Since 1997
Compensation Legislation & the Recreational Diver
by DAN Medical Team on June 23rd, 2016

​Dr Meintjes (specialist in occupational medicine) discusses how employers and employees are affected if an employee is injured or gets Ill as a result of work.
 
In the previous edition, I highlighted some of the requirements placed on dive operators to ensure that, as far as reasonably practicable, their workplace is (as the Occupational Health and Safety Act [OHSA] states) “safe and without risks to health”. This requirement applies to all employees as well as all persons “other than employees” who could be affected by the business, i.e. the clients who dive with the operator or even just visitors to the business. Although it seems almost illegal for a person to get ill or be injured as a result of someone else’s business, we know it is impossible to guarantee 100% that this will not happen. Someone will inevitably twist an ankle or develop decompression sickness, not even mentioning middle-ear barotrauma. Therefore, there is a need for yet another act to specify the procedure for persons who are injured at work or get ill as a result of working activities – the Compensation for Occupational Injuries and Diseases Act (COIDA).

In terms of the COIDA, any employee who suffers a work-related disease or injury is eligible to receive compensation. A distinction is made between an occupational injury and an occupational disease.
Occupational Injuries

​​An occupational injury is only compensable if all of the following conditions are met:
  • The person must suffer a personal injury or death as a result of an accident.
  • The accident must happen while the person is busy with his or her work.
  • The accident must be caused by the person’s work.
  • The person must be an employee.
The definition of an employee is very broad in the COIDA. It includes persons who are working in terms of a contract of service, apprenticeship or learnership. It also does not matter whether the contract is expressed or implied, or whether the contract is oral or in writing. A person would be considered an employee if he or she receives remuneration for any acts performed on behalf of the business, irrespective of whether remuneration is paid in cash or in kind, e.g. a free air fill or a free dive. It also specifically includes casual employees (who may be employed to carry cylinders or wash diving gear), persons provided by labour brokers, etc. The police, military and domestic employees in private households are among the few exclusions in the definition.

Common injuries associated with a diving operation would include all barotraumas (ear, sinuses, lungs, etc.). A back injury caused by lifting heavy gear or a muscle injury sustained during a boat launch would also be considered an occupational injury. The bottom line is that any injury sustained while performing work (which is any act for which a person is remunerated) is potentially compensable.

Occupational Diseases 

Occupational diseases are listed in Schedule 3 of the COIDA. All employers and employees involved in diving operations should be aware of the following, which is compensable:
  • Hearing impairment caused by noise (for all the compressor operators)
  • All diseases caused by being exposed to pressure (decompression sickness, gas embolism, dysbaric osteonecrosis, etc.)
  • Diseases caused by ultraviolet radiation (sunburn, skin cancer, etc.)
  • Diseases caused by chronic or repetitive exposure to products of combustion
  • Occupational skin diseases (e.g. allergies to wetsuits or marine life)
  • Diseases caused by asphyxiants (e.g. carbon monoxide poisoning)
For all these listed diseases, it is accepted that an employee contracted the disease in the workplace. The burden of proof is on the employer (to prove that the employee did not contract the disease in his or her workplace). For all other diseases that are not listed, the burden of proof is on the employee (to prove that he or she contracted the disease at work). It is important to note that some of these diseases can present years or even decades after the work was performed, but compensation would still be payable. However, there is a requirement.

Where to from Here? 

All employers are legally obliged to ensure that they are registered with the compensation commissioner. Furthermore, they should ensure that they comply with the provisions of the OHSA (see Occupational Health and Safety Legislation and the Recreational Diver in the Spring 2012 edition).

All employees should inform the treating doctor that the injury or illness he or she suffers is (likely) the result of work. Specific forms and documents need to be completed by the doctor, the injured diver and the employer. These can all be downloaded from the website of the Department of Labour. Divers and dive operators are also welcome to contact the DAN-SA hotline for advice and assistance.

Injured employees are required to inform their employer of the incident as soon as possible. Employers must report the incident to the compensation commissioner within seven days (an employer who fails to do so is guilty of an offence in terms of the COIDA). It should further be noted that the Act specifically states that an employer is required to report an accident whenever an employee alleges that it was caused by his or her work – irrespective of whether the employer agrees that this is the case. No claim would be paid to any employee if such a claim has not been lodged with the compensation commissioner (i.e. the employee has informed the employer, who in turn informed the compensation commissioner) within 12 months from the date of the accident.
 
​What does the Compensation Entail? 

Although it sounds great, there is no need for employees to develop “compensitis” which seems to be an incurable disease. Compensation actually protects the employer much more than it does the employee. In terms of the legislation, an employee is obliged to make use of the compensation system when suffering an occupational injury or illness and, in doing so, the employee also loses the right to any other legal action against the employer in terms of such an injury or disease. That is why we do not see legal cases against employers in South Africa. There is thus a clear benefit for employers to ensure that all their paperwork is in place. Compensation would have the following advantages for injured or ill employees:
  • The employee does not need to take any employer to court in the case of a work-related accident or illness. Compensation is guaranteed for all such injuries and diseases.
  • The compensation covers sick leave (temporary incapacity) at 75% of the normal pay rate for a period not exceeding 24 months (although you would never have that much sick leave available).
  • Medical aid, to cover all reasonable medical expenses, is made available for a period of up to two years. All medical expenses, including follow-up visits, are covered during this period.
  • In the case of the employee suffering a permanent disability, the employee would receive financial compensation for this loss. Note, however, that the compensation does not cover loss of income or loss of ability to work, e.g. being declared unfit to dive as a result of serious decompression sickness. The employee is literally only compensated for the medical impairment that could objectively be assessed. A complete recovery to normal function means that no compensation would be paid. Therefore, most employees would not receive compensation for permanent disability as a result of a workrelated injury.
  • If the occupational injury or illness causes the death of the employee, all the burial expenses are covered by the compensation commissioner and compensation is also paid to the direct dependants of the employee.
When considering these benefits, it seems like the compensation system could actually be seen as insurance that protects the employer. He or she could claim all medical expenses, sick leave and other payouts to the employee for which he or she would likely have been liable if the case had gone to court.

​What about Persons who are not Employees? 

Persons who are not employees cannot receive any benefits in terms of the COIDA. The business owner also does not have any protection from the COIDA, unless also doing work as an employee. All non-employees are thus able to instigate a civil (legal) claim against a business that could have been involved in an injury or illness. Such a claim would increase dramatically if negligence is proven, e.g. insufficient oxygen available during decompression sickness.

All dive operators and business owners should thus ensure that they comply with the provisions of the OHSA (not to be negligent) and also ensure that they put procedures and documentation in place to minimise their risk. This would include using an indemnity form that needs to be signed by all clients (after all, divers choose to take at least some risk when they go diving). Furthermore, all activities (not only the dives) should be well planned and executed including information provided to clients to ensure they know which safety measures are put in place by the operator (especially if they need to comply with specific provisions, e.g. not wearing slippery shoes in the diving shop). Protocols should be in place to deal with any injury or illness that may occur as a result of the activities (including emergency contact numbers available after hours). The HIRA programme proposes that all dive operators should involve a local medical practitioner who could provide support in case of an injury or illness (DAN can suggest specific specialised training for the doctor).

Even with all the planning and procedures, the risk cannot be totally avoided. Serious consideration should therefore be given to financing the residual risk by means of appropriate insurance.


Posted in Alert Diver Autumn 2013    Tagged with no tags


5 Comments

tony lindeque - September 10th, 2016 at 12:40 AM
So where does one stand when they are paying a Dive Centre for an internship or swopping work for training?
Peter Southwood - September 10th, 2016 at 6:55 AM
Tony, I quote"A person would be considered an employee if he or she receives remuneration for any acts performed on behalf of the business, irrespective of whether remuneration is paid in cash or in kind, e.g. a free air fill or a free dive." The intern is working for the training. which they would otherwise have to pay for, thertefore they are an employee by this definition.
DAN Team - September 13th, 2016 at 3:26 AM
Please refer to the DoL website using the links listed below and reference the COID Act Chapter 1, Section 1. Definitions, 1 (xix) for as description of an employee. You can also refer to COID Act chapter 4, Section 22. Right of employee to compensation. As a quick reference I have copied the above mentioned sections of the COID Act. 

http://www.labour.gov.za/DOL/legislation/acts/compensation-for-occupational-injuries-and-diseases/read-online/amended-compensation-for-occupational-injuries-and-diseases-act-1
 
1. Definitions
 
(xix) "employee" means a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind, and includes-
 
(a) a casual employee employed for the purpose of the employer's business ;
 
(b) a director or member of a body corporate who has entered into a contract of service or of apprenticeship or learnership with the body corporate, in so far as he acts within the scope of his employment in terms of such contract;
 
(c) a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work , and for which service or work such person is paid by the labour broker;
 
(d) in the case of a deceased employee, his dependants, and in the case of an employee who is a person under disability, a curator acting on behalf of that employee; but does not include-
 
(i) a person, including a person in the employ of the State, performing military service or undergoing training referred to in the Defence Act, 1957 (Act No. 44 of 1957), and who is not a member of the Permanent Force of the South African Defence Force;
 
(ii) a member of the Permanent Force of the South African Defence Force while on "service in defence of the Republic" as defined in section 1 of the Defence Act, 1957;
 
(iii) a member of the South African Police Force while employed in terms of section 7 of the Police Act, 1958 (Act No. 7 of 1958), on "service in defence of the Republic" as defined in section 1 of the Defence Act, 1957;
 
(iv) a person who contracts for the carrying out of work and himself engages other persons to perform such work;
 
(v) a domestic employee employed as such in a private household; (xlvii)

http://www.labour.gov.za/DOL/legislation/acts/compensation-for-occupational-injuries-and-diseases/read-online/amended-compensation-for-occupational-injuries-and-diseases-act-22
 
22. Right of employee to compensation
 
(1)  If an employee meets with an accident resulting in his disablement or death such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.
 
(2)  No periodical payments shall be made in respect of temporary total disablement or temporary partial disablement which lasts for three days or less.
 
(3) (a) If an accident is attributable to the serious and wilful misconduct of the employee, no compensation shall be payable in terms of this Act, unless-
 
(i)   the accident results in serious disablement; or
 
(ii)  the employee dies in consequence thereof leaving a dependant wholly financially dependent upon him.
 
(b) Notwithstanding paragraph (a) the Director-General may, and the employer individually liable or mutual association concerned, as the case may be, shall, if ordered thereto by the Director-General, pay the cost of medical aid or such portion thereof as the Director-General may determine.
 
(4) For the purposes of this Act an accident shall be deemed to have arisen out of and in the course of the employment of an employee notwithstanding that the employee was at the time of the accident acting contrary to any law applicable to his employment or to any order by or on behalf of his employer, or that he was acting without any order of his employer, if the employee was, in the opinion of the Director-General, so acting for the purposes of or in the interests of or in connection with the business of his employer.
 
(5) For the purposes of this Act the conveyance of an employee free of charge to or from his place of employment for the purposes of his employment by means of a vehicle driven by the employer himself or one of his employees and specially provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such employee's employment.

DAN Legal Team - September 13th, 2016 at 3:31 AM
Based on the response from Peter which reads as follows: “A person would be considered to be an employee if he / she receives remuneration for any acts performed on behalf of the business, irrespective of whether remuneration is paid in cash or in kind.” The quotation is not entirely accurate and our readers are advised to ensure the correct version is applied. Chapter 1, Section 1. Definitions (which normally is referred to the definitions clause of any legislation) of the COIDA, 1993, defines an employee.

This matter was the subject of adjudication in the Supreme Court of Appeal in 2007. In the matter of ER24 HOLDINGS v SMITH NO AND ANOTHER 2007 (6) SA 147 (SCA), the court (all 5 judges concurring), ruled as follows. For purposes of chronological reading and in order to explain and understand better.

R was a passenger in a vehicle driven by N. The vehicle was involved in a serious motor car crash, wherein R, who was a volunteer undergoing vocational experience that was essential to her to qualify as paramedic, was seriously injured. N was acting in the course and scope of her employment as a shift leader with ER24. The crash happened as a result of the negligence of N. On behalf of the victim, R, a claim was instituted against ER24, who, in turn, alleged that R was an employee for purposes of COIDA as defined in terms of the said act (COIDA, 130 of 1993). ER24 further alleged that the damages claimed on behalf of R were in respect of an “occupational injury”. In this case, the payment of the damages would be the responsibility of the office of the Compensation Commissioner, not ER24. In a unanimous decision, the learned Cloete, JA, who delivered the judgement, the Supreme Court of Appeal, ruled as follows on this subject. The essential question to be answered is whether R was an employee as defined in terms of the Act (COIDA). In paragraph [7], the learned Cloete, JA, says:

“Remuneration 'in kind' to my mind means the provision of something that has an objectively ascertainable value which can serve as the basis for the assessment of an employer … for the calculation of compensation payable.

Schedule 4 (of COIDA) deals with the manner of calculating compensation and in each case (save in regard to funeral costs) the benefit is calculated having regard to the 'monthly earnings' of the employee. Thus, for example, the compensation for temporary total disablement payable in terms of s 47(1)(a) of the Act (COIDA) is periodical payments representing 75% of an employee's monthly earnings at the time of the accident (subject to a maximum); and the compensation payable in terms of s 49(1) for permanent disablement of 30% is a lump sum being 15 times the monthly earnings of the employee at the time of the accident (subject to a minimum and a maximum)

If the argument on behalf of ER24 were correct some monetary value would have to be placed on the experience gained by employees for the purpose of determining the employees' annual earnings; and such experience would have to be taken into account in determining the 'monthly earnings' of an employee for the purposes of calculating the compensation payable - because there can be no distinction in principle between a person such as R and an employee of ER24 properly so called who is paid a monthly salary. Both tasks are for practical purposes impossible and neither is in my view required by the Act.” (my adding to original text for purposes of clarity- mine interpolatio)

The court continues by giving a very technical explanation why the content of Sec 51 of the Act cannot assist in determining whether a person is an employee or not ( as this was raised by the legal counsel of ER24) and concludes:

“The purpose of this section is to benefit a person who is ex hypothesi an employee (one in training or under 26 years of age) by providing for an increased benefit. This section does not assist in determining whether a person being trained or under 26 years of age is an employee.”

And then Cloete, JA, concludes in paragraph 10:

“I therefore conclude that as R was not remunerated, whether in cash or in kind, she was not an employee for the purposes of the Act. It follows that the first special plea and the relief sought H by ER24 against the Compensation Commissioner were correctly dismissed by the Court a quo.”

The court finds COIDA not applicable and consequently, ER24, liable.

Let us translate this to our environment. I find it difficult to agree that the free filling of a cylinder or the free dive, would activate the application of COIDA in itself, in the absence of something more substantial. Dive schools and dive resorts using interns would have to express themselves much better ( be it by contract or other acceptable labour practices) to ensure that they are “covered” by COIDA. This however, also has implications such as normal labour relations issues. Some, also in itself, inhibiting.

As obiter remark, there was also a ruling made in the same matter, on a possible waiver, but in line with the current approach of our courts in this regard, the waiver argument by ER24, failed to stand unimpuned.

For all our DAN members, we re-iterate that, it is pivotal that you ensure (and insure, where necessary) that your concern is compliant with current legal developments.
DAN Legal Team - September 26th, 2016 at 4:57 AM
In current day life, many of our younger members wish to follow a career in scuba diving. Some of them enlist in a training program which enables them to stay at a dive resort and make diving a way of everyday life. DAN was recently engaged in an enquiry regarding an incident that occurred whilst interns were doing just that. Whilst it is DAN’s view that interns are not employees for sake of COIDA, it is not all doom and gloom for our interns. Remember DAN Legal|Net is available to assist with legal enquiries in the interests of safe diving on a 24 hour basis. If you need advice feel free to contact the hotline and ask to talk to a DAN legal team member. Safe diving! Hotline no. toll-free in South Africa 0800 020 111 or Internationally 27 828 10 60 10.
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