IN THE LABOUR COURT OF LESOTHO LC 63/07
HELD AT MASERU
In the matter between:-
ISAAC RAMATOBO APPLICANT
SECURITY LESOTHO (PTY) LTD RESPONDENT
Workman’s Compensation claim as a result of an accident - No dispute that the accident arose out of and in the course of employment - Initial assessment made by a Medical Practitioner as required by the law - Applicant appealing to the Workmen’s Compensation Medical Board against the initial assessment - Respondent alleging it had not been informed of the appeal and challenged its authenticity as it ended up with two conflicting assessments - It therefore denied liability - Court concluded that much as it was only proper that it be informed of the appeal, the applicant had every right to appeal to the Board and the fact that he was not informed prior to the assessment cannot vitiate applicant’s claim - Applicant’s claim is upheld.
1. This matter was initiated by the office of the Labour Commissioner in terms of Section 16 (b) of the Labour Code Order, 1992 but the applicant subsequently terminated its mandate, and engaged a new Counsel. The applicant has unfortunately since passed on on 28th March, 2010. His wife, `Makhotso Ramatobo applied for an order of substitution and it was granted.
2. The applicant is a former employee of Security Lesotho, the respondent herein. This Court is asked to determine a workmen’s compensation claim that arose as a result of an accident that occurred on or about 11th March, 2005. Relating the incident, the applicant averred that he was stationed as a Security Guard at Global Manufacturing Factory at the Thetsane Industrial Area, Maseru and whilst travelling with the Factory’s driver at around 0800 Hours in the evening, the driver hit a dog leading to the vehicle overturning and the applicant sustaining injuries.
3. The employer duly reported the accident in terms of Section 14 (1) of the Workmen’s Compensation Act, 1977 dated 14th July, 2005. Subsequently, the office of the Labour Commissioner computed the amount of compensation due to the applicant at Nine Thousand, Nine Hundred and Fifty - One Maloti (M9 951.00) assessed on the basis of twenty per cent (20%) permanent incapacity. Despite several reminders, the respondent failed to pay the amount of compensation due, wherefore the applicant approached this Court for its intervention in the dispute.
4. The respondent is denying liability. It does not deny that the accident arose out of and in the course of employment, but that the injuries sustained by the applicant were not so serious as to warrant any form of compensation. Secondly, it challenged the assessment arrived at, and argued that applicant’s injuries were initially assessed at zero per cent ( 0 %) compensation with a recommendation of two days sick leave, but to its surprise it subsequently received a claim of twenty per cent (20%) incapacity. The respondent pointed out that it found this anomalous and despite having raised its objections with the office of the Labour Commissioner, it never got any response. The respondent attached several letters to its opposing affidavit as proof of such communication. It therefore prayed that applicant’s claim be dismissed with costs.
AN ANALYSIS OF THE CASE
5. Workmen’s compensation claims are regulated by the Workmen’s Compensation Act, 1977 (hereinafter referred to as the Act). An assessment of compensation due to an injured, deceased, or a workman who has contracted an occupational disease is done by a Medical Practitioner. In terms of the Act, if anyone of the parties is not satisfied with the assessment made by the Medical Practitioner, he or she is entitled to lodge an appeal with the Workman’s Compensation Medical Board through the office of the Labour Commissioner. Section 18 (1) of the Act provides that:-
The Labour Commissioner may refer to the Board any dispute regarding -
7. As it is, the former assessment emanated from a Medical Practitioner whilst the latter dated 22nd August, 2007 came from the Medical Board. It emerged that the respondent was informed by the Workmen’s Compensation Section of the Labour Department in a letter dated 18th September, 2007, that applicant’s case had been referred to the Medical Board. The letter read:-
Labour Department - Wkmc
P.O Box 4512
RE: COMPENSATION CLAIM IRO ISAAC [RA]MATOBO
This letter refers to the accident which occurred on 11/03/05 in which the above named workman suffered injuries while on duty. Please note that he was referred to the medical board with respect to the injuries he sustained and the said board awarded him 20% incapacity. We hope that you find all in good order and settle this claim on or before 28/09/07.
Principal Labour Officer
Copies attached: Medical board report
LD form W/C 2
8. The respondent alleges that it was never informed of the appeal to the Medical Board and doubted the report’s authenticity. In all fairness to the respondent, it ought to have been informed of applicant’s intention to appeal against the initial assessment. It, however, appears from the above referenced letter that the respondent was aware of the report. Granted, it might not have been prior to the referral of the case to the Medical Board, but this cannot nullify the Board’s report.
9. As it turns out, the issue at hand does not seem to revolve on inconsistent claims as argued by respondent’s Counsel, but on the appeal that was lodged without respondent’s knowledge. It begs the question: who was to inform the respondent of the appeal? Whoever it was, the fact remains that the matter was finally referred to the Board and a fresh assessment made. Assuming he was not informed prior to the referral, can this vitiate the workman’s claim? Our answer is in the negative, the blame could perhaps be put at the Labour Department’s doorsteps but in our view it would be unfair to punish the applicant for an administrative error, negligence or oversight on the part of the Labour Department which he had no control over.
10. To us, the letter from the Medical Board appears authentic and was duly signed by the Board members. It was upon the respondent to adduce evidence to the contrary. The respondent failed to show why they doubted the authenticity of the Board’s assessment. Whilst acceding that the respondent ought to have been informed about the appeal as an interested party; we have no reason to doubt the authenticity of the Medical Board’s report. The applicant had every right in terms of the Act to appeal against the initial assessment made by the Medical Practitioner. The Medical Board’s assessment coupled with the letter from the Labour Department informing the respondent of the assessment made by the Board leaves us with no option but to conclude that the applicant is entitled to workman’s compensation following the injuries he sustained as a result of the accident that he incurred on 11th March, 2005.
The Court comes to the conclusion that:
THUS DONE AND DATED AT MASERU THIS 28TH DAY OF NOVEMBER, 2014.
PRESIDENT OF THE LABOUR COURT (a.i)
L.MATELA I CONCUR
M. MOSEHLE I CONCUR
FOR THE APPLICANT: ADV., LIKHOELI - M.J MOTS’OARI CHAMBERS
FOR THE RESPONDENT: ADV., THEBE PEETE - N.G THABANE CHAMBERS
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