DCEC 713/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 713 OF 2009

____________

IN THE MATTER OF AN APPLICATION

____________

ASSESSMENT OF COMPENSATION

1.  For injury at work on 12 July 2007, Tsang (the Applicant) claims compensation against his employer, Shing Kee (the 1^st Respondent) and the principal contractor, Hung Kee (the 2^nd Respondent), pursuant to the Employees’ Compensation Ordinance, Cap.282.

2.  Shing Kee and Hung Kee consented to judgment on liability with costs on 7 September 2009.  This is to assess the compensation.

The accident, injury and treatment

3.  On the day in question, Tsang was a casual plumber employed by Shing Kee working in a building at Shing Tak Street, Kowloon City.  Hung Kee was the principal contractor of the site. In the course of using a portable grinder-cum-saw provided by Shing Kee to cut a steel bar, the blade rebounded towards Tsang’s face.  Tsang jerked his head backwards but failed to avoid the blade.

4.  Despite an apparently different description of how the accident happened in Form 2 filed by Hung Kee, there is no real dispute in this respect; and Mr Jim for both Respondents also adopted the above description of the accident in his submission.

5.  After the accident, Tsang was sent to Kwong Wah Hospital.  There was a deep laceration measuring 11 cm in length on the left face of Tsang from the medial eyebrow down to the lower lip.  There was no other injury to the other parts of the body.  The open wound was explored under local anaesthesia.

6.  Tsang complained about headache.  CT scan showed fracture of the nasal bone but no intracranial haemorrhage, fracture or hydrocephalus.  Nor was there neurological problem or injury to the eye.

7.  Tsang also complained about neck pain.  X-ray showed cervical spondylosis.  He was given physiotherapy for the neck pain.

8.  The facial stitches were removed 7 days later.  Another 2 days later, Tsang was discharged from the hospital.

9.  Tsang was followed up by the surgery and the orthopaedic departments of the hospital.  He had been given physiotherapy until mid-April 2008 when his progress became static.  When the surgery department of the hospital saw Tsang in mid-August 2008, the facial scar had healed well and his eyelid function was normal.  The next follow up was a year later.

10.  Tsang has also been referred to the psychiatry department of the hospital where he was diagnosed to suffer from adjustment disorder.  In early September 2008, Tsang started to consult the mental health centre of Castle Peak Hospital where the diagnosis was revised from adjustment disorder to post-traumatic stress disorder.

11.  The orthopaedic department of Kwong Wah Hospital gave Tsang sick leave up to 5 September 2008. This was followed by sick leave from Castle Peak Hospital until 4 December 2008.  Sick leave from the neurosurgery department was given from 11 December 2008 onwards.  Tsang’s sick leave continued until late June this year, reaching a total period in excess of 1,000 days.

Tsang’s evidence

12.  At the time of the accident, Tsang was 42 years old and had been a plumber for 20 years.  In his statement dated October 2009, Tsang still complained about multiple symptoms, including:

(1)  frequent headache and dizziness;

(2)  numbness in the left forehead;

(3)  poor concentration;

(4)  headache and dizziness after thinking, concentrating, listening noises;

(5)  neck pain;

(6)  no strength and numbness in the left arm;

(7)  poor sight in the left eye;

(8)  persistent insomnia;

(9)  bad temper; and

(10)  frequent flashback of the accident.

13.  Due to the multiple symptoms mentioned above, he claims to be unable to return to his pre-accident job.  The fact was that he has remained jobless since the accident.

Medical expert opinion

14.  Medical expert evidence in various disciplines was adduced, including that from the orthopaedic, neurological and psychiatric experts as well as plastic surgeon.

Plastic surgeon

15.  The parties jointly instructed Dr Otto Au to examine Tsang on 23 November 2009.  Dr Au produced his report dated 12 December 2009.  The doctor observed a long scar extending from Tsang’s left medial eye brow crossing downward to include his left upper eyelid, left cheek and left upper lip.  Photographs of the scar on the face of Tsang taken at the time were annexed to the report.

16.  The doctor said much in his report, which I will further refer to below.  At this juncture, it suffices to distil from the report what the doctor was in a position to say.  He opined that the cosmetic impairment as a result of the scar amounts to 2% of the whole person.

Neurological

17.  Tsang was examined by neurological experts, Dr David Chin and Dr Edmund Woo on 26 November 2009.  They produced their joint report dated 5 December 2009.

18.  The experts conducted various tests including the mental state examination.  They noted that Tsang did not have any head injury as a result of the accident.  He had no loss of consciousness or post-traumatic amnesia.  Nor was there radiological evidence of any parenchymal brain damage.  He had no neurological disability or impairment.

19.  The experts agreed that the sick leave and treatment from the neurological perspective were appropriate.  No further treatment or regular evaluation would be necessary.  From the neurological perspective, Tsang should be able to return to his pre-accident job with no loss of earning capacity.

Orthopaedic

20.  Tsang was examined by Dr Johnson Lam and Dr Arthur Chiang in December 2009.  The two orthopaedic experts produced their joint report dated 27 December 2009.

21.  The experts noted the lapse of time before the record of Tsang’s complaint about neck pain.  However they agreed that this could be because of the mild degree, the pain could be un-noticed at the early stage.  They agreed that the neck condition is consistent with the mechanism of injury in the accident.

22.  Based on the medical records and findings during the examination, the experts confirmed the diagnosis of soft tissue injury to the neck.  However the degree should not be too severe.

23.  The experts also agreed that the treatment was appropriate and further treatment would not be necessary.  Though Tsang still complained about persistent neck pain, objective examination revealed no muscle wasting.  There was subjective complaint about numbness involving the left upper limb; but objective examination suggested that the area of alleged numbness did not correspond to any dermatomal or neural distribution.  Some residual neck pain was probable but the degree should be mild.  There was no neurological deficit either.  The prognosis for the neck injury is good.  Permanent impairment of the whole person from the orthopaedic perspective is 1 to 2 %.

24.  In practical terms, the experts believed that activities that cause severe stress to Tsang’s neck (e.g., frequent flexion or extension) may cause discomfort or even pain to the neck.  But the overall effect should be mild.  Tsang should be independent in activities of daily living.

25.  The experts recorded the job description and physical demand of his pre-accident job according to Tsang as well as the findings of the occupational therapist.  The experts agreed that considering his neck injury, Tsang should be able to return to his pre-accident job with reduced capacity.  Dr Chiang opined that such reduction in capacity would likely to be very mild.  Dr Lam suggested that as an alternative, Tsang should be able to work in other jobs requiring light to medium physical demand on the neck, such as salesman and watchman.

26.  Dr Lam opined that the sick leave given by Tsang’s treating doctors was appropriate.  Dr Chiang opined that sick leave given by the orthopaedic specialist clinic up to 5 September 2008 was appropriate.

Psychiatric

27.  Tsang was examined by Dr Benjamin Lai in January 2010.  The doctor gave his psychiatric expert report dated 11 February 2010.

28.  Dr Lai noted from the government hospital medical reports that Tsang developed psychiatric symptoms including insomnia, headache, irritability, anxiety, low mood and poor concentration after the accident.  During the examination, similar symptoms were found.  Dr Lai explained that these were symptoms in response to stressors including the accident, the associated physical disabilities, the inability to resume working and the financial issue.

29.  Dr Lai disagreed with the government psychiatrist who last categorised Tsang’s case as one of post-traumatic stress disorder.  He opined that Tsang’s clinical features only satisfy the diagnostic criteria of adjustment disorder with mixed anxiety and depressed mood under the DSM-IV classification system.

30.  Tsang is currently suffering from a mild degree of psychiatric symptoms and the side effects of medication. Dr Lai advised a further course of psychiatric treatment for a year and the medication could cease ultimately.  Continuing psychiatric treatment and persistent side effect of medication were not expected.  5 to 6 sessions of psychological treatment were also recommended.

31.  Dr Lai opined that if the physical disabilities are of a less degree, the stressors would have less impact on Tsang.  Tsang should also have a less degree of depressed mood and associated symptoms.  Based on Tsang’s normal pre-morbid personality, absence of vulnerability factor to the development of psychiatric illness and the mild degree of physical disability, the doctor opined that Tsang would likely suffer only mild residual psychiatric symptoms after the further treatment recommended.

32.  Tsang’s permanent disability due to his psychiatric condition is likely to be in the mild range. His levels of impairment are likely to be compatible with most useful functioning. Mentally Tsang has no problem in self care and is independent in activities of daily living.  He may continue to have some anxiety and apprehension of further accident.  Further psychiatric treatment than what was recommended above is not expected.

33.  The severity of permanent psychiatric impairment falls in the range of 4 to 6% of the whole person.  Mentally Lai is believed to be capable of resuming his pre-accident work with possibility of impairment of his work tolerance and efficiency.

34.  The government psychiatrist had given sick leave to Tsang for 3 months from 5 September 2008. Dr Lai opined that sick leave for 6 to 12 months from that date would have been reasonable.

Loss of earning capacity

35.  Tsang claimed that his pre-accident job required him to transport, install and dismantle single-handedly various kinds of pipes and accessories.  They were heavy with most of them over 60 lbs and some up to 200 lbs each.  He was also required to work at height and therefore he had to climb scaffold and ladder at work. According to him, he has become unable to meet these job demands.

36.  Mr Jim suggested that it is against common sense to expect that a plumber would and could transport a 200-lb pipe manually and single-handedly.  In court, Tsang was reluctant to accept such suggestion.

37.  According to Chan of Shing Kee, a plumber could not transport a pipe weighing so much single-handedly. The plumber had to have help or to use a pulley or a rope for transporting the pipe vertically.  However, he did not deny the possibility that for work in building consisting of 2 to 3 storeys, pulley might not be installed, considering the time, progress and cost.  Chan did not claim to be able to tell the practice of the other employers.  He agreed also that in the process of aligning the sections of the pipe during installation, plumbers had to somehow manually hold the pipe.

38.  Considering the evidence of Tsang and Chan, whilst I believe Tsang somehow exaggerated the extent to which he was required to transport and to install pipes and accessories at the weight alleged, I am prepared to accept that his pre-accident work did involve a certain amount of heavy manual labour.

39.  Is Tsang unable to meet such physical demands of his pre-accident job?  Mr Sham referred to the orthopaedic experts’ opinion that Tsang could handle most of his pre-accident duties.  He submitted that Tsang is therefore unable to perform his full duties as a plumber.  He also referred to the orthopaedic experts’ conclusion that Tsang should be able to return to his pre-accident job but with reduced capacity.  He cited Khan Amar v Cheung Ying Construction Engineering Limited & Anor, CACV 153/2006 (5 June 2007) in support.

40.  Khan Amar was a personal injury case.  The plaintiff there was a construction site worker.  The medical expert report in that case stated that the plaintiff there should be able to return to his pre-accident job as a construction site worker but with reduction in efficiency at work.  Light to moderate manual work was also recommended as alternative.  The Court of Appeal held that “with reduction in efficiency at work” meant that whilst the plaintiff might be able to work in some capacity on a construction site, he was not as able as a worker as before his accident.

41.  Mr Sham stressed that one should not loose sight of the physical demand of the pre-accident job.  He is right; and I think that explains the decision of the Court of Appeal in Khan Amar.  In that case, it was essential to consider not merely whether the plaintiff was able to work in some capacity in a construction site, but more particularly whether he was in a position to return to the type of more physically demanding work that he had been doing prior to the accident (see paras.51-53 of the judgment).  I do not propose to differ from that approach in the present case.

42.  Were the orthopaedic experts in the present case aware of the physical demand of Tsang’s pre-accident work as a plumber?  I think so.  They agreed that Tsang should be able to return to his pre-accident job with mild reduction in capacity.  In coming to such a conclusion, they had referred to the occupational therapist report which was dated 9 October 2009.  In both reports, the particulars of the physical demand of the work that Tsang had been doing prior to the accident were noted.

43.  The occupational therapist too recorded Tsang’s subjective complaint about persistent pain over multiple sites including his neck and numbness of the left upper limb.  He complained of neck pain when extending or turning his head.  He projected poor grip power and lifting capacity of his left arm.  He also reported low sitting and walking tolerance.

44.  In May 2008, the occupational therapist found no obvious limitation on the movement ranges of his neck and four limbs, despite Tsang’s complaint.  In June 2008, Tsang felt no subjective improvement; but objective assessment revealed improved strength of his left arm and good control of neck and four limbs.  His attendance and level of participation in occupational therapy was said to be poor in June and July 2008; and Tsang even defaulted in attending treatment since 22 July 2008.

45.  Reading the occupational therapist report and the joint orthopaedic expert report together, one can easily see the discrepancy between the subjective complaint of Tsang about his disability and the objective assessment.  In particular, the complaint about the left upper limb weakness, which was said to limit his capacity to handle the heavy duties and tools in his pre-accident work, was basically not substantiated by objective findings.

46.  As mentioned above, the orthopaedic experts agreed that activities that cause severe stress to the neck may cause discomfort or even pain.  By those, the experts were specifically referring to frequent flexion or extension of the neck.  In saying that Tsang should be able to handle most of the duties as a plumber, the exception that the experts specified was the very occasional demand of carrying 200 lb by one person over the shoulder.  Though it was not strictly up to them to say, the experts could not help expressing reservation about how reasonable such exception would be. I hold the same view.

47.  Unlike what happened in Amar Khan or what Mr Sham suggested, the occupational therapist and the experts in the present case did appreciate the physical demand peculiar to Tsang’s pre-accident work when they gave their opinion.  I give full weight to such evidence.

48.  In court, Tsang disagreed with the orthopaedic and psychiatric expert opinion when it came to the question of whether he should be able to return to his pre-accident work. When asked, he explained that he wanted to be cured before finding any work. By that, he meant at least when he would feel less frequent headache.  At one point, he seemed to suggest that a recent scan revealed something in his brain.

49.  There is no medical evidence in support of Tsang’s alleged inability to work at all as a result of the alleged headache.  In fact, according to him, he has received during his follow up at the hospital over the past 2 years was nothing more than prescription of vitamin, sleeping pill and painkillers.

50.  Considering all the evidence, I reject the suggestion that Tsang is not capable of returning to his pre-accident job.

51.  Before moving on to another topic, I need to say something about the expert report of Dr Au, the plastic surgeon, in the present case.  The doctor did not confine himself to expressing his opinion on the cosmetic condition of Tsang and its impact, if any, on Tsang’s daily life and working capacity.  Instead, the doctor made findings on the other physical and psychological conditions as well as their causative link to the accident.  The doctor went further to recommend further treatment on such basis.

52.  The doctor also expressed his opinion on Tsang’s working capacity: Tsang should be able to perform light office work or any work which would not require much manual labour or in an environment without excessive noise.  In quantitative terms, he doctor assessed the loss of earning capacity to be 8%.  Tsang’s ability to handle manual labour and to tolerate noise can hardly be associated with his cosmetic condition.  Obviously, it was really his observation about Tsang’s physical and psychological condition.

53.  It matters not whether the doctor sought to be comprehensive, if he is not in a position to give opinion evidence other than from a plastic surgeon’s perspective.  I place no weight on such opinion, insofar as the same falls into the disciplines of the other relevant experts in the present case.

54.  Seeing Tsang in court, I find that the scar on his face is barely visible.  Considering Tsang’s age and work background, I am not convinced that any such cosmetic impairment has any impact on his working capacity at all.

Pre-accident income

55.  The daily wage rate of HK$700 is agreed.  But there is serious dispute as to the number of working days.  Tsang claims on average 24 working days in a month whereas it was suggested on behalf of Shing Kee and Hung Kee that Tsang used to work on average 6 to 7 days per month.

56.  Pursuant to section 11(1), the monthly earnings of an employee at the time of the accident shall be those for the month immediately preceding the date of the accident; or the rates per month at which the employee was remunerated during the previous 12 months or any lesser period, whichever calculation is more favourable to the employee.

57.  By the time of the accident, Tsang had worked at the building in question for 6 days.  Shing Kee had employed Tsang for about a week on a previous occasion a year ago.  Nevertheless Mr Sham suggested that section 11(1) might still apply in the case of Tsang.  I do not agree.  Both subsections of the section apply in case the employee was employed during the relevant period by the same employer being sued.  The same is true in respect of subsections (1A) and (1B), which Mr Sham also relied on.

58.  Due to shortness of the time during which Tsang had worked for Chan, it is impracticable to compute the rate of remuneration of Tsang at the date of accident by reference to section 11(1) of the Ordinance.  Section 11(2) provides that in such case:

“…… regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.” [Emphasis added]

59.  For a person who has worked in the same field in Hong Kong for the past 20 years before the accident, Tsang himself could also be such a person for the purpose of the last limb of section 11(2).  The disputes lies in what Tsang used to earn on average during the last 12 months from his job as a plumber.

60.  Mr Jim highlighted the lack of documentary proof in this respect from Tsang.  This is true.  However, Mr Jim went on to submit that the pre-accident monthly income should be calculated by finding essentially the average monthly amount of deposit in Tsang’s bank account.  He said the result came down to about 6 days of work or HK$4,200 per month.

61.  Such calculation is bound to be wrong.  It is simply not established that Tsang used to deposit all, if any, of his earnings into the account.  Even the entries in the bank passbook tend to show the contrary.  It could be seen that the intervals between deposits in the bank account were often for months, sometimes over half a year.  It is beyond imagination that Tsang had no work or earnings whatsoever during those periods.

62.  His statement contains not much detail of his pre-accident income.  In court, he said he was paid cash and seldom banked them in.  He normally started to find work before the current job was completed.  He was rarely out of work for an entire month or any long time.  Prior to working for Shing Kee, he had worked for other employers for almost a month at Po Lam Chuen, Tseung Kwan O, and for 12 to 14 days in a site at Pik Uk.  Tsang also mentioned, for the first time, that occasionally he had contracted work on his own.  But this happened only once or twice a year.

63.  Chan of Shing Kee told from his experience that there would be days on which the plumbers might have to stop work to accommodate the other work on site.  Having said that, he agreed that all being taken into account, 22 to 23 working days would be a reasonable average per month.

64.  Chan of Hung Kee gave evidence.  He had no personal knowledge about the terms of employment between Shing Kee and Tsang.  But it was his firm that filed Form 2.  After the form was first filed, the Labour Department apparently requested Hung Kee to provide the missing information about the average number of working days per month of Tsang.  Hung Kee indeed did so and reported 22 days in their second form.

65.  In court, Chan of Hung Kee accepted that it was his staff who filed the forms.  When asked whether he believed that his firm managed to provide such information only after some enquiry made with Shing Kee, he answered in the affirmative.  Though Chan of Shing Kee was not really examined on this when he gave evidence, I see no basis for Hung Kee to make up a number on their own in their answer to the specific enquiry by the Department.

66.  This was followed by Tsang’s notice of request for work injury compensation in 2008 and 2009.  According to Tsang, he filled in the notice on the basis of the information that the Department had received and hence average 22 working days per month and monthly income of HK$15,400.

67.  Considering the available evidence and seeing the witnesses testify, I find that the average number of working days per month was 22; and hence the average monthly income was HK$15,400, for the purpose of section 11(2) of the Ordinance in the present case.  In his submission, Mr Sham was apparently prepared to accept this as his bottom line.

Section 9 compensation

68.  Tsang has never been assessed by the Employees’ Compensation (Ordinary) Assessment Board.

69.  Mr Sham submitted that special circumstances exist in the present case that warrants the application of the formula in The Hong Kong Paper Mills formula in assessing the loss of earning capacity.  On this basis, he submitted that the loss is almost 60%.  In view of the discussion of the loss of earning above, the basis for this proposition necessarily falls away.

70.  In his submission, Mr Sham also suggested that the bottom line of the loss of earning capacity in the present case should be 13% to 16%.  This is effectively the aggregate of the percentage loss assessed by the various medical experts, namely, 8% by Dr Au; 4-6% by Dr Lai; and 1-2% by Dr Lam and Dr Chiang.  Mr Jim also referred to such quantitative assessment and suggested 5%.

71.  I remind myself of the need to approach these percentages with caution, even if they are admissible evidence.  As discussed above, I do not accept that Tsang suffers any loss of earning capacity as a result of his cosmetic impairment.  So goes the percentage assessed by Dr Au in any event.  At the end, I think 7% should fairly reflect the loss of earning capacity suffered by Tsang.

72.  The section 9 compensation will be: HK$15,400 x 72 x 7% = HK$77,616.

Section 10 compensation

73.  Tsang has been given sick leave by Kwong Wah Hospital since the accident in July 2007 up to late June this year, amounting to over 1,000 days.  Sick leave given up to 5 September 2008 was given in respect of his neck pain.

74.  Since September 2008, Tsang has attended psychiatric consultation at the Castle Peak Hospital.  Sick leave for his psychiatric condition was given up to early December 2008.  He could not continue his sick leave but had to go to Tuen Mun Hospital, where he was given 1 day of sick leave for his neck pain.

75.  A week later, he started to obtain sick leave in respect of his neurological problem until January this year.  The rest of the sick leave until late June this year was given in respect of his psychiatric condition.

76.  According to Dr Chiang, the sick leave in respect of the orthopaedic aspect of Tsang’s condition up to 5 September 2008 was reasonable.  The orthopaedic experts found no neurological deficit in Tsang.  Both neurological experts opined that Tsang suffered from no neurological impairment and did not endorse the sick leave given by the neurosurgery department of the hospital.  However, the experts suspected that Tsang was affected by his psychiatric symptoms; and the psychiatric expert did opine that sick leave of 6 to 12 months from early September 2008 should be reasonable in Tsang’s case.

77.  In the circumstances, the medical evidence suffices to support a period of 24 months of sick leave from the date of the accident, in respect of which compensation is payable pursuant to section 10 of the Ordinance.  The question is whether periodical payments should still be payable in respect of the sick leave in excess of the 24-month period.  Section 10(5) gives the court the discretion to do so up to a maximum period of another 12 months.

78.  Mr Sham referred to Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2001] 2 HKLRD 803 and emphasized the presumption under section 10(2).  However, the circumstances in Choy Wai Chung (illustrated at 806E; I) are not repeated in the present case.  I have no intention of limiting the discretion under section 10(5), which the appellate court in Choy Wai Chung did not approve.

79.  I believe the discretion is unfettered, subject perhaps to the consideration of all the circumstances of the case.  The presumption under section 10(2) does not change that.

80.  In considering the exercise of the discretion, the court has to consider all the circumstances of the case.  Tsang’s evidence impresses me that short of being passive about his sick leave, he was conscious about continuing the sick leave.  In view of the evidence, including those specifically discussed above, I refuse to exercise the discretion in favour of Tsang.

81.  The section 10 compensation should therefore be: HK$15,400 x 4/5 x 24 = HK$295,680.

Section 10A compensation

82.  The medical expenses are agreed at the sum of HK$3,500.

Summary

83.  In summary, the compensation as assessed is as follows:

84.  Credit has to be given to the amount already received by Tsang from Shing Kee and Hung Kee in the total sum of HK$288,288.  The net award would be HK$(376,796 – 288,288) = HK$88,508.

85.  The compensation carries interest at half judgment rate from the date of accident until today.

Order

86.  Shing Kee and Hung Kee shall pay compensation to Tsang in the sum of HK$88,508 with interest as aforesaid.  Interest from today until full payment shall run at the judgment rate.  Besides the costs of this Application until judgment on liability, Shing Kee and Hung Kee shall also pay Tsang’s costs of these assessment proceedings. Costs shall be taxed, if not agreed.  For clarity, I certify the engagement of counsel.  Tsang’s own costs shall be taxed according to legal aid regulations. Parties have 14 days to apply for variation of the costs order; or the same shall become absolute.