Jansen v Compensation Commissioner (CA 377/2007) [2008] ZAECHC 63; (2008) 29 ILJ 2141 (E) (4 June 2008)

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case no: CA377/2007

Date heard: 16.5.2008

Date delivered: 4.6.2008

In the matter between:

CB JANSEN Appellant

vs

THE COMPENSATION COMMISSIONER Respondent

JUDGMENT

______________

A.R. ERASMUS J:

[1] This is an appeal against the ruling of the presiding officer and two assessors on an objection lodged against the decision of the compensation commissioner (the respondent) refusing a claim for compensation by the appellant, all in terms of provisions of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the Act).

[2] The claim related to back injuries sustained by the appellant on 27 February 1995 in the course of his employment with the South African Police Service. His initial claim for compensation under the Act was disallowed. The appellant’s back injury thereafter deteriorated progressively, to the extent that - according to reports by various medical practitioners – he became permanently disabled and unfit to perform his duties as a policeman. He was discharged from the service as a result of his medical condition with effect from 31 January 2004. The medical reports were thereafter placed before the compensation commissioner in a further application for compensation and medical expenses. The commissioner’s decision is contained in a letter dated 9 June 2004, the relevant portion whereof reads:

'With reference to a medical report dated 2003/12/05 by Dr. B.J. O. Maarsingh I have to inform you that reopening of your case cannot be approved in terms of the Act as the treatment will not reduce your degree of disablement.

Liability for the payment of further compensation and medical expenses cannot, therefore, be accepted in terms of the Act.

Should you not be satisfied with this decision you are at liberty to lodge an objection in the prescribed manner, in terms of section 91 of the Act. You should complete the attached forms WG.29 in duplicate and return same to this Office to reach me not later thann 180 days from the date of my decision.'

[3] The appellant duly lodged an objection indicating therein that he objected to the following portions of the commissioner’s decision:

'1. Failure to re-open the case.

Denial of liability for payment of further compensation in terms of the provisions of the Act

Denial of liability for payment of medical expenses.'

[4] The objection was heard on 4 February 2007 by a presiding officer assisted by two assessors. Counsel for the appellant placed the medical reports before the hearing and called two witnesses, namely Dr. R.G. Keeley, a specialist neurosurgeon, and the appellant. The evidence was directed squarely at establishing that the appellant was permanently disabled. Dr. Keeley stated that the appellant’s condition had deteriorated considerably since he saw him five years previously. He explained how the nature and extent of the appellant’s back injury affected his physical actions and prevented him from performing properly or at all many acts of daily living. When asked to comment on the appellant’s employability in the open labour market, he replied: 'No sir he cannot work. He cannot even help around the house. He could certainly not help with any kind of work that I can think of.' Dr. Keeley expressed the opinion however that the appellant should be considered for surgery. The operation he said would not give him a new back but a much better back. After a period of recovery he could, with considerable restriction, look for work. The evidence of Dr. Keeley was not challenged in cross-examination nor questioned in the address of counsel appearing for the commissioner. The appellant in his evidence confirmed the factual basis of Dr. Keeley’s evidence. He however expressed misgivings and fears about undergoing surgery to his back. No evidence was presented on behalf of the commissioner.

[5] The presiding officer ruled:

'THE OBJECTION IS SUCCESSFUL. The following orders issued:

The case is re-opened.

The Compensation Fund is liable for payment for further medical expenses.

The Compensation Fund is liable to pay costs on the normal scale, which costs will include the quantifying expenses for Dr Keeley.'

It is implicit in the ruling that the presiding officer dismissed the appellant’s objection to the commissioner’s failure to award him compensation for his back injury.

[6] The presiding officer subsequently furnished the written reasons for the ruling. It appears that he and his assessors accepted Dr. Keeley’s evidence. He indicated that the ruling turned on the evidence that indicated that surgery on the objector would decrease the degree of his disability. He stated that the reports of the various doctors relied upon by the objector suggested that his condition had not stabilized and that invasive treatment was recommended. He concluded:

'The Fund has not made a determination as to whether the Objector is permanently disabled or not nor the percentage thereof. I am of the view that the submission that disability should be awarded at 75% is premature. It may well be that after further treatment a determination will be made as to the extent of disability and if need be the Objector can then launch an objection to the extent of the disability awarded by the Fund. In the present case the extent of disability and the percentage thereof are not before us.'

[7] On the definition in s 1 of the Act, 'permanent disablement' means the permanent inability to perform any work as result of an accident for which compensation is payable. Chapter 6 provides for the determination and calculation of compensation. Section 49 thereof is of central importance in calculating the compensation payable for permanent disability. It reads:

'(1)(a) Compensation for permanent disablement shall be calculated on the basis set out in items 2, 3, 4 and 5 of Schedule 4 subject to the minimum and maximum amounts.

(b) …

(2)(a) If an employee has sustained an injury set out in Schedule 2, he shall for the purposes of this Act be deemed to be permanently disabled to the degree set out in the second column of the said Schedule.

(b) If an employee has sustained an injury or serious mutilation not mentioned in Schedule 2 which leads to permanent disablement, the Director-General shall determine such percentage of disablement in respect thereof as in his opinion will not lead to a result contrary to the guidelines of Schedule 2.

(c) ….'

Schedule 2 consists of two columns under the respective headings 'Injury' and 'Percentage of permanent disablement'. Particular injuries are specified in the first column for example 'Loss of two limbs', 'Total loss of sight', 'Total paralysis' etc, with in each case an indicated percentage in the second column. The only non-specific injury is the one relevant here, viz 'Any other injury causing permanent total disablement … 100%'. Having thus ascertained the percentage of permanent disability one proceeds to Schedule 4 in order to establish the compensation payable in respect thereof. The portion of the schedule relevant to s 49 reads:

(i) (ii) (iii) (iv) (v) Item Section Nature and degree of disablement Nature and benefits Manner of calculating benefits 2. 49(1) Permanent disablement of 30% Lump sum 15 times the monthly earnings of the employee at the time of the accident subject to the maximum and minimum compensation of R141 420.00 and R32 535.00. 3. 49(1) Permanent disablement of less than 30% Lump sum An amount which bears to a lump sum calculated under item 2 the same proportion as the degree of permanent disablement to 30% 4. 49(1) Permanent disablement of 100% Monthly pension 75% of an employee’s monthly earnings at the time of the accident subject to maximum and minimum compensation of R12 624.00 and R1 6 26.75. 5. 49(1) Permanent disablement of less than 100% but more than 30% Monthly pension A monthly pension which bears to a pension calculated under item 4 the same proportion as the degree of permanent disablement to 100%

[8] The process is mechanical not requiring evaluation or the exercise of discretion, except that is where the employee has sustained an injury 'not mentioned in Schedule 2 which leads to permanent disablement', in which case the Director-General shall determine the percentage of permanent disablement in accordance with s 49(2)(b) (above).

[9] On the evidence before the hearing the appellant was permanently disabled. In then applying s 49, the only question that the presiding officer and assessors had to decide really was whether or not that disablement was total. The proper order would follow automatically on that finding. The presiding officer would either declare the appellant entitled to the benefits for total permanent disablement provided for in item 4 of Schedule 4, or direct the Director-General to determine in terms of s 49(2)(b) the degree of disablement of less than 100% sustained by the appellant for purposes of items 2, 3 or 5 of Schedule 4. It was not necessary for them to determine the degree to which the appellant’s permanent disablement was less then total.

[10] The presiding officer therefore erred in holding that the appellant’s application was premature in that he and his assessors were unable to determine the precise degree of his disablement at the time of the hearing in view of the possibility of remedial surgery in the future.

The Act caters for future improvement in the beneficiary’s condition, whether through surgery or otherwise. In terms of s 90 the Director-General may at any time review any decision in connection with the reward of compensation on good grounds inter alia (para (c)) that the compensation awarded in the form of a pension is excessive because of changed circumstances. This is re-enforced by s 42(1) which empowers the Director-General to require an employee to whom compensation is payable to submit himself to a medical examination by a designated medical practitioner.

[11] On Dr. Keeley’s evidence the appellant suffered permanent disablement which at the time of the hearing was total. There was nothing uncertain about his conclusion. The uncertainty in the mind of the presiding officer related to the possible remedial effect of invasive surgery at some unknown time in the future. Such contingency may be relevant in calculating civil damages, but has no place in the scheme of the Act for determining the monthly pension immediately payable to the disabled employee. It would be manifestly unjust and contrary to the objects of the Act to deny an employee his entitlement to a pension on the grounds that a prospective operation renders the future degree of his disablement uncertain, or to reduce his benefits on the basis of possible beneficial future treatment. The Act simply does not lend itself to such a construction. The object of the Act is plainly to provide a disabled employee with compensation for his immediate disablement expeditiously by means of a fixed formula that avoids dispute and uncertainty.

[12] Counsel for the appellant submits in his heads of argument that the presiding officer should have held that 'the appellant is disabled to the extent of 100% from 31 January 2004 until his recovery from his operation and thereafter permanently disabled to the extent of 75%'. At the hearing of the appeal counsel did not persist in his submission that the presiding officer should have made a determination regarding the appellant’s post-operative disablement – and rightly so, for on a proper interpretation of Chapter 6 there was no need for such ruling. I, further, do not go along with counsel’s submission that the presiding officer should have ruled that the appellant was disabled from 31 January 2004. We were not referred to any facts which justify the designation of that date. In any event the just and fair date from which the compensation is payable is a question best left to the discretion of the compensation commissioner upon his consideration of all the relevant facts and circumstances.

[13] In the result, the appeal succeeds with costs and the following order is substituted for that of the presiding officer.-

1. The objector’s case is re-opened.

2. The objector has permanent disablement of 100% as contemplated in item 4 of Schedule 4 of the Compensation for Occupational Injuries and Diseases Act, 1993.

3. The compensation fund is liable to pay the objector compensation, on the basis that he is disabled as aforesaid in terms of the provisions of the Act, as from a date to be determined by the compensation commissioner.

4. The compensation fund is liable to pay the objector’s further medical expenses arising from his permanent disablement.

5. The compensation fund is liable to pay the costs of the hearing which costs shall include the qualifying expenses of Dr.Keeley.

_____

A.R.

ERASMUS

JUDGE

OF THE HIGH COURT

DATE: 29 MAY 2008

Pickering J:

I agree.

J.D.

PICKERING