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[2014] ZAGPPHC 355
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Van Der Westhuizen v Compensation Commissioner (A 319/08) [2014] ZAGPPHC 355 (13 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH DIVISION, PRETORIA)
NOT REPORTABLE
NOT FOR THE
ATTENTION OF OTHER JUDGES
REVISED: 12 (3)
2014
CASE NO.:
A.319/03
In the matter
between:
VAN DER
WESTHUIZEN S.J.
…..........................................................................................
APPELLANT
and
THE COMPENSATION
COMMISIONER
.......................................................................
RESPONDENT
CORAM: EBERSOHN
ET CAMBANIS AJJ
DATE APPEAL HEARD
29 AUGUST 2013
DATE JUDGMENT
HANDED DOWN: 13 MARCH 2014
JUDGMENT
EBERSOHN
AJ
:
[1] In this matter
the appellant appealed to this court against a decision of the
Presiding Officer employed by the Compensation
Commissioner after he
heard evidence and argument in proceedings in terms of the provisions
of the Compensation for Occupational
Injuries and Diseases Act, No.
130 of 19S3.(the “Act”).
[2] Section 22(1) of
the Act provides that:
“
If
an employee meets with an accident resulting in his disablement or
death such employee or the dependants of such employee shall,
subject
to the provisions of this Act, be entitled to the benefits provided
for and prescribed in this Act.”
[3] It is common
cause that on the 12
th
January 2007 the appellant had an
accident at work which resulted in him having to seek medical
treatment. At the time the appellant
was busy pushing a welding
machine when he slipped and fell backwards and landed on his buttocks
and lower back.
[4] It is also
common cause that on seeking medical treatment it came to light that
the appellant had pre-existing discus degenerative
changes and
narrowing as well as signs of previous epiphysis’s and Schmorl
nodes. (Report Dr. A.H. van den Bout, specialist
orthopaedic and
neuro surgeon on page 7 thereof).
[5] After the injury
on the 12
th
January 2007, the appellant was seen by a Dr.
Viljoen who referred him to Dr. Basson, an orthopaedic surgeon. From
his report dated
the 18
th
January 2007, it is clear that
the appellant had a pre-existing condition, however, that the
appeiiant had now also sustained a
secondary disk injury in the L4/5
and L5/S1 area, together with a muscle spasm. Dr. Basson tried to
treat the injuries conservatively.
After a while Dr. Basson
determined that the conservative treatment was not successful and
that immediate surgical intervention
was required. (Dr. Basson’s
report p. 7-9.1)
[6] The patient was
also referred to Dr. Louis J. Nel, an eminent spinal surgeon of
Pretoria, and his report was also put before
the Commissioner. The
relevant portion of his report reads as follows:
“
Hy
het erge degeneratiewe spondilose van sy lae rug vanaf die L1/2 tot
en met L4/5 vlakke, met spinale en foraminale stenose op
die L2/3 op
die L2/3 tot en met L4/5. Hierdie pasiënt gaan nie wegkom sonder
sjirurgie nie. Hy het my kom sien omdat hy nie
regkom met die
Ongevallekommissaris nie. Die pasiënt het definitief probleme
sekondêr tot die val. Dat hy onderliggende
spondilose gehad het
is so, maar enige trouma en hoe die pt. sy rug gebruik en misbruik
kan die probleem vererger. Hy werk reeds
4 jaar by sy werkgewer en
enige meganiese werk wat die pasiënt gedoen het, kon bydra tot
die probleem. Die graad is onbepaalbaar,
aangesien ons nie enige
ondersoeke voor die 4 jaar periode het nie. Ek hoop die saak sal
aandag geniet. Die pasiënt kan nie
tans in die toestand werk
nie, en wag vir die oopmaak van die saak om gehelp te .word deur Dr.
W.J. Basson en Dr. Daan de Klerk."
It is commion cause
that he did mechanical work for his employer.
[7] The claim of the
appellant to the Compensation Commissioner was rejected and the
appellant appointed attorneys and the proceedings
to have the matter
heard by a Presiding Officer of the Fund commenced. The matter came
before a Mr. Ndou and two assessors. The
appellant gave evidence and
detailed the circumstances of his fall and his previous work history.
He was cross-examined by the
chairperson, the two assessors, a Dr.
Smith who was the medical advisor to the commissioner and by a Miss
Mncanca, the representative
of the Compensation Commissioner.
[8] A Dr. Lekalala
was called by the Compensation Commissioner as a witness. She never
examined the appellant. She did not state
her qualifications and is
presumably a general practitioner. She is in the employ of the Fund
as claims adjudicator and examiner
checking that the Fund was not
defrauded and was not overcharged. She did not state her experience
in the field of orthopaedics.
The reports of the medical experts were
placed before the Commissioner as exhibits and the contents thereof
were not in dispute.
[9] She stated that
she did not know what operation the experts Drs. Nel, Van den Bout
and Basson had in mind. That is most surprising
for a medical doctor
not to deduce from the reports of the specialists being before the
Presiding Officer, that the were to operate
on certain of his
vertebrae. This court finds that her answer was untrue and intended
to prejudice the appellant.
[10] It seemed to
this court that once it was established by the Presiding Officer that
there was a pre-existing condition he and
his assessors closed their
minds to the fact that the pre-existing condition found to be present
in the appellant could have been
caused by the work the appellant did
at his place of employment as was stated by Dr. Nel and the other
experts whose reports were
before the Presiding Officer and that the
further incident on the 12
th
January 2007 caused a further
injury to an already affected back .
[11] It is clear
that the Presiding Officer misdirected himself. The court must point
out that it is not satisfied with the Presiding
Officer and the
medical adviser both being in the employ of the Fund. It gives rise
to all sorts of suspicions and most likely
it is a contravention of
the Bill of Rights.
[12] The appellant
raised six grounds of appeal.
[13] The first
ground is to the effect that the Presiding Officer erred in finding
that the issue at hand was whether the injuries
sustained by the
appellant entitled him to undergo surgery as recommended by his
doctors, the costs to be borne by the Respondent.
(Findings and
Reasons p.6). If an employee meets with an accident resulting in
injury, subject to the provisions of the Act, he
is entitled to the
benefits of the Act (s. 22 of the Act). There accordingly were no
grounds on which the Presiding Officer could
have dismissed the
claim.
[14] The second
ground is that the Presiding Officer erred in his interpretation of
s. 26. The special circumstances in s. 26(a)
and (b) may give raise
to a refusal but were not proven to exist where the clear evidence
was that the appellant fell and landed
on his buttocks and when,
according to the reports of Drs. Nel, Van den Bout and Basson, were
to the effect that the fall and the
injury and damage caused by it
was the cause of the proposed operation and despite all the attempts
of Dr. Lekalala, who is not
an expert, to play this down by stating
that the shock would have gone into the appellant’s legs, which
off course, was absurd.
[15] The third
ground is that the Presiding Officer erred in his interpretation of
s. 22 of the Act. He found that the appellant
duly met all the
requirements of an “accident” but despite that dismissed
the appellant’s case whereas the appellant
was entitled to the
benefits of the Act.
[16] The fourth
ground is that the Presiding Officer erred in his interpretation and
applicability of s. 29 of the Act. This court
is satisfied satisfied
that he erred.
[17] The fifth
ground is that the Presiding Officer erred in interpreting the facts
of the case and the conclusions drawn.
He stated that there was no
evidence suggesting that the degenerative changes of the lumbar spine
are as a result of a working
condition. He should have found that no
visible injuries were required according to the Act and the need for
surgery was a result
of an injury on duty. The Presiding Officer in
par. 6.3 on p 9 of his findings harped on the note by Dr. Viljoen
that the appellant
received therapy for back pain “some years
ago”. This the appellant denied under oath. Dr. Viljoen was not
called.
The Presiding Officer then speculates as to where the note
emanated from. The Presiding Officer on p 7 of his Findings tried to
belittle the medical report drawn on the 26
th
August 2003
by the medical doctor of the employer The Lion Match Company. In that
report the doctor stated
“
I
have examined Mr. S.J. vd Westhuizen and found him/her 1. Fit for
employment.
Position employed
for: Fitter.”
He was dissatisfied
as it was not stated what kind of medical examination was performed.
Logic dictates that it would have been
related to the whole body of
the appellant including his back as the doctor could not certify that
he was fit to be appointed a
fitter if the appellant’s back by
that time already played up and gave problems.
Anybody conversant
with the tasks of a fitter will know, and any medical doctor,
including Dr. Lekalala, that a fitter’s work
entails working on
his haunches, standing and bending his legs and all sorts of physical
movements with a lot of strain imposed
on the back of the fitter
including his legs. It therefore was not strange that his vertebrae
have deteriorated over the period
of his employment with The Lion
Match Co.. There is nothing sinister in the reports of the specialist
to wit Drs. Nel, Van den
Bout and Basson.
[18] Ground six is
just a general ground wherein reliance is placed on the first five
grounds of appeal.
[19] It is clear
that the appellant’s appeal must succeed with costs and in any
case he has satisfied the requirements of
s. 66 of the Act in so far
as it is applicable.
[20] The notice of
appeal was filed late as the transcription of the proceedings did not
come to hand timeously. In view of the
excellent prospects of success
with the appeal the condonation is granted.
[21]
The appellant asked for costs on an attorney and client scale against
the respondent based on the fact that the appellant’s
original
claim filed with the respondent was without good reason dismissed and
the appellant was compelled to incur legal costs
to obtain legal
representation and to bring the matter by way of a formal hearing
before the Presiding Officer. The appellant also
asked for costs with
regard to the appeal on the attorney and client scale. In view of the
errors committed by the doctor of the
Fund who originally refused the
claim and the errords committed by the Presiding Officer during the
hearing referred to
supra
the
costs will be granted on the attorney and client scale.
[22] The following
order is made:
1. Condonation is
granted for the late filing of the appellant’s notice of
appeal.
2. The appeal is
upheld and the order of the Presiding Officer is set aside and is
replaced by the following order:
a) The appellant,
Mr. S. J. van der Westhuizen, is found to have sustained an injury,
as a result of an accident whilst working
for his employer, in terms
of section 22(1) of the Occupational Injuries and Diseases Act, No.
130 of 1993 (the “Act”),
and that the appellant is
accordingly entitled to the full benefits provided for in the Act at
the expense of the Compensation
Commisioner.
b) The Compensation
Commissioner is ordered to pay the costs of the medical aid required
by the appellant in the past and in the
future, in relation to the
injury so sustained, which costs will include the costs for any
future surgical procedure or procdures
thereafter, including hospital
costs, and/or associated treatment, including physiotherapy treatment
required, that may be required
thereafter in accordance with the
provisions of the said Act.
c) The Compensation
Commissioner is ordered to pay the costs incurred with regard to the
hearing before the Presiding Officer, and
any ancillary costs, on the
scale of attorney and client.
3. The respondent is
ordered to pay the appellant’s costs of the Appeal on the scale
of attorney and client.
P.Z. EBERSOHN
A.J.
ACTING JUDGE OF THE
HIGH COURT
I AGREE:
CAMBANIS
A.J
.
ACTING JUDGE OF THE
HIGH COURT
Appellant’s
counsel Adv. E. van As
Appellant’s
attorneys Len Dekker & Associates
Tel. 012 346 8774
Ref. J.C. van der
Walt
Respondent’s
Counsel No appearance noted.
Rspondent’s
Attorney State Attorney
Tel. 012 309 1560
Ref. 2800/2008/Z8/MK
Mr. B E Mthimunye