I recently received an e-mail from a reader who had damaged his leg in an accident at his place of work in 2005.
Following the accident his leg was amputated below the knee, but due to endless problems since, it has been necessary for him to undergo numerous subsequent surgeries.
Following negotiations with his employer, he was offered another position and returned to work in January this year.
He duly informed his employer that he was still to undergo further surgery and was awaiting a reopening letter from the Compensation Commissioner for the go-ahead.
This letter arrived in March and he presented it to his employer with a doctor’s note informing them of the date of the operation.
Upon receiving his pay at the end of the month in which he had undergone the procedure, he realised that his employer had short-paid him.
His question is whether the time off to undergo the last operation falls under the banner of Injury on Duty (IOD) or if it is viewed as sick leave.
An IOD case can be closed by the commissioner due to two reasons: completion of medical treatment and time lapsed.
In the first instance, the physician will give the injured patient all the treatment he needs until the injury has stabilised. Once this stage is reached, the doctor will provide the patient with a WCL5 form, which is the final medical report.
This report will note any permanent disability – in our reader’s case the amputated leg –and the commissioner will then determine the degree of compensation to be paid out.
In the second instance, IOD cases older than two years are automatically closed. Once it is closed, the patient will have to visit his doctor in order to have the case reopened.
This will only happen after a thorough examination and the determination by his doctor that the current injury is in fact linked to the original IOD. The doctor will then assist him to apply for the reopening of the IOD case.
The commissioner can then reopen the case and the employee will qualify for the coverage of reasonable medical expenses and medicine.
Our reader had been receiving 75% of his salary during the time he was off work following the amputation of his leg. This is in accordance with the Compensation for Occupational Injuries and Diseases Act 130 of 1993, amended by the Compensation for Occupational Diseases Act 61 of 1997.
This act states that compensation for temporary total disablement shall be calculated on the basis set out in item one of Schedule 4, which reads: “75% of an employee’s monthly earnings at the time of the accident subject to maximum compensation of R7 712,25 per month . . .”
As soon as our reader resumed his duties in his new position, he again qualified for a full salary. When he however applied for the reopening of his IOD case and went for further surgery, he would only have received 75% of his salary during his time off, explaining why he has been short-paid.
During an employee’s absence from work, his adjusted salary can be paid directly by his employer – who will be able to claim the money back from the commissioner – or he/she can claim it directly from the commissioner (which will probably take longer).
Our reader’s leave is thus not viewed as sick leave, but as part of his original IOD.
Send your labour and other workplace related questions to firstname.lastname@example.org.
Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also covers injury on duty cases as well as all other aspects of the law.
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