Farmers payout for 2,4,5-T herbicide exposure tip of the iceberg - lawyer says

• A farmer has been paid $160,000 for exposure to herbicide 2,4,5-T
• He is one of only 15 claims ACC has ever accepted involving the herbicide
• ACC knocked back his claim three times before it was overturned on review
• His lawyer believes there could be many more people who've had similar exposure to 2,4,5-T
• Neighbours of New Plymouth plant where herbicide was made not eligible for ACC cover

The lawyer for a Taranaki farmer who has terminal cancer and successfully overturned an ACC decision denying him compensation for exposure to the herbicide 2,4,5-T reckons his client could be just the tip of the iceberg.

ACC's toxicology panel turned down the man three times before an independent review reversed its decision and bumped up his compensation offer from $66,000 to $161,000.

Solicitor Merlyn Remiens from John Miller Law said ACC had since accepted another Taranaki farmer's claim for exposure to 2,4,5-T.

"So we have another claimant who joined the workforce at an early age and was involved agriculturally in the spraying of products containing 2,4,5-T and then subsequently developed this prostate [cancer] diagnosis."

The herbicides 2,4,5-T and 2,4-D were made at Ivon Watkins Dow's Paritūtū plant in New Plymouth from 1960 to 1987. Prior to this, Ivon Watkins produced, herbicides including 2,4,5-T, at its Buller Street plant in the central city from 1948.

They contained toxic dioxins linked to cancers and birth defects and were a key component of Agent Orange - the defoliant used by the US military during the Vietnam War.

New Zealand Vietnam veterans were paid ex gratia payments of $40,000 in 2006 - voluntary payments made to show kindness without admitting blame - to those who were exposed to Agent Orange.

The payments could also be given to a veteran's child if they were diagnosed with cleft lip, cleft palate, spina bifida, adrenal gland cancer or acute myeloid leukaemia - all conditions linked to the defoliant.

Remiens said the second farmer, who was known to the first claimant, was also just 51 years old at the time of diagnosis, but his experience was vastly different to his near neighbour.

"Client two was involved three or four times a year [with the spraying of 2,4,5-T] from the ages of 16 to 51 with a gap of roughly 12 years in the middle of that. Now that far, far lower level of exposure was nonetheless found to be sufficiently high to cause a relationship to that exposure and the subsequent diagnosis of cancer."

The first farmer sprayed the herbicide on a weekly basis.

15 claims accepted, 30 rejected

ACC figures revealed the farmers' successful claims were outliers.

Since its inception in 1974, the corporation had accepted 15 claims related to 2,4,5-T and 2,4-D - all of those in the last thirty years.

Over the same period it declined 30 claims.

In total ACC had paid out about $380,000 for exposure to the herbicides.

Remiens said the numbers didn't add up.

"We have a relatively low number of claimants that have been accepted and even then the payouts they do receive seem staggeringly low.

"If we take the accepted number as being around 15 over the last three decades and we see a payout of just over $380,000 it doesn't add up when we see our one client recently had received almost $200,000 alone."

Remiens believed there were many more people who might be eligible for cover.

"Anecdotally we have hundreds of thousands of people with these kinds of exposures but not any semblance of that number being referred to the toxicology panel for assessment and when the toxicology panel does access it they then apply the wrong standard - ie there are more people out there who should have this cover and don't."

Remiens said the toxicology panel applied an artificially high bar that meant applicants had to prove they had a level of exposure meaning they were twice as likely to develop a subsequent condition than a member of the general public.

"That is not true. The legislation requires only that there be a slight increase [in risk], which the courts have held to be as little as a 20 percent increase."

If more claims came forward it could prove costly for ACC.

"For example if someone has been exposed to 2,4,5-T and then has developed cancer and that cancer is terminal then they can be assessed at - I believe - a rate of $176,000.

"Say there are 100,000 people exposed. At the very lowest end ACC would then be obliged to fund assessments for each of these people and at the assessment rates that we get that can be any where between $1000-$5000.

"That's already - I'm not a mathematician and don't claim to be - but that's already several million dollars just to engage in step one of the process."

ACC response

ACC deputy chief executive, system commissioning and performance, John Bennett, said the toxicology panel would not be changing its approach to 2,4,5-T exposure.

The panel provided ACC with independent advice on causation and cover for work-related disease, Bennett said.

"Each case is assessed on its own merits. The decision whether to accept the claim for cover is then made by ACC."

Bennett said ACC was not preparing for an influx of claims for 2,4,5-T.

Mass use of herbicides

Dioxins researcher Andrew Gibbs warned the herbicides were widely used throughout New Zealand to break in land for agricultural use.

"Our scale of use was massive, according the World Bank between 1968 and 1981 - when the government was subsidising 2,4,5-T - we cleared 19,000 square kilometres or seven percent of New Zealand's land mass."

But Gibbs didn't think there would be a flood of applicants to ACC off the back of the successful claims.

"The problem is that a lot of these people have passed on or been ground down.

"What we've got to realise is that these cancers that were linked to these products were occurring at elevated rates from the 1970s, so now in 2024 - I think that's 76 years after their use started - we've only had a handful of cases accepted."

People who worked with 2,4 5-T prior to 1971 when dioxin levels in the product were at their highest should receive compensation no questions asked, Gibbs said.

'I was given a death sentence. I'm still young'

Maurice Bevin grew up near the Ivon Watkins Dow site during the 1960s.

https://www.rnz.co.nz/news/national/511546/controversial-chemical-plant-neighbour-with-cancer-wants-answers

The 70-year-old has stage four prostate cancer, and has advocated that surviving residents received compensation.

He has written to Minister of Health Shane Reti demanding about the issue.

"It is about time it is recognised by the government and the Ministry of Health that substantial payments need to be made to the remaining people who are suffering from various cancers and birth defects," Bevin wrote.

Reti referred his email to the Public Health Authority.

In an email, deputy director general Dr Andrew Old acknowledged exposure to dioxin could cause health problems.

"Evidence has shown that dioxin appears to be a weak initiator of cancer, that is it is weak at causing cancer by itself. However, there is also evidence that it is a strong promoter of cancer which means dioxin can promote the growth of a cancer caused by something else."

He pointed Bevin to the Minstry of Health's Dioxin Support Service established for neighbours of the plant 15 years ago under which they receive a free annual medical.

In terms of compensation, Old said there was no grounds for the ministry to take action against Ivon Watkins Dow for emissions governed under previous legislation, but that current and former employees of Ivon Watkins Dow were entitled to submit claims to ACC.

"Persons exposed to dioxins in a non-occupational manner are not currently able to obtain compensation under the ACC Act regime," he said.

That was cold comfort to Bevin.

"This should go to the top level and compensation should be paid to the people and I'm not talking pittance. I'm talking millions per person. I'm serious.

"People's lives you know. I was given a death sentence. I'm still young, I'm still fit. It's not a nice feeling to be told you're going to die."

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