26 February 2016

Namibia: Supreme Court Dismisses Work Accident Claim

A former government employee who claimed his working life was cut short by an injury sustained in a workplace accident nearly 20 years ago is not entitled to accident compensation from the Social Security Commission, the Supreme Court has ruled.

In an appeal judgement written by Chief Justice Peter Shivute, the country's highest court has now found that former works ministry artisan Jan Jacobus Coetzee could not prove that a back injury which he claimed to have sustained while working in April 1996 had been the cause of his early retirement on medical grounds.

A workplace injury was not mentioned when Coetzee's discharge from the public service on medical grounds was approved in 2004; instead, a degenerative illness was cited as the cause of the disability which warranted his discharge, the Chief Justice noted in his judgement. He also noted that in 2000, when Coetzee first entertained the idea of applying for a discharge from the public service on the grounds of a disability, the opinion of a medical doctor who saw him then was that there were "no grounds for his disability status at work".

Coetzee claimed he injured his back when he fell from a ladder while repairing a roof on Possession Island off the southern coast of Namibia in April 1996.

Coetzee successfully appealed to the Labour Court after the Social Security Commission dismissed his claim for compensation in June 2005. In the Labour Court, a judge set aside the SSC's decision and ordered it to reconsider Coetzee's claim.

With the SSC having succeeded with its appeal to the Supreme Court against the Labour Court's decision, Coetzee's compensation claim has now been dealt a final blow.

Chief Justice Shivute commented in his judgement that Coetzee's claim with the SSC had been "punctured with inexplicable delays". The accident on Possession Island was reported to the SSC only in January 2005 - far outside the time limit of six months after an accident within which a workplace injury should be reported to the SSC in terms of the Employees' Compensation Act, the Chief Justice noted.

He also noted that in terms of the Employees' Compensation Act, the right to benefits that include compensation for a workplace accident lapse if an accident has not come to the notice of an employer within 12 months from the date of the incident.

He added that "in any case the medical evidence was doubtful at the very best" as to whether Coetzee was entitled to receive compensation.

According to the evidence before the court, Coetzee first consulted a doctor only two months after his fall from the ladder, while X-rays were taken only in July 1999 - more than three years after the incident.

The nature of Coetzee's degenerative back problem, combined with the failure to obtain medical evidence promptly after his fall from the ladder, means that it is very difficult to show that the condition of Coetzee's back was the result of an accident suffered in the course of his employment, Chief Justice Shivute said.

"In all likelihood, Mr Coetzee did indeed fall from a ladder in 1996, but the condition he suffers from now, as was documented in medical reports eight years later, was never shown to be an injury suffered in the course of employment," he stated.

The writing of the appeal judgement had initially been allocated to the third judge who heard the appeal, Acting Judge of Appeal Pius Langa, but he died before he could complete his judgement, the Chief Justice recorded.

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