YAU WANG NGAI v. WIN ELITE INTERNATIONAL LTD

DCEC 1536/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1536 OF 2013

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JUDGMENT

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1.  The applicant had an accident in the course of his employment. On 30 August 2011 at 9:30 p.m., when the applicant was riding on a motor cycle, delivering food products in the course of his work, he lost his balance, fell over to his right, and sustained injuries (“the Accident”). The applicant claims against his employer, the respondent, for employee’s compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”).

2.  Three days before the trial, the respondent admitted liability. The matter that this court shall now determine is the quantum of compensation.

Background facts

3.  The applicant was 33 years old at the time of the Accident. He was married with one child.  He had completed secondary school in Hong Kong and university studies in Taiwan.

4.  The applicant was employed by the respondent as full time employee to provide food delivery services on motor cycle from April 2010. 

5.  As a result of the Accident, the applicant sustained injuries including tenderness over his right hand, abrasions over his right face, right foot and the right lower chest wall.  He has an undisplaced crack fracture over his 7^th to 9^th rib.

6.  After the Accident, the applicant has received periodical payments from the respondent in a total sum of $67,077.63.

Applicant’s Earnings

7.  The respondent filed a list of earnings of the applicant for the 12 months prior to the Accident.  The applicant’s earnings in July 2011 (which was the month immediately preceding the date of the Accident) was HK$13,620.18.  This sum was larger than the applicant’s average earnings for the 12 months prior to the Accident.

8.  The applicant agreed to the figures in the list of earnings to the extent that it reflected the base salary of the applicant.  The applicant contended that in addition to the base salary, he received tips on average of $30 to $40 per day, and according to him, he received an average of $1,000 per month from the customers.  The applicant said that this amount should be included in the earnings for the calculation of the compensation under the ECO.

9.  Section 3 of the ECO defined “earnings” to mean :-

“any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money … and including tips if the employment be of such a nature that the habitual giving and receiving thereof is open and notorious and is recognized by the employer” (emphasis added)

10.  The respondent’s case was that these tips, if any, should not be considered as part of the earnings as they were not known to or recognized by the employer.

11.  The applicant provided no document in support of his receipt of tips.  The employment contract between the applicant and the respondent did not provide for the applicant’s entitlement to receive tips.  On cross examination, the applicant accepted that he had not told the respondent about the tips he received.  There is no evidence that the tips were known to or recognized by the respondent. 

12.  In the circumstances, the tips, if any, should not form part of the applicant’s earnings.  For the purpose of calculating the applicant’s entitlement of compensation under the ECO, his monthly earnings shall be $13,620.18.

Assessment by Employees’ Compensation (Ordinary Assessment) Board

13.  By a certificate issued by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) dated 9 December 2013 (“Form 7”), the applicant was assessed to have suffered multiple injuries resulting in post traumatic stress disorder and residual pain with 30.5% loss of earning capacity permanently caused by the injury, and sick leave was granted from 30 August 2011 to 25 November 2013. 

14.  The applicant objected to the Form 7. The Board conducted a reassessment upon the request of the applicant.  A certificate of review of assessment (“Form 9”) was issued on 12 August 2014, in which the Board revised its assessment on the loss of earning capacity to 42.5%, and sick leave be given from 30 August 2011 to 29 July 2014 (that is a total of 1,065 days).  The injury sustained was stated to be multiple injuries resulting in post traumatic stress disorder, residual right chest wall pain and right wrist pain.

15.  The respondent lodged notices of appeal against Form 7 and Form 9 on 8 January 2014 and 14 April 2015 respectively. The notice of appeal against Form 9 was filed after the expiry of the 6 months’ limitation period pursuant to section 18(2) of the ECO.  By an order of Judge CM Leung on 12 June 2015, the respondent was given leave to file the notice of appeal out of time.

16.  The court also directed that a joint orthopeadics examination and a joint psychiatric examination be conducted on the applicant. These joint medical reports, which were not available to the Board at the time of the assessments, are now before this court.

Court’s approach in an appeal against the Board’s assessment

17.  Under section 18(3) of the ECO, this court may confirm or reverse or vary any assessment by the Board or may substitute its own assessment, and may determine the amount of compensation payable and the order as to costs, as this court thinks fit.

18.  The proper approach in an appeal under section 18 of the ECO was to consider the issues afresh.  In Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115, Hunter JA has held:-

“the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

19.  This approach was well recognized and adopted in subsequent cases.  The court of appeal in Tsang Wong Tong v Tennille Decoration & Design Limited, unreported, CACV 42 of 2006 has reiterated that:-

“The correct test to apply for an appeal brought pursuant to section 18 against an assessment of the Board made under section 16D or 16G, is that stated in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D to E, per Hunter JA.”

20.  The court hearing an appeal under section 18 “can only judge an assessment by testing the validity of its conclusions against the total available evidence” (Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd. [1991] 2 HKLR 455, at 458). This is particularly important as the Board has not given its reason for the assessment and the court ought not speculate its basis one way or the other.

21.  The court shall also have regard to the special circumstances of the employee (Chan Kam, supra; section 9(1A) of the ECO). 

22.  In assessing the percentage of loss of earning capacity, this court is not bound by the medical opinion.  The court should make its own conclusion after considering all the evidence, including the medical evidence. In Tang Shau Tsan v Wealthy Construction Co Ltd, unreported, CACV 58 of 2000, 5 April 2000, the court of appeal has commented that:-

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

Although Tang Shau Tsan is a case on personal injuries claim at common law, the above observation and comment, in my view, equally apply to employees’ compensation claims.

The applicant’s injury and the medical reports

23.  After the Accident at the night of 30 August 2011, the applicant was brought to the Accident and Emergency Department (“A&E Department”) of Pok Oi Hospital.  The medical examination revealed that there were abrasions over his right face and right foot, tenderness on the right lower chest wall and right hand.  An X-ray was conducted for his chest, right hand and right foot, no obvious bone fracture was shown.  The applicant was admitted to the emergency medical ward and was discharged on 1 September 2011.

24.  The applicant attended the A&E Department on 6 September 2011 for his right chest pain. The X-ray conducted on this occasion showed an undisplaced crack fracture over right 7^th to 9^th rib.

25.  The applicant has attended the A&E Department on three more occasions on 17 September 2011, 4 October 2011 and 31 October 2011 for chest wall and right hand pain. He was granted sick leave from 30 August 2011 to 29 October 2011 and 31 October 2011 to 2 November 2011.

26.  On the applicant’s 4^th visit to the A&E Department, he was told that the fracture ribs was healed or recovered.  The applicant continued to complain of his pains.

27.  The applicant has then attended a number of different clinics, including Chinese herbalist, private general medical practitioner, Yuen Long Jockey Club Health Centre, Tuen Mun Hospital, Tin Shui Wai Health Centre, North District Hospital etc. and got sick leave certificates from these clinics respectively from 30 August 2011 to 26 August 2014 (a total of 1,087 days)                            .

28.  The applicant has also undertaken physiotherapy treatment at Pok Oi Hospital for 3 sessions from 26 July 2012. He defaulted the 4^th session. On 12 and 25 October 2011, he attended the occupational therapy treatment again.

29.  On 29 September 2012, the applicant told the doctor that he developed emotional stress with suicidal thoughts.  He was referred to psychiatric treatment.

Medical report prepared by Dr Chun dated 15 May 2012

30.  The applicant was examined by Dr Chun Siu Yeung (“Dr Chun”) on 23 March 2012 whom prepared a report dated 15 May 2012.  Dr Chun’s opinion was that the applicant was independent with his activities of daily living.  He was able to return to work as food deliverer on scooter without limitation or restriction.

31.  Dr Chun assessed that the applicant has a 0.5% whole person impairment for the possible but unlikely mild residual symptom from the injury. The loss of earning capacity is 0.5%.  He considered that a sick leave granted up to 29 October 2011 was reasonable and very adequate for the applicant’s injury.  Dr Chun opined that further sick leave was not justified or warranted.

Joint Orthopeadics Reports

32.  A joint medical report (“Joint Orthopeadics Report”) dated 6 October 2015 was issued by Dr Chun nominated by the respondent and Dr Chan Sai Keung (“Dr Chan”) nominated by the applicant.

33.  Dr Chun opined that the applicant’s fractures should be well healed after 8 weeks from the Accident. He took the view that the applicant exaggerated his symptoms especially the numbness at his right wrist and the symptom on his ankle. The applicant’s complaint of right wrist dorsum tendon numbness is not consistent with the right hand pain documented at the first attendance at the A&E Department.  Physical examination showed no abnormality on his ankle.  Dr Chun took the view that his condition had long reached maximal medical improvement. No further treatment is required.

34.  Dr Chun opined that the applicant is independent with his activities of daily living. He is able to return to work as food deliverer on scooter without limitation or restriction. He is able to do house work. There is no permanent impairment resulted. He assessed the loss of earning capacity for the possible mild residual pain on the chest wall upon very heavy exertion to be 0.5%.

35.  Dr Chan, the applicant’s expert, confirmed that although the applicant persistently complained of right wrist pain, there was no sign of wrist injury.  Similarly, although the applicant complained to have right ankle pain, physical examination and assessment showed that his right ankle was normal.  Dr Chan took the view that the applicant’s right wrist pain and right ankle pain may be a result from a neck problem as all nerve fibres to the trunk and four limbs go through the cervical spine.  Dr Chan recommended a MRI examination on the applicant to confirm whether the applicant suffered from any spinal cord injury.

36.  Dr Chan opined that if the applicant had cervical cord injury, he is not fit for resuming the delivery job by motor cycle. He is estimated to have 8% whole body impairment and 8% loss of earning capacity resulted from the Accident. 

37.  The applicant has accordingly taken a MRI examination, which shown that there was no spinal cord compression. 

38.  Dr Chun and Dr Chan issued a Supplemental Joint Report dated 18 March 2016 to give their opinions after the result of the MRI examination. Dr Chan confirmed that the applicant’s right wrist and right ankle pain was not related to the neck injury.  Dr Chan revised his assessment of whole body impairment to 5% and loss of earning capacity to 5%.

39.  On the issue of sick leave, Dr Chun’s opinion was that a sick leave up to 2 November 2011 should be adequate. Any prolonged sick leave was not necessary. Dr Chan endorsed the Board’s assessment in the Form 9 on the sick leave granted from 30 August 2011 to 29 July 2014.  No explanation was given by Dr Chan for this endorsement.

Joint Psychiatric Report

40.  In light of the applicant’s complaint of psychiatric problem, a joint psychiatric report dated 12 January 2016 was prepared by Dr Benjamin Lai (“Dr Lai”) nominated by the applicant and Dr Peter Yu (“Dr Yu”) nominated by the respondent.

41.  Dr Lai and Dr Yu agreed that the applicant has suffered from adjustment disorder with mixed anxiety and depressed reaction following the Accident.  He is mentally capable of returning to his pre-accident job.

42.  Dr Lai took the view that the applicant’s work tolerance and efficiency are likely to be affected by his psychiatric symptoms in a mild degree. Dr Yu considered that the work efficiency of the applicant would not have been impaired due to the mental symptoms.

43.  Based on the psychiatric condition of the applicant, Dr Lai estimated that the applicant’s loss of earning capacity would be 2% to 4%. He would recommend a 6 to 9 months sick leave if and when the applicant’s psychiatric symptoms get worse.

44.  Dr Yu came to a different conclusion.  He opined that the applicant had exaggerated his mental symptoms with the intent to build up a case of severe mental distress. He considered that the applicant might have symptoms in the initial months after the Accident, these symptoms are very mild and medications are not needed.  The applicant will not benefit from any psychological or psychiatric treatments and should stop attending the psychiatric clinic.  As to the applicant’s complaint of forgetfulness and poor concentration, medical examination showed that he did not have concentration or memory problems while giving the various accounts to the psychiatrists. 

45.  Dr Yu opined that the applicant has 0% permanent impairment and 0% loss of earning capacity.  The applicant’s very mild mental symptoms would not have stopped him from returning to the pre-accident duties. He would not have impaired his work efficiency due to mental symptoms. No sick leave would be recommended due to mental symptoms.  Dr Yu considered that the applicant is mentally fit to return to his pre-accident employment.

The applicant’s evidence of his condition

46.  The applicant gave evidence in court.  He said that he is still suffering from low back pain, right chest wall pain, right wrist pain and numbness.

47.  He told the court that his chest pain hurt him very much, in particular when he was taking the minibus.  He said that the shaky movement of the vehicle caused him pain to the extent of sweating (“痛到標冷汗”). There were some 5 to 10 occasions he had such painful experience. He said he had to take a bus instead.

48.  He said that apart from going to the hospital or clinic for treatment, he basically stayed at home and seldom went out due to his physical condition.

49.  He claimed that he experienced numbness and pain on his right wrist during the first six months after the Accident. He could not carry heavy objects such as a bag of 5 kg rice. 

50.  The applicant said that he could not return to the labour market and he has not tried to find a job due to his unsatisfactory mental condition.  He said that he was and is “反應遲鈍, 好驚見到陌生人, 個腦好實, 反應好遲鈍, 好似個傻佬咁”.

Surveillance Video

51.  Surveillance video recorded the applicant’s activities on 1, 6, 18, 24 February 2012 and 23 March 2012.  These records, especially those on the dates in late February and March 2012 revealed a marked difference from the condition that the applicant has told us in court.

52.  On 1 February 2012, the applicant was seen standing on the street, smoking and talking to a friend for about an hour without sign of discomfort and pain.  He had at times leaned on the rail at the street.  However, there was no sign of obvious pain suffered.  There are times when he was recorded limping while walking.  The applicant suggested that there was a moment when he lost balance due to his chest pain.  It was seen at the video recording that the applicant quickly regained his balance and he was talking to his friend without any sign of pain or discomfort.

53.  He was seen carrying two filled plastic bags with both hands, bent his back to pick up something on the ground.

54.  On 18 February 2012, he was seen walking in a fast pace and running towards the border.  After he arrived at the Hong Kong border, he ran down the staircases to the public transport station to catch a bus.

55.  On 23 March 2012, he was seen running to catch a green public light bus to Yuen Long.

Assessment of the applicant’s evidence on his injury

56.  In court, the applicant emphasized his pain on various parts of the body, and how it was impossible for him to go to work even now. 

57.  Despite his repeated complaints of pains to the doctors and in court, in the surveillance video recordings, he was seen running down the stairs and chasing the minibus without much difficulties.

58.  The applicant told the court that he suffered from low back pain as a result of the Accident.  However, there was no record of injury at his low back or any record that he had told the doctors at the early period after the Accident that he suffered from low back pain.

59.  Dr Chun noted in the Joint Orthopeadics Report that certain symptoms of the applicant, in particular, the tenderness at right costal margin at anterior axillary line was not consistent with the site of the fracture. Dr Chan, the expert nominated by the applicant, did not disagree with this finding.

60.  As to the right wrist pain, the applicant’s expert Dr Chan noted that despite the persistent complaint of right wrist pain, there was no sign of wrist injury, no bone pain, no swelling.  The medical evidence showed that his right wrist had full range of motion and full function.

61.  As to the complaint over the right ankle pain, Dr Chun and Dr Chan found that his right ankle was normal.  The applicant’s own expert Dr Chan came to the view that “[p]robably, he did not have direct injury to his right wrist or ankle”.  The MRI examination confirmed that the applicant has no spinal cord problem and eliminated the possibility of indirect injury that might be caused by any neck problem.

62.  The applicant had given evidence for 2 half-day sessions in court. I did not see him suffering from any physical discomfort when he testified. He was coherent in his speech.

63.  I shared the opinion of Dr Chun and Dr Yu that the applicant was exaggerating his symptoms. At times, he was so keen to impress the court of his serious pain that his evidence was inconsistent with those stated in the medical reports.

64.  There are a number of inconsistencies in his evidence, to take a few examples:-

(1)           The medical report recorded that he requested the doctor for sick leave. On cross examination, he denied that he had made this request.

(2)           He said in court that he could not deliver food by bicycle or on foot.  He said that he could not ride a bicycle because it would cause him too much pain on the chest. However, on a prior occasion, he told the psychiatric experts that he could deliver food by bicycle if there was such a job for him.

(3)           He told the court that he could not work as a shop keeper because of his physical disability. However, he told the psychiatric experts that he could cope with a job as shop keeper if he is employed.

65.  I find that the applicant was not honest in his evidence on his condition and the injury he suffered.  He exaggerated his injury resulted from the Accident, both physically and mentally. 

Loss of earning capacity

66.  I am of the view that the Board’s assessment of 42.5% loss of earning capacity was not supported by evidence. 

67.  Dr Chan’s assessment of loss of earning capacity was 5% while Dr Chun’s assessment was 0.5%.  Dr Lai’s assessment was 2% to 4% while Dr Yu’s assessment was nil.

68.  I am not bound by the assessment of the medical experts. Having taken into account of all the evidence before me, including the condition of the applicant as recorded in the medical reports and the surveillance reports, I am satisfied that a loss of earning capacity of 5% is appropriate.

Sick leave

69.  In considering the quantum of employees’ compensation under section 10 of the ECO, there was a presumption that the sick leave certified by registered medical practitioners or the Board is deemed to be the period of total temporary incapacity (Section 10(2) of the ECO).

70.  The burden is on the respondent to rebut this presumption.  (Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120)

71.  The respondent referred to the applicant’s consultation with different clinics and medical practitioners immediately at the end of each sick leave period, and criticized the applicant for sick leave shopping.

72.  The respondent pointed out that:-

(1) There was a repeated pattern of the applicant attending the A&E Department or other clinics for consultation at the expiry of each sick leave certificate.

(2) On 25 October 2011, the applicant received physiotherapy treatment. According to his own evidence, the treatment lessened his pain.  He was given the appointment for the next treatment.  On the same date, he visited the A&E Department complaining pain at the right hand and was given 5 days’ sick leave.  The respondent contended that the purpose of his attending the A&E Department was for the sole purpose of getting sick leave certificate, instead of having any genuine medical need.

(3) Despite the improvement he had from physiotherapy treatments, he did not continue with the treatment but went to consult the Chinese herbalist clinic on 28 October 2011 where he was given sick leave until 30 October 2011. 

(4) On 31 October 2011 (when the sick leave certificate expired), the applicant went to consult the A&E Department again despite that he had received the physiotherapy treatment 6 days ago and Chinese herbalist consultation 2 days ago.  According to the medical report, at the visit on 31 October 2011, the applicant complained right chest wall mechanical pain but no shortness of breath.  He requested sick leave. Examination by the doctor showed that there was no tender spot at his right front chest wall and his right hand, the applicant could not pinpoint his right hand pain, the range of motion of his wrist was full.  The applicant was given sick leave until 2 November 2011 for his complaint of chest wall pain.

(5) Upon the expiration of the sick leave period on 2 November 2011, the applicant visited the Chinese herbalist on 3 November 2011 and was given 2 days sick leave.  He continued to visit the herbalist clinic upon the expiry of each sick leave period until 20 May 2012 when the Chinese herbalist clinic refused to recommend any more sick leave.

(6) The applicant then went to consult a private general practitioner, Dr Wong.  He was given 5 days’ sick leave.  At cross examination, the applicant was not able to give any good reason to explain why, apart from getting sick leave certificate, would he need to spend money to consult Dr Wong instead of continuing the consultation with the herbalist clinic. 

(7) There were records of the applicant defaulting the physiotherapy treatment arranged for him.  The respondent invited the court to infer that the applicant has basically recovered from his injuries and therefore he did not find it necessary to continue with the physiotherapy treatment.

(8) The applicant only resumed the physiotherapy treatment when he was told by the doctor of Tin Shui Wai Health Centre on 29 May 2012 that he would not get sick leave certificate if he did not attend the physiotherapy treatment.

73.  Dr Chan endorsed the full period of sick leave granted by the Board in Form 9 without stating any reason of his endorsement.  Dr Chun opined that a sick leave up to 2 November 2011 was adequate.  Both psychiatric experts opined that no sick leave is necessary for the applicant’s mental condition.

74.  Considering the evidence as a whole including the applicant’s own evidence, the two joint medical reports and the surveillance video recordings, I agree with the respondent that the applicant has a pattern of sick leave shopping.  His claim of sick leave for almost 3 years are too long for the nature of injuries he sustained, having taken into account of his physical condition and the psychiatric symptom that he might have developed subsequently. 

75.  In light of his condition in March 2012 as recorded in the surveillance video and his condition as shown in the medical reports, I am of the view that an appropriate period of sick leave is until 30 April 2012.

Section 10A - Medical expenses

76.  The amount of medical expenses under section 10A of ECO was agreed by the parties to be $10,000.

Compensation

77.  In light of the applicant’s age and pursuant to section 7(1)(a), the multiplier adopted for section 9 compensation is 96.

78.  It is also a common ground that the applicant has received a periodic payment of $67,077.63, which should be deducted from the compensation awarded.

79.  On the basis of my findings that the applicant’s monthly earnings is $13,620.18, the reasonable sick leave period is 245 days, and the permanent loss of earning capacity of 5%, the compensations that the applicant is entitled to are calculated as below:

Section 9:	$13,620.18 x 5% x 96 =	$65,376.86
Section 10:	$13,620.18 x 245days/30 (8.17) x 4/5 =	$89,021.50
Section 10A:		$10,000.00
		$164,398.36
Less:	periodic payment	($67,077.63)
	Balance:-	$97,320.73 ============

80.  Interest on the compensation is awarded at half of the judgment rate from the date of the Accident to the date of judgment, and thereafter at the judgment rate until payment in full.

81.  As to the costs, I direct the parties to file and serve written submission on costs within 14 days from the date hereof.