LEUNG PING YUN v. LO MING t/a PO HO INTER-DESIGN DECORATION ENGINEERING

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JUDGMENT

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1.  This is the trial of the application of Mr Leung for compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance (Cap 282) regarding an injury he suffered while at work on 18 April 2005. He also appeals against the Employees’ Compensation (Ordinary Assessment) Board’s assessment made on 17 August 2006. The Board assessed him with 56 days of absence from duty due to his injury, and 1% permanent loss of earning capacity.

2.  The Respondent  (“Mr Lo”) is claimed by Mr Leung to be his employer at the time of the injury.  However, since the commencement of the present proceedings, Mr Lo has not filed an Answer in response to the Application nor has he attended any of hearings thereof.  He is also absent today.  The Notice of Trial dated 31 August 2007 was on record sent to him at his last known address.  By way of the 4^th Affirmation of Lai Yuk Man dated 4 December 2007, it was also affirmed that the Applicant solicitors’ skeleton and authorities were served on Mr Lo under a cover letter by leaving the same at his last known address.

3.  In light of the above circumstances, I am satisfied that Mr Lo ought reasonably have notice of the trial today, and thus it should proceed notwithstanding his absence.

The employment and injury

Mr Leung’s evidence

4.  Mr Leung gives evidence at trial by confirming his witness statement. In summary, the relevant part of his evidence in support of the present application is as follows.

5.  He has been working as a renovation worker and started to work for Mr Lo as a casual worker since March 2004.   His main duty was to assist the chief electrician and to work on other miscellaneous assignments instructed by Mr Lo.

6.  Since 14 April 2005, Mr Lo assigned him to work at a small village house in Tai Po which was undergoing major renovation.

7.  On 18 April 2005 at around 1:30 pm to 2:00 pm, Mr Lo asked Mr Leung to make a trench by an electric concrete breaker on the outer-wall of the village house.  Mr Lo demonstrated to him how to do it by climbing up a wooden ladder to a height of about 11 feet above the ground.  After Mr Lo’s demonstration, Mr Leung climbed up the ladder himself to start to work as instructed.  At that time, there was a drizzle and the ladder was wet.

8.  At about 2:30 pm, while Mr Leung was working at the ladder in making the trench, he suddenly slipped and fell from the ladder, and landed on a stack of bricks lying on the ground.  He felt much pain at his right chest wall and over the entire body.

9.  After rested for a while, he took a taxi to the A&E Department of the Tai Po Nethersole Hospital for consultation.  He was diagnosed to have a fractured right 8^th rib.  There was also tenderness over his back. 

10.  Since then, Mr Leung was treated conservatively and had  been granted a total of 56 days of sick leave between 18 April 2005 and 28 June 2005.  No more sick leave have been further granted since then. 

11.  The nature and diagnosis of the injury, the treatment and the sick leave granted are all supported by the relevant government hospital medical reports and certificates.

12.  On 3 August 2006, he was assessed by the Employees’ Compensation (Ordinary Assessment) Board. On 17 August 2006, the Board issued the certificate of assessment (Form 7) confirming the 56 days of sick leave as his absence from duty necessary as a result of the right chest wall injury resulting in pain.  It further assessed his permanent loss of earning capacity at 1%.

13.  Mr Leung was aged 46 at the time of the injury and he was and had been earning HK$500 per day and had worked for on average 26 days each month.

Finding

14.  Given that Mr Lo is absent at trial and he has filed no evidence to rebut Mr Leung’s evidence above, I do not see any basis not to accept Mr Leung’s evidence.  I therefore so accept and find that:

(1)	At the time of the injury on 18 April 2006, he was an employee of Mr Lo working under the employment.
(2)	He suffered the injury in falling from the ladder in the course of his employment.
(3)	By reason of the injury, he suffered a fractured right 8th rib and contusion to his back, and had to take sick leave for 56 days.
(4)	He was earning HK$500 per day at that time and in the 12 months preceding the injury.  He had also been working on an average 26 days per month in the 12 months before the injury.

Quantum of compensation

15.  The burden lies on Mr Leung to prove the quantum of compensation he is seeking under the various sections of the Ordinance, and to show that I should replace the Board’s assessment with my own.

Section 10 compensation

16.  Mr Leung has been given 56 days of sick leave.  This ended on 28 June 2005.  Since then he has not been granted any further sick leave.   He however now says he should be entitled to 3 months’ sick leave for his injury.  This is supported by the medical report of Dr Au Ka Kau dated 19 May 2007. 

17.  It is pleaded in the Application that he has not obtained further sick leave because “he did not have money to settle the medical expenses”.   However, this is not even contained his witness statement nor has he given further oral evidence to support the same.  There is thus no evidence to support this as an alleged reason for not having been granted further sick leave.

18.  Further, I in any event do not accept this as a reasonable explanation for not having been granted further sick leave by the government clinics if Mr Leung’s conditions do so warrant further sick leave.   If he could not afford financially for public medical consultation as suggested by the pleading, he could always seek wavier of such medical fees with the hospital’s social welfare department.  There is therefore no reason why he should give up attending the clinics and obtaining the necessary sick leave simply because he allegedly was not able to pay for the fees.

19.  On the other hand, Dr Au’s opinion that Mr Leung should reasonably be entitled to 3 months of sick leave is not supported by any explanation or reasoning.  Moreover, although Dr Au has been provided with the Form 7 and the sick leave certificates, he has not commented that the 56 days sick leave granted by the government medical clinics are unreasonable in Mr Leung’s case.  In the premises, I do not regard Dr Au’s opinion of such a weight to suggest that the 56 days of sick leave granted to Mr Leung are inappropriate, unreasonable or insufficient.

20.  For the above reasons, I find that the Board’s assessment of 56 days of absence from duty necessary as a result of the injury appropriate, and would not replace it with any other assessment.

21.  I therefore award Mr Leung HK$22,400.00 (HK$500.00 x 56 x 4/5) as compensation under section 10 of the Ordinance.

Section 9 compensation for permanent partial incapacity

22.  As I said above, the Board assessed Mr Leung’s loss at 1%.  On the other hand, Mr Leung with the support of Dr Au’s medical report says the loss should be assessed at 3%.

23.  Dr Au in his report gives the opinion that Mr Leung’s back pain will resolve after his recommended physiotherapy treatment.   Dr Au further cites in his opinion the AMA Guide that permanent impairment refers to an impairment that has reached maximal medical improvement.  In the circumstances, in my view Dr Au does not regard the back pain as having any impact on his assessment of Mr Leung’s permanent loss of earning capacity.  His assessment is based on the fractured rib injury.

24.  Dr Au also gives an opinion that the conservative treatment given to Mr Leung for his chest wall injury was appropriate and the fracture has healed satisfactorily.  He further says Mr Leung is fit to return to his pre-accident job but with some reduction in efficiency.

25.  Having looked at all the other medical reports of the government hospitals before me, and Dr Au’s report as set out above, I am of the view that Mr Leung has recovered from his fractured rib injury and will only suffer a very minor permanent impairment because of that.  In light of Dr Au’s more generous opinion in saying that Mr Leung should reasonably have 3 months of sick leave as I discussed above, I am also of the view that the 3% assessment of permanent loss of earning capacity provided by Dr Au is on the high side.  In my judgment, the appropriate assessment should be 2%.

26.  For the above reasons, I would replace the 1% assessment set out in Form 7 by 2%.  I therefore award Mr Leung HK$18,720.00 (HK$500 x 26 x 72 x 2%) as his compensation under section 9 of the Ordinance.

Section 10A medical expenses

27.  Mr Leung claims HK$1,025.00 for the various medical consultation fees he has paid for attending the government hospital and clinics. This is largely supported by the relevant receipts issued.

28.  I accept this claim and award Mr Leung HK$1,025.00 under section 10A of the Ordinance.

Conclusion

29.  For the reasons set out above, I award Mr Leung compensation under the Ordinance (a) HK$18,720.00 under section 9, (b) HK$22,400.00 under section 10, and (c) HK$1,025.00 under section 10A.   Mr Leung is further entitled to interest on these sums at half judgment rate from the date of injury to the date of judgment, and thereafter at judgment rate until full payment.

30.  I further grant a costs order that costs of the Application be to Mr Leung to be taxed if not agreed.  Mr Leung’s own costs be taxed in accordance with the legal aid scale.