- The court found that Tseke’s lumbar disc disease qualifies as an occupational disease under the Compensation for Occupational Injuries and Diseases Act (COIDA).
- Rand Mutual Assurance was unable to challenge the legal presumption that Tseke’s disease was caused by his work.
- The insurer has been ordered to assess his level of permanent disablement and cover his legal costs.
After years of rejected claims, Tseke David Tseke, a former underground coal miner, has established his entitlement to compensation for his back condition. However, the court has not yet determined how severe his permanent disablement is or how much compensation he will receive. That assessment still needs to be completed.
Tseke began training as a miner in 1998 and worked underground at Tavistock Colliery from July 2003. His duties included breaking coal with a heavy hammer, shovelling coal, clearing conveyors and travelling underground in a modified vehicle. His work also involved prolonged sitting, heavy lifting, repetitive movements and exposure to vibration.
Medical records showed a history of lower back pain dating back to 1999. In 2006, doctors diagnosed a lumbar disc herniation, with one doctor warning that heavy lifting, pushing and vibration could worsen his condition.
In June 2010, Tseke underwent surgery to remove the damaged L4/L5 disc and replace it with an artificial disc. He later returned to work but eventually left mining and was medically retrenched in March 2013.
Insurer rejected compensation claim
Rand Mutual Assurance received Tseke’s original compensation claim in November 2010 but rejected it in 2017, saying there had been no qualifying workplace accident. In January 2022, Tseke filed a new claim, arguing that his condition should be recognised as an occupational disease rather than an injury from a single incident.
The insurer rejected the claim again in February 2022. It maintained that the disc damage was more likely caused by a specific incident than by his exposure to workplace conditions over time.
Tseke challenged the decision. A tribunal held 11 hearings between March and August 2023 before dismissing his objection in a ruling dated 6 December 2023. However, the tribunal did not explain why it rejected his claim, prompting him to appeal to the High Court.
Tribunal failed to explain its decision
Acting Judge N Mzuzu and Acting Judge J Roos found that while the tribunal had summarised the evidence and arguments, it did not explain its findings or address the differing medical opinions.
The judges said tribunals must give reasons that allow affected employees to understand why their claims were rejected and decide whether to appeal. They also found that the tribunal had failed to properly consider the workplace risks associated with Tseke’s duties.
Workplace risks supported compensation claim
The judges determined that Tseke’s lumbar disc herniation qualifies as an occupational musculoskeletal disease under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The evidence showed that his work involved heavy lifting, repetitive movements, awkward postures, prolonged sitting and exposure to vibration.
The court rejected the insurer’s reliance on vibration measurements from 2012, finding that those readings did not reflect the conditions Tseke experienced earlier in his career underground. The judges also pointed out that vibration was not the only risk. Several aspects of Tseke’s job could have contributed to his back problem.
Under Section 66 of the Act, certain occupational diseases are presumed to have arisen from employment when the required workplace risks are established, unless the contrary is proved. The court found that this presumption applied to Tseke’s case and that Rand Mutual Assurance had failed to rebut it.
The judges therefore concluded that he had established his entitlement to compensation. However, they did not determine the extent of his permanent disablement because further medical and occupational assessments were needed.
Insurer must assess permanent disablement
The court set aside the tribunal’s decision and ordered Rand Mutual Assurance to obtain reports from a suitable medical specialist and a professional with experience in underground coal mining.
The reports must assess Tseke’s permanent disablement and explain the consequences of his condition in relation to his previous work. The assessment must be completed within six months of the order. The reports must be provided to Tseke and his legal representatives within 30 days of their receipt.
Rand Mutual Assurance was also ordered to pay his legal costs, including qualifying costs for expert witnesses.
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