Supreme Court
Inferior Court Appeal No. 15 of 1978
16th May, 1980
Moe, C.J.

Mr. Denys Barrow, for the Appellant

Workmen's Compensation Ordinance - Respondent sustaining personal injuries during the course of his employment with the Appellant - Respondent failing to see medical doctor to certify Respondent's extent of disability at request of Appellant - Appellant refusing to pay Respondent any compensation for the injuries because of Respondent's failure to see medical doctor - Whether Respondent had a duty to submit to medical examination - Section 19 of Workman's Compensation Ordinance - Effect of a refusal or failure to submit to medical examination at the request of the employer - Section 18(4) of the Workmen's Compensation Ordinance - Requirement that the request to the employee to submit to medical examination and refusal by employee to submit examination must be reasonable - What is reasonable to be determined by the facts - Medical certificate submitted by Respondent - Whether inconsistent with the definition of "incapacity" - Section 2 of the Workmen's Compensation Ordinance - Definition of "partial incapacity" and "total incapacity" - Respondent's injuries resulting in permanent partial incapacity - Computation of compensation due to Respondent - Section 8 of the Workmen's Compensation Ordinance.

J U D G M E N T

The Respondent applied to the magistrate for the Belize Judicial District seeking an order that the Appellant pay him $879.00 compensation, which the Appellant was liable to pay him under the provisions of the Workmen's Compensation Ordinance 1959, (hereinafter referred to as "the Ordinance"). The magistrate found that the Respondent was employed by the Appellant as a welder at $1.50 per hour. On the 25th April, 1977 during the course of his employment with the Appellant, the Respondent sustained injuries and the Appellant himself took the Respondent to the Holden Memorial Hospital where he was admitted. The Respondent was discharged on the 2nd May, 1977 and attended clinics until the 18th May, 1977 when he was issued with a final certificate by a doctor. When the Respondent presented the certificate to the Appellant, he paid him a half week's wage and requested the Respondent to see another doctor as he was not satisfied with the doctor's certificate. The Respondent received two further half week's wages, but did not see another doctor and the Appellant refused to pay compensation.

2. The magistrate found that the Appellant was liable to pay compensation and ordered him to pay the amount of $769.50. The Appellant appealed on the grounds: - (i) the magistrate took extraneous matters into consideration; (ii) the decision could not be supported having regard to the evidence; (iii) the decision was erroneous in point of law; and (iv) the decision was based on a wrong principle. He however confined himself to two submissions:- firstly, that the magistrate erred in holding that the Appellant was liable to pay compensation, since the Respondent refused to subject himself to medical examination at the request of the Appellant, and secondly, that the medical certificate is inconsistent with the definition of incapacity as contained in section 2 of the Ordinance.

3. It was contended that since the workman was receiving payments when the Appellant requested the medical examination, section 19 of the Ordinance applies. That section provides:- "Any workman receiving periodic payments under the Ordinance shall, if so required by the employer, from the time to time but at reasonable intervals, submit himself for examination by a medical practitioner provided and paid by the employer and the provisions of section eighteen shall apply to such examination."

4. The Respondent was in receipt of payments amounting to 50% of his wages. Although it is not clear from the record whether the payments were made at regular pay intervals, the Respondent was being paid in respect of the rights conferred upon him by the Ordinance, or in other words because of the Appellant's liability under the Ordinance. Section 19 of the Ordinance is therefore applicable.

5. It is then laid down in section 18 (4), (which provision applies to examinations requested under section 19) as follows: S. 18 (4) "If the workman refuses or willfully neglects to submit himself to such examination or in any way willfully obstructs or unnecessarily delays such examination, his right to compensation and to take or prosecute any proceedings under this Ordinance in relation to compensation, shall be suspended until such examination has taken place."

6. What must be imported into these provisions, sections 18 and 19, is the concept of reasonableness. Both the request by the employer that the workman submit himself for medical examination and the refusal by the workman to submit must be reasonable according to the circumstances.

7. The matter, therefore, to be determined is whether the refusal by the Respondent to see another doctor as requested by the Appellant was reasonable in the circumstances, (which is bound up with the question whether the request for medical examination was reasonable). As was pointed out in Morgan v. Dixon (1912) A. C. 74, the question whether or not one side or another has acted reasonably in a particular case is a question of fact in that particular case.

8. In this case, the magistrate found that the Respondent had not refused to be examined medically. The evidence is that about 4 days before the employer's request, the workman was medically examined and issued with a certificate as to his final condition resulting from the accident. The employer requested the workman to submit to a medical examination because he was not satisfied with the medical certificate. The workman declined to see another doctor because he had already got a certificate from a doctor to whom the Appellant had taken him. The magistrate held that it would be unjust to send the Respondent fishing for another assessment hopefully more beneficial to the Appellant's pocket. The magistrate had evidently applied his mind to the question of reasonableness and it has not been shown that he had applied the principle wrongly. There being evidence on which he could come to his finding, this court cannot distend that finding. The appeal, therefore, fails in respect of the first submission.

9. I turn now to the second submission that the medical certificate is inconsistent with the definition of incapacity as contained in section 2 of the Ordinance. Section 2 (1) of the Ordinance provides a definition of "partial incapacity" and "total incapacity" as follows:-

" "partial incapacity" means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the incapacity, and where the incapacity is of a permanent nature, such incapacity as reduces his earning capacity in every employment which he was capable of undertaking at that time: Provided that every injury specified in the First Schedule shall be deemed to result in permanent partial incapacity;

"total incapacity" means such incapacity whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such incapacity: Provided that permanent total incapacity shall be deemed to result from the permanent total loss of the sight of both eyes or from any combination of injuries specified in the First Schedule where the aggregate percentage of the loss of earning capacity, as specified in the First Schedule against those injuries, amounts to one hundred per centum;".

10. The medical certificate given by the doctor disclosed as follows:- Question - Is he permanently disabled? Answer - Yes. Question - If so, what percentage? Answer - 15% total. As a consequence it was argued (a) that the doctor had certified that the workman suffered total incapacity which would not be in accordance with the definition of total incapacity; and (b) that according to the Ordinance and the evidence the Respondent could only have suffered permanent partial incapacity.

11. The first limb of this argument is not accepted. The doctor certified by his answer to the first question permanent incapacity and by his answer to the second question, that the percentage of incapacity was 15%. On the basis of the certificate, it was open to the magistrate to find that the Respondent suffered permanent partial incapacity. It is from this point of view that the second limb of this submission is accepted. The extent of that incapacity was 15%.

12. The amount of compensation payable to the Respondent is to be computed in accordance with section 8 of the Ordinance which provides: "Section 8 (1) Subject to the provisions of this Ordinance, the amount of compensation shall be as follows, namely:-(c) where permanent partial incapacity results from the injury - (ii) in the case of an injury not specified in the First Schedule, such percentage of the compensation payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury. By section 8(1) (b) where permanent total incapacity results from the injury - in the case of a minor, (which the Respondent was) a sum equal to 108 months' wages with a minimum of $3,650.00 and a maximum of $7,300.00. In accordance with these provisions the Respondent is entitled to $1,095.00 compensation and the magistrate so found. He made certain deductions for the periodic payments made. But there is no complaint about his calculations.

13. In the result, this appeal is dismissed.

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