WCA Column March 2009

Bureaucracies are designed to perform public business. But as soon as a bureaucracy is established, it develops an autonomous spiritual life and comes to regard the public as its enemy”  Brooks Atkinson, “Once Around the Sun” 1951

The run-up to a very real problem for the public and, for our discussion, specifically the injured workers, is a long one. It started off many years ago when employee injuries increased due to the Industrial Revolution and became a serious problem. Not only for the injured persons but also for the employer who in some counties such as South Africa could be sued by the injured employee if the injury was caused by the employer’s negligence. Now it is by its very nature a fact that governments intervene to solve or at least regulate a problem. In the case of injuries on duty several governments all over the world introduced legislation to manage the occurrence of injuries in the workplace. Now having been involved personally with the administration of two Acts namely the Workmen’s Compensation Act, 1941 and the Compensation for Occupational Injuries and Diseases Act 1993, I can safely say that over a long period of time I have noticed trends in the administration of the Act that are disturbing to say the least. This problem is not unique to workers’ compensation, it is prevalent in the whole of the civil service and it appears to be on the increase. I will give you an example.

Assisting the client of the State
When the act prior to the 1993 one was introduced special provision was made to assist injured employees with the lodging and verification of their claims. As was pointed out by Marinus Wiechers 1 a feature of our administrative law is the specialised nature thereof. The state supplies the service, regulates the life of the citizen and at the same time guarantees economic and general welfare. Anyone who has dealt with the workers compensation legislation will vouch for the fact that it is complicated. Typical to human nature, the uninjured employee is not going to study the details thereof and, in any case, is unlikely to benefit from such an attempt without expert assistance. Throughout the years the legislator has recognised this and has therefore given the duty to the Compensation Commissioner’s office to assist the employee with establishing his or her claim. You do not believe me? Refer to sections 40, 41 and 42 under the following headings for example
• Inquiry by Director-General into accident
• Particulars in support of claim
• Employee to submit to medical examination

The procedure given in the act and set out in sections 45 and 46 goes so far as to provide for a formal hearing for the consideration and adjudication of a claim after which a decision is taken by the presiding officer. Should the employee be unhappy with the decision he can object to it under section 91. However, one would expect very few objections because the employee would be aware that the objection would entail the same people and the same evidence that were heard during the formal hearings and therefore would have the same outcome. The intention of the legislator is clear; these sections were drafted for the sake of assisting the employee. How many of these claim investigations have been held in the last 10 years? I would not be surprised if the answer to that is, none. The way of the least resistance is to repudiate the claim, wait for the claimant to object in terms of section 91 and leave it up to him to prove his case. For those who cannot afford attorneys, it is just too bad. At the formal section 91 hearing it becomes a legal chess game, and the commissioner’s legal representative does not want to lose.

A case study
Let me relate a true case to you to show what the autonomous spiritual life of the bureaucracy, originally created for the good of the citizen, is capable of.  As this is privileged information I cannot name people and will only relate the gist of the case.
“A” was injured, a fact not disputed by the employer nor the commissioner’s office. The employee, “A”, did not see a doctor immediately nor did he take leave and he continued working. The doctor seen shortly after the accident put him on medication and he was referred to a physiotherapist. The doctor knowing well that this was an injury on duty did not complete a First Medical Report. The treatment kept on for 4 years before this person was referred to a specialist. He was operated on, declared medically unfit for work a year later and obviously lost his job. The commissioner’s office repudiated the claim based on the fact, according to them, the condition which lead to the operations, etc, was not a result of the accident.  “A” objected to this decision, a hearing was held a few years after his objection and he lost the case.  When I read the court record I was dumbstruck.  “A” had no legal representation, was not in any way assisted by the commissioner’s legal representative and “A”, not being familiar with the legal principles involved, did not submit all the required documents which were in fact available. I have no doubt in my mind that he had a valid claim but that the decision was wrong because of the apathy of the officials involved. It is now too late to rectify the situation as he is out of time for an appeal to the High Court. If a proper investigation was held when there was doubt about the claim as envisaged by the Act, in all probability this would not have happened.
To expect that the attitude of the bureaucracy will change and become one of compassion is far-fetched. I am afraid this problem is here to stay.

1 Administrasiereg 1973, Butterworths.

Till next time.