Remitted to Magistrate for reference to a Medical referee

PLN. VERSAILLES Estate worker, Agnes Butters, who suffered a broken hand on duty and received medical and physiotherapeutic treatment was pronounced fit by a magistrate, without consulting a medical referee although the medical testimony was conflicting.
On appeal, the Full Court constituted by Chief Justice Bollers and Justice Akbar Khan, dismissed the appeal. The matter was remitted to the magistrate with directions to refer same to a medical referee under s. 34 (2) (1) of the Workmen’s Compensation Ordinance, cap. 111, and on receipt of the certificate of the said medical referee, to determine and adjudicate on the same according to law.

The facts of the case disclosed that on the 3rd September, 1963 the respondent fractured her hand as a result of an accident while in the appellants’ employ . She received medical and physiotherapeutic treatment and was pronounced fit on the 13th February, 1964.
She complained of continued pain and swelling in the hand and a further course of physiotherapy was ordered by the medical doctor, who in August again pronounced her fit. In April, 1965, she again returned to the doctor with the same complaint, and further physiotherapy was administered.

In the meanwhile, on the 16th January she had consulted another doctor who eventually concluded that her condition had become chronic and that she had suffered a 50 per centum permanent /partial disability. In August 1965, she was examined by another doctor who concluded that she was not suffering from any physical abnormality.
The magistrate concluded that she was 50
per centum permanently partially disabled.

HELD: In view of the magistrate’s failure to give any reasons for his conclusion and having regard to the conflict in the medical testimony, his omission to refer the matter to a medical referee, amounted to a failure to exercise judicially, the discretion vested in him under s. 34 of the Workmen’s Compensation Ordinance, Cap, 111.
Appeal allowed. Matter remitted for reference to a medical referee.
G.M. Farnum, Q.C., or the appellants.
B. O. Adams, Q. C., for the respondent.

JUDGMENT OF THE COURT: This is an appeal against a decision of a Magistrate of the West Demerara Judicial District, who made an award of compensation in favour of the respondent (the workman) under the provisions of the Workmen’s Compensation Ordinance, Cap. 111, in respect of an injury to her right wrist sustained on the 3rd September, 1963, when she went to dip water in a trench and fell on her right wrist in an accident which arose out of and in the course of her employment by the appellants (the employers) as a water fetcher.

The respondent’s monthly earnings at the time of the accident was $65.08, and she received compensation in the form of periodic payments in the sum of $414.80 covering a period from the 3rd September, 1963, up to 3rd September 1964. The appellants admitted that there was an accident which arose out of and in the course of her employment.
The evidence which was led in the Magistrate’s Court disclosed that the respondent, on the day in question, while working with the appellants as a fetcher of water at Pln. Versailles, Pouderoyen Section, went to dip water in a trench and fell on her right wrist and injured it.

The hand became swollen and painful. She was sent to the dispenser at Pln. Versailles who treated the hand with lotion. On the following day she was referred to the estate doctor, a doctor Gunn, who ordered an X-ray and later placed the hand in plaster of paris.
On the 21st of November, 1963 the respondent was referred to Dr. Stracey, a surgeon specialist at the P.H.G., who examined the hand and ordered another X-ray. As a result, the respondent’s hand was again placed in plaster of paris and on the 16th January, 1964, a course of physiotherapy treatment was ordered. On the 13th February, 1964, the respondent was discharged by Dr. Stracey and informed that she had regained excellent function of the hand. The hand continued to pain her and on the 13th April, 1964, the respondent returned to Dr. Stracey with a complaint that the hand was swollen and extremely painful. Dr Stracey treated the hand and ordered a further course of physiotherapy after which he strapped her wrist and discharged her. She was referred to the estate doctor, a Dr. Gunn, who ordered an X-ray and later placed the hand in plaster of paris. On the 20thAugust, 1964, she was found to be fit for work.

The respondent’s hand again started to swell and the pain continued. She returned to Dr. Stracey on April 1st 1965, who ordered another course of physiotherapy treatment. On the 29th April, 1965, the respondent was seen by another doctor as Dr. Stracey was not available, and he ordered a leather strap for the respondent’s wrist.
It is the respondent’s evidence that her hand did not improve and on the 9th August, 1965, she saw Dr. Bender who did not examine her and discharged her.
The respondent had also consulted other doctors and there was conflict in the medical testimony.
On this evidence, the magistrate found inter alia that the respondent’s pain and incapacity were due to the accident and as a result she was 50 % permanently incapacitated. He therefore entered judgment in favour of the respondent in the sum of $2,160, plus a further sum as periodic payment with costs.

The Full Court judgment concluded: In the result, we are of the view that the learned magistrate did not properly exercise his judicial discretion when he failed and/or refused to refer the matter to a medical referee on the application of counsel
And, for the appellants (employers) in the court below at the close of the employers’ case. This being a fit and proper case for such a reference, the conflict of medical opinion being of such a nature that only a medical expert would be able to appreciate and assess.
For these reasons the appeal is allowed and the order of the magistrate is set aside. The
matter is remitted to the magistrate with directions to refer same to a medical referee under s,34 (2) (1) of the workmen’s Compensation Ordinance , Cap. 111 and, on receipt of the certificate of the said medical referee, to determine and adjudicate on the matter according to law. Appeal allowed.