Monday 10th December, 2007


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Workmen’s Compensation Act

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 asbestosis), baggasosis (exposure to bagasse or a compound of bagasse) or tuberculosis (usually affecting people 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. —Kim Berkeley

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