Can I reopen my worker’s compensation case if I was retrenched after being injured on duty?
The short answer
If your injury happened less than two years ago, your injury on duty case should still be open.
The whole question
I was injured on duty, but now I have been retrenched because I cannot do my work properly. The doctor says I may have to use crutches or a wheelchair. Can I reopen my worker’s compensation case?
The long answer
An injury on duty case remains open for up to two years. In those two years, the doctor will have submitted regular medical reports, and the case is usually closed after the doctor has submitted the final medical report, saying that the worker is fit to return to work or that the worker is permanently disabled. If the Compensation Commissioner agrees with the medical evidence provided, the worker will be paid out for temporary or permanent disability.
Medical incapacity means “the inability to find and retain employment due to a disease and/or an injury that prevents the performance of the customary duties of an employee.”
Temporary disability is paid out for up to 12 months.
If the doctor found that you were temporarily disabled, but you still could not work after the two years were up, the case could be reopened if the Commissioner agreed with the medical evidence submitted. The Commissioner would only consider reopening the case if the doctor asked for it to be reopened. If the Commissioner approved the claim, the payments for the original injury would continue. An application for additional (increased) compensation would have to be made on a form W930 (from the Labour Department) within 24 months of the injury.
That means the original doctor would have to submit further medical evidence. If you think that your condition is worse than the doctor is saying, or you wanted a second opinion from a different doctor, the original doctor would have to refer you to a different doctor. This is so that the Commissioner can keep track of how the medical opinions are related to the original injury, in deciding whether the case should be reopened. You would have to pay for the visit to the second doctor yourself. The Commissioner would decide if the case should be reopened.
If you did not fully recover after 24 months, the Commissioner could decide that the disability was permanent and agree to pay permanent disability.
Compensation for permanent disability is worked out on a scale of how bad the injury is, from 1% (losing a toe, except the big toe, which is 7%) to 100% (losing two limbs or total loss of sight). If it’s up to 30%, compensation is paid out as a lump sum. If it’s more than 30%, it’s paid out as a monthly pension.
If you disagreed with the decision of the Commissioner, you could lodge an objection to the decision within 90 days from the date that you found out what the Commissioner had decided. The objection would have to be done on form W929 and sent to the Commissioner.
The Commissioner could call a formal hearing to review the decision and you could be represented by a lawyer, a trade union official or a family member. You would have the right to bring fresh expert evidence, like medical evidence. In the end, the Commissioner would make a final decision.
If you were not satisfied with that decision, your only option would be to take it on review to the High Court, where you would have to be represented by a lawyer.
As you do not say how long ago the injury was, we don’t know if it was within the two-year period or not. After 24 months, the Department of Labour closes the case.
If it was too late and too difficult to get the case reopened, you could also apply to the South African Social Security Agency (SASSA) for a disability grant. You can apply to SASSA if you are permanently unable to work, or if you’re temporarily unable to work for longer than 6 months, due to a physical or mental disability.
Perhaps a good place to start is by asking for advice from an organisation like the Black Sash, which gives free paralegal advice.
These are their contact details:
Helpline: 072 663 3739
Wishing you the best,
Answered on March 15, 2023, 12:32 p.m.