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In the tribunal of the pension funds adjudicator
IN THE TRIBUNAL OF THE PENSION FUNDS ADJUDICATOR
PRELIMINARY RULING IN TERMS OF SECTION 30J OF THE PENSION FUNDS
ACT OF 1956
This is a complaint lodged with the Pension Funds Adjudicator in terms of
section 30A of the Pension Funds Act relating to the fund’s refusal to admit the
complainant’s claim for a disability benefit. No hearings were conducted and
therefore in determining this matter, I have relied on the documentary evidence
and the investigation conducted, under my supervision, by my investigator, Lisa
The complainant was employed by Bay Motors CC as a spray painter in 1971
and simultaneously became a member of the Motor Industry Pension Fund (“the
In 1996, the complainant states that he was suffering from depression. He
consulted his psychiatrist, Dr George of Claremont, Cape Town, who diagnosed
him with dysthymic disorder and a major depressive episode.
On the basis that he was unable to continue his work as a spray painter due to
his illness, the complainant applied to the fund for a disability benefit in terms of
(a) If any MEMBER becomes, in the opinion of the BOARD through accident or ill-health
continuously and permanently unable to perform his normal work in the MOTOR
INDUSTRY, and he is not required to receive a benefit in terms of Rule 6(5), he shall be
a disability benefit which subject to the provisions of Rule 4(2), shall be equal to
twice his annual REMUNERATION at the date of disability; plus
the MEMBER’S total contributions in terms of Rule 5(1), plus any additional
contributions paid by him in terms of Rule 5(2), plus one twenty-fifth of such total for
each completed 12 months period that the MEMBER has contributed to the Fund.
(b) If any MEMBER has attained the age of 55 years he shall receive the benefits described
in sub-rule (5) hereof, subject to the provisions of Rule 4(2).
(c) If it is so wished, the benefit in terms of clause (a) of this sub-rule shall be paid in the
form of an annuity, the conditions of payment of which shall be determined by the
BOARD having regard to the wishes of the MEMBER. The actual amount of such annuity
shall then be determined by the Board having regard to the advice of THE ACTUARY.
Rule 6(5) thus confers a discretion on the Board to determine if a member is
continuously and permanently unable to perform his normal work in the motor
industry and accordingly entitled to a disability benefit in terms of the rules.
In terms of administrative law, although the very purpose of a discretion is to
allow the authority conferred with the discretion to arrive at its own decision, the
authority is still curtailed by the requirement that it exercise that discretion
properly and that it not fetter its discretion.
The question for determination is therefore whether the Board exercised its
discretion properly and did not fetter its discretion in declining the complainant’s
The complainant submitted two medical reports from Dr George and a report by
his employer in support of his application. Dr George’s report dated 26 May
The above presents with a history of chronic intermittent depression of several years
duration. He was first referred to me in February 1997 with symptoms of severe
depression associated with impaired energy, tiredness and insomnia.
I diagnosed dysthymic disorder and a major depressive episode and he has been treated
with Fluoxetine 20mg. Daily, Dormonoct 2mg. nocte and a period of extensive leave.
Despite treatment his depressive symptoms persist and I have changed his medication
In view of the chronic nature of his depressive disorder with a progressive deterioration,
the prognosis for complete recovery and ongoing productive employment is poor. Mr.
Tobin would like to apply to be boarded and I support his application on medical grounds.
The questionnaire dated 29 May 1997 completed by the complainant’s
MEMBER’S ABILITY TO DO ANOTHER JOB WITHIN
The fund referred the complainant’s claim to its medical consultants
(Medassess (Pty) Ltd) for further evaluation. Medassess relied on the
aforementioned report of Dr George, the employer’s completed questionnaire
and a discussion with its consulting Psychiatrist (in respect of whom no details
are provided) in coming to the following conclusion in its report dated 18 August
While Mr Tobin may currently be suffering from a depressive disorder, this cannot at this
point in time, based on the medical and collateral evidence in our possession, be
considered of such severity and permanence as to render continuous vocational
incapacity. Such a condition must at this point in time, be considered as an acute
psychiatric illness requiring intensive and ongoing pharmacological intervention and
psychotherapy for a reasonable period of time, rather than a chronic depressive disorder
unresponsive to maximised therapy resulting in permanent vocational incapacity.
Medassess is therefore of the considered opinion that he not qualify for benefits from the
Motor Industry Pension Fund and advise this claim be repudiated.
On receipt of the above report, the fund advised the complainant that his claim
had been denied. It is not clear whether the complainant was informed in writing
or telephonically and on what date he was so informed. However in response to
a letter dated 27 November 1997 addressed to the fund from the complainant’s
attorney querying the decision, the fund replied in a letter dated 2 December
The available evidence does not in our opinion substantiate that Mr Tobin is
incapacitated to the extent that he is totally and permanently disabled from performing
the requirements of his job as a Spray Painter.
Medassess concedes in its report that its conclusions as to the severity of the
complainant’s condition were based on the limited medical and psychiatric
evidence provided. It states in its report
Minimal information regarding the nature of his depressive symptomatology and the
extent to which these symptoms have in fact affected his general and vocational level of
It seems strange that the complainant was not requested to undergo further
medical examination on that account.
Moreover it seems that rather than conduct a thorough investigation into the
complainant’s condition, Medassess relied on the usual
with the complainant’s condition. The report reads in part:
Medassess would also like to emphasize that a depressive disorder is by its very nature
intermittent and characterised by periods of well being interspersed with periods of
The fact that a depressive order is usually intermittent is not conclusive in the
enquiry into whether or not the complainant’s
depressive disorder is intermittent
or continuous. It is well documented that depression is a relatively unknown
area in the medical field and therefore I would have thought it imperative that
each case be assessed on its own merits.
On the very question of the permanence of the complainant’s depressive illness,
Dr George’s report states that the complainant’s depressive symptoms are
persistent and that the prognosis for complete recovery is poor. However
Medassess does not canvass this medical finding at all.
Although the employer’s statement does not touch on the permanence of the
complainant’s condition, it does provide confirmation of the complainant’s
inability to perform his normal work due to his depressive illness. This goes
contrary to Medassess’s assertion that the available evidence does not
substantiate the complainant’s alleged incapacity to perform the requirements of
his job. Again, Medassess does not allude to the employer’s assertions in this
In light of the above, in arriving at the conclusion that the complainant was not
continuously and permanently incapacitated from performing his work as a
spray painter, Medassess must have either disregarded or rejected the available
medical evidence. Yet, other than a discussion with its own consulting
psychiatrist, Medassess did not investigate the matter any further by for
example requesting that the complainant submit to further medical examination.
This places a question mark over the reliability of the Medassess’s conclusions.
It should be stressed that this is not a criticism of Medassess. At the end of the
day, it was the Board’s decision whether or not the complainant fell within the
ambit of the definition of disability and accordingly qualified for the benefit and
not Medassess. I assume that the arrangement between Medassess and the
fund is that the fund provide Medassess with medical evidence and that the
latter is then required to provide the fund with an opinion based upon that
evidence. This is precisely what Medassess did.
However where Medassess specifically states that there is insufficient
information upon which to make a definitive finding regarding the complainant’s
condition, it is the responsibility of the Board to ensure that all relevant
information necessary to the enquiry of whether the complainant falls within the
ambit of the disability definition is obtained.
Yet there is no evidence to show that the Board applied its mind to the
complainant’s claim at all. On the contrary, it would appear that the Board
simply ‘rubber stamped’ the decision of Medassess which, as stated, did not
have sufficient medical evidence before it.
In light of the above, I am not satisfied that the Board has exercised it powers
properly. It failed to obtain all the necessary medical evidence, that is, failed to
take all relevant considerations into account in the exercise of its discretion and
furthermore fettered its discretion by failing to apply its own mind to the
complainant’s claim and by simply relying on Medassess’s report. Accordingly
the Board’s decision should be set aside on the grounds that it constituted an
improper exercise of powers and because it constituted maladministration
causing prejudice to the complainant.
However, as discussed, there is insufficient medical evidence to determine
whether or not the complainant qualifies for the disability benefit in terms of the
rules. It is therefore appropriate for me to make a preliminary ruling referring the
matter back to the Board for further investigation and medical assessment and
23.1 The decision taken by the respondent in or about August 1997 in respect
of the complainant’s claim for a disability benefit in terms of rule 6(5) is
23.2 The matter is referred back to the respondent for further investigation,
medical assessment and a fresh decision within 6 weeks of this
23.3 The respondent is directed to advise this tribunal and the complainant of
its decision within 7 days of the decision and to furnish all relevant
documentation and information in that regard.
23.4 The complainant shall be entitled to approach this tribunal on the same
papers, as supplemented, for appropriate final relief in relation to the
decision to be taken in paragraph 23.2 above, or in the event of the
respondent failing to take the decision timeously.
DATED AT CAPE TOWN THIS 11th DAY OF DECEMBER 2000.
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