Workers’ compensation ‘ too little, too late
The Compensation Commissioner’s Office has been strongly criticised for the time it takes to settle workers’ occupational health claims. Some say this is the fault of companies that obstruct the commission’s work, but regardless of where the blame lies, it is workers like Derick Wolfaardt who suffer the consequences. Jo Stein reports.
Derick Wolfaardt had been employed in a factory in Bellville South, Cape Town for 13 years when he developed chronic asthma in 1997.
Medical reports from specialists at the occupational disease clinic at Groote Schuur Hospital and the Drug Research Unit at the University of Stellenbosch argued that there was enough evidence to make a case for work-induced asthma. This was accepted by the compensation commission.
However, Wolfaardt says his employers disputed his application for workers’ compensation and he came close to being fired for excessive periods off work.
He believes that it was his exposure to a substance known as Thermex that caused his asthma.
Wolfaardt says that the company maintained that the necessary precautions to prevent exposure to Thermex had been adhered to, and that there was no evidence to support his claim.
Wolfaardt also claims that all documents and reports he submitted as an appointed safety representative over the years to his employer, regarding unnecessary exposure to dangerous substances such as asbestos and Thermex, have now mysteriously disappeared from company records.
The company policy is not to give out any information about individual cases, but according to the human resources officer, the company is happy to arrange a site tour to show safety standards and the precautions in place to prevent occupational injury and disease.
Dr Rodney Ehrlich from the WorkHealth Clinic of the University of Cape Town points out that while Wolfaardt’s claim met the criteria for occupational asthma, cases such as his are seldom clear-cut because it is not easy to identify exactly what causes asthma.
Compensation claim disputes between companies and workers are bound to arise, argues Ehrlich, and is no excuse for the length of time it takes the compensation commission to settle claims.
“If the compensation system worked quickly and efficiently, then it would have provided Wolfaardt with an income which would have allowed for his retraining. But now, he’s been unemployed for over three years. It’s supposed to be a form of social security to cover people for the period they can’t work, not a cash price to compensate them for their injury.”
The compensation commission has finally accepted Wolfaardt’s claim for occupational asthma and has awarded compensation. But because the claim took three and a half years to resolve – Wolfaardt has now lost a great deal more than his health and he places the blame for the delay squarely on his company.
“We’ve spent my whole provident fund on medical bills. I have lost my house and my car. We’ve been living on handouts from my family since 1997. ‘¦Money won’t make up for the losses I’ve had to suffer. And I can never go and buy a house or a car again, because I’m blacklisted.”
Wolfaardt is still waiting for his payout from the compensation commission. According to Mr Aaron Msiza, administration officer at the Compensation Commissioner’s Office, this is because his employer failed to provide relevant salary details despite repeated requests for these over many months.
In the meantime, Wolfaardt is again being sued for the payment of all the outstanding medical and legal bills that he incurred fighting for compensation.
The compensation commission could not provide further details regarding this specific case before going to press. However, according to Johan Van der Merwe, head of the Claims Sub-Directorate at the compensation commission, most of the delay in the processing of claims is the result of a lack of adequate information.
According to Van der Merwe it is in the interests of companies to deny occupational health hazards and reject the validity of compensation claims because the levy they pay into the compensation fund depends in part on their risk rating.
“Employers don’t want to complete the forms, and even if they do complete them, they confuse and obfuscate them because it’s in their interests not to have more injuries and diseases,” says Sophie Kisting of the Industrial Health Research Group.
The Compensation for Occupational Injuries and Diseases Act (COIDA) makes no provisions to protect workers who submit compensation claims from potential victimisation by employers.
“If the employer decides to make life difficult or dismiss them, there’s nothing to protect the workers from this,” says Dr Leslie London of the Public Health Department at the University of Cape Town.
Employers who fail to comply with the provisions of the Compensation for Occupational Injuries Act (COIDA) can be fined, but it is impossible to institute proceedings against all the companies at fault, argues Van der Merwe from the compensation commission.
“There are about 250 000 employers registered with the commission. ‘¦If we levied all the penalties for not reporting in time, it would come to millions.”
But experts such as Paula Howell at the Legal Resources Centre in Pretoria believe that the current legislation gives the compensation commission sufficient powers of investigation to get the evidence it needs to resolve a case one way or the other.
“If it’s easy for employers to hold things up then that’s because the compensation commission doesn’t do its job,” she says.
A recent submission to the Public Protector by signatories representing occupational health practitioners and organised labour also argues that the Commissioner is empowered, and should be compelled, to ensure compliance with the provisions of the COIDA Act.
The submission states that “‘¦the commissioner has, to our knowledge, failed to appoint any inspectors to carry out the powers of the Act relating to compensation. As a result, employers who fail to submit documentation are not held to account, and claimants are penalised.”
Even if employers did comply with all the provisions of the Act, argues London, the compensation system as it stands would still favour the employer over the employee.
London suggests that the onus of proof should be shifted from the worker to the employer. He argues that at present, it is workers who have to prove that they have an occupational injury or disease rather than employers who have to prove otherwise.
“It’s an insurance cover for employers and not an insurance cover for workers,” agrees Kisting. ‘ Health-e News Service