Ramanand v Department of Labour Compensation Commissioner

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mossop J and Smart AJ
• Judgment Date: 14 April 2023
• Docket Number: AR 191/2022
• Hearing Date: 10 March 2023
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mossop J (SMART AJ concurring):

Introduction:

[1]

This is an appeal brought in terms of section 91(5)(a) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (the Act).

Representation:

[2]

When the appeal was argued, the appellant was represented by Mr Kruger SC and the respondent was represented by Mr Sibeko. Both counsel are thanked for the assistance that they provided to the court.

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Mossop J (SMART AJ concurring)

The accident:

[3]

The appellant is a former warrant officer employed by the South African Police Service (SAPS), who had served his employer for some 25 years before a catastrophic event befell him on 14 January 2015. Whilst he was on his way to serve a protection order, he and his colleague, with whom he was on duty, were informed by a member of the public that someone was attempting to interfere with a parked motor vehicle a short distance away from where they then were. The appellant and his colleague drove to the place described to him by the member of the public and observed two men near a motor vehicle. It appeared as if they were changing the number plate on the motor vehicle. The appellant alighted from his motor vehicle and challenged the two men. One of them produced a firearm and fired two shots at him. The first shot hit the appellant on his right upper abdomen and the second shot 'whistled past his ear' and hit the windscreen of the SAPS vehicle, shattering it.

[4]

According to the appellant, his life was saved by the fact that he was wearing a bullet proof vest, which assisted in absorbing the impact of the bullet that struck him. After attempting, but failing, to arrest his attackers, the appellant was taken to St Augustine's Hospital in Durban where he was treated for shock and a soft tissue injury to his abdomen. After receiving that treatment, he returned later that same day to his police station but was unable to function and was sent home. He ultimately never regained his functionality at work and in July 2016, the SAPS determined that he was unfit for further duties and his employment with it was terminated.

The appellant's condition and treatment

[5]

As a direct result of the events of 14 January 2015, the appellant sought further medical treatment after he was treated at St Augustine's Hospital. On 16 January 2015, he consulted with his general practitioner, who referred him to a specialist psychiatrist, Dr Vasavan Agambaram (Dr Agambaram). Dr Agambaram diagnosed him as suffering from Post Traumatic Stress Disorder (PTSD) and treated him for that condition. In February 2015, the appellant was admitted to the M-Care Private Hospital for treatment by a multi-disciplinary team, including therapy by an industrial psychologist, Dr A Moola.

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Mossop J (SMART AJ concurring)

[6]

The appellant did not respond well to the treatment that he received. Accordingly, in March 2015, he was admitted to Life St Joseph's Hospital for further treatment, which included a course of six electro-convulsive therapies. After his discharge from that institution, he returned to work on 1 April 2015. However, the symptoms that he experienced were exacerbated by his exposure to his former work environment and he managed only one day at work.

[7]

During October 2015, the appellant sought a further opinion on his condition and consulted with a different psychiatrist, namely Dr A T Barrett (Dr Barrett), who confirmed that he was suffering from PTSD. Dr Barrett noted that the appellant had no prior psychiatric history. She found him to be significantly impaired in his functioning and proposed that he be regarded as temporarily disabled for a period of six months to assess whether his condition would improve over this period.

[8]

During the same month, October 2015, the appellant saw an occupational therapist, a Ms D Pillay (Ms Pillay), who confirmed the diagnosis of Drs Agambaram and Barrett. She found that the appellant had been exposed to a traumatic event, namely the events that occurred on 14 January 2015. Ms Pillay investigated the appellant's work and medical history in some detail and ascertained that he had previously experienced a back problem which was unrelated to the symptoms that he was then experiencing. She also confirmed that he had no prior psychological complaint.

[9]

Ms Pillay prepared a thorough report on the appellant, comprising some 35 pages. He was subjected to a battery of tests by Ms Pillay. She ultimately found that there was a substantial limitation on the appellant's occupational functioning but given the recency of the stressful event relative to the date upon which she consulted with the appellant, she was not prepared at that stage to consider the appellant as being permanently disabled. She concluded that:

'It is evident that the client is afflicted with severe/extreme PTSD symptoms which are currently preventing him from adequate affective, cognitive, functional and occupational performance. It is unlikely that the client will be able to return to his former occupational performance in the short term. Prognosis for future independent skilled occupational performance within his

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Mossop J (SMART AJ concurring)

occupational field or an alternate field can only be ascertained only [sic] after a period of six months of intensive therapeutic intervention.'

[10]

Dr Agambaram, the specialist psychiatrist, also prepared a report on the appellant. In an opinion expressed in May 2019, Dr Agambaram described the appellant's prognosis as 'poor'. He concluded that the appellant had a 'total permanent disability' as a consequence of suffering from PTSD and that the appellant's condition was due to the result of the events on 14 January 2015, which he described as 'the accident'. In a further note dated 13 February 2020, Dr Agambaram stated that:

'The above has a chronic history of PTSD and is on medication. His dose has been adjusted accordingly. The above has significant social and occupational impairment. He is permanently disabled and is not able to work in the open labour market.'

This opinion was expressed approximately five years after the events of 14 January 2015.

The appellant's claim

[11]

As a result of his condition, the appellant lodged a claim with the respondent in terms of section 43(1)(a) of the Act, which is the successor to the Workmen's Compensation Act 30 of 1941.

[12]

On 28 August 2019, the respondent published a compensation award, without providing reasons despite a request for such reasons, in which it determined that the appellant's degree of permanent disablement was assessed at 39 percent.

[13]

At the time of the events of 14 January 2015, the appellant earned a salary of R25 088.48. As a consequence of the compensation award, the appellant would accordingly receive a monthly pension of R7 337.80.

The appellant's objection

[14]

The appellant lodged an objection to the award in terms of section 91(1) of the Act, which objection was heard by a tribunal (the tribunal) comprised of a presiding officer assisted by three assessors, one of whom was a medical assessor, who were appointed in terms of section 91(2) of the Act.

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Mossop J (SMART AJ concurring)

[15]

Before the tribunal, the appellant contended that he ought to be classified as 100 percent disabled in terms of schedule 2 of the Act and not merely 39 percent disabled.

The tribunal's proceedings and decision

[16]

The tribunal conducted its proceedings on the papers only and called no viva voce evidence. Indeed, it was, significantly noted by the tribunal that the parties:

'. . . agreed that it would not be necessary for the Applicant to give viva voce evidence as the facts contained in "Exhibit A" were common cause and not in dispute.'

Exhibit 'A' apparently comprised the documents relied upon by the appellant, which included all his expert's reports. The judgment went on further to record that:

'The Applicant provided reports by various experts, ie. Dr A T Barret [sic]; Devindree Pillay (Occupational Therapist) and Dr V A Agambaram all of which was accepted and undisputed by the Respondent.'

[17]

On 4 March 2022, the tribunal delivered the following ruling:

'It is therefore a unanimous decision of the tribunal that:-

1.

The calculation of the permanent disability of the Applicant at 39% is correctly calculated;

2.

The Applicant's objection is hereby dismissed with no order of costs.'

The appeal:

[18]

The dismissal of the appellant's objection has resulted in this appeal. Section 91(5)(a) of the Act provides as follows:

'(5) (a)

Any person affected by a decision referred to in subsection (3) (a), may appeal to any provincial or local division of the Supreme Court having jurisdiction against a decision regarding—

(i)

the interpretation of this Act or any other law;

(ii)

the question whether an accident or occupational disease causing the disablement or death of an employee was attributable to his or her serious and willful misconduct;

(iii)

the question whether the amount of any compensation awarded is so excessive or so inadequate that the award thereof could not reasonably have been made;

(v)

the right to increased compensation in terms of section 56.'

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Mossop J (SMART AJ concurring)

The issues on appeal:

[19]

The issues on appeal are relatively crisp. The appellant contends that he is entitled to be regarded as being 100 percent disabled in terms of the Act. [1] In support of this submission, the appellant's notice of appeal sets out various grounds on which it is alleged that the tribunal erred in confirming his disablement at only 39 percent. In broad terms, two principal grounds are relied upon: firstly, it is contended that the tribunal incorrectly interpreted the Act and secondly, that the compensation...