Section 37: Compensation for occupational disease

37. Compensation for occupational disease (1) Subject to subsection (2), where— (a) a certifying surgeon certifies that a workman is suffering from a disease mentioned in the Second Schedule, and is disabled by it from earning full wages at the work at which he was employed; or (b) the death of a workman is caused by a disease specified in subsection (2) and the disease is due to the nature of any employment in which the workman was employed at any time within the 12 months before the disablement or death, whether under one or more employers, he or his dependants shall be entitled to compensation under this Act as if the disease, disablement or death, were a personal injury by accident arising out of, and in the course of that employment. (2) (a) The disablement or death shall be treated as the happening of the accident. (b) Where it is proved that a workman at the time of entering the employment, wilfully and falsely represented himself as not having previously suffered from the disease, compensation shall not be payable. (c) Subject to subsection (2A), the compensation shall be recovered from the employer who last employed the workman during the specified 12 months in the employment to the nature of which the disease was due. W9 – 21 [Issue 1] Workmen’s Compensation Act (d) The amount of compensation shall be calculated with reference to the earnings of the workman under the employer from whom compensation is recoverable in the manner specified in the First Schedule. (e) The employer in whose service the workman was last engaged during the specified period of 12 months, and to whose employment the disease was due, shall be the person to whom the notice of death or disablement shall be given, notwithstanding that the workman has voluntarily left his employment. (f) (i) Where an employer or a workman is dissatisfied with the grant or refusal of a certificate of disablement by the certifying surgeon, the matter shall be referred to a medical referee appointed by the Minister. (ii) The decision of the medical referee shall be final. (2A) (a) Where a workman or his dependants are required by the last employer against whom compensation is sought to furnish the names and addresses of any person besides him who employed the workman at any time during the 12 months before the disablement or death, the workman or his dependants shall furnish the information he or they may possess concerning those names and addresses to the last employer. (b) Where under paragraph (a) information is not tendered, or the information tendered is incomplete or insufficient to enable the last employer to take proceedings under paragraph (c) the last employer, on proving that the disease was not contracted while the workman was in his employment, shall not be liable to pay compensation. (c) (i) Where the last employer alleges that the disease was in fact contracted while the workman was employed by some other person, he may join that other person as a party to the proceedings taken under this Act governing cases where an agreement between the parties cannot be reached, and where the fact alleged is proved, compensation shall be recoverable from that other party and not from the last employer. (ii) Where the disease is proved to have been contracted through a gradual process, any other person in the service of whom the workman may have been employed during the specified period of 12 months shall be liable to make contributions to the last employer from whom compensati taken under this Act governing cases where an agreement between the parties cannot be reached, and where the fact alleged is proved, compensation shall be recoverable from that other party and not from the last employer. (ii) Where the disease is proved to have been contracted through a gradual process, any other person in the service of whom the workman may have been employed during the specified period of 12 months shall be liable to make contributions to the last employer from whom compensation is recoverable. (iii) The amount of contributions under subparagraph (ii) may be determined in proceedings taken under this Act governing cases where the amount of compensation cannot be settled by agreement. (3) (a) Subject to paragraphs (b) and (c), for the purposes of this section, the date of disablement shall be the date the certifying surgeon attests as being the date on which the disablement commenced or, where he is unable to do so, the date on which the certificate is given. (b) Where a medical referee allows an appeal against a refusal by a certifying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine. [Issue 1] W9 – 22 Revised Laws of Mauritius (c) Where a workman dies without having obtained a certificate of disablement, or is not in receipt of a weekly payment on account of disablement at the time of death, the date of death shall be reckoned as the date on which the disablement commenced. (4) The Minister may make regulations for extending this Act to diseases and processes not specified in the Second Schedule, and to injuries due to the nature of any employment specified in the regulations, not being injuries by accident, either without modification or subject to such modifications as may be contained in the regulations. (5) Nothing in sections 36 to 38A shall affect the right of a workman to recover compensation in respect of a disease to which sections 36 to 38A do not apply, if the disease is a personal injury by accident within the meaning of this Act.