I received an e-mail from a young man who had sustained a laceration to his right hand while on duty. He works in a field where he physically uses his hands.
His employer immediately took him to hospital for treatment and he has been off work ever since. After three months of incapacity, he is still unable to bend or close his hand.
His employer has now informed him that they can no longer afford to pay him. He is very concerned as it appears that tendons and nerves have been severed, necessitating further surgery.
The reader is unsure of his options.
When an employee sustains an injury on duty, the employer should preferably not take him/her to a hospital or clinic. At such institutions, a general file is opened and the patient receives basic treatment before being discharged.
An establishment like the IOD Centre in Port Elizabeth specialises in these cases. The doctor will open a file and supply the employer with a detailed first medical report, which will enable the employer to report the incident to the Compensation Commissioner for consideration.
If the injury needs continuous monitoring, the employee will be able to return for further treatment and on each occasion a progress report will be completed. Visitations will continue until the doctor is satisfied and a final medical report will be sent to the employer.
If our reader had been taken directly to the IOD Centre, the doctor would’ve noted in his progress reports that he required further treatment and probably also surgery. The employer would also have been supplied with a medical certificate, which would’ve given a clear indication of when to expect the employee back at work.
This would’ve forced the employer to report the matter to the Compensation Commissioner and arrangements would’ve been put in place to pay the employee 75% of his monthly salary while recovering.
My advice is that the reader should go to the IOD Centre, who will ask his employer for a copy of the initial hospital report. This will also force the employer to submit an employer’s report to the commissioner.
Once submitted, an official application can be lodged with the commissioner to determine if there is permanent or temporary disability and if any compensation is due.
Our reader must understand that his employer cannot allow him to be off sick indefinitely. After long periods of absenteeism, employers will usually call for an incapacity hearing.
At this hearing, the employer will determine whether the employee is able to return to work. If the incapacity is of a permanent nature, the possibility exists that he/she can be dismissed (it must be substantively and procedurally fair).
After consultation, the employer may consider modifying or adapting the employee’s duties. If not possible, the employer can consider placing the employee in a different position, even if it is at a lower salary.
If the employee refuses the alternative job, he may be asked to resign with no further claim against the employer.
Send your labour and injury on duty questions to firstname.lastname@example.org.
Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation, including injuries on duty. They also deal with other aspects of the law.
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