Our injury on duty (IOD) scenario this week is of an illiterate 58-year-old man who has been working for the same company for 39 years.
While going about his daily duties, the door of a machine toppled over onto his arm and severely injured him. His employer took him to hospital, where he received treatment.
One month later an employer’s report was compiled and sent to the Compensation Commissioner for consideration. By this time, the employee had almost completely lost the use of his arm.
As a result of a number of errors in the report – such as an incorrect workmen’s compensation number, date of incident and discrepancies regarding the employee’s salary scale – the claim could not be processed. The employer also claimed that he had given the employee R2 000 to assist him with the initial medical costs.
Since the accident, the employer has closed up shop and retired.
In the meantime, the employee has gone for a number of follow-up visits to the hospital and the amputation of his arm is a distinct possibility.
The employee asked me if he had a claim against his former employer and what he needed to do to have the errors in the employer’s report rectified.
Firstly, I would advise him to approach his ex-employer as soon as possible to obtain an affidavit stating that both the date of the incident and the workmen’s compensation number, as filled out in the report, are incorrect.
The issue of the incorrect salary scale, in this case stated as lower than the actual figure, is often a direct result of employers being misinformed about the workmen’s compensation process.
They often falsely believe that they will have to pay compensation out of their own pockets for years to come, which is not the case. Employers, who have paid the required monthly levies towards the Compensation Fund, will be fully covered.
If there is a discrepancy about the salary and the employer refuses to rectify it, the employee may have to approach the Commission for Conciliation, Mediation and Arbitration (CCMA) for assistance and provide them with proof of his/her earnings.
In this instance, the (former) employer will have to prove the initial payment he claimed he had made to the employee. The latter can, on his part, provide the Department of Labour with copies of his bank statements to prove the contrary.
After the above processes, the Department of Labour will be in a position to rectify the information on the WCL2 form, which will put the employee in a position to proceed with the claim.
The employee has no claim against the employer. He/she does, however, have a claim against the Compensation Commissioner, who will have to pay an amount equal to 75% of the employee’s monthly salary, usually for a period of three months, as well as any other awards relating to permanent disability.
IOD’s differ from claims against the Motor Vehicle Accident (MVA) Fund in the sense that the latter compensates for pain and suffering.
Send your labour and injury on duty questions to email@example.com.
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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