Workers’ compensation system adds insult to injury

Signatories, representing occupational health practitioners and organised labour, say that they are deeply concerned at the ongoing lack of fairness and effectiveness of the entire compensation system.

“We had high expectations that with the advent of democracy and institutional transformation things would improve for workers. However, despite many suggestions to improve the situation, little has changed. Ultimately, the performance of the Compensation Commissioner’€™s [Sibongile Magojo] office is wholly inadequate. We have come to the conclusion that the Public Protector is better placed to find a solution,” says Professor Leslie London of the Community Health Department at the University of Cape Town.

A review of the records at the Workers Occupational Health Clinic in Woodstock, Cape Town from 1991 to 1997 shows that 17 percent of successful claimants, most of them suffering from cancer, died before their compensation was paid out.

Of the 22 percent of claims which were rejected at first submission, 15 percent were successful on appeal. “Had we not appealed, these people would not have received compensation,” says Dr Mohamed Jeebhay, author of the review.

The painstaking and expensive process of appeal is made difficult because, “the Commissioner does not provide grounds or criteria for many of her decisions on claims, even after requests for such information have been made,” states the submission to the public protector. And when reasons for decisions are given, these are all too often inappropriate, adds Jeebhay.

The need to establish regional medical panels of doctors to evaluate submissions is specified in the Compensation for Occupational Injuries and Diseases Act of 1993, but seven years later the panels are still not functioning.

“It would appear that more energy has been geared towards paying medical practitioners but less to paying the actual recipients of the claims. It takes about nine months for doctors to get paid out, but 16 months for claimants,” says Jeebhay.

If a claim is accepted, doctors are paid out by the compensation fund directly. If it is rejected, patients must pay their own bills. And many doctors are not prepared to await the outcome of appeals before they begin suing patients for payment. This is despite the fact that they themselves have diagnosed the patient with an occupational injury or disease.

Klaas Sauls who works at CK Manufacturing in Atlantis had an operation after he injured his back helping a colleague during an accident at work. He says his claim was rejected because helping another injured worker was not considered part of his job description. He now owes the Stellenbosch Medi Clinic R10 520,72. He has received a lawyer’€™s letter saying that unless payment is made, his house will be put on auction and sold in order to pay his bills.

But there is no point blaming the compensation commissioner and her staff, says Dr Sophia Kisting from the Industrial Health Research Group at the University of Cape Town. “It’€™s the system itself which is at fault. The problem is bigger than the person sitting there”, says Kisting. “They can put a new commissioner there and it will be the same.”

“Some of the blame must also be placed squarely on the shoulders of employers,” says Simon Arries, National Union of Metalworkers of South Africa (Numsa) Organiser in Atlantis. Employers’€™ premiums (their contribution to the fund) depend on their risk rating. The more injuries claimed for, the more they must pay.

“Employers don’€™t complete injury-on-duty forms. They want to keep it out of the records to keep up their accident-free hours. We must call a spade a shovel and start doing something about it,” agrees Johan Van der Merwe, Head of the Compensation Commission’€™s Claims Sub-directorate.

There are other major flaws in the system. Because payouts are calculated according to income, the system is prejudiced in favour of those in higher-income brackets.

“If a doctor like myself loses a finger, and if a street sweeper loses a finger, I will receive a bigger compensation because I earn more. Yet, we’€™ve both lost a finger. The implication is that a street sweeper’€™s finger is of less value,” says Kisting.

A further concern, says Kisting, is that the Compensation Act excludes the 1,5 million working women who are domestic workers.

“The speediest way to resolve these problems, given all the unhealthy aspects of the system,” says Kisting, “is to appoint a commission of inquiry which is akin to the Leon Commission on the mines. This resulted in the Mine Health and Safety Act which is amongst our best health and safety legislation.”

According to Kefilwe Tselane, Senior Deputy Compensation Commissioner, R637,4 million in compensation and R716,9 in medical bills will be paid out for the year 1999/2000.

Approximately 290 000 new claims are reported each year. There are also about 100 000 files from previous years which are still open, largely due to outstanding or incomplete documentation from employers and doctors.

“In the claims environment the backlog is 15 000 and 10 000 respectively to be handled by the compensation and medical sections,” says Tselane.

According to Busi Mkhwebane, the Public Protector’€™s Senior Investigator dealing with this case, “If there is maladministration or processes which are prejudicial to the public, we will make recommendations. If they don’€™t comply, then we will take them to parliament. I can’€™t say how long it will take [to implement the necessary changes], it will depend on their budget and resources.”

Improvements in the functioning of the compensation commissioner’€™s office are already underway, says Tselane. Electronic records will replace physical files and the functions of the office are to be decentralised to provincial labour department offices.

But although these improvements are welcome, they will not address the many systemic problems which go way beyond the efficiency of the compensation commissioner’€™s office itself. – Health-e news service

Signatories to the submission to the Public Protector are:

The Workers’€™ Health Clinic, University of Cape Town; National Union of Metal Workers, South Africa; Respiratory Clinic, Groote Schuur Hospital; South African Society of Occupational Medicine, Western Cape; Industrial Health Research Group, UCT; AIDS Law Project, University of Witwatersrand; Occupational and Environmental Health Research Unit, UCT; South African Society of Occupational Health Nurses, Western Cape Branch.

BOX.

Beth is a nurse who became HIV infected 5 years ago. She was putting up a drip on an HIV positive baby at Carltonville hospital when she injured herself with a needle full of blood. Beth is entitled to numerous benefits from the Compensation Fund, including money for treatment which would prolong and improve the quality of her life, says Anita Kleinsmidt, a lawyer at the AIDS Law Project.

Instead, she can’t even get insurance on the bond for her house. “She is concerned that if she becomes ill and can no longer work, she will be unable to pay the bond, lose the house and become destitute,” says Kleinsmidt. This file remains open because the compensation commission has yet to receive the necessary documents from Carltonville hospital.

Sally Petersen, who works at AMC Classics, lost three of her fingers seven years ago while operating a faulty hydraulic press machine. At least nine employees have been injured while on duty at AMC Classics in Atlantis over the last two years, says Simon Arries, local NUMSA Organiser in Atlantis.

Sally is in constant pain, and cannot move or close her hand. “I can’€™t peel a potato or an onion. I can’€™t wash my clothes,” says Sally, who is sole breadwinner and single mother to four children. When Sally lost her fingers, she received R10 000 remuneration. Since the accident, Sally has had three operations. But when a specialist (Dr Oke Van Zyl) operated for a third time, he failed to specify that the injury was work-related, says Sally. The compensation commissioner therefore refuses to pay out and Sally has been left wondering how to pay the surgeon’€™s bills. Sally has had to go back to work at AMC Classics. She says, “The work is too heavy but I need the money. If they see I can’€™t do the job, they could just throw me out. And who wants me like this at another job?”

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