CHENG WAI LEUNG v. THE PNEUMOCONIOSIS COMPENSATION FUND BOARD

HEADNOTE

Pneumoconiosis Compensation Ordinance -

Appeal against the assessment of permanent partial incapacity and future greater degree of incapacity by the Pneumoconiosis Medical Board.

The Appellant, having worked as a rock caisson worker for 13 years, is suffering from pneumoconiosis.

The Pneumoconiosis Medical Board assessed the degree of permanent partial incapacity under Section 24(1) at 10% and the future greater degree of incapacity under Section 24(3) at 5% which assessment Was confirmed on review.

The Appellant appeals to the court under Section 24(10).

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 267 OF 1989

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BETWEEN:

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JUDGMENT

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1. The Appellant Cheng Wai Leung was born in China on 26.12.1954. He only had 2 years education. His working life stared off as a farmer in China for 4 years. In 1975, the appellant came to Hong Kong. He started working in Hong Kong as a construction labourer and he did that for 2 months only, In June 1975, he became a rock caisson worker and as such he had to dig wells by breaking rocks or bore holes into rock for dynamite embeddment with the use of a pneumatic drill. He also had to load concrete and hoist up rocks from wells onto level ground. It is fair to say that his work was extremely strenuous and he had to work very long hours in dusty environment.

2. The only dust protective measures he took was to cover his face with a wet towel for the first two years and thereafter, he used a plastic mask. In 1987, the appellant started to feel unwell. He claimed to have suffered from cough, sputum and dyspnoea. He continued to work as a caisson worker until June 1988 when he said he could not continue and in October 1988, he went to the Wanchai Chest clinic where he was thoroughly examined. Perhaps not surprisingly he was diagnosed to have suffered from pneumoconiosis which is caused by the inhalation of a variety of industrial dusts and the dust accumulation in turn results in a pathological change in the lung tissue, i.e. a collagenous fibrosis - the laying down of collagenous fibrous tissue in the lung in relation to the foci of dust.

3. The Appellant was then referred to the pneumoconiosis clinic and a Pneumoconiosis Medical Board under the Pneumoconiosis (Compensation) Ordinance Chapter 360 (The Ordinance) was convened to examine the Appellant. The Board found under Section 24(1) of the Ordinance the following :

4. The Board made a further finding under Section 24(3) of a future greater degree of permanent incapacity resulting from pneumoconiosis at 5% being the maximum permitted under the Ordinance.

5. The Appellant Obtained the Certificate of Assessment dated 12.1.1989 on 18.1.1989 and an objection to the determination and assessment was made under Section 24(7) of the Ordinance. The Pneumoconiosis Medical Board reviewed the assessment on 16.3.1989 and it confirmed the original assessment.

6. The Pneumoconiosis Medical Board on both occasions consisted of DR. K. P. Lam, DR. Y.C. Chu and the Chairman DR. S.L. Chan.

7. The Appellant felt aggrieved by the Review and hence the present appeal under Section 24(8) of the Ordinance to the Court.

8. The assessment by the Pneumoconiosis Medical Board was based principally on the result of a spirometric test on the Appellant at the Wanchai Chest Clinic (P.9 - P.11 of the common Bundle of documents).

9. The spirometric test involves a patient under instruction, taking as big a breathe in as possible and then blowing out as fast, as hard and as long as he can into a spirometer. The total amount of air that he blows out is expressed in a figure, the F.V.C.(Forced Vital Capacity) figure. The spirogram also shows the amount of air that is blown out in the first second which is the F.E.V.1 (Forced Expiratory Volume in first second). The F.E.V.1/FVC ratio is expressed as a percentage known as the F.E.R.

10. The measured figures from a patient are then compared to the predicted figures obtained from a normal person of the same age and height.

11. If the measured F.V.C. and F.E.V.1 figures are more than 80% of the predicted figures and the F.E.V.1/F.V.C ratio is more than 75%, the patient suffers no respiratory impairment and is considered to be normal.

12. The spirometric test of the appellant produced a F.E.V.1 and a F.V.C figure of 3.35 and 3.95 respectively, and the predicted figures of a normal man of the Appellant's age and height are 3.51 and 3.98 according to a chart (Exhibit R3).

13. The measured F.E.V.1 and F.V.C figures of the Appellant were therefore 95% and 99% respectively of those predicted figures of a normal person and the F.E.R was 85%.

14. It was therefore concluded that the Appellant suffers no respiratory or lung impairment.

15. Nevertheless in accordance with the guideline on percentage incapacity based on predicted volume of F.V.C. (Exhibit R4), the appellant's incapacity was assessed at 10% as his measured F.V.C was more than 90% of the predicted F.V.C.

16. The origin of the guideline used by the Pneumoconiosis Medical Board (Exhibit R4) is not entirely clear. The note to the guideline (Exhibit R4(a)) carries the title "Medical Assessment for silicosis and asbestosis in the United Kingdom" and the note ends with the following paragraph "In conclusion, there is no absolute scale for making medical assessment for silicosis and asbestosis, and some skeptics regard that medical assessment is made by nothing but intuition. The practice in the United Kingdom indicates how this problem is being tackled by specialisation and accumulation of experience, and we may use it to plan the assessment machinery in Hong Kong".

17. A paragraph at Page 2 of the note (Exhibit R4(a)) is also enlightening. It states:

"Assessment are made in grades of 10 per cent only. if the claimant suffers from no measurable disablement but here is radiological evidence suggesting of silicosis supported by occupational history, the assessment is "not over 10 per cent disablement" and the claimant will get disablement benefit for 10 per cents".

18. It therefore appears obvious that the Pneumoconiosis Medical Board, in assessing the degree of incapacity of the Appellant under S.24(1) of the Ordinance, was following the practice in the Unied Kingdom. Such practice had been summarised in and to quote From Compensation For industrial Injury by Richard Lewis at P. 130.

(b) "Diagnosis and the one per cent rule Before 1954 benefit for pneumoconiosis was only payable if the assessment of disablement amounted to 5 per cent or more whereas for other diseases 1 per cent was sufficient. Following the 1953 11AC report this was changed by what is now SSA S.78(3) : "A person found to be suffering from Pneumoconiosis shall he treated ...... as suffering from a loss of faculty such that the assessed extent of the resulting disablement amounts to not less than one per cent".

The effect of this section is to place a few victims of pneumoconiosis in an 99 especially favourable position. This happens where category 2 pneumoconiosis is diagnosed, but as yet no discernible respiratory disablement arise from it. Instead of receiving a ail assessment a claimant can rely upon S.78 to obtain an award of at least 1 per cent. The position is than exaggerated in practice because a minimum award of 10 per cent is made, as explained in (c) below. In 1983 the 11AC disapproved of the 1 per cent rule because its effect was to fail to distinguish between whether there was a loss of faculty on the one hand, and whether this loss result in disablement, on the other.

(c) Assessment in steps of ten per cent. There is a non-statutory administrative practice which makes all assessment of disablement in cases of pneumoconiosis in steps of 10 per cent. The reason for this is that it is difficult to calculate with any Greater precision the degree of disablement suffered. However this rule is applied even at the lower level of assessment. It therefore ensures that a 10 per cent pension is paid even to the victim, referred to in (h) above, who suffers no disablement although is diagnosed as having contracted the disease...."

19. What has been ignored is that the aforesaid practice in the United Kingdom is adopted only for the assessment of a disablement pension under the Social Security Act.

20. A disablement pension under the Social Security Act is awarded for loss of faculty without regard to the effect of the injury on earning at all as compensation for incapacity for work is awarded under a separate heading namely the Reduced Earning Allowance.

21. In assessing the degree of the incapacity under Section 24(1) of the Ordinance, can the Pneumoconiosis Medical Board make on assessment purely on the physical impairment/disablement of the Appellant arising from the injury with no regard to the affect of the injury upon his earning?

22. The answer appears to be unclear.

23. It is the appellant's contention that the approach of the Pneumoconiosis Medical Board in its assessment of the degree of the incapacity of the appellant was fundamentally faulted as it failed to address itself to the question of the effect of the Appellant's injury upon his earning capacity and had completely ignored the Appellant's actual loss of earning arising from his injury.

24. Mr. Tang, on the other hand seeks to support the assessment of the Pneumoconiosis Medical Board.

25. Mr. Tang argues that in assessing incapacity under the Ordinance, the court is not concerned with loss of earning as such. In particular, the court is not concerned with the loss of earning resulting from change from a better paid job to a less well paid job. The court is concerned with his potential as a workman, not his potential to work in any particular job but his potential to work in any job of which he was capable at the time he was found to have contracted pneumoconiosis.

26. Therefore the actual loss of earning to the worker arising out of the particular employment in which he was employed at the time is irrelevant as compensation does not depend on the actual employment.

27. Thus in the case of total incapacity, the maximum compensation for every injured worker is the same, irrespective of what he was earning before and in the case of partial incapacity, provide the same degree of incapacity is present, the compensation should be the same.

28. By "the same degree of incapacity", Mr. Tang appears to be referring to the same degree of "physical" incapacity and he suggests that compensation for incapacity under the Ordinance should be the same as compensation for loss of faculty or potential.

29. Mr. Tang's submission rests heavily on the definition of partial incapacity in the Ordinance which "means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of a person in any employment in which he was engaged at the time he is fund to have contracted pneumoconiosis, and where the incapacity is of a permanent nature, such incapacity as reduces his earning capacity in any employment which he was capable of undertaking at that time".

30. It is therefore suggested that permanent partial incapacity is to be measured not against the actual employment at the time, but what he was capable of doing at the time.

31. The Ordinance is modelled on the Employees' Compensation Ordinance Cap. 282 and many of the provisions in both ordinances are similar if not identical.

32. Mr. Tang seeks to enlist support for his argument by reference to the Employees' Compensation Ordinance.

33. For a Section 9 scheduled injuries, a worker will get a fixed percentage of loss of earning capacity for certain injuries irrespective of his background, the nature of his work nor his actual earning.

34. Mr. Tang argues that under Section 9 of the Employees Compensation Ordinance, the court is concerned with reduction of earning capacity in any employment which a workman was capable of undertaking at that time and no account is to be taken of the actual loss to the worker arising out of the particular employment in which he was engaged at the time.

35. Mr. Tang appears to have conceded that the situation had changed with the introduction of Section 9(1A) in the Employees' Compensation Ordinance but it is submitted that Section 9(1A) was only introduced in 1982 before the enactment of the Ordinance and there is no similar provision on the Ordinance. Mr. Tang also submits that the judicial decisions which take into consideration the actual loss of earning of a workman in assessing his loss of earning capacity can be explained because of Section 9(1A).

36. If Mr. Tang's argument is correct, assessment of loss of earning capacity under the Ordinance is in fact synonymous to the assessment of Physical impairment or disablement.

37. Is it the intention of the legislation that loss of earning capacity under the Ordinance is to be assessed purely as a physical impairment or disablement with no regard to the effect of such impairment or disablement on the earning of the injured workman?

38. Compensation for Temporary Incapacity under both the Pneumoconiosis Compensation Ordinance and the Employees' Compensation Ordinance depends on the actual loss of earning. (see Section 10, Part III First Schedule of the Pneumoconiosis Compensation Ordinance and Section 10 of the Employees' Compensation Ordinance).

39. The amount of compensation under both Ordinances also depend on the monthly earning of the injured worker subject to a maximum which will be increased periodically to reflect the general wage increase of workers, (see Part II of First Schedule and Section 7 of the respective Ordinances).

40. In the opinion of the court, the evolution of the Employees' Compensation Ordinance also indicates that the intention of the legislation is to award compensation for industrial injury to workman not just for loss of faculty or disablement, but for monetary loss as well.

41. Earning capacity are simple words and must be given simple and literal interpretation.

42. The court readily accept that compensation is intended for loss of earning capacity, not for actual loss of earning and there is a distinction between the two.

43. The court also accept that incapacity is to be construed as a references to the worker's capacity to earn wages in the open market, as distinct from his actual earning.

There are clear authorities to support that :

"The statutory test is earning capacity, and if it should appear upon the facts that his earning capacity is less after then it was before or at the time of the accident, it seems to me that he might have a claim even if in fact he was receiving the same wages at the two period".

(Freeland v. Macfarlane, Lang &. Co. (1900) 2F.832 per Lord President).

" The question is whether he is hampered in the labour market by reason of the accident? Is he less likely to secure employment? If he is, it would not be right to disentitle him from ever saying that his capacity was diminished by reason of the accident". (Birmingham Cabinet Manufacturing Co. v. Dudley (1910) 3B. W.C.C. 169 (CA) per Cozens-Hardy LJ).

"In the ordinary and popular meaning, there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it should otherwise fetch". (Ball v. Hunt [1912] A.C. 496(HL) per Lord Loreburn L.C.)

44. These are far from suggesting that actual loss of earning is completely irrelevant in assessing loss of earning capacity.

45. It is perhaps enlightening to examine the defeinition of "partial incapacity" under the Ordinance by reference to the aforesaid.

46. If a workman having suffered in juries is actually earning or capable of earning the same wages, he will not be entitled to compensation for temporary incapacity. If he is earning less or capable of only earning less in some suitable employment or business, he will be entitled to two-thirds of the difference under Part III First Schedule of the Ordinance.

47. In the context of temporary incapacity, reduction of earning capacity is measured by the reduction of actual earning.

48. On the other hand, if a workman, despite the incapacity, is able to return to his previous employment and earn the same wages, he nevertheless will be entitled to compensation for permanent incapacity if the incapacity reduces his earning capacity in any employment which "he was capable of undertaking at that time".

49. That does not mean when a injured worker is unable to return or return fully to his previous employment and thus suffers actual loss of earning, such loss of earning is to be disregarded in the assessment of incapacity under the Ordinance.

50. Despite the very able argument of Mr. Tang. I am fully convinced that "earning capacity" and "actual earning" though not identical, are related.

51. In assessing the loss of earning capacity under the Ordinance, actual loss of earning must be one of the factors to be taken into consideration.

52. I would go one step further to suggest that in most cases, loss of earning capacity is most readily reflected and most easily measured by the actual loss of earning although other relevant factors must also be considered.

53. In so far as the Pneumoconiosis Medical Board in assessing the degree of incapacity of the Appellant chose to follow the practice of assessment of disablement in the United Kingdom and completely ignored the question of actual less of earning. The approach was erroneous.

54. The conclusion I had reached is by no means any criticism of the Pneumoconiosis Medical Board involved.

55. The Ordinance is a very difficult piece of legislation. I cannot do any better than echoing the words of Lord Denning in R. v. MAT, ex. p. Cable (1968) 1Q.B. 729 when the problems in applying the relevant legislation were recognised:

"Judges have been at their wits' end to know what some of these provisions mean. There have been acute differences of opinion amongst them. If Judges find this difficult I can imagine how impossible it must be for those who have to apply them. They are for the most part, not lawyers, but medical men and civil servants".

56. Welmer L.J.'s observation in the same case is also significant :

"I regard it as deplorable that in a matter which so vitally affects the lives and welfare of working men and women. There should be so much obscurity and so much room for doubt".

57. The court, having found the approach of the Pneumoconiosis Medical Board erroneous, must consider the assessment of the degree of incapacity of the Appellant afresh.

58. The Appellant said when he was working as a rock caisson worker he was being paid on a piece rate basis and his earning could be as much as $1,400 to $1,500 a day and he could work 24-25 days in a month. There are also employed rock caisson workers who are paid on a daily basis and their basis daily earning is $500 a day.

59. He claimed that since June 1988, he had not returned to work as a caisson worker and instead has been working as a part-time watchman of a store and a farm and he would also be collecting soft-drink cans making only $1,400 - $1,500 a month In total.

60. He had been subject to some lengthy and searching cross-examination by Mr. Tang and his evidence became most unsatisfactory to say as least. He at first claimed to have frequent dizziness and short of breath. He would not exert himself and could not exercise nor walk very long. He was then confronted with a report(R1) by the private detectives employed by the respondent's solicitors and the video taken of him (R2).

61. Apparently the appellant was followed by 2 private Detectives (D.W.1 and D.W.2) on 18th, 19th and 20th of September 1990 and was seen working at a Construction Site at Conduit Road.

62. There is no doubt that on those days he in fact worked at certain caissons at the Construction Site at Conduit Road.

63. The Appellant said the wells at the Conduit Road Site were very deep and his boss could not find workers and had asked him for help and he had worked there for 2 periods of 7 days and 12 days. He also admitted having worked as a caisson worker in other sites in North Point, Diamond Hill and Tuen Mun since June 1988.

64. His earning for working on those sites was very confusing. He claimed at one time to be paid $1,300 a day for working at the Conduit Road Site. There was evidence in the form of wages cards (A2) which indicated he was being paid $500 a day with overtime pay.

65. The Appellant then said he was in fact engaged as an instructor at $500 a day. But when some other workers took a day or half off he would replace them and would be paid by such replaced workers separately. His earning as a replacement worker again could not be ascertained.

66. The Appellant's employer at the Conduit Road Site Chan Ying Kan (P.W.2) also gave evidence. Mr. Chan himself was a caisson worker but he became a caisson contractor 11 years ago. He considered the Appellant an expert in rock caisson. He said he employed the Appellant at the Conduit Road site because the progress there was unsatisfactory and the Appellant could teach the workers so that their efficiency could be improved. At the same time, the appellant was also working as a replacement worker. He claimed that the Appellant's efficiency had been reduced and he was only 30% of his former self and he needed more than 10 days to finish a job that he could complete in a week before.

67. He said a daily paid employed rock caisson worker can earn $750 - $800 a day working from 8 a.m. - 5 p.m. and if a worker works until 7 p.m., he will get 50% more.

68. The earning of a self-employed rock caisson worker is difficult to calculate as it depends on the progress, the difficulty and the urgency involved. Mr. Chan said a normal worker would get about $1,500 a any and the Appellant being more experienced and therefore could earn more. In general, a self employed worker will have to work a lot harder than an employed worker.

69. There is another type of caisson worker known as soil caisson worker who can earn $500 - $600 a day working from 8 a.m. - 7 p.m.

70. Mr. Chan also said caisson workers are generally speaking short in supply in Hong Kong and they can expect to have work on 20 -25 days in a month. There is no busy months as such but there may be gaps from one site to another and hence there may not be work for a month or two in year.

71. Mr. Chan produced a batch of work cards for the Conduit Road site. (Exhibit .A2) They are not particularly helpful as they are not completed, and were prepared by someone else.

72. They indicate that the Appellant was employed as a daily paid working for $500 a day but sometimes he would be working as replacement workers the earning for which was not too clear. There are work cards for self employed workers as well but they do not indicate how long it took for such workers to earn a particular sum of money.

73. Perhaps it is true that rock caisson workers can earn as much as $1,500 a day, the figure should be in the higher range bracket.

74. As a self employed worker, there is the element of risk and uncertainty. There is the question of perhaps over exerting oneself to get more money as according to the Appellant, he had once worked continuously 3 days and 3 nights to complete a job. There is also the question of not having any work for a month or two in a year, being gaps in between jobs as well as the usual rest days.

75. I am inclined to take the view that a realistic average monthly earning of a self-employed rock caisson worker will be about $25,000.

76. I reject the Appellant's evidence that he is too weak to work as a caisson worker. The evidence of the two private-detective (D.W. 1 and D.W. 2) clearly demonstrated otherwise.

77. I don't think it is too important whether the Appellant was malingering or suffering from compensation neurosis. I am satisfied in all probability that the Appellant will try to continue to work as a rock caisson worker despite the advice from doctors.

78. I am aware that all the doctors consider that he should not return to his previous employment. But then, DR. Chan (D.W. 3) had quite rightly pointed out that as a medical practitioner, he would never recommend anyone to work as a rock caisson worker anyway.

79. In view of the Appellant's background and perhaps to support his rather costing gambling habit, he had in earlity very little choice.

80. His physical disablement may render him less efficient. He may have to change his role to become an instructor and replacement worker or to become employed as a daily worker when his earning will be about $15,000 to $20,000 a month. He may take up a less strenuous job of a soil caisson worker earning about $13,000 - $16,000 a month. He may even have to work only as a construction labourer earning about $10,000 a month.

81. In the foreseeable future, the Appellant is likely to suffer as actual loss of earning of 20% -60%.

82. Actual loss of earning is of course only one of the factors in assessing loss of earning capacity.

83. Both the Pneumoconiosis Medical Board and the appellant's own doctor DR. Sam Narlman (P.W.3) consider that the Appellant only suffer a 10% physical disablement and there is to fact no discernible lung imparment.

84. The Court must not ignore that rock caisson workers are paticularly high paid. The working lives of such workers are not expected to be long and according to Mr. Chan (P.W.2) a rock caisson worker can work at most up to the age of 50 years at which time, the impact of the injury on his earning capacity will be much less significant.

85. He will probably end up as a casual labourer or watchman at construction sites any way with or without pneumoconiosis.

86. Assessment of loss of earning capacity under the Ordinance cannot be precise and the Court can only try to "provide reasonably swift answers in terms of broad justice".

87. Doing the best I can, a fair assessment of loss of earning capacity of the Appellant would be 35%.

88. The question of the greater degree of permanent incapacity under Section 24(3) of the Ordinance has given the Court some degree of difficulty and anxiety.

89. Apparently it is impossible to predict with any degree of certainty how the disease of silicosis (pneumoconiosis) develops. DR. Chan (D.W.3) does not understand why the Pneumoconiosis Medical Board is expected to assess the future greater degree of incapacity. He think there should be a periodical review rather an assessment at one occasion.

90. The Ordinance provides for the maximum of future greater degree of incapacity to be 50 per cent of the permanent partial incapacity, and for a young person, the practice of the Board is to give him the maximum as it was considered suitable to give such person the maximum benefit. Hence in the case of the Appellant his greater degree of permanent incapacity was assessed at 5% being 50% of the original assessed permanent partial incapacity.

91. DR. Chan had been extensively questioned on how pneumoconiosis will develop, how it will lead to other diseases such as tuberculosis and cancer of the lung. He can only say that silicosis patient are prompt to have tuberculosis and according to a survey in the mid seventies, 40% of silicosis resulted in tuberculosis over 7- 10 years.

The percentage depends on where to conduct the survey and the prevalence of tuberculosis. If the prevalence comes down, so does the percentage. The disabling effect of tuberculosis also depends on the extent and nature of the infecting organism of the disease as some are sensitive to drugs and some are resistent. If it is resistent to drugs, tuberculosis ends up with disablement and if it is sensitive to drugs and provide that drugs are regularly taken, there may be no disablement at all.

92. The question of whether silicosis will lead to other complication such as lung cancer or pneumothorax is highly controversial and it appears impossible to reach a conclusion one way or the other.

93. As for the progress of silicosis itself a distinction has to be drawn between simple silicosis and complicate silicosis with or without radiological progression.

94. For simply silicosis without radiological progression, the yearly decline of lung fuction with reference to the F.E.V.1 and F.V.C. is 64ml and 59ml respectively and those with radiological progression, the yearly decline of F.E.V.1 and F.V.C. will be increased to 97ml and 95m1. For complicate silicosis without radiological progress, the yearly decline in F.E.V.1 and F.V.C. will be 65ml and 73ml while those with radiological progression will be increased to 100ml and 103m1 respectively.

95. The findings were the result of tests performed on 81 patients who had silicosis from two granite quarries in 1975 and had been followed up for a period of up to 10 years. Such findings in fact formed the subject matter of a paper by DR. Chan, DR. K.P. Lam and another published on 18.7.1987 in volume 295 of the. British Medical Journal. DR. K.P. Lam is also one of the members of the Pneumoconiosis Medical Board.

96. There had been no comparison with normal person.

97. DR. Chan said the lung function of any person declines with age but generally that of a silicosis patient declines greater than normal person. Sometimes the lung function of a silicosis patient gets no worse than an ordinary person.

98. As for the chance of silicosis without radiological progression into one with radiological progression, DR. Chan was unable to put forward any definite opinion.

99. He was able to say that the life expectancy of a simply silicosis patient with no radiological progression will not be affected whereas the life expectancy of a patient of complicate silicosis with radiological progression will be shortened if there was resulting impairment of lung function causing respiratory cirrhosis and cardial malfunctioning.

100. I have considered carefully the rather informative and enlightening evidence of DR. Chan as well as the medical publications he had referred to. I am however simply unable to form any view as to how the Appellant's condition will progress nor can I determine the question of future greater degree of permanent incapacity in the light of the evidence.

101. In my assessment of the degree of incapacity of the Appellant, I had already taken into consideration the likely development of the Appellant's career in the foreseeable future. That is not meant to be any reflection on his future greater degree of permanent incapacity, if any.

102. The onus is on the Appellant to show that his physical condition will deteriorate and his earning incapacity will be further reduced and that the assessment of 5% future greater degree of permanent incapacity by the Pneumoconiosis Medical Board is inadequate for the appeal on this aspect to be successful.

103. The evidence before the Court is insufficient for any finding on such matters to be made.

104. The Court feel unable to say that the 5% tuture greater degree of permanent incapacity assessed by the pneumoconiosis Medical Board is inadequate and should not therefore alter such assessment.

105. The Ordinance gives an option to a worker under Section 7 to have the compensation paid in 2 instalments under Section 9 and if that option is exercised the question of future greater degree of incapacity will be determined by the Pneumoconiosis Medical Board 6 - 8 years from the date of incapacity under Section 24(4) of the Ordinance.

106. Workers should be encouraged to exercise the option to be examined in 6 - 8 years time as it is the only way to achieve a fair result.

107. It is wrong for the Court or the Pneumoconiosis Medical Board to pick an arbitrary figure although for some inexplicable reasons, the Pneumoconiosis Medical Board appears to be under a statutory duty to do so when a worker elects to be paid compensation in a lump sum.

108. The Appellant had not elected to be paid in a lump sum.

109. The Appeal is allowed to the extent that the Appellant's degree of permanent partial incapacity under Section 24(1) of the Ordinance is increased to 35%.

110. Counsel have agreed that costs of the appeal should follow the event.

111. The Court therefore Order that the Appellant is to have the costs of the appeal to be taxed if not agreed.

112. The Appellant's own costs is to be taxed in accordance with the legal aid regulation.

113. Dated the 4th day of December 1990