Being injured at work is a painful experience for both the worker and the employer.
Chapter 88:05 of the Workmen’s Compensation Act deals with injury and death occurring in the workplace as a result of a worker performing his assigned duties and compensation due to the worker.
Here are 10 things to note about the Workmen’s Compensation Act, Chapter 88:05 24 of 1960*:
1. Who is eligible under the Act?
Under the Act, a worker is identified as:
“any person who has entered into or is working under a contract of service or apprenticeship with an employer, whether as manual labor or otherwise, whether the contract was entered into before or after the entry into force of this Act (i.e. November 15, 1960), and whether such contract is express or implied, oral or written, whether remuneration is calculated by time or work performed, and whether by the day, weekly, monthly or by reference to any other period whatsoever”.
The term includes “a person fishing on board a fishing vessel or carrying on a hire business with any vehicle or vessel the use of which is obtained by that person under a hire agreement (other than hire-purchase agreement) in return for the payment of a fixed sum or profit-sharing or otherwise”
The following persons are not considered workers for the purposes of the law:
(a) persons employed otherwise than in manual labor whose earnings exceed five thousand dollars a year or such other sum as may be prescribed;
(b) persons whose employment is of a casual nature and who are employed otherwise than for the purposes of the trade or business of the employer, except persons employed for the purposes of gambling or leisure and engaged or remunerated through a club;
(d) members of the employer’s family staying in his house;
(e) members of the Trinidad and Tobago Defense Force and any auxiliary force attached thereto; or First Schedule.
(f) members of the police service and members—
(i) any police organization having the general powers of members of the police service constituted by law and in respect of which any law provides for the payment of a gratuity or pension in the event of injury or death; Where
(ii) any fire department.
Who counts as an employer?
“Employer” includes the government and any body of people, whether or not incorporated, as well as any managing agent of an employer and the legal personal representative of a deceased employer.
The law states that “when the services of a worker are temporarily lent or hired to another person by the person with whom the worker has concluded a contract of service or apprenticeship, the latter is, for the purposes of this law , deemed to continue to be the worker’s employer while working for that other person”.
For a person engaged in the operation of a vehicle for hire under a contract (other than a hire-purchase contract), the person from whom use of the vehicle or vessel is so obtained shall be deemed to be the employer.
In addition, with respect to a person employed for purposes of play or recreation and engaged or remunerated through a club, the manager or members of the management committee of the club shall be deemed to be the employer.
2. When is a worker entitled to compensation?
The law states:
“If, in the course of employment, bodily injury by accident occurring out of and in the course of employment is caused to a workman, his employer is, subject to what is mentioned below, liable to pay compensation in accordance with the following provisions:
“On condition that-
(a) the employer is not liable under this Act in respect of any injury which does not prevent the workman for a period of at least three days from working with full pay at the work at which he was employee ;
“(b) if it is proven that a worker’s injury is attributable to the gross and willful misconduct of that worker, any compensation claimed in respect of that injury shall, unless the injury results in death or severe and permanent disability, be refused. .
In addition, the law stipulates that an accident resulting in the death or serious and permanent incapacity of a worker is deemed to occur by reason of and in the course of his employment:
“notwithstanding that the worker was, at the time the accident occurred, in contravention of any legal or other regulation applicable to his employment, or of any order given by or on behalf of his employer, or that he acted without instructions from his employer, if this act was performed by the worker for the needs and in connection with the trade or business of his employer”.
Under S4(3), any compensation due to an adult worker cannot be paid after four years from the date of the incident, and under S11(1), a claim must be made within one year following the date of the incident.
4. Common-law wives can be classified as dependents
Under the law, a dependent includes the child of a worker’s family and any other member of a worker’s family “in whole or in part” dependent on his income at the time of his death. .
A “dependent woman” includes any woman who lived with the worker as a wife, “although not legally married to him” for at least 12 months immediately prior to the date the worker died or was struck incapacity as a result of the accident, and was entirely or partially dependent on his income.
5. Compensation for permanent disability
Section 5 of the Act states that where death results from the injury, a “lump sum” of an amount may be paid, calculated as follows:
- (a)(i) if the worker leaves dependents entirely dependent on his earnings, the lump sum will be a sum equal to thirty-six months (three years) of earnings
- (a)(ii) if the Worker leaves no Dependents wholly dependent on him, but leaves Dependents partly so dependent, the lump sum shall be a sum not in any event exceeding the amount payable under sub -sub-paragraph (i) as may be agreed or, failing such agreement, may be determined by the Commissioner to be reasonable and proportionate to the injury suffered by such dependants;
- if the worker leaves no dependants, the lump sum is the aggregate of the reasonable burial expenses of the deceased worker, without exceeding the sum of $500.
When a “permanent total disability” results from the injury of an adult worker, the law stipulates that compensation equal to two years (48 months) of earnings must be paid.
If the worker was a minor, 96 months’ salary must be paid.
Where “permanent partial disability” results from the injury, for an injury listed in the second schedule, compensation would be “the percentage of the disability caused by that injury”.
For an injury not listed in Schedule II, “the percentage of compensation due in the event of total permanent disability proportionate to the permanent disability caused by the injury”.
In the event of multiple injuries, the compensation may be combined but the amount must not exceed what would have been due if total permanent incapacity had resulted from the injuries.
6. Compensation for temporary incapacity
In the event of total or partial temporary incapacity resulting from an accident at work, the indemnity consists of a “half-yearly indemnity payable on the sixteenth day from the date of the incapacity, then every six months during the incapacity or for a period five years, whichever is shorter.
“(i) in the case of an adult, an amount equal to one-third of his monthly earnings, and
(ii) in the case of a minor, an amount equal to one-half or, after he has reached the age of seventeen, one-third of his monthly earnings”.
In the event of permanent incapacity, any temporary allowance paid by the employer would be deducted as long as the amount does not exceed 50% of the fixed amount to be paid.
For a temporary incapacity:
“it will be deducted from any semi-monthly indemnity to which the worker is entitled the amount of any indemnity or allowance that the worker has received from the employer as compensation during the period of incapacity prior to the collection of the first half- monthly payment and no semi-monthly payment shall in any case exceed the amount, if any, by which half of the amount of the worker’s monthly earnings before the accident exceeds half of the amount of earnings he receives in suitable employment or after the accident or which, but for his refusal to take up suitable employment or business, he would have received”.
7. Compulsory insurance
Under the Act, employers must have insurance:
“24. (1) Subject to this Act, no person shall employ a workman unless a policy of insurance is in force respecting the employment of such workman; but the this paragraph does not apply where the employer is the Government of Trinidad and Tobago.”
Any employer who contravenes it commits an offence.
8. Worker’s agreement to release employer from “null and void” liability
S45 of the law states:
“Any contract or agreement, whether made before or after the coming into force of this Act (i.e. November 15, 1960), whereby a workman waives any right to compensation or employer medical assistance under this Act, is null and void to the extent that it purports to remove or reduce the liability of any person to pay compensation or provide medical aid under this Act. »
9. Occupational diseases contracted during work
A worker may also be entitled to compensation subject to the provisions of the law, when the disease has been contracted during his employment, if he is disabled or dies, unless it is a condition pre-existing.
This would involve the intervention of a medical commission appointed by the Minister and the issuance of a certificate attesting that the worker has suffered or died from a listed disease (disease listed in Schedule 1) and that this is due to his use.
Some of the diseases listed in Schedule 1 include lead, mercury, phosphorus, arsenic, anthrax or radiation poisoning, pneumoconiosis (lung disease), and asbestosis, among others.
10. What is a permanent disability and what percentage of compensation does it deserve?
Consult the second appendix describing what is considered a permanent disability under the Act:
For the full Act see here: https://bit.ly/3Mt0KsA
The Trinidad and Tobago Registered Nurses Association has also shared helpful information here: https://bit.ly/3tl31iW
*Editor’s Note: This article is for informational purposes and is not intended to be used as legal advice. If you are looking for information on compensation related to a workplace injury, please contact a lawyer or a registered union.