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Compensation Commissioner v Badenhorst (CA 38/2021) [2022] ZAECGHC 1; (2022) 43 ILJ 1144 (ECG) (25 January 2022)

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Personal Injury Law - Occupational Injuries and Diseases
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Brief Summary

Compensation — Occupational Injuries and Diseases Act — Appeal against percentage of permanent disability — Respondent sustained PTSD due to workplace incident — Appellant awarded 20% disability, contested by respondent — Tribunal found 75% disability appropriate based on medical evidence — Appellant appealed, arguing tribunal exceeded its powers — Tribunal's decision to increase percentage upheld as within its jurisdiction under COIDA.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an appeal in terms of section 91(5) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) against a decision of an objection tribunal constituted under section 91. The appellant was the Compensation Commissioner (treated in the judgment as interchangeable with the Director-General for purposes of the statutory powers under COIDA), and the respondent, Georgia Badenhorst, was at all material times an employee of the South African Police Service.


The procedural history was that the respondent lodged a claim for compensation under COIDA arising from a workplace incident. The appellant accepted the claim but awarded 20% permanent disablement for post-traumatic stress disorder (PTSD). The respondent objected under section 91(1) to the degree of disablement. The objection was heard by a tribunal (a presiding officer assisted by employee, employer, and medical assessors), which increased the disablement to 75%. The appellant then appealed to the High Court against that tribunal outcome.


The general subject-matter of the dispute was the proper assessment of the respondent’s degree of permanent disablement attributable to occupationally-related PTSD, and, centrally on appeal, the scope of the tribunal’s statutory powers when deciding an objection under section 91.


2. Material Facts


It was common cause that on 17 June 2014, in Port Elizabeth, the respondent suffered an accident arising out of and in the course of her employment with the South African Police Service, and that the accident resulted in her permanent disablement. A claim was lodged with the appellant under COIDA.


On 17 January 2020, the appellant notified the respondent that her claim had been accepted and that 20% was awarded for PTSD. The respondent objected to the percentage, contending that the awarded degree of permanent disablement was incorrect and should be increased. The objection was considered on 9 December 2020 by the statutory tribunal. Both parties were represented. The tribunal proceedings were directed to a single issue, namely the degree of the respondent’s permanent disablement.


The tribunal heard evidence from one witness, a psychiatrist, Dr Derick van der Merwe, who had longstanding experience in treating patients presenting with PTSD. He assessed the respondent and also interviewed her husband. The appellant presented no evidence, including no expert rebuttal.


Dr van der Merwe’s material evidence (accepted as undisputed) was that the respondent’s PTSD and related sequelae significantly impaired her functioning. The incident described to him was that while working in a storeroom, the respondent reached above her head for a docket and unexpectedly found herself holding a snake. She had a pre-existing phobia of cockroaches and snakes. Following the incident, she became incoherent and irrational, was medically examined, and was admitted to a psychiatric institution shortly thereafter. She developed a stutter, avoided people, suffered anxiety, and experienced impairment in daily activities, social functioning, concentration, pace, motivation, and adaptation to stress. Dr van der Merwe described the prognosis as poor and regarded her as permanently disabled.


Because PTSD is not listed in Schedule 2, Dr van der Merwe used the Schedule 2 guidelines to compare the respondent’s condition to listed injuries (including loss of a leg between knee and hip, loss of an arm above the elbow/at shoulder, and loss of an eye) and expressed the opinion that the respondent’s disablement fell in the range of 75% to 80%, recommending 75% as an appropriate percentage.


The tribunal relied on this evidence and concluded that the appellant’s determination of 20% was unreasonable, ordering that the respondent be paid compensation on the basis of 75% permanent disability.


3. Legal Issues


The appeal required the court to determine two central questions.


The first was a question of law, namely whether the tribunal, when deciding an objection under section 91, had the statutory power to substitute the Director-General/Commissioner’s assessment by awarding a different percentage (here, increasing the assessment from 20% to 75%), or whether its role was limited to evaluating adequacy and then remitting the matter back to the Director-General.


The second issue was primarily the application of law to fact, namely whether, on the evidence before the tribunal, the tribunal’s determination of 75% permanent disablement was justifiable, and whether there was any basis for appellate interference with that determination.


A contextual matter addressed in the judgment was that PTSD is not listed in Schedule 3 as an occupational disease; therefore, compensation depended on proof under section 65(1)(b) that the disease arose out of and in the course of employment. In the present matter, causation (that the incident caused the PTSD) was treated as common cause on appeal.


4. Court’s Reasoning


The court began by situating the dispute within COIDA’s framework for compensation and objections. It noted the statutory scheme governing permanent disablement assessments where an injury is not listed in Schedule 2, referring to section 49(2)(b), which requires the Director-General to determine a disablement percentage that does not yield a result contrary to Schedule 2’s guidelines. The court also addressed the occupational disease regime under section 65(1)(b) in circumstances where a disease is not listed in Schedule 3, recording that it was common cause that the respondent’s PTSD arose out of and in the course of employment.


On the scope of the tribunal’s powers, the court rejected the appellant’s contention that the tribunal lacked authority to decide the degree of disablement and allocate a percentage. The court emphasised the text of section 91(3)(a), which empowers the tribunal, after considering an objection, either to confirm the decision or to “give such other decision as [it] may deem equitable”. The court interpreted this language as conferring broad decisional power, not merely a power to remit.


The court reinforced that interpretation by relying on section 91(2)(c), which provides that sections 6, 7, 45 and 46 apply mutatis mutandis to objection proceedings. The court considered the effect of incorporating sections 45 and 46, which govern the Director-General’s powers in a formal hearing on a claim, including the hearing of evidence and adjudication. From this, the court reasoned that the tribunal, when hearing an objection, is placed in a position analogous to the Director-General conducting a formal hearing, and that the objection proceedings are not a review confined to an existing record but rather a rehearing of the issue referred.


On that approach, the tribunal’s power to make an equitable decision necessarily included the power to increase the percentage of permanent disablement, rather than being confined to sending the matter back. The court also observed that the appellant had referred the objection to the tribunal well aware that the dispute concerned the appropriate disablement percentage, and the tribunal’s authority to determine that question had not been challenged during the hearing itself.


Turning to the complaint that the tribunal had insufficient basis to award 75%, the court found the submission to be factually unsupported. It held that Dr van der Merwe had explained the respondent’s impairments and had used Schedule 2 comparisons to justify the recommended percentage. The court considered that approach legitimate in the context of section 49(2)(b), which expressly requires decision-making consistent with Schedule 2 guidelines where the specific injury is unlisted. The court regarded the tribunal’s reliance on Dr van der Merwe’s evidence as significant because it was undisputed and the appellant had led no rebutting evidence.


In the result, the court held that the appellant had not demonstrated a basis to interfere with the tribunal’s conclusion and that the appeal accordingly had to fail. It applied the general rule that costs follow the result.


5. Outcome and Relief


The court dismissed the appeal and left intact the tribunal’s decision directing payment on the basis that the respondent had 75% permanent disability. The appellant was ordered to pay the respondent’s costs of appeal.


Cases Cited


Odoyar v Compensation Commissioner 2006 (6) SA 202 (N)


Legislation Cited


Compensation for Occupational Injuries and Diseases Act 130 of 1993


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that a tribunal constituted under section 91 of COIDA has statutory power, when deciding an objection, not only to confirm the Director-General’s decision but also to substitute it with an alternative outcome that the tribunal deems equitable, including determining a different percentage of permanent disablement.


The court further held that, on the undisputed expert psychiatric evidence presented to the tribunal and in the absence of rebutting evidence from the appellant, the tribunal’s determination that the appellant’s 20% assessment was unreasonable and that a 75% assessment was appropriate did not warrant appellate interference. The appeal was dismissed with costs.


LEGAL PRINCIPLES


The judgment applied the principle that, under section 91(3)(a) of COIDA, the objection tribunal’s powers are not confined to confirming the Director-General’s decision or remitting the matter; the tribunal may issue “such other decision as [it] may deem equitable”, which includes substituting its own decision on the disputed issue (here, the degree of permanent disablement).


The judgment further applied the statutory interpretive consequence of section 91(2)(c), namely that incorporating sections 45 and 46 into objection proceedings (mutatis mutandis) indicates that an objection hearing functions as a rehearing of the issue, with powers analogous to those exercised by the Director-General in a formal hearing, rather than as a limited review on the existing record.


In assessing permanent disablement for an injury not listed in Schedule 2 (here, PTSD), the judgment applied section 49(2)(b), which requires an assessment aligned with the guidelines of Schedule 2, and accepted comparative reasoning by reference to listed injuries as an appropriate method in determining a percentage for an unlisted condition.


Finally, the judgment applied the evidential principle that where material expert evidence is uncontested and no rebutting evidence is adduced, a decision-maker is generally entitled to rely on such evidence in resolving the issue before it, and an appellate court will not interfere absent demonstrated misdirection or other basis warranting interference.

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[2022] ZAECGHC 1
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Compensation Commissioner v Badenhorst (CA 38/2021) [2022] ZAECGHC 1; (2022) 43 ILJ 1144 (ECG) (25 January 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CA 38/2021
In
the matter between:
COMPENSATION
COMMISSIONER

Appellant
and
GEORGIA
BADENHORST

Respondent
APPEAL
JUDGMENT
Bloem
J:
1.
This
is an appeal in terms of. section 91(5) of the Compensation for
Occupational Injuries and Diseases Act
[1]
(COIDA).  The appellant is the Compensation Commissioner
[2]
appointed under section 2(1)(a) of COIDA and the respondent was at
all times material hereto an employee of the South African Police

Service.
2.
It
is undisputed that on 17 June 2014 and at Port Elizabeth the
respondent met with an accident, that the accident arose out and
in
the course of her employment with the South African Police Service
and that the accident resulted in her permanent disablement.
A
claim for compensation in terms of COIDA was lodged on behalf of the
respondent with the appellant.
3.
On
17 January 2020 the appellant informed the respondent that “
your
claim has been accepted and 20% is awarded for Post Traumatic Stress
Disorder
”.
In terms of section 91(1) of COIDA the respondent lodged an objection
against the appellant’s decision to limit
the degree of
post-traumatic stress disorder (PTSD) to 20%.  The objection was
considered on 9 December 2020 by a tribunal
consisting of a presiding
officer, assisted by an assessor representing employees, an assessor
representing employers and a medical
assessor.  The appellant
and respondent were represented during the proceedings before the
tribunal.  I shall refer to
the tribunal either as “the
tribunal” or the “presiding officer”
interchangeably.  The only issue
before the tribunal was the
degree of the respondent’s permanent disablement.  Only
one witness testified on behalf
of the respondent.  The
appellant did not adduce evidence.
4.
Derick
van der Merwe is a psychiatrist, dealing with patients who present
with PTSD for about twenty years.  On 4 February
2015 he
interviewed the respondent’s husband whereafter he interviewed
her alone.  During his consultation with her
the respondent
informed Dr van der Merwe that on 17 June 2014 she was
working in a dirty store room about which she had
previously
complained to her superiors.  She reached above her head for a
docket.  Instead of pulling the docket she
found herself holding
onto a snake (the incident).  Prior to the incident she had a
phobia for cockroaches and snakes.
As a result of holding the
snake she became incoherent, confused, shocked and acted
irrationally.  She was medically examined
and admitted to a
psychiatric institution the following day when a bed became
available.  Her reaction to the incident was
so severe that she
developed a stutter.  As a result of the stutter she started
avoiding people.  On 11 November 2014
another psychiatrist, Dr
Crafford, made a diagnosis of PTSD, Bipolar Type II mood disorder,
major depressive phase and mixed state
and panic and generalised
anxiety disorder.  Based on his consultation with the respondent
and her husband, Dr van der Merwe
was unable to confirm the diagnosis
of Bipolar mood disorder that Dr Crafford had earlier made.
5.
As
a result of the PTSD, her activities of daily living have been mildly
to moderately impaired.  Dr van der Merwe testified
that those
activities include washing oneself, getting something to eat from the
kitchen, going to the local store to buy food
and clean oneself.
Although these are basic activities, their impairment has a
significant effect on the person concerned.
In the case of the
respondent, although she has a driving licence, she stopped driving a
vehicle after the incident.  The
respondent’s social
functioning has been mildly impaired, in part due to her stuttering;
her concentration, persistence pace
[3]
and motivation have been moderately impaired and her adaptation to
stress has been markedly impaired.  He established that
she
finds it difficult to function in environments which cause stress.
She occasionally has a severe tremor which would cause
her not to
pick up a cup of tea or do needlework.  She has been anxious
since the incident.
6.
Dr
van der Merwe pointed out that almost all work environments have
certain basic stresses, some more than others.  He was
of the
view that the respondent would be unable to cope with the demands of
the work of police women, which tend to be robust,
like chasing after
suspects who may be dangerous.  Even if she is required to
perform office duties, it would take her thrice
the normal time to
complete a task.
7.
Dr
van der Merwe also testified that the respondent demonstrated a mild
form of anxiety.  When she gets very anxious, she has
a severe
stutter, so much so that one can hardly understand what she says.
In her state of severe anxiety she cannot think
or function properly,
she works slowly and does not concentrate well.  Her anxiety has
now become a generalised thing, where
any stress tends to generally
affect her.  In sum, her anxiety has rendered her
dysfunctional.
8.
The
prognosis for her recovery has been described as poor because she
presents with so many disorders.  They include PTSD,
stuttering,
anxiety, speed of functioning, which impact on each other.  In
the words of Dr van der Merwe, “
those
things make one fear that things are not going to go well, not for a
long time
”
for the respondent.  It is clear from Dr van der Merwe’s
evidence that the respondent is permanently disabled.
9.
In
terms of section 49(2)(a) of COIDA, if an employee has sustained an
injury set out in Schedule 2, he or she shall for the purposes
of
COIDA be deemed to be permanently disabled to the degree set out in
the second column of Schedule 2.  PTSD is an injury
which
is not mentioned in Schedule 2.  Section 49(2)(b) provides
that 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.  It
is in this regard that Dr
van der Merwe testified that, in his opinion, the respondent’s
disablement ranges between 75 and
80%.  He used the guidelines
of Schedule 2 to contrast the respondent’s condition with a
person who has lost a leg between
the knee and hip.  In such a
case the percentage of permanent disablement, according to Schedule
2, is between 45 and 70%.
He also contrasted her
condition with a person who has lost an arm at the shoulder or
between the elbow and shoulder, in which
case the percentage of
permanent disablement is 65%.  In his view the respondent is
worse off than a person who has lost a
leg between the knee and hip
or an arm above the elbow.  In his view 20% is completely
inappropriate,
[4]
which is less
than the 25% in Schedule 2 awarded to a person who has loss of both
phalanges of the thumb.  In his view, if
regard is had to the
respondent’s total condition as a result of the incident, the
percentage of her permanent disablement
must be determined at 75%.
10.
The
tribunal relied on Dr van der Merwe’s undisputed evidence that
the respondent’s PTSD and its sequelae are more serious
than in
the case of a person who has lost a leg, arm or an eye, in which case
the percentage of permanent disablement is determined
in Schedule 2
to be between 45 and 70%, 65 and 30% respectively.  The tribunal
found that the appellant’s determination
“
of
20% is unreasonable and therefor the Compensation Commissioner is
ordered to pay the objector a 75% permanent disability
”.
It is against that finding that the appellant appeals.
11.
To
be entitled to compensation under COIDA, an employee must prove that
he or she has contracted a disease mentioned in the first
column of
Schedule 3 and that such a decease has arisen out of and in the
course of his or her employment.  PTSD is not mentioned
in
Schedule 3.  Section 65(1)(b) of COIDA provides that in such a
case the employee must prove that the PTSD that he or she
has
contracted has arisen out of and in the course of his or her
employment.  In this case it is common cause that the incident

was the cause of the PTSD.  That factual concession was made by
Mr Mhambi, counsel for the appellant, in his heads of argument.
[5]
Our courts have recognised PTSD as an occupational disease, as
contemplated in section 65(1) of COIDA.
[6]
12.
One
of the grounds of appeal was that the tribunal did not have the power
to change “
the
awarding of 20% permanent disability to 75% permanent disability
”.
Mr Mhambi submitted that the tribunal did not have the power to do a
patient assessment and, in turn, measure, calculate
and score the
respondent’s disability.  Counsel furthermore submitted
that the tribunal did not have the power to decide
on the degree of
permanent disability and allocate its own percentage.  It was
submitted that “
the
tribunal’s only power, duty and jurisdiction was to consider
the objection lodged in terms of section 91, in particular,
whether
the degree awarded by the appellant was adequate or inadequate, in
the light of all the evidence; and refer the matter
back to the
appellant to increase or reduce the percentage, if necessary.
The allocation and awarding an impairment
score is the
discretion of the Director-General
”.
13.
Section
91(2)(a) provides that an objection against a decision by the
Director-General shall be considered and decided by the presiding

officer, assisted by assessors (the tribunal).  The powers of
the tribunal are set out in section 91(3)(a) in terms whereof
it,
after considering an objection, could do one of two things.  It
could either confirm the decision in respect of which
the objection
was lodged.  In other words, the tribunal could confirm the
appellant’s decision to determine the degree
of the
respondent’s permanent disability at 20%.  Alternatively,
it could “
give
such other decision as [it] may deem equitable”.
14.
In
her notice of objection against the appellant’s decision to
award her 20% permanent disablement, the respondent stated
that
she “
objects
against the awarded percentage for permanent disability as this
percentage is incorrect
”
and that her “
permanent
disability percentage should increase
”.
In his opening address before the tribunal, Mr Horn, counsel for the
respondent who also appeared before us with
Mr Dyer, stated that
“
the
only issue is the correct percentage of disability that ought to be
awarded
”.
As pointed out above, the respondent lodged an objection with the
appellant in terms of section 91(1) against the
appellant’s
decision.  It was the appellant who referred the objection to
the tribunal for adjudication, well knowing
the nature of the
objection.  It is ironical that the very same person who
referred the respondent’s objection to the
tribunal now
questions the tribunal’s powers to make a decision on the very
issue that it referred to that tribunal.
15.
After
the evidence of Dr van der Merwe was heard and after Mr Horn had
concluded his submissions, the presiding officer invited
Mr Sitelo,
who represented the appellant at the tribunal, to make submissions.
The record reflects the following after the
presiding officer’s
invitation:
“
MR
SITELO:     The evidence was led based on his
evidence of a medical document which was not rebutted because
we did
not have any expert witness to rebut that evidence and as such,
Chairperson, I have no further submissions.
CHAIRPERSON:
Okay, any submission on the 75 percent considering the evidence
that
was placed? No submissions?
MR
SITELO:       No
.”
16.
It
is clear from the above that the only issue before the tribunal was
whether the degree of permanent disablement ought to be assessed
at a
higher percentage.  At no stage was the tribunal’s power
to increase the percentage of the permanent disablement
questioned.
17.
Section
91(2)(c) provides that the provisions of sections 6, 7, 45 and 46 of
COIDA shall apply
mutatis
mutandis
in
respect of the consideration of an objection by the tribunal.
18.
Section
45 deals with the consideration of claims by the Director-General.
It reads as follows:
“
45
Consideration of claim
(1)
The Director-General shall consider and adjudicate on a claim for
compensation, and for that purpose may carry out
such investigation
as he may deem necessary or he may formally hear the claim.
(2)
If the Director-General decides upon a formal hearing, he shall in
the prescribed manner give notice of the date,
time and place of the
hearing to the claimant and employer.
(3)
If the Director-General considers it necessary that any person,
including the claimant and the employer, should
be present at a
formal hearing to be interrogated, he may issue a subpoena for the
appearance of such witness.
(4)
Upon application by a person who in the opinion of the
Director-General has a sufficient interest in the subject
of a formal
hearing, the Director-General shall issue a subpoena for the
appearance of a person except if he is of the opinion
that such
person cannot further the investigation, in which case the
Director-General shall issue a subpoena only if the party
applying
therefor deposits with the Director-General a sum sufficient to cover
the necessary expenses to be incurred by the witness
as well as the
cost of the service of such subpoena.
(5)
The provisions of section 6 shall apply mutatis mutandis to
a person subpoenaed in terms of subsection
(3) or (4).
(6)
The Director-General may from time to time adjourn a formal hearing
to a date, time and place determined by him.
(7)
The Director-General shall keep or cause to be kept a record of the
proceedings at a formal hearing, and upon payment
of the prescribed
fees any person may obtain a copy of such record
.”
19.
Section
46 deals with the persons who could appear before the
Director-General at a formal hearing when an employee’s claim

for compensation under COIDA is first considered.  It reads as
follows:
“
46
Appearance of parties
(1)
(a)  Every party to a claim for compensation or his
representative may appear before the Director-General
at a formal
hearing.
(b) The
Director-General may designate any person to investigate a claim,
attend a formal hearing, cross-examine witnesses,
adduce rebutting
evidence and present arguments.
(2)    No
person other than an advocate or attorney shall be entitled to any
fees or remuneration except such necessary
expenses as the
Director-General may allow.
(3)    No
fees or remuneration shall be claimed from an employee or employer
except with the approval of the Director-General.
(4)
(a) The Director-General may of his or her own motion or on
an ex parte application by a party
to a claim for
compensation, order any attorney employed by such party or a
representative who has allegedly, contrary to subsection
(2), claimed
fees or remuneration, to submit to him or her a statement showing
what he or she has received or contracted to receive
from his or her
client, and to submit for taxation his or her bill of costs,
including attorney and client costs, against such
client.
(b)
Upon
such taxation the Director-General may allow such fees, costs and
expenses as he may consider reasonable in the circumstances.
(c)  If
an amount has been paid in excess of the amount allowed upon
taxation, the excess shall be refunded to the person concerned,
and
any agreement in terms of which such an excess is otherwise payable
shall be void as to that excess.
(5)    The
provisions of subsections (2), (3) and (4) shall also apply to any
act in connection with a claim
for compensation which is not the
subject of a formal hearing.
(6)    Any
person who agrees or attempts to collect any money contrary to the
provisions of this section shall
be guilty of an offence.”
20.
Sections
45 and 46 set out the powers of the Director-General once a decision
has been taken to hold a formal hearing to consider
the employee’s
claim for compensation.  For instance, he may give notice of the
date, time and place of the formal hearing.
He may issue a
subpoena for the appearance of persons to be present at the formal
hearing.  He may adjourn the formal hearing.
He shall keep
a record of the proceedings of the formal hearing.  He may
designate any person to attend the formal hearing,
to cross-examine
witnesses, to adduce rebutting evidence and present arguments.
At the conclusion of the formal hearing he
shall, in terms of section
45(1), adjudicate on the claim for compensation, meaning that he has
to make a decision on the matter
in dispute after considering all the
evidence adduced during the formal hearing.
21.
In
my view section 91(2)(c) can only mean that, when the tribunal
considers an objection against the Director-General’s decision,

the tribunal is placed in the same position as the Director-General
when it considers an employee’s claim for compensation
in terms
of sections 45 and 46.  The tribunal accordingly has the same
powers as the Director-General, as referred to above.
It
follows that the hearing of the objection by the tribunal is not a
review of the Director-General’s decision based on
the record
of proceedings.  It is a rehearing of the issue referred to the
tribunal.  That hearing is conducted in accordance
with sections
45 and 46.  It therefore means that, after considering the
evidence adduced during the hearing and the parties’

submissions, if it does not confirm the Director-General’s
decision, the tribunal can “
give
such other decision as [it] may deem equitable
”.
That includes the decision to increase the percentage of the
objector’s permanent disablement.  Had the
Legislature
intended to limit the powers of the tribunal, as suggested on behalf
of the appellant, one would have expected it to
have made such
limitation clear.  Instead, the ordinary grammatical meaning of
the words used is that the tribunal has the
broad power to make any
decision that it deems equitable.   In the circumstances,
the respondent’s submission,
that only the Director-General has
the power to award a percentage to an employee’s permanent
disablement and that the tribunal
consequently does not have the
power to interfere with the Director-General’s discretion by
increasing such percentage, cannot
be sustained.
22.
It
was also submitted on behalf of the appellant that the tribunal
failed to justify the awarding of 75%, as opposed to 20% in respect

of the respondent’s permanent disablement.  That
submission is closely connected to the further submission that the

tribunal erred when it accepted Dr van der Merwe’s evidence.
Counsel submitted that Dr van der Merwe dismally failed
to give
grounds for recommending a permanent disablement of 75%.
23.
The
submission is factually incorrect.  Dr van der Merwe testified
how the incident has impacted on the pre-existing disorders,
like
being bipolar and having a phobia for cockroaches and snakes, and how
the incident created new disorders, like anxiety and
stuttering.
Based on her present stabilised condition, Dr van der Merwe
compared the respondent with an employee
who has lost a leg, arm or
eye and determined her permanent disablement at 75%.  That
reasoning cannot be faulted, especially
if regard is had to the fact
that the appellant did not adduce any rebutting evidence.
24.
In
all the circumstances, the appellant failed to demonstrate that there
is reason to interfere with the tribunal’s finding.
The
appeal must accordingly be dismissed.  The general rule, that
costs should follow the result, should apply in the circumstances.
25.
In
the result, it is ordered that:
25.1.
The
appeal be and is hereby dismissed.
25.2.
The
appellant shall pay the respondent’s costs of the appeal.
____________________
G.
H. BLOEM
Judge
of the High Court
Roberson
J
I
agree:
___________________
J
M ROBERSON
Judge
of the High Court
APPEARANCE:
For
the appellant:                          Mr

M H Mhambi, instructed by The State Attorneys, Port Elizabeth and
Yokwana Attorneys, Grahamstown.
For
the respondent:                      Mr

M F Horn with Mr E Dyer, instructed by Mark Rossouw Attorneys, Port
Elizabeth and Whitesides Attorneys, Grahamstown.
Date
of hearing:                            3

December 2021.
Date
of delivery of judgment:        25
January 2022.
[1]
Compensation
for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993).
[2]
It will be assumed, rather than
found, in this appeal that the Director-General of the Department of
Labour duly delegated the
power to appeal to the Compensation
Commissioner.  Reference to Compensation Commissioner will
accordingly be reference
to the Director-General and
vice
versa
.
[3]
Ironing, which used to take an hour
before the incident, now takes her three hours to complete.
She generally works slowly
since the incident
.
[4]
Dr van der Merwe used the words
“grossly unjust”.
[5]
Counsel stated in the heads of
argument that “
the
fact that the respondent has suffered PTSD [arising out of in the
course of her employment] is not in dispute
”
and that he would confine himself “
to
what is purely relevant to determining the degree of permanent
disability, and the misdirection of the tribunal
”.
[6]
Odoyar v Compensation Commissioner
2006 (6) SA 202
(N) at par 17.

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