ACC Claims For Gradual Work Diseases – Methyl Bromide

Suds drives a big truck. He loads it at a silo a few metres from a timber shed. The shed had a gap between the floorboards and the wall. Methyl bromide a known toxic fumigant that’s heavier than air was used to kill the timber bugs. One morning Suds loaded up his truck, bent down, checked his tyres and hub meter and noticed a pungent pong. A few hours later he ‘took crook’. He stopped off at a truckers pub and had one of the worst days of his life running nauseous, sometimes even crawling, from his room to the toilet at the corridors end. The next day he felt just well enough to drive. However, he kept getting diarrhea. He eventually saw a doctor. His boss and others also experienced the pungent pong and reported it to the employer and OSH. They also ‘took crook’ with nausea and stomach cramps. Unlike Suds, theirs cleared up.

Suds asked for a ACC number. He didn’t need compo, just peace of mind should things get worse. His boss had helped with medical treatment. The company that managed his bosses ACC matters turned down Suds request. They got an occupational physicians report that concluded the diarrhea was unable to be definitely tied to the methyl bromide incident. No one disputed the exposure happened, but questioned its severity. Later Suds was diagnosed with colitis so now the ACC legal requirements were met. That is; an accident (the methyl bromide exposure) and an injury (colitis).

What followed is instructive on the “social contract” we New Zealanders have with ACC. We cannot of course sue for damages over accidents, no fault ACC takes care of us instead. I suspect Justice Woodhouse, the far sighted father of ACC would wriggle a tad in his grave over some of the tatty edges to his brilliant scheme.

Bosses contract companies to manage work place injuries. These outfits are known as Accredited Employer Providers. They monitor staff claims, put in rehabilitation plans, and use expertise to avoid work accidents to keep the bosses ACC experience rating and payouts low. Also they make the call whether the worker is fair dimkim about a claim, or swinging the lead. The tougher the Accredited Provider is, the less, presumably the boss pays ACC and happier he is about paying the Providers fee. He who pays the piper gets the tune!

Workers whose claims are turned down could be forgiven thinking the system is stacked against them if they appeal. Disputes Resolution Services conducts ACC reviews. Guess who owns them – ACC! Guess who pays the Reviewer (albeit not directly) – the boss! Absolutely no aspersions on the Reviewers – but the set up can look stacked.

The real rub is it’s up to Suds, a truck driver to prove on the balance of probabilities his colitis was caused through methyl bromide. In practice, Suds has to find a medical specialist that can definitively link his colitis to methyl bromide. Like many disease processes this can be a big ask. Medical specialist’s are uncertain. If Suds cannot prove his case, then he can be up to pay costs.

A heart wrenchingly sad case concerned sawmillers at Whakatane exposed to PCP. Their children and grandchildren were exposed as well through treated timber off cuts burning in the home fireplace. 40 of the 59 claims were turned down because workers could not prove the connection of exposure to a hazardous substances and subsequent illness.

Hearteningly, Parliament recognises this and has a Ministry Advisory Panel on Work Related Gradual Process Disease or Infection. Its chaired by unionist Hazel Armstrong They are due to report back at the end of the year on changes to the law to help salt of the earth workers like Suds and the late Justice Woodhouse be still. ACC shouldn’t be legally fraught, as was the system it ousted. Let’s see.

The article is based on real cases but names changed to protect privacy.

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