CHAN TIT HUNG v. MAN KEE CONSTRUCTION ENGINEERING CO LTD AND OTHERS

DCEC 2315/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2315 OF 2015

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REASONS FOR DECISION

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A.　Introduction

1.  In these employees’ compensation proceedings, the applicant claims against the respondents for compensation under ss.9 (for permanent partial incapacity), 10 (for temporary incapacity) and 10A (for medical expenses) of the Employees’ Compensation Ordinance in relation to a back injury that he suffered in an alleged accident in the course of his employment by the respondents.

2.  In a Certificate of Review of Assessment by way of Form 9 (“Form 9”) issued by the Employees’ Compensation (Ordinary Assessment) Board, the Board assessed the applicant’s loss of earning capacity permanently caused by the injury at 7 percent.

3.  The applicant has filed an appeal against the Form 9 review assessment.

4.  For the purpose of the appeal, a Deputy Judge granted leave to the parties to obtain expert medical evidence in the fields of neurosurgery and psychiatry, and respective joint expert reports were also obtained and filed in these proceedings.

5.  The applicant wished the joint neurosurgeons to prepare a supplemental report in answer to the following questions that the applicant’s legally-aided solicitors drafted: -

Question 1:
“Is Mr Chan unable to return to his work as a bar bender due to his current disabilities which are partly (even to a small extent) due to the injury sustained in the accident on 21st November 2013 and partly (to a larger extent) due to the pre-existing conditions?”

Question 2:
“Is it that due to the pre-existing injury conditions, Mr Chan was in a vulnerable state that the injury arising from the accident caused him a longer (or much longer) period of convalescence than a normal person with no such pre-existing conditions and in such circumstances, the sick leave granted to him by the treating doctors is justified?”

6.  As a result of the respondents’ objection, the applicant hence issued a summons for the court’s determination and leave.

7.  After having heard from the parties’ counsel, Mr Simon Lam for the applicant and Mr Alfred Cheng for the respondents, I dismissed the applicant’s summons when I declined to grant leave to the applicant to put forward Question 1 and made no order on Question 2 upon it having been withdrawn at the hearing.

8.  These are the reasons for my decision for my refusal to grant leave for the adducing of medical evidence in relation to Question 1.  It is not in dispute that Question 1 is in relation to the applicant’s claim for s.9 compensation.

B.　The applicant suffered a pre-existing disease

9.  It is not in dispute that the applicant, according to the joint report (“Joint Report”) of the neurosurgeons, Dr Kan and Dr Woo (“Joint Experts”), was found to have suffered , apart from the back sprain injury^[1] (“subject injury”) he sustained in the alleged accident, a “pre-existing degenerative lumbosacral spine disease” (which the Joint Experts described as disc disease at the L4/5 level)^[2] (“pre-existing spinal problem”).

10.  For his problems relating to the back, the applicant altogether underwent two surgeries – a L4/5 disc “microdiscectomy” about 3 years before the alleged accident; and a second surgery to relieve the severe sciatica pain at his back about 2 months after the alleged accident. The Joint Experts believed that the subject injury had aggravated the pre-existing spinal problem and caused the said pain that required the second surgery.

11.  The second surgery was believed to have corrected the pre-existing spinal problem and provided satisfactory relief to the applicant’s symptoms. For the percentage of impairment of the whole person as well as the loss of earning capacity caused by the applicant’s residual back pain from the subject injury, the Joint Experts opine each to be 1 percent. For the subject injury the applicant suffered, according to the Joint Experts, the applicant should be able to resume his pre-injury job as a bar-bending worker.

C.　Correct approach for s.9 compensation involving pre-existing disease

12.  When a permanent incapacity is caused by a work-related injury and a pre-existing degenerative disease, the correct approach when assessing compensation for permanent incapacity can be found in the judgment of the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980. In that judgement, the Court of Final Appeal authoritatively decided that where an employee is injured in an accident at work resulting in a permanent incapacity, and that the work-related injury and the pre-existing disease were concurrent contributing causes to the employee’s incapacity, the court should not apportion the percentage loss of earning capacity to reflect the existence of a pre-existing disease as a concurrent cause of the employee’s incapacity: see [2006] 1 HKLRD 980 (at 983D to F, 984B to C and 992E).

13.  Counsel are in agreement that the approach stated in LKK should be applied to the applicant’s s.9 claim for compensation for the permanent partial incapacity. Accordingly, the applicant’s permanent incapacity should not be limited to an incapacity attributable solely to the subject injury.

D.　What further medical evidence the applicant wishes to obtain from Question 1

14.  Question 1 was badly drafted, and makes difficult reading. What the applicant wished to obtain from the Joint Experts, according to the applicant’s supporting affirmation as well as Mr Lam’s written and oral submissions, can be, according to my understanding, shortly stated as follows:

“Whether the combined result or disabilities of the applicant’s pre-existing spinal problem and the subject injury would render the applicant unable to return to his pre-accident job.”

15.  Since, it was submitted, the Joint Experts have not taken into account the pre-existing spinal problem when they stated in the Joint Report that the applicant was fit to return to his pre-accident job (see para 11 above), the Joint Experts should therefore be allowed to answer Question 1 by a supplemental report. Such further evidence, it was suggested, was relevant to the applicant’s reliance on the approach set out in LKK.

E.　The respondents’ opposition

16.  Mr Cheng, in opposing the summons, contented that Question 1 was irrelevant. It was argued that insofar as the s.9 compensation was concerned, the only live issue was the percentage of loss of earning capacity. Since, it was further suggested, the applicant has not pleaded that the loss of earning capacity should be assessed under s.9 (1A) involving a consideration of special circumstances, the evidence of whether the applicant was fit to return to his pre-accidental job was not relevant.

17.  In his further contentions, Mr Cheng suggested that Question 1 was in any event superfluous as the Joint Experts have already in the Joint Report alluded to the aggravation of the pre-existing degenerative spinal problem by the subject injury (see para 10 above). Hence, it was further suggested, the Joint Experts’ opinion was well within the ambit of the LKK principle.

F.　What is the relevant medical opinion

18.  In deciding what is the relevant medical evidence in assessing the percentage loss of earning capacity for the purpose of the s.9 compensation for permanent partial incapacity, it is instructive to refer to the statutory framework of assessing an injured employee’s loss of earning capacity under s.9 stated in the judgment of Bharwaney J in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2011] 1 HKC 463 (at 483A to E):

“[57] In cases of permanent partial incapacity, an assessment of the compensation payable for total permanent incapacity under s.7 must first be carried out to arrive at a base figure to which is applied the percentage of loss of earning capacity derived under s.9. That percentage is determined by reference to the First Schedule of the ECO which specifies percentages of loss of earning capacity for various injuries. Subject to the provisions of s.9(1A), which cater for cases with special circumstances, the specified percentage will be applied to the base figure to produce the amount of compensation payable for scheduled injuries. As Sir Owen Woodhouse said in Lau Ho Wah v Yau Chi Biu [1987] HKLR 1061:

“... the calculations provided by the Schedule are intended to reflect a general expectation based on average experience and so provide reasonably swift answers in terms of broad justice.”

[58] In cases of non-scheduled injuries, the assessment of loss of earning capacity, pursuant to s.9(1)(b) and the provisos of that sub-section, must reflect and be proportionate to the fixed statutory percentages provided for the scheduled injuries. Medical experts, particularly orthopaedic experts, are familiar with the First Schedule of the ECO and the Notes thereto and are adept at assessing the percentage of loss of earning capacity for non-scheduled cases and they regularly do so when preparing in their expert reports for employees' compensation cases. Those reports are admissible and of assistance to the District Court in assessing compensation for non-scheduled cases which do not require special treatment under the provisions of s.9(1A).”

19.  Plainly, therefore, the court’s task in cases of permanent partial incapacity under s.9 is to assess a percentage of the compensation which would have been payable in the case of permanent total incapacity (under s.7).  With the exception of the existence of special circumstances under sub-s.(1A), that require special treatment as Bharwaney J also pointed out in Chan Yuet Keung above, the medical opinion on the percentage of loss of earning capacity is helpful and admissible in employees’ compensation proceedings. 

20.  The further evidence which the applicant wished the Joint Experts to provide in Question 1 however was not on the percentage loss of earning capacity concurrently caused by the pre-existing spinal problem and the subject injury. Rather, the question sought to obtain medical evidence concerning the applicant’s prospect of returning to his pre-accident job, which, as Mr Cheng has rightly suggested, was not relevant to the consideration of the applicant’s s.9 claim.

21.  Mr Lam, in making his valiant effort to persuade this court that the question of the prospect of the applicant’s ability to return to his pre-accident job is relevant to the issue of the s.9 compensation, extracted passages from two unreported decisions of this court in relation to the assessment of s.9 compensation – Mushtaq Bilal v Sunrise Co & 2 Ors^[3] and Wong Kai Fun v Sun On Logistics Limited & Anor^[4].

22.  Mr Lam quoted a passage in Mushtaq Bilal (at para 67) in which I stated that when assessing the loss earning capacity, the court should take into account, apart from “medical opinion, other factual matters such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earning that he is capable of with his impairment and the earnings he would have been able to make but for his injuries”.

23.  In another passage Mr Lam quoted from Wong Kai Fun, I have stated in para 53 as follows when considering whether special circumstances existed to justify what has generally become known as the “Paper Mills Formula” propounded in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 as modified by Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168 in calculating a larger award for the claimant’s permanent partial incapacity:

“It may be more preferable for the court, when assessing the loss of earning capacity under s.9 (1) (b) of the Ordinance, to take into consideration all the circumstances, without perhaps the need to attach any label to the circumstances or being confined to those circumstances listed in s.9 (1A) of the Ordinance. Such circumstances may include the opinions of the medical experts, the injured employee’s injuries, his skills and qualifications, the level of the wages in the field of employment he is capable of doing and his pre-accident employment as well as the impact the injuries have on his earning ability.”

24.  By relying on these passages, Mr Lam submitted that the medical evidence on the question of whether the applicant was fit to return to his pre-accident job as a result of the combined pre-existing degenerative spinal problem and the subject injury should come within the ambit of “other factual matters” (as stated in Mushtaq Bilal) and “all the circumstances” (as stated in Wong Kai Fun).

25.  With due respect to Mr Lam, I consider that the passages Mr Lam has quoted from the aforesaid decisions of this court were taken out of context.  Nowhere in the passages that he quoted from either of these decisions did this court ever state that medical evidence on a claimant’s prospect of returning to a pre-accident job was a relevant “factor” or “circumstance”.  The question of whether the applicant is fit to return to his pre-accident job is plainly a matter for the court, having regard of course to the evidence of all factual matters and circumstances that I have listed in the passages Mr Lam cited in both the said decisions of this court.

26.  More importantly, in the case of Wong Kai Fun, one of my cases that Mr Lam referred to, I was required to determine an issue of whether there were special circumstances that justified the application of the “Paper Mills Formula” in assessing the claimant’s s.9 compensation.  Contrary to Wong Kai Fun, there have been no assertions having been made in the present case that the applicant’s s.9 compensation claim should be assessed with reference to any special circumstances. It is also noteworthy that in his affirmation in support of his summons, the applicant did not put forward the question of whether he was fit to return to his pre-accident job as a live issue. I am therefore unable to find any evidence or assertion in support of the relevancy of the proposed Question 1.

27.  For these reasons, I am of the view that the proposed Question 1 in seeking further medical evidence on whether or not the applicant could return to his pre-accident job is wholly irrelevant to the assessment of the applicant’s s.9 compensation.

G.　Alternative question

28.  What will be highly relevant, as the court in Chan Yuet Keung has stated, would be, applying the LKK approach, the medical opinion on the percentage of loss of earning capacity in relation to the combined effect of the applicant’s pre-existing spinal problem and the subject injury. Indeed, counsel were also in agreement that it was a relevant issue for the present case.

29.  This being the case, as the Joint Experts have clearly omitted to take into account the pre-existing spinal problem, but only limited their focus on the subject injury when giving their opinion on the percentage loss of earning capacity, further medical evidence to include the consideration of the pre-existing spinal problem is hence required.

30.  In the result, I considered that the question the respondents’ solicitors had earlier proposed in their correspondence exchanged with the applicant’s solicitors was a proper question and it should be allowed. Hence, after further amendment by counsel to the respondents’ proposed question, I allowed, with the consent of the parties, the following question to be sent to the Joint Experts for their opinion to be stated in a further supplemental report:

“Purely for the parties’ reference, please comment on the total percentage of the Applicant’s loss of earnings capacity in relation to the back condition caused by both his pre-existing back conditions and the subject accident. For that purpose, the parties refer the experts to the Form 9 issued on 30 November 2016.”

H.　Other matters

31.  According to the Joint Report, the applicant’s subject injury as well as the pre-existing spinal problem, both of which would be relevant for the assessment of the applicant’s s.9 compensation, should be in the medicine branch of orthopaedics rather than neurosurgery in which field the Joint Experts seem to be.  When I raised this matter with the parties at the hearing, I was informed that before making the joint application for expert directions, the respondents’ solicitors had in fact queried the appropriateness of instructing neurosurgeons as the joint experts. However, the applicant’s solicitors insisted in engaging neurosurgeons to be the appropriate experts on the ground that the applicant was reportedly never treated by any orthopaedic specialist in the government hospitals for his back-related problems.

32.  Since the evidence of the Joint Experts will fall to be considered at the trial of these proceedings and a Deputy Judge has earlier granted leave to the parties to engage the Joint Experts, I should not at this early stage without having had the benefit of all the evidence decide on the appropriateness of engaging neurosurgeons for the applicant’s back issues.  As a supplemental joint report will be prepared, I consider that any doubt as to the appropriateness of the field of the experts should be removed at this stage.   Should orthopaedic experts be found to be needed, appropriate expert directions should be sought as soon as possible. Hence, I further directed the parties to seek a confirmation from the Joint Experts by asking them to state in their supplemental medical report whether the opinion of orthopaedic experts should be sought to deal with the applicant’s back condition.

I.　Conclusion

33.  Upon the dismissal of the applicant’s summons, the court granted leave to the parties to adduce a further supplemental joint report from the Joint Experts to answer the following two questions: -

(1) Purely for the parties’ reference, please comment on the total percentage of the Applicant’s loss of earnings capacity in relation to the back condition caused by both his pre-existing back conditions and the subject accident. For that purpose, the parties refer the experts to the Form 9 issued on 30 November 2016.

(2) In light of the applicant’s back-related problem, whether the opinion of orthopaedic experts should be sought to deal with the applicant’s back condition.