CLAIMS FOR COMPENSATION: CRUCIAL ELEMENTS

By Neil Enslin, head: Occupational Health and Safety, MBA KZN

When it comes to claims for compensation, many debates have arisen about whether an accident arose out of an employee’s employment. In most cases, this question is asked by the person responsible for accident prevention and keeping the disabling injury frequency rate (DIFR) at zero, in case they are not obliged to report the accident.

Let us look at why it is unlawful to “assess” an accident and then not report it for compensation. The Compensation for Occupational Injuries and Diseases Act (COIDA) states that an accident has to arise out of and in the course of an employee’s employment, and it must result in personal injury, illness or death. Many employers believe it is their right to assess whether the accident meets these criteria. An example is a receptionist being asked to pick up stationery from a store during her lunch break and being involved in an accident while doing so. Another example is a manager attending a conference and having an accident during the networking session after the event.

Section 39 of the COIDA states that an employer must report an accident within seven days after it was made known to him/her. This “making known” can be done by the employee reporting it, or by the manager having learnt of it in some other way. If an employee therefore fails to report the accident, but posts about it on social media and the employer or an employee sees the post and reports it, it is regarded as “having learnt of it”. When this occurs, the employer has seven days to report the accident.

The employer may assess the accident during the seven days, but the accident must still be reported, regardless of the outcome of the assessment. Section 39(7) makes this quite clear: “for the purposes of this section [39], an accident includes any injury reported by an employee to his/her employer, if the employee when reporting the injury alleges that it arose out of and in the course of his employment and irrespective of the fact that in the opinion of the employer, the alleged accident did not arise out of and in the course of his employment”.

The Act also allows in Section 39(12) for the employee (or his/ her dependants) to ask for a copy of the reported claim for compensation. In this event, the employer must provide a copy.

The Occupational Health & Safety (OHS) Act and the COIDA have reference for claims for compensation. The OHS Act’s main purpose is to prescribe the establishment of a risk-free work environment and prevent accidents. The main objective of the COIDA is to provide compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees, or for death resulting from injuries or diseases, as well as matters connected therewith.

When an employee is injured and the employer believes that the cause of the accident was not directly related to any provision of the OHS Act, the employer does not have to include it in his/her organisation’s accident statistics. The DIFR, or whatever means is used to record statistics, is a retrospective measure of the efficiency of a health and safety programme. It is generally understood that more effort results in fewer accidents.

If the accident had nothing to do with the actual work performed, it may be disregarded.

Section 8(2) of the OHS Act can serve as a guideline. The “purpose” or long title of the OHS Act should be examined. From this, one can derive a few criteria which can be used to determine whether an accident can be disregarded for the purposes of statistical analysis and star-gradings.

Firstly, the employer should ask him/herself whether the accident occurred as a result of:

• The production, processing, use, handling, storage or transportation of an article or substance. This could include things such as solid matter, liquids, gases and any physical products.

• The performing of any work. The “work” performed has to be directly linked to the items in points 1-3 and the injured person’s job description or job function.

If any of the answers are “yes”, the employer should proceed to the following question: “Is there a specific provision in the OHS Act, the regulations and the safety standards that is intended to cover this by imposing a duty on the employer?”

If the answer to this question is “no”, then all COIDA claims which did not result from the activities in points 1-4 may be disregarded. If the answer is “yes”, any COIDA claims resulting from these activities may not be disregarded.

Remember, this is a suggestion and not a legal requirement. Internal policies and procedures must be created and maintained if this concept is to be used. Nevertheless, employers still have to comply with Section 39 of the COIDA.

• The use of plant. This would include fixtures, fittings, implements, equipment, tools, appliances, etc.

• The use of machinery. This would include any energy source such as electricity, pneumatic energy, hydrodynamic energy, etc.

The COIDA also covers employees against accidents which may not arise directly from their job description. This includes work outside of South Africa, attending training on or performing emergency work such as first aid, working in an ambulance and firefighting, and being transported to and from work.