STRESS TEST

For a third time, the high court has rejected a 20-year-old circular that’s been used to deny compensation to workers incapacitated by post-traumatic stress disorder

Acircular put out by the director-general of the department of labour in 2003 has twice been found unlawful by the high court. Yet officials are still using it to deny proper compensation to staff found to be unemployable because of post-traumatic stress disorder (PTSD).

Now, for the third time, the high court has rejected the circular and its punitive provisions in relation to PTSD. It seems long past time to ask why the discredited document is still being used in this case to disadvantage a warrant officer with 25 years of police service.

In January 2015, Trevor Ramanand was shot by men attempting to steal a car. Though his life was saved by a bulletproof vest, he has been unable to work since as a result of PTSD, despite attempts to overcome the disorder including electroconvulsive therapy and treatment by various specialists.

Finally, after five years of treatment, a psychiatrist confirmed his earlier diagnosis of PTSD and declared Ramanand permanently disabled, a finding supported by other specialists.

Ramanand brought a claim to the department of labour’s compensation commission under the 1993 Compensation for Occupational

Injuries & Diseases

Act (Coida). Giving no reasons, the commissioner assessed

Ramanand’s degree of permanent disablement at 39%. At the time he was shot, he earned just over

R25,000 a month, so the award meant his monthly pension would be R7,337.80 after the deduction of 25% tax.

Ramanand objected, arguing before the tribunal appointed to hear the matter that as the psychiatrist and other specialists had found him permanently disabled, he should be classified as 100% disabled.

The tribunal said the reports on Ramanand’s condition by various experts were not in dispute. But it unanimously held the 39% permanent disability finding was correct.

That outcome led to a high court challenge in which Ramanand’s legal team said the tribunal incorrectly interpreted the law. Further, the tribunal was wrong to have relied on the provisions of “Circular Instruction 172” as it conflicted with, and aimed to override, the law.

No status in law

Issued by the then director-general of labour and published in the Government Gazette in 2003, the circular’s ostensible purpose was to “clarify” the position in relation to compensation claims arising from PTSD: the compensation commissioner must regard permanent disablement and 100% impairment due to PTSD as “equivalent to 65% permanent disablement”.

In Ramanand’s case, the initial ruling was that the 100% disability found by the specialists should be reduced to 39%.

Three judges, in two separate cases, had already found the circular to be contrary to Coida. Now two more judges agreed, saying the circular has no status in law and that an injury leaving an employee 100% disabled cannot “by a diktat of the [directorgeneral] be transformed” into a lesser disablement.

The court said there was no dispute about the validity of the expert findings as to Ramanand’s 100% permanent disability as a result of PTSD, yet the tribunal confirmed the 39% finding without giving any reason for doing so. It wrongly “elevated” the circular to “something like a law” and simply ratified its application to this case.

The court found other problems too for example, that the tribunal said Ramanand appeared “a well-groomed, able-bodied person” who needed no help in following the proceedings. The tribunal should not have relied on physical appearance to uphold the earlier decision and discount the medical experts, said the judges.

The court agreed with counsel, who said the state and its organs have a duty to know the law and apply it properly but had not done so in this case, causing Ramanand the costs of an appeal.

It awarded punitive costs against the state and ordered that the commissioner change the initial award and inform the police and Ramanand’s lawyers of a “superseding” compensation award. This would take the form of a monthly pension, based on the salary level he was earning in 2015, with annual increases and interest, according to a level of disability measured at 100%.