Occupational Diseases and Accidents
Workers’ compensation as a topic is usually associated with traumatic injuries on duty. Only in discussions between knowledgeable people do you come across the subject of occupational diseases. There is nothing mysterious about that fact. It does not take a scientist to tell you that someone who was so bold or stupid to put his hand into the moving parts of a machine what the cause of the three crushed fingers is. It is so obvious. If someone falls off the scaffold logic tells you that there will possibly be injuries. It is not necessary to appoint experts in the field of orthopaedics to determine whether there is a connection between the incident and the resulting injuries.
When it comes to occupational diseases it is a different story. This is a highly specialised area where the layperson cannot, without substantiating medical evidence, assume that exposure over a period of time to some or other agent in the workplace will have lead to the occupational disease. As you must know this is the subject of numerous films produced with the necessary drama added for the viewer. When I say substantiating medical evidence I mean just that and I say this with all due respect to the medical fraternity: there are not many experts in the field of occupational diseases.
The reporting of alleged occupational diseases.
Reporting of occupational diseases used to be a relatively simple task; similar to that of accidents. A report of the alleged occupational disease (W Cl 1) plus the First Medical Report (W Cl 14) and what then usually followed was the standard procedure. The Compensation Commissioner’s office has now in conjunction with some or other technical committee decided to make it much more difficult for the person reporting. Now you are obliged to be thoroughly familiar with some of the occupational diseases as each of these diseases has a unique reporting procedure in some cases with specific prescribed forms. Let us mention just a few and please note that these diseases are not all listed in Schedule 3 of the COID Act:
Post Traumatic Stress Disorder;
– Pulmonary Tuberculoses in Health Care Workers;
– Pulmonary Tuberculoses Associated with Silica Dust Exposure;
– Occupational Lung Cancer;
– Mesothelioma due to Occupational Asbestos Exposure;
– Contact Dermatitis;
– Work-Related Upper Limb Disorders
The essence of the matter is that it is now expected of the employer in conjunction with the medical practitioner to diagnose the diseases to enable the responsible person/s reporting on the correct forms prescribed. If mine is not the correct deduction, I will humbly stand to be corrected. Previously it was only the duty to report if an alleged disease came to the attention of the employer. Now the employers in certain cases are, it would appear, responsible for the correct reporting after the diagnosis has been made. If you are confused by the new approach of the Compensation Commissioner, so am I. I have neither the space nor the time to fully explain the legal consequences of this new approach (in this month’s column) but trust me when I tell you that the system is slowly becoming an even bigger nightmare. Seeing that this is the official approach, my advice to you is to enhance your knowledge surrounding the new procedures to expedite claims. Just pray that the officials are also familiar with the subtle differences now in place.
A sign of things to come?
To illustrate the point above I would briefly like to discuss asthma as an occupational disease. Firstly you had asthma that was not work related and, therefore, as far as the COID Act was concerned, it was irrelevant. Occupational Asthma was listed in Schedule 3 of the COID Act since it came into force on 1 March 1994. Specific agents were listed as the cause of this type of asthma as you will note from your Schedule 3. Everybody was happy that this disease was at last listed as an occupational disease. Well not everybody, as it would appear from the Government Gazette no. 27329 dated 25 February 2005. Now the wise people have decided that “work-aggravated asthma” should also be compensated for. I will not even attempt to analyse the content of the said notice or point out the legal consequences thereof, it will take a voluminous report to achieve such an endeavour. The other reason why I will not do it is because I have serious doubts whether anybody in office will heed any caution. You the readers who will be reporting the cases to the Compensation Commissioner, study the Government Gazette Notice as you will soon find out that you are going to receive notices of such cases in your work environment.
The bottom line is that this “new occupational disease” added amounts to compensating people who have suffered from asthma before commencing their employment; the disease is subsequently aggravated by certain factors (sic) such as cold air, dusty work and second-hand smoking (sic) amongst others. Compensation is then awarded for this aggravation. See the Notice for the full details.
Somebody with pre-existing lung pathology is thus compensated in the case where the employment aggravates this lung condition. I will leave you with something to ponder on. Why only lung pathology? What of someone suffering from a cardiac disease which is aggravated by some or other task performed for the employer and what if this physical exertion leads to a serious complication? Why will this not be compensated because the lungs (respiratory system) are not involved? There are numerous other pre-exiting diseases which can be added to this argument. Can an expert in the field of occupational diseases please assist me as a layman? Or was this introduced to pave the way to having every disease that is aggravated by employment being compensated in future?
I hope you can assist me to comprehend this apparent illogical approach. I hope at some time in the future to discuss the legal implications in more detail.
See you again.