Chapter V: Claims For Compensation

This chapter of the COIDA provides for the procedures and relevant matters to be followed by

  • Employees
  • Employers and
  • The Compensation Commissioner (CC)

to deal with claims emanating from injuries on duty.  It thus prescribes how to constitute a claim under the Act.  For those who are involved in claims administration it is essential to be familiar with the provisions that are contained in this chapter.  There are quite a few technical issues included in sections 38 to 46 that are sometimes confusing to many people and I intend to point these out to you.  The rest are self-explanatory and you can study them without assistance.  The ones that I will deal with can be termed as “frequently asked questions”.

Section 38 deals with the reporting of accidents by employees to their employers.  The important aspects in this regard are:

  • Reporting can be in writing or verbally;
  • It shall be done as soon as is possible (please do not confuse this with the reporting provided for in the OHSA);
  • Failure to report the accident to the employer does not mean that the employee shall not be entitled to compensation if the employer “had knowledge” from another source about the accident.

Section 39 provides that the employer shall in the prescribed form (such as the W Cl 2) report the accident to the CC.  This report must be within seven (7) days after “having received notice” about the happening of an accident.  Many employers are under the impression that it is within seven days after the accident happened.  This is obviously not correct.  Let us say the employee waited 10 days before reporting the accident to the employer, the latter will then be unable to report it seven days from the date of the accident; that is the reason for the procedure structure of the section.

The most common incorrect statement that I have encountered with workers’ compensation is that the “accident” was not reported because the individual dealing with the claims in the organisation does not believe the employee’s allegation that he was injured at work.  The reasons for the disbelief are numerous but not relevant for this document.  I will for your benefit quote the subsection which should never be forgotten:

“Section 39(7):  For the purposes of this section 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 thereof.”

The bottom-line is that you have no discretion to decide whether the incident reported to you by the employee is a reportable “accident” as defined in the COIDA.  The only person who can and will eventually decide about the validity of the claim is an officer in the CC’s office.  So just report and make your view quite clear on the prescribed form where the relevant question about the accident is posed.

Section 40 gives the CC the powers to request further information from the employee which must be furnished to avoid a repudiation of the claim.  Subsection 40(3) on the other hand compels the CC to supply information to the injured employee if it is requested.  The implication of this is that the CC is legally obliged to reply to correspondence, something that does not seem to be common knowledge in that office.

Section 44 is important as it ties in with section 38 which was discussed above.  This section deals with the prescription of a claim and reads as follows:

“A right to benefits in terms of this Act shall lapse if the accident in question is not brought to the attention of the commissioner or of the employer or mutual association concerned, as the case may be, within 12 months after the date of such accident.”

The implication of this is that the “as soon as possible” in section 38 in actual fact can be 12 months after the date of the accident.  Technically speaking that is the correct interpretation but let me assure the readers that the longer the employee waits to report it to the employer the more difficult it becomes to prove the accident.  Remember the onus to prove an accident is squarely on the employee as he or she is the claimant, not the employer.  The employer reports the accident; he does not institute the claim against the fund.  It is always difficult to convince the CC that an employee was involved in an injury on duty if he waits months before reporting it to the employer.

The provisions of sections 45 and 46 have, as far as I can gather, become obsolete.  The mechanism of formal hearings to decide about the acceptance or not of a claim makes it so much easier and the decision transparent.  The rules and procedures relating to formal hearings are fully described in these sections.  But then I suppose it is so much easier to repudiate a claim and wait for a formal objection by the employee which will then be heard years after the event.

Till next month.