CHEN LIANGPING v. 方廷秋 AND OTHERS

DCEC 2444/2019

[2022] HKDC 1166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2444 OF 2019

--------------------

--------------------

-----------------------------------------------------

ASSESSMENT OF COMPENSATION

-----------------------------------------------------

INTRODUCTION

1.  This is a trial for the assessment of compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (the “Ordinance’). The 1^st Respondent did not attend the trial.

2.  On 16 October 2019, the Applicant applied for employee’s compensation against the 1^st Respondent in relation to an accident at work which took place on 31 May 2019. Interlocutory judgment was entered against the 1^st Respondent on 26 November 2021, and leave was granted to join in the 2^nd Respondent in these proceedings.

3.  The Applicant was aged 44 at the time of the accident, and was employed by the 1^st Respondent as a general worker. On 25 May 2019, the Applicant was engaged by the 1^st Respondent in relation to a piece of construction work. On 31 May 2019, the Applicant was instructed to demolish a large signboard above a shop. In the course of the work, the iron frame of the large signboard loosened, and the iron frame hit the Applicant and injured his face. Upon the impact of the iron frame, the Applicant lost balance and fell from 7 metres above the ground onto a canopy of around 4 metres above the ground. The Applicant broke his hip and pelvis (the “Accident”).

4.  For the purpose of this assessment of compensation, the following 3 pieces of factual findings are required to be made:

(a)  The Applicant’s monthly earnings at the time of the Accident;

(b)  Percentage of loss of earning capacity; and

(c)  Sick leave period.

THE APPLICANT’S MONTHLY INCOME

5.  The Applicant’s case is that he worked 24 days per month. His daily wage was HK$1,500, and he earned about HK$36,000 for the month immediately preceding the date of the Accident.

6.  The Applicant has not adduced any documentary evidence to prove his income. It is his case that he had already worked for the 1^st Respondent for about 3 years before the Accident. However, this is contradicted by the Applicant’s declaration made to the Labour Department dated 9 June 2020, which stated that by an oral agreement between the Applicant and the 1^st Respondent on 25 May 2019, the Applicant was engaged to work for the 1^st Respondent starting on 26 May 2019. It also stated that the Applicant had provided demolition services to the 1^st Respondent before.

7.  Under cross-examination, the Applicant admitted that he worked as a short-term employee of the 1^st Respondent on a project by project basis. For the purpose of this application, the Accident happened on the 6^th day of the Applicant’s work engagement.

8.  The legal principles on assessing the monthly earnings of short-term employees have been set out in Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company (DCEC 237/2007; 19 November 2008) where HH Judge Lok (as he then was) summarized the Court of Appeal decisions of Lai Cheung Kwan v Lo King Sum [2008] 3 HKLRD 643 and Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337:

“19(i) the methods of assessing the monthly earnings under ss.11(1)(a) and 11(1)(b) [of the Ordinance] are only applicable if the injured worker worked for the same employer for the relevant periods under the said sub-sections. In other words, if the worker injured himself on the first day of his work, his income earned by working for the other employers before the accident is not directly relevant in assessing the worker’s income at the time of the accident (per Cheung JA in Lai Cheung Kwan, paras 6-9 and Yuen JA in Or Wing Ming, para 24);

…

(iii) if the injured worker only worked for a short period of time and there is no practical way to compute the rate of remuneration, the court has to adopt the methods prescribed in s.11(2) to ascertain his monthly earnings, and it is the duty of the court to make such factual finding based on whatever evidence before the court (per Yeung JA in Lai Cheung Kwan, para. 37);”.

9.  Section 11(2) of the Ordinance stipulates that:

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, 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.”

10.  In assessing the Applicant’s monthly earnings, both the Applicant and the 2^nd Respondent referred the Court to the ‘Average daily wages of workers engaged in Public Sector Construction Projects as reported by Main Contractors’ as at May 2019 as published by the Census and Statistics Department. These figures show that the average daily wage of general workers in May 2019 was in the sum of HK$978.1.

11.  Mr Dexter Lam, the legal representative of the Applicant, contended that the Court should treat the Applicant as a ‘demolition worker’, thus applying a higher level of income to him. Mr Jeffrey Lee, counsel for the 2^nd Respondent, submitted that in the Amended Application, the Applicant was stated to be a ‘general worker’, and the Applicant repeated the same in his witness statement. However, in his witness statement, the Applicant qualified himself as being employed mainly to do ‘a lot of demolition works’. As recorded in the joint medical report, the Applicant described himself as a ‘decoration worker’.

12.  In the course of the trial, the Applicant explained that he would only be engaged in the phase of work which involved demolition, although during that period, he would also be asked to do miscellaneous works as ordered by his employer. I am of the view that the term ‘general worker’ is not a term of art. The Applicant has sufficiently stated in his witness statement that the major focus of his work was demolition. As a whole, I am satisfied that the daily wage of a demolition worker should be the proper reference. I also adopt HK$1,196.01 as calculated by Mr Lam based on statistics released by the government as the Applicant’s daily wage. I am mindful of the Applicant’s live evidence that he was a master of demolition work. However, there is no evidence adduced which can support his assertion. I would therefore not make any upward adjustment to his daily wage.

13.  As to the Applicant’s number of working days per month, the Applicant and the 2^nd Respondent did not dispute that 22 working days per month may be adopted, which is in line with the approach in Chan Leung Sing v Ng Keung & Another (HCPI 3/2012, 27 August 2015) at pp.26J-27E. I am satisfied that 22 working days would fairly reflect the number of working days of the Applicant before the Accident.

14.  The monthly earnings of the Applicant are therefore HK$1,196.01 x 22 = HK$26,312.22.

PERMANENT PERCENTAGE LOSS OF EARNING CAPACITY

15.  For an appeal under s.18 of the Ordinance, the Court approaches the issue afresh by testing the validity of the MAB’s conclusions against the total available evidence. Whilst medical opinion is useful, it is for the Court to come to its own conclusion: Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 at 248G-I.

16.  MAB’s assessment of the Applicant’s permanent percentage loss of earning capacity is at 2.25%.

17.  On 18 March 2022, the Applicant was jointly examined by Dr Tio Man Kwun, Peter and Dr Chiang Si Chung, Arthur. A joint report dated 22 May 2022 was prepared. Dr Tio assessed the Applicant’s loss of earning capacity to be 4.5%, whereas Dr Chiang assessed the Applicant’s loss of earning capacity to be 2.5%.

18.  At the joint medical examination, the Applicant’s main complaints were (a) left hip pain and numbness radiating to left thigh; (b) lower back pain; and (c) left knee numbness and pain.

19.  Mr Lee submitted that pain is a subjective matter, and the proper approach in dealing with the subjective complaints (eg pain) against objective evidence is set out by Master Leong in Yuen Macie v Yeung Ying Kit (HCPI 528/2015, 24 November 2016) at §§67-74. It is for the Court to assess the evidence on the injured person and come to a view on whether he was indeed suffering from pain and, if so, the nature and extent of that pain: Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1 at §45. I do not understand Mr Lam to be disputing this approach.

20.  As to the lower back pain, both experts are of the view that it was not related to the Accident. In the Applicant’s witness statement, amongst the various forms of pain he complained as a result of the Accident, lower back pain is not one of them. I am therefore satisfied that the Applicant’s lower back pain (even if it exists) is irrelevant to the Accident and hence these proceedings.

21.  As to the left knee pain and numbness, it is clear on documentary evidence that neither the Employees’ Compensation (Ordinary Assessment) Board, Dr Tio, nor Dr Chiang have placed any material value on it in assessing the Applicant’s loss of earning capacity. To this, Dr Chiang further pointed out that the physical examination findings of the lower back pain and the left knee pain were unremarkable and cannot explain the abnormal complaints, which in the absence of other causes, were likely from over-emphasis of symptoms. I am of the view that any left knee pain (if exists) would not be material for the purpose of the Applicant’s permanent partial incapacity.

22.  As to the Applicant’s need to walk with a stick, both experts agreed that, in view of the clinical examination findings, it would not be necessary for the Applicant to use it.

23.  The major differences in the views between the 2 experts are therefore the extent and effect of the Applicant’s left hip pain and numbness on his earning ability.

24.  The Court accepts Mr Lee’s submissions that Dr Chiang’s opinion is preferred to Dr Tio’s opinion. Dr Tio did not appear to have tested the Applicant’s complaint of left hip pain and numbness against the objective medical records, but instead opined that the Applicant’s complaint is compatible with them. As evidenced in the medical records, the fractures on the Applicant’s left pelvis had healed 2 years before the joint medical examination.

25.  Further, as noted by Dr Chiang, the noticeable reduction in the range of movement of the left hip as presented by the Applicant during the joint medical examination is inconsistent with the previous clinical assessments, which showed that the Applicant had already regained full or satisfactory overall range of movement.

26.  The Court therefore adopts Dr Chiang’s opinion that the loss of earning capacity of the Applicant is 2.5%.

27.  It is the Applicant’s case that he falls into the ‘special circumstances’ stipulated under s 9(1A)(b) of the Ordinance and hence the Hong Kong Paper Mills formula should be adopted.

28.  This is rejected. The special formula is inapplicable when an injured employee could have returned to his pre-accident work only with some reduction in his work efficiency: Ho Kam Wah v 蘇定 & Fung Kee Recycling Co Ltd (DCEC 950/2010, 28 September 2012) at §41; and Kashif Munir v Heng Fai Geog & Const Co Ltd & Another (DCEC 401/2006, 29 April 2008) at §89. There are also no ‘special circumstances’ under s 9(1A)(b) of the Ordinance when the only impact of the injuries on a general worker without any special skill is that he cannot return to his pre-accident work and will have to take up lighter work: Lau Man Keung v Yiu Wing Construction Co Ltd (CACV 2232/2001, 10 June 2002) at §29, followed in Ahmed Altaf v Yuen Wui Engineering Limited & Another (DCEC 1141/2006, 7 May 2010) at §§38-39. Mr Lam did not dispute that this was the proper approach.

29.  I am of the view that the Applicant is most likely able to return to his pre-accident work, whether or not with some reduction in his work efficiency, and there is no special circumstances in this case. Dr Tio and Dr Chiang both opined that the Applicant should be able to resume his pre-accident job. Dr Tio opined that he should be able to resume his pre-injury work as an interior decoration worker with reduced capacity and efficiency. Dr Chiang opined that the Applicant should be able to return to work in the pre-injury job, and that any reduction in efficiency is likely to be mild or very mild. I accept Dr Chiang’s view, as it is one that is based on existing medical records.

PERIOD OF TOTAL TEMPORARY INCAPACITY

30.  Up to the date of this trial, the Applicant has obtained sick leave for 1,226 days: (a) from 31 May 2019 to 28 February 2021 given by Yan Chai Hospital; and (b) from 1 March 2021 up till present given by a Chinese medicine practitioner 陳文秀 (“Dr Chan”).

31.  In Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120 at §28, Lam VP (as he then was) reiterated that s 10(2) of the Ordinance sets out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee’s compensation claim. The burden is on the employer (or the 2^nd Respondent in this case) to rebut that presumption.

32.  Mr Lee submitted that the statutory presumption has been rebutted and the Applicant’s sick leave period should only be approved from 31 May 2019 to 28 February 2021: (a) X-ray on 22 January 2020 on the left hip showed that the pelvic fractures had already healed and the alignment was satisfactory; (b) in various physiotherapist assessments and the orthopaedic follow-up on 22 January 2020, the Applicant demonstrated full internal and external rotational range of movement of the left hip; (c) Dr Chiang opined that for the natural course of similar extent of pelvic fractures, a sick leave period for about 1 year would be appropriate; and (d) Dr Tio’s opinion was that sick leave certificates granted from 31 May 2019 to 28 February 2021 were endorsed. The other period of leave given by Dr Chan ‘could be valid for the sake of rehabilitation’. However, there is clear indication from Dr Tio that there is no indication for the Applicant to receive further investigation, treatment or operation. If this is the case, there is no reason why further leave should be given for the sake of the Applicant’s rehabilitation.

33.  Mr Lam has failed to explain why the statutory presumption should not be rebutted. I am of the view that the Applicant was of ‘total temporary incapacity’ for a period of 640 days from 31 May 2019 to 28 February 2021.

MEDICAL EXPENSES

34.  Mr Lee asked the Court to disallow all medical expenses beyond the appropriate sick leave period, and only allow HK$180 as compensation under this head, representing the cost of attending the A&E Department of Yan Chai Hospital.

35.  The Court is mindful of the fact that Dr Tio’s view that there is no indication for the need of the Applicant to receive further investigation, treatment or operation is one formed after having examined the Applicant on the date of the joint medical examination. I therefore allow all medical expenses of the Applicant from the date of the Accident up to and including 18 March 2022 which is the day of the joint medical examination. The parties agreed that the relevant total medical expenses in this period (subject to HK$300 for each day) would be HK$9,180.

COMPENSATION

36.  The various limbs of compensation can be worked out as follows:

(a)   s 9 compensation on compensation in case of permanent partial incapacity: the Applicant was aged 44 at the time of the Accident. Applying the statutory multiplier of 72 (s.7(1)(a) of the Ordinance), and multiplier of 2.5%, the relevant compensation is:

HK$26,312.22 x 2.5% x 72 = HK$47,362

(b)   s 10 compensation on compensation in case of temporary incapacity:

(HK$26,312.22 x 12/ 365) x 618 x 4/5 = HK$427,685.31

(c)   s 10A compensation regarding payment of medical expenses:

HK$9,180

37.  The total amount of compensation is:

s 9:	HK$ 47,362
s 10:	HK$427,685.31
s 10A	HK$ 9,180.00
Total:	HK$484,227.31

38.  As there is no evidence of any advance payment made to the Applicant, the total amount of compensation to be paid to the Applicant by the 1^st Respondent is therefore HK$484,227.31. Interest shall accrue on the sum at half judgment rate from the date of the Accident on 31 May 2019 up to the date of judgment, and thereafter at judgment rate until payment in full.

39.  As to the costs, I make a costs order nisi that:

(a)  The costs of the Applicant be borne by the 1^st Respondent, to be taxed if not agreed;

(b)  The costs of the 2^nd Respondent be borne by the 1^st Respondent, to be taxed if not agreed; and

(c)  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

40.  The costs order nisi shall become absolute in 14 days from the date of this judgment if no application to vary the order is taken out.