YE BAI v. CHUNG KEE PAINTING CO LTD AND ANOTHER

DCEC 41/2017

[2020] HKDC 1155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 41 OF 2017

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

BETWEEN

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

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

JUDGMENT

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

Introduction

1.  This is the trial hearing of an application for Employees’ Compensation in relation to an accident that took place on 12 January 2016 (“the Accident”).  The applicant is Madam Ye Bai (“YB”).  The 1^st respondent Chung Kee Painting Co. Limited (“CKPCL”) is all along absent in these proceedings.  The 2^nd respondent is Employees Compensation Assistance Fund Board (“The Board”).  By the order of Her Honour Judge Levy on 29 June 2018, leave was granted to the Board pursuant to Section 25A(a)(v) of the Employees Compensation Ordinance (“the Ordinance”) to take over the defence of the 1^st respondent to contest the issues of liability and quantum.

The Accident

2.  At the hearing before me, YB confirmed and adopted her witness statement dated 29 March 2019 and supplemental witness statement dated 9 August 2019.

3.  According to YB, the Accident took place in the course of her employment with CKPCL on 12 January 2016.  She was introduced by a clansman 陳玉玲 to work for the 1^st respondent on 24 March 2013.  The manager Chung Wai Man (鍾煒文) represented the 1^st respondent to hire her.  She worked as an odd-job worker (雜工). Her job duties included removing oil stain, black oil, rusted iron stain on ships and painting work.  When performing her work, she needed to squat, stand, move around and climb up and down.

4.  The Accident took place at Shui Lee Chan Shipyard, Tam Kon Shan Road, Tsing Yi, New Territories (新界青衣担扞山路水利棧船廠).  On the day of the Accident, YB was painting the body of a ship. The ship had already been lifted onto the ground.  While doing her work on the working platform, her right foot moved backward and stepped into a gap which was about 15 cm in length.  She lost balance and fell from a height of 1.3 to 1.4 metres.

5.  After the Accident, YB sought treatment from the Accident & Emergency Department of Princess Margaret Hospital on the same day.  She was accompanied by a co-worker 廖玉清 and CKPCL’s manager Chung Wai Man drove them.  The doctor found that she was suffering injuries to her head, left chest and fractures at the 7^th to 9^th ribs on the left side.

Discussion on liability

6.  Counsel for the Board was duty bound to put YB to strict proof.  Questions were put to her regarding her employment by CKPCL. She was unshaken under cross-examination.

7.  I accept YB’s version that she was in employment with CKPCL when the Accident took place.  She could produce the name card of the manager of CKPCL, Chung Wai Man, to support her version.  She could also produce the calendar in 2015 on which she marked her working days and wages to prove her average monthly wages.  There was not any available evidence which casted a doubt on what she said.

8.  In relation to the Accident, the report from the Accident & Emergency Department of Princess Margaret Hospital dated 10 January 2017 substantiates YB’s version.  The following is stated in the report:-

“Ms. Ye attended the Accident and Emergency Department of Princess Margaret Hospital on 12/01/2016. She was seen by Dr. Cheng Ka-lok. She fell from 4 feet height and head injury over left parietal area and left chest wall contusion.

She was fully alert. There was local tenderness over left head and left chest wall. There was abrasion over left forearm as well.

X-ray chest, left ribs showed fracture left 7^th to 9^th rib. CT brain did not have intracranial haemorrhage or fracture.

She was discharged with medication and sick leave.”

9.  It is clear that YB’s description of the Accident and injuries are consistent with the aforesaid report.

History of medical treatment

10.  YB attended the Department of Accident & Emergency of Tuen Mun Hospital on 15 January 2016 which was 3 days after the Accident.  Medical examination revealed local tenderness of chest wall.  Chest radiography showed faint radiolucent lines over left 7^th, 8^th and 9^th ribs compatible with ribs fracture.  She was admitted to the emergency medicine ward.  Chest physiotherapy and pain medications were prescribed to her.  She was discharged on 18 January 2016.

11.  YB was referred to the Physiotherapy Department of Tuen Mun Hospital for outpatient physiotherapy.  The diagnosis was fracture of left 7^th to 9^th ribs.  She attended 23 sessions during the period from 30 January 2016 to 11 July 2016. 

12.  The initial clinical findings on 30 January 2016 showed that she had pain over left chest wall.  The pain was aggravated by deep breathing, coughing and standing tall.  Pain level was 5 out of 10 according to Numerical Pain Rating Scale.  Objective assessment showed that she had fair chest expansion and satisfactory air entry.  Her cough was dry with fair effort and pain was aggravated.

13.  Exercise therapy and heat therapy were given to her.  When she was discharged on 11 July 2016, the pain intensity over left chest wall decreased from 5 to 1 out of 10 as charted in Numerical Pain Rating Scale.  The range of movement of thoracic spine and left shoulder improved.

14.  For her left chest wall pain, YB attended Madam Yung Fung Shee Health Centre of Department of Family Medicine & Primary Health Care of Tuen Mun Hospital on 7 June 2016, Kam Tin Clinic of Department of Family Medicine & Primary Health Care of Tuen Mun Hospital on 13 June 2016. X-ray done on 23 June 2016 showed lung fields were clear, cardiac outline was normal and costophrenic angles were acute.  Old fractures of left 5^th, 6^th and 7^th ribs were noted.  There was diffuse tenderness over left lateral chest wall.  Analgesics were given to her.

15.  She also attended Tin Shui Wai (Tin Yip Road) Community Health Centre on 4 August 2016, 9 August 2016, 15 September 2016, 26 September 2016 and 14 October 2016.

Examination by medical experts

16.  YB was examined by 2 specialists in Orthopaedics & Traumatology Dr Tio Man Kwun Peter and Dr Tsoi Chi Wah Danny jointly on 12 October 2018 which was about 2 years and 9 months after the Accident.  A joint medical examination report dated 19 October 2018 was compiled.  The 2 doctors noted that there were some contradictions in the description of fractured ribs in the medical history but they were of the view that these would not affect their assessment.  YB’s complaints to the 2 doctors included the followings:-

a. Left anterior chest and posterior chest/scapular pain.

b. Nocturnal pain.

c. Painful most of time.

d. On medication 4 times a day.

e. Pain increases when turning on bed.

f. She seldom uses left upper limb at work in these days.

17.  After examining YB, Dr Tio gave the following opinions:-

“Most patients with similar injuries would present with on and off pain over the affected ribs with reduced endurance in physical exertion, heavy manual work, extreme range of movement and prolonged working etc. The area of tenderness should be localized to the lower chest over the affected ribs and the nearby area. Some stiffness of the left shoulder could be due to pain associated with movement.

Orthopaedically, Ms Ye has reached maximal medical improvement and is suitable for assessment. The prognosis is fair with residual pain over the left lower chest on exertion and elevation of her left shoulder etc.”

18.  Dr Tio assessed YB to be suffering 3.5% whole person impairment for injury and 3.5% loss of earning capacity.

19.  On the other hand, Dr Tsoi had a slightly different view:-

“Physical examination of the chest did not reveal and observable deformity. There was no sign suggestive of active inflammation. The alleged diffuse pain and apparent impaired motion and strength of left shoulder did not match with the fracture left ribs she sustained in the captioned accident. X ray also revealed anatomical healing of all fracture and the rib cage was not deformed. In summary, Dr. Tsoi is of the view that Ms. Ye was magnifying her symptoms and disability. The actual degree of pain from anatomical healing of rib fractures should be much less than she described. Shoulder function of fracture lower ribs is usually unaffected.

Residual chest wall pain on prolonged manual activity is possible but should be of very mild degree.  Ms Ye has long attained a stage of maximal medical improvement and no further treatment is required.  The prognosis is excellent.”

20.  Dr Tsoi opined that YB is suffering not more than 2% whole person impairment and 2% loss of earning capacity.

Loss of earning capacity

21.  The Certificate of Assessment (Form 7) issued by the Employees’ Compensation (Ordinary Assessment) Board dated 2 February 2018 stated that YB is suffering from head and left chest injury resulting in tenderness on left chest wall and left upper scapula area and 2% loss of earning capacity. Upon review on 18 May 2018, the ordinary assessment board maintained its assessment.

22.  On 7 February 2018, YB filed a notice of appeal against the ordinary assessment board’s assessment.

23.  The approach to an appeal against an assessment made by the ordinary assessment board was highlighted by Hunter JA in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D-E:-

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

24.  Accordingly, I believe it is necessary for this court to consider the matter afresh and draw a conclusion on the degree of loss of earning capacity.  The next question is whether the court should rely on the view of Dr Tio or Dr Tsoi.

25.  After careful consideration, I prefer the view of Dr Tio to that of Dr Tsoi.  While Dr Tsoi drew a conclusion that YB “was magnifying her symptoms and disability” and “shoulder function of fracture lower ribs is usually unaffected”, he had not explained why he reached such a conclusion when the physical examination results tended to suggest that YB’s complaints were genuine.  The following examination results were stated in the joint medical examination report:-

“Tenderness over upper thoracic. Left scapular posterior scalene muscle, whole thoracic spine.”

“Range of motion of shoulder

	Right	Left
Abduction	180 degree	Active 120 degree Passive 130 degree *ribs pain
Adduction	30 degree	10 degree
Flexion	180 degree	Active 90 degree Passive 100 degree *pain
Extension	30 degree	10 degree
Internal rotation	70 degree	70 degree
External Rotation	90 degree	90 degree
Hand behind back	Thoracic	Lumbar”

“Reported pain on exertion on shoulders.”

“Examination of left shoulder and chest showed tenderness over upper thoracic, left scapular posterior scalene muscle and whole thoracic spine. Left shoulder stiffness was also noted.”

26.  Dr Tio’s comments on YB’s working capacity were as follows:-

“Orthopaedically, Ms Ye should be able to resume her pre-injury work in cleaning and painting of ships/yachts with reduced capacity and efficiency such as pain over her left lower chest when she has to do heavy work, extreme range of movement and upon climbing or prolonged working etc. With residual pain and stiffness of left shoulder, she will have difficulty on frequent exertion. She will also have limitation on elevating her upper limb. Her current job as construction site general worker with light duty is a more suitable replacement. In general, she may need intermittent breaks of 15 minutes after each 1.5 hours’ work.”

27.  I accept Dr Tio’s view and his assessment of loss of earning capacity at 3.5%.  This figure will be adopted for assessing quantum.  YB’s appeal against the assessment by the ordinary assessment board is allowed.

Compensation under section 9

28.  YB was 53 years old at the time of the Accident.  According to section 7(1)(b) of the Ordinance, the compensation in case of permanent total incapacity of an employee at this age should be 72 months’ earnings.  But YB’s case is not permanent total incapacity but permanent partial incapacity.

29.  According to YB, her daily wage at the time of the Accident was HK$580 and her average monthly income for 12 months before the Accident was HK$18,105 (HK$217,260 x 1/12).  But counsel for YB and counsel for the Board agreed to adopt a slightly lower figure HK$17,810 for the purpose of assessment.  I do not see any unfairness in this figure and will adopt the same.

30.  Her compensation for permanent partial incapacity under section 9 of the Ordinance is assessed as follows:-

HK$17,810 x 72 months x 3.5% = HK$44,881.20

Compensation under section 10

31.  Sick leave certificates were issued to YB covering the following periods:-

12/01/2016 – 05/06/2016

07/06/2016 – 11/06/2016

13/06/2016 – 31/12/2016

02/01/2017 – 20/01/2017

22/01/2017 – 05/02/2017

07/02/2017 – 12/05/2017

14/05/2017 – 06/06/2017

08/06/2017 – 11/07/2017

13/07/2017 – 22/07/2017

24/07/2017 – 15/08/2017

17/08/2017 – 25/08/2017

28/08/2017 – 13/10/2017

16/10/2017 – 10/11/2017

12/11/2017 – 19/01/2018

06/02/2018 – 17/02/2018

19/02/2018 – 17/03/2018

32.  There are 763 days of sick leave in total.  This exceeds the usual 24-month limit for claiming periodical payment for temporary incapacity under section 10(5) of the Ordinance.  Counsel for YB invited the court to exercise its power under the section and extend the 24-month period so that YB can claim periodical payment for the full sick leave period.  I am prepared to grant an extension.  Here we are talking about an extension for 1 to 2 months.  Looking at the sick leave certificates towards the end of the sick leave period in February and March 2018, YB was suffering from left chest wall pain.  The same complaint was raised at the joint medical examination by the 2 experts on 12 October 2018.  YB only started to work again in late March 2018 after the expiration of sick leave. Dr Tio stated that with reference to the severity of her injury and the clinical presentation and in view of her pre-injury work nature, the sick leave granted to her was appropriate.  I accept Dr Tio’s view and would assess YB’s compensation for temporary incapacity based on the sick leave period as supported by the sick leave certificates.

33.  The compensation for temporary incapacity under section 10 of the Ordinance is as follows:-

HK$17,810 x 763/30 days x 4/5 = HK$362,374.13

Compensation under section 10A

34.  YB is claiming HK$5,835 as medical expenses for treatment by government hospitals under section 10A of the Ordinance.  She submitted a bundle of receipts to support her claim.  This figure was accepted by counsel for YB and counsel for the Board as correct.  I will allow this figure.

Summary on quantum

35.  In summary, I have assessed YB’s claim for employees’ compensation as follows:-

Under section 9                                             HK$44,881.20

Under section 10                                         HK$362,374.13

Under section 10A                                          HK$5,835    

                                                                  HK$413,090.33

Less: Advance Payment Received

        from CKPCL                                        HK$62,000    

                                                                  HK$351,090.33

Conclusion

36.  In conclusion, I order CKPCL to pay YB the sum of HK$351,090.33.

37.  Interest is awarded on the aforesaid sum at half judgment rate from the date of the Accident on 12 January 2016 to the date of judgment and thereafter at judgment rate until payment in full.

38.  I make a costs order nisi that for this employees’ compensation application, CKPCL do pay the costs of YB (including all costs reserved) incurred vis-à-vis CKPCL and the Board and that CKPCL also do pay the costs of the Board (including all costs reserved), in each case to be taxed if not agreed with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days. YB’s own costs to be taxed in accordance with the Legal Aid Regulations.

39.  Lastly, I thank counsel for YB and counsel for the Board for their kind assistance.