CHAPTER 7: Problems with COIDA

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2 CHAPTER 7: Problems with COIDA Contents 1. A compensation system in crisis Problems created by the compensation system and the Compensation Fund Problems created by employers Problems created by doctors

3 A compensation system in crisis 2. In this manual we have identified some of the ways in which COIDA and the Compensation Commissioner are failing workers. Because of these failures, many injured and ill workers are not getting the benefits that they should, or they only get these years later. We have also made suggestions for how you can try to overcome some of the obstacles. As you take up cases on behalf of sick and injured workers, or the families of deceased workers, you will experience problems and gaps in the legislation and obstructions in the compensation procedures. It is important to consult with other trade unionists and health and safety specialists who have experience with compensation case work. It is also important for you to establish networks within the unions so that you can develop joint strategies to solve cases, and to advocate for change and improvement. In a recent discussion among trade unionists and occupational health practitioners, strong opinions were expressed that the current compensation system is simply not working. It is not providing timeous or adequate benefits to workers, if at all. Payouts from the Fund are predominantly payments to medical practitioners, rather than benefits to workers. This means that the Fund is working better as a medical insurance than as a compensation fund. Alongside the failure of the Compensation Fund to provide benefits to sick and injured workers, the Department of Labour is proving to be incapable of enforcing basic compliance or building cases against negligent employers. Amongst a number of experienced health and safety activists, there is no known case of an employer being charged for not reporting an injury, although non-reporting is rife. Trade unions, Labour Service organisations, and occupational medicine practitioners who work with sick and injured workers agree that the Compensation system is in crisis, and is failing to respect the rights of workers and meet their compensation needs. Unionists also argue that it is almost impossible for a worker to win a Section 56 negligence case against an employer. Experience is also showing that there is such a serious lack of cooperation between the Department of Labour and the National Prosecuting Authority that prosecutions of employers very seldom happen. 141

4 This manual serves two purposes: To provide trade unions, shop stewards and elected workplace health & safety reps with a detailed and practical guide that can assist them in taking up occupational injury and disease cases of workers; To encourage networking and communication amongst trade unionists, shop stewards, occupational health practitioners and health & safety activists towards developing a strategic campaign and advocacy for radical change to South Africa s compensation system. In this final chapter, we highlight some of the key weaknesses and gaps that we have identified over the years of taking up cases with workers and trade unions: Section 2 looks at problems created by the Compensation Fund; Section 3 looks at problems created by employers; Section 4 looks at problems created by the medical doctors. 142

5 Problems created by the compensation system and the Compensation Fund 2. a. b. c. d. e. f. The Compensation Fund is a centralised and highly bureaucratic system and is not easy to use, nor is it worker-friendly. The system is split between two different laws under two different departments, and a number of employers (government departments, local authorities and construction) have opted out to fall under mutual associations. The experience of many workers is that the Compensation Fund treats them with suspicion and disrespect and often tends to side with the employer, or believe the employer s version of events over the worker s. The CC s office allows letters and calls to go unanswered. There are too few staff dealing with cases, with the result that there are huge backlogs in dealing with claims. There have been many cases where the Compensation Fund has ignored workers claims when the employer has failed to submit the Accident Report form (WCL 2), or the Fund has only accepted the employer s version of the incident on the WCL 2. Communicating with the Compensation Fund can be timeconsuming and frustrating. The Fund often does not respond to communication. If it does respond to communication, it is just to refer workers to somebody else who also does not answer their queries. There is a lack of coordination within the Department of Labour between the Compensation Commissioner and the Health & Safety Inspectorate. In one case, because of a lack of communication between the two, the Inspectorate failed to investigate and inspect a factory where a number of accidents resulted in workers losing limbs. Capturing of claims takes a very long time. The Compensation Fund claims that they have a turnaround period of 90 days. In reality this does not work. Workers have to continually phone or fax outstanding information. Claims and forms often have to be faxed more than once to the same office. Individual workers do not have the resources to pay for this communication with the Compensation Fund. Between 2005 and 2007, it was taking the Compensation Commissioner an average of 29 months to process a claim. Workers who have an occupational injury or disease are vulnerable and often without income. For this reason it is unacceptable that the Compensation Fund is so slow, so obstructive, and so uncommunicative in responding to workers' enquiries and claims. 143

6 g. Finalisation of disability claims takes just as long, and the Compensation Fund may then still disagree with the doctor s findings. For example, where a doctor or specialist has done an evaluation of the worker and identified the degree of disability (eg 80 or 100%), the Compensation Fund will respond to say that the degree of disability is 15%, without giving an explanation. It can take two years to come to this conclusion, and the rejection of the claim does not include the criteria for the Compensation Fund decision. This results in almost all of the claims having to go the route of an Objection Hearing. There are also no Objection Hearing case law examples or standards developed from experience. These could be used to set standards for future decisions. h. Objection Hearings take a very long time to be convened by the Compensation Fund, and there are too few legal officers to conduct these hearings. A lot of resources go into conducting these objection hearings. Because the Compensation Fund can take a long time to pay Temporary Total Disability compensation to a worker, unions should put pressure on employers to agree to pay this until the Compensation Fund kicks in. Employers can then reclaim from the Fund. 144 i. j. The Compensation Fund won t pay for certain medical expenses that workers might need. For example, medication to alleviate pain can amount to hundreds of rands per month. If a worker is relying on a disability payment from the Compensation Fund, he is often unable to afford the pain medication. Workers only receive 75% of their wages when they are booked off. This means that they have to make do with less money. This has an effect on their quality of life, and they may get into debt. k. It can take a long time for workers to get paid Temporary Total Disability compensation. Workers: get into debt; face legal demands for unpaid bills and accounts (including from doctors and public hospitals); and may lose their possessions and houses; some workers are forced to borrow money from their Provident Funds, families, and money lenders. By the time these workers get compensated for Temporary Total Disability, all the money has to go towards paying their debts.

7 l. Sometimes the Compensation Fund refuses to pay Temporary Total Disability if the injured worker is not receiving active medical treatment. m. n. o. p. q. r. The compensation system does not promote rehabilitation and prevention of injury or illness. The compensation legislation is restrictive in its recognition of disabilities. Workers also go the route of getting a state disability grant for a work-related injury because there is no progress with the Compensation Fund. The Compensation Fund does not provide funds for the re-skilling of workers who cannot continue to perform the same work they were employed to do at the time of their incidents. Whilst the Compensation Fund recognises that children under the age of 18 are automatically dependents and pays pension for some of these children, the Fund does not recognise that parents who are too old to work are also dependents, even if they are entitled to state pensions. The Compensation Fund only provides a pension, equivalent to 20% of 75% of the deceased worker s wage, to each child under the age of 18 years. The Fund does not provide this pension to more than three children in a family. This means that whilst a family of three children will receive 60%, a family of four or more children will not receive more than 60% of the deceased worker s wage. They will have to share this same amount (60%). In the proposed amended COID Act of 2013, there is a new Chapter 8 which deals with Rehabilitation, Re-integration, and Early Return-towork. What comments do we have about what is proposed in this chapter? 145

8 3. Problems created by Employers a. Sometimes employers fail to report injuries or occupational illnesses. This means that workers often have to pay their own medical bills and initiate their own claims with the Compensation Fund. Employers are doing this to avoid paying the extra levies. Non-reporting by employers means that workers have to use their own medical aids or make use of public hospitals. Workers have to access their sick benefits through the UIF in order to be compensated for a work-related incident. b. Employers are sometimes slow to submit forms to the Compensation Commissioner. They do not follow up with doctors to make sure the doctors submit the necessary forms. In most cases, employers make no attempt to co-ordinate the process of getting the claim through the CC and the benefits paid out. Employers have significant responsibilies in the compensation claims process. Trade unions, shop stewards, and health & safety reps need to monitor employers and ensure they comply with the laws. 146 c. d. e. In many instances, workers are dismissed for incapacity because of injuries or diseases that they have contracted through work. There are no clear programs for rehabilitation, retraining and helping workers to return to the workplace. Employers also do not take responsibility for the re-skilling of incapacitated workers. Employers outsource dangerous work or work that may injure workers. The labour broker contractors who take on the outsourced work often do not report incidents, nor do they submit the reports and claims of their employees with occupational injuries or diseases. Labour broker and contract workers who get sick or injured at work often not only lose their jobs because of their work-related injuries and illnesses, but also they often cannot access their compensation rights because their injuries or diseases are not reported by the labour broker employer. In this way, employers avoid responsibility for employees doing dangerous work. In spite of the weakness of the compensation system, workers, employers and the state still rely on compensation as the main way of relating to health and safety. There is little attention paid to the development of injury and illness prevention or health & safety promotion strategies and policies.

9 There is also little attention given to rehabilitation, training and skills development for workers with disabling injuries or diseases that do not allow them to return to the work environment. Problems created by doctors 4. a. Some doctors are not filling in the forms at all, and others do not fill in the forms correctly. b. c. d. e. f. Doctors are not equipped to deal with occupational health cases. They often fail to make the link between the worker s work and the worker s injury or disease. This means most workers cannot see medical doctors who can make occupational disease diagnoses. This adds to the under-reporting of occupational diseases and a high (or un-counted) number of patients in the public health system who have un-diagnosed occupational diseases. This results in workers with un-diagnosed occupational diseases not getting their compensation rights. The links between diagnostic services, enforcement agencies and the compensation system are poor. This results in opportunities for prevention and promotion activities being lost. Often doctors refuse to give medical assistance to avoid dealing with the Compensation Fund, as they wait a very long time to be paid by the Fund. This means that workers are either unable to get medical assistance or else they are forced to use their own medical aid to pay for treatment of their work-related injuries and diseases. Doctors are often reluctant to appear as expert witnesses for their patients in Objection Hearings when the Compensation Fund has rejected the diagnosis or set the percentage disability lower than what the doctors assessed. Very few medical practitioners are equipped to do disability assessments. This involves an assessment of a disabled worker in relation to the work and the workplace, and being able to propose suitable adaptations that can allow for a return to work. The role of doctors in diagnosing and treating occupational injury and disease needs to be improved on many fronts. Unions need to campaign and advocate for the integration of effective medical skills into the diagnosis, treatment, and compensation system. 147

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