LI KAM PIU v. JARDINE AIR TERMINAL SERVICES LTD

DCEC11/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 11 OF 2003

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RULING

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1. The respondent applies under section 19(1) of the Employees' Compensation Ordinance for an order that the periodical payment payable by the respondent to the applicant be ended as from 28 April 2002, and under section 19(3) for an order that the respondent lodge in court the sum of $20,086.15.

2. The applicant had an accident arising out of and in the course of his employment with the respondent on 8 October 2001. He suffered an injury to his left heel. Liability is admitted. He was given sick leave certificates from 8 October 2001 to 28 April 2002. He went back to work on 30 April 2002, but apparently felt pain in the heel after working for four hours. He went to hospital and was given further sick leave. He is still in receipt of sick leave certificates.

3. On 19 September 2002, the respondent had the applicant examined by an orthopaedic surgeon, Dr. Johnson C. K. Lam. He gave his opinion that the pain suffered by the applicant was more likely to be related to a spinal problem, with and element of lumbar spondylosis or lateral stenosis, and was not related to the injury which the applicant had suffered on 8 October 2001.

4. On the basis of Dr. Lam's report the respondent now says that the sick leave granted after 28 April 2002 was granted in respect of symptoms not related to the accident. Therefore it should not have to pay periodical payments after that date. The respondent's liability to pay periodical payments under section 10 of the Ordinance will most likely be an issue for trial. Under section 19(3) the respondent may pay into court the amount by which it contends that the periodical payment should be diminished, to abide the decision of the court. The respondent says that the applicant has been paid his full salary and bonus, whilst on sick leave up to January 2003, amounting in total to $143,042.47. It calculates that the periodical payments under section 10 for the period covered by sick leave certificates, up to 25 February 2003, should be $160,670.01. Therefore the amount in dispute, which it now seeks to pay into court, is $20,086.15. Originally it was calculated at $77,538.54, the figure which appears on the summons.

5. The applicant was assessed by the Ordinary Assessment Board and a certificate in Form 7 was issued on 17 December 2002. The period of total temporary incapacity allowed was from 8 October 2001 to 28 April 2002 and from 30 April 2002 to 3 December 2002, a total period of 13 months and 25 days. The permanent loss of earning capacity was assessed at 2%. The applicant has applied for review; this is to be done on 1 May 2003. So far no appeal has been lodged against the certificate.

6. The respondent's argument is that under section 10, the respondent has an obligation to pay periodical payments while the applicant is receiving sick leave certificates from a medical practitioner. At present, he is receiving them from a general practitioner; but the orthopaedic expert says that the present symptoms are not related to the injury suffered in the accident. There is prejudice because the respondent is unlikely to be able to recover any overpayment. Further, the respondent having admitted liability cannot now file an Answer to deal with a dispute as to the causation of continuing incapacity. This summons is the only way to bring the matter before the court.

7. I asked the respondent's solicitor why, if the respondent considered that periodical payments were not payable because the incapacity did not result from the injury, it did not simply stop paying, and let the court decide the matter in due course. He said that the Labour Department had threatened the respondent with prosecution under section 10(10) unless a court order could be obtained.

8. The applicant's position is, quite simply, that a review of periodical payments under section 19 is only appropriate where those payments have been fixed by agreement between the parties or by order of the court. There is here no agreement, and no order. Therefore, the court has no jurisdiction to make the review sought here. The respondent, if it does not agree with the assessment of the Board should appeal it under section 18 and this can be dealt with at trial.

9. Section 19 of the Ordinance provides:

(1) Any periodical payment payable under this Ordinance either under agreement between the parties or under an order of the Court, may be reviewed by the Court on the application either of the employer or of the employee:

Provided that where the application for review is based on a change in the condition of the employee any such application shall be supported by a certificate of a medical practitioner.

(2) Subject to the provisions of this Ordinance, any periodical payment may, on review under this section, be continued, increased, diminished, converted to a lump sum, or ended. If the accident is found to have resulted in permanent incapacity, the provisions of section 7 or 9 shall apply, as the case may be.

(3) Where application is made by an employer under this section for any periodical payment to be ended or diminished and the application is supported by the certificate of a medical practitioner, the employer may pay into Court the periodical payment, or so much thereof as is equal to the amount by which he contends that the periodical payment should be diminished, to abide the decision of the Court made on a review under this section.

(4) In making a review under this section, the Court shall have regard only to the capacity for work of the employee as affected by the accident.

10. It is clear from section 19(1) that a review is only appropriate where periodical payment is paid either under agreement between the parties or under an order of the court. There is no order of the court here. There is no evidence of any specific agreement. There may be some agreement between the parties, in the contract of employment, under which the employee is paid full pay whilst on sick leave, and this may deal with the position with regard to periodical payments under the Ordinance, but there is no evidence on this point.

11. I do not think that the mere fact of payment and receipt thereof under section 10 implies an agreement. Section 10 (1) provides inter alia for a lump sum payment calculated according to the probable duration of incapacity and section 10(3) provides for agreement as to how the periodical payments are to be made. It seems to me that section 19 is intended to cover the situation where there is some agreement which needs to be altered because of a change of circumstances. If it had been intended to apply in all cases where there is payment under section 10, it would surely have said so.

12. Since there is no evidence of any agreement which I can review under section 19 it follows that the application thereunder is inappropriate. It seems to me that the proper course is for the respondent to appeal under section 18 against the assessment of the Board. If it considers that section 10 does not apply because the incapacity after 30 April 2002 does not result from the injury then it must decide whether or not it is justified in stopping payment. There may, as I have indicated, be other considerations arising out of the contract of employment. As to prosecution under section 10(10) for failure to pay without reasonable excuse it would no doubt be open to the respondent to rely on Dr. Lam's opinion in its defence, as showing that payment is not due under section 10 or, if it is due, as providing a reasonable excuse for non-payment.

13. The respondent's summons is accordingly dismissed, with costs to the applicant in any event. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.