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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 45647/2013

DATE: 6 DECEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

ANTONIE BASEL POTGIETER……………………………………………Applicant

and

PENSION FUNDS ADJUDICATOR……………………………………Respondent

JUDGMENT

MOTHLE J

Introduction

1. This is an application for review. Anthony Basel Potgieter (“the Applicant'), unsuccessfully lodged an application for ill health benefits with a provident fund in the motor industry. The application was repudiated and he then appealed to the Pension Fund Adjudicator (“Adjudicator’), who upheld the repudiation. He now seeks an order that the decision of the Adjudicator to uphold the repudiation should be reviewed and set aside. The Applicant seeks further orders to the effect that he should be declared permanently and continuously unable to perform his work in the motor industry and that ill-health benefits be paid out to him.

2. The Adjudicator chose not to oppose the application and as such it was enrolled in the unopposed motion court.

Background

3. The Applicant is a member of the Motor Industry Provident Fund (“Fund”). Rule 6(4) of the Rules of the Fund provides thus:

“If a member, in the opinion of the board, through accident or ili-health has become continuously and permanently unable to perform his usual work in the motor industry, such a member may elect to retire at any time prior to the normal retirement age provided that a member’s disability shall not be permanent or continuous if he can be substantially removed by surgery or any other medical treatment which the member, with due allowance for the risk and prognosis of success of such treatment can reasonably be expected to undergo

4. In essence therefore an Applicant for disability benefit has to demonstrate that through accidental ill-health he has become continuously and permanently unable to perform his usual work in the motor industry.

5. The applicant states in his founding affidavit that he has been in the panel beating industry since December 1965. He qualified as a spray painter in 1969. In 1980 he worked as a spray painter at Auto Deal Panel Shop in Dundee. In 1995 he left his employment at the Auto Deal Panel Shop and opened his own business of panel beating in the name of Tinkies Body Works CC.

6. The Applicant further states that before 1999 he was in excellent health and led an active lifestyle. He never had any family history of heart disease, skin disease and arthritis or back problems.

7. The Applicant’s problems started in or during November 2004 when he suffered a heart attack. Three stents were inserted in his heart and he was advised by the cardiologist, Dr Pretorius that he was suffering from triple vessel disease. The following year in 2005 he began to experience severe lower back pain which according to him made it impossible for him to work. He consulted Dr Botha who referred him to a neurosurgeon, Dr Skeltima. The diagnosis of Dr Skeltima was that the Applicant was suffering from severe disc degeneration and a protruding disc, all of which necessitated surgery in order to perform a disc replacement and fusion. He underwent an operation on the 1^st June 2005. The Applicant was advised the following year on the 5 May 2006 by Dr Skeltima that he, the doctor, was of the opinion that the Applicant could no longer practice his trade without injuring his back further and that he should apply for disability benefits.

8. After lodging his application for disability benefit with the Fund, the Applicant was visited by Mrs M Naidoo, an Occupational Therapist, sent by the Fund. Her visit took place on the 30 August 2006. In her report, Mrs Naidoo concludes that the impairment suffered by Mr Potgieter is partial. She goes on further to state that the Applicant is fortunately able to overcome this with tasks adaptations as well as delegation of some of the manual aspects of his work to his employees. On 25 October 2006, the Applicant received notification from the Fund that his claim has been repudiated. He then approached an independent Occupational Therapist in the person of Mrs Smit, who assessed him on the 7 November 2006 and again on the 22 November 2006. Mrs Smith is of the opinion that the Applicant would not be able to perform his occupation as spray painter without compromising his long terms health.

9. Upon receipt of Mrs Smith’s report, the Fund approached a consultancy called SOMA, which compiled a report on the Applicant’s application for disability. The claim was re-assessed and again repudiated.

10. On the 28 June 2007, Drs Schwellnus and Botha compiled a report indicating that the Applicant had problems with his ankles, linked to the eczematous dermatitis. This ailment was apparently caused by the mixing of paints in an enclosed space as per industry regulations. Prior to that, the Applicant, in February 2007, began experiencing what he describes as an excruciating pain in the left ankle. He states in the affidavit that he could neither walk nor properly execute his tasks. His attending doctors referred him to Dr U K Dhanjee, an Orthopaedic Surgeon for treatment. Again the reports of Drs Schwellnus and Botha as well as that of Dr Dhanjee were submitted to the Fund in order for the fund to reconsider the repudiation of the claim for disability. On the 19 July 2007 the Applicant received a letter from the Fund again repudiating the claim on the grounds that his medical condition did not render him permanently and continuously incapacitated for normal duties.

11. The applicant was also referred to Dr Carman, a dermatologist, who opined that the applicant had developed “chronic eczema that is exacerbated by being in contact with highly irritating substances, namely isocyanides found in vehicle paint.

12. In 2010, the Applicant was again referred to one Dr Gounder, a specialist physician who stated in his opinion that the Applicant was suffering from reactive arthritis and that he should be examined for signs of scleroderma. On the 6 September 2010, the Fund once more rejected the claim. On the 11 October 2010, Applicant was assessed by occupational therapist Janine van der Hyde, who concluded that the Applicant was functioning at diminished capacity. The Applicant was further referred to a specialist dermatologist, Dr Z Mkhize, who concludes that the treatment which the Applicant receives for the skin condition is sub-optimal because of continuous exposure to spray paint and related chemicals. According to the Applicant, Dr Mkhize recommended that the Applicant be medically boarded.

13. The Applicant further alleges that he was advised by the Fund to refer the matter to a Pension Fund Adjudicator by way of appeal, of their decision.

14. The Adjudicator, after receiving copies of the medical reports and representations from both the Applicant and the Fund, concluded that the Fund’s repudiation of the claims was correct and that the Applicant’s claim for disability benefits does not comply with Rule 6 (4) of its rules.

15. It is the decision of the Adjudicator that the Applicant approaches this Court to have reviewed and set aside.

The law

16. The Adjudicator is empowered as follows by section 30E of the Pensions Fund Act 24 of 1956 (“the Act”) to deal with appeals:

“Disposal of complaints

1. In order to achieve his or her main object, the Adjudicator:

2. Shall, subject to paragraph (b), investigate any complaint and may make the order which any court of law may make;”

17. Section 30P of the Act provides thus:

"Access to court

3. Any party who feels aggrieved by a determination of the Adjudicator may, within six weeks after the date of determination, apply to the division of the High Court which has jurisdiction, for relief, and shall at the same time give written notice of his or her intention so to apply to the other parties to the complaint

4. The division of the High Court contemplated in subsection (1) may consider the merits of the complaint made to the Adjudicator under section 30A (3) and on which the Adjudicator's determination was based, and may make any order it deems fit.

5. Subsection (2) shall not affect the court’s power to decide that sufficient evidence has been adduced on which a decision can be arrived at, and to order that no further evidence shall be adduced. ”

(1) Evaluation of evidence

18. The Board of the Fund repudiated the claims by the Applicant on the basis of the opinions of medical experts as expressed in their reports. In essence, the opinions either conclude that the Applicant had diminished capacity to perform his usual functions on the one hand, while others present a prognosis that such diminished capacity would, if he continues to work under these conditions result in him being permanently disabled. Consequently, it is recommended that he should therefore be boarded.

19. The reasons of the Fund for the rejection of the Doctors’ recommendation are not stated. However, the Applicant is of the view that the board of the Fund as well as SOMA, was influenced by Mrs Naidoo’s report.

20. Of particular importance is the fact that the Applicant challenges certain factual statements contained in Mrs Naidoo’s report as an Occupational Therapist. Mrs Naidoo alleges in her report that the Applicant works in an office with air condition and is assisted by other workers. The applicant denies these allegations and attaches a letter from the owner of the building as evidence that the office in which he worked does not have an air condition. He further submits the person found on the premises when Mrs Naidoo came for an evaluation does not work for him. It does not appear on the record that either the Fund or the Adjudicator dealt with this aspect. If indeed there were factual inaccuracies in the report of the Occupational Therapists, then these would cast an aspersion or raise some doubt on the reliability of the opinion she expressed.

21. It is common cause that the nature of the proceedings in entertaining a claim is in the form of the board evaluating medical reports and taking a position. This is permissible in terms of the law. The board in fact is not obliged to hear any representatives before taking a decision. However, where there is a clear dispute of fact, it would be unwise in my view for any decision-maker to take a position on a matter without first resolving that factual dispute. It is vital that the decision must be based on accurate and not disputed facts.

22. The Adjudicator in paragraph 1.3 of his report states thus:

“1.3 After reviewing the written submissions it is considered unnecessary to hold a hearing in this matter. The determination and reasons therefore appear below."

23. The evidence placed before the Board of the Fund and later referred to the Adjudicator comprised expert opinions on the state of health of the Applicant. Some of the doctors are specialists in their field of expertise. Drs Schwellnus & Botha for example expresses a view that the Applicant’s condition is caused by an allergic reaction when mixing paint containing isocyanides. The mixing and applying paint on the motor vehicle is an activity which lies at the heart of his work as a spray painter.

24. The report submitted by SOMA to the Board seems to be based on the assessment of other expert reports including that of Mrs Naidoo, whose accuracy on factual content is disputed. The rules do not disqualify a member on the basis that there may be other people to assist him. The question whether there are or there are no employees to assist the Appellant with spray painting or he will be located in an air conditioned office, has no bearing on the determination of his condition.

25. It seems to me that neither the Board nor the Adjudicator subjected the experts’ opinions to a process such as oral hearing, to test the veracity thereof. I am unable to find any Adjudicator does not provide reasons for rejecting the recommendations of Drs Botha and Mkhize that the Applicant should be boarded. Though the doctors in their recommendations are not using the exact words as stated in Rule 6 (4) of the Fund rules, namely that “through accident or ill- health (the member) has become continuously and permanently unable to perform his usual work in the motor industry” in my view, the substance of their recommendations falls squarely within the ambit of this rule.

26. I am thus of the view that the Applicant’s condition of ill-health since 5 May 2006 has placed him in a situation where he has become continuously and permanently unable to perform his usual work of spray painting in the motor industry. The Fund has not demonstrated that this allergic reaction to paint can be removed by surgery. The applicant therefore qualifies for disability.

27. The decision or determination by the Adjudicator is thus reviewed and set aside. In terms of Section 8 (1) (d) the Promotion of Administrative Justice Act 3 of 2000 (“Pay'a”), it is declared that the Applicant, due to his ill-health, has become continuously and permanently unable to perform his usual work of spray painting in the motor industry since 5 May 2006 and he thus qualifies for disability. He has a right to compensation for that disability.

28. The Applicant has submitted that I should order the Fund to pay compensation. In terms of Section 30P (1) the Applicant is required to give written notice of his intention to apply, to the other parties to the complaint. There is no evidence that the Fund was notified of this application. I cannot therefore make any order against them as they were not part of these proceedings.

In the premises I make the following order:

1. This Application succeeds and the determination by the Adjudicator is reviewed and set aside.

2. In terms of Section 8 (1) (d) the Promotion of Administrative Justice Act 3 of 2000 (“Paja”), it is declared that the Applicant, due to his ill- health, has become continuously and permanently unable to perform his usual work of spray painting in the motor industry since 5 May 2006 and he thus qualifies for disability. He has a right to compensation for that disability.

3. No order as to costs.

S P Mothle

Judge of the Gauteng High Court

Pretoria

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