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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)
RAYUAN SIVIL NO: R1-16-17-2007
ANTARA
MURALI A/L MUNIANDY
… PERAYU
DAN
KETUA PENGARAH
PERTUBUHAN KESELAMATAN SOSIAL
… RESPONDEN
ALASAN PENGHAKIMAN
By way of a Notice of Appeal dated 21.6.2007 the Appellant
appeals
against the decision of the Appellate Medical Board delivered on
21.11.2006 reducing the Appellant’s percentage of disability from 20%
to 7% (enc.1). I dismissed the appeal with costs of RM1,000.00 to the
Respondent. This is an appeal against my decision.
2.
From the documents found in the Appeal Record, the Appellant’s
medical history is as follows –
(a)
sustained bodily injuries as a result of a motor vehicle
accident on 27.12.2005;
(b)
on 28.12.2005 i.e. the day following the motor vehicle
accident
the
Appellant
procedures to his knee;
underwent
certain
medical
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(c)
on 11.1.2006 he underwent medical procedures on his left
shoulder. He was discharged on 16.1.2006;
(d)
the medical report dated 23.1.2006 by the Consultant
Orthopaedic and Trauma Surgeon of the Selangor Medical
Centre shows that the Appellant was advised to continue
physiotherapy;
(e)
on 2.8.2006 the same doctor issued a report which shows
that the Appellant has a past history of fracture of the tibia of
the left knee in July 2003;
(f)
a medical report dated 8.9.2006 shows that the Appellant
was advised to continue light duty works for two months;
(g)
a report dated 24.2.2007 shows that the Appellant
complained of left knee pain and swelling. An examination
revealed that he has developed secondary osteoarthritis left
knee.
3.
The Appellant applied to the Social Security Organisation
(“SOCSO”) for disability benefits. On 28.8.2006 he was examined by
the ‘Jemaah Doktor’ (“Medical Board”) which consists of three
orthopaedic specialist.
The three specialists determined that the
Appellant has sustained disabilities at a ratio of 20% (including a
previous award of 6% disability on 29.1.2005).
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4.
SOCSO thereafter referred the Appellant to the Appellate Medical
Board.
Upon examination the Appellate Medical Board reduced the
percentage of disability from 20% to 7%.
5.
The Appellant says that there is no reasonable explanation for the
reduction. The Appellant appealed to the SOCSO Appellate Board but
the said Board declined to entertain the appeal on the basis of the case
of Mary Pushpam Savarimuthu v Ketua Pengarah Pertubuhan
Keselamatan Sosial
[2006] 7 CLJ 511.
In that case the following
question was referred to the court for determination pursuant to s.90 of
the Employees Social Security Act 1969 (“the Act”) -.
Whether the Board has jurisdiction to hear cases concerning an invalidity
or disablement question, in the light of the High Court decision of Ketua
Pengarah, Pertubuhan Keselamatan Sosial v. Rahim bin Darus [2001] 5
MLJ 689.
Raus Sharif J (as His Lordship then was) said inter alia as follows The Social Security Appellate Board has no jurisdiction to hear or
determine the question of invalidity or disablement. The jurisdiction is
with the Medical Board and the Appellate Medical Board. The Social
Security Appellate Board has no power to review or entertain any appeal
by an aggrieved party over the decision of the Medical Board or the
Appellate Medical Board.
Clearly s.83(3) reemphasis the need for the determination of the
invalidity or disablement question by the Medical Board and the
Appellate Medical Board.
6.
In the case of Ketua Pengarah, Pertubuhan Keselamatan
Sosial v. Rahim bin Darus (supra) referred to by Raus Sharif J in Mary
Pushpam Savarimuthu v Ketua Pengarah Pertubuhan Keselamatan
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Sosial (supra), Mohd Noor Abdullah J (as he then was) held that under
the Act the question of invalidity is to be decided by the Medical Board
and the Appellate Medical Board and the SOCSO Appellate Board
lacks the jurisdiction to determine the invalidity question. Mohd Noor
Abdullah J said inter alia Let it be said loud and clear and early in this judgment that an invalidity
or disablement question is exclusively for the medical board and
the appellate medical board to decide. It is noted that the medical
board comprised a chairman and one member and the appellate medical
board comprised a chairman and two assessors, involving six medical
specialists to decide on the medical condition of the respondent. These
constitute sufficient safeguard. In my view the invalidity question is a
medical question, better if not best answered by the medical profession
and jurisprudence.
It must be noted that the civil court has no jurisdiction to decide or deal
with any question or dispute which is to be decided by the Social
Security Appellate Board or the medical board or the appellate medical
board except by way of reference on a question of law or by way of
appeal on a substantial question of law respectively (ss.84(4), (5),
90, 91). (emphasis mine)
The Act empowers both the medical board and the appellate medical
board to review its own decision (s.34). The power to review, in other
legislation is conferred to a person or body of superior jurisdiction. In my
view the legislature by conferring on the medical board and the
appellate medical board the self serving power to review its own
decision intends that the decision of both boards are final,
conclusive and not appealable, certainly not to the Social Security
Appellate Board and with exception to the High Court. (emphasis
mine)
7.
It must be noted that s.91 of the Act provides as follows –
91. Appeal.
(1) Save as expressly provided in this section, no appeal shall lie from
an order of the appellate boards set up by or under this Act.
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(2) An appeal shall lie to the High Court from an order of an appellate
board set up by or under this Act if it involves a substantial question of
law.
(3) The period of limitation for an appeal under this section shall be
sixty days from the date the order is made.
Section 91(1) clearly states that no appeal shall lie from an order of the
appellate boards. The appellate boards referred to in s.91 will
necessarily refer to the Appellate Medical Board and the SOCSO
Appellate Board and no other. An exception created by s.91(2) is an
appeal to the High Court if it involves a substantial question of law.
Therefore though s.91(2) permits an appeal to the High Court from an
order of an appellate board, such appeal by the clear words of s.91(2) is
limited to “a substantial question of law”. Hence in my opinion it is the
intention of the legislature, as said by Mohd Noor Abdullah J in the case
of Ketua Pengarah, Pertubuhan Keselamatan Sosial v. Rahim bin
Darus (supra) that “the legislature by conferring on the medical board
and the appellate medical board the self serving power to review its
own decision intends that the decision of both boards are final,
conclusive and not appealable,…”.
8.
In the present appeal, the Appellant posed the following issues for
determination by this court –
(a)
whether the Appellate Medical Board had erred on facts
and on medical grounds when they reduced the
percentage of the Appellant’s permanent disabilities
from 20% to 7% and whether such reduction was
justified; and
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(b)
9.
whether the Appellate Medical Board has given
reasonable explanation in respect of the reduction and
whether the reasons were made known to the Appellant.
The Notice of Appeal herein contains no question of law. This
appeal is in essence an attempt to get this court to inquire into and
review the decision of the Appellate Medical Board. Such an appeal is
not within the terms of s.91(2) and the court has no jurisdiction to
entertain such an appeal. In the authority referred to above, Mohd Noor
Abdullah J has said that the legislature intended the question of
invalidity or disablement, and in my opinion that includes the degree of
disability, to be decided by the medical specialists in the medical board
and the appellate medical board exclusively and that the decision of
both boards are final, conclusive and not appealable. I find that the
Notice of Appeal is flawed. For the aforementioned reasons I dismissed
the appeal with costs of RM1,000.00 to the Respondent.
Dated 9th March 2010
DATO’ AZIAH BINTI ALI
HAKIM
MAHKAMAH TINGGI MALAYA
KUALA LUMPUR
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Counsel :
Rajan Rayappan for the Appellant
(Messrs Rajan, Gurjit & Co.)
Patricia Ng for the Respondent
(Messrs Skrine)