Chan Chun Cheong v. Occupational Deafness Compensation Board

DCOA 1/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

OCCUPATIONAL DEAFNESS (COMPENSATION) APPEAL NO. 1 OF 2005

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BETWEEN

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Coram: Deputy District Judge W. C. Li in Chambers

Date of Hearing: 8^th November 2006

Date of Decision: 8^th November 2006

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DECISION

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1.The Applicant comes before the court today to apply for leave to appeal against the judgment that dismissed his appeal against the decision of the Board not to grant him compensation.  His grounds today are: firstly, the deafness in his left ear exceeds 40 decibels.  In order to qualify for compensation under Section 2, both ears must have sensorineural hearing loss of at least 40 decibels.  The Applicant was aware that his left ear had been found to suffer sensorineural hearing loss of less than 40 decibels.  He insists today that his left ear’s sensorineural hearing loss was over or at least 40 decibels and, therefore, he is entitled to compensation.  He is saying that the judgment is unfair.   Thirdly, he is asking for a further medical examination to appeal to the High Court.

2.I have explained to the Applicant that, first he has to ask for leave of this court to appeal, and leave would only be granted if he has reasons for appeal, and that his appeal has a good chance of success.  The reason why his appeal against the Board’s decision was dismissed by this court was because there was a reliable report made by the Board’s doctors.  This court accepted that the “CERA” test, the Cortical Evoked Response Audiometry test, was a reliable test.  This test did not require the Applicant’s voluntary cooperation.  The other tests that required his voluntary reaction were found and proved to be unreliable, and this court had accepted that he was not cooperating and was in fact shamming.

3.The “CERA” test showed that his left ear suffered sensorineural hearing loss of 31.7 decibels.  He called an expert to support his appeal against the Board’s decision.  The expert was a Miss Chua who was an audiologist.  She carried out a series of tests and she came to the conclusion that the Applicant’s hearing loss in the left ear was 40 decibels, but she made it clear that this was a mixed hearing loss in the left ear.  Under Section 2 of the Ordinance, in order to qualify for compensation from the Board, the hearing loss must be sensorineural hearing loss, and not mixed hearing loss.

4.The Applicant’s expert, Miss Chua, was cross-examined in the hearing of the appeal before this court.  She agreed that the 40-decibel hearing loss in the Applicant’s left ear was made up of sensorineural loss and other middle ear loss of hearing.  As it was a mixed hearing loss, she agreed that the sensorineural hearing loss of his left ear was less than 40 decibels.  As the sensorineural hearing loss of the left ear, as found by the Board’s doctor and as confirmed by his own audiologist, was less than 40 decibels, he did not therefore qualify for compensation from the Board. 

5.In fact, one of the grounds in the appeal heard before this court was that the average of both ears, if it exceeds 40 decibels, then the Applicant should qualify.  That was wrong.  That was a misconception and misinterpretation of the law.  Section 2 clearly says the sensorineural hearing loss in each ear must not be less than 40 decibels.

6.So even if the average of both the Applicant’s ears exceeds 40 decibels, but the sensorineural hearing loss in his left ear does not exceed 40 decibels, he still does not qualify.  By both the Board’s doctor and his own audiologist, Miss Chua’s findings, the sensorineural hearing loss in his left ear was below 40 decibels, so he does not qualify for compensation.  That was the reason for dismissing his appeal against the Board’s decision and this is the reason today that I take the care to explain to him clearly.

7.The Applicant comes before me today and says that his hearing loss, without distinguishing between what is a mixed hearing loss and what is a sensorineural hearing loss, in the left ear was 40 decibels and, therefore he should qualify for compensation.  That was again a misconception or a misapprehension.  And he was saying the judgment was not fair.  There is no ground to say that. 

8.This is an application for leave to appeal.  In making this application, the Applicant proposes to have a further medical test or report to enable him to appeal to the Court of Appeal.  This is not something that I could entertain.  The application for leave to appeal would be based on the evidence before this court and not on future evidence.  Therefore, his application has no good ground of appeal and I cannot see any chance of success in his proposed appeal.  Therefore, the application for leave to appeal is dismissed.

9.I order the Applicant to pay the costs of this hearing to the Respondent to be taxed if not agreed.

Representation:

Appellant appeared in person

Mr. Wong Kwok Wun of Messrs. Woo, Kwan, Lee & Lo for the Respondent