By Ravi Nanga
THIS week we shall examine the issue of workmen’s compensation.
In the event an employee is injured on the job, and the injury was not the employee’s fault, it may be possible for the employee to seek compensation in respect of any injury suffered.
In the event the employer was negligent, it is open to the employee to commence what is referred to as a common law action in respect of the employer’s negligence.
In addition to this common law action, the employee also has a statutory cause of action in order to receive compensation in respect of the injury suffered. This article will address the statutory cause of action.
The Workmen’s Compensation Act provides for the payment of compensation in the event an employee is injured in the course of his employment. In the event an employee suffers injury, there is a formula set out in the act that allows for compensation to be calculated and paid in respect of the injury. The rate of compensation payable under the act depends on the rate of pay of the employee as well as the extent of the injury suffered.
Once an injury is suffered in the course of employment, a claim must be made for compensation under the act. A claim for compensation is separate and distinct from making an application in court under the act in order to claim compensation payable under the act.
With respect to the making of a claim, there is no defined method of making the claim, the claim can be oral or in writing and can be as simple as the employee asking the employer for compensation upon being injured. However, in order to be entitled to receive compensation under the act, the claim must be made within one year from suffering the injury.
Once the claim is made within the year of the injury, if compensation is not paid, the employee will have four years from the date of the injury to make an application in court under the act in order to obtain compensation.
Compensation under the act is payable in cases where the employee suffers a fatal injury, or in cases where the employee suffers total disability or where the employee suffers partial disability.
In the event the employee suffers a partial disability, the act contains a schedule of injuries that provides for the percentage of disability in respect of the type of injury suffered.
In the event the type of injury suffered is not contained in the schedule, it will then be necessary for the employee to have the extent of the injury suffered assessed and expressed in terms of a percentage of disability. That percentage is then used in order to determine the appropriate amount of compensation that is payable under the act.
Given the comprehensive nature of the act, it is relatively easy to calculate and agree the amount of compensation that is payable.
However, where the employer and the employee are unable to agree as to the extent of compensation, once all the necessary steps are taken in accordance with the act, it will then be necessary to make an application to the court for the court to determine the appropriate amount of compensation that is payable.
In the event the employer and the employee cannot agree as to the extent of the injury suffered, the court can refer the employee to a medical referee, who will be a medical practitioner appointed under the act, in order to assess the employee’s injury.
Once that is done, the assessment of the medical referee will be binding on the court and will be the assessment of the injury that will be used for the purpose of calculating the compensation that is payable under the act.
The act contains a number of steps and requirements that are necessary to be followed before the employee is entitled to obtain compensation. In the event these steps are not properly followed, it may disentitle the employee from obtaining compensation under the act.
In the event an employee has suffered injury while at work, it is advisable that the employee seek the appropriate legal advice in order to ensure that the proper steps are taken in order to ensure that compensation is due under the act and can be properly claimed.
Ravi Nanga is an attorney-at-law
[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations]