Perspectives on determining permanent disablement in South African occupational law
The right to be entitled to compensation for injuries sustained in the course of employment has always been an essential component of basic social security rights. Provision is made in the international sphere by the International Labour Organization and the United Nations. In the regional sphere there are standards that apply within the Southern African Development Community, and on a national level the rights are provided in terms of the Constitution of the Republic of South Africa, 1996, and the Compensation for Occupational Injuries and Diseases Act, 103 of 1993 (COIDA). COIDA provides for a system of no fault compensation for employees who have sustained injuries or contracted occupational diseases during the course of their employment. “No fault compensation” provides that an employee does not have to prove fault with the employer or any other party in to be entitled to claim compensation. COIDA’s main purpose is to provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by defined employees in the course of their employment. Section 49 of COIDA provides for compensation for permanent disablements. In terms of section 49, the Commissioner must assess the permanent disablement of the employee by applying Schedule 2 of COIDA, which stipulates percentages of disablement for different injuries or mutilations. By “matching” the injury or mutilation from which the employee is suffering to the corresponding injury or mutilation provided for in Schedule 2, the Commissioner is then able to determine the degree of permanent disablement. Discretions are also granted to the Commissioner in terms of which he is allowed to determine the degree of disablement suffered by an employee under certain circumstances. The nature and amount of compensation awarded depend on the degree of disablement that the employee is afflicted with. Compensation for permanent disablement may be paid either in a lump sum or a monthly pension depending on the degree of disablement determined. Problems arise with the application of both these approaches of determining the permanent disablement of an employee. The guidelines in Schedule 2 have been previously described to be applied “mechanically” with no consideration being given to the individual circumstances of the employee. In practice the discretion granted to the Commissioner in terms of section 49 is often not applied judicially, which has led to numerous objections being lodged against the initial amount of compensation granted. The lack of medical expertise at the initial assessment of the disablement, and the “mechanical application” of Schedule 2, often lead to the incorrect determination of the degree of permanent disablement from which the employee is actually suffering. The determination of the degree of disablement is often not consistent with Schedule 2 of COIDA and results in an unjustifiable amount of compensation granted to the employee which holds no relation to the impairment suffered. The core question that needs to be considered is whether and to what extent the employee is still useful for the labour market in the line of his or her employment, and the disablement should be assessed in the light thereof.
- Law