Health & Safety The Compensation Fund 2013

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1 The Compensation Fund provides compensation for workers who get hurt at work, or sick from diseases contracted at work, or for death as a result of these injuries or diseases. The Compensation Fund is covered by the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA) and the Compensation for Occupational Injuries and Diseases Amendment Act (No 61 of 1997). The Compensation Commissioner is appointed to administer the Fund and approves claims of workers. The worker gets compensation from this Fund and not directly from the employer. This means that the employer does not have to worry about expensive law claims. Workers injured before 1 March 1994 are covered by the old Workmen's Compensation Act. This section deals with the new COIDA only. When can a worker claim compensation? You can claim if you are injured in an accident which happens while you are doing your work. The law calls these accidents which happen 'in the course and scope of duty'. You can claim if you get a disease caused by your work (an occupational disease). Your dependants can claim if you die from the accident or disease. Workers who are drivers or who have to be transported as part of their work may be involved in motor vehicle accidents while working. Motor vehicle accidents at work are covered by the Road Accident Fund Act. The accident must be reported to the Compensation Commissioner, and will follow the normal Compensation procedure, but the money will be paid by the Road Accident Fund. The Road Accident Fund pays for some extra things which are not covered by the Compensation Fund. Who can claim compensation from the Fund? Any person who is employed or apprenticed or being trained by an employer, and is injured or gets sick on or because of the job. The following workers cannot claim compensation from the Fund: domestic workers in private households members of the South African National Defence Force and South African Police Services (they have their own fund) outworkers to whom employers give articles to be made up or to wash or clean. Then they are not working under the control of the employer workers who work outside South africa for longer than 12 months at a time, unless there is a special agreement with the Commissioner The Act says an employer has to pay compensation to the injured worker for the first 3 months from the date of the occupational injury. The Compensation Fund will repay the employer for the money that was paid. Go to the following website for more information on the Compensation Fund: Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 1 of 9

2 Who contributes to the Fund? Employers pay into the Compensation Fund once a month. Workers do not pay anything to the Fund, so employers cannot deduct money from workers' wages for this. These employers do not have to pay into the Fund: national and provincial state departments certain local authorities employers insured by a company other than the Compensation Fund. For example, those companies which are part of the Chamber of Mines are insured by Rand Mutual Association, and many employers in the construction industry are insured by Federated Employers Mutual Assurance. These employers are still covered by the Act and claims are made to and decided by the Commissioner. The only difference is that the payouts are made by the insurance fund of the employer (not by the Compensation Fund), and that some of them pay better benefits. When will the Fund not pay compensation? No payment is made for claims which are made more than 12 months after the accident or death, or more than 12 months after the disease is diagnosed. If a worker is off work for 3 days or less, this is not covered by the Compensation Fund. It may be covered by the worker's medical aid or sick fund. No payment is made if the worker's own misconduct caused the accident unless the worker was seriously disabled or died from the accident. There may be no payment if the worker unreasonably refuses to have medical treatment, for as long as the worker refuses. Occupational diseases and injuries Diseases Occupational diseases are illnesses caused by substances or conditions that the worker was exposed to at the workplace. Schedule 3 of the Compensation for Occupational Injuries and Diseases Act sets out the working conditions and diseases caused by these conditions that are covered by the Compensation Fund. You can claim compensation if you are exposed to these working conditions and then get the related disease. Workers can claim compensation for a disease that is not listed. You will have to prove that the disease you have was caused by conditions at work and not by some other factor. Medical evidence and reports will have to be submitted to the Commissioner. It may be difficult and expensive to get the evidence and reports. Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 2 of 9

3 There are organisations that assist workers with diagnosis of occupational diseases. Find out at your nearest Department of Labour. It may take some time for the disease to become obvious. Workers can claim compensation if they are no longer at a workplace. The Commissioner will approve or reject the claim. Only if the Commissioner approves the claim, will you get compensation (for temporary or permanent disability) and your medical expenses will be paid. If the disease gets worse after a period of time, you can apply to have your compensation increased. Injuries Injuries covered by the Compensation Act are only those that occur as a result of or at work. Compensation is paid for temporary and permanent disabilities that lead to a loss of earnings. What types of compensation payment are made? Compensation is paid for getting injured at work or for diseases caused by work. There are four main types of compensation payments. These are: for temporary disability (the worker eventually recovers from the injury or illness) for permanent disability (the worker never fully recovers) for death for medical expenses additional compensation Compensation is always worked out as a percentage of the wage the worker was earning at the time the disease or injury is diagnosed. If the worker is unemployed by the time a disease is diagnosed the wage they would have been earning must be calculated. The Compensation Fund does not pay for pain and suffering, only for loss of movement or use of your body. Temporary disability Temporary disability means the worker does eventually get better. The worker must be put off work by a doctor. If the worker is off work for 3 days or less, no compensation will be paid maybe the worker's own sick pay can be claimed instead. If the worker is off for more than 3 days, the worker gets compensation which also covers the first 3 days. Temporary disability can be total or partial: Total means the worker is unable to work for a while. The worker will get ¾ (75%) of the Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 3 of 9

4 normal monthly wage as compensation. The formula is: monthly wage * , if the worker is paid monthly [(weekly wage * 4) + (weekly wage 3)] * if the worker is paid weekly Partial means the worker can go to work, but on light duty for fewer hours. If the worker earns less doing the lighter work, he or she will get ¾ of the difference between the normal and reduced monthly wage. Example The state authorises a fishing quota of a certain size. Scientists have warned that a quota that size might result in the permanent exhaustion of fish stocks. The reasons for the decision to grant the quota are high unemployment in the area where the fishers live, and the possibility that if the quota is cut jobs will be lost. Thembiso Hlabe's wages are R255 per week. What would his Compensation be for a temporary total disability? Multiply weekly wage by 4: R255 * 4 = Divide weekly wage by 3: R255 3 = 85 Add to get monthly wage: = R1 105 Multiply monthly wage by 75: 75 * R1 105 = Divide by 100: = R828,75 per month For an occupational disease, use the wage at the time of the diagnosis and not at the time when the worker first got exposed to the disease. If the worker is now unemployed, use the wage that he or she would probably have earned if still employed. For the first 3 months off work, the employer must pay the worker compensation every month. The employer can claim the money back from the Compensation Fund. If the worker is off for more than 3 months, the Compensation Commissioner takes over the monthly payments, until the worker is fit for duty. Compensation for temporary disability will be paid for up to 12 months. If the condition of the worker is not improved after 12 months, the commissioner may agree to continue payments for up to 24 months. After 24 months the Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability. The Commissioner also pays all medical accounts, including medicine. Accounts must be submitted. Permanent disability Permanent disability means that a worker never fully recovers from the injury or sickness. A permanent disability can completely prevent a worker from working, or it can just inconvenience a worker. Most serious is called 100% disability, and least serious is called 1% Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 4 of 9

5 disability. A doctor must write a medical report about the disability. The Commissioner, with the help of a panel of doctors, works out the degree of disability. The degrees of disability are set out in Schedule 2 of the Compensation for Occupational Injuries and Diseases Act. Some examples: loss of two limbs 100% total loss of sight 100% loss of hearing in both ears 50% loss of sight in one eye 30% loss of one whole big toe 7% loss of one other toe 1% Compensation for permanent disability is paid either as a monthly pension or as a lump sum: if the injury is measured as more than 30%, the worker gets a pension if the injury is 30% or less, the worker gets a lump sum The formula for the monthly pension is: [monthly wage * (75 100)] * (percentage disability 100) This amount will be paid once a month for the rest of the worker's life. Example Mannetjies lost one of his hands while pushing some poles through a saw. At the time of his accident he was earning R1 500 per month. The percentage disability for loss of a hand is 50%. Multiply monthly salary by 75: 75 * = Divide by 100: = Multiply by 50 (percentage disability): * 50 = Divide by 100: = R562,50 per month The formula for the lump sum is: (monthly wage * 15) * (percentage disability 30) This amount will be paid once only and there will be no further payments. Example Feshe Mlaba lost an eye while working in the sawmill. Before the accident he got R1 000 a Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 5 of 9

6 month. What compensation should he get for his permanent disability? The percentage disability for the loss of one eye is 30%. Feshe will get a lump sumbecause his injury was 30% or less. To work out the lump sum: Multiply monthly wage by 15: R1 000 * 15 = Multiply by 30 (percentage disability): * 30 = Divide by 100: = R4 500 lump sum For an occupational disease, use the wage at the time of the diagnosis and not at the time when the worker first got exposed to the disease. If the worker is now unemployed, use the wage that he or she would probably have earned if still employed. Death benefits Compensation can be claimed by the widow or dependants if a worker dies as a result of a workrelated accident or disease. You need to submit certified copies of the following documents: marriage certificate or proof that the couple lived as husband and wife birth certificates or baptismal certificates of children (for proof of children) the death certificate declaration by the widow/er (form WCL32) the employer's report of the accident or disease funeral accounts (form WCL46) a special Compensation form must be filled in, that details your income and property Who can claim what Compensation? The widow/er: Lump sum payment: 2 x monthly pension of worker (the pension is the amount the worker would have been paid if he/she had been 100% disabled) monthly pension for life: 40% x monthly pension of worker, paid every month Each child under the age of 18 years (including illegitimate, adopted and step children) is entitled to: 20% x monthly pension of worker, paid every monthly until the child is 18 years old the pension can continue for longer if the child is mentally or physically handicapped Other dependants, if there is no widow/er or children (parents, sisters, brothers, half sisters, etc.): Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 6 of 9

7 full dependants: get the same as the widow partial dependants: get a lump sum that is worked out according to the degree of dependance The person who pays for the funeral expenses: gets paid expenses up to R The total monthly pension per family cannot be more than the pension the deceased worker would have received if he/she was 100% disabled (i.e. 75% of the monthly wage). Medical expenses All the medical expenses of a worker will be paid for a maximum of two years from the date of the accident. Additional compensation If a worker is injured, dies or contracts an occupational disease because of the negligence of the employer, or a defect in machinery or equipment, the worker can get extra compensation for temporary or permanent disability. Any worker who is under 26 years old at the time of an injury or disease will get extra compensation. An application for additional (increased) compensation must be made on a form W930 within 24 months of the injury, The Commissioner can extend the period if good reasons exist. Steps to claim disability 1. The worker must inform the employer, supervisor or foreman of the accident, injury or disease verbally or in writing. 2. The employer must report the accident or disease to the Compensation Commission within 7 days for an injury and within 14 days after gaining knowledge of an alleged occupational disease. The employer must report it, even if they do not believe the injury or disease is workrelated. If the worker is unemployed by the time a disease is diagnosed, the worker can send forms directly to the Commissioner. 3. Part of the form must be given to a doctor to complete, to check that the injury or disease falls under the Compensation Fund. 4. The doctor must send a First Medical Report (W.CL.4) detailing the disease or seriousness of the injury, and the likely period the worker will be off work. This must be done within 14 days of seeing the worker. 5. The employer must send the First Medical Report to the Commissioner. 6. If the employer refuses to complete and send the form, the worker or a representative may send a form direct to the Commissioner. If it was an accident, it is also useful to get a sworn statement from any witnesses. The Commissioner will instruct the employer to file in the right form. 7. The worker or his/her representative should keep copies of the employer's report, and records of all evidence, witnesses and all notices sent to the Commissioner. Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 7 of 9

8 8. The doctor must also send Progress Medical Reports (W.CL.5) monthly while treatment is carried on. If the worker's condition has not improved after 24 months, the Commissioner may decide that the condition is permanent and grant compensation for permanent disability. 9. If the worker thinks that their condition is worse than the doctor is saying, you can go to another doctor and get a second opinion, but you will have to pay for this doctor's visit yourself. The Commissioner will decide whether the case should be re opened. 10. The doctor must send in a Final Medical Report, stating either that the worker is fit to return to work or that the worker is permanently disabled. 11. The doctor submits this form to the employer, who sends it to the Commissioner. Anyone else can send the medical reports to the Commissioner, as long as the claim number is on the form. 12. The employer sends in a Resumption Report (W.CL.6) to the Commissioner, when the worker starts work again or is discharged from hospital. The employer also fills in this form to claim back the compensation money the employer paid to the worker during the first 3 months he or she was off work. 13. A worker may not be victimised for any information given to the Commissioner. The Compensation for Occupational Injuries and Diseases Act protects employees from victimisation. How is the compensation money paid? The compensation office waits until it has all the forms. Only then does it pay. This can be many months after the accident. Temporary disability The compensation office sends a cheque to the worker, or sends it to the employer who must then give it to the worker. The employer must pay 75% of the worker's wages for up to 3 months after an injury or accident. The employer will get this money back from the Compensation Fund once the Fund starts paying the worker. Permanent Disability Lump sum The cheque gets sent to the employer. If the worker was dismissed, they send the cheque to the worker's home address. That is why it is very important to have the correct home address. Pension The pension is paid out monthly for the rest of a person's life. The disabled worker can decide where the compensation office must send the pension, for example to a bank or building society account. Pensions are always backpaid to the date of the accident. Objections and appeals Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 8 of 9

9 If a worker disagrees with the decision of the commissioner, he/she may lodge an objection to the decision within 90 days from the date he/she became aware of the decision, The objection must be done on form W929 and send to the commissioner, The commissioner may call a formal hearing to review the decision at which hearing the worker can be represented by a legal representative, trade union official or family member. The worker can call evidence, including expert evidence. The commissioner, after the representations made will make a final decision. If still not satisfied the worker can take the decision of the commissioner on review to the High Court, it is advisable to seek legal assistance with the application. Doc: SQ2 Rev: 1 Copyright Bizshift 2013 Page 9 of 9