The workers’ compensation system fails to protect those it claims to serve Paula Howell Khadija Magardie’s article “Workers’ fund crippled by ‘steady rot'” (October 13 to 19) was an accurate description of what is happening in workers’ compensation.
There is, however, a more fundamental problem, which is whether the current system can adequately serve the interests of those injured at work. Bearing in mind that all employees, with the exception of domestic workers and some members of the armed forces, are affected by workers’ compensation, it is clear the “steady rot” is not acceptable and alternatives must be found.
There are similar systems to South Africa’s Workers’ Compensation Fund elsewhere. But in the United States and Europe, for example, cases are dealt with in a matter of weeks and workers are not disadvantaged by the loss of wages which, naturally, is the main cause of hardship when a worker is recovering from an injury on duty. Compensation systems do work but they rely on proper administration and an understanding by all of what is required. In South Africa, workers’ compensation is governed by the Compensation for Occupational Injuries and Diseases Act 1993, which established the Compensation Fund and the Office of the Compensation Commissioner. The Act gives clear guidelines on what is expected of the system, and the director general of the Department of Labour is responsible for ensuring that it is administered properly. Much of the responsibility for the breakdown of the system lies therefore with the Department of Labour, whose duty it is to ensure that doctors are adequately informed on how injury-on-duty cases should be handled; that employers comply with the requirements of the law, and that employees are aware of their rights. At present none of these duties are being undertaken satisfactorily. Employees are not educated in their rights to compensation and often discover only years after their injuries that they are entitled to assistance.
Doctors, employers and the commissioner’s staff have little appreciation of the overall aim of the scheme which is, of course, to compensate injured employees quickly. There is also no appreciation of the fact that employees have been required to give up their right to sue the employer directly through the courts for the assurance that compensation will be speedy, though greatly reduced. Because doctors are not given adequate guidelines on how to deal with injury-on-duty cases they do not always play a satisfactory role in the compensation process. For example, some doctors refuse to complete medical reports until they have seen the employer’s report of the accident. This is totally incorrect and, what is more, it increases the chances of inadequate medical reports because of the time lapse between treatment and report. Inevitably, long delays in finalising claims result. Furthermore, some of the commissioner’s staff tell doctors that medical expenses will not be paid until they are in receipt of employers’ reports, without realising, it seems, that the commissioner has been given the responsibility of collecting that information. Doctors, thus, use their support staff to chase employers (which is not their responsibility) and those in the state hospitals will simply write off the debt after some time has passed. One doctor in a state hospital told the Legal Resources Centre that he receives payment for only between 30% and 40% of his injury-on-duty cases. This means that the state has to foot the bill for between 60% and 70% of his cases because the compensation system is not working. It also means that between 60% and 70% of his injury-on-duty patients will never receive timeous compensation though some of the luckier ones may receive something years later. Employers also add to the chaos because many do not contribute to the fund, and this is discovered by the commissioner’s office only when an employee lodges a claim. These employers often refuse to complete the required reports or avoid doing so for as long as possible, and will think nothing of dismissing injured employees on the grounds that they are no longer fit for duty. It takes a very tenacious employee with an understanding of his rights to defeat such an employer. Until employers realise that they are, at present, contributing to a relatively cheap insurance fund, and that it is in their interests to comply with its rules, the current problems will continue and employees will continue to be victims. Trade unions could make a difference but so far they have failed to take up the issue and, although they have been allotted five seats on the Compensation Board, according to the Compensation Fund’s Annual Report of 1998 (the most recent report), they have only occupied one of the five seats. This is a pity as the board is the body responsible for recommending changes to the legislation and to the way the fund is being administered. The unions could also play a role in motivating for better rehabilitation of injured workers, who generally are left to fend for themselves whether or not compensation is received. There has been no attempt by the Department of Labour to motivate the development of a comprehensive rehabilitation programme for workers who have lost their jobs because of injuries on duty. What usually happens is that workers, particularly those who have had their claims delayed for a long time, are denied the chance of returning successfully to work because by the time they are able to get the necessary help they are usually not suitable for a rehabilitation programme. Currently, the commissioner’s office offers claimants no advice on rehabilitation and claimants will benefit only if their doctors make the case for them or if they are able to get expert advice. In the long run, if measures are not put in place to correct the current state of maladmistration, the logical solution would be to adopt a system which allows the employee to sue his employer directly through the courts. This would not necessarily solve the problem for injured employees because litgation is a costly process and workers would, most probably, have to rely on legal aid. However, litigation would make employers liable for the true cost of exposing employees to unsafe working environments. A successful litigant could cost an employer many times the R38 000 maximum annual contribution which the fund can collect from an employer. At present there is no real necessity for employers to improve health and safety measures. They are virtually guaranteed that unsafe practices will not come to the attention of the Department of Labour as health and safety inspectors are unlikely to carry out inspections even when alerted by organisations such as the Legal Resources Centre. The government is currently putting much emphasis on poverty alleviation but the failure of the Department of Labour to ensure the speedy and efficient compensation and rehabilitation of people injured at work, and a safer working environment, is adding enormously to the deprivation of some of the most disadvantaged members of our population. Paula Howell is a lawyer at the Legal Resources Centre in Pretoria