1. Through the Memorandum of Appeal dated 12th September, 2024 the Appellant appeals against DOSH’s decision rendered on 16th August, 2024 on grounds inter alia:
i. THAT the director erred in law and in fact in failing to appreciate and consider the issues raised in the said objection which resulted to an erroneous assessment of the Interested Party’s permanent incapacity.
ii. THAT the director erred in law and in fact in failing to appreciate and give any consideration to the second medical report authored by Dr. Muthoni Maina dated 24th July, 2024 which assessed the interested party’s permanent incapacity at 15%.
iii. THAT the director erred in law and in fact in making a final determination solely based on one medical report opposed to substantively considering both medical reports which resulted to erroneous assessment of the interested party’s permanent incapacity at 65%
iv. THAT the director made fundamental errors of law and fact by declining in limine to review his decision following appellant’s objections lodged before him and by failing to give reasons for his decision as is statutorily required.
v. THAT the director erred in law and in fact in dismissing the appellant’s objection dated 20th June, 2024 without careful analysis of the second medical report and arguments submitted in support thereof which resulted to an erroneous assessment of the interested party’s permanent incapacity at 65%.
2. The Appellant prayed that:
i. The decision of the Director be quashed, vacated or reviewed and or set aside in its entirety with costs to the appellant.
ii. The assessment and or the computed compensation contained in the decision of the director dated 16th of August be quashed, vacated or reviewed and or set aside and be substituted with an order for assessment of the Interested Party by an independent medical practitioner to determine the final award on incapacity.
iii. That costs be awarded to the appellant.
3. The respondent though served did not participate in this appeal
4. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
5. The Appellant through his Advocates Kipkoech Law filed written submissions dated 28th January, 2025 and submitted in the main that through a notice dated 9th November, 2023, the appellant notified DOSH of an occupational accident involving the Interested Party herein in accordance with provisions of section 22(1) of the WIBA, 2007. The Interested Party was examined at Kitengela Medical Services where his permanent incapacity was assessed at 65% with the details of incapacity being ankylosis right hip joint and ankle joint with loss of sensation in the right foot. The Respondent through a letter dated 20th June, 2024 demanded settlement of the claim based on 65% permanent disability totaling to Kshs. 2,740,738/-
6. The appellant pursuant to section 51 of WIBA lodged an objection dated 20th June, 2024 on grounds that on the advice of one Dr. Muthoni who assessed the injury at 15% and the first assessment at 65% did not reflect the true information on the injury. On 24th July, 2024, the Appellant referred the Interested Party to a second medical examination. This was done by Dr. Muthoni Maina, Senior Resident Medical Officer at South B Hospital. Dr. Muthoni assessed the permanent incapacity at 15% with details of incapacity being right ankle joint following a fracture and the type of injury being ankyloses.
7. The respondent issued its decision to the Objection on 16th August, 2024 stating that the objection had been declined in accordance with section 30, 53(2) and 1st Schedule Clause D of WIBA. The Director therefore upheld the initial assessment and compensation awarded to the Interested Party and ordered that it be settled.
8. Counsel further submitted that under section 53(2)(d) and (e) of WIBA, the respondent had a statutory responsibility to receive reports of accidents and carry out investigations into such accidents to ensure that employees that are injured are compensated in accordance with the provisions of WIBA. Further, compensation of the injured employees must comply with the Act (section 30). The respondent was therefore required to evaluate and investigate the injuries sustained by the Interested Party as guided by the medical reports from qualified practitioners and apply the degree set out in the second column of the 1st Schedule in order to arrive at the right compensation.
9. In this particular case the respondent was issued with two conflicting medical reports from qualified medical practitioners. It was therefor incumbent upon the respondent to consider both reports and perform investigative functions under section 53(2) of the Act. The respondent however totally ignored the second medical report which assessed incapacity at 15% which was way lower than the first assessment of 65%. In doing so the respondent did not give reasons why he did not consider the second medical report. In the process, Counsel submitted, the respondent violated section 52(1) of the Act and article 47 of the Constitution. In support Counsel relied on the case of Kiluwa Limited & Anor vs. Business Liaison Company Limited & 3 Others [2021]KESC 37 (KLR). The decision according to Counsel was therefore erroneous.
10. The Interested Party filed submissions through his Counsel Ochieng’ Omollo and submitted that the decision of the Director gave adequate reasons why the objection was dismissed. The Director was guided by the First Schedule which categorizes permanent incapacity for injury suffered at 65%. According to Counsel, paragraph 2 of the Director’s decision was comprehensive and adequate. Counsel further submitted that in paragraph 3 of the director’s decision, the 65% permanent incapacity as computed on 20th June, 2024 was based on the Medical Practitioner’s evaluation for ankyloses right hip joint and ankle joint with loss of sensation on right foot. This was distinct from Dr. Muthoni’s report dated 24th July which stated that permanent injury sustained was to the right ankle joint following fracture type injury being ankyloses. According to Counsel, the Director in his response explained that under 1st Schedule of WIBA, the minimum degree of disablement for ankyloses in optimum position for hip is 50% and ankle at 15% which added up to 65%. The Director therefore gave the basis upon which he arrived at 65% permanent incapacity.
11. In conclusion the Interested Party urged the Court to dismiss the appeal.
DETERMINATION
12. The main issue in this appeal seems to be whether the Director erred in assessing the Interested Party’s incapacity at 65% in tandem with the first assessment done by Kitengela Medical Services and whether Director in response to the Appellant’s objection omitted to give reasons for dismissing the objection and retaining the assessment at 65%.
13. The decision of the Director on the objection dated 16th August, 2024 was attached with the record of appeal. The Director stated as follows:
“…the medical report authored by Dr. Muthoni [Consultant Ophthalmologist] dated 24th July, 2024 concludes that the claimant “permansent(sic) injury sustained is the right ankle joint following fracture type of injury being ankloses” and this calls for a compensation of 15% as minimum degree of incapacity which is at variance with First Schedule guideline…the computation done on 20/06/2024 was based on Medical Practitioner’s evaluation award of sixty (65%) per cent permanent incapacity for “ankyloses right hip joint & ankle joint with loss of sensation right foot… in the First Schedule of Work Injury Benefits Act, 2007, the minimum degree of disablement for ankyloses in optimum position for hip {50%} and ankle {15%} which adds up to sixty-five (65%) percent.
14. From the foregoing it cannot be said that the Director did not give his reasons for disallowing the objection. He was quite clear that from the First Schedule of Work Injury Benefits Act, 2007, the minimum degree of disablement for ankyloses in optimum position for hip is 50% and ankle is 15%}which added up to sixty-five (65%) percent. The appellant may have had a problem with the merit of the reasons given but it cannot be said that the Director totally omitted to give reasons for his decision.
15. The Interested Party was injured in the right hip and ankle and according to Kitengela Medical Centre, the permanent incapacity was ankylosis right hip joint and ankle joint with loss of sensation in the right foot. The medical report by Kitengela dated 11th May, 2024 stated in part that the Interested Party was admitted at the facility on 9th November, 2023 with diagnosis of right hip soft tissue injury, distal fibula fracture and umblical hernia. The patient was put on cast for the ankle fracture and hip soft tissue injuries treated conservatively. He was discharged on 12th November, 2023 and has been attending orthopaedic clinics. According to Kitengela, the patient has been unable to recover fully from his injuries and unable to ambulate without support hence unable to continue with his work as a driver and was advised to retire on medical and safety reasons.
16. The medical report by Dr. Muthoni of South B Hospital states that the patient was referred to the facility for secondary review of percentage of incapacitation following the injuries sustained after an accident. With thorough investigation it was concluded that the permanent injury sustained was to the right ankle joint following fracture type of injury being ankyloses. As per WIBA, this calls for a compensation of 15%. According to Dr. Muthoni therefore, the injury to the hip did not occasion any permanent incapacity since the report is silent on it.
17. Section 30(2) of WIBA provides that if an employee has sustained an injury specified in the first column of the First Schedule, the employee shall for the purposes the Act be deemed to be permanently disabled to the degree set out in the second column of the First Schedule. Under clause D concerning injury to lower limb, loss of leg below middle thigh two centimetres below knee is assessed at 50% and loss of toes of one foot proximal to the proximal inter-phalangeal joint is assessed at 15%.
18. The Kitengela medical report which the Director seemed to have relied on, made no reference to loss of leg. The report stated that the Interested Party was admitted at the facility on 9th November, 2023 with diagnosis of right hip soft tissue injury, distal fibula and umbilical hernia. Which in other words, is a break or fracture in the lower part of the fibula bone located in the ankle. The issue of ankyloses of the hip only appeared for the first time in Form LD104/1.
19. From the foregoing there is reasonable doubt over the injuries to the hip leading to permanent loss. Besides, the First Schedule talks of loss of leg and loss of toes. There is no mention of ankyloses as constituting loss of leg or toe. The Court admits not being knowledgeable in medicine however this needs to be clarified by the medical practitioner writing the report for avoidance of doubt and or confusion.
20. In conclusion, the appeal will allowed and the decision of the Director dated 16th August, 2024 set asids. The matter is hereby ordered to be resubmitted to the Director for the parties to appoint an independent medical practitioner to re-examine the Interested Party and submit a report to the Director for purposes of reassessment of the Interested Party’s permanent incapacity and appropriate compensation.
21. The cost of the independent medical practitioner shall be borne by the appellant.
22. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division