CHOW WAI KEUNG v. WONG SO NUI t/a 有利凍肉公司

DCEC 293/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 293 OF 2012

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.  This is an assessment of compensation under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

2.  On 13 September 2010, the applicant contracted streptococcus suis (“the Disease”), an occupational disease under Sch 2 of the Ordinance, in the course of his employment with the respondent as a pork handler in which he came constantly into contact with pig carcasses.

3.  On 23 February 2012, the applicant instituted these proceedings pursuant to the Ordinance against the respondent, claiming compensation on the basis of permanent partial incapacity.  On 6 May 2016, judgment on liability was entered against the respondent with compensation to be assessed.

4.  On 28 November 2012, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) issued a Certificate of Assessment (Form 7) (“the Certificate of Assessment”) whereby it assessed the applicant as suffering from the Disease resulting in (1) gait disorder; and (2) left ear hearing loss and aloss of earning capacity of 47%.  The Board also certified the period of absence from duty necessary as a result of the Disease as being from 13 September 2010 to 21 October 2012, ie, a total of 760 days as follows:-

From	To
13/09/2010	21/10/2010
23/10/2010	09/01/2011
13/01/2011	19/01/2011
21/01/2011	15/06/2011
17/06/2011	02/08/2011
04/08/2011	08/04/2012
10/04/2012	06/05/2012
08/05/2012	01/07/2012
03/07/2012	21/10/2012

5.  By order dated 6 September 2013, DDJ Ludwig Ng granted leave to the respondent to appeal against the Certificate of Assessment out of time.

6.  Pursuant to the aforesaid order of DDJ Ludwig Ng, by an application dated 12 September 2013, the respondent appealed against the Certificate of Assessment out of time.

7.  By order dated 21 March 2014, HH Judge Ko ordered that the medical evidence was to be limited to one expert in Medicine and one expert in Ear, Nose & Throat for each party, namely Dr Chan Yu Kwan (specialist in Medicine) (“Dr Chan”) and Dr Lo Siu Sing (specialist in Ear, Nose & Throat) (“Dr Lo”). 

8.  Dr Chan prepared a single joint medical report dated 6 November 2014.  In the report, Dr Chan assessed the applicant as suffering from a 30% loss of earning capacity.  Dr Lo prepared a single joint medical report dated 19 May 2014, a single joint supplementary medical report dated 19 November 2014 and a medical opinion letter dated 24 December 2014.  In the medical opinion letter dated 24 December 2014, Dr Lo assessed the applicant as suffering from a 22% loss of earning capacity. 

9.  Thus the combined percentage of loss of earning capacity assessed by Dr Chan and Dr Lo is 52%, which is 5% more than that assessed by the Board.  I shall in the later part of this judgment deal with the question of whether I have the jurisdiction to vary the assessment made by the Board in the absence of an appeal by the applicant and in the absence of the respondent.

10.  By order 10 February 2015, HH Judge Levy ordered that the aforesaid reports and letter be adduced as evidence without calling the maker thereof.

11.  The respondent had been legally represented until 6 May 2016 when her former solicitors were granted leave to cease to act for her.  It was also on 6 May 2016 when the respondent was still legally represented that judgment on liability was entered against her.  The respondent had been acting in person since 6 May 2016 up to and including the day of the hearing.     

12.  On 6 May 2016, HH Judge Levy fixed a PTR on 17 May 2016 at 9:30 am and directed the respondent’s former solicitors to serve a notice of the PTR on the respondent on her last known address, which they duly did.

13.  At the PTR before me on 17 May 2016 at 9:30 am, despite having been served with notice of the PTR, the respondent did not appear.  I directed the applicant’s counsel to file opening submissions and serve the same on the respondent, which he duly did.

14.  On the first day of the hearing on 23 May 2016, despite having been served with the applicant’s opening submissions, the respondent did not appear.  I proceeded with the assessment in the absence of the respondent. 

15.  The applicant and a co-worker Mr Wong Yup Pui (“Mr Wong”) gave evidence at the hearing.  They adopted their witness statements as their evidence-in-chief.  They also answered supplementary questions.  On the whole, I find them honest and truthful witnesses and I have no reason to doubt their evidence.  I accept their evidence in full.      

THE COMPENSATION CLAIMED

16.  In the present case, as the permanent partial incapacity of the applicant resulted from the Disease was due to “the nature of any employment in which the [applicant] was employed” within the meaning of s 32(1) of the Ordinance[1], pursuant to the same section, the provisions of the Ordinance apply, mutatis mutandis, to the applicant’s claim for compensation “as if such incapacity …… had been caused by an accident arising out of and in the course of employment”. 

17.  The applicant claims compensation under:-

(1) s 9 (for permanent partial incapacity);

(2) s 10 (for temporary incapacity or sick leave); and 

(3) s 10A (for payment of medical expenses).

18.  In order to assess the quantum of compensation under each of the above sections,  I need to determine the following issues:-

(1) The applicant’s monthly’s earnings at the time of contracting the Disease;

(2) The percentage of loss of earning capacity; and  

(3) The total periods of sick leave.

ISSUE 1: EARNINGS AT THE TIME OF CONTRACTING THE DISEASE   

19.  The applicant started working for the respondent as a pork handler on 10 February 2009.  There was no written employment contract between him and the respondent.  The employment agreement was made orally.  

20.  The upshot of the applicant’s evidence on this issue was as follows:-

(1) The applicant was paid $700 per day when he first started working for the respondent;

(2) Since about October 2009, due to shortage of manpower, the applicant’s daily wage was increased to $800 with the addition of a $30 lunch allowance;

(3) The applicant’s working hours with the respondent was from 6:00 am to 6:00 pm (12 hours);

(4) The applicant was entitled to 2.5 days of paid leave per month and he would typically be paid 29 to 30 days’ worth of wages;

(5) The applicant was paid wages by cash;

(6) On the basis that the applicant was paid 29 days’ worth of wages, the applicant’s average monthly earnings worked out at about $24,070 per month; and

(7) For the month preceding the contracting of the Disease, the applicant worked everyday in the month and therefore he was paid $25,730.

21.  S 11 of the Ordinance deals with the method of calculating earnings.  Subsection (1) provides two alternative methods for calculating the monthly earnings of an employee at the time of the injury, whichever calculation is more favourable to the employee:-

(1) the earnings for the month immediately preceding the date of the injury, under s 11(1)(a); or

(2) the average monthly earnings for the preceding 12 months, under s 11(1)(b).

22.  In this case, as the applicant had been employed by the respondent for over 12 months before contracting the Disease, his monthly earnings can be calculated under either s 11(1)(a) or s 11(1)(b), whichever calculation is more favourable to him.  The calculations under s 11(1)(a) and s 11(1)(b) will give monthly earnings of $25,730 and $24,070 respectively.

23.  Mr Leung, who appeared for the applicant, informed the court that the applicant would not pursue the claim under s 11(1)(b) but would be content to base his claim on the shorter period of 29 days’ worth of wages, ie, $24,070.  It appears to me to be a reasonable way of addressing the issue, not least because it is not entirely clear from the applicant’s evidence as to how many days’ worth of wages he was typically paid, whether it was 29, 30 or 31.

24.  In this case, although there is no documentary evidence supporting the applicant’s contention, I do not find that the applicant has exaggerated his daily wages or the number of days he worked.  I accept the applicant’s evidence that his daily wage was $800 with an addition of a $30 lunch allowance and that he would typically be paid 29 days’ worth of wages.  The applicant’s evidence is inherently credible or inherently consistent with the facts and circumstances:-

(1) The applicant had to work long hours from 6:00 am to 6:00 pm.  The applicant’s work was also physically demanding.  It is not unreasonable that the applicant was paid $800 a day.

(2) At trial, the applicant elaborated that one of the respondent’s main customers was a chain restaurant in Hong Kong called Crystal Jade La Mian Xiao Lon Bao, which have many outlets and opens 7 days a week.  Thus the applicant had to work almost every day of the month.  It is not unreasonable that the applicant was typically paid 29 days’ worth of wages.

25.  In all, I find that the applicant’s monthly earnings at the time of contracting the Disease to be $24,070.

ISSUE 2: SICK LEAVE PERIODS 

26.  The applicant’s total sick leave period as certified by the Board is set out in paragraph 4 above.  Apart from that the applicant was also granted additional sick leave of 25 days from 22 October 2012 to 15 November 2012.  See the Medical Certificate of Queen Elizabeth Hospital dated 22 October 2012 issued by Dr Chan Yu Tai.   

27.  In his report, Dr Chan opined that the total sick leave period certified by the Board (760 days) and the additional sick leave period from 22 October 2012 to 15 November 2012 (25 days) were appropriate for the applicant’s illness and disability.  On this basis, the total period of sick leave amounted to 785 days.

28.  S 10(2) provides, in pertinent part, that for the purposes of s  10, a period of absence from duty certified to be necessary by a registered medical practitioner shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

29.  S 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim.  The burden is on the employer to rebut the presumption: Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120 (CA) at para 28 per Lam V-P.  In the present case, the presumption has not been rebutted.

30.  As the total period of sick leave certified by the Board (760 days) has been supplanted by the additional period certified by a registered medical practitioner under the aforesaid Medical Certificate of Queen Elizabeth Hospital (25 days), the total sick leave period for the purpose calculating the s 10 compensation should be 785 days.

ISSUE 3: PERCENTAGE OF LOSS OF EARNING CAPACITY 

31.  In the absence of an appeal by the applicant or the respondent against a certificate of assessment issued by the Board, the content of the certificate issued under s 16H of the Ordinance[2] is conclusive evidence of the matters stated therein: Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413 (CA) at 419 G-H per Le Pichon J (as she then was); Lam Chi Biu v Mak Kee Ltd & Anor [2005] 3 HKC 15 (CA) at §11 per Le Pichon JA.

32.  In the present case, although the applicant had not appealed against the Certificate of Assessment, the respondent was granted leave to appeal against the same and did file an application appealing against the same.  But the respondent did not appear at the hearing of the assessment.  The question is whether this court is seized with jurisdiction to hear the respondent’s appeal notwithstanding that she was absent at the hearing.   

33.  In my judgment, this court is seized with jurisdiction to hear the respondent’s appeal against the Certificate of Assessment because:-

(1) Although the respondent was absent at the hearing, she has never filed any notice of discontinuance of her appeal against the Certificate of Assessment.  In the absence of a notice of discontinuance, this court cannot assume that the applicant has abandoned her appeal; and

(2) It was precisely because of the respondent’s appeal against the Certificate of Assessment that HH Judge Ko made the subsequent order dated 21 March 2014 for the filing of expert medical evidence, which the parties duly complied with.  To hold that this court is not seized of the matter would defeat the purpose of the order made by HH Judge Ko.      

34.  It is well established that where liability for employees’ compensation is disputed, the employee may lodge a claim for compensation under s18A of the Ordinance and that where the assessment is in dispute, this can be challenged by way of appeal under s 18.  The District Judge hearing the application for compensation can deal with the two issues together at the trial.  As the Court of Appeal observed in Ng Ming Cheong (supra) (at pp 418C-E per Le Pichon J, as she then was):-

“It is the clear intention of the legislation that the District Court is the forum to contest liability where this is disputed. It is also the forum to hear an appeal against the assessment of the Ordinary or Special Assessment Boards where either party is dissatisfied with it. Where liability is disputed, an employee may lodge a claim for compensation under section 18A of the Ordinance. Where the assessment is in dispute, this can be challenged by way of appeal under section 18. It can also be included in the section 18A proceedings by adding an appeal or application to appeal out of time against the assessment in the Application for compensation. If it is the employer who is not satisfied with the assessment, he can do the same in his Answer. If separate proceedings have been instituted for the determination of liability and assessment respectively, they can be consolidated. The District Judge hearing the Application for compensation can then deal with the two issues together at the trial.” [Emphasis provided.]

35.  The court’s power in an assessment of compensation and an appeal against a certificate of assessment is governed by s 18(3) of the Ordinance which provides:-

“On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.”

36.  In all these circumstances, I am satisfied that this court is seized of the respondent’s appeal against the Certificate of Assessment and can exercise the power conferred upon it by s 18(3) of the Ordinance.  I therefore proceed to consider the medical reports filed pursuant to the order of HH Judge Ko dated 21 March 2014.

37.  I set out below a summary of the medical findings of the two experts:-

Dr Lo Specialist in Otorhinolargyngology (ear, nose and throat)	Dr Chan Specialist in Medicine
Medical Findings
- The applicant’s left eardrum was intact and normal	- The applicant was assessed using the criteria for rating impairment of station, gait and movement disorders.  The impairment of the whole person is assessed to be 9%.
- Pure tone audiogram showed moderate to severe left sensorineural hearing loss and right deafness (pre-existing).	- he applicant’s right lower limb weakness is partly contributed by osteoarthritic changes of the right knee.
- Not uncommon to see sensorineural hearing loss associated with meningitis.	- The applicant’s difficulties in changing posture and squatting means that he will have difficulty in cutting up the meat on the floor.
- Applicant’s left hearing loss should be responsible for 13% impairment of the whole person, whereas dizziness and imbalance lead to 10% impairment of the whole person.  With reference to the combined values chart, left hearing loss and vestibular disorder lead to 22% impairment to the whole person.	- The fact that the applicant works and moves slower than a fully fit person means that the employer needs to be very tolerant and understanding.
- Video-nystagmography (VNG) showed bilateral horizontal semi-circular canal paresis, being an objective evidence of Vestibular disorder.	- The applicant is assessed to have suffered from 30% loss of earning capacity due to meningitis.
- Meningitis in September 2010 affected the applicant’s cochlear and vestibular functions.
- The applicant is assessed to have suffered from 22% loss of earning capacity due to meningitis.

38.  I do not see any overlapping between the assessments by Dr Lo and Dr Chan.  Dr Lo’s assessment was premised upon the applicant’s hearing loss and vestibular disorder, whereas Dr Chan’s assessment was premised upon the applicant’s station, gait and movement disorders.

39.  Loss of hearing is an injury specified in Sch 1 of the Ordinance.  In the case of loss of hearing of one ear, Sch 1 prescribes a 30% loss of earning capacity. In the present case, Dr Lo assessed the applicant as suffering from a loss of earning capacity of 22% arising from his loss of hearing of the left ear and vestibular disorder.  I accept Mr Leung’s submission that in giving this assessment, Dr Lo must have regard to the applicant’s residual hearing ability in his left ear.  It should be noted that Dr Lo assessed the applicant to have suffered from “moderate to severe sensorineural hearing loss” of the left ear, not total hearing loss of the left ear which is the basis of the 30% loss of earning capacity prescribed in Sch1.     

40.  On the other hand, station, gait and movement disorders are not injuries specified in Sch 1.  For assessment of non-scheduled injuries by medical experts, I am guided by Chan Yuet Keung v Harmony (International) Knitting Factory[2010] 5 HKLRD 599 where Bharwaney J observed (at para 58) that medical experts are familiar with Sch 1 of the Ordinance and the notes thereto and are adept at assessing the percentage of loss of earning capacity for non-scheduled cases and that those reports are admissible and of assistance to the District Court in assessing compensation for non-scheduled cases.

41.  I find Dr Chan’s assessment of loss of earning capacity of the applicant arising from station, gait and movement disorders to be of assistance to me in assessing compensation for the non-scheduled injuries suffered by the applicant.  Among other things, the Board only assessed the applicant as suffering from gait disorder whereas Dr Chan, after a comprehensive assessment which included physical examination and laboratory tests, assessed the applicant as also suffering from “slight difficulties in changing posture from sitting to standing and in changing directions”. 

42.  In all these circumstances, I accept the assessments by Dr Lo and Dr Chan that the applicant has suffered loss of earning capacity of 22% and 30% respectively, ie, a total of 52%.  I would substitute the Board’s assessment of 47% with 52% for loss of earning capacity.

COMPENSATION ASSESSED

Section 9 compensation

43.  The applicant was 58 at the time when he contracted the Disease.  The appropriate age multiplier, as fixed by s 7(1)(c) of the Ordinance, is 48.  I therefore award the applicant $600,787 ($24,070 x 48 x 52%) as compensation under s 9.

Section 10 compensation

44.  Under s 10, the applicant is entitled to compensation calculated “at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”

45.  Applying the monthly earnings of $24,070 to the total number of sick leave of 785 days, I award the applicant $496,963.06 ($24,070 x 12 ÷ 365 x 785 x 4/5) as compensation under s 10.

46.  As fairly accepted by Mr Leung, from this award the periodical or lump sum payment of $2,000 paid by the respondent to the applicant must be deducted, giving a net award of $494,963.06 as compensation under s 10. 

Section 10A compensation    

47.  The complete breakdown of all medical expenses has been set out in tabular form at B/520-521 of the Trial Bundles and the total works out as $7,694.  I am satisfied that they have been proved and so I award the applicant $7,694 as compensation under s 10A.

ORDER  

48.  I make the following orders:-

(1) That judgment be entered against the respondent in favour of the applicant for the following sums:-

(a) $600,787 as compensation under s 9

(b) $494,963.06 as compensation under s 10; and

(c) $7,694 as compensation under s 10A.

(2) That there shall be interest on these sums at half judgment rate from 13 September 2010 to the date of judgment, and thereafter at judgment rate until full payment.

(3) That there be a costs order nisi that the respondent do pay the applicant the costs of these proceedings.

(4) The costs order nisi will be made absolute 14 days from the date of the handing down of this judgment if no application is made to vary it.

(5) The applicant’s own costs are to be taxed in accordance with the Legal Aid regulations. 

49.  I thank Mr Leung for his assistance.