Damages due to Injury at place of Employment
I fell and broke my leg at my place of employment, can I hold my employer liable for the medical costs?
Accidents in the workplace are regulated by the Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended (“COIDA”). In terms of section 35 of COIDA, an employee may not claim damages in respect of any occupational injury or disease resulting in the disablement or death of such employee from his/her employer.
What is an “occupational injury or disease” in terms of COIDA?
An occupational injury is defined as an injury sustained as a result of an accident. An accident is then further defined to mean an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee.
Based on the above, you will therefore not be able to claim your medical cost from your employer, but will have to claim it from the Compensation Fund.
It should be noted that there are exceptions as to who is deemed to be an employer / employee in terms of COIDA.
What is required to claim damages in terms of COIDA?
You must firstly give notice, verbally or in writing, of the accident to your employer as soon as possible.
Your employer is then responsible in terms of COIDA to report the accident to the Compensation Commissioner within seven days after receiving notice of the accident.
It is important that you inform the doctor treating you that the injury was caused by an accident in the workplace. Your doctor must complete a form required by COIDA called a W.Cl.4 form, being the first medical report. Your doctor will also in future have to complete a progress / final report called a W.Cl.5 form. These, and any other forms given to you by your doctor, must be provided to your employer, who must then provide it to the Compensation Commission.
What happens if my employer fails to report the accident and to submit my forms?
Should your employer not report the accident within seven days, he will be guilty of an offence in terms of COIDA. In such an event, the Director-General of the Department of Labour may impose a fine on your employer, or direct that your employer be liable for the compensation payable in respect of the accident.
If your employer does not submit the forms, or if your claim takes too long, contact your nearest labour centre and report it.
Should you not receive a claim number or any proof from your employer of submitting the forms after ten months, you should obtain legal advice immediately to ensure that your claim does not prescribe.
Keep copies of all the forms as well as a record of all the dates you provided the forms to your employer.
Follow up with your employer on a regular basis and request proof of all the forms submitted.
Disclaimer – this article cannot be construed as legal advice.
Author: Petra van Vuuren
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