SEPTEMBER/OCTOBER 200330 OCCUPATIONAL HEALTH SOUTHERN AFRICA

COMPENSATION PAGE

All employees sustaining occupational inju-

ries or diseases are entitled to the benefits

provided for and prescribed by the Com-

pensation for Occupational Injuries and Diseases

Act, subject to section 22(1) and 65(1) of the

same Act. Therefore, if human immunodeficiency

virus (HIV) infection is contracted as a result of

exposure in a workplace or an occupational in-

jury, ar is ing out of and in the course of

employment, such cases will be covered for

benefits under the Act. From 1987 through 2002,

158 cases were reported to the Office of Com-

pensation Commissioner as possible compensable

occupationally acquired HIV infection claims.

Forty-six have been accepted, 11 repudiated and

101 (63%) are still not finalised because of out-

standing information. The aim of this article is to

clarify the issues relating to compensation of

employees who contract HIV infection in a

workplace.

DEFINITION

Occupationally acquired HIV infection is an infec-

tion caused by the human immunodeficiency virus

as a result of an exposure or accident in a

workplace. Most of the claims reported are nee-

dle-stick injuries, but other accidental exposures

to HIV infected blood or other products have also

been reported. Under such circumstances, occu-

pationally acquired HIV infection is regarded as a

compensable occupational injury.

REPORTING REQUIREMENTS

The Compensation Commissioner must first be in-

formed through the Employer’s Report of the

Occupational Accident (W.Cl. 2). However, if the

employer is no longer operating, the employee

may report through Notice of Occupational Acci-

dent and Claim for Compensation (W.Cl. 3).

The employer is required to provide the

Compensation Commissioner with the information

Compensation ofwork-related HIV infection

Dr J N Shikwane,

Principal Medical

Officer,

Compensation Fund,

Department of

Labour,

Compensation

House, Hamilton

Street, Pretoria,

jsw@wcomp.gov.za,

Tel: 012 321 7115

to support the claim, showing the link between

the injury on duty and the HIV infection. An inci-

dent report must be submitted indicating date and

place of the incident/accident, which led to the

positive HIV status (sero-conversion). In addition,

a First Medical Report (W.Cl. 4) from the medical

practitioner confirming the diagnosis of the HIV

infection must be submitted. Other information

such as the HIV status of the employee on the

date of the accident and the HIV status of the

contact person will also be required as proof that

the infection was indeed acquired in a workplace.

ACCEPTED CASE

If the claimant succeeds in discharging the onus

of proof, the next question to be answered is

whether the condition with no symptoms can be

regarded as a ‘personal injury’ as envisaged by

the definition of the ‘accident’ in COIDA. If the

employee is symptom free after sero-conversion,

the Compensation Fund’s policy is that any medi-

cal expenses necessitated by the infection,

including antiretroviral drugs, will be covered. The

treating doctor must advise the Office after maxi-

mum medical treatment on the impairment in

order for the Compensation Commissioner to

determine permanent disablement.

CHALLENGES THAT THE OFFICE OF THE

COMPENSATION COMMISSIONER IS FACING

AS A RESULT OF OTHER LEGISLATION

The Compensation for Occupational Injuries and

Diseases Act (COIDA) requires the employer to

assist the employee in lodging a claim with the Com-

pensation Commissioner. In order for the employee

to discharge the onus of proof, he/she must disclose

his/her HIV status at the time of exposure and af-

ter sero-conversion. This is in contravention of

common law and Section 14 of the Constitution of

South Africa, which states that all persons with HIV

or AIDS have a right to privacy, including privacy

31SEPTEMBER/OCTOBER 2003OCCUPATIONAL HEALTH SOUTHERN AFRICA

concerning their HIV or AIDS status.

The ‘Code of good practice on key aspects of

HIV/AIDS and employment’ under the Department

of Labour also states that, if the affected employee

does choose to disclose his/her HIV status to the

employer, the information may not be disclosed

without the written consent of the employee.

Section 7(2) of the Employment Equity Act, No.55

of 1998, states ‘Testing of an employee to deter-

mine that employee’s HIV status is prohibited

unless such testing is determined justifiable by

the Labour Court in terms of section 50(4)’, which

provides the Court with the power to impose

conditions on authorised HIV testing.

CONCLUSION

Occupationally acquired HIV/AIDS is compensa-

ble in terms of COIDA. The Off ice of the

Compensation Commissioner is faced with the

challenge of ensuring that employees are com-

pensated without contravening other legislations.

In so doing, the Office is in the process of draft-

ing a pol icy regarding compensat ion for

occupationally acquired HIV infection.