George Kahn’s Post

https://lnkd.in/dAZ8Uwjd This is a really bad judgment that must be appealed. The acting judge adopted a very technical stance that best favoured the Employer while ignoring the main differences and point of the two Acts. Reading it made me dizzy. The workers' safety rights just got screwed. Bottom line if you are employed up stream in the extractive industry, before manufacturing, and you work on surface in processes of getting the mined thing ready for the manufacturers, refuse the Dangerous Work that does not comply with the MHSA, in terms of your statutory right in section... oh... wait... that's gone thanks to the Labour Court. No more statutory right to refuse dangerous work. The worst part is the acting judge seems to acknowledge it's the same risk as it was under the MHSA, but now, because of a legal action that nobody can physically see (does not change the safety risks), it no longer gets the same protections. The judgment even records that it doesn't matter that the Occupational Diseases in Mines and Works Act is binding on the same workplace, it's still not a mine in terms of the stuff that causes occupational diseases in mines and works. At least Anglo American SA must be happy, they are going to save a small fortune while the unions have less authority, workers get killed more often, and workers cannot appeal their finding of being medically unfit to the medical inspector or leave a dangerous workplace.

https://lnkd.in/dAnZuEAU Each seriously injured worker and the dependants of the deceased workers' will have a Compensation of Occupational Injures and Diseases Act ('COIDA') claims against the Employer, and possibly a Consumer Protection Act claim or class action against the producers of the defective materials that gave rise to the building collapse, if any. Furthermore, the consumers of the properties purchased that have collapsed may have their own claims against the producer. In addition, each COIDA claim will likely have a section 56 claim for additional compensation against the Compensation Commissioner, where the Employer was found to be negligent. The workers and clients of the building will have to look at the OHSA and NBRBSA regulations to understand the existence of strict liability as well. They will struggle to find lawyers that understand Consumer Law, Health and Safety Law, Workman's Compensation Law and class action \ complex litigation all together though. There are only a handful of lawyers in the whole country that understand all these areas of law, let alone ones that could run this perfect storm of a case; I can count them on one hand. Good luck to the workers and consumers, hope they don't let those responsible get away with this.

On 6 & 7 May, a COIDA hearing will reconvene to hear the remaining evidence in an objection against a decision of the Compensation Commissioner that a worker does not suffer from an occupational disease because she suffered from the disease prior to the accident. The facts are that the worker was exposed to a toxic chemical in new product being tested, and the product caused serious harm to her and other employees. It resulted in irritant-related asthma (also known as RADS) and a serious speech impediment to the workers vocal cords. She is in 60s and suffered this incident in her late 50s. She had a condition that was described as childhood asthma "until she was 10". The commissioner dismissed the claim for compensation on the basis that "she has had asthma since being 10". There is zero evidence of her suffering from asthma as a teenager, in her 20s, 30s, 40s, or 50s, and there is evidence from her family doctor stating she has not had asthma in her 40s and 50s since they became the family doctor. Prof David Rees PhD, retired professor of occupational medicine and former director of the National Institute of Occupational Health, and world expert on occupational lung diseases, testified that both conditions were occupational, serious, permanent and resulted in her no longer being able to perform her specialised type of work (where she must teach, give verbal instructions and be exposed to hair chemicals). The commissioner denies everything and is not prepared to admit anything. The only thing they have now admitted, under great pressure, is that the report they relied upon to say the worker has had asthma since 10 years old actually said the opposite. They have attacked Prof Rees' credibility to comment on occupational lung conditions - whereafter he pointed out he wrote their circular on asthma 20 years ago, and said it's out of date and needs to be updated with current medical knowledge. They still have not conceded the case. Whenever we reconvene, we hear the evidence of the worker and the HR manager to explain how the condition has affected her ability to do her previous job (NB for section 49(2)(c)). The commissioner is calling two doctors to answer whether she had asthma prior to the accident and why her condition is not occupational. Both diseases are presumed to be occupational because of the substances that can cause them being present at the workplace - as confirmed by Prof Rees (s 66). The Commissioner must objectively rebut that presumption. The real problem is that this case highlights that the Compensation Commissioner staff are not properly qualified to adjudicate COIDA matters and will defraud workers by giving reasons for her repudiation of claims that are made up by them. All COIDA claimants should carefully study their cases and the decisions of the Commissioner, they may have been robbed of their constitutional right to social security.

Friday smile: been asked today by a major law firm's section on health and safety law, whether a well-known professor of radiology with a recognised focus on lungs is qualified to read a chest x-ray on pneumoconiosis (a lung disease). Gave the doctors a good chuckle. It's important that lawyers don't assume doctors understand and know the law and all the big legal names, and doctors don't assume lawyers understand and know medicine and all the big medical names. This is also the reason BAs and BComs cannot become patent lawyers, and get restricted to trademarks, etc. Law schools need to embrace more science learning, and Medical Schools need to have more stuff on their legal duties and patient rights.

https://lnkd.in/eT48xHQv In my opinion, the Rule of Law died a little yesterday. I accept it may not be a popular opinion. I was utterly gobsmacked by the decision.

I just wanted to give an update on the previous post's matter. The matter has been postponed with marching orders given to the Department of Labour's Compensation Commissioner - clarify their position on the lungs by no later than 19 April 2024, and then consolidate all new requested section 42 medical reports on the brain by 31 May 2024, with the hearing in June. The tribunal gave this direction after it was outraged that the Compensation Commissioner lied to it, through their legal representative that has been reported to the LPC, that the matter would be finalised by August 2023, and that nothing had been done by the Commissioner for nearly a year in a matter that started in 2018. We described the Commissioner's conduct as vindictive for reporting them to the Public Protector. The tribunal then repeatedly apologized to my client on behalf of the Commissioner and explained this cannot be allowed to continue, while reprimanding the legal representative for the Commission on their failings in representing this matter. As I indicated earlier their first legal representative lied to the tribunal about the position last year, and we are now seeking punitive costs. The position of the Commission now contradicts itself; the decision they previously made, that was objected against, their legal representative now argues was not a decision but merely a final suggestion that they will definitely implement as the permanent closure to the matter (there is a debate about when is a decision a decision, it's that vindictive \ stupid). The Commission's legal representatives are all advocates - arguing that a suggestion that will be implemented as final is still not any decision. COIDA empowers the Commission to decide on the existence and disablement degree of occupational diseases where the medical compensation commissioner decided that the lungs are not that severe and there is insignificant evidence to prove the metal at the workplace caused the metal in the brain. It's still stupid.

Tomorrow we are dealing with another long matter with its origins in 2018. In this case, a worker was diagnosed with two seperate conditions: one affecting his lungs and a second and more serious condition affecting his brain. He worked with heavy metals which explains both conditions (the one is named after the metal), and became unable to do his job and was incapacitated. After a detailed report from the NIOH the Compensation Commissioner assessed him as 50% permanently disabled from the lung condition, in terms of section 49(2) of the Compensation of Occupational Injures and Diseases Act (COIDA). The brain condition, notwithstanding a specialist neurologist report, MRI scans and a fancy TroDAT test to exclude Parkinsons, was simply ignored. The brain condition is at least as bad as the lung condition, if not much worse, so the math tells us he is 100% disabled. The empirical data from his attempts to work confirms this. The loss of his romantic relationships and the need to move back home to be cared for by his elderly parents further collaborates this. This worker is a case the COIDA screams out for. But the Commissioner ignores the brain condition. We lodge an objection against the decision to ignore the brain. They refuse to set down the hearing, for years. Eventually client goes off to the Public Protector and says his right to a just administration is being denied by not even considering the objection on their wilful decision not to deal with the material decision. On the day of the hearing, after the Fund's in-house advocate agreed that a decision had been made not to make a decision on the brain condition, giving the tribunal jurisdiction under the COIDA and PAJA, she suddenly and without notice changes her tune. Insisting the tribunal cannot hear the issue and saying the Commission would finalise the outstanding brain condition, once and for all, within three months. She lied. She also confirmed they had all the information they require for the brain decision. The Tribunal, chosen and paid for by the Commissioner, endorses that position and tells my client to be patient and wait a little longer. My client is angry, he recognised the lie and bureaucratic violence against him. He on his own reported the advocate to the LPC for unethical conduct and the Commissioner doctor that was causing him great suffering to the HPCSA. Those complaints are being heard soon. Not my main concern. When a decision on the brain was expected we received the following decision last year: 1. The commissioner has decided it cannot decide upon the brain condition with the available information. and, 2. They are reopening the lung condition and effectively halfing it's benefits based on their speculation that not all the disease was occupational. To me this is clearly vindicative. We have gone backwards. We lodge another objection, this time also against the lung issue. Tomorrow we deal with the lungs. Later the brain. Utter insanity.

https://lnkd.in/eMvKSDXC Finally.

For the advocates to attend especially.