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Claims for Compensation – things to watch out for

When it comes to claims for compensation, I have seen many debates on the issue of whether or not 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 DIFR at zero and for the purposes of refusing to report the accident.

Let us look at why it is unlawful to “assess” an accident and then not report it for compensation.

The COIDAct says 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 then meets the above criteria. One typical example is the transportation of employees where the company uses an outsourced transporting company. I will get to this later on. Another example is the receptionist being asked to pick up stationery from a store during her lunch break, or the manager attending a conference and an accident happened during the “networking session” after the conference.

Yes, there are many arguments for and against the “assessment” of an accident by the employer.

But, it is not your call.

Section 39 of the COID Act says that an employer shall (not negotiable) report an accident within 7 days after it was made known to him/her. The “making known” can be done by the employee reporting it, or by having learned of it in some other way. If an employee therefore fail to report the accident, but post it on facebook and the employer or an employee of the employer sees it and reports it, it is regarded as “having learned of it”. You now have 7 days to report it.

Can you assess it during the 7 days? Yes, you can waste all your resources, but you still have to report it, regardless of the outcome of your assessment.

Section 39(7) makes this quite clear in that “for the purposes of this section [39] an accident, includes any injury reported by an employee to his 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 so arise out of and in the course of his employment.”

The Act also allows in Section 39(12) for the employee (or his/her dependents) to ask for a copy of the reported claim for compensation and the employer MUST provide such copy.

Now that we have cleared that out, what about our accident statistics and the star-grading? What about our Zero Harm track record?

Saving face – Honestly

Well, frankly, any track record built on deception and ignorance of the law, deserves to be shot down. But, you don’t have to go from 5 Stars to No-stars.

We are dealing with two Acts here. The first being the Act dealing with the prevention of accidents, and the second dealing with the reality that accidents do happen regardless. I am referring to the OHS Act and the COID Act respectively.

The Occupational Health & Safety Act’s main purpose is to prescribe the establishment of a risk free work environment.

The COID Act realise this is not possible and allows for injured employees to be treated and compensated at minimal cost to the employer.

When an employee is then injured, and you are of the opinion that the cause of the accident was not directly related to any provision under the OHS Act, you do not have to include it in your Accident statistics. Remember the DIFR or whatever statistics you keep, is a retrospective measure of the efficiency of your H&S program. It is generally understood that more effort results in less accidents.

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

How do we determine that?

Here, Section 8(2) of the OHSAct can serve as guideline. We can also look at the “purpose” or long title of the OHSAct. From this we can derive a few criteria which we can use to determine if an accident can be disregarded for the purposes of statistical analysis and Star-gradings.

Firstly, ask yourself (Q1) if the accident happen as a result of:

The production, processing, use, handling, storage or transportation of an article or substance?

This could include things like solid matter, liquids, gasses, and any physical products.

The use of plant?

This would include fixtures, fittings, implements, equipment, tools, appliances etc.

The use of machinery?

This would include anything that has an energy source like electricity, pneumatic energy, or hydrodynamic energy etc.

The performing of any work?

The “work” performed has to be directly linked to the items in point 1 to 3 and the injured person’s job description or job function.

If any of your answers is “yes” you have to ask the next question (Q2).

Q2, ask if there is 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 Q2 is “No”, then you can disregard all COID claims which did not result from the activities in points 1 to 4. If the answer is “Yes” you cannot disregard any COID Claims resulting from these activities.

Remember, this is a suggestion, and not a legal requirement. You have to create your internal policies and procedures if you want to use this concept and maintain it. Despite this, you still have to comply with Section 39 of the COID Act.

Specific scenarios covered by COIDA

The COID Act also cover employees against accidents which may not arise directly from their job-description. This include work outside of the RSA, attending training on or performing emergency work, like first-aid, ambulance and fire fighting, and being transport to and from work.

I will cover each of them, perhaps in a separate article would be required, but for now let’s look at the issue of “transportation of staff”.

Click here to continue.

Rudy_D Maritz
Rudy is an experienced SHEQ Legal advisor and has more than 30 years experience in criminal, maritime and environmental law. He is the CEO of the Cygma Group in South Africa, incorporating Cygma SHEQ (SA)(Pty)Ltd, Cygma Property Risk Management and Cygma Solutions. Rudy is also an Author for and was the Magazine's publisher until April 2018.
He worked for various industries, including law enforcement, fishing, transport, logistics, construction, and telecommunications. For the last 5 years, he has been a facilitator for ECSA accredited CPD training in Construction Contracts & Risk Management.

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