This chapter provides for the legal remedies that are available to all the parties involved in workers’ compensation. Before I supply you with a brief summary of the more important aspects of these remedies, I must caution you that there is an enormous lack of understanding regarding the content of the sections contained in the COIDA, on the part of employers and employee on the one hand as well as in the office of the CC. I am not going to try in the short document to speculate about the reason for this.
An aggravating factor which places especially the employees in a difficult situation is that they more often than not cannot afford an attorney familiar with the legal aspects of the COID Act. If the employee undertakes his own case with no legal background the chances are that his objection will fail and that the original decision will stand. I have over the years seen scores of objectors who approach me after an unsuccessful objection hearing. All of them are surprised and cannot understand why they did not decide in his favour. Unfortunately you cannot teach someone in a few sentences the law of evidence and related matters concerning civil law procedures. The cases which they presented were so weak it does not help to appeal to the High Court. A skilled legal representative is, therefore, a must if you have a valid case.
The Director-General can review a decision taken in terms of the COID Act. The reason for such a revised decision is usually that incorrect information was submitted to him before the decision such as an adjudication of a claim took place. The revision of a decision can only be done after the affected party was informed of the intention to revise and to give the affected party a chance to make representations to avoid any revision.
The legal remedy frequently used by especially injured employees is a formal objection per prescribed form W G 29 in terms of section 91. The time limit to lodge such an objection provided for in the Act is 180 days from the date of the decision. If the decision is late it will be out of time and will not be processed.
The objection is heard by the CC and two assessors, one representing employers and the other representing employees. These assessors are appointed by the minister after they have been nominated by employers’ organisations and trade unions. The proceedings of the hearing before a tribunal are similar to that of a civil case in a court of law. The objector can call witnesses who will give evidence on behalf of the objector. Thereafter a representative from the CC’s office can cross-examine the witness on the evidence given. The CC’s representative can also call witnesses with a view to proving that the original decision was correct.
Should the decision of the tribunal thereafter go against the objector he can appeal to the High Court. The CC has no right to appeal to the High Court should the objector succeed with his objection. (Jordaan v Oosthuisen-case) As this last principle stems from legal technicalities I do not regard it as necessary to explain the reasons for this.
The CC may of own motion state a case to the High Court for a decision but it does not affect the decision already handed down in the objector’s case, it is simply meant to obtain clarity on the interpretation of the Act and associated matters. (Section 92)
Before I sign off as they say on the radio I want to repeat what I have said before; if you object to a decision be sure that that you are legally qualified or represented to handle the hearing with all the procedures. Also keep in mind that although this is not a fully- fledged court of law some intricate matters such as the onus of proof is still applicable. If you are not familiar with that you may in serious trouble. If you are not qualified to do it yourself I am afraid you will have to appoint a competent attorney familiar with workers’ compensation.
To the CC a friendly request; please hold the hearings not years after the objection was lodged when most of the witnesses have passed away or emigrated. When you subpoena say 5 doctors to testify and one turn up because the rest has emigrated, it becomes a waste of time.
Till next month