Module 4: Lecture: Workers Compensation Legislation (Continued).

SHORTCOMINGS OF THE ODMWA:

• It was borne out of the racial framework of the apartheid era. It was subsequently amended in a piecemeal fashion in 1993 (was considered to have been an interim arrangement) to remove all reference to race. There is however, still inherent discrimination since compensation is based on salary of workers ⁵. It also results in employers not bearing the full cost of the burden of disease incurred by the mines, which is then transferred to the public health care system and indirectly as a social cost to be borne by the ordinary tax payer.
• It only recognises more than 10% impairment as compensable and it fails to define what <10% constitutes in terms of chest x-ray and lung function abnormalities (this is probably the ILO 1/0 category and the mild LFT impairment).
• It only recognises for compensation two levels of disability viz. first degree (10 - < 40%) and second degree (40 -100%). These ranges of grading are too wide to categorise workers in an equitable fashion.
• It pays out the benefits as lump sums rather then as pensions on a long-term, life-time basis.
• The Act, aside for the provision of benefit medical examinations, is not rooted in any preventive framework (controlling and eliminating hazards) and a long-term aim to provide comprehensive occupational health services to underserved groups (as outlined in the White Paper on Transformation of the Health Care System, 1997). There is therefore inadequate surveillance, inadequate targeted inspections and citations due to sub-optimal linkages of electronic databases of the compensation offices and relevant health and safety agencies.
• It is not fully funded by employers since it relies on resources from the Department of Health to administer it, thereby taking away scarce resources for promoting occupational health for workers in other industries. The compensation system contains therefore no financial incentive for employers to tackle dust problems in the mines since its administration is subsidised by the state.
• It creates duplicate and confusing systems for diseases covered under COIDA eg. only occupational asthma from platinum salts is covered . Other occupational lung diseases are covered by both laws having different thresholds for compensability and the receiving of benefits for a worker with the same disease in the mines and for worker in general industry.
• It does not include pain and suffering into its determinations for compensation.
• Aside for payment of 75% of wages (for a maximum of 6 months) for a worker with TB, it does not cover loss of earnings for absence from work as a result of other diseases (this means that this may be deducted from normal sick leave).
• The employer is only obliged to pay for medical treatment of a certified worker for a period of two years - thereafter this responsibility lies with the State.

Future Developments:

Government Departments intend merging the ODMWA and COIDA as well as their administrations into a single act.The process of harmonisation has not been completed yet. It is foreseen that there will be an increase in the number of compensable diseases under the harmonised act.

REFERENCES:

1. Government Gazette. Compensation for Occupational Injuries and Diseases Act No. 130 of 1993. Pretoria, South Africa: Government Printer, 1994; vol.340, no.15158.
2. Government Gazette. Occupational Diseases in Mines and Works Amendment Act No.208 of 1993. Pretoria, South Africa: Government Printer, 1994; vol.343, no.15449
3. Occupational Diseases in Mines and Works Amendment Act 60 of 2002. Government Printer. Pretoria, South Africa.
4. Government Gazette.Mine Health and Safety Act No. 29 of 1996. Government printer. Pretoria South Africa.
5. Abdullah F, Jeebhay M, Myers J. Occupational Diseases in Mines and Works Act, 1993. SAMJ, 84, 132-3, 1994.
6. Kew G, Ehrlich R I, Fitness to Work, Disability and Compensation. In Guild R, Ehrlich RI, Johnston JR, Ross MH, eds. Handbook of Occupational Health Practice in the South African Mining Industry, 1st edition, Johannesburg, South Africa, Safety In Mines Research Advisory Committee (SIMRAC), 2001; 257-293.