TO TAT CHI v. LONG WING BUS CO LTD

DCEC353/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 353 OF 2004

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ASSESSMENT OF COMPENSATION

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1.  The applicant applies under the Employees’ Compensation Ordinance for compensation against the former employer.  Judgment  was obtained against the respondent employer on 23 September 2004.  The applicant now seeks an assessment of  compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282 (hereinafter referred to as “the Ordinance”).

2.  The applicant further seeks leave to extend the periodical payments period under section 10(5) of the Ordinance and appeals against the assessment made by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) under Form 9 on 6 October 2005 issued under section 18 of the Ordinance.

BACKGROUND

3.  The applicant was employed by Kowloon Motor Bus and later the respondent, which is a subsidiary of the Kowloon Motor Bus, as a bus driver on 21 April 1998.  There is no dispute that at the time of the accident on 17 June 2002 he was paid a monthly salary of $20,182.70. 

4.  At 11.05 am on 17 June 2002, when in the course of driving a double-decker bus, HU 413, the bus driven by the applicant collided with a taxi, registration number KE 5326, at the junction of Tsuen Wah Street and Tsuen Fu Street in Tsuen Wan.  As a result of the accident, the applicant sustained injuries to his head, neck, back and leg.

5.  At a review of the MAB, the board revised its earlier assessment of loss of earning capacity of the applicant, Mr To Tat-chi, from 10% to 10.5 % after taking into account the additional injury suffered by Mr To, namely “spasm on his lower limb and residual pain over head”. The reviewed certificate was issued on 6 October 2005, where his injuries were stated as,

“	Head, neck, back injuries resulting in:
	(1)	prolapsed intravertebral disc back pain, lower limb weakness, and spasm;
	(2)	post-traumatic stress disorder; and
	(3)	residual pain over head.”

6.  The Assessment Board further assessed the sick leave period certified to be from 17 June 2002 to 28 February 2005.

7.  The parties agreed the following matters: 

(a)	the applicant was born on 8 November 1966;
(b)	the average monthly earnings of the applicant was $20,182.70;
(c)	the medical expenses incurred by the applicant under section 10 was $4,710;
(d)	the total amount of periodical payments and reimbursement of medical expenses paid by the respondent to the applicant was $49,190.69.

The Issues in Dispute:

8. (a) under section 9, the applicant’s loss of earning capacity as a result of the injuries sustained; 

The applicant’s loss of earning capacity under section 9

Medical expert opinions 

9.  The applicant, Mr To, produced a medical report from an orthopaedic surgeon, Dr Au Ka-kau, dated 13 April 2005.  On the other hand, the respondent adduced evidence from the medical report of orthopaedic surgeon Dr Danny Tsoi, dated 21 October 2004.

10.  There is a further joint medical report agreed by the parties from Dr Peter Ho on behalf of the applicant and Dr Chung See-yuen on behalf of the respondent.  They examined the applicant jointly on 29 August 2005.

11.  Orthopaedically, both Drs Au and Tsoi agreed the applicant, Mr To, had reached maximum medical improvement from the injuries sustained by him. That he still suffered from lower back pain, prolapse in the intravertebral disc LC and L5, and he walked with the aid of a stick with his right foot externally rotated and dragging, he had tenderness over the lumbar region at L4 and L5 with tenderness and muscle guarding over right para-spinal muscles.  He had limited lumbar spinal movement, down pressure over his skull would cause increased back pain, passive rotation of shoulder and pelvis in the same plane caused increased back pain and general weakness over his right leg of grade 1 to 2, and a 90% decrease in sensation of his right leg from the right groin downwards (see Dr Au’s report on page 69 to 70 of the bundle).

12.  In Dr Tsoi’s opinion, the applicant’s back condition should be much better than he described because he could not find any medical explanation for the generalised pain and weakness of the whole right lower limb.

13.  Both Drs Au and Tsoi considered the applicant to be suitable to return to his previous job as a bus driver but with reduced efficiency due to the frequent rests he would need to take.

14.  Orthopaedically, Dr Tsoi assessed Mr To’s loss of earning capacity to be 5% while Dr Au assessed his loss of earning capacity to be 8%.

15.  It is apparent that even though the report was written jointly by the two psychiatrists, Drs Ho and Chung, they have reached very different conclusions on Mr To’s mental condition.

16.  Dr Chung assessed the applicant’s loss of earning capacity due to mental problem to be 3% while Dr Ho assessed that due to the orthopaedic and psychiatric factors Mr To’s loss of earning capacity to be 18%.  This can be seen at page 107 of the bundle.

17.  Both Drs Ho and Chung observed that the applicant, Mr To, was generally depressed though he no longer harboured any suicidal ideas as he did after the accident.  He was found to be indignant when he was examined by the two doctors and talked about the accident.  He viewed his inability to work in his previous job and his fear and anger in relation to buses primarily related to his physical disability, and he claimed he had to date not taken a bus since the accident.

18.  In Dr Ho’s opinion, in addition to the depression, the applicant suffered from a post-traumatic stress disorder in relation to the accident and some mild symptoms of post-concussional syndrome in relation to the head injury at the time of the accident. 

19.  Dr Ho considered that he is also likely suffering from some conversion - a disassociation disorder – with conversion symptoms arising from his depression and chronic stress.  This would explain the weakness to his right lower limb.  Dr Ho did not think that Mr To had grossly exaggerated or feigned his symptoms (see page 105 of the bundle).

20.  Dr Chung on the other hand, did not agree the applicant suffered from post-concussional syndrome because he did not find any mention of head injury or loss of consciousness when he was admitted into Yan Chai Hospital after the accident.  He was of the opinion that Mr To exaggerated his mental problems.

21.  He further disagreed with Dr Ho that Mr To suffered from conversion but accepted that the applicant’s anxiety and depressed mood had aggravated his painful condition.  He considered the applicant mentally fit to return to work as a bus driver and his anxiety complaint about bus or buses is treatable and could be overcome if he is motivated.

22.  He further considered Mr To’s main problems hampering his progress are litigation and unemployment.  In his opinion, Mr To’s mental condition had stabilised and treatments could be tailed off 6 months after the conclusion of litigation and his condition would further improve when he returned to work, these are the basis of his estimate of the loss of earning capacity of Mr To at 3% (see page 112 of the bundle).

23.  Dr Ho commented further on page 113 of the bundle that Dr Wong Yuk-ting of Tuen Mun Hospital had reported that he found Mr To upon physical examination had suffered swelling of the left maxilla region, which is part of the head.  Dr Ho explained that in some cases of post-concussional syndrome “(PCS)”, the injury to the head had also been suggested to be in the vestibular system of the inner ear near to the maxilla. Mr To had mentioned to the Accident and Emergency Department doctors at Tuen Mun Hospital that he had suffered head injury soon after the accident.  The impact, according to Dr Ho, of such a head injury could result in PCS even in cases of mild head injuries.

24.  He further commented on page 115 of the bundle that by conversion he implied that some or part of the physical symptoms could have a psychological basis and that chronic stresses are the likely factors, though minor symptoms could be magnified by emotional or personal factors, Dr Ho did not agree Mr To had portrayed a worse picture of his mental condition to the doctors because Mr To had denied he was suffering from mental illness.

ASSESSMENT

Loss of Earning Capacity

25.  I have seen and heard Mr To in court.  He did not seem to have much improved since the joint medical examination resulting in the joint medical report of Dr Chung and Dr Ho of 19 October 2005.  According to Dr Chung’s opinion, either Mr To is feigning or exaggerating his disability or mentally he believed his physical disability to be permanent because, according to the orthopaedic surgeons, Drs Au and Tsoi, he is physically and orthopaedically fit to return to work as a bus driver.

26.  Mr To appeared to me to be in the same state as the time Drs Chung and Ho examined him.  He was described as depressed, I find he seemed to be in a depressed state, and resigned to his disability although he expressed that he wanted to return to work and hoped to work as a cashier.  He expressed that he will not be a bus driver again.  He admitted he had no wish to take up jobs that offered less than or $4,000-odd per month.  I find this means he would return to work if the job is lucrative enough for him and thus would give him the motivation.

27.  It is possible that mentally he blamed the accident for his injuries, which explains his fear of getting into a bus again.  It is also possible that he is reluctant to return to a paid job because he could not find a job that pays as well as his previous job as a bus driver. 

28.  There seems to be, from what I observed, a reluctance in picking himself up and be retrained for other types of employment.  But then from the difficulties he demonstrated in walking even with the aid of a stick and the weakness he claimed he suffered on his right lower limb, which could possibly, as explained by Mr Ho and Dr Chung, be caused by his mental state rather than a reluctance of obtaining gainful employment.  In any event, it does not seem he had made any attempts to register for retraining for other types of employment.  He gave the excuse that he has to look after his 6-year-old son because his wife had separated from him.  This may be another factor for his depression.

29.  This present assessment does not involve or take into account his marital or family concerns.  An assessment under the Employees’ Compensation Ordinance is purely on the basis of the applicant’s physical and mental condition suffered as a result of the accident.

30.  I accept that Mr To’s mental condition had affected his physical conditions.  Whether it will improve depends on the willpower of Mr To.

31.  It is quite clear that the Medical Assessment Board did take into account Mr To’s head, neck and back injuries, his back pain, lower limb weakness and spasm, post-traumatic disorder, and residual pain over his head when it reviewed its former assessment of Mr To’s loss of earning capacity and increased it to 10.5%. 

32.  Miss Lau, counsel for Mr To, submitted that I should take into account the depression and PCS suffered by Mr To which, in Dr Ho’s opinion, Mr To is suffering or has suffered from, and these two factors were not considered by the Medical Assessment Board.

33.  After careful consideration of the condition of Mr To and the medical reports of all four doctors, I am prepared to allow the applicant’s appeal of the Medical Assessment Board’s 10.5% assessment of his loss of earning capacity.

34.  I would give an assessment of the loss of earning capacity orthopaedically to be 8% based on Dr Au’s assessment and 4% in addition due to the mental condition caused by the accident to include post-traumatic stress disorder, depression, post-concussional syndrome and conversion, making a total of 12% under this head.

Section 10(5) periodical payments for the period of 8 months beyond the initial 24 months from 17 June 2004 to 28 February 2005

35.  The Medical Assessment Board accepted the sick leave certificates issued by the Hospital Authority doctors who had been treating Mr To.  I can see no reason why this court should reject the sick leave certificates certified by the Hospital Authority doctors even though in the orthopaedic surgeon Dr Tsoi’s opinion, one year post-accident sick leave would be sufficient while Dr Chung considered mentally Mr To should have recovered within 3 months of the accident. 

36.  Dr Chung, however, considered that Mr To’s mental illness had been well-managed by the Hospital Authority doctors, and further considered in his report in October 2005 that a further 6 months’ treatment should follow and be tailed off after litigation completed. In his opinion, Mr To’s condition would further improve after he returns to work up to the date of the assessment. 

37.  Mr To has yet to return to work, he is still seeing a psychiatrist in the Hospital Authority every 3 months. The Hospital Authority doctors gave their last sick leave certificate certifying him suitable for sick leave until 28 February 2005.

38.  I would allow the periodical payments to be made beyond the 24 initial months after the accident for the 8 months requested, that is between 17 June 2004 to 28 February 2005, because I am convinced Mr To could not have returned to work in those 8 months and this has been supported by the sick leave certificates of the Hospital Authority doctors.

The Summary of Compensation

39. The compensation payable under section 9:

$20,182.70 x 96 x 12% = $232,504.70

40. Under section 10:

$20,182.70 x 988/30 days x 4/5 = $531,746.87 

41. Compensation under section 10A:

medical expenses agreed at $4,710.

42.  These three items add up to $768,961.57, less the periodical and medical payments of $449,190.69.  The sum total after deduction of payments is $319,770.88.

43.  I would allow interest under section 21(3) of the ordinance and I will leave counsel to work out the exact numbers for the interest.

44.  Costs to the applicant to be taxed if not agreed, with certificate for counsel.