TANG PAK LAM v. KAM HING DECORATION ENGINEERING LTD AND ANOTHER

DCEC 1322/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1322 OF 2013

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JUDGMENT
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INTRODUCTION

1. This is the applicant’s application for compensation under s 9, s 10 and s 10A of the Employees’ Compensation Ordinance, Cap 282.  He also appeals[1] against the assessment of the Employees’ Compensation (Ordinary Assessment) Board (“the Assessment Board”).[2]

2. The respondents (“R1” and “R2”) were respectively the applicant’s employer and the principle contractor.  R1 is being wound up and R2 had been struck off from the Companies Register.  However, orders have been obtained from the Court of First Instance for the applicant to proceed and continue with his employee’s compensation claim against R1 notwithstanding the winding up order[3] and for R2 to be restored to the Companies Register for a period of 30 months pending the applicant’s claim[4].

3. Not surprisingly, the respondents have all along been absent from the proceedings and they have not filed any document for this case.  As a result, judgment on liability was entered against both of them on 31 October 2014[5]. The case comes before this court for assessment of compensation only. 

4. I am satisfied that the respondents have been duly informed of the hearing[6] and that the claim can be proceeded with in their absence.  I am also told by Mr Wong, counsel for the applicant, that the Employees’ Compensation Assistance Fund Board has been informed of the present claim and they do not seek to be heard in this case.

THE ISSUES

5. The only live issues are:-

(i) whether the applicant’s compensation under s 9 (for loss of earning capacity) should be calculated basing on the 10% loss as stated in Form 7 or whether the loss should be as high as 13% as suggested by his expert Dr Fu[7]; and

(ii) whether the applicant’s compensation under s 10 (for temporary total incapacity) should be restricted to the period of 68 days[8] as covered by the sick leave certificates[9] and certified in Form 7 or whether it should be as long as 6 months as suggested by Dr Fu. 

6. Mr Wong has accepted that the burden is on the applicant to prove that the Assessment Board has underestimated the applicant’s losses in both aspects.  I remind myself that although there is no evidence from the respondents, the standard of proof is still on balance of probabilities. 

7. In the absence of any evidence to the contrary, I accept the applicant’s evidence that before the accident in question his daily wage was $900 and that he worked 26 days a month on average.  Therefore, his monthly salary, for the purpose of employee’s compensation, was $23,400.  I also accept that the applicant had incurred medical expenses in the total amount of $1,111 as shown by the bills[10].

THE ACCIDENT

8. The following is taken from the written opening of Mr Wong which I gratefully adopt:-

(a) At the material time, the applicant was employed by R1 as a carpenter to work at a shop premises in Citylink Plaza, Shatin, which was under renovation.  R2 was the principal contractor of the project.

(b) On 23 September 2011, the applicant was instructed to install a 150-pound curved glass panel with another worker.  In the course of installation, they found that the glass panel was oversized and started to detach the same from the frame.  When the co-worker pulled the glass panel out, it broke and the fragments fell onto the applicant. The applicant used his hands to protect his head. 

(c) After the accident, the applicant was taken the Accident & Emergency Department of Prince of Wales Hospital. It was found that[11]:-

· there was bilateral wrist cut by broken glass;

· there was left wrist and fist weakness and

· right tendon was cut. 

(d) The initial physical examination showed a 6 cm laceration on the radial aspect of his left forearm and 3 lacerations of 4 cm on radial aspect of his right forearm.  There was decrease sensation over the left dorsal aspect of first web space.  Surgery for wound exploration and repair was carried out. He was discharged for outpatient care on 27 September 2011.  The applicant received rehabilitation including physiotherapy[12] and occupation therapy after the operation.  He was last seen by the treating doctor on 15 November 2011 when

it was noted that his wrists extension power was full[13].

THE RELEVANT LEGAL PRINCIPLES

9. An appeal under s18 of Cap 282 is not in fact an appeal proper.  This is because the Assessment Board does not give any reasons

for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sam Wo Industrial Manufactory[14], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to beappellate. But one has then to remember that these boards are acting ontheir own knowledge. They hear no evidence. They keep no record. Theygive no reasons so that they provide no material which explains the basisof their approach. They only produce a result. Although the procedure byway of appeal may be properly so described in order to bring about areversal of their decision if the court is so minded, it is plain that a courtapproaching this matter has really got to start afresh.”

Similarly in Chu Chin Yiau v Ray On Construction Co Ltd[15], Deputy District Judge Bharwaney (as his lordship then was), also said:-

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

10. I remind myself that for the purpose of assessing the loss of earning capacity the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee: Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service[16].

11. In considering the medical evidence, I remind myself of what Roger VP said in Tang Shau Tsan v Wealthy Construction Co Ltd[17]:-

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

12. Besides, medical experts are not allowed to address on the factual question of the likelihood or otherwise of employers in the employment market employing persons with particular injuries and/or disabilities.  The issue of employability of the claimant by employers in the job market depends not only on clinical opinion as to his physical or mental capability in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge.  To put the questions as posed to the experts is to risk letting them usurp the function of the trial judge as fact-finder.  The court should be alert to ensure that judges and not experts are to decide cases: see Yip Koon Man v Yuen Long Merchants Association Secondary School[18].

13. Furthermore, in testing the conclusion reached by the Assessment Board against the total evidence available, the court should also have regard to s 9(1A) of the Ordinance which requires it to take into the special circumstances of the injured employee. Because if there are, the true loss must be ascertained and proportionally applied to a “permanent total incapacity calculation based on s 7: see Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd[19] and also Lau Man Leung v Yiu Wing Construction Co Ltd[20].

AS TO (i): LOSS OF EARNING CAPACITY

14. The present case is a bit unusual in that the applicant had not asked the Assessment Board to review its decision.  Instead, he appeals direct against what is set out in Form 7.  Mr Wong has no instruction as to why a review had not been sought before the appeal. 

Expert opinion

15. Dr Fu conducted examination of the applicant on 25 November 2014.  In his report, Dr Fu first outlined the social and employment history of the applicant, the injuries of the applicant and also the history of medical treatment.  Then, Dr Fu noted that the applicant’s complaints of left hand numbness and pain; both upper limb scars pain; both upper limb weakness; and clumsiness of both upper limbs.  According to the applicant, he could lift more than 50 kg before the injury.  He could only lift around 40 kg now.  Besides, the applicant told Dr Fu that the clumsiness of his upper limbs after the accident resulted in frequent dropping of equipment. 

16. Dr Fu’s physical examination of the applicant showed that there was no intrinsic muscle wasting and there was full range of movement of fingers.  There were positive signs of tenderness and positive Tinel sign of scar; decrease sensation of left hand; and decreased both wrists and finger power.  Dr Fu was of the view that the applicant has reached maximal medical improvement.

17. As regards prognosis, Dr Fu said that the applicant suffered from a serious injury with multiple tendons and nerve cut.  His current impairments will persist.  He is expected to have on and off attack of upper limbs pain that may require treatment on a need-to basis only in future.  The numbness and weakness will persist.  He will have some difficulty in performing dexterous activities with his upper limbs. 

18. Dr Fu believed that the applicant can return to his original work.  However, the working efficiency will be reduced.  He will have some difficulty in heavy manual lifting and performing dexterous activities.  The injury has no adverse effect on his activities of daily living and mobility. 

19. Dr Fu’s assessment is that there is a 13% impairment of the whole person for the applicant’s upper limbs injury and a 13% loss of earning capacity.

The applicant’s evidence

20. The applicant returned to work as a carpenter in about late December 2011, that is to say about 3 months after the accident.  His daily wages then was also $900 and he worked 18 to 20 days a month.  Now, he is still working as a carpenter earning $1,050 a day and he works 20 to 23 days a month. 

21. Before the accident, he used to swim and this he still does in summer time. 

Consideration

22. Regarding the above evidence, I have the following observations:-

(a) although Form 7 was among the documents considered by Dr Fu, he did not explain why his assessment was different from that of the Assessment Board and how in his view the Assessment Board has under-estimated the effects of the injury on the applicant;

(b) whilst Dr Fu had conducted physical assessments on the applicant, there is nothing in the report to show that he had performed any functional tests on the applicant.  Also, there is nothing to show that Dr Fu had assessed the applicant’s work performance, if at all, by using special tests that simulate the applicant’s work situations.  Therefore, Dr Fu’s assessment was based on tests with restricted scope which were not sufficiently comprehensive for the purpose of assessing the loss of earning capacity;

(c) when Dr Fu said that the whole person impairment of the applicant is 13%, he did not refer to any schemes of impairment, like the well-recognised scheme developed by the American Medical Association, by which the applicant’s whole person impairment was measured;

(d) it is not known on what basis Dr Fu estimated that, for the purpose of employees’ compensation claims, the applicant’s loss of earning was 13%.  I assume that he was making a general comparison between the effects of the injury the applicant has suffered with the items listed on the First Schedule, Cap 282.  I note that a 12% loss of earning capacity corresponds to the amputation of one whole finger or the amputation of two phalanges of two fingers[21]. I appreciate that there can be no exact comparison between the applicant’s injury and the types of injury listed in the First Schedule.  However, the point is that the legislature clearly intends a 12% loss of earning capacity to be significant.  By giving an estimate as high as 13%, it seems that Dr Fu was saying that the applicant’s condition is worse than the loss of a finger. However, Dr Fu did not explain why this is so.  If Dr Fu was not making reference to the First Schedule, then one knows not what he meant by a 13% loss of earning capacity;

(e) Mr Wong was unable to assist as to why Dr Fu gave the estimated loss of earning capacity at 13%, rather than 12% or 10%.  In any event, based on the case authorities cited above, little weight can be attached to the percentage figure given by Dr Fu;

(f) although not determinative of the issue, the fact that the applicant is able to earn a daily wages which is (inflation included) not less than before and to work as many as 23 days a month tends to suggest that his loss of earning capacity is not very serious; and

(g) I have not lost sight of the fact that the applicant has said that he is not able to lift objects as heavy as what he could lift before the accident.  I note on the other hand that he is also older than before. 

Conclusion

23. There is no denying that the injury that the applicant sustained was serious and that he has suffered a loss of earning capacity.  However, I am unable to attach much weight to the assessment of Dr Fu that the applicant’s loss of earning capacity is as high as 13%. Having started afresh by considering all the relevant evidence including the accident, the applicant’s injury, the treatment received, job nature, personal circumstances, Form 7 and Dr Fu’s opinion, I find that the applicant’s permanent loss of earning capacity is not as serious as that suggested by Dr Fu, having regard so far as possible to the scale of percentages specified in the First Schedule and to the Note thereto.[22]  I find that the applicant’s loss of earning capacity is about the 10% as stated in Form 7.  It is according to this figure that the applicant’s claim for employee’s compensation is to be calculated. 

AS TO (ii): LENGTH OF TOTAL TEMPORARY INCAPACITY

Evidence

24. As aforesaid, the applicant had been granted a total of 68 days of sick leave from 23 September 2011 to 29 November 2011.  By virtue of s 10(2), that period of absence from duty is deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

25. The applicant’s last medical certificate was issued by the Orthopaedic Clinic of Prince of Wales Hospital on 15 November 2011.  That was also the occasion that he was last seen by the hospital.  The last session of occupational therapy was on 21 November 2011. From the records available, it seems that after November 2011 the applicant had ceased to receive medical consultation from the Hospital Authority for the injury.  If that was the case, then it may explain why the applicant did not have any more medical certificates for sick leave after November 2011. 

26. According to the applicant’s evidence, he returned to work as a carpenter in about late December 2011. 

27. As regards the applicant’s length of sick leave, Dr Fu said[23]:-

“For this kind of serious injury with multiple tendons cut, at least six months of rehabilitation and sick leave is required. for tendon cut, the repair will only achieve maximal strength around 6 months after repair. However even at that time the strength can only regain 70% of the original strength. He returned to manual work in less than three months. I believe it is risky as the tendon repair should still not very solid at that time.”

Consideration

28. Based on Dr Fu’s opinion, Mr Wong submitted that the applicant’s compensation for sick leave should be for 6 months rather than just 68 days.  Mr Wong did not advance a case of temporary partial incapacity.  As regards the applicant returning to work just 3 months after the accident, Mr Wong submitted that the applicant was “forced” to do so because of financial pressure. 

29. With respect, I am unable to accept Mr Wong’s submission.  The compensation under s 10 is intended for temporary total or partial “incapacity”.  As such, the point is whether his capacity to work had been adversely affected by the injury at the relevant period of time and if so, to what extent.  Whether the applicant had been “forced” to work is beside the point.  Therefore, I find Dr Fu’s comments quoted above not helpful.  Even assuming that the applicant should have taken a longer sick leave than he did, it does not follow that he had no capacity to work at all before the 6 months recommended.  To the contrary, the applicant’s evidence shows that he could and did return to work three months after the injury and make some money.

30. Mr Wong did not submit on temporary partial incapacity.  In my view, he was right not to do so.  The point simply does not arise from the evidence. 

Conclusion

31. After considering the relevant evidence, taking perhaps a generous view of the matter, I would allow a period of 3 months for the purpose of calculating the applicant’s compensation under s10. To this limited extent, the appeal under s 18 is allowed.

COMPENSATION

32. The applicant was born on 16 November 1961.  He was aged 49 at the time of the accident.  The applicable multiplier for the purpose of s 9 is 72 months.[24]Based on the statutory formulae, his employee’s compensation is calculated as follows:-

s 9	$23,400 x 72 x 10%	$168,480
s 10:	$23,400 x 3 x 4/5	$56,160
s 11:		$1,111
		________
	Total:	$225,751

ORDER

33. It is ordered that the respondents pay the applicant employee’s compensation in the total amount of $225,751. 

34. There will also be interest on the aforesaid compensation at half the judgment rate from the date of the accident to the date of this judgment and thereafter that at the judgment rate.

35. I also make an order nisi that the applicant’s costs (with counsel certificate) be paid by the respondents, to be taxed if not agreed,.