The short answer
The Compensation Commissioner will not pay for claims that are made more than 12 months after the accident.
The whole question
My friend injured his knee at work a few years ago but he never got paid. He is still struggling with his knee today. Is there anything he can do?
The long answer
The law that covers workplace injuries is the Compensation for Occupational Injuries and Diseases Act, (130 of 1993) or The COID Act.
If he injured his knee at work or in an accident while working or driving for work purposes, the injury should have been reported to the Compensation Commissioner by completing the WCL.2 form, which is Notice of Accident and Claim for Compensation.
His employer should have completed the WCL.3 form, which is the Employer’s Report of Accident. An employer has to report a workplace injury within seven days, and see to it that a medical certificate is submitted to the Compensation Commissioner.
The employer must pay 75% of the worker’s wages for the first three months after the injury on duty. The employer will be refunded that money from the Compensation Commissioner.
If the worker eventually recovers from the injury, he will be paid for temporary disability. Compensation is worked out as a percentage of the wages the worker was getting at the time of the injury. This will be paid for up to 24 months by the Compensation Fund. If the injury comes back after the 24 months is up, and the worker can’t do his work properly, the case can be reopened if the Commissioner agrees with the medical evidence submitted. If approved, the payments for the original injury will continue. An application for additional (increased) compensation must be made on a form W930 within 24 months of the injury.
If the worker never fully recovers, he will be paid for permanent disability. Compensation for permanent disability is worked out on a scale of how bad the injury is, from 1% (losing a toe, except the big toe, which is 7%) to 100% (losing two limbs or total loss of sight). If it’s up to 30%, compensation is paid out as a lump sum. If it’s more than 30%, it’s paid out as a monthly pension.
The Compensation Commissioner will not pay for claims that are made more than 12 months after the accident. If the worker is off for less than three days, this is not covered by the Compensation Fund.
So, the question is whether his knee injury was reported at the time to the Compensation Fund and, if it was, did the Commissioner turn down his claim? If he did, on what grounds?
If a worker disagrees with the decision of the Commissioner, he can lodge an objection on form W929 and send it to the Commissioner within 90 days of knowing the decision. The Commissioner may then call a formal hearing where the worker can be represented by a legal or trade union representative, or family member. The worker can bring evidence, including expert evidence. The Commissioner will then come to a decision. If the worker is still unhappy with the decision, he can take it to the High Court.
If his knee injury was not reported, why wasn’t it? The employer is required by law to report a workplace injury and assist the injured worker to get medical attention and to fill in the claim form.
He could ask the Black Sash for advice and assistance. These are their contact details:
Helpline: 072 663 3739
Wishing you the best,
Answered on Nov. 11, 2021, 4:36 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.