The RAF v Duma, Kubeka, Meyer & Mokoena  ZASCA 169 (27 November 2012).
The Fund contended on appeal that the High Court should have held in each case that the issue whether the plaintiff had suffered ‘serious injury’ had not been determined by the method prescribed by the regulations and that the High Court should therefore not have awarded general damages.
In all four cases the RAF 4 form was signed by a psychiatrist, Dr Braude. In all four cases the Fund filed special pleas stating that the plaintiff had not complied with regulation 3 and that his or her claim for general damages was either not competent or premature. In all four cases the Fund subsequently rejected the RAF 4 by means of a letter from its attorneys. These letters were written at least one year after the RAF 4 form had been delivered to the Fund and very shortly before the commencement of trial.
In each case the RAF 4 was completed by Ms Marks an occupational therapist and signed by Dr Braude without him examining the patient, instead relying on the hospital records and other expert reports which in some cases were 7 months old.
The Fund contended in the High Court that the plaintiffs’ RAF 4 forms did not comply with regulation 3 because Dr Braude had failed to do a physical examination and Ms Marks was not a medical practitioner, the RAF 4 forms had been rejected by the Fund, and therefore the plaintiffs’ remedy was to declare a dispute with the HPCSA in terms of regulation 3(4); and that in the circumstances, the court could not entertain the claims for general damages.
The High Court did not agree and held the RAF 4 forms were in fact compliant with regulation 3 and it was apparent from the medical evidence that the plaintiffs did indeed suffer serious injuries.
Moreover, the Fund’s rejection was invalid because the Fund had failed to reject the RAF 4 forms within a reasonable time and its right to do so had therefore expired and secondly, since the Fund had given insufficient or invalid reasons for its rejection, it did not constitute a proper rejection.
The Appeal Court did not agree with the High Court’s construction that if the Fund should fail to properly or timeously reject the plaintiff’s RAF 4, such rejection can be ignored, if the medical evidence before the court then shows that the plaintiff was indeed seriously injured the court can decide the issue of general damages.
The Appeal Court held this approach to be fundamentally flawed as the legislature chose to confer the right to decide whether or not an injury is serious enough to justify an award of general damages on the Fund and not on the court.
The Appeal Court further held that any determination of the period within which the Fund should reasonably take that decision must depend on the facts of each case.
As regards the 2nd reason given namely that the the RAF 4 forms were rejected without proper reasons the Appeal Court held that the Fund’s decision to reject the RAF 4 forms constituted administrative action and until that decision was set aside by a court on review or overturned in an internal appeal, it remained valid and binding.
Additionally the court was asked to deal with the question of whether the RAF 4 forms in these cases met the requirements of regulation 3(1).
Must a medical practitioner physically examine the claimant for purposes of the assessment?
The honourable Judge found that regulation 3(1)(a) requires a medical practitioner to physically examine a claimant.
Can the assessment be done by an occupational therapist?
The short answer is no. The honourable Judge found that Ms Marks, who is an occupational therapist, did not qualify as a “medical practitioner”, within the meaning of regulation 3(1)(a), but rather as a “health practitioner”.
Can an assessment in terms of regulation narrative test be conducted without first performing the assessment in terms of regulation AMA guides?
The honourable Judge found that if one had a look at the contents of the RAF 4 form itself, which is incorporated in the regulations, it is of significance that paragraph 4, which deals with the AMA guides, contains the substance of the report. If paragraph 4 were to be left uncompleted, the report would be of little substance. The inference to be drawn from the contents of the report is that it was never intended that an assessment could bypass the AMA/WPI test.
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