I was injured on duty in June 2021 and my employer did not file a compensation claim. What can I do?

The long answer

For an employer not to report an injury on duty to the Compensation Commissioner is a criminal offence, and the employer could be jailed for a year. In addition, the Consolidated Employers’ Association (CEOSA) says that if an employer fails to report an injury on duty, they could be fined either 10% of their declared annual earnings of a particular year, or be fined the total amount of compensation payable plus interest from the date of the accident.

Any employer that employs more than one employee is legally required to register with the Compensation Fund and pay annual assessment fees. (The only employers that are exempt from this are those involved in the mining or building industry, which have their own mutual associations, or the state – parliament, provincial authorities, police and military – which has its own compensation systems.) 

This is how claiming for injuries on duty is supposed to work:

• The employer must report a work-related injury within 7 days. They must fill in form W.Cl 2 – Notice of Accident and Claim for Compensation

• The employee must get the medical reports (the first report, the progress report and the final report) from the hospital or doctor, and give them to the employer. These reports will say how serious the injury is and how long the employee could be off work. 

• The employer must submit these medical reports to the Compensation Commissioner within 7 days of receiving them.

• The employee must also give the employer their proof of banking details (which has the bank’s official stamp), a certified copy of their ID and proof of residence.

• When the employee goes back to work, the employer must submit a Resumption Report to the Commissioner. 

• When the Commissioner has received and registered the claim, the Commissioner’s office will forward a postcard to the employer with a claim reference number. 

• After the Commissioner has considered the claim and has accepted liability for the claim, a second postcard (W.CI.56) will be sent to the employer. If the Commissioner doesn’t send the W.CI.56, it generally means that the claim has been denied. In that case, the employee can appeal the decision within 90 days by submitting form W929 to the Commissioner.

The Department of Labour says that no compensation is payable if you are unfit for work for three days or less, but your medical expenses will be paid. If you have suffered a serious injury and you are unfit for work for three months and longer, your employer must pay you 75% of the wages you were getting at the time of the accident. Your employer will claim this back from the Compensation Fund.

They explain that if the doctor indicates in the Final Medical Report that you have a permanent injury, such as deafness, blindness, loss of movement of a joint or an amputation of a limb or an injury that permanently disables you (for the rest of your life), it will be assessed according to the percentage of disability laid down in the COID Act. “If your disability is assessed at 30% or less, you will be paid a lump sum, which is a once-off payment for that injury. If your disability is assessed at more than 30% you will be entitled to the payment of a monthly pension for life from the date of stabilisation of your condition which is reflected on the Final Medical Report. The amount of this pension is calculated on your salary at the time of the accident, your percentage of disability and the benefits applicable at the time of the accident.”

But the problem that you are facing is that it is almost four years since the accident. CEOSA says, “Should the employer fail to report the injury on duty, the employee will be deprived of their right to be compensated for either temporary disability of three (3) months or more, permanent disability, medical expenses or death benefits.” 

This is because the claim will prescribe, in other words, no longer be valid, if no notice is given to the Commissioner within 12 months of the accident. 

It seems that although an employer can be found criminally guilty for failing to report an injury on duty, the injured employee is required to file a claim with the Commissioner within 12 months of the accident if the employer doesn’t.    

So perhaps the only thing you can do at this stage is to go to the Labour Department with all the proof of the accident that you have – medical reports etc – and ask them what you can do. Ask them if it’s possible for them to press criminal charges against the employer. Also ask if you could gain compensation from the employer by pressing criminal charges. Ask them what would best help your situation and how you should go about it.

You may also want to ask advice from an organisation like the Black Sash which gives free paralegal advice:

These are their contact details:

• Black Sash

Email: help@blacksash.org.za and info@blacksash.org.za

Tel (national office): 021 686 6952

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

You could also approach Legal Aid to find out what your legal options are. Legal Aid is a means-tested organisation that must help people who can’t afford a lawyer.

These are their contact details:

Email: communications2@legal-aid.co.za

          Tel: 0800 110 110 (Monday to Friday 7am – 7pm)

          Please Call Me: 079 835 7179

Wishing you the best,
Athalie