Kim Berke­ley

Peo­ple in­jured in the work­place may bring a claim in court for dam­ages for per­son­al in­juries. How­ev­er, in cas­es of se­ri­ous or per­ma­nent dis­able­ment or death, peo­ple are en­ti­tled to com­pen­sa­tion from their em­ploy­er un­der the Work­men's Com­pen­sa­tion Act with­out con­sid­er­a­tion of li­a­bil­i­ty, that is, whether or not neg­li­gence can be proven against the em­ploy­er. Thus, even if the em­ploy­ee may be part­ly or whol­ly at fault the em­ploy­er may still have an oblig­a­tion to pay com­pen­sa­tion un­der the Act. Com­pen­sa­tion is cal­cu­lat­ed ac­cord­ing to cri­te­ria set out in the Act. There are dif­fer­ent meth­ods of cal­cu­la­tion ac­cord­ing to whether the in­juries re­sult in death or whether dis­able­ment is per­ma­nent or tem­po­rary or to­tal or par­tial. Where death has been the re­sult, a lump sum pay­ment is cal­cu­lat­ed ac­cord­ing to whether there are de­pen­dents or not and to what ex­tent they are de­pen­dent.

Peo­ple con­sid­ered de­pen­dents in­clude any mem­ber of the work­man's fam­i­ly who is de­pen­dent, ei­ther whol­ly or in part, on the work­man's earn­ings and these are like­ly to be the spouse and chil­dren or even par­ents and grand­par­ents. If an em­ploy­ee leaves any de­pen­dents that are whol­ly de­pen­dent on his earn­ings, then the lump sum will be equal to 36 months' earn­ings. If the de­pen­dents are on­ly part­ly de­pen­dent on his earn­ings, the lump sum may not be more than the amount payable for whol­ly de­pen­dent peo­ple. How­ev­er, this is sub­ject to agree­ment by the em­ploy­er, and if not, an ap­pli­ca­tion may be made to a Com­mis­sion­er for Work­men's Com­pen­sa­tion who will de­cide the amount on the ba­sis as to whether it is rea­son­able and pro­por­tion­ate to the in­jury to the de­pen­dents. If there are no de­pen­dents, then the lump sum is con­fined to the fu­ner­al ex­pens­es of the de­ceased work­man and shall not ex­ceed $500.

Where there is per­ma­nent to­tal dis­able­ment, com­pen­sa­tion is equal to a sum of 48 months of earn­ings. Where there is par­tial per­ma­nent dis­abil­i­ty, com­pen­sa­tion is as­sessed ac­cord­ing to a sched­ule pro­vid­ed in the act, which is meant to re­flect the per­cent­age of in­ca­pac­i­ty as against the amount payable for per­ma­nent to­tal dis­able­ment, which is 48 months earn­ings. For ex­am­ple, for the loss of two limbs or loss of sight both are con­sid­ered to be 100 per cent in­ca­pac­i­ty, which means that you will be en­ti­tled to 100 per cent of 48 months earn­ings. Oth­er en­ti­tle­ments in­clude the loss of a hand at 60 per cent of 48 months of earn­ings; the loss of an en­tire in­dex fin­ger at 10 per cent of 48 months of earn­ings and the loss of an eye at 30 per cent of 48 months of earn­ings. If your in­juries do not fall with­in sched­ule of the Act, then a de­ter­mi­na­tion is made on the ba­sis of what is pro­por­tion­ate to the in­ca­pac­i­ty per­ma­nent­ly cause by the in­jury.

Where there is tem­po­rary dis­able­ment, whether it is to­tal or par­tial, com­pen­sa­tion is paid at one-third of month­ly earn­ings, start­ing from the six­teenth day of the dis­able­ment and con­tin­ues at a rate of one-third of month­ly earn­ings payable at half-month­ly pay­ments for a pe­ri­od of five years or the pe­ri­od of dis­able­ment, whichev­er is the short­er pe­ri­od. Apart from the above, an em­ploy­ee is al­so en­ti­tled to rea­son­able med­ical ex­pens­es al­though this is not to be more than $500 which may go to­wards e.g. nurs­ing care or med­ica­tion. The Act al­so pro­vides for cer­tain de­duc­tions e.g. where the em­ploy­ee has re­ceived com­pen­sa­tion from the em­ploy­er oth­er­wise than pro­vid­ed by the Act. This is to pre­vent dou­ble re­cov­ery, which means be­ing com­pen­sat­ed twice for the same event.

To claim com­pen­sa­tion un­der this Act, no­tice should be giv­en to the em­ploy­er in writ­ing or oral­ly with­in six months of an in­jury or death. If not, this would not pre­vent a claim against the em­ploy­er once it may be shown that the em­ploy­er had no­tice from an­oth­er source. An em­ploy­ee should al­so co-op­er­ate with his em­ploy­er if asked to un­der­go a med­ical ex­am­i­na­tion and is en­ti­tled to a copy of the med­ical re­port with­in six days af­ter such an ex­am­i­na­tion. Re­gard­ing oc­cu­pa­tion­al dis­eases such as an­thrax, as­besto­sis (ex­po­sure to as­bestos), bag­ga­so­sis (ex­po­sure to bagasse or a com­pound of bagasse) or tu­ber­cu­lo­sis (usu­al­ly af­fect­ing per­sons in the med­ical field who are ex­posed to source of in­fec­tion), the amount of com­pen­sa­tion will be as­sessed by the Com­mis­sion­er for Work­men's Com­pen­sa­tion on the ba­sis of a per­son­al in­juries as­sess­ment un­der the dif­fer­ent heads of dam­ages al­low­able for a per­son­al in­juries claim.

In the spe­cial cir­cum­stances of an oc­cu­pa­tion­al dis­ease, how­ev­er, a spe­cial­ly ap­point­ed med­ical board must first cer­ti­fy that the work­man does or did suf­fer any of the dis­eases list­ed in the Act and the Com­mis­sion­er must be sat­is­fied that any dis­able­ment or death was the re­sult of such. Usu­al­ly claims un­der this Act are set­tled as a mat­ter of course by the em­ploy­ers' in­sur­ers as all em­ploy­ers are re­quired by law to hold an in­sur­ance pol­i­cy for the pur­pos­es of work­men's com­pen­sa­tion claims in recog­ni­tion of the un­for­tu­nate phe­nom­e­non of work re­lat­ed in­ci­dents.

This ar­ti­cle sets out gen­er­al guide­lines. All le­gal rules have ex­cep­tions and vari­a­tions. How the law ap­plies to you de­pends on the facts of your case.