The reasons for this conviction have been presented to you previously.

    In the context of neural kindling and learnt behaviours, the two other pathogenic mechanisms commonly cited of multiple chemical sensitivity syndrome, there is no evidence that Mr Wilde has been subject to either of these processes.

    I note that Dr Bill Glass did provide a report arguing that Mr Wilde was suffering from multiple chemical sensitivity syndrome. I also note a critique of his report provided to you by Dr John Monigatti, with which I substantially agree. There are two, in this context significant, problems with Dr Glass' formulation. First, as not used all of the Bradford Hill criteria to establish the likelihood of Mr Wilde's health problems being due to his work place exposures. Indeed,other than temporality, it is difficult to see that any of the other criteria would be met. This is particularly true for specificity. In addition, if the test of poisoning that Dr Evan Dryson and I developed for the Royal Australasian College of Physicians were applied in this context, with the exception of nasal polyposis, Mr Wilde's health conditions would not be considered to be probable consequences of his workplace exposure, indeed, they would be considered to be highly unlikely.

    The other major problem with Dr Glass' formulation is that Mr Wilde's health problems clearly pre-date his arrival in New Zealand and his exposure to workplace chemicals. I agree with Dr Glass that a diagnosis of farmers lung describes one of the health problems that Mr Wilde had while he was still in the United Kingdom. However, to dismiss these health problems as being unrelated to his current health state, and attribute the latter to his workplace exposure since arriving in New Zealand is to deny the existence of a substantive amount of disease that pre-dates his chemical exposures.

    In summary then, Mr Wilde satisfies the diagnostic criteria for a multiple chemical sensitivity syndrome. However, most features of his ill health have not been shown, with any degree of confidence, to be related to his workplace exposures."


    Memorandum Issued by the Appeal Authority to the Parties on 31 August 2001

  • During the course of the hearing Mr Burston had explained that he had referred to Professor Glass for comment, the two reports given by Professor Gorman. Unfortunately no response had been forthcoming from Professor Glass. Accordingly, the Appeal Authority took it upon himself to issue a Memorandum to the parties and the text of that document from paragraph 14 onwards follows here for convenience:

    "(14) For all practical purposes the hearing of this appeal has been completed. However before delivery of his decision it is the Authority's wish to obtain further comment from Professor Glass. For this purpose the hearing of the appeal is adjourned. This Memorandum now issues for the purpose of facilitating an additional report from Professor Glass. This action is taken by the Authority with full awareness of Mr Burston's position. In a letter received by the Registry on 17 August 2001 Mr Burston explained '... that the outcome of this appeal could not be materially altered by further input from Professor Glass ...'.

    (15) The Authority would make the point that the report given by Professor Glass was obviously the catalyst which led the respondent to consent to the granting of special leave to appeal. In these circumstances the Authority considers that it is entirely appropriate that Professor Glass be given an opportunity to respond to the views put forward by Professor Gorman. For Professor Glass not to be afforded this opportunity would leave the Authority at some disadvantage in terms of having a balance of opinions from the two eminent specialists who have reported on this complex claim.

    (16)In addition to Professor Glass being supplied with copies of Professor Gorman's reports of 21 August 2000 and 2 July 2001, he should also be Supplied with copies of Dr Frankel's reports of 14 February 2001, 11 April 2001 31 May 2001, together with a copy of Dr Craft's repori of 29 May 2001.


    (17) The respondent will be entrusted with the responsibility of collating the various reports and referral of them to Professor Glass. A copy of this Memorandum should accompany the referral to Professor Glass. The cost of Professor Glass' report will be met by the respondent.
    (18) The principal objective of the referral back to Professor Glass is to give him the opportunity to indicate whether the additional reports which accompany this Memorandum, cause him to vary or modify the conclusions which he reached in his report of 1 March 2000.
    (19) The Authority would also appreciate any comments which Professor Glass may wish to proffer arising out of the following propositions which were advanced on behalf of the respondent at the appeal hearing:
    • Professor Glass does not note, as did Dr M J Butler, Rheumatologist, that Mr Wilde had a history of allergies from childhood.

      Nor was Professor Glass apparently aware of episodes in 1954 and 1956 when Mr Wilde experienced hot sensations in the central forehead and swelling with severe aching requiring admission to hospital.
    • Professor Glass has a new history in that he refers to an episode in 1965 when Mr Wilde became unwell with 'flu-like symptoms, muscle aches, pains, headaches, fatigue and nausea', and which Mr Wilde associates with exposure to a chemical spray.
    • Professor Glass also records in the period 1965-1972 Mr Wilde had a number of similar episodes of flu-like illness which Mr Wilde was 'not able to relate to any specific chemical exposure or events'. Professor Glass does not look for a cause of this illness which on the face of it is akin in part with later symptoms said to be MSC but do not fit on a temporal basis with a diagnosis of MSC.
      And this is a new history not before doctors Butler, Harrison and Dryson.
    (20) Of Mr Wilde's current health, Professor Glass notes that his main concern now is his breathing, although he understood that his 'lung function is excellent' (the recent report of Dr Frankel reveals this not to be so).
    (21) On receipt of the further report from Professor Glass the parties will be given an opportunity to make supplementary submissions. At that time the file should come back to the Authority to make timetable directions."


    Professor Glass' Second Report


  • Following receipt of the Authority's Memorandum to the parties, a report was duly forthcoming from Professor Glass. It is dated 15 October 2001. That report was sent to the parties with an opportunity to make further and final submissions. As earlier indicated, the file came back to the Authority for issue of this decision in November 2001. Also, as earlier indicated, the Authority is embarrassed and regretful for the inordinate delay in the issue of this decision. Because in the authority's judgment Professor Glass' second report is absolutely critical in the determination of this appeal, despite its considerable length the full text of the report must be included in the decision.

  • The text of the report follows:
    "At the request of Judge P J Cartwright! have been asked to review my report and conclusions (01.03.2000) in the light of subsequent medical reports.

    I note the following:

    1. This appeal is not about whether multiple chemical sensitivity exists as a
    recognised diagnostic criteria. That is accepted.

    2. The issue is essentially whether the applicant suffers MCS and more
    centrally, the issue is causation.

    It is therefore issue two which I will reconsider in this report given that since my initial report, 01.03.2000, further opinions have been obtained as follows:

    1. Professor Gorman, 21.08.2000, 02.07.2001
    2. Dr Frankel, 14.02.2001, 11.04.2001, 31.05.2001
    3. Dr Craft, 29.05.2001
    4. Dr Butler, 16.05.1986 (Not previously seen)

    Not included in the list above is another report prepared after my initial report.

    5. Report to Mr Alistair Barnett by Dr Monigatti of the ACC Workwise Unit,
    29.06.2000.

    I will, therefore, also consider this report.

    Finally, I note that Judge P J Cartwright states that:

    'The principal objective of the referral back to Professor Glass is to give him the opportunity to indicate whether the additional reports which accompany this memorandum, cause him to vary or modify the conclusions which he reached in his report of 1 March 2000.'


    Before dealing with this principal objective there are, however, some questions of detail in my original report of 01.03.2000 which need further elaboration as they were advanced on behalf of the respondent and are included in clause 19, page 3 of Judge Cartwright's Memorandum to Parties. There is also a matter of detail concerning Mr Wilde's lung function which is raised in Clause 20.

    CLAUSE 19

    respondent States that I did 'not note as did Dr M J Butler, Rheumatologist, that Mr Wilde had a history of allergies from childhood.'. Nor was I 'apparently aware of episodes in 1954 and 1956 Mr Wilde experienced hot sensations in the central forehead and swelling with severe aching required admission to hospital'.

    Before dealing with these two issues it would be useful to include excerpts from Dr Frankel's report of 14.02.2001 where he notes,

    'He has no history of childhood chest problems.'

    'He did have eczema as a child.'


    'At the age of 18 he had pneumonia and pleurisy diagnosed. He was thought to have tuberculosis and was treated in a sanatorium with TB drugs including Streptomycin for six weeks. He tells me that the doctor then asked to see his X-ray and amazingly he had not had any X-rays. Apparently the X-ray was clear and he was cleared of tuberculosis.'

    Then in my first report I noted that:

    'as a young man he reacted to dust of mouldy hay, probably suffering from "farmer's lung".'

    Professor Gorman in his report, 21.08.2000, page 3, para 2, states 'in the context
    of any other allergic phenomena, Mr Wilde's history is not suggestive of asthma'.


    There are thus a number of comments in addition to the two raised by the respondent concerning Mr Wilde's childhood and adolescent health that need discussing.

    Mr Wilde explained them as follows:

    1. He did not have eczema as a child (contradicting Dr Frankel) but he did
    recall that he had scarlet fever and erysipelas with rashes.

    2. He did not have a history of allergies from childhood (contradicting
    Dr Butler).

    3. He did not have a history of childhood chest problems (confirming
    Dr Frankel).

    4. He did not react to fresh hay during hay making (an activity he carried out
    from age 13 to 30).

    5. He did react to mouldy hay but only with sneezing. (My first report.)

    6. He was not admitted to hospital 1954, 1956. (Contradicting Dr Butler in
    his report, 02.09.1986.) He briefly visited the casualty department on two
    occasions. His symptoms were itchy, swollen eyes, blocked nose and
    sinuses (frontal and facial aching). He has no idea why these two
    episodes occurred.

    7. Dr Frankel's report of his pneumonia and initial admission to hospital and
    treatment for tuberculosis are correct. In fact, he had just undergone an
    army medical (aged 18) when he developed pneumonia and related it to
    working out late on the tractor and 'getting a chill'.

    Why then is it that among some 13 medical reports, one doctor reports one
    thing and one another? I believe it is understandable that among different
    specialists different emphases are given and even among doctors within the
    same speciality different histories are obtained which often relate to how extensive the history and how much time is given to the interview. Finally, it is asking too much to expect the patient to provide exactly the same history on each occasion particularly when the reports on Mr Wilde considered in this case extend over a period of 15 years from 1986 to 2001.

    The next issue raised by the respondent refers to the fact that 'Professor Glass has a
    new history in that he refers to an episode in 1965 when Mr Wilde became unwell with "flu-like symptoms, muscle aches and pains, fatigue and nausea" and which Mr Wilde associates with exposure to chemical spray.'


    I am not clear as to the point of this paragraph. I recorded this episode as part of my report, as told to me by Mr Wilde when I interviewed him.

    Finally, the respondent notes, 'Professor Glass also records in the period 1965 - 1972 Mr Wilde had a number of similar episodes of flu-like illness which Mr Wilde was "not able to relate to any specific chemical exposure or events". Professor Glass does not look for a cause of this illness which on the face of it is akin in part with later symptoms said to be MSC but do not fit on a temporal basis with a diagnosis of MSC (MSC = MCS)

    As I pointed out in my report, at that time Mr Wilde was not able to relate these episodes to any specific chemical exposures or,events. I am unsure just what point the respondent is endeavouring to make. Certainly it is not for me to explain why Doctors Butler, Harrison and Dryson did not record these events. However, I have earlier suggested why different doctors obtain different histories.

    However, I do discuss these episodes further on the second to last page of my
    report, para 3, Where I note, 'One can speculate as to whether his previous episodes of similar illness, which he labelled as due to "antipodean bugs" was the first step in Dr Miller's two step theory,during which Mr Wilde began to "lose his tolerance".

    Further, it is important to appreciate that patient awareness of an association between an exposure and a response is seldom immediate (any more than a doctor's). Both the profession and the patient tend to ascribe such episodes of illness to "other more common things" such as, for example, a "virus". It is only when the events become a recurrent and persistent feature of a person's health state that a search for a cause begins, or it may only be retrospectively when an illness pattern becomes established that, on looking back, the doctor and or patient comes to the view that the illness process began with such earlier events.

    CLAUSE 20

    Of Mr Wilde's current health, Professor Glass notes that his main concern now is his breathing, although he understood that his 'lung function is excellent' (the recent report of Dr Frankel reveals this not to be so).

    When I saw and reported on Mr Wilde (see the 4th page of my report) I noted that the symptoms that concerned him most at that time were those involving
    his breathing, 'Although he has told me his lung function is excellent ... .' That is a record of what he told me, not my opinion. In fact the remainder of the sentence clearly indicated that he had breathing difficulties. At interview I did raise with Mr Wilde the importance of seeing his GP with a view to getting specialist assessment of his lungs. The need for this became very apparent to me when I walked with him to the bus stop in Newmarket.

    At this stage he had not been seen by Dr Frankel (a respiratory physician whose reports were thus not available to me) although Dr Harrison, a respiratory physician, had, in an earlier 1992 report, noted, ' I did a full physical examination : there were no cardiovascular, respiratory or neurological abnormalities.' Clearly
    something had changed between 1992 and 2000 as far as his breathing was concerned.

    As the question of Mr Wilde's respiratory condition is to some extent disputed between Dr Frankel and Professor Gorman it is appropriate to deal with it at this stage.

    Professor Gorman in his report, 21.08.2000, on page 2 noted in para 5 that,
    'Historically, Mr Wilde's symptoms are not suggestive of asthma or bronchitis, but rather are highly suggestive of a hyperventilation syndrome' and he recommended that to confirm that possible diagnosis Mr Wilde should be referred to Dr A Veale, a respiratory physician, and as Professor Gorman noted, 'Dr Veale should also be asked to specifically exclude asthma.'

    Professor Gorman in his report of 02.07.2001, page 1, para 1, having received
    Dr Frankel's report, now accepts that, 'Nevertheless taken together with Mr Wilde's symptoms, these findings are indicative of a diagnosis of asthma' and that With reference to the blood tests, Professor Gorman records, 'I agree entirely with Dr Frankel that this suggests an allergic tendency.'

    Thus, without specifically outlining Dr Frankel's report and tests, it can be concluded that Mr Wilde now suffers from asthma.

    I now come to the principle objective, namely that of my being asked if, in the light of further reports provided to me since I saw Mr Wilde in March 2000, I have reason to vary or modify my conclusion.

    1. THE DIAGNOSIS OF FARMER'S LUNG

    Let me start with my probable diagnosis of 'farmer's lung'. On reviewing this in more detail it is clear that Mr Wilde's symptoms when exposed to mouldy hay were irritant only and manifested with the symptom of sneezing.

    This accords more closely with Professor Gorman's finding on page 1 and 2 of his report, 21.08.2000. At the bottom of page 1, for example, he notes 'he also describes irritant symptoms to hay dust', more correctly mouldy hay dust, and again on page 2, para 1 where he notes that organic farming 'involves exposures to pollens, dusts,
    grasses, moulds and other naturally occurring agents that can induce ill health. It is also clear that Mr Wilde developed acute irritant problems at this time.'


    2 MR WILDE'S LUNG CONDITION

    Following Dr Frankel's investigation it is now accepted that Mr wilde has asthma, a condition Dr Harrison had not diagnosed in 1992.

    3. MULTIPLE CHEMICAL SENSITIVITY (MCS)

    Dr Dryson, Dr Harrison and Professor Gorman all separately conclude that the diagnosis of MCS reasonably describes the symptom complex with which Mr Wilde presents.

    Dr Dryson describes it thus, 'it is a reasonable diagnosis in your case", 11.09.92, page 1.

    Dr Harrison notes 'his symptom complex is extremely compatible with the multiple chemical sensitivities syndrome as documented in the report of the New Jersey State Department of Health (December 1989) by Dr N A Ashcroft and S F Miller', 13.06.92, page 2.

    Professor Gorman reports, 'there is no doubt that Mr Wilde satisfies the diagnostic criteria for a multiple chemical sensitivity syndrome' 21.08.2000, page 1, para 3.

    In 1999 Graveling et at, in the Journal of Occupational Medicine, wrote a Review paper on multiple chemical sensitivity the purpose of which was to review the scientific literature on this condition. The two questions asked were as follows:
    'does MCS exist and what causes MCS?'

    The results and conclusions, and here we can with confidence assume they were well aware of the Bradford Hill criteria, were as follows:

    a. 'the collated evidence suggests that MCS does exist although its prevalence generally seems to be
    exaggerated.'
    b. 'the available evidence seems most strongly to support a physical mechanism involving sensitisation of part of the mid brain known as the limbic system. However, it is increasingly being recognised that the psychological milieu of a person can considerably influence physical illness, either through generating a predisposition to disease or in the subsequent prognosis.'



    4. ON THE QUESTION OF WORK RELATEDNESS
    When Mr Wilde came to New Zealand in 1965 at the age of 30 he was in good health, an active and fit man.

    1965

    Mr Wilde was exposed to a chemical spray as recorded in my report, page 1. His reaction as he recalled it was that some hours after exposure he became unwell with flu-like symptoms, muscle aches and pains, headache, fatigue and nausea. He recovered in a week.

    1965-1972

    Mr Wilde worked as a self-employed landscape gardener. He was exposed to a range of horticultural chemicals. He had a number of flu-like illnesses not unlike the episode of 1965 but did not relate them to any specific exposure believing they were 'antipodean bugs'.

    1972

    He recalls a specific exposure in a relatively confined space when cleaning out
    a shed of mixed pesticides and other horticultural chemicals. He again developed an illness similar to those earlier noted, nevertheless he continued at work and, in about 4 days, his symptoms eased.

    1974/75

    Mr Wilde recalls further exposures when council officers sprayed land adjacent to his home and again he recorded similar symptoms. The one exception was when he burned dry sprayed vegetation and on this occasion developed symptoms involving his respiratory tract.

    1975-83

    Mr Wilde worked as a painting contractor without suffering any episodes of ill health of a pattern described earlier.

    1983-85
    He worked for the ARA as a supervisor where he was again exposed to horticultural chemicals. There were two episodes he particularly recalled.

    1984
    He was exposed to spray drift and again developed a flu-like illness but also noticed some chest tightness.

    1985

    He cleared out a shed as part of his work over 10 days. He removed and transported chemical containers to another shed and he also handled fleece in a third shed.
    On this occasion there was an increased severity to his symptoms and eventually he had to stop work.

    1988
    In 1988 it is recorded in his own submission that he was again exposed to spray drift from a neighbour's activities and again became ill.

    1992

    In 1992 both Dr Dryson and Dr Harrison recorded that Mr Wilde reacted to non-spray triggers such as exposure to the fumes of photocopy machines, newspaper print, hair dressing salons, some foods, perfumes, air fresheners, etc.

    In summary, therefore, here is a man who as a teenager reacted to mouldy hay with sneezing, who subsequently developed a defined illness on occasional excessive exposures to pesticides. I say excessive because between times, ie 1965-83 he was working in an environment with solvents (as a painter) and pesticides (horticulture) but had no ongoing episodes. His most severe exposure occurred in 1985 (10 days) after which he has not worked but in 1988 had a further, for him, severe exposure. From the 1990s at least he has shown a response to a range of chemicals and has developed asthma.

    How one interprets this history clearly varies.

    Dr Monigatti, who did not interview Mr Wilde, states 'it is immaterial when the
    supposedly causative exposure episode took place, the medical advocate simply chooses from a number of occurrences which ever best suits the needs of the patient. I suggest that this happened in Mr Wilde's case and I do not consider the claim valid'.


    Professor Gorman, who commented twice on this case, took an occupational history on the occasion when he saw Mr Wilde but prefers to explain Mr Wilde's response to his various chemicals by proposing the existence of 'an underlying somatoform disorder', with the argument that such a disorder may have been 'induced as a psychological reaction to his workplace exposures'. He sees this as possible but that such a response is more likely to be related to a premorbid personality.

    Professor Gorman concludes his initial report with some paragraphs on learned behaviour and uses Mr Wilde's hyperventilation syndrome as an example. The difficulty here is that Mr Wilde did not have a hyperventilation syndrome as shown by Dr Frankel.

    In Professor Gorman's second report he nevertheless remains 'convinced that there
    is strong evidence that Mr Wilde has an underlying somatoform disorder'.


    DISCUSSION
    The first point that must be made is that MCS is not a common condition. This is noted in the Review Article and would be in accord with my own experience over some 42 years of practice.

    The second point is that clearly 'the soil must be acceptable to the seed' or be able to influence the effect of the 'seed', as the Review report notes 'the psychological milieu of a person can considerably influence physical illness, either through generating a predisposition to disease or in the subsequent prognosis'.

    The third point is that we do not know what the 'soil' make up is in any particular individual prior to their exposure to the 'seed' and I question an approach which seeks to explain away an outcome on the basis of speculation about a person's "psychological milieu' alone.

    The fourth point is that Mr Wilde had a number of what were for him significant chemical exposures over a period of time before he became 'chemically sensitive' and, while Professor Gorman does not like the term 'loss of tolerance', there is a lot to be said for the use of this term in its broadest sense even if not in a narrow scientific sense.

    The fifth point is that Professor Gorman suggests, as an alternative explanation Mr Wilde's illness, a somatoform basis, whereas the one consistent thread through Mr Wilde's history is his reaction to significant chemical exposure. Can these be disregarded in the face of extensive reported evidence for such reactions. (Again see the Review Article.)

    In effect Professor Gorman is questioning the evidence on which the Review report was based- that is fine - but where is his evidence to the contrary?

    Finally, Drs Monigatti and Gorman call into question my use of Bradford Hill's criteria, in particular noting that I have not referred to 'strength of an association' and 'consistency'. Bradford Hill suggests caution in how both these criteria are used.

    In the case of 'strength of an association', Bradford Hill makes the point that,
    'We must not be too ready to dismiss a cause and effect hypothesis merely on the grounds that the observed association appears to be slight' and he gives the example that relatively few persons exposed to rats' urine contract Weils disease.

    In the case of 'consistency' again Bradford Hill states 'there will be occasions where
    repetition is absent or impossible and yet we should not hesitate to draw conclusions'.
    Here he gives the example of the nickel refiners in South Wales and cancer of the nasal sinuses.

    Finally, with regard to temporality he notes 'this temporal problem may not arise often but it certainly needs to be remembered, particularly with selective factors at work in industry.'

    Having read the further medical reports and reviewed my own report again, I reaffirm my original diagnosis of MCS and, therefore, I am in accord with Dr Harrison, Dr Dryson and Professor Gorman on this matter.

    I am also of the opinion that the history of the events of chemical exposures and Mr Wilde's response, and the gradual change in that response from a specific response to horticultural chemicals to a now more general response to other chemicals (Dr Dryson, Dr Harrison) is in accord with the concept of a loss of tolerance. (Ashford and Miller, Chemical Exposures, 2nd edition, Van Nostrand Reinhold 1998)

    It remains my opinion that without these specific episodes of horticultural chemical exposures over a long period of time, Mr Wilde would not have developed his illness. It must also be accepted that not everyone so exposed, in fact probably only a small proportion of people so exposed, would become ill as Mr Wilde has. Here I would again refer to Sir Austin Bradford Hilt's comment on 'strength of association' already noted."

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  • Group: Guests

  Posted 25 November 2004 - 11:59 PM

Submissions
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  • The appellant's advocate, Mr Burston, put together and presented comprehensive written submissions, one set of submissions for the hearing scheduled to take place on 6 June 2001 (which did not proceed), and a second set of submissions prepared specifically for the hearing which was adjourned to 8 August 2001. The second set of submissions appear in substantial part to encompass those contained in the earlier document, and therefore they will not be referred to here.

    In broad summary it was submitted by Mr Burston:
    • Since his failed 1991 appeal, Mr Wilde has obtained specialist medical
      opinions confirming that he has indeed been sensitised by toxic exposures
      in the manner described by reference to ACC policy as articulated in one of its publications, and none of the specialists who have examined him have disputed that he does in fact, suffer from multiple chemical sensitivity, as claimed.
    • A report dated 31 May from Respiratory Physician, Dr Frankel, confirms
      that Mr Wilde suffers from asthma which, while being a component part of
      his chemical sensitivity syndrome, is also a recognised occupational
      disease in its own right.
    • Marjory Gordon's successful claim against the respondent was certainly
      no more persuasive than that which supports Mr Wilde's claim now.
    • Bearing in mind Dr Dryson's comments on adult-onset asthma, Mr Wilde's
      occupational asthma is proof enough - if more proof were needed, that his
      work-related circumstances were such that on the balance of probabilities
      "sensitisation" is the most reasonable explanation for his present
      incapacity.

  • On the basis of a legal ruling made by the Appeal Authority on page 27 of the 1996 Burston decision, Mr Wilde is covered under s.28 rather than under s.2 and s.26 (of the Accident Compensation Act 1982) as might otherwise have been the case.

  • Why, despite the wealth of evidence now supporting Mr Wilde's claim, does the respondent persist in denying his entitlement under s.28 of the 1982 Act?

  • A claimant could be forgiven for wondering why the Appeal Authority has ever permitted the respondent to "debate" the work-relatedness of MCS when clearly, the respondent has recognised MCS as an occupational disease since the Gordon claim of November 1983.

  • The reports from Professor Glass and Dr Harrison are, as one might expect, assessments of whether or not Mr Wilde is disabled by chemical sensitivity, as claimed. However, it can equally be discerned that Professor Gorman's assessment far exceeds its intended purpose, in that it is almost entirely devoted to advocating that chemical sensitivity is symptomatic of psychiatric disorders.

  • Crucially, on page 2 of his report, Professor Gorman acknowledges that Mr Wilde's decisive exposure to chemicals really began in 1983 (when the appellant was 48 years old).

  • All costs incurred in prosecution of the appellant's appeal should be reimbursed in full.


  • There is scope for an ex gratia special circumstances payment under s.118(1)(B) of the 1982 Act because, "an independent arbiter might reasonably interpret the ACC's decision to evade its statutory responsibilities in this case as derogation of public office and an offence under s.119 of the 1982 Act"

  • During the course of the hearing the Authority sought clarification of one of the submissions made by Mr Burston. Helpfully Mr Burston sought to follow up this request by way of a letter dated 10 August 2001, which he wrote to the Appeals Registry. The contents of that letter have been duly noted.

  • Likewise, Mr Burston's two-page written final submissions dated 25 November 2001 following receipt of the second report from Professor Glass, have been duly noted.

  • For the respondent, Mr Barnett made comprehensive written submissions, both at the hearing of the appeal! and subsequently on receipt of the further report from Professor Glass.

  • A summary of the principal submissions made by Mr Barnett follows.

  • On the evidence before the Accident Compensation Appeal Authority (Mr Blackwood), that decision was entirely sound.

  • This appeal is not about whether multiple chemical sensitivity exists as a recognised diagnostic criteria. That is accepted. Essentially the issue is whether the appellant suffers MCS and more centrally, the issue is causation. The medical opinion is that the appellant's symptoms fit the diagnostic criteria for MCS but that does not, without more, amount to a diagnosis of MCS and both Professor Gorman and Professor Glass would agree on that.

  • Considerable caution must be exercised in deciding whether the cause is proven in MCS cases: Matthews v ARCIC DC 62/97, Flay v ARCIC DC 144/96, Prichard v ACC DC 196/2000, and Robertson v ACC DC 58/2001.

  • The exposure to spray drift to which the appellant refers during the period 1976 to 1979 was not an occupational exposure.

  • The available medical reports commence from 1985 following the claim for cover. These reports, however, variously disclose illness going back to the appellant's childhood. No single report documents all of the history. (For this submission Mr Barnett placed reliance on some of the evidence taken into account by Mr Blackwood in his decision: reports of Dr Bass and Dr Butler).

  • The symptoms reported in 1980 do not have a temporal association with exposure to chemical spray.

  • Dr Harrison does not have a record of the fact that the appellant, as reported by Dr Butler, had allergies from childhood, and nor does he report of the episodes when the appellant suffered hot sensations in the central forehead in 1954 and 1956, the first episode of which required an admission to hospital. That Dr Harrison was apparently unaware of these much earlier episodes may well be of significance in evaluating his conclusion.

  • Several matters arise from Dr Harrison's report, the principal one being that he makes no reference to the 1983-85 exposure to chemicals in the appellant's employment with the Auckland Regional Authority.

  • In Dr Dryson's opinion, the appellant's illness commenced in 1976, and that coincides with Dr Harrison's view. Dr Dryson expressly links the MCS that he 5 as arising during the time when the appellant was building his house, and this was an environmental exposure, not an occupational one.

  • Professor Glass does not note, as Dr Butler had, that the appellant had a history of allergies from childhood, nor apparently was he aware of the episodes in 1954 and 1956 when the appellant experienced hot sensations in the centra! forehead and swelling with severe aching requiring admission to hospital.

  • When discussing causation, Professor Glass refers to the "gold standard" of nine criteria, but then goes on to discuss just three of these.

  • Dr Frankel's diagnosis of asthma is new, and he does not discuss its cause.

  • None of the doctors, other than Professor Gorman, had the appellant's complete history. When one brings together the totality of the history recorded by the various medical specialists, what emerges is that the appellant has a history of illness or episodes of ill health with symptoms material to or characteristic of a diagnosis of MCS that are not, on the history, always associated with exposure to chemical sprays. The appellant also has a history of such illness or symptoms associated with exposure to sprays, but which is not an occupational exposure.

    Decision

  • The issue in this appeal is whether the appellant has suffered "personal injury by accident" within the meaning of s.2(1) of the Accident Compensation Act 1982. The definition of "personal injury by accident" includes "incapacity resulting from an occupational disease ...to the extent that cover extends in respect of the disease under s,28 of the Act".

  • There is merit in Mr Barnett's submission that on the evidence before the Accident Compensation Appeal Authority (Mr Blackwood), his decision was entirely sound. It will be recalled that only Dr Tizard had diagnosed pesticide poisoning in the appellant, and, because he had made that diagnosis by the EAV technique, Mr Blackwood was entirely correct in not accepting that diagnosis.

  • It should be acknowledged that there was other medical evidence before Mr Blackwood, particularly reports from Dr Bass, Cardiologist, and Dr Butler, Rheumatologist, on which Mr Barnett placed some reliance in his submissions when arguing the reconsideration of this appeal. It should be noted that in reconsidering this appeal the Authority's principal focus will be on the new medical evidence, commencing with Dr Harrison's report of 12 June 1992.

  • But before addressing the new medical evidence in more detail, the Authority will respond briefly to the decisions cited by Mr Barnett in urging that this appeal should be dismissed. Considerable respect should be afforded the comments made by Ongley DCJ which are recorded on page 7 of his decision in Matthews:

    "There is an attraction in fitting the circumstances of the case to the theory of multiple chemical sensitivity, but a decision favourable to the claimant must be based on reasonably persuasive medical opinion where the question at issue is a medical one. Where the diagnosis is controversial the Court must be guided by expert opinion rather than embarking on its own assessment of the claimant's medical condition. The function of the Court is not to make a diagnosis but to weigh the evidence. The medical literature is helpful in understanding the background to medical opinion, but it cannot have the same weight as qualified medical or scientific opinion directed specifically to the claimant's case. Although a condition of multiple chemical sensitivity can be accepted as the diagnosis, it is less evident that the diagnosis, together with circumstances of appearance of symptoms, can be used to predicate the cause.

    The uncertainty of aetiology leaves open other possibilities concerning the cause of the appellant's condition in the absence of acceptable evidence that she was exposed to airborne chemicals during some period of time in the course of her employment."


  • However, based on the material available in Matthews, it was the Court's finding that there was insufficient evidence of a particular property or characteristic in the work environment to satisfy the specific tests under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992, that was determinative in disallowing the appeal. Therefore, the decision in Matthews is unhelpful to the extent that the issue in this appeal is determinable under the Accident Compensation Act 1982.

  • A similar situation pertained in Prichard, the issue being whether the appellant was entitled to cover under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The Court found, on the balance of probabilities, that it could not be claimed that MCS constitutes a personal injury within the meaning of s.4 in the 1992 Act. In any event the Court found, again on the balance of probabilities, that there was no cause or nexus between the appellant's exposure to chemicals and the problems which she claimed to have suffered, so that the requirements of s.7(1)(a) of the 1992 Act had not been satisfied.

  • Likewise, the decision of the District Court in Robertson, an appeal under the Accident Insurance Act 1998, is unhelpful. In dismissing the appeal the Court found as a fact and ruled as a matter of law that "... The condition of Multiple Chemical Sensitivity is not a personal injury within the meaning of the 1998 Act and can, therefore, not be the subject of cover per se".

  • Finally, the decision of the District Court in Flay is equally unhelpful in assisting with the determination of this appeal. Again, insofar as the question of personal injury per se was concerned, the Court noted that the definition in s.4-of the 1992 Act required that a personal injury be a physical injury to a person which is an outcome of physical injuries to the person. In Flay the Court found that the appellant had symptoms of uncomfortable tongue, loss of memory and nausea, but that these were not considered to constitute physical injuries which were the outcome of a physical injury to the appellant within the definition in s.7 of the 1992 Act.

  • At this point it is pertinent for the Authority to note that on the particular facts of a very small number of claims, that appeals centered in MCS have been allowed as personal injury by accident under the 1982 Act. Those claims include Burston 58/98, Wardle 100/98 and McPherson 17/99. The Authority should clarify it is extremely unlikely that those appeals would have succeeded had they been claims considered under the provisions of the 1992 or 1998 accident compensation legislation.

  • Mr Barnett's submission is accepted, that Dr Harrison's report does not assist greatly in advancing the appellant's claim of incapacity resulting from an occupational disease. What Dr Harrison describes as the "first ... significant symptoms" arose in 1972. These of course, predate accident compensation cover.

  • Dr Harrison identified the major onset of the constellation of symptoms as being in 1974-75, this being associated temporarily with the non-occupational exposure of spray drift at the appellant's home.

  • Dr Harrison makes no reference to the 1983-85 exposure to chemicals in the appellants employment with the Auckland Regional Authority, noting only that the
    appellant saw Dr Butler and Dr Hart in 1985. So the constellation of symptoms which he identifies as arising from 1974-75 and which, in his opinion, is "entirely compatible with the multiple chemical sensitivity syndrome" would, if Dr Harrison's analysts were accepted, lead him to the conclusion that the appellant suffered MCS from 1974-75, and perhaps as early as 1972.

  • But noted is Dr Harrison's acceptance that me appellant's symptom complex is entirely compatible with the multiple chemical sensitivities syndrome as documented by N A Ashford and S F Miller (Burston 58/98 p19). Therefore the Authority considers it is not unreasonable to speculate what Dr Harrison's response would have been had he been asked for comment on the appellant's 1983-85 exposure to chemicals during his employment with the Auckland Regional Authority. The possibility of seeking a further opinion from Dr Harrison did occur to the Authority, who decided in the circumstances to do so was unnecessary.

  • Similarly, the Authority must agree with Mr Barnett that Dr Dryson's opinion coincides with Dr Harrison's view as to when the appellant's condition commenced. Dr Dryson expressly links the MCS that he diagnoses as arising during the time when the appellant was building his house, and that this was an environmental exposure, not an occupational one.

  • In addition Mr Barnett pointed out that Dr Dryson makes the important distinction between MCS on the one hand, and acute or chronic poisoning by pesticides, on the other.

  • Dr Dryson was clear in his opinion that the appellant had many of the features of multiple chemical sensitivities and that there was, therefore, no problem in making such a diagnosis. But equally, Dr Dryson was clear in his opinion that when it comes to making a claim on ACC, that a clinical diagnosis 'is usually not enough". Dr Dryson explained that there "has to be some objective evidence of disease, that the disease is a recognised hazard of the work, and that there are some special circumstances relating to the work."

  • It seems to the Authority that Dr Dryson's superficial acknowledgement of the existence of MCS is fatally compromised by his advocacy of certain legal parameters as a precondition of acceptance of a claim in an ACC context. This view is borne out by reference to part of the text of a fetter which Dr Dryson wrote to Dr Bremner of the respondent on 4 May 1995 in which he explained, by reference to the appellant:

    "... There is no currently convincing evidence that the exposure to the chemicals has actually caused the intolerance. There is some evidence that the intolerance may be psychological or psychiatric in origin ... it is clear that in the present state of knowledge it is not possible to ascribe the causation of MCS to exposure to chemicals whether in the workplace or not." (Authority's emphasis).

  • On the Authority's copy of Dr Dryson's letter of 11 September 1992 to the appellant appears a handwritten comment purportedly made by the appellant to the effect that he had visited Dr Dryson in March 1994 to point out to him that he had worked for a further eight years from 1976 to 1985 and that Dr Dryson had admitted that he had only read the first part of his work record which Dr Dryson said he was not prepared to correct because "he did not wish to become involved in a crusade against the use of pesticides."

  • An echo of the sentiments expressed by Dr Dryson by reference to MCS is contained in Dr Monigatti's letter of 29 June 2000 to the respondent. Dr Monigatti wrote that without any objective means of verification, the notion that injury (tissue damage) is involved in multiple chemical sensitivity syndrome must always be speculative and, probably particularly for that reason, Dr Monigatti said he did not consider the appellant's claim was valid.

  • In chronological sequence it would be appropriate next to address Professor Glass' report of 1 March 2000. instead, at this point, the Authority will continue to focus on the medical evidence which is adverse to allowance of the appellant's claim.

  • Professor Gorman saw the appellant in August 2000 and had available the earlier specialist medical opinion. He first reported on 21 August 2000 and again on 2 July 2001 following the investigations undertaken by Dr Frankel as he had recommended.

  • In his report of 21 August 2000, Professor Gorman describes multiple chemical sensitivity and writes: "There is no doubt that the appellant satisfies the diagnostic criteria for a multiple chemical sensitivity syndrome (MCS)".

  • Correctly, Professor Gorman noted that the appellant's exposure to manufactured chemicals really began in 1983. In that context Professor Gorman described the appellant's exposures as "multiple and various, many of which induced acute irritant symptoms". Professor Gorman then noted that there had been a temporal association between such acute irritant symptoms and exposure to chemicals which he believed to be a plausible association. But, Professor Gorman noted, "Acute irritant symptoms are not MCS".

  • Professor Gorman then considered the appellant's various health problems to see if there was a unifying cause. In Professor Gorman's opinion the most impressive problem that the appellant had, which he said could be considered a direct injury consequence of his workplace exposures, was that of nasal polyposis. Professor Gorman noted that the nasal polyposis caused significant breathing difficulty, but that this had been surgically corrected earlier in 2000, such that the appellant was now able to breathe through his nose without difficulty. This is an aspect of Professor Gorman's report which the Authority wishes to examine in more detail.

  • Implicit in Professor Gorman's opinion is that nasal polyposis, a direct injury consequence of the appellant's workplace exposures, has been surgically corrected. Also implicit in this opinion is that the appellant no longer suffers nasal problems. This assessment does not seem to be corroborated by some of the other medical evidence. In his report of 29 May 2001 Dr Craft explains that the appellant, having undergone intra-nasal polypectomy on 20 July 2000, continued on high dose intranasal corticosteroids "in an attempt to control his nasal symptoms". Additionally, Dr Craft noted that the appellant's persistent coughing had aggravated his nose symptoms.

  • However, it is to be noted also, that Dr Craft makes no connection between such nasal symptoms and MCS as does Professor Gorman in his report of 21 August 2000 However, Dr Craft did afford some credibility to the appellant's version of his problems when he said, "Mr Wilde feels [these] are due to chemical poisoning".

  • In his report of 14 February 2001, Dr Frankel noted that the appellant had a chronic post nasal drip, and in his report of 11 April 2001 Dr Frankel noted that the appellant had ongoing sinus symptoms together with a yellowish mucous discharge. Because of what Dr Frankel described as the appellant's 'recurrent nasal symptoms", he said he would re-refer him to Mr Jim Bartley for further review.

  • The above comments, made almost in passing, by Dr Craft and Dr Frankel by reference to the appellant's continuing nasal problems, would suggest to the Authority that Professor Gorman's assumption that the appellant's nasal problems had been successfully surgically corrected, is not borne out by reference to other medical evidence. So the Authority is left with an altogether uncomfortable impression that what Professor Gorman described as "the most impressive problem that the appellant could be considered to have suffered as a direct injury consequence of his workplace exposures", in the light of other medical evidence, continues to be a distinct and discrete medical problem.

  • As to respiratory illness, Professor Gorman felt the symptoms were not suggestive of asthma, but rather were suggestive of hyperventilation. He recommended that this question be referred to a respiratory physician for investigation. Dr Frankel, however, subsequently made a diagnosis of asthma. So, despite Professor Gorman's opinion that the appellant's symptoms were not suggestive of asthma or bronchitis, but rather were highly suggestive of a hyperventilation syndrome, in the final analysis a diagnosis of asthma was made.

  • Professor Gorman was content, then, to conclude that asthma was a very common condition and that the diagnosis of asthma in this case did not substantially alter the formulation of the appellant's multiple chemical sensitivity syndrome.

  • Mr Burston submitted that asthma is a component part of the chemical sensitivity syndrome, and that it is also a recognised occupational disease in its own right. Mr Burston also draws attention to Dr Dryson's comments "on "adult-onset asthma" in the context of his belief that the appellant's asthma is occupationally related. The Authority has before him no medical evidence to substantiate these assertions. The Authority notes Mr Barnett's submission that Dr Frankel himself could not explain the cause of the asthma symptoms, although he was cognisant with the claim that they were associated with the appellant's exposure to chemicals. It is pertinent to note here Dr Frankel's comment, "I am no expert on multiple chemical sensitivity syndromes". Although it may be that there is some relationship between the appellant's asthma condition and MCS, there is no medical evidence before the Authority to draw this connection.

  • In his report of 21 August 2000, Professor Gorman goes on to consider the neurological system, and in the case of the appellant, rules out any injury in this regard.


  • Professor Gorman then considers psychological disorders. He writes:

    "A variety of psychological disorders had been proposed to underline MCS.
    These include somatoform disorders, facitious disorders and malingering. I no doubt that Mr Wilde is neither facitious nor malingering. However, is strong evidence of an underlying somatoform disorder ... ".


  • In this context Professor Gorman examines the appellant's response to provided by Dr Matt Tizard. Thus, for example, he said that his dramatic response to homoeopathic doses of hyperbaric oxygen had no biological basis and was "not explainable on the basis of underlying organic disease". Further, on his own examination he found dramatic and short term changes in function in the balance system which were "biologically impossible". Further, he referred to reported dramatic fluctuations in cognitive performance which he said were "inconsistent with an underlying disease basis".

  • From that, Professor Gorman considered there to be "strong evidence" of a somatoform disorder and asked whether or not this could be induced by a psychological reaction to workplace exposures. He said, "This may be possible, but such complex psychiatric disorders are considered to be far more likely to be related to pre-morbid personality".

  • Finally, in his report of 21 August 2000, Professor Gorman considers the possibility of neural kindling and learned behaviour. Following Dr Frankel's report and the laboratory results, Professor Gorman considers that the appellant has not been subject to either of these processes.

  • Professor Gorman then concludes in his report of 2 July 2001, "I remain convinced that there is strong evidence that Mr Wilde has an underlying somatoform disorder. The reasons for this conviction have been presented to you previously."

  • Although Professor Gorman may be convinced that there is strong evidence that the appellant has an underlying somatoform disorder, the Authority is not so satisfied, even on the balance of probabilities, that this is the case. Under cover of a Memorandum of Counsel for the Respondent dated 27 August 2001, Mr Barnett referred the Authority to the current "Diagnostic and Statistical Manual of Mental Disorders DSM IV", which identifies somatisation disorder as just one of seven somatoform disorders. Mr Barnett attached the title page and page 445 of DSM IV which identifies the seven somatoform disorders discussed in that text. The title page contains the caption: "Diagnostic and Statistical of Mental disorders Fourth Edition DSM IV" published by the American Psychiatric Association Washington D.C.

  • The point the Authority sees a need to make, and perhaps it can be addressed by way of a question is, if the appellant is considered to have an underlying somatoform disorder, whether it would be necessary to have specialist psychiatric or psychological evidence to this effect. It is the Authority's understanding that Professor Gorman is a Professor of Medicine and a Specialist in Occupational Medicine. It is the Authority's tentative view, although unassisted in the sense of a helpful or credible submission made on behalf of the appellant, that reliance should not be placed on Professor Gorman's strong conviction that the appellant has an underlying somatoform disorder, in the absence of clear and unequivocal evidence to that effect from a psychological or psychiatric source.

  • Thus, in summary, the difficulties the appellant has experienced with Professor Gorman's evidence are:
    • The question of the appellant's respiratory condition which, to some extent, seems to be disputed between Dr Frankel and Professor Gorman;
    • Whether a direct injury consequence of the appellant's workplace exposures has, in fact, been surgically corrected;

    • The appellant did not have a hyperventilation syndrome as shown by Dr Frankel;
    • The appellant does have asthma (chemically-induced?);
    • Professor Gorman's conviction, "There is strong evidence that the appellant has an underlying somatoform disorder", in the absence of any psychiatric or psychological evidence to that effect.

  • Another concern held by the Authority by reference to Professor Gorman's evidence, is the possibility that his position on MCS is predetermined. In that event, the weight which can be afforded Professor Gorman's evidence in this case, is questionable. Annexed as Exhibit Q to an affidavit sworn by the appellant in support of his application for leave to appeal out of time, is a letter from Professor Gorman dated 6 November 1996 (name and address of addressee deleted). In that letter Professor Gorman describes the debate surrounding MCS in this way:
    • "There are no substantial studies of multiple-chemical-sensitivity syndrome (MCS), and certainly none since the correspondence that you received from Dr John O'Donnell. In that context, I agree entirely with Dr O'Donnell that to date there has been no organic basis established for MCS. I also agree with him about the frequent 'concurrence' of psychological disorders in individuals complaining of MCS.
    • The recent literature in this context has added very little to this debate and has focused on either the disability of the individuals concerned or alternatively on the absence of any established immune disorder. Indeed, there are now essentially two schools of thought I have paraphrased these below.
    • Supporters of MCS

      This argument is that the absence of any plausible organic explanation for the symptoms suffered by individuals with MCS does not either reduce their level of disability or the reality of the syndrome. Professor Bill Glass is the most eminent proponent of this stance - he does restrict his comments on MCS often however to cross-sensitivities to chemically similar agents.
    • Non-supporters of MCS

      This argument is that there is no plausible basis for MCS, either in the context of significant exposure history, or acute effects or for the delayed sensitivity. The proponents of this argument, which include Dr Evan Dryson, are happy to accept that there are many toxic effects of chemicals, but that cause and effect in this regard needs to be established for any diagnosis to be made.

      My own view is much closer to the latter."

  • In addressing the medical evidence it remains for the Authority to focus on the two reports provided by Professor Glass. First, there is Professor Glass' comprehensive report of 1 March 2000. Any deficiencies inherent in the reports given by Dr Harrison and Dr Dryson are cured in Professor Glass' first report. Whilst both Dr Harrison and Dr Dryson identified non-work exposures to chemicals, Professof Glass is specific when he identifies the painting contracting business
    conducted by the appellant from 1975 to 1993, and employment of the appellant at the Auckland Regional Authority as a PEP Supervisor for Northern Parks from 1983 to 1985.

  • Common to the opinions of both Professor Glass and Professor Gorman are their emphases on the appellant's exposure to manufactured chemicals in the workplace from 1983 to 1985.

  • Also common to the reports of both specialists is their emphasis on nasal problems considered to be a direct injury of workplace exposures to chemicals. On examination of the appellant, Professor Glass noted that he "developed nasal congestion and blew his nose repeatedly". Taken in the round, Professor Glass concluded that there was "a well defined nexus between [the appellant's] work exposures and his illness, and would agree .., that Mr Wilde suffered from multiple chemical sensitivity".

  • Advisedly, Professor Glass' second report, of 15 October 2001, despite its length, has been included in its entirety in this decision. Arising out of the first report given by Professor Glass, Mr Barnett identified some concerns on behalf of the respondent which were covered in the Memorandum which the Authority issued to the parties on 31 August 2001. Professor Glass addresses ail of those concerns in his second report. From the Authority's perspective, those concerns have been satisfactorily resolved by Professor Glass in his second report.

  • In his further submissions Mr Barnett endeavoured to clarify a point generally being made, that none of the doctors, other than Professor Gorman, had a complete history of the appellant. The Authority is satisfied that Professor Glass did have both an adequate and sufficiently full history of the appellant to make his unequivocal diagnosis of multiple chemical sensitivity syndrome.

  • Mr Barnett is correct in arguing that when one brings together the totality of the history recorded by the various medical specialists, what emerges is that the appellant has a history of illness or episodes of ill health with symptoms material to or characteristic of a diagnosis of MCS, that are not, on the history, always associated with exposure to chemical sprays. But notwithstanding, Professor Glass expresses no reservations in making a diagnosis of multiple chemical sensitivity. The critical question is whether the condition of MCS suffered by the appellant has been caused by an occupational exposure to sprays, and on the evidence presented, particularly that of the appellant, of Professor Glass and also to some extent of Professor Gorman, the Authority is satisfied to the required standard, the balance of probabilities, that the appellant is entitled to cover under s.28 of the Act. This determination is made following a careful assessment of the evidence given both by the appellant and by several medical practitioners. The appellant's occupational exposure is fully documented in his first affidavit sworn in support of his application for leave to appeal out of time on 3 February 1998.

  • The interpretation and application of s.28 of the Accident Compensation Act 1982 was settled by the judgments of the Court of Appeal in West v Firestone Tyre & Rubber Co. of NZ Limited [1992] 2 NZLR 23, [1991] NZAR 514, and Accident Compensation Corporation v Walton [1993] NZAR 337. To establish that a disease was due to the nature of a claimant's employment it must be shown:
    • The employment had some particular quality or characteristic to distinguish it from work generally; and


    • That particular quality or characteristic contributed to or aggravated the disease.

  • That approach was adopted in considering the evidence available in this case.

  • The appeal is allowed.

  • The question of any costs or expenses is reserved. Leave is reserved for the appellant to approach the Authority if that is considered necessary.
DATED at WELLINGTON this 28th day of June 2002

P J Cartwright
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Posted 19 October 2009 - 01:31 PM

View PostIDB, on Nov 26 2004, 12:59 AM, said:

[*]The interpretation and application of s.28 of the Accident Compensation Act 1982 was settled by the judgments of the Court of Appeal in West v Firestone Tyre & Rubber Co. of NZ Limited [1992] 2 NZLR 23, [1991] NZAR 514, and Accident Compensation Corporation v Walton [1993] NZAR 337. To establish that a disease was due to the nature of a claimant's employment it must be shown:
  • The employment had some particular quality or characteristic to distinguish it from work generally; and


  • That particular quality or characteristic contributed to or aggravated the disease.

Are the above Judgments of the Court of Appeal available online? Thanks
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