Alexander obo Michaels v Health Professions Council of South Africa and Others (48085/2017) [2020] ZAGPPHC 303 (15 June 2020)

IN THEHIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

Case Number: 48085/2017

In the matter between:

W ALEXANDER OBO W MICHAELS

Applicant

(REF: RAFA/00857/2016)

and

HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA First Respondent

THE REGISTRAR OF THE HEALTH

PROFESSION SCOUNCIL OF SOUTH AFRICA

Second Respondent

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL

Third Respondent

THE ROAD ACCIDENT FUND

Fourth Respondent

JUDGMENT

KUBUSHI J

This judgement is handed down electronically by circulating to the parties' representatives by email and by uploading on Caselines.

INTRODUCTION

[1] The application before me is for judicial review concerning the decision and findings of the third respondent, the Road Accident Fund Appeal Tribunal ("the Tribunal"), that the injuries suffered in a motor vehicle collision by the applicant are non-serious injuries for purposes of a claim by the applicant for compensation for non-pecuniary loss (General Damages).

[2] In essence, the relief sought is for an order to review and set aside the decision of the Tribunal dated 30 September 2016 to the effect that the injuries suffered by the applicant are non-serious in terms of s 17 (1) (A) of the Road Accident Fund Act 56 of 1996 (“the Act") and its Regulations.[1] and further relief referring the decision back to a freshly constituted Tribunal and entitling the applicant to be present and be permitted to provide further evidence pertaining to her injuries at that rehearing.

[3] The first respondent, the Health Professions Council of South Africa ("the HPCSA"), the second respondent, the Registrar of the Health Professions Council of South Africa ("the Registrar") and the Tribunal are opposing the application. I, shall for convenience, in this judgment refer to them collectively as the respondents.

[4] The application was decided on the basis of arguments submitted on behalf of the parties in lieu of oral argument in accordance with paragraph 25. 2 of the Judge President's Revised Supplementary Directive in re Operations in Pretoria and Johannesburg High Courts, during the extend ed Cov-id19 Lockdown and for the remainder of term 2/2020. The applicant and the respondents' legal representatives agreed to the written argument in an attempt to have the matter disposed of without oral argument. A Joint Practice Note was filed in this regard.

[5] The review application, the respondents' opposing affidavit and the applicant's replying affidavit were filed out of time and condonation for such late filing was applied for. The parties are desirous that the matter be decided on the merits and are, therefore, not opposing each other's condonation application(s). I am also satisfied that the matter should be decided on the merits and that condonation for the late filing of the papers be granted.

THE TRIBUNAL

[6] The Tribunal is constituted by the HPCSA through the Registrar, in terms of regulation 3 (8) of the Regulations, to consider and determine an appeal of the decision taken by the fourth respondent, the Road Accident Fund ("the Fund") In terms of regulation 3 (3) for rejecting a claim for general damages as non-serious.

[7] The appeal created by the Regulations has been held to be 'an appeal in the wide sense'; that is, a complete rehearing of, and fresh determination on the merits with the procurement of additional evidence or information if need be. To that end the Tribunal Is endowed with certain powers contained in regulations 3 (10) and (11) of the Regulations.

[8] The Tribunal is the final arbiter on whether a claimant qualifies to recover general damages from the Fund or not, with no further appeal against Its decision. The only avenue available for a complainant to challenge the decision of the Tribunal is through a review process. Therefore, In taking the decision of a Tribunal on review, the process entails an enquiry which Is not aimed at whether the Tribunal concerned was correct in its conclusion but whether the process followed was fair and reasonable.

[9] The Tribunal is normally comprised of three independent medical practitioners, with expertise in the appropriate areas of medicine, who are vested with wide ranging powers in the exercise of their functions. In this instance the Tribunal was comprised of four medical doctors: three orthopaedic surgeons and a neurologist. The Tribunal was assisted to come to the decision it reached by the information contained in the applicant's RAF 5 form; the rejection

letter together with the report of Dr Mukansi (the Fund's Orthopaedic Surgeon}; the RAF 4 form and medico -legal report by Dr Oelofse (an Orthopaedic Surgeon); the medico-legal report and Impairment Assessment Rep ort of Or Hoffmann (a Plastic Reconstruction and

Cosmetic Surgeon}; a report of R van Biljon the Occupational Therapist; the report by Or Callaghan the Ear, Nose Throat Specialist

and hospital records. Further information from the radiologists, namely, Dr du Toit contained in the occupational therapist' s report and Or Scribante contained in Or Oelofse's report, was available to the Tribunal.

THE APPLICANT's CASE

[10] The gravamen of the applicant' s complaint Is premised on two main grounds. The first ground is that the Tribunal's decision is merely an overall view on the applicant's injuries which only too k in to account injuries suffered by the applicant and not the negative impact these injuries have on the applicant in terms of the narrative test. In this senses so It is argued, the Tribunal failed to properly consider the narrative test in light of the reports that qualified the applicant under that test. The Tribunal is said to have further failed to consider the applicant's serious permanent disfigurement and scarring. Such failure by the Tribunal, so it is argued, leads to a materially unreasonable decision in respect of its finding alternatively there was a failure on the part of the majority to properly apply the narrative test on the available evidential material and that they were materially influenced by an error of law and/or fact alternatively the decision made in the circumstances amounted to arbitrary action and is procedurally unfair.

[11] The second ground is that the Tribunal failed to invoke the provisions of regulation 3 (11) of the Regulations in that it formed a medical opinion without any clinical examination performed on the applicant by the members of the Tribunal; or calling for additional evidence, if there were issues of concern to them, specifically having regard ,o the seriousness of the applicant's injuries based on the narrative test; or calling upon the applicant to attend the hearing in order for the Tribunal to examine and/ or refer the applicant for an additional opinion.

DISCUSSION

[12] The applicant 's submission that the Tribunal's decision is 'merely an overall view on the applicant's injuries' cannot, in my view, be correct. The respondents extensively explained how they go about doing their work in coming to a decision on a specific appeal.

According to Or Ramokgopa, the deponent to the respondents’ answering affidavit, each member of the Tribunal is provided with a pack of all the cases about two weeks before the sitting or the Tribunal. Each member then independently and on their own go through the files and formulate their own views in preparation for the Tribunal meeting. Each member independently peruses, considers and familiarise themselves with all the documents and analyses all the facts and aspects relating to the injury, including reviewing all attached hospital records, investigation reports, experts' report s and lawyers' report s relevant to the case analysis. The Tribunal specifically looks at key fin dings and any inconsistencies between the clinical reports provided. The Tribunal evaluates the data provided on the RAF 4 form correlates it with objective clinical studies and reports provided by various specialists who examined the third party. At the hearing of the appeal, members of the Tribunal deliberate the appeal and reach a decision.

[13] IN this instance, and having gone through the process described above, all the members of the Tribunal were, unanimously, completely satisfied that they were provided enough medical evidence and reports to enable them to consider the appeal and that further submissions (oral or written) were not required. The appeal was deliberated and a decision was made based on the medical evidence. including all the report s and hospital records that were before the Tribunal, that the injuries were not serious and do not qualify under the narrative test. The Tribunal further concluded that the impact of the injuries did not result in significant life altering consequences to the applicant 's personal circumstances. The consequences were found to be mild to moderate and not serious or severe.

[14] Except to say that the Tribunal was not comprised of a member with the expertise of a plastic reconstructive surgeon like Or Hoffmann, an issue that I shall come to later in this judgment, the applicant does not query the composition of the Tribunal itself, her claim is based on the alleged un reasonable arbitrary decision of the Tribunal. The crux of her submission, in summary, is that the Tribunal's decision was taken without taking into account material facts and with out itself exercising its powers in terms of regulation 3 (11) of the Regulations, in order to provide a substantive basis for its otherwise arbitrary rejection of the injuries as non-serious rendering the decision so unreasonably arbitrary that no reasonable person could have reached it in the circumstances.

[15] In trying to substantiate her case, the applicant relies on the medico-legal reports of Dr Oelofse and Or Hoffmann who each found that the narrative test finds application to her injuries, to support her claim that her injuries are serious. I find, however, this not to be the case. I sav so because the Regulations and the Act make it clear that the injury or injuries have to be serious in order to qualify. The court has defined this by referring to different degrees of seriousness: mil d, moderate, serious and severe. The injuries or consequences must therefore be more than mild or moderate- they must be serious or severe.[2]

[16] In determining the seriousness of an in jury, the Tribunal considers the requirement that there must be a permanent impairment as rated in terms of the AMA guides. For this reason the guides require that the rating be made when the patient has reached the Maximum Medical Improvement ("MMI") status. This is a stage where the patient is as good as it is going to be from the medical or surgical treatment available to her/him. In other words, it is a point in time in the recovery process when further medical or surgical intervention cannot be expected to improve the underlying impairment. If improvement or recovery is still expected the impairment cannot be regarded as permanent and/or a serious injury. Furthermore, for the injury to qualify as "serious Injury'" under the AMA guides, regulation 3 (1) (b) (ii) requires that the injury should result in a 30% or more impairment of the whole person. If the injury has not resulted in a 30% or more WPI, and does not appear on the list of non - serious injuries, such injury may only be assessed as "serious in jury” under the narrative test, if the injury resulted in a serious lo ng-term Impairment or loss of a body function; constitutes permanent serious disfigurement; resulted in a severe long-term mental or severe long-term behavioural disturbance or disorder or resulted in loss of a foetus.

[17] When compiling his Medico-legal Report of 25 May 2016, Dr Hoffmann considered the aforementioned criteria, and based on his consultation with the applicant, he found the criteria for permanent serious disfigurement applicable. As such his report is based only on the left leg injury disfigurement due to scarring. The doctor opines in his report that the effects of scarring are not merely physical but has a psychological component as well . Not only is damage caused to the body's largest organ, but also the patient's self-image. The goal of plastic surgery Is, therefore, not only to repair trauma or lesions to the skin, but to achieve aesthetically acceptable results for the patient.

However, having observed the applicant' s scar he did not recommend any surgical revision. His prognosis is that In his opinion the patient's scarring cannot be improved with further surgery. The scar will always be visible and, therefore, is permanent. He deferred to the opinion of a clinical psychologist wit h regard to the acceptance of the applicant's scarring.

[18] In his Impairment Assessment Report, Or Hoffmann diagnosed a permanent serious disfigurement In terms of the narrative test due to the scarring of the left ankle foot. The diagnosis is done without providing full reasons for such conclusion as required in the RAF4 form . What appears to have been the reason for such diagnosis is the scarring which he refers to as unsightly. From what I have stated above it is dear that there is no substantiation of Or Hoffmann's findings of serious disfigurement. His conclusion that the scarring will always be visible and unsightly and because no further surgical revision is necessary or will make any difference the scar is now permanent, does not necessarily mean that the disfigurement is serious.

[19] In an attempt to cover-up this discrepancy on the part of Or Hoffmann, the applicant raises a nuanced argument to the effect that the Tribunal took note of the applicant's injuries without considering the negative impact thereof. Conversely, the Tribunal having considered all the reports including that of Or Hoffmann, concluded that the impact of the injuries did not result in significant life altering consequences to the applicant's personal circumstances. The Tribunal found the consequences w ere mild to moderate and not serious or severe.

[20] Of concern Is that the applicant does not substantiate the nature of the impact of the Injuries on her. It is not stated what Impact the disfigurement has on the applicant except to state in the replying affidavit that the scarring makes the applicant self-conscious. Or Hoffmann's report took this into consideration, as he evidently foresaw that such scarring normally causes psychological challenges to do with self-image. He opined in his report that the effects of scarring are not merely physical, but has a psychological component as well. However, because he is not a specialist in this field he could not for sure say that the applicant has been negatively impacted by the disfigurement, he, thus deferred to the clinical psychologist with regard to the acceptance of the scar ring by the applicant. The applicant did not furnish the Tribunal with the report of a clinical psychologist which might have determine d the impact the scarring have or will have on the applicant. It can, therefore,

not be said from the information that was available to the Tribunal that there was and there is any negative impact resultant from the scarring. The acute, sub-acute as well as the emotional pains referred to in Or Mokansi's report which the applicant's seeks to use as pointing in the direction of the narrative test, are also unsubstantiated in the absence of a diagnostic report from a clinical psychologist.

[21] The only negative impact emphasised by Dr Hoffmann pertained to the applicant' s productivity and working ability. In the expert's opinion the injuries had and will continue to have a negative Impact on the patient's productivity and working ability In the future but from the plastic surgery’s point of view, the loss of productivity will be minimal which will increase with successful treatment of the related psychological issues. In this regard he deferred to the occupational therapist and an educational psychologist with regards to future productivity, working ability and retirement.

[22] On the basis of the in formation that was before the Tribunal, in my opinion, the Tribunal could? as it did, been able to make a finding of whether the disfigurement of the applicant qualified her under the narrative test simply because Or Hoffmann did not in his report furnish the reasons for diagnosing the unsightly scar as a permanent serious disfigurement. Yes the scarring is unsightly. Yes the scarring is permanent. But, is it serious, no. There is no such evidence. I do not think that the report of the clinical psychologist would have made much of a difference since the disfigurement is not serious. In the end, that the Tribunal did not consist of a qualified plastic and cosmetic surgeon takes the matter no further.

[23] The Occupational Therapist raised the issue of the applicant presenting with appropriate emotional response during the evaluation procedure. The report ed fear of crossing roads, increased aggression and the increase in her feelings of sadness raised concern regarding her psychosocial functioning, and deference was made to a clinical psychologist for further commentary. She also noted that the applicant's social circumstances may contribute to these emotional responses. These emotions were never diagnosed as referral to a clinical psychologist was not done. What I can say is that the applicant in her case simply ignores any findings which are averse of her case if read with the other facts which the reports also d early Indicate or show.

[24] The same reason I advance in my findings in regard to Or Hoffmann's evidence applies similarly in Dr Oelofse's evidence. Even in this regard, the applicant relies, without being specific, on the impact of the injuries on her . Her proposition is that the Tribunal ignored the lingering effect of the injuries as diagnosed by Dr Oelofse.

[25] Dr Oelofse having found that the applicant had a 17% Whole Person Impairment opined that the narrative test was comp li ed with as the applicant had a serious long-term impairment which could cause loss of body function and had a permanent serious disfigurement. He deferred the disfigurement to the plastic and reconstruct ion specialist and dealt only with the long term impairment in his report. Dr Oelofse in his report indicated a distal tibia fracture (left ankle Injury) which has healed. This is confirmed in the radiological reports of Dr du Toit and Dr Scribante. Both Dr du Tait and Dr Scribante found no sign s of deformity in both lower legs ankles and feet of the applicant. Dr Du Toit opined that there is no sign of deformity as the bony elements and joint spaces of both ankles and feet are normal in appearance. Dr Scribante, on the other hand, observed that an early metatarsus primus varus of the left foot may not be excluded and recommended supplementary standing AP views in case of any clinical suspicion.

[26] Due to the soft tissue left ankle injury, Dr Oelofse anticipated a left leg length discrepancy, and has, as a result, made provision for ligamentous reconstruction of the left ankle and serial x-rays (annually until the age of 16 years) to determine the development of the leg length discrepancy. Dr Oelofse in his report records the applicant's injuries as a serious long term impairment which could cause loss of bodily function. Dr Oelofse' s diagnosis of a serious long term impairment which could cause loss of bodily function Is not sustainable because it is based on the happening of a future event, that is, the anticipated leg length discrepancy that might or might not happen. Damages for an injury with such uncertainty cannot be compensated by a claim for genera l dam ages but can be covered by contingencies in the calculation of damages for loss of earning capacity.

[27] On the same reasons I advance here above, there would have been no need for the Tribunal to exercise its powers in terms of regulation 3(11) either to have physically examined the applicant or called for additional evidence or called the applicant to attend the hearing.

[28] Having made a finding that there was no need for the Tribunal to invoke the provisions of regulation 3 (11) the applicant’s proposition that failure to invoke the powers afforded to the Tribunal by regulation 3 (11) amounts to an error of fact alternatively procedural unfairness, must fail. It is my view that where, as in the current matter, the Tribunal is able, given its expertise and experience, to assess the seriousness of an injury on the basis of the reports furnished, It can do so without exercising the powers conferred on it by regulation 3 (11).

[29] So, also, the applicant' s contention that the failure to take into account the expert opinions of Dr Oelofse and Dr Hoffmann, all of whom had examined the applicant and found her to qualify under the narrative test, is both an error of fact and procedural unfairness must, on the basis of my fin ding s in paragraphs [17] to [25], fail, as well.

[30] The contestation made by the applicant that the Tribunal is not a proper forum to can consider the narrative test as it only relies on the documentation provided to it and does not examine the complainant to satisfy itself of the severity of the injuries, is to me far fetched and requires no further attention. As earlier stated, the Tribunal is a body of expert medical doctors constituted by the Registrar in terms of the regulations to decide on the seriousness or otherwise of the injuries sustained by a complainant in a motor vehicle accident when the Fund has rejected the injuries as not being serious. The Tribunal derives such powers from the Regulations.

[31] A further argument by the applicant that the Tribunal's failure to examine the applicant or call for additional evidence or information r enders the appeal conducted based solely on documentary evidence comprised almost entirely of reports by other medical professionals, inadmissible as hearsay evidence and renders the decision liable to be reviewed and set aside, is, in my mind misconceived. I am in agreement with the respondents' counter argument on this point. The applicant's argument is, indeed, paradoxical and can, therefore, not be considered competent. The applicant's appeal to the Tribunal was based on the reports and evidence which the applicant regarded as necessary to decide the appeal. She gathered the information herself

and present ed it to the Tribunal for consideration of the appeal. It is the same evidence that she now wants to be declared inadmissible

as hearsay.

CONCLUSION

[32] Although the applicant argues her case on reasonableness, the threshold for review is said to be rationality. On review the court must consider whether or not there is a rational connection between the determinations made by the Tribunal the material made available to the Tribunal for purposes of making the determination, the reasons provided for such determination and the purpose for which the power was given to the Tribunal.[3] The test for rationality requires a rational connection between the reasons and the decision. The testis not whether the decision is correct in relation to the reasons. It is also not require d that a decision of an administrative body be perfect or, in the court's estimation, the best decision on the facts.[4] On the facts of this case the reasons provided by the respondents in their papers in relation to the decision made by the Tribunal appear to me rational. The members of the Tribunal properly applied their minds to the expert reports furnished before coming to the unanimous

decision they came to.

[33] I have to conclude, therefor e, that from the evidence furnished by the respondents the manner in which the Tribunal dealt with the applicant's appeal was not procedurally unfair as contended for by the applicant. It is my view that the Tribunal was entitled and acted correctly in applying its own expertise and experience to adjudicate the appeal without exercising its powers in terms of regulation 3 (11).

[34] Consequently. I make the following order:-

34.1 Condonation for the late filing of the review application is granted

34.2 Condonation for the late filing of the answering affidavit is granted.

34.3 Condonation for the late filing of the replying affidavit Is granted.

34.4 The review application is dismissed with costs.

E.M KUBUSHI

JUDGE OF THE HIGH COURT

Appearance:

Applicant's Counsel

: Adv. M.A Bester

Applicant's Attorneys

: VZLR Attorneys.

1st, 2nd & 3rd Respondents' Counsel : Adv. Reimer Schoeman

1st, 2nd & 3rd Respondents' Attorneys

: Ramulifho Incorporated

Date of heating

: 05 May 2020.

Date of judgment

: 15 June 2020

[1] The Road Accident fund Regulations, 2008 promulgated ln terms of section 26 of the Road Accident Fund Act 56of 1996.

[2] J H v HPCSA 2016 (2) SA93 (WCC) para 19.

[3] See ME Adams v HPCSA28004/2016

[4] See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA49 0 (CC).