TO YUN HO v. LI CHOI LIN t/a 梁記什貨

DCEC 1964/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1964 OF 2011

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IN THE MATTER OF AN APPLICATION BETWEEN:

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JUDGMENT

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1.  This is the Applicant’s application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”). She also appeals, pursuant to section 18 of the Ordinance, against the Certificate of Review of Assessment dated 4 July 2012 issued by the Employees’ Compensation (Ordinary Assessment) Board.

The applicant’s evidence

2.  On or about 16 October 2009, she was employed as a saleslady by the respondent who was running a business under the name of 梁記什貨in a market in shop numbers S72, S74, S75, S76 and S81 in a market situated in Tai Shing Street, Wong Tai Sin, Kowloon.

3.  On 30 December 2009, at or about 7:30 am, she was performing her duty to lift dried seafood onto an iron shelf at shop S72 for sale.  The iron shelf had 3 layers (the 1^st layer, the 2^nd layer and the bottom layer).  She was arranging the goods on the 2^nd layer.  She used her hands to lift a box of conpoy, which weighed about 20 catties.  She bent her waist towards the front, and slowly placed the box of conpoy onto the 2^nd layer.  Whilst she was doing so, she felt great pain and discomfort in her waist (“the Accident”).  She immediately notified Mr Lee (the respondent’s husband) who was at the site.  Mr Lee told her that she was not required on that day to move any goods.  She was only required to be responsible to do sales work, and then to see a doctor after work.  Her waist continued to be painful, and so she made a request to the respondent to have leave after the accident.  Because it was towards the end of the year, the shop’s business was good.  The respondent requested her to continue working, but she was not required to transport the goods.  The respondent only needed her to be responsible for doing sales work and cashier work. 

4.  After work on that day, she went to a bone-setter for treatment.  The treatment continued from 30 December 2009 to 6 January 2010, except 3 January 2010.

5.  Because of persistent pain at her waist, on 7 January 2010, she went to the Accident and Emergency Department of Kwong Wah Hospital for treatment.  She complained about having been injured at work on 30 December 2009. 

6.  Because of long time standing without proper resting, and because of long hours of working, the injuries at her waist did not improve.  So on 19 January 2010 she tendered her resignation to the respondent so that she could take a rest at home.  The respondent agreed, and paid the wages for that week.

7.  On 22 February 2010, the respondent rang her up, and requested her to attend her shop to discuss matters relating to her re-employment.  When she arrived at the shop, she re-employed her.  She asked the applicant to commence working on 23 February 2010.  The respondent made it clear to her that after re-employing her, she needed not do work relating to the moving of goods.

8.  On 7 August 2010, the respondent asked her to move several boxes of sea cucumbers in the shop.  The boxes were heavy.  Because of the injuries at her waist she could not do the work of moving goods.  So she told the respondent that she could not do the work.  Then the respondent dismissed her from her employment.

The respondent’s evidence

9.  She said that the applicant worked from early October, 2009 to 30 December 2009 (the first working period), and from 23 February 2010 to 7 August 2010 (the second working period).  The reason why the applicant left her employment in Leung Kee for the first working period is because she was not satisfied with the respondent’s moving the lunch hour ½ hour earlier.  So she had a dispute with the respondent and left.  The reason for her to leave employment in the 2^nd working period is that the respondent dismissed her, because of her working manners and taking leave frequently.

10.  On the day of the alleged Accident she requested the staff to take lunch half an hour earlier.  The applicant was not satisfied with this arrangement. After lunch, she had a dispute with the respondent.  At last she requested the applicant to leave employment immediately.  After receiving her wages, the applicant left.  From early 7 am to the time the applicant left, the respondent did not hear or see that the applicant injured her waist because of moving goods.  The applicant did not tell her that she had an accident or was injured.

11.  In relation to the time of the alleged Accident, she said that her employee “Sister Ming” was in Leung Kee.  On that day the applicant was to open the shop for her.  Sister Ming said that on that day, she did not see or hear that the applicant was injured when moving goods.

Analysis of the evidence

12.  It was recorded on the Medical Report for Employees’ Compensation issued by the Kwong Wah Hospital to the Occupational Medicine Unit as follows:-

“(a)      “History of injury at work: Yes: sprained back around one week before date of attendance.

Brief summary of clinical features and history:

Patient complained of back sprain which occurred around one week before the date of attendance.”

According to medical report (dated 13.12.2011) of Dr Yang Siu Ming, the applicant complained of back sprain sustained one week before attendance, with resulting persistent back pain. One 16 March, 2011 the applicant also complained to Dr Chan Lai Lok Julian about injury on her back at work on 30 December 2009.  These documents show that the applicant made contemporaneous complaints to the treating doctors in relation to her injuries.  In her submission the respondent’s Counsel did not make adverse comments on the contents of the medical documents.  The applicant instituted the present proceedings on 22^nd December, 2011.    So when she made the complaints, the present proceedings had not been instituted.  There was no motivation for the applicant to lie at that stage.  To do so there is nothing for her to gain. 

13.  In the joint experts’ medical report, it is considered that the applicant’s injuries and disabilities were likely to be caused by the Accident: -

“8.7 In view of the mechanism given, Madam To likely sustained back misculotendinus injury in the subject accident. As suggested by Dr. Chan that her back pain was likely triggered out by the subject accident.”

14.  The documents issued by the bone-setter Mr Chan Hoi Kwai (dated 2 January 2010 and 6 January 2010) stated that the part of the applicant’s spine suffered injuries from spraining.  This is consistent with her version as to how the Accident happened.

15.  The applicant asked receipts from the bone-setter, but kept them to herself, without disclosing them to the respondent.  If she had intended to make up a story about her injuries, namely, that she was injured whilst working for the respondent, she would certainly have shown the receipts to the respondent and then asked for sick leave.  She had not do so.  The fact that she did not use of the said receipts shows that she did not make up a story about her injuries.

16.  The respondent said that on 30 December 2009, the applicant helped her set up the shop.  She also helped her put boxes of dried good onto the racks. But it is not mentioned in the witness statement about the latter.

17.  She said that on that day she asked the employees doing the early shift to take lunch half an hour earlier.  The applicant was not satisfied with this.  So after lunch she returned to Leung Kee and argued with her.  This is somewhat incredible.  If she was not satisfied, it would be natural for her to argue the matter with the respondent there and then, and not after afterwards. 

18.  It is not disputable that the applicant was the respondent’s employee on 30 December 2009.  But the respondent chose to declare in her Form 2 that the applicant was not her employee on 30 December 2009.  This reflects that she would deny the obvious.  She was writing something down in Form 2 which was not truthful.

19.  She asserted that her husband (Mr Lee) did work regularly on every Sunday.  That is why the applicant did not need to work on Sundays.  But according to paragraph 22 of her witness statement, after she had dismissed the applicant for the first time, then she asked Mr Lee to work in Leung Kee, and not to work at construction sites.  Before that he generally would not work in Leung Kee.  This is  contradictory to the evidence of Mr Lee.  Mr Lee’s evidence is that he was not present at the shop at the material time, as he rarely gave assistance to the shop.  He would only provide assistance to the respondent on Sundays occasionally, when the shop was busy, and when he was not tired.  30 December 2009 was not a Sunday.  I reject the respondent’s evidence in this respect.

20.  I find that the applicant’s version is credible.  Her version is consistent with the complaints she made to the doctors of Kwong Wah Hospital.  The joint experts’ medical report also supports her case.  I find that she was injured whilst at work for the respondent on 30 December 2009.

Pre-accident monthly income

21.  Prior to the accident, she worked for 30 to 31 days per month.  The respondent asserted that the applicant only for 22 days a month.  The applicant agreed that she had occasional sick leave prior to the accident.  But there is no evidence as to the number of days per month for the sick leave.  The respondent has not adduced the number of days for which the applicant sought for sick leave.  The number of days for sick leave would therefore be minimal.

22.  It is the applicant’s evidence that she recorded her attendance on a calendar.  Her daughter compiled the attendance record with reference to the calendar.  Then she cross-checked the attendance record.  She confirmed in her evidence the accuracy of the attendance record.  I accept her evidence in this respect.

23.  The applicant’s pre-accident monthly earnings (excluding lunch hour) would be $8,250 ($25 x 11 x 30).

Loss of earning capacity

24.  By a notice dated 29 November 2012, the applicant appeal against the certificate of review of assessment dated 4 July 2012 issued by the Employees’ Compensation (Ordinary Assessment) Board.  The loss of earning capacity reviewed by the Ordinary Assessment Board is 5%.

25.  On 7 January 2013, Dr Chan Sai Keung and Dr Wong See Hor jointly complied a joint medical report.  They interviewed and examined the applicant on 22 November 2012.  Dr Chan assessed her loss of earning capacity to be 3% whilst Dr Wong assessed her loss of earning capacity to be 1%.  The respondent submitted that it should not be more than 3%.

26.  By appealing against this assessment (on review) the applicant must have intended to say that the assessment of 5% of loss of earning capacity is wrong.  A higher percentage should be given.  But ironically in his submission, the applicant’s counsel upholds this 5%.  By defending the assessment of 5%, the applicant is practically abandoning her appeal in this regard.

27.  In my judgment, the Board comprise of a panel of experts, who are totally independent, and have no interest in the outcome of these proceedings. I attach weight to its assessment.  I dismiss the applicant’s appeal.

28.  The compensation under section 9 should be $29,700 ($8,250  x 72 x 5%).

Section 10 compensation

29.  Dr Chan says that the applicant’s sick leave should be 6 months, whilst Dr Wong opines that her sick leave should be 3 to 6 months.  After stop working for the respondent on 19 January 2010, the applicant started working for another employer in the same market doing similar job.  On 23 February 2010, she worked for the respondent again.  During the first 3 to 6 months usual sick leave for recovery after the accident, the applicant had continued with her employment as a saleslady.  But during this period she was still suffering from temporary incapacity.  This is reflected from the fact that in February 2010, she received her first round of physiotherapy.  The period of 6 months sick leave is reasonable.  However, credit should be given to her earnings as evidence in the attendance record.  For the period between 23 February 2010 and 29 June 2010, she received a total of $33,100.  Thus compensation pursuant to section 10 should be: $6,500 ($8,250 x 6 x 4/5 - $33,100).

Section 10A compensation

30.  The parties agree that the amount under this head is $11,390.

The total award

31.  The total compensation payable is $47,590 ($29,700 + $6,500 + $11,390).

32.  I order that the respondent do pay, within 14 days from today, the sum of $47,590 to the applicant thereon, with interests : interests on the sum of $47,590, commencing from 30 December 2009 to 9 December 2013 be at 50% judgment rate; interests on the sum of $47,590 be at judgment rate, commencing from 10 December 2013 until satisfaction.

Costs

33.  I make an order nisi for costs, to be made absolute in 14 days’ time, that the respondent do pay costs of these proceedings to the applicant, to be taxed, if not agreed, with certificate for Counsel.  The applicant’s own costs to be taxed in accordance with Legal Aid Regulations.