The consultant
A decade and more ago the appointment by a manager of a consultant implied at least one of two issues namely: 1. that the manager was either incompetent or 2. the manager was per se corrupt for appointing someone to assist with a specific task. Judging from the daily and weekly financial media the situation has since changed dramatically. Nowadays it is labelled as “outsourcing”, “sub-contracting”, “private public partnerships” and various other euphemisms. If you doubt my view, read carefully through your financial magazines to see that knowledge or expertise does not come cheaply. Coming into contact with both the state and the private sector I am convinced that we have reached the point where a large proportion of employers and state departments cannot function without properly qualified advisors or consultants, whatever you prefer to call them.
Lack of training?
I am not sure what caused and perpetuates this state of affairs. Could it really be, as some suggest, the political obsession to attain the correct “colour configuration”? Is it cronyism, absence from the job, lack of concern for the needy, apathy, incompetence or even just a general attitude of lawlessness – of getting away with not doing one’s job for as long as one can get away with it? Whatever the cause, its effects are obvious and it is patently clear that many of those who deal with the public have very little knowledge of the subject they are supposed to assist with. I get the idea that the political correctness of the appointment has become such a serious issue that management tends to ignore the training of the people they put in positions critical to the functioning of the organisation. I can only sympathise with the untrained worker who must obviously be in the firing line of the frustrated clients.
Compensation Commissioner’s Office
So what has this got to do with workers’ compensation? A lot unfortunately as they are in the same boat. You see the brain drain does not only refer to people emigrating to Australia, it also includes those emigrating out of the civil service taking with them decades of experience. The result is a serious lack of knowledge of the of the COID Act within the office of the Compensation Commissioner. After dealing with this legislation for more than 30 years I am not being unfair to the staff of the Compensation Commissioner when I make such a statement. I would dare anyone there to prove me wrong. I still deal with the office on a regular basis and the lack of knowledge of the provisions of the COID Act scares me. You see, what people do not realize is that the party at the receiving end when it comes to poor knowledge, is the injured employee. The employer is also negatively affected but the difference is that the latter can afford legal assistance, something which is becoming more and more impossible for employees.
I will relate one recent incident to you that points to some strange goings-on in the office of the Compensation Commissioner which, if as bad as they are depicted, can only have disastrous consequences for the injured employees. As you all know the claims process is a relatively straightforward one. Submit a Report of the Accident, a First Medical Report and if the employee is off-duty because of the injury a Progress Report in which the treating medical practitioner indicates the date that the injured will probably be fit for duty. The doctor decides what treatment is sufficient, such as bed rest, and when the person should be fit to commence his duties. The Compensation Commissioner, based on this information, then pays the Temporary Total Disablement (TTD) benefits to the employee.
Perusing the following judgement handed down towards the end of last year in the High Court created uncertainties about the correctness of this procedure that has been in place for more than 50 years. The Applicant approached the High Court of South Africa (Transvaal Provincial Division) by way of a motion seeking an order against the Compensation Commissioner and Director-General, Labour for the payment of his TTD-benefits without limiting this compensation by applying an unlawful principle of “active medical treatment” as a prerequisite for the payment of the benefits.
I have had no access to the detail of the course of events in the claim, what documents were submitted and why the case took such a long time to finalise. At the same time the wording of the Founding Affidavit, Answering Affidavit and the Applicant’s Replying Affidavit is so vague and incoherent that I am surprised that the honourable judge could come to any conclusion. Maybe my lack of understanding is aggravated by my disbelief that this issue had to be adjudicated by the High Court at all! The gist of the case is the following. The Compensation Commissioner insisted that “active medical treatment” is a requirement for compensation. In the Answering Affidavit it is motivated as follows: “The…Compensation Commissioner does not compensate for symptoms of disablement but seeks to address the cause of the symptoms. It is upon the aforegoing (sic) basis that active medical treatment has to play a major role in this regard aimed at reducing disablement and not address the symptomatic cause of disablement”. I must confess that I have no clue what that means.
The judge, however, could not find any definition in the COID Act for “active medical treatment”, just as I couldn’t, and with due respect correctly ordered the Respondents to pay the TTD-benefits. The crucial remark in the finding was: “I could not find any provision of the Act which entitles the respondents to restrict the right of workers to receive compensation during their temporary total disablement in the manner which the respondents restricts such a right”
As far as the “class action” issue which surfaced in this case is concerned, I will rather refrain from any comment as it is so unique that I will leave it to the legal academics to debate.
To return to my point when I introduced this case: if the Compensation Commissioner believes that only Active Treatment can be compensated this can have disastrous consequences for injured employees. Reading the judgement briefly discussed above convinced me that a lot of training is the only thing that will solve the problem
Till next month.