Section 8: Compensation for workplace Injury and Disease

Section 8: Compensation for workplace Injury and Disease

Section 8: Compensation for injured and ill workers Contents: 1. Workplace injury and disease in South Africa pg. 8-2 2. Overview of COIDA pg. 8-4 3. Rights and responsibilities under COIDA pg. 8-8 4. COIDA reporting and claims procedures pg. 8-17 5. Failings in the compensation system at workers expense pg. 8-32 Introduction The first concern of a shop steward or health and safety representative is to look after the interests of any worker that is injured or made sick by work. We know that health and safety at the workplace is not taken seriously enough by the employer. Again and again newspapers carry reports of workers injured or killed at the workplace. And there are many people in working class communities that have been made sick by hazards at the workplace. Sometimes the illness only shows itself long after the worker was exposed to the hazard at the workplace. In previous sections we have dealt with the issues of identifying hazards and either eliminating or reducing them. In this section we focus on what to do if a worker has been injured or made sick. What role do shop stewards and trade union representatives have in making sure that workers get compensation for these injuries or illnesses? The Compensation Fund, which falls under the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA), is meant to pay out a certain amount to workers who are injured at work or who fall sick as a result of work. But the system of procedures, compensation forms, and time deadlines that is in place to get this compensation can is complicated and often difficult to access. It is important that worker representatives get to know this system in order to help sick and injured workers receive the support they are entitled to. 8-1

1. Workplace injury and disease in South Africa An overview of the situation All available evidence points to the fact that workplace health and safety is in a very bad state in South Africa. Workers are dying, getting injured and sick because of their work. The response from employers, from government and from our trade unions is by no means strong enough. In 1997 the Benjamin Greef Committee investigated the state of health and safety. It highlighted the difficulty of finding reliable, updated statistics. The report states that, In South Africa a lack of definitive cost studies as well as the extensive under-reporting of occupational accidents and work-related ill health conceal the true costs of occupational accidents and work-related illhealth. Benjamin Greef concluded that, Because there is no national system of reporting accidents and occupational diseases, the full cost of health and safety conditions for South Africa is not known. The under-reporting of accidents and diseases hampers the development of preventive strategies. (Report of the Committee of Inquiry into a National Health and Safety Council, 1997; page 187) This situation continues today. We do not know the true picture of occupational injury and disease. Media reports draw our attention to the big incidents such as: the Sasol blasts in 2004 and 2005; the deaths of 20 Western Cape farm workers in a road accident in late 2006; the deaths of six workers at the Asmang smelter in kwazulu-natal in early 2008; the Paarl Print factory fire in which 13 workers died in April 2009; and the deaths of 82 illegal miners in Harmony gold mine in 2009. It is estimated that more than 200 miners have died underground each year since the year 2000. Then there are also the silent killers which do not draw the same interest from the media the diseases such as asbestosis, TB, silicosis, lung cancer, and manganese poisoning. Workers take these diseases home with them from their workplaces. The South African Cabinet s draft policy on Occupational Health and Safety (2004) stated that, Approximately 10 000 cases of occupational diseases are reported annually to the country s two compensation authorities. Reported cases are only a tiny part of South Africa s occupational health problems. In the mining industry (where the law requires that workers undergo medical exit examinations) the reported occupational diseases outnumber injuries. One-third of mine workers are estimated to have an occupational lung disease (including TB, silicosis and chronic airways obstruction disease). The rates of 8-2

TB (239 per 1 000 workers) and silicosis (277 per 1 000 workers) amongst mine workers have been increasing over the years. Not all workplace injuries and diseases are killers. Noise-induced hearing loss, post traumatic stress disorder, repetitive strain injuries, asthma, and skin allergies are common disabilities caused by unhealthy and unsafe work environments. We have a problem getting the full picture because reliable evidence is not available. There is enormous under-reporting by employers, by workers and by medical doctors. Also the DoL is not managing to collect or make the information available. We need the information to compile statistics on occupational death, injury, and disease in the different sectors and provinces. In the non-mining sectors, injuries make up 99% of claims submitted to the Compensation Fund (CF). We know that the number of reported accidents has declined between 1997/8 (289 952) and 2003/4 (237 533). On the other hand, from information and research that is available, we also know that the injury rate has increased over the period 1994 (33 per 1 000 workers) to 2006 (42 per 1 000 workers). This indicates declining health and safety standards in our workplaces. Occupational deaths, injury and disease have a huge impact on the lives of workers. In 1997 for example, it was estimated that three workers died at work every weekday of the year. But occupational injury and disease also has an enormous negative effect on our society and economy as a whole. Employers like to say that strikes hurt the economy. But during the early 1990s, five times as many working days were lost due to reported accidents at work, compared to the number of days lost due to industrial action (1993). 8-3

2. Overview of the Compensation for Occupational Injuries and Diseases Act (COIDA) The legal framework relating to work-related injury and disease1 The main legislation covering work-related injury and disease is the Compensation for Occupational Injuries and Diseases Act of 1993, known as COIDA. The main purposes of the COIDA are to establish the rights of workers with occupational injuries and diseases to compensation, and to regulate the processes for claiming these benefits. COIDA and the OHS Act are two labour laws that escaped tri-partite negotiations. This is even though they were passed after the trade unions 1987 anti-lra campaign won the demand that all labour legislation would be subjected to negotiations in tri-partite forums (Laboria Minute, 1990). The COID Act repealed the Workmen s Compensation Act, making some important improvements to worker s compensation for workplace injuries and diseases. At the same time it kept in place a key principle of the WCA. Despite the fact that the COID Act (unlike the LRA, BCEA, EEA and Mine Health and Safety Act) was not negotiated, it represents an agreement (or contract) between workers, employers and the state. Workers give up the right to sue for damages and in return receive some compensation, whether or not there was any negligence. Employers agree to contribute to a state-administered insurance fund and are therefore relieved of the prospect of damages claims from workers. The state undertakes to provide compensation services ensuring that workers with occupational injuries and diseases receive benefits that cover: 75% of their lost wages for temporary disabilities for a maximum of two years medical aid to cover the cost of agreed services and further benefits to compensate them or their dependents in the case of permanent disability or death. The question is, are workers in general, and trade union-organised workers in particular, aware of and in agreement with the terms of this compensation system? When workers weigh up the cost of occupational injury, disease and death, and question who carries this burden, they also need to examine 1 Much of this information was drawn from Paul Benjamin s Introduction to the COID Act in the Juta publication of the OHSA, COIDA and MHSA. 8-4

whether or not the benefits that they gain from the COID Act balance this burden out. COIDA provides what is called a no-fault compensation for workers with occupational injuries or diseases. Workers are entitled to compensation whether or not their injury or illness was caused by the fault of the employer or any other person. In exchange they are prevented from suing their employer (managers and fellow workers) for any damages that they might have suffered as a result of a workplace disease or injury. There is an exception. Where it is possible to prove negligence, an employee is entitled to additional compensation under the COID Act. However, this additional compensation (together with all other compensation paid by the Fund) is determined by the Compensation Commissioner and cannot be more than the total monetary loss incurred by the employee as a direct result of the accident or the disease In this compensation system, the employer must make annual contributions to the Compensation Fund, calculated on the number of employees, the health and safety risks of industry and the injury and disease record of the company. The Compensation Commissioner (within the DoL) administers these funds, adjudicates on the claims submitted, and compensates those claims that are accepted. Some employers are exempted from contributing to the Compensation Commissioner and are individually liable or self-insured. These employers include the state: for example parliament, provincial governments and those local authorities who have a certificate of exemption from the Commissioner. There are also employers in the building and mining industries who are exempted. The building industry employers are insured by the Federated Employer s Mutual Association and the employers in the mining industry are insured by the Rand Mutual Assurance Company Limited. The exempted employers do not pay premiums to the Compensation Commissioner, but they and their insurers are still governed by the other provisions of the COID Act. Compensation covers three categories of claimants: a) employees with temporary disability, b) employees who are permanently disabled and c) dependents of employees who die as a result of occupational injuries or diseases. The benefits paid include lost wages, medical aid benefits and permanent disability payments (including lump sum payments and pensions) to workers with occupational injuries and diseases. In the event of death, compensation to dependents includes lump sum payments, contributions towards funeral costs and pension payments. COIDA makes provision for internal appeals against the Compensation Commissioner s decisions (adjudication), as well as providing limited rights to appeal to the Supreme Court. COIDA applies to workers in all industries, except domestic workers. It also does not cover some mining diseases which fall under the Occupational Diseases in Mines and Works Act (ODMWA). 8-5

Proving an occupational disease is much more difficult than proving an occupational injury arising from an accident at work. COIDA provides a list of occupational diseases (Schedule 3). If an employee doing work listed in the schedule contracts a disease also listed in the schedule, then the employee is entitled to compensation. A worker, with the help of a medical doctor, can also prove that they have a disease that is not listed on Schedule 3, but which is related to their work. This assumes that workers will have access to medical doctors with the skills and the resources to prove that their illnesses are work-related (occupational). It is worth noting that ODMWA makes provision for all mine workers to attend free medical examinations for work-related illnesses every two years. The COID Act does not provide for this. It has also recently closed down the Provincial Medical Advisory Panels (comprised of occupational medical specialists) which were established to assist the Compensation Fund in improving its efficiency in processing claims for work-related illnesses. The compensation system is not functioning efficiently Workers with injuries and diseases are not being served well by the compensation system, for the following reasons: The compensation fund is a centralised and highly bureaucratic system and is not easy to use or 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 Cabinet s draft Occupational Health and Safety Policy (2004) calls for setting up a single compensation system. The compensation legislation is restrictive in its recognition of disabilities. There are backlogs and inefficiency in the compensation system. Between 2005 and 2007 it was taking the Compensation Commissioner an average of 29 months to process a claim. The compensation system does not promote rehabilitation or prevention of injury and illness. There are no occupational health services in the public health system. 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 under-reporting results in the (where the public health system is used) employers (where these workers contracted the diseases) avoiding paying additional premiums to the Compensation Fund for these un-diagnosed diseases. It also means the financial burden for occupational diseases is shifted away from the polluter (the employer) to the tax payer or to the 8-6

individual worker and medical aid scheme. (Depending on (whether the public health system or private health system is used.) There links between diagnostic services, enforcement agencies and the compensation system are poor. This results in opportunities for prevention and promotion activities being lost. 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 and safety promotion strategies and policies. 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 It is not enough to look to COIDA for our rights and responsibilities when it comes to workplace injury and illness. We also have to consider representation issues as covered in the LRA, OHSA and COIDA with regards to the relevant tri-partite forums, and also our wider set of rights under the OHS Act that relate to health and safety in the workplace. 8-7

3. Rights and responsibilities under the COID Act A few useful definitions: 1. Who is an employer? An employer means any person, including the state, who employs one or more employees and includes- (a) A person controlling the business of an employer e.g. a manager is the employer (b) Labour brokers are also employers and must register with the Fund. In the event of an accident, the Labour broker must report the accident to the Compensation Commissioner (c) Where an employee s services have been lent to another employer temporarily, that employer becomes the employer in terms of the Act [COIDA section 1. (xx)] 2. Who are employees under the COID Act? An employee means anyone who has entered into or works under a contract of service or an apprenticeship or learnership with an employer. The contract may be in writing or oral, express or tacit. In essence, once a job seeker is asked by a prospective employer to do some work for her/him at a price, the two parties have by implication entered into a contract of service. Remuneration may be calculated based on time or work performed and may be in cash or in kind. Categories of employees falling within the definition include: (a) Casual workers, seasonal workers and temporary workers (b) Domestic workers in boarding houses (c) People employed by labour brokers (d) Apprentices and trainee farm workers The following categories of employees are not included under the COID Act definition of employee (i) A domestic employee employed in a private household (ii) Members of the SANDF and SAP on service in defence of RSA (iii) A person who contracts to undertake work and engages others to undertake the work 8-8

NB: Our interpretation and understanding of the Act is that Volunteers are not regarded as employees because they are not working for remuneration and there is no contract of service. [COIDA 1. (xix)] 3. What is an accident? The COID Act defines an accident for the purpose of adjudicating claims for benefits 2. The COID Act uses three criteria to define an accident. It is important that anyone assessing whether or not they have a basis to submit a claim should gather information relating to these three criteria. This information is crucial for the Compensation Commissioner s acceptance of liability (i.e. adjudication). The criteria for the Compensation Commissioner accepting a claim for an accident are that: It is an unexpected occurrence arising out of and in the course of performance of an employee s duties. The occurrence must result in personal injury. The question is can the injury be linked to the accident? There must be medical evidence that the employee has an injury and there must be evidence that the injury was caused by the accident in the workplace. In the case of an occupational illness it is unlikely and improbable that a single incident or accident can be identified as having caused the illness. However it is necessary to provide medical evidence that the person has the illness and in addition to provide evidence that the substances or hazards that cause the illness are present in the workplace. The occurrence must happen at a specific time and place (this is meant to exclude accidents which are not work-related). The test is whether the employer was responsible or not. The Commissioner is looking at the time in order to see whether the accident occurred during working hours and secondly looking at the place in order to determine if the employee was at the right place or was in a place that he was not supposed to be at the time of the accident. [COID 1 (i) and COID 22 (4)] Arising out of refers to a situation where the employee may not have been performing tasks or activities that he/she was employed for, but however, she was placed or exposed to the risk because of his/her work. 2 The COID Act definition of accident can be misleading because it refers to an occurrence which results in both an injury and a disease. Further the definition of accident in COID Act is not the same as the OHSA definition of incident [OHSA section 24(1)]. 8-9

Arising in the course of means that the employee was busy doing what she is employed for at the time of accident. Although the COID Act prescribes that the accident must meet these two requirements ( arising out of, and in the course of, the performance of duties), a claim can still be accepted if the accident was not arising in the course of duties but arose out of employment as decided by a High Court in the case of Manis Stenvert vs the Compensation Commissioner on 29/08/2003. In this case, the employee was an auditor at the Receiver of Revenue and he was injured whilst participating in a teambuilding exercise that had been organized and approved by the employer. As the employee was instructed by the employer to attend the teambuilding activity to promote the morale amongst the employees for the benefit of the employer, the accident was deemed to have arisen in the course of and out his employment. The claim was accepted as it was compulsory for him to attend as instructed by the employer. The team building exercise was therefore in the best interest of the employer. Workers rights to compensation for work-related injury, disease, and death under the COID Act 1. Who is covered? a. These rights apply to all employees who are under a written or verbal contract of service, apprenticeship or learnership with an employer. [COIDA 1(xix)] b. Casual workers and labour broker employees are covered. [COIDA 1(xix)] c. Employees of a sub-contractor who is not registered with the Compensation Fund are covered as employees of the main employer. [COIDA 89(1)(b)] d. Domestic workers are not covered. [COIDA 1(xix)(d)(v)] e. SAP and SANDF employees are only covered when they are doing normal duties, but are not covered when they are fighting a war with another country. [ COIDA 1(xix)(d)(i)] f. Workers who have to drive or be transported in a vehicle as part of their work duties, and are injured or killed in a motor accident. [COIDA 22(5)] g. Workers who are transported free of charge by their employer or another employee in a vehicle that is especially for that purpose, and are killed or injured in a motor accident. [COIDA 22(5)] h. Employees and dependents of employees can claim compensation. Members of the employee s immediate family qualify as dependants. Members of the extended family do not normally qualify unless they can prove they were dependent. [COIDA 1(xv) and 54 (1)] 8-10

2. What are workers entitled to? a. Workers or their dependents have a right to compensation in the case of injury (temporary total or temporary partial disability), permanent disability and death arising from an accident at work. [COIDA 22(1)] b. Workers are entitled to compensation if they contract an occupational disease. [COIDA 65(1)] c. Workers are entitled to compensation for occupational injuries and diseases on a no fault basis, which means that they will be compensated even if the employer was not negligent. [COIDA Section 22] d. Even if the employer was negligent, the worker does not have the common law right to sue the employer for damages. [COIDA 35] e. If the employer was found to be negligent as the result of an investigation of the incident, then the injured or sick workers can apply to the Compensation Fund for higher compensation award. This claim must be made within 24 months of the incident or commencement of the disease. [COIDA 56] (Note on the procedure: An original copy of the application for increased compensation has to be submitted to Compensation Fund legal services. It can be posted or couriered to the Compensation Fund, where it has to be stamped and signed. The applicant gets a copy of the stamped/signed document.) f. Workers are entitled to their compensation claims being considered by the Compensation Fund provided that the employer, medical doctors, and the workers themselves have followed the correct procedures and submitted the correct documents within specified time periods. The claim must be lodged within 12 months of the date of the accident or the death. [COIDA 65(4)] g. Workers are entitled to compensation amounts calculated according to certain formulae established by the COID Act Schedule 4. Section 55 of the Act sets the minimum and maximum amounts. [COIDA 55 and Schedule 4] h. There is no compensation for an injured worker whose accident is the result of his own serious and wilful misconduct. However, in such a case where the worker is seriously injured or dies in the accident, then the Compensation Fund will pay compensation where there is a dependent who is financially dependent. [COID 22 (3)] i. In the event of suffering a work-related injury, workers have the right to expect the employer to submit an accident report on the WCL 2 form to the Compensation Fund to facilitate a compensation claim. [COIDA 39] j. Workers are entitled to temporary total disability compensation for 24 months. The worker s right to temporary total or partial disability 8-11

compensation expires when the disability ends, or the worker returns to work, or if the Compensation Commissioner awards permanent disability compensation.[coida 47 and 48] k. The medical expenses for workers occupational injuries or diseases must be paid for up to years. The Director General may agree to pay for medical expenses beyond the 2 years if the medical care or medication will reduce the disablement. [Coida 73] l. Workers can claim compensation for an occupational disease even if they no longer work at the workplace involved. [COIDA 68(1) and (2)] m. Workers can claim compensation for an occupational disease if they are exposed to a hazard listed next to that disease on Schedule 3 of the COID Act. Workers are entitled to claim for a disease not listed on Schedule 3 even though this can be more difficult and more costly. [COIDA 65(1)(a) and (b)] n. Workers are not entitled to compensation if: The worker is off work for three days or less. This is covered by sick pay. [COIDA 22(2)] An injury or death claim is made more than 12 months after the incident. [COIDA 43] An occupational disease is reported more than 12 months after the diagnosis. [COIDA 65(4)] 3. Compensation Board 3.1 Compensation Board Representation Five of the 16 members of the Compensation Board can come from the trade unions, as they are appointed by the Minister of Labour to represent the interests of workers. Trade union representatives are appointed by the Minister of Labour to serve as assessors to represent the interests of workers and to assist the Director General in hearing objections to Compensation Commissioner s decisions. [COIDA 8 and 11] 3.2 Compensation Board Review of Schedule 4 The Director General consults the Compensation Board regarding the nature, extent, as well as the minimum and the maximum benefits paid under Coida. Their recommendations are referred to the Minister and published in a Government Gazette. 3 3 The most recent amendment was published in Government Gazette No 33858 No 1182 of 10 December 2010 8-12

4. Unfair dismissal for incapacity The Code of Good Practice on Dismissal is Schedule 8 of the Labour Relations Act (No. 66 of 1995: as amended in 1996, 1998, and 2002) The Code of Good Practice has this to say regarding incapacity dismissal: 10. Incapacity: Ill health or injury (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. (2) In the process of the investigation referred to in subsection (1) the employee I should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. (3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. (4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. 11. Guidelines in cases of dismissal arising from ill health or injury Any person determining whether a dismissal arising from ill health or injury is unfair should consider: (a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable: (i) the extent to which the employee is able to perform the work; (ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and (iii) the availability of any suitable alternative work. 8-13

Employers responsibilities to facilitate compensation 1. Under the COID Act an employer is anyone who employs an employee. This includes labour brokers. [COIDA 1(xx)] 2. Employers are obliged to pay a monthly premium (assessment) to the Compensation Fund. The amount depends on how dangerous the industry is, how many workers are employed and what their wages are. The premium can be reduced if there is a low rate of injury in the company or if the employer has preventive systems in place, and the premium can be increased if there is a high rate of injury or illness in the company. It is from this fund that workers are paid compensation for work-related injuries, diseases and death. [COIDA 85] 3. Some employers, like national and provincial government, some municipalities, some employers in the construction industry, and most mines do not pay into the Compensation Fund but have their own compensation insurance funds. However, the claims are still processed and awarded by the Compensation Fund. [COIDA 84] 4. In the event of an injury to a worker at work, the employer must complete Part A of the WCL 2 Accident Report Form and submit it to the Compensation Commissioner within seven days of the incident. [COIDA 39(1)] 5. In the event of an employer finding out in any way that a worker has contracted an occupational disease, the employer must report this to the Compensation Commissioner on the WCL 1 Report of an Occupational Disease Form within 14 days of receiving this information. [COIDA 68 (2)] 6. In the event of a worker suffering temporary total disability due to an accident at work, the employer is obliged to pay the worker 75% of her or his wage for the first three months. These funds are reimbursed later by the Compensation Fund. [COIDA 47(3)] Compensation Fund s responsibility to facilitate compensation 1. The Director General of the DoL is responsible for the implementation and administration of the COID Act. The Compensation Fund falls under the DoL. [COIDA 2 and 3] 2. The Minister of Labour appoints the Compensation Commissioner to assist the Director General of Compensation with the overall administration of the Compensation Fund. [COIDA 2(1)] 3. The Director General may delegate her or his responsibilities to the Compensation Commissioner or any other person in the Compensation Fund. [COIDA 3(1)] 4. The Director General s functions include: [COIDA 4 (1)] b) inquiring into accidents and occupational diseases 8-14

c) adjudicating on claims and other matters coming before him or her for decision d) issuing orders for the payment of compensation in respect of any award made by the Fund e) deciding whether a person is an employee, an employer, a mandatory, or a contractor f) deciding any question relating to: a right to compensation the submission, consideration and adjudication of claims for compensation the calculation of earnings the degree of disablement of any employee the amount and manner of payment of compensation the award, withholding, review, discontinuance, suspension, increase or reduction of compensation the liability for payment of compensation g) deciding whether a person is a dependent of an employee and, if so, percentage of dependence, and, in the case where there is more than one dependent, which shall receive compensation and the allocation of compensation among them h) considering and adjudicating upon the provisional settlement of claims i) deciding upon: the need for, and the nature and sufficiency of, medical aid; the reasonableness of the cost of medical aid, and the amount and manner of payment of such cost j) deciding upon the liability for assessment, tariffs of assessment, the amounts of assessments, the manner of payment of assessments and related matters k) deciding upon any other question falling within his or her functions in connection with the administration of the Act l) administering the Compensation Fund and the reserve fund m) recovering amounts due to the Compensation Fund, including amounts which should not have been paid out, or writing off such amounts if they cannot be recovered n) submitting an annual report to the Minister regarding the administration of this Act during the year o) recording statistics and information regarding the occurrence and causes of accidents and occupational diseases, and awarding benefits in terms of the Act p) instituting inquiries and performing other functions required for the administration of the Act. 5. The Director General may also: [COIDA 4(2)] a) enter into an agreement with any person for the performance of a particular task or service b) found, establish or subsidise organizations whose goals are: 8-15

i. to prevent accidents or diseases due to work ii. to promote the health or safety of employees iii. to assist employees suffering from occupational injury or disease to return to their work, or to reduce disability resulting from their injuries or diseases. 6. The Compensation Commissioner receives notification of workplace accidents and injuries, occupational diseases, claims for compensation, medical reports and accounts, objections, appeals, returns of earnings and payments due to the Compensation Fund. [COIDA 6A] 7. The Director General shall make inquiry into any accident reported in order to decide on a claim or liability in terms of the COID Act. [COIDA 40(1)] Further, the Director General may carry out an investigation, or formally hear a claim, in order to adjudicate on it. [Coida 45(1)] 8-16

4. COIDA reporting and claims procedures Procedures to follow in reporting injury and disease claims What must a worker (employee) do when sustaining an injury at work or being diagnosed with an occupational disease? In the event of an occupational injury, the worker should/must: a. Inform the supervisor immediately, as soon as possible, but not later than the particular shift in which the incident occurred, unless the circumstances prevent this, in which case report as soon as practicable [OHS Act 14 (e)] b. Inform the H&S Rep as soon as possible, but not later than the particular shift in which the incident occurred, unless the circumstances prevent this, in which case report as soon as practicable [OHS Act 14 (e)] c. Note that the employer is obliged to transport injured workers free of charge to a medical doctor of his/her choice. d. Request the employer to provide a copy of the accident report (W.CL.2 form) that must be completed by the employer and submitted to the Compensation Fund. Together with his/her representative, the worker should check the following: o That all his/her names recorded and correctly spelled o That the ID number is correct o That his/her address is correct. If a worker is dismissed and cannot be traced then he/she will not be paid. o That the information provided on wages, regular overtime and bonuses are correct. o That the employer is not blaming the worker for the accident e. Complete the Notice of Accident (W.CL.3) form immediately. This form must be signed by the employee. f. Forward the W.CL.3 form directly to the Compensation Commissioner with a certified copy of the identity document. The employee may submit this form either when the employer has failed to submit a report to the Compensation Commissioner or in addition to the reports that are submitted by the employer and by the medical doctor to the Compensation Commissioner. [COIDA 38(1) and 43(1)] The employee s failure to give notice to an employer does not prevent the employee from claiming compensation if it can be proved that the employer had knowledge of the accident from any other source at or about the time of the accident [COIDA 38(2)] 8-17

In the event of an occupational disease, the worker should/must: a. Complete a W.CL.14 claim form immediately after learning that the doctor has diagnosed the disease. This form must be handed with a certified copy of the identify document to the supervisor/employer who must sign the form. The employer must forward the form to the Compensation Commissioner. The employee must submit this form to the employer even if it is suspected that the disease arose from exposure to a hazard whilst in the employment of a previous employer. b. Request the employer to provide a copy of the Occupational Disease report (W.CL.1 form) that must be completed by the employer and submitted to the Compensation Fund. Together with his/her representative, the worker should check the following: o That all his/her names recorded and correctly spelled o That the ID number is correct o That his/her address is correct. If a worker is dismissed and cannot be traced then he/she will not be paid. o That the information provided on wages, regular overtime and bonuses are correct. o That the employer is not blaming the worker for the accident/illness c. A worker may also complete a W.CL 132 Affidavit by Employee form and send this directly to the Compensation Commissioner together with a certified copy of the Identity document. On this form the employee provides information about the employer s contact details, the accident, the salary at the time of the accident, the period for which the employee was absent and any payments received by the employee during the period of absence. This form must be witnessed by a Commissioner of Oaths. Workers are advised to involve your H&S Rep and/or your shop steward in these steps and make copies of all the documents that you submit to the Compensation Fund. Further, request the medical doctor and the employer to provide copies of all documents submitted to, and received from, the Compensation Commissioner. It is important that an injured/sick worker keeps a record of the all the documents relating to the medical consultations and reports, and all reports submitted to the Compensation Commissioner. 8-18

What must the employer do when a worker sustains an injury at work? a. The employer must provide first aid treatment. b. The employer must provide the injured worker with transport to a doctor of his/her choice. c. In the event that the accident is an incident as defined by OHSA, the employer must follow the reporting requirements under OHSA section 24 and the General Administrative Regulations (GAR) regulation 8. This includes reporting the incident using a W.CL 2 form to the Compensation Commissioner within 7 days. [GAR regulation 8(1)]. The employer s W.CL.2 report must be accompanied by a covering letter from the employer/manager and the copy of an ID of the injured employee and relevant medical reports to enable the Commissioner to issue a claim number and adjudicate upon liability. d. In the event that a worker dies, becomes unconscious, loses a limb or is injured to such an extent that he/she is likely either to die or suffer permanent physical defect, then the employer must immediately report the incident to the DoL Provincial Director by fax, phone or other similar methods. [GAR regulation 8(1)]. e. In the event that the accident is an incident as defined by OHSA, the employer must also undertake an investigation as set out in GAR regulation 9 and OHSA section 20. f. The employer must record the details of an incident or accident gathered in the investigation in an Annexure 1 form which must be kept for 3 years. [GAR 9(1)] g. In the event that a worker sustains an injury in an accident which is not an incident as defined by OHSA, but resulted in injuries which required the worker to seek medical attention other than first aid, then the employer must record such an accident in an Annexure 1 report (GAR regulation 9(1)] h. The employer must forward all medical reports concerning an injury at work and supporting a claim (W.CL.4 and W.CL 5 forms), which are received from a medical doctor, to the Compensation Commissioner within seven days of having received them [COIDA 41(2)] i. The employer must pay the employee 75% of his/her salary for the period of absence up to 3 months after the accident/incident. j. There is no compensation for lost wages for the first 3 days after an incident/accident. k. It is important that the employer submits all the correct documentation to the Compensation Commissioner within the correct time, and that the Compensation Commissioner processes this documentation and finalises its decision on accepting a claim (including assigning a Claim number) so 8-19

that the worker receives compensation for lost wages from the Compensation Commissioner for the fourth and subsequent months (up to a maximum of 24 months) that he/she is unfit for work. l. The employer must complete a Resumption Report (W.CL.6 form) once the worker returns to work or once the Final Medical Report (W.CL.5 form) has been submitted. The Resumption report states the date when the worker returned to work. It also records how much the employer paid the worker in compensation during the period that he/she was off from work with the injury. If the worker was dismissed then the date of dismissal is also filled in on the form. The employer completes this form in order to secure the money paid to the worker in compensation during the first 3 months he/she was off work from the Fund. What is the responsibility of the medical doctor in the case of a work-related injury? a. The medical doctor must complete the first medical report (W.CL 4 form). The report must have a full clinical description on the personal injury (i.e. indicating the nature of the injury, the seriousness of the injury and how long the worker is likely to be off work). The date of consultation must be on the same day or if not, should be reasonably close to the date of accident. The intention is to exclude any other accident that may have happened outside the work environment b. The doctor sends the W.CL 4 First Medical Report to the employer. c. The doctor may not charge the employee since the cost of the medical care is for the account of the Compensation Fund (if the claim is accepted by the Compensation Fund). d. If the medical doctor believes that the injury will take some time to heal and further medical consultations are required then the doctor must complete a Progress Medical Report (W.CL.5 form) for each consultation. The medical doctor must forward the W.CL.5 form to the employer after each consultation. This form is important because it advises the Compensation Commissioner that the worker will be off work for a period of time, and provides a record to the Compensation Commissioner that the worker remains booked off from work. e. Once the medical doctor believes that the worker is fit for work he/she must complete a Final Medical Report (W.CL.5 form). The doctor must submit this form to the employer. In this report the doctor states that the worker is fit to return to work. In the event that there is any permanent disability or impairment, the doctor states this in the report. 8-20

f. It is important to look out for situations where the doctor declares a worker fit for light duty. Depending on the nature of the injury, it is useful to engage the doctor here on whether it would be useful to refer the worker to an occupational therapist (OT) before sending him/her back to work. The OT can undertake a functional capacity evaluation of the worker and an evaluation of the work place and advise the doctor either on a programme to prepare the worker to return to work or alternatively on adjustments that would need to be made a at work to temporarily or permanently accommodate the worker. In this way the doctor is guided in ensuring that the worker does not injure himself again. It is also a way of prolonging the period for which the worker is booked of to provide the necessary support for the worker to re-adjust to work. These steps could make the difference between a worker successfully returning to work or losing his/her job because there is no light duty. g. In the event that the medical doctor believes that that the worker is disabled or impaired to such an extent that he/she is permanently unable to perform his/her work, the doctor must complete the Final Medical Report (W.CL.5 form) and specify the anatomical defect or impairment. The Compensation Fund relies on this report to decide on whether to accept the permanent disablement claim, as well as the percentage disablement. o Hand report of injuries (W.CL.31). o Eye report (W.CL.52). o Foot report (W.CL.221) etc. What is the responsibility of the medical doctor in the case of a worker who has an occupational disease? a. Section 25 of OHSA states that a medical doctor who examines or treats a person with a disease that is listed in the COIDA or for any other disease which he believes arose out of the person s employment, must report that disease to the employer and to the DoL Chief Inspector. In the event that the disease arose from exposure to a hazard at a previous employer, then the doctor must send the report directly to the Commissioner. b. On the first consultation when diagnosis is made, the medical doctor must complete the First Medical Report (W.CL.22 form). The GAR regulation 8(4) states that this report must be submitted by the doctor within 14 days of the examination or treatment. The employer must complete a W.CL.1 form and submit it together with the doctor s W.CL.22 form to the Compensation Commissioner within 7 days of receiving the form. c. If the disease can be treated, but takes time, the doctor must send a monthly Progress Report (W.CL.26 form) to the Commissioner. 8-21

d. Once the treatment is completed the doctor sends the Final Medical Report (W.CL.26 form) to the employer. e. Other medical reports that may be needed, e.g. o Exposure History (W.CL.110) o First medical report in respect of a work related upper Limb Disorder (W.CL.301). o Progress/Final medical report in respect of a work related upper limb disorder. o Post Traumatic Stress Disease report (W.CL.304) NB. Most occupational diseases take time before manifesting themselves. The employee may not have contracted the disease from the current employer hence the history of employment is very important. What must the employer do when a worker is diagnosed with an occupational disease? a. In the event of receiving a report of an occupational disease, the employer must follow similar steps to those outlined above for an injury. b. Depending on the severity of the disease (whether it could result in death or permanent physical impairment or if the employee is off work for more than 14 days), then the employer must investigate, report and record the incident. c. A disease takes time to manifest itself and in most cases it is not possible to identify a single occurrence or accident where exposure took place. Diseases are often the result of repeated exposures. d. Recording the incident and reporting it to the DoL and Compensation Fund are necessary for the Compensation Fund to adjudicate the claim. Reporting an incident requires investigation by the employer and elected health and safety representatives. The trade union should negotiate procedures to ensure that trade union representatives are involved and that elected health and safety representatives adequately trained to undertake an incident investigation. e. An investigation into how a worker may have contracted the occupational disease provides an opportunity to review whether the control measures are working and recommend improvements to prevent further exposure. The investigation finding must be reported and recorded and are important in providing supporting evidence when documenting and supporting a Compensation Fund claim. f. Further, the evidence gathered in the investigation process that reveals non-compliance or negligence might assist in a COIDA claim for additional compensation (section 56). This is an important reason for ensuring that 8-22

there is trade union and the elected H&S Representative involvement in incident investigations. g. The employer has the following responsibilities to administer and process a Compensation Fund claim arising from a reported occupational disease. The employer/supervisor must complete the Employer s Report of Occupational Disease (W.CL.1) immediately after having learned of the accident/disease (either following an employee s submission of a W.CL14 form, or after receiving a medical doctor s completed First Medical Report (W.CL22 form). This must be submitted within 7 days. The employer s report must be accompanied by a covering letter from the department manager and the copy of an ID of the injured employee and relevant medical reports to enable the Commissioner to issue a claim number and adjudicate upon liability. The employer must forward all medical reports concerning an occupational disease at work and supporting a claim (W.CL.22, W.CL. 26 and W.CL 14 forms), which are received from a medical doctor and an employee, to the Compensation Commissioner within seven days of having received them [COIDA 41(2)] The employer must pay the employee 75% of his/her salary for the period of absence up to 3 months after the diagnosis of the disease (if the employee remains booked off by the doctor). It is important that the employer submits all the correct documentation to the Compensation Commissioner within the correct time, and that the Compensation Commissioner processes this documentation and finalises its decision on accepting a claim (including assigning a Claim number) so that the worker receives compensation for lost wages from the Compensation Commissioner for the fourth and subsequent months (up to a maximum of 24 months) that he/she is unfit for work. The employer must complete a Resumption Report (W.CL.6 form) once the worker returns to work or once the Final Medical Report (W.CL.26 form) has been submitted. The Resumption report states when the worker returned to work and how much the employer paid the worker in compensation during the period that he/she was off from work with the illness. If the worker was dismissed then the date of dismissal is also filled in on the form. The employer completes this form in order to secure the money paid to the worker in compensation during the first 3 months he/she was off work. 8-23

Procedures to follow when accidents are not reported Definition An unreported accident/disease is a claim where an employer may have either deliberately or unintentionally failed to report an accident or disease as prescribed by the COID Act resulting in the employee reporting the accident on her own. Procedure for reporting unreported accidents Where a worker decides not to depend on the employer, but to report an accident or disease directly to the Compensation Commissioner him/herself, he/she must complete and submit the following documentation to the Compensation Fund. A Notice of Accident (W. Cl. 3 form) in the event of an accident or a Notice of Occupational Disease (W. Cl. 14 form) in the event of an occupational disease. An Affidavit by Employee (W.Cl.132 form) for accidents or Employee Affidavit A certified copy of Identity Document, Any medical reports available from the medical doctor should also be submitted together with this documentation. One of the following documents should also be attached as proof of employment: Salary slips from the employer or any document that proves employment. Bank statement indicating deposits by the employer. UIF proof of the employee s registration. Sworn statements from eye witnesses to corroborate the employee s statement that he/she was employed by the employer in question. The above documentary evidence is crucial to prove the employer-employee relationship as it is not always easy to prove this, especially where the employer cannot be traced. Workers are advised to always keep the employer s particulars like the trading name of the employer, the contact details and the site address to assist any investigations by DoL labour inspectors in the event of unreported accidents. The above information can be used by the employee to register a claim (or to ensure that a claim is not compromised) where the employer is not complying with COIDA and OHSA by reporting to the Compensation Fund or co-operating by providing the worker with proof of submission. These forms and documents are also submitted where the employer cannot be traced. 8-24

Compensation Fund s Adjudication of a claim Adjudication is the process whereby a decision is taken by the Compensation Fund to accept or reject liability for paying benefits following an accident or occupational disease. Adjudication is undertaken in terms of section 45 of the COID Act. Only the director general or officials delegated by the Director General can adjudicate on a claim. In essence it means that the employer has no power to adjudicate a claim even if the employer does not believe that the disease or injury arose at work. The employer must report any occupational injury or disease for the Fund to adjudicate. The employer is however, allowed to indicate any reservations or dispute on the employer s report form (W.CL.1 and W.CL.2). During this adjudication process, the claim is scrutinized and evaluated by the Compensation Fund in accordance with a specific set of criteria, namely: Was there a specific accident or incident at a specific place and time? Did it cause personal injury? (It is necessary to establish the causal link) Did it arise out of, or in the course of, employment? Was this condition pre-existing? If yes, was it aggravated by this accident or incident? In cases where the employee had a pre-existing condition, the claim may not be accepted unless the pre-existing condition was aggravated (made worse) by this current accident/ disease. The first medical report (W.CL.4 or W.CL.22) with full clinical description is necessary for adjudication to prove that there is a personal injury and the medical condition. Work-related injury in a motor vehicle accident In the event that the injury arose from a motor vehicle accident, the employee is covered by COIDA if he/she was in the employer s transport or in transport that was hired by the employer. The Compensation Fund uses the transport questionnaire to establish the route, the ownership of transport, whether it was free and whether the driver was the employer s driver. Claims for injuries arising from road accidents under other conditions fall under the Road Accident Fund. Work-related injury due to assault Where the employee was assaulted the Fund would need to know whether the assault was work-related or not. A questionnaire is used by the Compensation Fund to gather this evidence. 8-25

Compensation Fund assessment and payment of Temporary Total Disability Progress medical report when employee is still booked off (W.CL.5 or W.CL.26). This report indicates the period that the employee will be out of work because of the injury or illness. As long as the employee s condition has not stabilized, the employee must continue to ensure that the medical doctor completes the Progress Medical Reports and that these are submitted until the employee s condition has stabilized. The progress medical report is necessary for the Fund to pay lost wages (Total temporary disability equivalent to 75% of the employee s salary). The employer must in terms of section 47 (3) of the COID Act, pay 75% of the employee s salary for the first three months. The Fund will reimburse the employer. The worker must complete and submit the Employee s Affidavit (W.Cl.132 for injuries or W. Cl. 305 for occupational diseases) if the period of absence from work exceeds 3 months. Submission of these forms together with the Progress medical reports (W.CL.5 and W.CL 26) for the period of absence will assist in ensuring that the Compensation Fund pays the salary for the remaining period of absence directly to the employee. Once the TTD period has ended, the employer must complete and submit the Resumption report (W.CL. 6) indicating that the employee is back to work and the TTD payment stops. This report also makes provision for the employer to report on whether the employee returned to perform light duty, the period of time that light duty was performed for and the amount paid for light duty. Compensation Fund assessment and payment of Permanent Disability a. The treating doctor must furnish a final medical report (W.CL. 5 of W.CL. 26) as soon as the condition of the employee has stabilized. The final medical report should indicate the impairment of functions or anatomic defects of the employee and where applicable, X-Ray reports, operation reports, eye reports, hand reports, leg reports, lung function tests for occupational diseases like occupational asthma and others must be attached. b. The Compensation Fund uses this report and the evidence provided to assess the degree of permanent disablement of the employee as prescribed by the COID Act schedule 2 and schedule 3 as well as concomitant policies such as Instruction 157. This process results in the Compensation Fund informing the employee (claimant) of the percentage disability that has been awarded. 8-26

c. Any award of 30% or less is paid as a once off lump sum payment by the Compensation Fund. d. Any award of 31% or more is paid as a pension. e. Workers who earn less money receive less compensation because benefits are calculated on a percentage of the employee s salary. f. All permanent Disability benefits are calculated on 75% of the employee s wage. A worker with a 100% disability will not receive more than 75% of his wage per month as pension. g. There is however a maximum pension amount and a minimum pension amount. The maximum pension compensation that an employee can receive per month is R17 366.254. This means that any employee earning more than R23 155.00 per month who is 100% permanently disabled cannot receive a pension of more than the maximum R17 366.25 per month. h. The minimum pension compensation that an employee can receive is R2 430.75 per month5. This means that any employee earning less than R3 241.00 per month will not be paid less than R2 430.75 pension. i. The minimum and maximum amounts are reviewed annually and any adjustments are published in the Government Gazette. {Coida 55] j. A lump sum payment is equivalent to 15 times the monthly salary of the employee with a 30% permanent disability. k. There is a maximum lump sum payment which is R194 5356. This is equivalent to 15 times the monthly salary of an employee earning R12 969.00 per month. This means that anyone earning more than R12 969.00 per month with a 30% permanent disability cannot be paid a lump sum compensation of more than this maximum. l. There is also a minimum lump sum payment for an employee with a 30% permanent disability, which is R48 615.007. This is equivalent to 15 times the monthly salary of an employee earning R3 241.00 per month. This means that anyone earning less than R3 241.00 per month with a 30% permanent disability cannot receive a 30% lump sum compensation of less than R48 800.00 4 Government Gazette No 33858, 10 December 2010 5 Government Gazette No 33858, 10 December 2010 6 Government Gazette No 33858, 10 December 2010 7 Government Gazette No 33858, 10 December 2010 8-27

m. The lump sum compensation for all permanent disabilities which are awarded between 0% and 29% are calculated as a proportion of the 30% (15 times the monthly salary) of the disabled employee. n. For example a worker with a 5% permanent disability will be compensated 5/30 of his 30% disability payout (15 times his monthly salary). o. Where the employee was an apprentice or was below the age of 26 years of age, the employer must declare what another employee in the same position with five years experience or with a qualification in the same trade, would be earning. In other words, the employer must provide information about the earnings of similar employees with qualifications or with five years of experience. It is this wage of the more experienced or qualified employee that would be used to calculate the compensation of the permanently disabled employee. [COIDA section 51] Compensation Fund payment of Pension Pension payout for workers with permanent disabilities a. In cases where the degree of permanent disablement is 31% and above including death, the Fund pays a monthly pension for the rest of the employee s life. The amount of pension for the permanently disabled worker is determined by the degree of permanent disablement combined with the employee s salary at the time of the accident. b. NB. This does not mean that the employee should stop working if he/she can still continue with his/her work. In other words he/she will still receive his/her monthly pension in addition to the salary for his/her current job. In this regard, employers are always persuaded to place the employee in another suitable job if he/she cannot continue with his/her previous job. c. In the event of the death of the employee while still receiving pension, pension will only be extended to the dependants of the deceased employee if the cause of death was linked to the initial injury on duty. d. To prove the link, the death certificate must indicate whether he died of natural causes or not. The common problem is that death certificates would indicate that the employee died of natural causes without any medical report from the treating doctor or a post mortem report which could link the death to the injury on duty or occupational disease. In this regard, employees dependants are advised to consult with the treating medical doctor and get a medical report which can clarify the link. They would have to produce injury on duty/ occupational disease medical reports and any other documentation that could assist the doctor. 8-28

Pension and lump sum payout for dependents of deceased workers a. Where an employee died instantly as a result of an injury on duty, the widow/widower and children (under the age of 18 years) are entitled to a monthly pension respectively. The widow will get 40% benefits while the children are each entitled to 20% up to a maximum of 60% shared if there are more than 3 children. b. The COID Act does not recognize the customary marriage where there is a civil marriage. The Fund is however applying other statutes like the Recognition of Customary Marriages Act to include customary marriage in which case affidavits from family members, proof of lobola, and the traditional leaders endorsement can be used as evidence. Where there is more than one widow, the widows will share the 40%, while their children will share the 60%. c. Where the children above 18 years of age are still at school or undergoing tertiary education, the pension can be extended on production of proof of registration at the educational institution subject to renewal every year. d. The widow/widower must complete a declaration form W.CL.32, and attach the death certificate, the children s birth certificates, marriage certificate/customary union certificate, burial expenses form W.CL.46 and W.CL.3-notice of accident. e. It is advisable for employees to declare to the employer their next of kin and dependants while still alive as this minimizes problems with regard to identifying eligible dependants, particularly where there is more than one marriage and children out of the wedlock. f. In addition to the pension, the widow/widower is entitled to a once off lump sum payment of twice the monthly pension (= 2x 75% of the monthly wage) up to a maximum of R34 732.50 and a minimum of R4 861.50. Procedures for re-opening claims The COID Act allows a serious medical condition of an employee to stabilize within two years however, less serious conditions can stabilize within a shorter period. As soon as the medical condition has stabilized, the treating doctor must complete a final medical report (W.CL.5 or W.CL.26) which indicates the anatomical impairment of functions. The Compensation Fund assesses permanent disability and pays benefits as mentioned above. The claim is then closed as finalized. Should the condition of the employee deteriorate after the claim has been finalized, the employee must see the doctor who must apply for the re-opening of a claim as follows: 8-29

The doctor must confirm that the present medical condition is related to the initial injury on duty. The doctor must explain the treatment programme planned for the employee and how it will reduce the current disability of the employee. All procedures and operations to be done must be mentioned. Must furnish the Fund with this application for consideration and the employee must await the approval from the Compensation Fund. If the application for the re-opening is accepted, the doctor can start with the procedures and the employee will be entitled to total temporary disability wages for loss of earnings while still receiving treatment as submitted in the re-opening claim. Once the employee s condition has stabilized, the doctor must once again furnish a final medical (W.CL.5 or W.CL.26) report like any other claim for assessment of permanent disability. Objections to decisions of the Compensation Fund In terms of section 91 of the COID Act, anyone (employees and employers alike) may lodge an objection against a decision taken by the Director General (Compensation Fund) on claims submitted in terms of the COID Act. A trade union may lodge an objection on behalf of a member. A decision must be lodged by completing an objection form WG.29 within 180 days from the date of the decision. The objection will be heard by a tribunal in terms of COIDA Act section 91. The tribunal is chaired by a presiding officer assisted by assessors appointed by the Compensation Fund. The assessors include: a medical assessor; an assessor representing organized labour (employees); and an assessor representing employers. 8 This tribunal is equivalent to the Magistrates Court and its decisions may only be reviewed by a High Court. The employee may seek legal representation or can be represented by a union representative. Decisions of the Objection hearing are taken by the Presiding Officer who must have support from at least one of the assessors (excluding the medical assessor). In the event that the Presiding Officer has no support from either the employee or employer assessor then he must refer the dispute to the Supreme Court in terms of section 92 of the COID Act. Any person who is affected by the decision of a section 91 Objection Hearing may appeal to the Supreme Court in terms of section 91(5) of the COID Act. 8 Assessors are appointed by the Minister in consultation with the Compensation Board in terms of Coida section 8 8-30

Procedures to apply for increased compensation Applications for increased compensation due to employer negligence Since the COID Act operates on a no fault principle, employees may not sue their employers but are allowed to apply to the Compensation Fund for increased compensation due to negligence on the part of the employers as provided by section 56 of the COID Act. The employee must prove negligence and proof of pecuniary loss because of the accident. Any section 56 application for increased compensation must be submitted in the Application for Additional Compensation form (WG.30 form). The DoL has guidelines or rules for the submission of increased compensation (Department of Manpower, Government Gazette No. 963. Date unknown). In terms of section 91(5) any person may appeal the decision of the Compensation Fund regarding the award or the rejection of the award for increased compensation arising from negligence of the employer. 8-31

5. Failings in the compensation system at workers expense Employers, doctors and the Compensation fund itself cause problems that mean the system fails workers. Problems created by employers Employers failure to report injuries 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. Nonreporting 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. Workers experience incapacity dismissals arising out of injuries or diseases 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 injured at work often not only lose their jobs but also do not 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. Problems created by doctors Some doctors are not filling in the forms at all and others do not fill in the forms correctly. Doctors are not equipped to deal with occupational health cases. They often fail to make the link between the work and the injury or disease. 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 work 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 doctor assessed. 8-32

Problems created by the Compensation Fund Many workers experience that the Compensation Fund treats them with suspicion and disrespect and often favours the employer. Letters and calls are not answered. The employer s version of events is believed over the worker s. There have been many cases where the Compensation Fund has ignored workers claims when the employer has failed to submit the WCL 2 Accident Report form, or only accepted the employer s version of the incident on the WCL 2. Communicating with the Compensation Fund can be time consuming and frustrating. They do not respond to communication. If they do respond to communication it is just to refer you to somebody who also does not answer your queries. 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. You 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. 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 (e.g. 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 would be able to be used to set standards for decisions. Objection hearings take a very long time to be convened by the Compensation Fund, and there are too few legal officers. A lot of resources go into conducting these objection hearings. 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, they are 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. 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 8-33

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. Sometimes the Compensation Fund refuses to pay Temporary Total Disability if the injured worker is not receiving active medical treatment. 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 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 to each child under the age of 18 years equivalent to 20% of 75% of the deceased worker s wage. The Fund does not provide this pension to more than 3 children in a family. This means that whilst a family of 3 children will receive 60%, a family of 4 children, or more children, will not receive more than 60%. They will have to share this same amount (60%). 8-34

Postal Address Industrial Health Resource Group, Princess Christian Home - University of Cape Town, Private Bag, Rondebosch 7701, Cape Town, South Africa INDUSTRIAL HEALTH RESOURCE GROUP Physical Address Industrial Health Resource Group, Princess Christian Home, Matopo Lane (below M3 highway), Lower Campus, University of Cape Town, Mowbray The Industrial Health Resource Group (IHRG) is an occupational health and safety training, advice, research and resource development unit based in the School of Public Health and Family Medicine at the University of Cape Town. IHRG has provided health and safety services to workers and the trade union movement in South Africa since 1980. These services include: Workplace accident investigations OH&S advice and support service Risk assessments Education and skills training workshops for workers and trade unions, and Research and advocacy work on policy development in OH&S and HIV Over the years IHRG has produced a range of accessible and popular resources communicating health and safety information to workers. You can contact IHRG to order these resources: Organising for health and safety A guide for trade unions Health and Safety Networker Newsletters (Issues 6 and 7) Workers Health and Safety Rights poster Protect Your Health At Work poster Organize to Make Work Healthy and Safe poster Occupational Health and Safety Act (OHSA) booklet Compensation for Occupational Injuries and Diseases Act (COIDA) booklet Make Work Safe poster HIV/Aids poster Telephone: +27 21 650 1033 +27 21 650 1059 Facsimile: +27 21 685 5209 E-mail: IHRG-admin@uct.ac.za