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Labour Officer on behalf of Semi Tagilala v Fiji National University [2019] FJET 6; ERT WC 40 of 2016 (11 March 2019)



Decision


Title of Matter:
Labour Officer on behalf of Semi Tagilala
V
Fiji National University
Section:
Section 8 Workmen’s Compensation Act 1966
Subject:
Compensation in the case of permanent and partial incapacity
Matter Number:
Workmen’s Compensation Case No 40 of 2016
Appearances:
Ms M Faktaufon, Attorney General’s Chambers for the Worker
Mr R Gordon, for the Employer
Date of Hearing:
27 June 2018, 13 August 2018.
Before:
Mr Andrew J See, Resident Magistrate
Date of Decision:
11 March 2019

KEYWORDS: Section 8 Workmen’s Compensation Act 1964; Claim for Compensation; Compensation in case of permanent and partial incapacity; Arising out of course of employment. Meaning of “Injury by accident”.


CASES CITED:

Fiji Sugar Corporation Ltd v Labour Officer [1995] FJHC39; Civil Appeal No 0010 of 1994, 17 February 1995.

Labour Officer v Post Fiji Ltd [2017] FJET 3; ERT WC97.2016 (13 February 2017)

Raiwaqa Buses Ltd v Labour Officer [2011]FJHC174; HBA23.2008 (18 March 2011)

Travelodge Fiji Limited Suva v The Labour Officer for Karalaini Diratu [1994] FJHC 180; (9 December 1994)


Background

[1] This is an application for workers’ compensation arising out of a 30% medical impairment injury, suffered by Semi Tagilala, whilst in the employ of the Fiji National University (FNU). At the time of his injury, Mr Tagilala had been employed as a Training Officer with the Department of Construction Industry, National Training and Productivity Centre, FNU. The Worker had initially been employed at the Training and Productivity Authority of Fiji (TPAF) in 2006. That body merged with the National Training and Productivity Centre (NTPC) several years later, which in turn amalgamated with the FNU in 2016.

[2] The claim for compensation arises following a stroke suffered by the Worker around 3.00am on Saturday 20 April 2013, when Mr Tagilala had been home following what was claimed were two earlier stressful days teaching at work. It is a matter of record that the then Employer did not notify the Labour Office of the injury suffered by Mr Tagilala, in accordance with Section 14 of the Workmen’s Compensation Act 1964 and as such renders this matter one that will be considered by virtue of Section 13(b)(ii) of the Act. That is, that the waiving of the requirement for an Employer to be served a Notice of Claim within a 12 month period is permissible in circumstances where the Employer has failed to comply with the requirement of Section 14(1) of the Act and notify the Permanent Secretary of an injury to a worker[1].

The Evidence

Dr Voceduadua

[3] The first witness to give evidence on behalf of the Worker was Dr Voceduadua, a Consultant Physician from the Lautoka Hospital. Dr Voceduadua was shown a report that he had prepared on 16 April 2014[2], in which it had indicated that Mr Tagilala had been admitted to the hospital on 20 May 2013, where the records note:

[4] The medical witness confirmed that he had undertaken an assessment of the Worker, following stabilisation of his condition and had determined that he had suffered a 30% permanent impairment of the whole person, in accordance with the American Medical Association Guidelines to the Evaluation of Permanent Impairment. At the hearing, Dr Voceduadua confirmed his view as earlier provided within the report dated 23 September 2015, that “based on the above assessment and the history of his tension at work, Mr Tagilala’s sickness and his current disability is work related.[3]” Dr Voceduadua stated in his evidence before the Tribunal, that the Worker’s stress at work, combined with his known rheumatic heart disease, would have contributed to the clotting that gave rise to the stroke.

[5] During cross examination, Dr Voceduadua was referred to earlier medical records of the Worker, including a medical report provided by Dr Nasaroa of the Suva Private Hospital in 2006[4], where at that time, Mr Tagilala was diagnosed with chronic rheumatic heart disease with severe mitral stenosis, mild mitral regurgitation and atrial fibrillation. Dr Voceduadua acknowledged the proposition put by Mr Gordon, that rheumatic heart disease increased the risk of atrial fibrillation, that in turn could give rise to a heart failure or stroke. The witness was referred to a later medical report prepared by Dr Mai Ling Perman on 4 May 2008[5], following Mr Tagilala’s admission to the Lautoka Hospital after suffering a mild stroke in that year. It was conceded by the Witness and made clear within that report, that Mr Tagilala had not been taking the ‘blood thinner’ warfarin, that had been prescribed to him in 2006 as a risk measure to avoid a cerebrovascular event that most probably could have been avoided.

[6] Dr Voceduadua was asked by Counsel to clarify what had been relied upon, to make a conclusion that the onset of Mr Tagilala’s stroke in 2013, was in some way work related. In response, the Witness indicated because of reports that had been provided, the Worker had been engaged in both overtime and lengthy hours at work. It was conceded by Dr Voceduadua, that given Mr Tagilala suffered from several medical conditions that he would be at risk of suffering a stroke as he did. It was further acknowledged by the physician, that “maybe” even if Mr Tagilala had not been working at FNU at the relevant time, there was a chance that he would have nonetheless suffered a stroke. During re-examination by Ms Faktaufon, the medical witness reinforced that underlying stress and working conditions at the FNU, could have impacted on exacerbating any of the medical conditions that Mr Tagilala had suffered from, whilst a University employee.

Interposing of Dr Mai Lin Perman

[7] By agreement of the parties, the medical expert called by the Employer was interposed as a witness during the Applicant’s case. At the time of hearing, Dr Mai Lin Perman was a Consultant Physician and Assistant Professor at the CWM Hospital[6]. Dr Perman gave evidence that she first met the Worker in April 2008, after he had been admitted at the Lautoka Hospital having suffered a stroke. According to the witness, she does not recall ever seeing Mr Tagilala other than for that period in 2008. Dr Perman was asked to provide comment on the medical report prepared by Dr Voceduadua and she opined that the combination of atrial fibrillation and mitral stenosis would mean that the Worker was predisposed to a “blood clot to the heart” and this would account for the importance of restarting Mr Tagilala on warfarin.

[8] Dr Perman was shown the further report prepared by Dr Voceduadua dated 23 September 2015 and was of the opinion that if the Worker had been suffering from rheumatic heart disease and atrial fibrillation, that she saw no relevance to stress being the cause of the stroke that had occurred. When questioned by Ms Faktaufon as to the work performed by the Worker, Dr Perman could only state that she knew he was a teacher, but had no real knowledge of what it was that he actually did at work. Dr Perman restated that the Worker’s records showed he had not been to a clinic to oversee his case management since 2010 and had not been taking warfarin to reduce the risk of clots. The doctor concluded in her evidence, that it was highly unlikely that workplace stress was the cause of the stroke and that heart failure would have been the likely cause.

Mr Semi Tagilala

[9] Mr Tagilala commenced his evidence by explaining how he commenced work as a training officer in the FNU predecessor institutions. In his evidence, Mr Tagilala stated:

[10] In cross examination, Mr Gordon questioned the Worker commencing from his earliest employment periods and clarified within him that in 2006, his Employer engaged him, despite the fact that he had submitted to a medical examination where it was discovered that he was suffering from rheumatic heart disease[7]. The Worker was referred by Counsel to various performance management forms that were completed by the Training and Productivity Authority of Fiji[8] and conceded that they “(didn’t) indicate anything wrong with (him) and that he (could) carry out duties”. Relevantly during cross examination, Mr Tagilala stated:-

Ms Virisila Ratu, Investigating Officer

[11] Ms Ratu has been employed as a Labour Officer with the Ministry since 1998. In her evidence and cross examination, the Witness stated:-

Mr Rupeni Lewetuitovo

[12] Mr Lewetuitovo was at the relevant time, the Manager Technical Training within the Electrical Department, National Training and Productivity Centre, Western Division. The Witness gave evidence relating to his role as Manager Technical Training and also in relation to the training officers that he supervised. The Witness spoke of the challenges of looking after students involved in trade training, particularly given their diverse range of educational, learning and behavioural attributes. The Witness stated that with the merger of the Training and Productivity Authority of Fiji (TPAF) in 2009/2010, that there was “a lot of pressure to (justify) our existence- our jobs were at risk”. Mr Lewetuitovo said in relation to Mr Tagilala, that:

Mr Pramesh Chand

[13] Mr Pramesh Chand was called to give evidence on behalf of the Employer and told the Tribunal that he had commenced work with the Fiji National Training Centre in 2002 and was at the time of hearing, engaged in the role of Training Officer Carpentry, with the FNU. The Witness explained his current role and was referred to a position description by Counsel, to which he confirmed that the duties and tasks were accurately described[9]. Mr Chand told the Tribunal that he had earlier worked with Mr Tagilala when they were both apprentices in the 1990s and that they later worked together at the Training and Productivity Authority of Fiji (TPAF).

[14] Mr Chand gave evidence in relation to the demands of his role and painted a picture of a good job, with satisfying challenges and no real pressure. Mr Chand stated:-

[15] In cross examination, Mr Chand admitted to Counsel that he had known Mr Tagilala since doing their trade apprenticeships together; confirmed they would prior to 2013, meet six monthly and that he was not aware that his former counterpart and work colleague, suffered from rheumatic heart disease.

Mr Mafaga Solomoni

[16] The final witness to give evidence on behalf of the FNU, was Mr Solomoni, who was at the time of hearing, the Head of Training within the Electrical Department of the NTPC. According to the Witness, Mr Tagilala was under his direct supervision in 2008-2009, when Mr Solomoni had been working at Lautoka as the then Manager Training. The Witness stated:-


[17] The Tribunal at this juncture asked Mr Solomoni whether he had put in place any arrangement as a consequence of the fact that Mr Tagilala was suffering from a medical condition. In response, the Witness stated that he was not aware of any medical condition that the Worker had suffered from, only that Mr Tagilala was sick and absent from work.


Was Mr Tagilala a Workman for the Purposes of the Act?

[18] In a case of this type it is necessary to examine the elements that make up the claim for compensation. The starting point here, is Section 2 of the Workmen’s Compensation Act 1964 where it defines workman to mean:

any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, or otherwise, whether the contract is expressed or implied, is oral or in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month or any longer period:


Provided that the following persons are excepted from the definition of "workman":-


(a) a person whose employmenof s of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business, not being a person employed for the purposes ofgame or recreation and engaged or paid through a club;<


(b) an outworker;/p>

(c) a memberhe employer's familfamily dwelling in the employer's house or the curtilage thereof; or


(d) any cla pershom tnister mayr may, by order, declare not to beto be workmen for the purposes of this Acts Act.


[19] The Tribunal is satisfied that at the relevant time, Mr Tagilala was a workman for the purposes of Section 2.

Was the Respondent the Employer of the Worker ?

[20] Section 3 of the Act, reads:

"employer" includes the Government and any body of persons corporate or unincorporate and the personal representative of a deceased employer, and, where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person; and in relation to a person employed for the purposes of any game or recreation and engaged or paid through a club, the manager, or members of the managing committee of the club shall, for the purposes of this Act, be deemed to be the employer;


[21] There is no doubt and it is not an issue in dispute, that the Employer was captured by the definition at Section 3 of the Act.

Did the Worker Suffer a Compensable Injury?

[22] Section 5(1) of the Workmen’s Compensation Act 1964 provides as follows:

If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workmen, his employer shall, subject as hereinafter provided be liable to pay compensation in accordance with the provisions of this Act ....


[23] There are three requirements to satisfy Section 5(1) of the Workmen’s Compensation Act 1964.[10] These are:-

Did the Worker Suffer A Personal Injury by Accident?

[24] This is the first central issue to the analysis. As has been mentioned on many occasions, Pathik J in The Fiji Sugar Corporation Limited v Labour Officer[11] set out in detail what was to be meant by the expression “injury by accident”. Citing the 32nd Edition of Willis’ The Workmens Compensation Acts 1925 to 1938, his Honour referred to the passage within that text, where the definition of accident was considered at page 8 and it is stated:

The word ‘accident’ does not necessarily involve the idea of something fortuitous and unexpected as formerly held. ..it includes injury caused by overexertion in the ordinary course of employment...


[25] His Honour further referred to the case of Fife Coal Co Ltd v Young[12] where it was held by Lord Aitkin, that

It is necessary to emphasize the distinction between “accident” and “injury”, which in some cases tend to be confused... it is now established, however, that apart from external accident, there may be what no doubt others as well as myself have called internal accident (underline mine for emphasis)..... A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails while the man is doing his ordinary work, turning a wheel screw, or lifting his head. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity.


[26] And where in Fiji Industries Limited v Ateca Dretirewa[13] Ashton-Lewis J had stated:

Thus it would appear that the law has developed to the point where there is now no requirement that the event causing the injury is unexpected or not designed, it being sufficient that the injury itself (ie the heart attack) is unexpected or not designed by the worker.


[27] According to the medical records of the Lautoka Hospital, Mr Tagilala was diagnosed as having suffered a stroke and presented with left sided hemiplegia and atrial fibrillation on examination. There appears no dispute between the parties that the Worker had suffered a personal injury by accident.

Was the Worker’s Injury Arising Out of Employment?

[28] In Travelodge Fiji Limited Suva v The Labour Officer for Karalaini Diratu[14], Pathik J, sets out the relevant considerations when determining whether or not a worker suffered an accident arising out of employment. His Honour relied on Lord Sumner’s characterisation in L & YR v Highley[15] to apply the following test:

".... Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury.......

The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply."


[29] As the Applicants Written Submissions at Paragraph 53 correctly point out within Fiji Sugar, it matters not whether the event took place at home or at work and that:
No burden lay on the (Labour Officer) to prove that the deceased was suffering from a heart disease prior to his death. Evidence that the manual work he was engaged in would not, as a rule trigger a heart attack in a normally healthy man would only provide bases for inference. The burden on the (Labour Officer) was to show that the heart attack occurred during the course of his employment and that the work he did was a contributing factor

[30] The same approach should be adopted, whether a Worker suffers a permanent impairment as opposed to death. As long as it can be shown that the employment was in some way a contributing factor, then this second limb would be satisfied. The medical opinion of Dr Voceduadua that was given in September 2015, where he had earlier assessed the Worker in August 2013 and later in April 2014, was that his “sickness and current disability is work related.” Whilst it is true that Dr Perman had provided a medical report on 4 May 2008, pertaining to the first stroke suffered by Mr Tagilala, there is nowhere within that document that she canvasses any issues pertaining to his work and whether in any way that it contributed to that first event. In fact all that Dr Perman said at that time, was that “he may return to his normal duties as a teacher but need(s) to be followed up closely”. Ten years later, Dr Perman’s evidence at trial, was that it was highly unlikely that workplace stress was the cause of Mr Tagilala’s stroke in 2013 and that heart failure would have been the likely cause. Dr Perman nonetheless rejects outright the possible impact of any workplace stress whatsoever and this seems somewhat of any oversimplification, particularly where the impacts of workplace stress on the human condition have been reported widely in the literature for many years and also specifically in relation to such issues as atrial fibrillation.[16] The direct evidence of Dr Voceduadua, having examined the Worker twice following the second stroke, is preferred to that of Dr Perman. Dr Voceduadua’s evidence appeared more realistic and open to possibility that in some way, work may have been a contributing factor to the second stroke that took place. Dr Perman on the other hand, seemed somewhat dismissive of the fact that a worker suffering from several medical conditions and who returned to work following a stroke in 2008, would require any special modification to duties, physical demands of his job or special monitoring by his Employer to ensure that he was still fit to undertake his work, in such a case. Such a view is completely at odds with occupational health and safety management.

In the Course of Employment

[31] In Travelodge, Pathik J stated:

The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are:


(a) the accident must have occurred during the employment of the workman and

(b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do"


[32] The Tribunal is satisfied that there has been an exacerbation of the medical condition of the Worker that is a direct consequence of his employment and his performance of his employment. The evidence of Dr Voceduadua is that the Worker was suffering from stress as a result of the performance of his duties. These were duties that formed part of the ordinary work of Mr Tagilala. There is no dispute that he was undertaking the tasks that he claimed to have performed as a training officer. This is sufficient to meet the third limb required in such cases. As such, all three limbs required to establish a claim are satisfied. As a result of the above and having regard to the formula set out within Section 8 of the Act at the relevant time, the Worker is entitled to compensation in the amount of $24,000.00[17]. That figure will be adjusted to have regard to inflationary movement effective from the date of claim on 11 May 2016, at the rate of 5% per annum, creating an all up amount of $27,561.00

Other Issues

Medical Retirement Under the Terms of Employment

[33] There are several other issues that need to be addressed. Firstly, there was a running theme within the case of the Employer, that the claim for workers compensation has come about as some sort of ‘last resort’, where Mr Tagilala had otherwise failed to secure ongoing leave without pay from work, or where he not been successful in securing a retirement from the University on medical grounds. There is insufficient information before the Tribunal in relation to this issue, though it would seem that on 13 February 2014, the “Manager People Personnel Services” wrote to the Medical Superintendent of the Lautoka Hospital requesting a medical report in order that Mr Tagilala could retire on medical grounds[18]. On 21 February 2014, a Ms Tekina on behalf of the Medical Superintendent wrote to the University and advised that requests for medical reports of that type needed to be made to the Permanent Secretary for Health and accompanied by a $230.00 fee[19]. In response to that correspondence, the University wrote to the Medical Superintendent on 7 March 2014 and advised that a medical report would be no longer required as the University had accepted the Worker’s resignation.

[34] It is hard to ascertain based on the lack of discussion in this regard, whether the Worker was deprived of any entitlements, as a result of the failure by the University to have him retire on medical grounds. This is an issue that should be considered by Counsel for the Attorney General’s Office, in light of the factual backdrop of this case. If it was the case that additional benefits arose out of that type of termination, these should be pursued expeditiously.

Occupational Health and Safety Considerations

[35] The second issue that warrants some brief comment, pertains to the apparent lack of appreciation that the Employer has for the health and safety of this particular former employee. In this case, the Employers records clearly show that they were aware of the fact that Mr Tagilala suffered from rheumatic heart disease and atrial fibrillation, as early as 2006. These same personnel records, must have also shown that the Worker had suffered a stroke in 2008. The fact that his direct manager in 2008-2009, Mr Solomoni, was not aware of the situation, provides a very sad reflection on the importance of such matters to the organisation. Mr Solomoni was of the view that workers “should be able to take it in their stride”. There was no evidence following the stroke that Mr Tagilala had suffered in 2008, that the Employer had sought to review the physical demands of the work that the Worker performed, there was no modification to his duties and no special monitoring of his ongoing physical capacity to perform the demands of his job safely and without risk to himself or others.

[36] It is hard to fathom how a learning organisation could accept the apparent view, that a Worker who had suffered a stroke, would require no special monitoring or ongoing evaluation regarding his continuance in the role. Of course, the Worker has responsibilities in this regard and the evidence was that he on two occasions had failed to either attend health clinics or to keep taking the various prescription medication, such as warfarin that he was required to take in order to best manage his conditions. In his evidence, Mr Tagilala spoke of the costs of medication and the Tribunal accepts that for a family man who was supporting four children, that there would be occasions where such choices as to where to devote limited family income, are hard ones to take.

[37] At various stages, the Employer has suggested that the failure of the Worker to maintain the taking of warfarin for example, amounted to a serious and wilful misconduct for the purposes of the exclusions provided for compensation at Section 5 of the Act. The Tribunal rejects that attempt to give such conduct such meaning. The language within that provision appears designed to meet issues such as deliberate and reckless misadventure or where there has been a wilful disobedience of an employers (not doctors) orders. It is nonetheless noted that the Tribunal is provided within Section 5, the capacity to exercise its own discretion in such cases and on this occasion, it intends to do so, as it finds no such serious and wilful misconduct.

Failure of the Employer to File Final Submissions

[38] There is one final issue that the Tribunal wishes to canvas and that is the matter of the Employer’s failure to file Closing Submissions. As indicated at the beginning of this decision, a Directions Order was issued to the parties on 29 August 2019, requiring the filing of submissions. At best, the Employer’s submission were required to be filed by no later than 25 October 2018. The following records of the registry staff reveal:

[39] As at the time of the writing of this decision, no submissions have been received. Directions issued by the Tribunal are not discretionary and something for Counsel to prioritise based on what other matters they may wish to take on either before, during or after the trial. There was absolutely no attempt by the law firm to make an application for an extension of time, nor any demonstration of any urgency to fulfil the requirements of the Order, so that a worker who was injured in 2013, could have some closure to his case. This is quite perplexing, as this same law firm requested and were granted a vacation of hearing dates in May of last year, when the Managing Partner who was then in carriage of the case, was unavailable to appear in the matter due to the need to provide support and care for a family member, who himself was suffering from a medical condition. In cases of this type, it would be useful if lawyers demonstrated a level of empathy for injured workers, that they themselves would otherwise wish afforded to them. The give and take and the respect afforded in such cases, should not be taken for granted. This blatant disregard for the Directions of the Tribunal is completely unacceptable and highly discourteous. To suggest that between two lawyers, that neither could complete Closing Submissions in this case, for a period of five months is simply unacceptable and shows a complete disregard for the functions of this Tribunal, the reputation of the Employer and the rights of the Worker to have his case concluded in a timely manner.

Decision

[40] It is the decision of this Tribunal that:-

Description: fijicoatofarms1


Andrew J See

Resident Magistrate

[1] The Employer should have been aware of that statutory requirement and made no inquiry of the Labour Officer given the circumstances of this case, whether it would be required to notify the injury in accordance with Section 14 of the Act.

[2] See Tab 2 of the Applicant’s Disclosures filed on 10 June 2016.

[3] See Tab 4 of the Applicant’s Disclosures filed on 10 June 2016.

[4] See Folio 10 of the Respondents Bundle of Documents filed on 7 May 2018.

[5] See Folio 22 of the Respondents Bundle of Documents filed on 7 May 2018.

[6] See Curriculum Vitae tendered as Exhibit R 2.

[7] Note Exhibit R5, a letter to the General Manager Technical Training dated 6 March 2006.

[8] See Exhibits R6 and R7.

[9] See Folio 14 within the Respondents Supplementary Bundle of Documents filed on 13 August 2018.

[10] Raiwaqa Buses Ltd v Labour Officer [2011]FJHC174; HBA08 (18 March 2011)

[11] [1995] FJHC 39; Hba0010j.94b (17 February 1995)

[12] (1AER HL 85 at 91

[13] (Civil Appeal 15/92)

[14] [1994] FJHC 180

[15] (1917) AC 352 at 372

[16] See for example, The Association between Job Strain and Atrial Fibrillation: Results from the Swedish WOLF Study in Biomedical Research International @ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4628762.

[17] See calculations set out within Tab 7 of the Applicants Disclosures as filed on 10 June 2016.

[18] See Folio 31 of the Respondent’s Bundle of Documents filed on 7 May 2018.

[19] See Folio 32 of the Respondent’s Bundle of Documents filed on 7 May 2018.

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