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Davy V Acc (90/2006)

#1 User is offline   MG 

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Posted 25 May 2006 - 06:07 PM

A laboratory worker with occupational asthma successfully obtained cover for gradual process injury after ACC and WorkAON declined her claim on the grounds that her condition pre-existed her employment.
Judge Ongley accepted the evidence of Drs Gordon Hancock and Tim Sprott that Ms Davy's asthmatic condition was a result of exposure to chemicals in her workplace. He declined to accept the evidence of Prof Gorman and Dr Kenneth Whyte that Ms Davy's exposure to chemicals merely aggravated an underlying condition.
Judge Ongley appeared to come to his decision reluctantly and in doing so criticised the gradual process provisions of the legislation (now s30 of the IPRCA). He said: "It is difficult to grasp the clinical basis on which to judge the important distinction between an underlying or existing asthmatic condition that precludes cover, or an underlying tendency or susceptibility that does not prevent cover. In that respect, the legislation in inherently difficult to apply to the facts. It is unsatisfactory for the Court to say that the onus rests upon the claimant so that a right to cover cannot be established in the absence of clinical evidence, or in the face of disagreement between experts. As Miller J said in 'Cochrane v ACC (HC Wellington, CIV2003-485-2099, 2 June 2004) causation is a question for the Court. Temporal considerations may enter into it, as may questions of credbility that cannot be delegated to the experts."
After reviewing the medical evidence, Judge Ongley found that: "Prof Gorman amy given too much weight to the possibility of childhood asthma, in reaching his own opinion that the appellant already suffered from asthma."
Turning to the risk analysis required in gradual process claims, Judge Ongley had little difficulty finding that Ms Davy's exposure to certain chemicals in her workplace involved significantly increased risk and these risks did not exist outside her workplace.
Appeal allowed.
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#2 User is offline   wayne1 

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Posted 26 May 2006 - 11:14 AM

Whatch Gorman this not the first time he has offered an opinion on Industrial Asthma in favour of the corporation. Don't have ANY dealings with this prick.
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#3 User is offline   fairgo 

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Posted 26 May 2006 - 06:13 PM

A good win! This is the second case of "childhood asthma" being blamed for occupational asthma or chemical sensitivities by ACC toads..... Alchin being the culprit in the case I know of.
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