This appeal has been filed by the appellant/appellant against the order of the Employees Insurance Court/Additional District Judge, Pondicherry made in ESI, appeal No.1 of 2001, dated 17.04.2003.
2. The short facts of the case are as follows;-
The appellant is working in Anglo French Textiles Corporation, Pondicherry, working in Sundries helper as piece Dobling and booking worker under code No.10362 in the weaving 'C' Unit, while so, the appellant met with an accident. During the course of employment on 02.01.2000, while he was lifting a cloth roll he sustained contusion with sprain in his low back, near left hip and he was admitted into ESI hospital, Corimedu on 03.01.2000 as an inpatient; and discharged on 25.01.2000, wherein continuous treatment was given. Further on 07.02.2000, again he was admitted into ESI hospital, Ayyanavaram for further treatment and discharged on 18.02.2000 with reference to undergo further treatment with the Government General Hospital, Chennai, wherein he was admitted as an inpatient on 18.02.2000 and discharged on 09.03.2000. Though he was given treatment, the health condition worsened; as per the direction of Local Office, the appellant had undergone 'Laminectomy on 28.03.2000 at Vijaya Institute of Tumor and Orthapaedice wherein a certificate was issued to resume duty on 28.07.2000 and has been advised not to do strainful work and not to lift any heavy objects, henceforth permanently.
3. The medical board has assessed the degree of permanent disability as 10% by its letter dated 19.11.2001 and his daily rate of permanent disablement benefit will be paise 15.12 and further in the letter dated 23.06.2001 details as below:
"Injury Right side of hip and back. Acute Lumbage with Disc Prelapse L4-L5, Lt, hip range of movement flexion 95 degree out of 135 degree wasting of it. Thigh 1/2 inch - knee full range - normal - ankle full range - normal S.L.R. 45 degree painful muscle power: Hip grade - 3, knee grade -3 ankle normal surgical excision of disc no fusion (Straight limb rasing test) moderate persistant pain and stiffness aggravated by heavy lifting - modification of activities 20% otherwise 10%:
V. The appellant begs to submit the following Memorandum of Grounds of Appeal:
(1) The decision of the Medical Board is improper against the weight of evidence on the face of the Records, the actual loss of physical disability suffered by the Appellant and the probability arising in the case.
(2) The Medical Board has erred in not exercising its power in assessing the disability of the Appellant and in not taking into account the long term treatment and suffering undergone by the appellant.
(3) The Medical Board has erred in assessing at very low rate the permanent disability of the appellant finally as 10% which was again humanitarian principles and medical ethics.
(4) The Medical Board has failed to perceive that the appellant has been inflicted with severe disablement with regard to his nature of work and that he has undergone medical treatment for a long duration; is loss of earning capacity by way of losing his pay by availing leave with loss of pay due to the nature of work given to him which does not suit him when he is under such disability.
(5) The Medical Board has erred in not examining all the Medical Records, diagnosis and treatment given to him and the subsequent aliments suffered by him due to the injury for which only the disability is assessed.
(6) The Medical Board's observation and assessment that the Appellant is having permanent disablement finally as 20% otherwise 10% without conducting proper examination and enquiry is incorrect and fallacious and further the assessment of disability is at a very low rate compared to his injury.
(7) The Medical Board did not consider all the contentions raised by the appellant during his examination by the Medical Board and also the letters sent by him.
(8) The Medical Board has failed in not considering the very slow and careless treatment given by the E.S.I. Hospital staffs and its consequences on him which resulted in 'Lumbago' i.e. radiating pulling pain on the low back side of the waist.
(9) The Medical Board was negligent in arriving at its decision at a very late stage by consuming a long time, from the date of accident which occurred on 02.01.2000.
(10) At any rate the decision of the Medical Board is illegal, unfair and the assessment of permanent disability finally at the rate of 20% otherwise 10% is arbitrary and very low and contradictory.
On these grounds amongst others, the Appellant most respectfully prays that this Court may be pleased
i) to allow this appeal;
ii) to set aside the decision of the Medical Board finally assessing the permanent disability of the appellant at 10% dated 19.11.2001.
iii) to reassess the permanent disability of the appellant as this Court deems fit and proper under the circumstances.
4. The appellant, supporting his appeal for establishing his case has filed 13 documents, namely Ex.A1- Notice of accident Ex.A2- Original letter of Labour Officer Ex.A3- Discharge certificate from ESI Hospital Ex.A4- Discharge certificate from Government General Hospital, Chennai Exs.A5 & A6- Certificates issued by Vijaya Institute of Trauma and Orthopeadics Ex.A7- Referral letter of the office of the Deputy Director (ESI) to the Medical Superintendent, Vijaya Hospital Ex.A8- Letter of the Medical Superintendent, ESI Hospital, Pondicherry to the Deputy Director (ESI), Mudaliarpet, Pondicherry.
Ex.A9- Referral letter dated 03.02.2000 of the office of the Deputy Director (ESI) to The Medical Superintendent, ESI Hospital, Ayyanavarm, Chennai.
Ex.A10 - Memorandum, dated 04.06.2001 of the Medical Superintendent and Member of Medical Board, ESI Hospital, Pondicherry to the petitioner.
Ex.A11- Certificate dated 27.07.2000 issued by Vijaya Institute of Trauma & Orthopaedics, Vijaya Health Centre, Chennai.
Ex.A12-Certificate dated 19.11.2001 issued by the ESI to the petitioner assessing the permanent disability.
Ex.A13-Certificate dated 05.02.2002 of the ESI relating to the petitioner.
5. The respondent filed counter statement as follows;
The appeal filed by the appellant against the respondent to set aside the decision of the medical board finally earning the permanent disability of the appellant at 10% dated 19.11.2001 and to reassess the permanent disability of the appellant is neither maintainable in law or in facts and is liable to be dismissed in limine.
This respondent denies all the allegations made in the Memorandum of appeal except those that are specifically admitted by them.
This respondent further submit that the appellant is a employee of M/s. Angle French Textile Limited, Code No.55/1300, Insurance No.55-2919692 and is met employment injury on 02.01.2000 and sustained injury in his low back near Left hip. It is further submitted that after completion in capacity period from 02.01.2002, 31.02.2000 the appellant resumed duty to on 01.08.2000.
This respondent further submitted that the medical referee as examined the appellant and opined in their report B1.7 dated 14.09.2000 as "the disability has reached finality and the injury is not capable of improvement by further operation/treatment. Hence, it is a fit case to be referred to ensuing medical board examination. It is further submitted that the medical board also has examined the appellant on 23.06.2001 and given a report B13 dated 23.06.2001, as "1. The Disablement is permanent, 2. The extent of loss of earning capacity assessed as final. 3. The assessment of the provision of loss of earning capacity is final. 4. The finding of the Medical Board as follows "Injury right side of Hip and back. Acute lumbage with disc prelapse L4-L5 "Details over leaf, "L.E.C. 20% if modification of work/capacity otherwise 10%.
This respondent further submitted that the Medical Board findings has been forwarded to Regional Office for deciding total rate of permanent disablement benefit. It is further submitted that as per Regional Office letter No.51-No.19. 13.03.2001. PDY EF-1, dated 22.11.2001 addressed to the Chairman Medical Board to inform the correct assessment whether 20% or 10% which is to be taken for making benefit payment to the appellant.
This respondent further submitted that after receiving the said letter, the Medical Superintendent, Medical Referee given a reply dated 24.12.2001, as, since the employer AFT, Pondicherry issued a certificate to the fact that the injured person/appellant it is working in the same work before he was working after the accident and hence no modification of work is given to the appellant and hence the appellant is eligible for 10% only the assessment of disability for the loss of earning capacity. This respondent further submitted that as the basis of the assessment of disability the disability rate of permanent disability has been intimating as 10% Finally paise 0.1512 (paise one thousand five hundred and 12 only) vide letter dated 05.02.2002 and therefore permanent disablement has been calculated with effect from 01.08.2000, the date of which appellant resumed his work at the daily rate of paise 0.1512 and payment has been paid to the appellant.
Therefore, this respondent humbly submitted that the appellant is not entitled any benefit apart from the amount received by way of preferring this appeal and therefore liable to be dismissed.
6. The respondent filed five documents supporting his case for dismissal of the appeal, namely Ex.B1- letter by E.S.I. Corporation to the Medical Referee form BI.7; Ex.B2 - letter by E.S.I. to E.S.I. Medical Board; Ex.B3 - letter from Medical Board form B1.3; Ex.B4 - letter from E.S.I. Hospital to E.S.I. Corporation and Ex.B5 - Replicate of Ex.A13.
7. The learned Employees State Insurance Court, Pondicherry after hearing the arguments of appellants as well as that of the respondent and after examining the witnesses on the side of the appellant had marked 13 documents as exhibits on the side of the appellant. On the respondent's side, 5 documents were marked and no witness was examined on the respondent's side. Court exhibits 1 to 4 were marked.
8. The learned employees State Insurance Court Judge, after considering the appeal and counter statement of respondent, evidence given by witnesses and documentary evidence of appellant, respondent's documents and Court documents passed the below mentioned order;
This E.S.I. Appeal is filed under Section 54(A)(2) of the E.S.I. Act for the purpose of setting aside the decision dated 19.11.2001 of the medical bard assessing the permanent disability of the appellant at 10% and for re-assessing the permanent disability of the appellant.
2. The facts giving rise to the filing of the E.S.I. appeal would run thus;
The appellant is working as Helper (piece dobling and booking worker) in Weaving 'C' Unit, Anglo French Textiles Limited, Pondicherry. On 02.01.2000, while he was lifting a cloth roll, he sustained a contusion with sprain in the lower back near left hip and he was admitted in the E.S.I. Hospital, Gorimedu on 03.01.2000 as an inpatient and he was discharged on 25.01.2000. On 07.02.2000, he was admitted in the E.S.I. Hospital, Ayyanavarm for further treatment, and he was discharged on 18.02.2000 with advice to undergo further treatment at Government General Hospital, Madras, where he was admitted as inpatient on 18.02.2000 and was discharged on 09.03.2000. The appellant undergone Laminectomy operation at Vijaya Institute of Trauma and Orthopaedics. Subsequently, a certificate was issued to the appellant to resume duty with an advice not to do straining works and not to lift heavy objects. The medical board under the E.S.I. Act assessed the permanent disability of the appellant as follows;
"Injury right side of the hip and back. Acute lumbago with disc prolapse L4-L5. - Lt.hip - range of movement flexion 95 degree out of 135 degree - wasting of 1t. Thigh 1/2 inch - knee full range - normal - ankle full range - normal - S.L.R. 45 degree painful - muscle power: Hip grade -3, knee grade-3 ankle - normal - surgical excision of disc no fusion (Straight Limb rasing test) moderate persistant pain and stiffness aggravated by heavy lifting - modification of activities 20% otherwise 10%".
3. Being aggrieved by the decision of the Medical Board, the appellant filed the appeal on the following grounds:
i) The decision of the board is improper, against the weight of evidence and the available evidence on record. The medical board did not exercise its power properly in assessing the permanent disability of the petitioner.
(ii) The medical board erred in assessing the permanent disability of the petitioner at 10%.
iii) The medical board did not take into consideration the long duration of the treatment underwent by the appellant and also the permanent disability sustained by him.
iv) The medical board failed to consider the careless treatment given by the ESI Hospital and the consequential lumbargo i.e. radiating pulling pain on the lower back side of the waist.
4. Hence, the appellant prayed for setting aside the disability certificate issued by the E.S.I. Hospital and for re-assessing the permanent disability of the appellant.
5. Per contra, traversing the averments in the memorandum of appeal, the respondent filed the counter with averments which run thus;
The appeal is untenable. The appellant after taking treatment resumed duty on 01.08.2000. The medical board referee, in its report dated 14.09.2000 held that the disability of the appellant has reached finality and the injury was not capable of improvement by further operation/treatment and accordingly, he referred the matter to the medical board for examination. The medical board examined the appellant on 23.06.2001 and gave its report finally as follows;
"1. The disablement is permanent. 2. The extent of loss of earning capacity assessed as final. 3. The assessment of the provision of loss of earning capacity is final. 4. The finding of the Medical Board as follows " Injury right side of Hip and Back Acute Lumbago with Disc Prolapse L4-L5 (deails overleaf) L.E.C. 20% if modification of work/capacity otherwise 10%".
6. Based on the said medical board's report, the Regional Office of the respondent calculated the permanent disability benefits. The Regional Office also wanted clarification from the Chairman, Medical Board as to whether 20% or 10% permanent disability should be considered for awarding benefit for the appellant. The Medical Superintendent/Medical referee gave a report dated 24.12.2001 to the effect that the employer, Anglo French Textiles Ltd., Pondicherry, of the appellant issued a certificate to the effect that the appellant is doing the same work before he sustained the employment injury and hence the appellant was eligible for 10% benefits relating to the permanent disability. Accordingly, the daily rate of permanent disability is assessed at 0.1512 paise and accordingly payment was made. Hence, there is no merit in the appeal filed by the appellant.
7. During enquiry, on the petitioner's side, the Deputy Manager (I.R. & L.A.) of the Anglo French Textiles Limited was examined as PW1 and Ex.A1 to Ex.A12 were marked on consent and Ex.X1 to Ex.X4 were also marked at the instance of the petitioner on consent. On the respondent's side Ex.B1 to Ex.B5 were marked on consent. No oral evidence was adduced on the side of the respondent.
8. The points for consideration are:
1.Whether there is any error in assessing the permanent disability of the appellant by the medical board?
2. If so, to what relief?
9. On point No.1:
The quintessence of the case of the appellant is that the Medical Board was wrong in assessing the permanent disability of the petitioner at 10% despite the medical record would speak to the fact that the petitioner in view of the nature of the injury sustained by him and prolonged treatment taken by him could not work as before.
10. Per contra, the respondent would state that it ascertained from the employer of the appellant that there was no change in the nature of work allotted to the appellant after he re-joined the mill.
11. PW1-Mathews, Deputy Manager, I.R. & L.A. of the Anglo French Textile Mills, Pondicherry in his deposition would state that the appellant is working in 'C' unit of the A.F.T. mills, that he previously met with an accident while working as Sundry worker in the Weaving maintenance department, that he was working as piece carrier and that it was a team work of four persons. He would also proceed to depose that as per the records, there is nothing to show that the appellant after the accident, is doing only light work. He would also state that he did not know whether among the four workers, the appellant is doing light work by adjusting among four workers. On the petitioner's side, among four workers, none was examined so as to highlight the fact that among the four workers by way of adjustment, the appellant was given light work. Hence, as per the evidence as putforth through PW1, it is clear that after resuming duty, the appellant is doing the same work which he was doing before the accident.
12. This Court cannot simply assume that the appellant is doing only light work. The pith and marrow of the decision of the Medical Board as contained in Ex.A12 (decision of the Medical Board dated 23.06.2001) is to the effect that the permanent disability sustained by the petitioner is 10% for assessing the loss of earning capacity, that the petitioner is eligible for 10% only for the assessment of disability for loss of earning capacity. Ex.B4 is dated 24.12.2001 issued by the Medical Superintendent/Medical Referee to the Manager, Local Officer, E.S.I. Corporation, Mudaliarpet, Pondicherry clarifying the meaning of the certificate issued by the Medical Board. It is therefore, crystal clear that in the event of change of work from that of the work already performed before the accident by the petitioner he would be eligible for 20% and in the event of no change in work, he would be eligible for 10%.
13. As has been already highlighted above, as per the evidence of PW1, the Deputy Manager of the employer of the petitioner, there was no change in the nature of work and hence the petitioner is entitled only for 10% and accordingly, the assessment for disability for loss of earning capacity as worked out by the respondent cannot be fault at with.
14. The learned advocate for the petitioner summoned the attendance and the leave particulars from A.F.T., the employer of the appellant and they filed Ex.X1 to Ex.X4, the photo copies of muster roll relating to the month of August, 2000 to February, 2003. Those photocopies of the muster roll would show that the petitioner Karuppiah availed leave for certain days in a month and the number of leave were not enormous so as to infer that only based on the said employment injury and the consequent permanent disability he availed leave.
15. I am of the view that those Ex.X1 to Ex.X4 are not supporting the case of the petitioner that only due to the employment injury he could not perform his work continuously. In fact, the petitioner with reference to Ex.X1 to Ex.X4 could not highlight that he was on leave for huge number of days due to health grounds. The other documents are correspondences which are only formal documents in this case. As such, the petitioner's contention is not tenable and accordingly, this point is decided as against the petitioner and in favour of the respondent.
16. ON POINT NO.2:
In view of the reasons for deciding the aforesaid point this ESI appeal is dismissed. However, in the circumstances of the case, there is no orders as to costs."
9. The appellant has raised the following points before this Court namely that the learned Judge has failed to note that the Medical Superintendent had reduced the percentage of disability without examining the appellant. The documents 1 to 4 are only formal documents and cannot support the case of the appellant. Further, the appellant had raised the point that if the learned Judge had doubt about the actual percentage of disability of the appellant, he ought to have referred the appellant to the medical board.
10. Considering the appeal before the employees insurance Court and counter statement of the respondent filed before the trial Court by the medical board and order of the learned Insurance Court Judge and grounds of appeal before this Court, this Court is of the view that the appellant, Mr.O.Karuppiah is engaged in doing the same type of work as he was doing before the accident. No modified work has been given to the appellant after the accident and hence the appellant is eligible for 10% only being the assessment of disability for the loss of earning capacity. On the basis of the disability, rate of permanent disability has been intimated as 10% as per letter issued by the Medical Board dated 05.02.2002 and permanent disablement was calculated with effect from 01.08.2000, at the daily rate of paise 0.1512 and payment has been made to the appellant. The findings of the medical board is as follows;
"Injury right side of hip and back acute Lumbago with disc prolapse L4-L5. L.F.C, 20% if modification of work/capacity, otherwise 10%"
11. The Court had considered the fact that the appellant is doing the same type of work and no modifications had been done on the nature of his work. This confirms that his present earning has in no way been reduced or come down as a result of the permanent disability. If he had been given any other work of a strenuous nature, on the basis of disability this Court could have interfered with the respondent/Medical boards order. But, considering the fact that the appellant is still doing the same work as he was doing before the accident, the medical board is absolutely correct in fixing the disability at 10%. The ESI Court's order dated 17.04.2003 has also dismissed the appeal on the same grounds. As such, this Court is of the view that assessment of disability of appellant as 10% by the Medical Board is correct. Resultingly, the civil miscellaneous appeal is dismissed and the order passed by the learned Employees State Insurance Court Judge, in ESI Appeal No.1 of 2002, dated 17.04.2003 is confirmed. Parties are directed to bear their own cost.
JIKR To The Employees State Insurance Court, Pondicherry