In a previous issue of the MISA eData we dealt with what your rights are when you are injured driving a company vehicle to and/or from work while performing your duties. In this issue we look at what happens to your remuneration when you are booked off after an injury on duty (IOD).

Remuneration after an IOD:
The Compensation for Occupational Injuries and Diseases Act (COIDA), provides that an employee is, as per Section 47(3) (b), entitled to at least three months (90 days) compensation from the date of the accident. Bear in mind that COIDA, Section 22(2), provides that no "periodical payments" shall be made in respect of temporary total disablement or temporary partial disablement which lasts for three days or less. Should you therefore be booked off due to an injury on duty (IOD) for three days or less, the Compensation Fund does not pay compensation.

Who is responsible for payment three days or less?
The answer is found in the Basic Conditions of Employment Act, 1997(BCEA). The application of "sick leave" to occupational accidents and diseases is covered by Section 24 of the BCEA. It stipulates that sick leave does not apply to an inability to work caused by an accident or occupational disease as defined in the COID Act, except in respect of any period during which no compensation is payable in terms of those Acts. Ultimately, the Employer is obliged to pay you should you be booked off as a result of an injury on duty for three days or less.

Who is responsible for payment four days or longer, but less than three months?
It is the responsibility of the Employer to pay you at a rate of at least 75% of your earnings, from the first day, until you return to work (COIDA Section 47 (3) (a)).

What does 'compensation' mean?
Item 1 of Schedule 4 stipulates that your earnings must be the remuneration that you would have received from your employer and includes:
• The value of any food or quarters or both supplied by the employer;
• Any overtime payment or other special remuneration in cash or in kind of regular nature or for work ordinarily performed;
• Any other remuneration in cash or in kind to an employee by virtue of his/her contract of service, including commission, cost of living allowance, and incentive or other bonuses.

What happens after three months?
After the expiry of three months, you may claim directly from the Compensation Fund by completing and submitting a W.CL. 132 claim form accompanied by an affidavit to the Compensation Commissioner. Your Employer may, however, elect to continue paying you and claim back from the Compensation Fund.

Is there a limit on the period of compensation?
Sometimes the recovery period is extensive. COIDA provides for continued compensation over and above 12 months. Should the period of injury/recovery exceed 24 months, it is within the Director-General’s discretion to treat the disability as permanent. (Section 47(6))

Thought to ponder
The High Court was required in Jansen v Compensation Commissioner (at 2141) to consider the correct process for determining the compensation payable for permanent disablement in terms of COIDA.

The Compensation Commissioner had refused a claim by an employee who was totally disabled because the Commissioner found he could not determine the extent of the employee's eventual permanent disablement, should he undergo remedial surgery in the future. The Court found it would be unfair and contrary to the objects of the Act to refuse the employee full compensation simply on the basis of possible beneficial future treatment. COIDA catered for possible future improvement by providing for the review of awards on good cause shown, and the employee was entitled to an award based on total disability at the present time.

MISA members should contact us immediately after an accident has occurred so that we can offer professional advice and assistance. As always, MISA is only a phone call away!

Article by Frans Phalane, MISA Legal Department.

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