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Following is a written reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, to a question by the Hon Li Fung-ying on diagnoses of occupational disease in the Legislative Council today (October 29):
Question:
Some workers have relayed to me that the diagnoses, made by the occupational health clinics under the Labour Department, on whether an employee is suffering from an occupational disease under the Employees' Compensation Ordinance (Cap. 282), were often different from the diagnoses made by registered medical practitioners in public hospitals or private clinics. In this connection, will the Government inform this Council whether:
(a) currently there is any mechanism for employees to learn about the criteria, principles and procedure adopted and the time required for occupational health clinics to diagnose occupational diseases;
(b) it will consider setting up a more systematic mechanism for the diagnosis of occupational diseases by making reference to the Measures for Administration of Diagnosis and Confirmation of Occupational Diseases promulgated by the Ministry of Health of the Mainland; and
(c) it will consider setting up a mechanism other than the court to deal with appeals instituted by employees or employers against the diagnoses made by occupational health clinics; if it will, of the details; if not, the reasons for that?
Reply:
President,
There are altogether 52 occupational diseases prescribed under the Occupational Deafness (Compensation) Ordinance (ODCO) (Cap. 469), the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (PMCO) (Cap. 360) and the Employees¡¦ Compensation Ordinance (ECO) (Cap. 282). These three pieces of legislation provide for different procedures for confirming occupational deafness, pneumoconiosis (including silicosis and asbestosis) and mesothelioma, and other 48 occupational diseases respectively:
(a) under the ODCO, the Occupational Deafness Compensation Board (ODCB) and its Medical Committee are responsible for processing and determining applications, including determining whether the claimant has suffered from occupational deafness as prescribed in the Ordinance. A doctor from the Occupational Health Service (OHS) of the Labour Department (LD) is a member of the ODCB, and members of its Medical Committee include specialists in Otorhinolaryngology and Occupational Medicine, and an audiologist;
(b) under the PMCO, the Pneumoconiosis Medical Board (PMB) is responsible for determining whether the claimant has suffered from pneumoconiosis and mesothelioma. The PMB consists of three members and one of them is a doctor from the OHS of LD;
(c) if claimants are dissatisfied with the determination, they may request the ODCB or PMB for a review of that determination. In any case, if they are dissatisfied with the result of the review, they may appeal to the Court; and
(d) as to the 48 occupational diseases prescribed in the Second Schedule of the ECO, LD is responsible for processing such claims. Where there is any dispute between the employer and employee as to whether the disease that the latter is suffering from is a prescribed occupational disease under the ECO, LD will, with the consent of the employee, collect relevant information and medical reports on the case and seek the professional advice of the doctors from the OHS of LD, and will then give the medical opinion to both parties. If the dispute could not be resolved through the assistance of the department, the aggrieved party may resort to the Court for a judgment.
Apart from providing treatment to employees who suspect their diseases to be work-related, doctors in the two occupational health clinics of LD will diagnose whether the patients have suffered from occupational diseases prescribed in the ECO.
I will now reply to the three parts of the question as follows:
(a) During the initial and follow-up consultations, doctors in the occupational health clinics will take a comprehensive medical and occupational history from the patients, conduct physical examinations for them and arrange for relevant laboratory tests. The doctors may also, depending on the circumstances and wish of the patients, arrange for inspections to the patients' workplaces together with LD's occupational hygienists to identify the existence or otherwise of hazards in the working environment relating to the diseases. Through comprehensive analysis of such information, the doctors can diagnose whether the patients have suffered from prescribed occupational diseases under the ECO. During the consultations, the doctors will, having regard to the circumstances of individual patients, explain to them their clinical presentation, diagnostic procedures and expected time, results of examinations and laboratory tests, findings of workplace inspections, as well as diagnoses and treatment plans, etc. If the patients raise objection to the results after the diagnoses have been made, the doctors will review the cases.
To explain to the public and registered medical practitioners the occupational diseases prescribed in the ECO, including the signs and symptoms of occupational diseases, examples of relevant work processes and occupations, and compensation matters, LD has already published the "Guide to Occupational Diseases Prescribed for Compensation Purposes" and "Guidance Notes on the Diagnosis of Notifiable Occupational Diseases". These publications are available free of charge from offices of the Occupational Safety and Health Branch of LD, and may also be downloaded from LD¡¦s website. LD has also sent the "Guidance Notes on the Diagnosis of Notifiable Occupational Diseases" to all registered medical practitioners to help familiarise them with the diagnostic criteria for occupational diseases.
(b) According to Decree No. 24 of the Ministry of Health of the People's Republic of China, namely "Measures for Administration of Diagnosis and Confirmation of Occupational Diseases", the diagnosis of occupational disease is the responsibility of occupational disease diagnosing institutions approved by the public health administration departments at the provincial level, and is made by qualified doctors. Such diagnosis should be made with reference to occupational disease diagnostic criteria, with a comprehensive analysis of information like history of exposure to occupational disease hazards, tests and assessments of workplace occupational disease hazards, clinical presentation and medical examination results, etc. If the persons involved have objection to the diagnoses, they may apply to a verification committee of occupational disease diagnosis for a confirmation.
As such, the existing occupational disease diagnosis and review mechanism in Hong Kong, particularly in respect of occupational deafness, pneumoconiosis and mesothelioma, is largely comparable to that of the Mainland since, in both cases, the diagnosis is made systematically by qualified doctors, taking into account information on occupational history, exposure to occupational disease hazards, medial examination results, etc and a review is conducted where patients or claimants have objections to the results. In the long term, LD will continue to keep in view the development of the diagnosis of occupational diseases on the Mainland and overseas countries, and make further improvements to the existing mechanism if necessary.
(c) As mentioned above, the ODCO and PMCO have already provided for a review and appeal mechanism for the diagnosis of the relevant occupational diseases. With respect to the prescribed occupational diseases under the ECO, if there is any dispute between the employer and employee as to whether the disease that the latter is suffering from is a prescribed occupational disease under the Ordinance, LD will pass to them the medical opinion of its OHS doctors. LD's doctors will also review the case if necessary. In any case, if the dispute could not be resolved through the assistance of the department, the aggrieved party may resort to the Court for a judgment.
The existing mechanism of appeal to the Court for handling disputes on diagnosis of occupational diseases is in line with international practice. It is not uncommon for jurisdictions with a prescribed list of occupational diseases for compensation purpose to vest the power of hearing appeals in judicial authorities. For example, in Singapore, New Zealand and some states of Australia and Canada, such dispute cases are directly referred to the court for a judgment, as is in the case of Hong Kong.
Ends/Wednesday, October 29, 2008
Issued at HKT 11:17
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