Chen Yang is about 20 years old from Northeast China, and he had
worked at Shanxi Star Coal Mine for five years for underground
hauling since February 2008. In June 2013, Chen got a job in
Tiancheng Company in Shanghai doing a similar hauling work, which
however did not expose to dust. Tiancheng company did not conduct
pre-employment health check at the time of employment. In September
2013, he was transferred by Tiancheng to a stucco decorative job
which exposed him to a small amount of dust. In November 2013, he
felt sick with tight chest and coughed heavily, and was diagnosed
as "third stage of CWP (coal worker's
pneumoconiosis)" with "lung abnormalities and a
large shadow in the left lung".
The certificate of diagnosis of occupational diseases issued by
the Shanghai Occupational Disease Prevention Hospital stated that
Chen Yang's employer was Shanghai Tiancheng Company. Meanwhile,
the record on his occupational exposure history showed that Star
Coal Mine was closed.
Chen asked Tiancheng Company to apply on his behalf to the local
Human Resources and Social Security Bureau
("HRSSB") for work injury recognition.
Tiancheng Company refused the request as it considered that Chen
Yang's illness was caused by his previous work in the coal
mine. However, Chen Yang believed that he had been exposed to dust
while working for Tiancheng Company and this caused the disease, so
he applied himself to the HRSSB for work-injury recognition. After
investigation, HRSSB held that Chen Yang's illness was caused
by occupational hazards and verified it as work-injury.
Tiancheng Company insisted that Chen Yang's illness could
not possibly be caused by his work for them, because he was exposed
to dust working for Tiancheng for only two months. On the other
hand he had worked in the coal mine for many years, thus Tiancheng
Company should not be liable for his occupational disease. To
evidence its strict control of its working environment, Tiancheng
engaged an agency to check the environment of Chen's workshop
and it submitted an occupational hazards monitoring report, which
indicated that all tested items of the workshop meet required
HRSSB held that, although Chen's working experience
suggested that his occupational disease might be closely related
with Star Coal Mine, Tiancheng failed to arrange a preemployment
occupational health check for Chen Yang before he was exposed to
occupational hazards with it. Although the occupational hazards
monitoring report showed that Chen Yang's Tiancheng work
environment was safe, it was issued after HRSSB's investigation
and thus could not be used as supporting evidence for
Tiancheng's argument. In addition, from the perspective of
protecting employees, if Star Coal Mine was responsible for the
work-injury liability, then Chen Yang could not actually get any
compensation from it. When Tiancheng failed to arrange a
preemployment health check for an employee with work injury
insurance, Tiancheng had assumed the work injury liability.
In order to mitigate an employer's risk of recruiting
employees with a preexisting sickness, it is advisable for an
employer to adopt the following approaches.
Fully investigate the employee's history of illness
and work injuries during recruiting. Prior to commencement
of employment, the employer may require candidates to provide
his/her basic information, family, work experience, physical
condition (for example, whether he/she has had a work-injury or
whether he/she has an occupational taboo) and fully explain to
candidates the requirements of the position and its impact on
Arrange a health check prior to commencement of
employment or transfer to a new position. If the
employer's working environment has occupational health hazards
or the position has special physical requirements, a routine health
check is not enough. Instead, a specific examination should be done
based on the job requirements. For example, generally an employee
with hypertension can work, but hypertension is a contraindication
for a highly responsible position. If an employee is transferred to
a new job, the employer should consider whether to conduct a
further health check based on the new job requirements.
Establish an occupational health record for employees
after commencement of employment. The occupational health
record can record each of the individual's occupational health
checks, any treatment, medical history and the history of exposure
to occupational hazards and so on. Occupational health records
should be kept and managed by an appointed person. Also, employers
are obligated to keep such medical information confidential and to
protect the privacy right of employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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