REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CA No. 83A of 2000
BETWEEN
SUPER INDUSTRIAL SERVICES LIMITED
								Appellant/Respondent
AND
ENRICO PENCO
								Respondent/Applicant
PANEL:
	S. Sharma, C.J.
	R. Nelson, J.A,
	W. N. Kangaloo, J.A.

APPEARANCES:
	Mr. G. Raphael for the Appellant.
	Mr. M. Quamina for the Respondent

DATE DELIVERED: 26th January 2005

I have read the Judgment of Kangaloo J.A. and I agree with it.

S. Sharma
Chief Justice

I too have read the Judgment of Kangaloo J.A. and agree with it.

R. Nelson
Justice of Appeal
Judgment

Delivered by W.N. Kangaloo. J.A.
1.	This appeal raises one issue.  It is whether on the evidence led before the Commissioner for Workmen’s Compensation (The Commissioner), the respondent had proved on a balance of probability that the accident, which occurred while he was at work, caused the injury he suffered.

2.	The facts are largely undisputed.  On the 26th November 1993 the respondent was at work as a bagger operating a machine at the appellant’s workplace, when he struck his head on a steel H-beam so violently that his safety helmet cracked and he fell to the ground where he felt dizzy and “saw stars”.  His evidence is that he resumed work one week after, but the pains, which he experienced at the time of the accident in his head and to the back of both eyes, intensified and he was unable to work after the first week in December.  On the 30th December, as a result of the severe pains he went to the San Fernando General Hospital where he was warded and underwent an emergency operation on the following day for the removal of the lens from his right eye.  His pains continued until September 1994 when he was again operated upon, this time for the removal of the lens in the left eye, at which time the pains subsided.

3.	The Commissioner held the appellant liable and ordered it to pay to the respondent the sum of $46,080.00 as compensation for the 60% permanent partial disability of the respondent.

4.	The appellant has appealed that decision on the ground that there was not sufficient evidence upon which the learned Commissioner could find that the loss of the lenses sustained by the respondent was as a result of the accident which occurred on 26th November 1993.

5.	The simple question therefore, is whether there was evidence before the Commissioner upon which it was reasonable for him to come to this conclusion.  The ratio decidendi of the Commissioner’s decision is to be found in the following paragraph of his reasons:
“In this Commissioner’s respectful view all the literature stated that “trauma” would cause subluxation.  The literature produced by Dr. Deo Singh did not state that it was only trauma to the eye which would result in subluxation and, he had not examined the applicant with respect to the cause of the subluxation.  Further, there was no evidence of any medical history of eye injury suffered by the applicant before the accident on 26th November 1993.”

6.	I find upon a perusal of the evidence that this conclusion of the Commissioner was reasonable, based on the evidence before him.

7.	The applicant called two medical practitioners on his behalf viz. Dr. David Toby, an Orthopaedic Surgeon and Dr. Robert Crichlow, an Opthamologist, while the appellant called Dr. Deo Singh, an Opthamologist to testify on its behalf.  Curiously Dr. Anirudh Mahabir, the Opthamologist who performed both surgeries on the respondent was not called by either party to testify, but reliance was placed by the appellant on an opinion contained in a medical report of this doctor.  Suffice it to say, that all of the evidence of Dr. Toby as well as the examination-in-chief of Dr. Crichlow, was to demonstrate that the respondent did not suffer from Marfan’s Syndrome which is a connective tissue disorder affecting the eyes, the head, and the spine and chest wall.  What the respondent suffered was the subluxation of the lenses of both eyes and this condition is closely associated with the condition of Marfan’s Syndrome.  So the purport of the evidence of Dr. Toby and Dr. Crichlow, except for the cross-examination of Dr. Crichlow was to demonstrate that the respondent’s injury was not due to a pre-existing Marfan’s Syndrome.  However, in his cross-examination Dr. Crichlow says: “that dislocation of the lens can be caused by trauma in a normal person but it is not very common.  It has to be a good blow to the head, severe blow, or to the eye-ball or to the orbit.  But I do admit you don’t see a dislocation normally.  Trauma can do anything.  It could be haemorrahage, dislocation.”  When challenged on this, Dr. Crichlow agrees that the medical text he studied did not “necessarily mention” this.  But he insisted that: “trauma to the head in a normal person can cause dislocation to the lenses”.  He says: “I cannot remember that line in my medical text but I do know [it] from my experiences.”  He also says: “It is true that the general proposition is that one would require a severe direct blow to the eyes to dislocate it.  You don’t even need that.  I can do it by pressing my finger to the eye in a certain way.”  When asked about spontaneous dislocation of the lens, Dr. Crichlow says: “Spontaneous dislocation is a different ball game as these patients do not have to have trauma at all that is why the name spontaneous comes up.  Spontaneous dislocation of the lens occurs without trauma, painless and these patients tend to have certain symptoms, mainly they will tell you that suddenly their vision would be blurred and suddenly it will come back.  It becomes blurred as the lens moves out the path of the visual axis.  You don’t need any trauma for that.”

When Dr. Crichlow was asked whether the respondent had a spontaneous dislocation his response was “in view of the history it is not likely.”    It was at this stage of the cross-examination that the opinion of Dr. Mahabir that the respondent suffered “spontaneous anterior dislocation of his intra-ocular lens of the right eye” was put to Dr. Crichlow.  His response was that given the history of trauma he questions how Dr. Mahabir could be certain that dislocation was spontaneous.  In further cross-examination, Dr. Crichlow says: “If you have trauma and there is dislocation it will not necessarily be immediate because for example, you can rupture a number of suspensory ligaments and the lens starts rocking about.  All these things can happen in a general sense.”  Of the dislocation, he also says: “I cannot definitely say trauma caused it but it is possible.  All I can say it is likely or it is possible.”

8.	Counsel for the appellant, having thus elicited in cross-examination a prima facie case that trauma to the head could cause in a normal person the subluxation of the lenses, the evidentiary onus then shifted to the appellant to prove otherwise.  This it attempted to do from the evidence of Dr. Singh who says: In a normal individual a direct blow to the eye-ball would be necessary to dislocate the lens.  When asked in chief whether the lens could not be dislocated by a blow to the head, Dr. Singh says: “I would say it would have to be a direct blow to the eye-ball not by an indirect injury.”  He further testified that in his twenty-two years of experience he has never come across a situation where an indirect blow can cause dislocation but he has come across cases where direct blow to the eye did not cause dislocation.

In cross-examination he says: from his readings the three causes of subluxation are trauma, congenital form and inflammation.  He further says that he excluded direct injury to the eye as a cause of subluxation but he concedes that he could not have examined the respondent for trauma as a possible cause and confirms that he did not examine him for any of the three causes of subluxation.  That was the state of the medical evidence when the appellant closed its case.  However during addresses, Dr. Crichlow was recalled to tender in evidence further medical literature, which indicated “the most common cause of a displaced lens is trauma, which is seen most commonly in young men.”  (See M. Bruce Shields, M.D.’s Colour Atlas of Glaucoma).

Dr. Crichlow also tendered an extract from the Journal of Cataract and Refractive Surgery under the heading “Traumatic Blindness after air-bag deployment: bilateral lenticular dislocation” which reported the case of a patient who suffered bilateral lenticular subluxation as a result of air-bag deployment.  When Dr. Crichlow was cross-examined about Dr. Singh’s opinion of the necessity for a direct blow to the eye-ball, with severe force as being necessary to dislocate the lens, he disagreed with that opinion.  He also disagreed with the opinion of Dr. Singh that subluxation cannot be achieved by trauma to the head in a normal individual.

9.	I have recited in some detail the medical evidence, which was before the Commissioner to demonstrate that he had to make a choice between Dr. Crichlow’s evidence and Dr. Singh’s evidence.  The question remains, if trauma to the head did not cause the subluxation of the lenses of the respondent, then which of the remaining two causes did?  The undisputed evidence is that prior to the incident at work on the 26th November 1993, the respondent did not suffer from any problems with his eyes, while after the incident he had severe pains both in his eyes and his head as a result of the subluxation, which pains were only relieved by the second operation.  It is also undisputed that the respondent did not suffer from Marfan’s Syndrome.  That has been clearly established and no one suggested that the third cause of subluxation viz. inflammation, is a cause of the subluxation in this particular case.
 
Counsel for the appellant contends that the answer to the question of the causation is to be found in Dr. Anirudh Mahabir’s opinion that the subluxation was spontaneous.  However, it is accepted that spontaneous subluxation is painless and occurs without trauma and it is clear from the evidence that the subluxation in this case caused severe pains and occurred after the trauma.  

I, therefore, do not accept Counsel’s submission as to what caused the subluxation.  It was open to Counsel for the appellant to call Dr. Anirudh Mahabir to testify and be cross-examined but this was not done.

10.	It is my view therefore, that based on the medical evidence, it was reasonable for the Commissioner to arrive at the decision which he did.  Causation of the injury of the respondent in this case is a question of fact for the Commissioner and it is well known that the Appellate Court will not lightly or without good reason interfere with such a finding.  It has not been demonstrated by the appellant that there was no evidence to support the conclusion of the Commissioner.  I am of the view that the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at by the Commissioner and therefore find there is no merit in the ground of appeal.

11.	In the circumstances, I dismiss this appeal with costs to the respondent.

Wendell N. Kangaloo
Justice of Appeal