Introduction
In general we can define the term workers’ compensation as “a public benefit scheme in which qualified worker who are injured in the work place, receives compensation or commensurate with their degree of injury regardless of fault[1]”. In Tanzania this scheme of compensating workmen who sustain injury while in course of employment is guided by the Workmen’s Compensation Act[2].
THE ORIGIN OF THE CONCEPT OF WORKMEN’S COMPENSATION
Before the establishment of the concept of workmen’s compensation in Europe and the whole World in general the workers were believed to live in a great danger due to the risks they faces in their working areas. For instance in common law legal system due to the lack of the concept of workmen’s compensation where their workers got into injuries the employers were able to escape such liability rely on the defenses of contributory negligence and the assumption of risk concept, which generally refers that “the worker who accepts the job understands the inherent risks in the work”, therefore under such defenses the employers were free from the liability of any injury caused to their employees on their areas of production.
As the realization of such problems at the end of the nineteenth century, the first Workmen compensation in Europe was established in German in 1884 and referred as “the pioneering Workmen’s compensation”, which was basically based on the “accident insurance system” that was established by Chancellor Otto Von Bismarck in 1881 whereas it was considered as the model of European insurance system. Furthermore, in 1897 Britain also established their first workmen legislation which generally came to replace the Employers Liability Act of 1880 and after the establishment of such Act the right to sue the employers to the injured workers was generally ensured in Britain. The Britain legislation on workmen’s compensation at later it became the model for many states and guide for the workers' compensation laws, for instance such laws were also adopted in the United States[3].
ELEMENTS IN THE CLAIMING FOR WORKMAN COMPENSATION BENEFIT;
Under the basis of provision of section 19 of the Workers’ Compensation Act[4], which provides that “where an employee has an accident resulting in the employee’s disablement or death, the employee or the dependants of the employee shall, be entitled to the compensation provided under this Act”, every workman had a right to sue when he is injured in the area of work. But usually the employee has the burden of proving that the injury was caused by exposure to an increased risk from employment. Hence in instituting a claim for workman compensation benefit he must establish the following facts:-
- That you’re a legal employee
Basing on the definition on the term “employee” provided under of section 4(a) of the Workers’ Compensation Act[5], which referred employee as “any person, including an apprentice but excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration.”, generally we should noted that not all workers are employees when it comes to workers' compensation eligibility. Hence generally we may argue that for workers’ compensation law to apply, the worker must have been engaged in an employer-employee relationship at the time the injury occurred.
- Injury or illness must be work related
We shall note that an injured worker is entitled to workers' compensation benefits only if the injury arose out of and in the course of employment. The first part of this requirement, "arising out of employment," the employee must ensures the court that there was a causal connection between the work and the injury. Thus why when the injury arise out of employment, the employee seeking workers' compensation also must show that the injury arose "in the course of employment." Therefore the words “out of and in the course of” refers to the same thing and so they are co-existence expressions[6], when it comes to work related of injury to the employee.
Although these expressions are supposed to be treated the same but distinguishing between injuries that do or do not arise out of the course of employment is often a difficult and confusing task in the dispensing of justice especially when an employee is injured going to or from work. This fact was witnessed in the case of Heim v. Longview Fibre Co.[7], whereas in this case the claimant was driving his motorcycle through the usual exit from his employer's premises when a coworker turning into the premises hit the claimant, killing him. The precise location of the crash was fewer than five feet from the employer's property, on a public access road to the plant used by company personnel. Nevertheless, basing on the rule of an employee with fixed hours and work locale going to or coming from work which is generally covered by workers' compensation if the injury occurs on the employer's premises, the court held that the injury did not arise in the course of employment and denied death benefits.
To prevent the occurrence of such harsh decision under the premises rule the courts have attempted to extend the premises rule to include injuries that occur within a reasonable distance of the employer's premises. And most courts recognize the compensability of an injury that occurs off the employer's premises when an employee is going to or coming from work, where the trip itself is a substantial part of the employee's service to the employer. In East Africa the courts have tried to develop such rule of premises in the following cases in various situations:-
- During the working hours and at the employers premises;
In this situation the preventive of premises rule was occurred in the case of Viran v. Dharamsi[8], whereas in this case the deceased workman was employed as a clerk by the appellant and part of his duty was to go to particular godown and collect coffee beans. In the course of such duty , the deceased and another person , who was not an employee of the appellant, had quarrel as the result of which the deceased died. In the first decision the court was in favour of the respondent basing on the fact that “the quarrel resulted by the acts done by the deceased was in connection with the employer’s business”. In the following appeal the Judge stated as follows “an accident arose out of and in the course of employment”, if it is resulted from an act which the employee was assigned to do, even if the employee adopted wrong method of doing the act or did it in a wrong manner , he has to be compensated“ The Judge also added that the employee in this case was collect coffee beans which was precisely what he was doing, and in the course of his duty such the quarrel occurred, hence from this argument the here is where the employee receive injuries which he died . Also in the court of Appeal for East Africa made similar observation from the High court and dismiss the appeal.
- When the employee travelling in the course of the duty;
In this situation the rule of premises was prevented in the case of Ali Mahdi v. Abdulla Mohamed[9], whereas in this case the respondent claimed that he had lost his eye through sand thrown up by a passing vehicle belonging to the appellant which was his employer. In the holding both trial courts and the high court found in favour of the plaintiff.
A part from that this matter was also discussed I the case of Urban v. Industrial Commission[10], whereas in this case the employee, a traveling salesperson, was killed in a car accident while driving in the direction of his home, although the evidence was not clear that he was actually returning home. The court ruled the death to be compensable.
RISKS TO BE COMPENSABLE IN WORKERS COMPENSATION
For a proper provision workers compensation reward we may categorize 3 types of risks to be compensable in workers compensation. Therefore in determining whether an injury is compensable, it is helpful to categorize the risk causing the injury in one of three ways which are as follows:-
- Risks that are associated distinctly with the employment;
These are those risks which the employee got at the working area. These risk are compensable in general as it had been proved in the provision of section 19(1) of the Workers’ Compensation Act[11] which provides that Where an employee has an accident resulting in the employee's disablement or death, the employee or the dependants of the employee shall,, be entitled to the compensation provided under this Act”.
- Risks that are personal to the claimant;
These are internal or external effect that an employee gets due to the performance of a certain duty that was assigned by his employer. For instance even idiopathic injuries, or injuries resulting from risks personal to the employee as opposed to risks associated with the job, may be compensable if the job contributes to the risk. For example an employee who misses breakfast and suffers a fainting spell ordinarily will not be entitled to workers' compensation, because the fainting spell does not arise out of employment. But if the same worker faints and in so doing hits her head on her desk and fractures her skull, her injury will be compensable[12]. This fact was well elaborated in the case of Silverman v. Roth[13], whereas in this case the employee died of heart failure after suffering a heart attack and falling from a ladder. The precise sequence of events was impossible to determine. Nevertheless, the court awarded benefits, citing evidence that even if the heart attack occurred before the fall from the ladder, the heart condition would have been aggravated by the shock of the fall, and thus the fall from the ladder was a contributing factor in the employee's death.
- The neutral risk;
Neutral risks are neither distinct to the employment nor distinctly personal. This is the most problematic in determining the compensability of a work injury, thus why in deciding who to compensate it often depends on the jurisdiction of the tribunal, the nature of the injury, and the precise facts surrounding the accident. For example, injuries caused by lightning are usually compensable if the claimant can show that the work conditions increased the risk of being struck. This was established in the case of Reich v. A. Reich & Sons Gardens, Inc[14], whereas in this case the employee was killed by lightning while standing next to several vehicles in a wheat field. The court deemed the death compensable, citing testimony that the employee's risk of being hit by lightning was greater than that of other people in the vicinity, who were sheltered in cars and buildings and were not standing in an open field.
WORKERS COMPENSATION SYSTEM IN TANZANIA
Before the establishment of the Workers compensation fund in Tanzania in 2008, the liability of compensating workers when they got injured in their working premises was relied upon the employers. This fact was proved under the provision of section 5(1) of the Workers Compensation Ordinance CAP 263 as amended in 1983 which provides that “if in any employment personal injury by accident arising out and in the course of the employment is caused to the workman his employer shall be liable to pay compensation in accordance with the provisions of the ordinance[15].”
Furthermore, also during this period the competent workman with a right to claim for the workers compensation benefit was that who was referred under section 2(1) of the ordinance which generally referred a workman as “any person who has either before or after the commence of this ordinance, entered into or works under a contract of apprenticeship with an employer , whether by manual labour or otherwise, whether the contract is express or implied, is oral or in writing, whether remuneration is calculated by time or work done[16]”
Generally this definition of workman which was provided before the establishment of the workers’ compensation fund in Tanzania, it was basically based on the contract of apprenticeship between the employer and an employee, as the result some group of workers were excluded from benefiting the workers compensation benefit when they got injured during their duty of work. Among the group workers which were excluded from benefiting the workers compensation benefit are as follows:-
- A casual employee;
Casual employees are employees who do not have regular or systematic hours of work or an expectation of continuing work. Generally we should note that a casual employee is usually engaged on odd jobs. Example of the casual employees can be college students who work on campus, with fewer than part-time hours and no benefits or expectation of long-term employment. Hence due to the lack of entitlements such as annual leave, personal leave and the lack of continuity of work, casual employees are paid a loading to compensate them.
- An out-worker;
This can be defined as who work outside the factory premises on behalf of the organization[17]. Normally the out-worker does not work in a company's offices. Hence strict control over the work performed and payment made to these workers is necessary.
- Family member in dwelling house;
The dwelling house can be referred as a house in which a man lives with his family. The purpose of excluding these family members from being compensated in general is to prevent to enrich the employees twice when a certain injury got into their family members near the working premises.
- Designate person;
The other workers which are excluded from benefiting the workmen’s compensation are designated person. A good example of the designated persons includes the persons which are designated by the President to a certain authority, for example Regional commissioner, District commissioner etc, in general they does not amount to workman.
In general this kind definition of workman was seem to oppress some of the working groups as they are mentioned above because the fact of basing on the contract of apprenticeship was generally deprive their basic rights when they get injured when they were in their duties.
THE ESTABLISHMENT OF THE WORKERS’ COMPENSATION FUND
On November 4, 2008, Tanzania's National Assembly approved amendments to the Workers' Compensation Act, whereas under such amendment The Workers Compensation Fund (The Fund) was established under Section 5 of the Act. According to the Minister of Labour, Employment and Youth Development, back then Hon. Juma Kapuya, the basis for such amendment is the current global economic, social and political changes that have to comply with the international labor laws[18]. Although the Act has been operational for over five (5) years, the Fund had been non-existent until recent when the Director General of the Fund revealed the Fund’s commencement of operations on 1st July, 2015 which establishes that “the Fund shall directly affect employers in both public and private sectors.”
Generally basing on the commencement of the Director General of the Fund on who are included on the fund that are both public and private sectors, The Fund would be mandated to exercise its powers over employees in the private sector, public servants, and all employees working in Tanzanian ships or aircrafts, or employees working abroad temporarily for employers based in Tanzania. Manual and casual workers, such as housemaids and shamba boys are included in the definition of an employee under the Act[19].
According to the chapter VII of the Workers’ compensation Act[20], among of the employer obligation for the fund are; to register with the Fund, file returns, keep records of the employees and make contributions to the Fund. For example in the issue of making contribution to the fund, the employers will be distributing their risks by making annual contributions to the Fund, hence incase employees suffer death, injuries or diseases, the Fund will be obliged to pay them or their dependents compensation. According to the notice published in the media by the Fund’s Director General read together with the Government Notice No. 169 of 2015, employers from private sector shall contribute 1% of their annual wage bill. Employers from the public sector shall contribute 0.5% of their annual wage bill, such contributions shall be made on monthly basis and failure to register at the prescribed time and in the prescribed manner amounts to an offence and on conviction shall be punishable by a fine of not exceeding Tanzanian Shillings Fifty million or a prison term of five (5) years, or both as provided under section 75(3) of the Workers’ compensation Act[21].
Furthermore the Factory owners also have to comply with the requirements under the Occupational Health and Safety Act (OSHA). These include: duty to fence prime movers and transmission machinery and provision of safety gear or appliances to their employees. In case an employee is injured, sustains an occupational disease or dies in the course of employment, the employer will be required to comply with the requirements of the Fund and the Chief Inspector under the Occupational Health and Safety Act. Factory owners shall also be subjected to regular inspections by OSHA inspectors which add further costs thereto.
In conclusion we shall note that Compensation from the Fund does not decimate civil liabilities of the employer. Generally an employee or dependents of the employee can still sue the employer in a civil suit if the accident, death or occupational disease was sustained by negligence, breach of duty or any wrongful act committed by the employer as provided under section 30(1) of the Workers’ Compensation Act[22]. However, the award granted in such a civil suit shall be reduced by the value of any compensation which has been paid by the Fund as it had been elaborated in the sub-section 2 of the Act.
BENEFITS TO THE EMPLOYEES UNDER THE WORKERS’ COMPENSATION FUND
In general the Fund offers the following benefits to employees; medical aid, rehabilitation benefits, compensation for temporary and permanent disablement, dependents and funeral grants, whereas the assessment of the benefits and duration is in accordance to the law and discretion of the Director General. We may categorize those benefits in two groups which are as follows:-
- Indemnity benefits
Normally indemnity benefits compensate for the worker's loss of income or earning capacity resulting from the work-related injury. This remedy is provided basing on the formula established in the Act based on a certain situations such as follows;
- In permanent disablement
Basing on the section 4 of the Workers’ Compensation Act[23] the term permanent disablement in relation to an employee means the permanent inability of the employee to perform any work as a result of an accident or occupational disease for which compensation is payable. The provision of the indemnity remedy under this situation is guided by section 48(4)(a)(b), of the Workers’ compensation Act[24] which establishes that Compensation for permanent disablement shall be paid, subject to the minimum and maximum amounts set out in regulations made by the Minister if-( a) the employee is one hundred percent permanently disabled, a monthly pension based on seventy percent of the employee's monthly earnings at the time of the accident; or (b) the employee is less than one hundred per cent permanently disabled, the percentage of the monthly pension provided in paragraph (a) proportionate to the degree of permanent disability of the employee.
- In the case of temporary partial disablement
Under the provision of section 4 of the Workers’ compensation Act the term "temporary partial disablement" means the temporary partial inability of the employee to-( a) perform the whole of the work at which the employee was employed at the time of the accident or occupational disease; or (b) Resume work at a rate of earnings not less than that which the employee was receiving at the time of the accident or occupational disease, as a result of an accident or occupational disease for which compensation is payable. The provision of the indemnity remedy under this situation is guided by section 46(1) of the Workers’ compensation Act[25], which provides that “Compensation for temporary total disablement shall be calculated on the basis of seventy percent of the employee's monthly earnings at the time of the accident, subject to any minimum and maximum amounts as may be set out in regulations made by the Minister”.
- Dependents' grants if an employee dies
Basing on the provision of section 4 of the Workers’ compensation Act, the term "dependent of an employee" means any of the following person who at the time of the death of the employee was wholly or partly financially dependent upon the employee-( a) a spouse, who at the time of the death of the employee was married to the employee according to the law of marriage; (b) if there is no spouse referred to in paragraph (a), a person with whom the employee was at the time of the employee's death living as husband and wife; (c) a child of the employee or of the employee' spouse, under the age of eighteen years;(d) a child over eighteen years of the employee or the employee's spouse, and a parent or any person who the Director-General believes was acting in the place of a parent, a brother, a sister, a half-brother or half sister, a grandparent or a grandchild of the employee The provision of this kind benefit is guided by the formulae which is provided under the provision of section 52(1)(a)(b)(c) and (d).
- Medical Aid and Rehabilitation Benefits
This is other category of the employees workers’ compensation benefit. Basing on the provision of section 4 of the Workers’ Compensation Act the term "medical aid" means medical, surgical or hospital treatment, skilled nursing services, any remedial treatment approved by the Director-General, the supply and repair of any prosthesis or any device necessitated by disablement. Normally these benefits serve to cure the injury, or, if the injury is incurable, relieve its effects. This benefit is established under the provision of section 61(1) of the Workers compensation Act[26]. We shall note that failure of the employer to provide medical aid at the time the injured occurred he is generally considered as he has commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings or imprisonment for a term of twelve months as it is prescribed in the provision of subsection 3. The provision of this kind benefit is guided by the formulae which is provided under the provision of section 65(1) which provides that “Subject to the provisions of this section, the cost of medical aid shall be calculated in accordance with a tariff of fees determined by the Director-General.” The basis for the determination of Director-General on medical benefit is the provision of section 64 of the Workers’ Compensation Act[27] which provides that “the Director-General may decide on all issues regarding the need, nature and sufficiency of any medical aid benefits supplied or to be supplied under this Act.”
COMMON WORKERS' COMPENSATION DEFENSES
Workers who are injured on the job are entitled to compensation for these injuries through workers' compensation fund. An injured employee typically files a claim after suffering a work-related injury, which the insurer investigates before paying out benefits[28]. However, not all injuries occurring at work or in the course of employment are compensable. Employers and their insurers have a number of workers' compensation defenses that may apply to a given claim which are as follows:-
- Failure to Give Notice to Your Employer;
Under the basis of the provision of section 33(1) of the Act “ an employee or any person on behalf of the employee shall, as soon as possible after an accident has occurred, give written or verbal notice of the accident to the employer and he may also give notice of the accident to the Director-General in a prescribed form”.. Notice should be given to a supervisor either verbally or in writing, and may be given by the employee's spouse, doctor, or other third parties. But under subsection (2) Failure to give notice to an employer as required in subsection (1) shall not bar a right to compensation if it is proved that the employer had knowledge of the accident from any other source at or about the time of the accident.
- Statute of Limitations;
Each state has a time limit for filing a workers' compensation claim (which is separate from the deadline for providing notice of the injury). Time limits typically range from one to three years. These statutes of limitations are usually more flexible in cases of occupational disease, such as injuries caused by exposure to toxins over time. For example, you may be required to file the claim within a certain period after the last known exposure. Failure to file your claim within the statute of limitations will void your ability to recover for injuries.
- Self-Inflicted Injuries
Injuries caused by the claimant are not compensable. This may include, for example, injuries sustained by the claimant intentionally in order to file a fraudulent claim. This fact is also being provided under section 19(2) of the Workers’ compensation Act[29] which provides that Where an accident is attributable to the serious or willful misconduct of the employee, no compensation shall be payable, unless the accident results in permanent and total disablement or if the employee dies and leaves dependents as it directed by the provision of section 19(2)(a) and (b) of the Workers’ compensation Act.
- No Causal Link to Employment
Normally order to claim a work-related injury, there must be some causal link to employment. A common workers' compensation defense is to claim that the employee's injury is not related to employment activities. For example, a factory worker gets a minor scrape on her finger at work but fails to properly care for the wound. The finger becomes infected and eventually has to be amputated. She probably would not be eligible for coverage.
- Unable to Determine Cause of Injury
The cause of the injury must be determined in order to process a workers' compensation claim. Even injuries that occur at work, such a heart attack, can be caused by factors not related to employment. The cause of the injury is determined through an independent medical examination.
In conclusion we should note that although in nowadays Workers' compensation has been criticized as an expensive component of doing business and a system made more expensive by undetected fraud. What was intended to provide the employer and the injured worker with an amicable and humane resolution of a work injury often results in contentious disputes and costly litigation. Some employees feign injury to receive wage-loss benefits, and some employers balk at providing benefits to legitimately injured workers for fear that insurance premiums will rise. But the system has been effective in keeping injured employees employed and promoting the importance of a safe workplace.
Credit: The work was prepared and shared by Elionorah Yamaha an llb student at Moshi cooperative university
REFERRENCES
- BOOKS
- Tyes,J.G. LAW OF TORTS.4TH Edition.
- Binamungu,CS (2002),Law of Torts in Tanzania.
- CASE LAWS
- Heim v. Longview Fibre Co [1985] Wash. App. 745
- Viran v. Dharamsi [1967] E.A 132
- Ali Mahdi v. Abdulla Mohamed [1961] E.A 83 (HC-DSM)
- Urban v. Industrial Commission [1966] Ill. App. Ct.
- Silverman v. Roth [1959] N.Y.S.2d 311
- Reich v. A. Reich & Sons Gardens, Inc [1972] S.W. 2d 133
- STATUTES
Workers’ compensation Act CAP 263 [RE 2015]
- WEBSITES
- http://www.duhaime.org
- www.encyclopedia.com (10th May, 2019)
- http://www.preservearticles.com
- www.injury.findlaw.com
- http://www.preservearticles.com
- http://www.loc.gov (Nov. 21, 2008).
- https://www.tanzaniainvest.com , JULY 6, 2015
[2] CAP 263 [RE 2002]
[4] CAP 263 [RE 2015]
[5] Ibid
[7] [1985] Wash. App. 745
[8] [1967] E.A 132
[9] [1961] E.A 83 (HC-DSM)
[10] [1966] Ill. App. Ct.
[11] CAP 263 [RE 2015]
[13] [1959] N.Y.S.2d 311
[14] [1972] S.W. 2d 133
[15] Binamungu,CS (2002),Law of Torts in Tanzania. P. 91
[16] Ibid p.90
[20] CAP 263 [RE 2015]
[21] Ibid
[22] CAP 263 [RE 2015]
[23] CAP 263 [RE 2015]
[24] Ibid
[25] Ibid
[26] CAP 263 [RE 2002]
[27] CAP 263 [RE 2015]
[29] CAP 263 [RE 2015]
