WORKER’S COMPENSATION CORNER with MAYBIN NKHOLOMBA
WHERE the goals of social justice in adjudicating claims for compensation are not met especially by reason of repudiating claims by the Commissioner, and the claimant is not satisfied with the decision of the Commissioner, there is sufficient provision in the present Workersâ€™ Compensation Act No. 10 of 1999 of the Laws of Zambia to appeal.
I am aware of cases where the decision of the Commissioner has not fully met the expectations of claimants and people have been left with questions on what course of action to take in the event that a claim is rejected.
This week I have recalled the advice given by our management for us to consider educating readers on existing options for claimants where justice may be denied by reason of rejecting claims.
For the benefit of our readers, I would like to share some of the cases that we have rejected in the past to confirm that some claims made for compensation purposes have indeed been rejected. The Commissioner does reject claims for compensation if and when they are not in conformity with the provisions of the law.
For instance, a claim made to settle compensation for workers that had died following consumption of a spirit while working in a laboratory was rejected.Â Notwithstanding section 51 (1) which provides that a worker shall be entitled to compensation if an accident or disease occurs to a worker arising out of and in the course of employment, no compensation was given, and the decision of the Commissioner was based on sub section 2 (a) which provides that if an accident or disease is attributable to the serious and wilful misconduct of the worker, compensation is not obtainable.
And much more recently, a claim for refund of medical expenses incurred as a result of evacuating a worker for specialist treatment was rejected. The Commissioner rejected the claim for refund because the employer did not seek prior approval before evacuating the injured worker as per provision 101 (4) relating to medical aid expenses.
It is a requirement that employers seek approval of the Commissioner before evacuating injured workers for treatment abroad, especially if the employer will need to be refunded the cost of treatment by the Workers Compensation Fund Control Board (WCFCB).
The most striking example of rejected claims involved a claim for compensation in respect of a worker who died after being struck by lightning while working at a farm in Central Province. I must admit that this matter was highly contentious.
To resolve contentious matters relating to compensation claims such as the ones given, there is established a tribunal known as the Workersâ€™ Compensation Tribunal. The tribunal consists of a chairperson and four other members appointed by the Minister of Labour and Social Security. The chairperson of the tribunal is a lawyer with at least 10 yearsâ€™ standing with another member being a registered medical practitioner and other two members. Members of the tribunal hold office for a period of four years and are subject to re-appointment for a further like period.
The Workersâ€™ Compensation Tribunal is an independent appellant body whose main functions include the following:
â€¢Â Â Â To hear any appeal made to it under the Workersâ€™ Compensation Act
â€¢Â Â Â To perform such other function as assigned to it
â€¢Â Â Â Generally, to deal with all matters necessary or incidental to the performance of its functions.
Readers may be interested to know that the Chief Justice makes rules to regulate the procedures of the tribunal, and in any case not covered by the rules, the tribunal acts in a manner and on principles as it considers best suited to do justice and to effect and carry out the objectives and provisions of the Act.
The tribunal has sufficient powers to confirm, vary or reverse the decision of the Commissioner, and in the event that the record does not furnish sufficient evidence or information for the determination of the appeal, the tribunal remits the matter to the Commissioner with instructions to taking of further evidence on claims made.
The governance structure of the WCFCB provides further comfort in Section 133 (1) of the Workersâ€™ Compensation Act where it states: â€œAny person who being a party to any appeal before the tribunal, is dissatisfied- (a) with the determination of the tribunal as being erroneous in point of law or fact; or (b) with any decision of the chairperson of the tribunal as to whether the matter for determination by the tribunal is a matter of fact or a matter of law; may appeal to the High Court within 30y days of the determination.
Those of our readers who may have been dissatisfied with decisions of the Commissioner in the determination of compensation claims are at liberty to appeal to the Workersâ€™ Compensation Tribunal. We are certain that justice will be delivered where you feel it has been denied.
The author is Workersâ€™ Compensation Fund Control Board corporate affairs and customer services manager
WORKER’S COMPENSATION CORNER with MAYBIN NKHOLOMBA