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Scott V A C C (399/2004) W-r gradual process - the s.30 test

#1 User is offline   ernie 

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Posted 05 February 2005 - 07:10 PM

SCOTT v ACCIDENT COMPENSATION CORPORATION

District Court, Christchurch (399/2004) 23 December 2004
Judge M J Beattie

Appearances
Ms K Stringleman, for Appellant
Mr C J Hlavac, for Respondent

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1]The issue in this appeal is whether the decision of 6 October 2002 by PPCS Limited, an Accredited Employer and the employer of the appellant, to decline to grant cover to the appellant for a gradual process injury, being an infection with impetigo, was correct.

[2]The facts in this matter are not in dispute and may be stated as follows:

·The appellant has been employed by PPCS since 1972 as a slaughterman at its Finegands Freezing Works near Balclutha.

·In early April 2002 a case of impetigo of an employee at the works was diagnosed and thereafter a substantial number of the workforce there contracted that disease. The height of the epidemic was between early April and early May of 2002. Employees of PPCS did continue to present with infection after that period but in much more isolated cases.

·On 4 June 2002 the appellant was diagnosed with impetigo and he lodged a claim for cover for that infection on that same date.

·The appellant and his doctor completed gradual process questionnaires and it was stated in that questionnaire that the appellant was suspected of having contracted the disease from a fellow worker.

·As part of an investigation into the epidemic Public Health South carried out an inquiry and the particular strain of impetigo was identified.

·The report from that inquiry identified that the particular strain of the organism was not one which was found on animals and it concluded that it was unlikely that the organism had been introduced to the works by infected animals.

·It was noted by Meat Inspectors that none of the carcasses inspected during the period of the epidemic showed any signs of lesions or other indications of carrying the disease.

·Between 5 April and 8 May 2002 seventy cases of impetigo were reported from employees of PPCS.

·Whilst there was no great increase in cases of impetigo in the general community during this period, the increase of cases of impetigo in the general community was in the main that of PPCS workers. There was no increase in cases among school children.

·The Public Health Report noted the nature of impetigo as follows:

“Impetigo is a skin infection, which occurs when bacteria gain entry through small breaks in the skin. Weeping areas of infection become established and can spread rapidly to other parts of the body. Other people can be infected if they have small cuts or abrasions on their skin and have direct contact with the lesions or contaminated objects such as clothing, towels or furniture. Good personal hygiene and rapid treatment of any infection helps prevent further transmission.

Impetigo is caused most commonly by the bacteria Streptococcus pyogenes or Staphylococcus aureus. It responds quickly when treated with antibiotics. Weeping sores dry up within 2-3 days of starting them and are usually fully healed within 5-7 days. It is possible to get the infection again if there is further contact with infectious material.

Impetigo is contagious and can easily spread among people working in close proximity in a warm moist environment. These conditions exist at Finegand.”

[3]As part of its inquiry into the appellant’s claim for cover PPCS sought the opinion of Dr David McBride, Occupational Medicine Specialist. Dr McBride noted the nature of the disease and of the fact that it was relatively uncommon in New Zealand but widespread in many countries particularly in areas of rural poverty. He noted that it was a common cause of disease in children living under poor socio-economic conditions.

[4]Dr McBride then considered the provisions of Section 30 of the Act which set out the tests required to be satisfied for a grant of cover for a gradual process injury, and he stated as followed:

(Section 30(2)) ”(a). . .probably applies, because of the abrasions and minor lacerations, which gives a portal of entry to the bacteriae. The infection is therefore the second step in causation and should be regarded as contributory.

Section (b) is more difficult. The property is probably found more often in the non-occupational environment because it is common in the community, but what happens if the infection originally comes from home and is passed around work? It would take only one worker to take the infection to work for the contagious nature of the infection to become apparent by being rapidly transmitted from worker to worker. To my mind it is not however a “true” occupational disease, but it does arise in the workplace environment.

As to whether © is true or not I have no answer. It has been described as occurring in meat workers but only in textbooks and not the literature. The descriptions are however supportive of an occupational causation.

So apart from section (b), which could be argued about, there is more support than not for an occupational causation, and you would be justified in accepting the claims.”

[5]Despite the advice of Dr McBride as set out above, PPCS determined to decline the appellant’s claim and did so by letter of 6 November 2002.

[6]The appellant sought a review of that decision but for the purposes of that review no further evidence was introduced. In his decision dated 27 May 2003, the Reviewer found that the evidence did not satisfy the first criteria of Section 30, namely Section 30(2)(b)(i) in that it could not be established that a particular property or characteristic of the employment task or environment caused or contributed to the cause of the personal injury. The Reviewer found that whilst the employment environment had particular properties or characteristics which allowed the spread of the impetigo infection, those particular properties or characteristics could not be said to have caused the personal injury itself. The Reviewer therefore confirmed the primary decision to decline cover.

[7]For the purposes of the appeal to this Court a further occupational medical specialist’s report had been produced, being a report from Dr Christopher Strack. Dr Strack noted from published studies that skin infections were common in abattoir workers but he noted that the studies did not specifically look at impetigo but rather looked at cutaneous infections relating to any organism. Dr Strack summarised the various matters identified from the studies he had noted as follows:

“Skin sepsis is common in abattoir workers.

·The most likely cause of this is usually Staphylococcus aureus and/or Strep. Pyogenes (the organisms which cause impetigo).

·The risk appears to be increased with certain occupational activities, particularly boning or working in the killing area.

·There are a number of possible mechanisms for introduction of the organism to the work place. These might include:

Infected skin lesions obtained from contact in the non work environment, children, community etc.

Possible introduction through an individual who carries one or more of the causative organisms in their respiratory tract.

It is possible that this infection could arise as a result of bacteria present on the animals being slaughtered. It is difficult to assess the risk of this but I suspect it is probably considerably less than the likelihood of infection coming from the previously sited sources.

There does appear to be an association between nail biting and the presence of the organisms which cause impetigo. This may also be a potential source of entry of the infection into the workplace.

·Once the organism is present in the workplace it would appear that there are a number of possible means of transmission from one worker to another. These include:

Transmission by direct contact between workers or by contact with shared items, such as gloves, aprons, knives etc.

Through contact with contaminated items such as tap handles etc.

It is possible that meat may also act as a vector for transmission. This does not appear to have been well studied.”

[8]Dr Strack was then asked to give his opinion on whether the criteria contained in Section 30 of the Act could be or had been met on the facts of the appellant’s case. Dr Strack advised as follows:

“A. You ask whether the employment task performed by Mr Scott or the environment in which he was employed had a particular property or characteristic which caused or contributed to the cause of his personal injury, namely impetigo.

I find it difficult to comment on this in a single simple sentence as I believe there are a number of initiating factors with respect to this infection. It would appear that it tends to predominantly affect people who have skin lesions, cuts, abrasions and/or bitten finger nails. There is, in my opinion, reasonable evidence to state that there is an increased risk of cuts and/or abrasions to the skin, particularly in certain activities in the abattoir such as slaughtering and boning. I do not believe that there is any occupational association with the lesions that might be associated with bitten finger nails. I am unable to comment on the extent to which this may or may not have been present in the affected population.

Secondly, with respect to whether or not infection with Strep. Pyogenes or Staphylococcus aureus is related to the employment tasks performed or the environment in which Mr Scott was working, I believe it is difficult to categorically state that this is the case, as impetigo is not uncommon in the general population. Outbreaks occur in many situations such as schools, hospitals etc. The presence of this organism is not, therefore, solely related to work in an abattoir. Having said this, however, I believe it is of note that infection with Staphylococcus aureus or Step. Pyogenes (the organism which cause impetigo) would seem to be extremely common in infected skin lesions in meat handling and processing work (at least in the study that I have cited).

It would appear, therefore, that there is something about the environment about working in an abattoir which may contribute to the development of skin infection due to Staphylococcus aureus and Streptococcus Pyogenes once this organism is present in the workplace. Exactly how or why this is the case is not something I believe I am able to give any clear answer to.

B. You ask whether that property or characteristic is found to any material extent in the non employment activities or environment of Mr Scott. The organisms, Streptococcus Pyogenes and Staphylococcus aureus are commonly found in the community. Impetigo is commonly seen in the general population, and as previously noted in earlier reports, it does appear to affect children more frequently, but affects all levels of the community. It can occur in epidemic forms in a number of situations, most noticeably where individuals are in close contact, such as schools, hospitals etc.

These are relatively common organisms in the community. Whilst it does appear that affected skin lesions in abattoir works are more likely to involve these organisms than other organisms, it is probable, in my opinion, that this infection originated in the community. Once introduced it was subsequently spread by any of the various means of transmission I have discussed above.

C. You ask whether the risk of suffering that personal injury is significantly greater for persons performing the employment task, or who are employed in that type of environment, than for persons who do not perform that task or are not employed in that type of environment.¾From the literature that I have read I am of the opinion that the risk of suffering impetigo or skin infections as a result of the causative organisms for impetigo is significantly increased in abattoir workers. As discussed above, skin sepsis is relatively common in abattoir workers. The organisms commonly involved in this appear to be Strep pyogenes and Streptococcus pyogenes and Staphylococcus aureus (the organisms which cause impetigo). I believe that the risk of suffering impetigo or infections due to the organisms which cause impetigo is increased in abattoir workers.”

[9]It was Ms Stringleman’s submission that the reports of Dr McBride and Dr Strack identified occupational factors which contributed to the transmission of the infection to the appellant and that the environment of the abattoir was such that it contributed to the development and spread of the infection. She submitted that from that it can be established that the appellant’s employment tasks at work exposed him to coming into contact with a source of infection from the organisms which cause impetigo.

[10]Ms Stringleman further submitted that whilst impetigo may be found in the community the particular property or characteristic which caused the infection was not out of the community but rather from the particular environment of the abattoir and therefore Section 30(2)(b) was satisfied.

[11]Finally, Ms Stringleman submitted that Section 30(2)© was satisfied in that there was a significantly greater risk of infection within conditions such as existed in the abattoir or in meat processing plants in general and which conditions did not prevail in the general community where the risk would not be regarded as being nearly as great.

[12]Mr Hlavac submitted that the causation aspect of Section 30 could not be satisfied. He submitted that the particular strain of impetigo which the appellant and his co-workers contracted was not that which was brought into the abattoir by animals, rather it was a strain which was introduced into the abattoir by a worker or workers and that in those circumstances it was no different from any other disease or infection, such as influenza, that is introduced by a fellow worker and being contagious can spread rapidly through the workforce.

[13]Having submitted that, however, Mr Hlavac did nevertheless make a concession that he accepted that the particular environment at the freezing works was a contributing cause of the spread of the disease, that is, that workers were in close contact with each other and may use or touch articles of clothing or work which might be carrying the disease and thereby introducing it into the body of the person with whom it makes contact.

[14]Mr Hlavac, however, submitted that the remaining two tests of Section 30 could not be met. He submitted that the evidence was that the community where the employees lived was one which had experienced an increase in the number of cases and the appellant could easily have contracted it outside the workplace. He further submitted that persons employed in the freezing works industry ran no greater risk of contracting this particular strain of impetigo from work than persons might expect to in any other circumstance where persons are in close contact with a carrier of the disease. Mr Hlavac went so far as to say that the strongest ground for cover being refused was that the appellant could not satisfy Section 30(2)( c).

DECISION

[15]The issue in this appeal requires a careful consideration of the provisions of Section 30 of the Act which is the statutory provision whereby cover can be granted for a personal injury suffered by circumstances other than by way of accident. The relevant provisions of Section 30 of the Act state as follows:

30. Personal injury caused by work-related gradual process, disease, or infection
Personal injury caused by a work-related gradual process, disease, or infection means personal injury—
(a) suffered by a person; and
(b)caused by a gradual process, disease, or infection; and
©caused in the circumstances described in subsection (2).
The circumstances are—
(a)the person—
(i)performs an employment task that has a particular property or characteristic; or
(ii)is employed in an environment that has a particular property or characteristic; and
(b)the particular property or characteristic—
(i)causes, or contributes to the cause of, the personal injury; and
(ii)is not found to any material extent in the non-employment activities or environment of the person; and
(iii)may or may not be present throughout the whole of the person's employment; and
©the risk of suffering the personal injury—
(i)Is significantly greater for persons who perform the employment task than for persons who do not perform it; or
(ii)is significantly greater for persons who are employed in that type of environment than for persons who are not.

[16]There is no question that the appellant contracted an infection known as impetigo and therefore prima facie he has a compensable medical condition if the provisions of Section 30(2)(a), (b), and © can be satisfied.

[17]The first criteria that must be satisfied is that of causation as set out in Section 30(2)(a) and (b)(i).

[18]The evidence identifies that the infection did not come from the animals and was not brought into the works by infected animals. Therefore there was no employment task implicated in the infection of the appellant. Having said that, however, I find that it must be accepted, and I do so find, that the particular environment in which the appellant was being employed did contribute to the spread of the disease. The humid conditions and the interchange of work gloves and other work articles made it likely that the disease could be spread from one person to another via the intermediary of such apparatus if indeed it was not spread direct by contact between two employees, one of whom was already infected.

[19]In those circumstances I find that the particular environment in which the appellant was employed at the time he contracted the infection was a contributing cause of him becoming so infected. Therefore, I find that the causation aspect of the three-stage test has been met.

[20]The second stage test, namely that set out in Section 30(2)(b)(ii) requires the property or characteristic, which in this case must be found to be various elements in the workplace environment, are not found to any material extent in the non-work environment of the appellant. This test requires a consideration of whether the cause which was found to be present in the workplace is also found outside the workplace.

[21]On the evidence that the Court has received it is clear that impetigo can be contracted in any number of situations and all that it requires is close contact between an infected person and one who is not; or contact by a person with some object that has become infected. It is the case that the disease is known to occur commonly in the community and it is equally the case that there were instances of impetigo contracted by persons not employed at PPCS. The manner by which contraction of the infection takes place, I find, is equally as prevalent or as possible outside the environment of the freezing works as inside it. The factors relevant in the workplace were equally prevalent outside the workplace and were so to a material extent, that is, potentially causative factors existed outside the workplace as they did within the workplace environment.

[22]I find therefore that the second criteria cannot be satisfied in the appellant’s favour.

[23]I now turn to the third criteria for the sake of completeness, that criteria being usually referred to as ‘the significantly greater risk’ criteria as enunciated in Section 30(2) © of the Act. Again, I find that it is the environment which is the causative factor so therefore it is ©(ii) which is the particular test to be considered in this case.

[24]Both the specialists identified that there was an increased risk of infection passed on from an infected animal by workers who came into contact with them in the course of slaughterhouse processes.

[25]However, on the particular facts of this infection, it has been established that the animals played no part in the distribution of the infection and that it was brought into the freezing works environment by a worker or workers. The question which then needs to be asked, I find, is that whether there is any greater risk of an infection introduced by a human to other humans with whom that person comes into contact, either directly or indirectly, in a workplace such as that in which the appellant was employed, from the risk of persons outside that particular workplace environment from contracting impetigo by the same means, namely, direct bodily contact or indirect contact. It must be remembered that the risk must be significantly greater for the former in order that the be satisfied.

[26]Having regard to the nature of the disease known as impetigo and of its prevalence or potential prevalence in the community, I find that where that particular infection can be contracted knows no boundaries. Once it is present in any communal environment there is the potential for it to spread and be contracted by other members of that community.

[27]Having regard to the manner by which impetigo can be spread and borne in the community, I find that the test of significantly greater risk cannot be met. In essence, and as submitted by Mr Hlavac, there is no greater risk of this particular strain of impetigo bacteria being introduced into the slaughterhouse environment than there is of it being introduced into any other communal environment where people are in close proximity. That is the crux of the matter and I find that if that be the case than the significantly greater test cannot be met.

[28]For the foregoing reasons therefore, I find that PPCS was correct to decline cover to the appellant on the facts as they were presented in this case. This appeal is therefore dismissed.
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#2 User is offline   hukildaspida 

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Posted 16 January 2009 - 04:03 PM

Does anyone know if any advances have been made re this issue & decision in light of either other incidents of similar infections etc?
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#3 User is offline   Sparrow 

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Posted 16 January 2009 - 06:10 PM

I am interested to see that KAye Stringleman appeared for the appellant. She is /was a Reviewer and is totally unfair.

This guy finally won from memory, he had to go to the High court tho.
Strack was rubbished by 2 professors from Otago and a Dunedin hospital specialist. He had ignored their reports and put his own version on them.
as a result Strack was fined $70,000 from memory and censured. It does not stop him from his toady reports. He should retire to his $million mansion and the alpacas and the helicopter.
Acclaim Otago may have further details on this poor guy. I think he was cut off for 12 yrs. Hope he got his full refund from ACC plus interest!!
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#4 User is offline   MINI 

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Posted 17 January 2009 - 12:04 PM

Sparrow

He could never get full refund as he would get taxed all in the one year for the 12 years he has been off. So the govt coffers are the winners of all they put off & keep off ACC. The longer you off the more money the govt coffers get.

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#5 User is offline   Sparrow 

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Posted 17 January 2009 - 05:38 PM

yes Mini, totally unfair as some of us can confirm.
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#6 User is offline   MINI 

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Posted 17 January 2009 - 06:16 PM

Sparrow,

It is something that only very swift action at the beginning of the problems re: pushing people off will stop. It doesnt work the court way. So what you are trying to do, grabbing the claimant as soon as they get on board here and off focus as well is the only way to go. Dont leave them off too long.

IA is the important impairment to have proved in all of this as if you have Permanent Impairment, it is not so eary to kick one off W/c.

Good Luck
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