YEE PO KUEN v. WIN LEADER ENGINEERING LTD

LA/ECC/15099/2011(R10)

DCEC 215/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 215 OF 2009

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BETWEEN

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JUDGMENT

Introduction

1.  On 3^rd March 2007, the Applicant (“Yee”), a telecommunication technician employed by the Respondent, was laying and connecting an underground telecommunication cable between 2 manholes at Cheung Sha Wan, Kowloon, with 2 colleagues. In the course of doing so, Yee hit his back against the metal edge of the manhole (“Accident”) and sustained injury to his back.

2.  This is a claim for employees’ compensation brought by Yee. Judgment on liability was entered on 30^th June 2009. The hearing before me was for assessment of the compensation under sections 9, 10 and 10A of the Employees Compensation Ordinance (“Ordinance”).

3.  On 9^th March 2011, an Order to appoint Yee’s mother, Madam Chu Mei Kei, as the next friend of Yee was made because Yee was diagnosed, since September 2008 (which is about 1.5 years after the Accident), by the Castle Peak Hospital (“CPH”) to be suffering from severe depressive disorder.

4.  In this hearing, Counsel on both sides have helpfully indicated that the following are not in dispute:

(a) Yee’s pre-accident monthly income was $8,227 per month;

(b) The sick leave period as stated in certificate of review of assessment (“Form 9”) was 563 days;

(c) The medical expenses under section 10A of the Ordinance are agreed at $13,191;

(d) Advance payment of $79,179.80 was made by the Respondent to Yee and credit should be given by Yee on this sum.

5.  By a joint medical report dated 4^th December 2009 prepared by the orthopaedic experts of the parties (“Joint Orthopaedic Report”), Dr. Danny Tsoi for Yee (“Dr. Tsoi”) opined that the loss of earning capacity of Yee was 1%, whereas Dr. Chun Siu Yueng for the Respondent (“Dr. Chun”) took the view that the loss of earning capacity of Yee should be 0.25%.

6.  Mr. Gidwani, Counsel for the Respondent, has again very helpfully agreed that, for the purpose of this assessment hearing, the Respondent is prepared to agree to Dr. Tsoi’s assessment of 1% as the loss of earning capacity of Yee from an orthopaedic point of view.

7.  A single joint psychiatrist, Dr. Chung See Yuen (“Dr. Chung”), was also engaged by the parties to assess Yee. Dr. Chung prepared 3 reports between 19^th April 2010 and 14^th April 2011.  In each of these reports, Dr. Chung maintained a consistent view that Yee suffered from adjustment disorder only. Yee’s loss of earning capacity, from a psychiatrist’s point of view, was 1%.

8.  This is different from the review assessment given in Form 9 by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) on 15^th June 2010[1]. The injury described in Form 9 was “back injury resulting in (i) back pain and right sciatica (ii) mental impairment. The loss of earning capacity was assessed at 37%, a substantial increase from the initial assessment of 0.25% in Form 7[2].

9.  Yee would like to rely on the review assessment in Form 9. The Respondent, however, has lodged an appeal under section 18 of the Ordinance against the review assessment.

Issues

10.  In the circumstance, the core issues which require determination by this Court are:

(a) What should be the loss of earning capacity of Yee under section 9 of the Ordinance?

(b) Should a period of 121 days between 1^st September 2008 and 31^st January 2009 not stated in Form 9 but opined by Dr. Chung as reasonable sick leave period be taken in account in computing payment under section 10 of the Ordinance?

11.  It needs to point out at this stage that Yee did not appear in Court to give evidence before me. I was told by Mr. Wong, Counsel for Yee, that Yee was strongly advised by the treating doctor of the CPH in the follow-up appointment on 28^th November 2011 that, due to his mental condition, he should not attend this hearing. He was also given another urgent appointment for follow-up on 5^th December 2011. For that, Mr. Wong submitted the two relevant follow-up medical chits as proof. Mr. Wong further conceded that Yee’s witness statement had to be withdrawn from this Court’s consideration in the circumstance.

12.  In reply, Mr. Gidwani, Counsel for the Respondent, said that he had nothing to say except that Yee’s witness statement should not be considered by me.

13.  For the purpose of this assessment, Yee has called his mother, his secondary schoolmate/friend for over 10 years (“Mr. Leung”) and Dr. Ng Lee Ying of the CPH (“Dr. Ng”), who treated Yee from 1^st July to 30^th December 2010, to give evidence in Court.

14.  Dr. Chung See Yuen was also called to give evidence before me.

The Applicant

15.  Yee did not attend the hearing of assessment to give evidence before me; thus his witness statement and supplemental witness statement will not be considered by me. Despite that, I do have a brief idea of Yee’s background from what I read from the medical notes and various expert reports as well as from the evidence of his mother and Mr. Leung (whom I find to be honest and credible witnesses).

16.  Yee was born on 29^th April 1986. He was almost 21 at the time of the Accident. He came from a divorced family and his father had deserted the family for more than 10 years. He now lives with his mother and elder brother in a public housing unit which was recently purchased in his own name with a mortgage[3].

17.  He completed Form 4 with poor academic result. He started working at the age of 17 and had worked as a restaurant waiter, electrical apprentice and hair salon assistant. In or about 2005, he became a technician laying telecommunication cables. He met the Accident after a year or so on 3^rd March 2007. This job as a technician was the longest employment he had ever worked.

18.  There is no family history of mental illness.

19.  Since at a young age, Yee had been very good at playing basketball and was a star of the school basketball team. He was a central figure in his peer group and a convener of sports and social activities.

20.  After onset of his psychiatric symptoms, he had cut his connection with friends and even cancelled his mobile telephone service. He stayed at home for most of the time. He became hot-tempered, distressed and isolated.

21.  In or about December 2009, Yee was diagnosed with right testicular cancer. He had received 3 cycles of chemotherapy, all completed by 31^st March 2010. He was last seen by the Department of Clinical Oncology, Tuen Mun Hospital on 13^th April 2010. There was no clinical evidence of cancer recurrence. The prognosis based on his tumour markers was good[4].

Loss of Earning Capacity

The Orthopaedic Experts

22.  Since Mr. Gidwani for the Respondent has helpfully agreed Dr. Tsoi’s assessment of 1% at the beginning of this hearing (see §6 above), I do not intend to dwell too much on this aspect of the evidence.

23.  Suffice for me to say that both orthopaedic experts, Dr. Tsoi and Dr. Chun, agreed that Yee suffered from mild contusion injury of lower back soft tissue as a result of the Accident. Physical examination of his lower back by both orthopaedic experts on 3^rd November 2009 revealed mild tenderness over right paraspinal muscle with no muscle spasm detected. The range of motion of lower back in all directions was full and absent lower limb neurology was confirmed. The simulation tests were positive. Both experts agreed that these were features of symptom magnification. The actual degree of low back pain was very likely less serious than Yee described to them. Dr. Tsoi opined that the magnified symptoms and disability might be related to the depressive illness. Dr. Chun opined that this was illness behaviour.

24.  Both experts agreed that Yee’s injury has long attained a stage of maximal medical improvement and would not benefit from further treatment such as physiotherapy or occupational therapy. Yee should be able to resume his pre-accident job as a cable laying worker.

The Psychiatric Impairment

25.  Due to the matters aforesaid, the real issue on loss of earning capacity is related to the assessment of Yee’s psychiatric impairment. The Respondent doubted the genuineness and severity of Yee’s psychiatric illness, as he suffered only mild back injury. On the other hand, there is a marked difference between the review assessment given by the Board and the assessment of Dr. Chung, the single joint psychiatric expert.

From the Treating Doctors of CPH

26.  From various medical reports of the CPH, it was recorded that Yee first consulted the Mental Health Service on 19^th August 2008 (which was about 17 months after the Accident) for overdose of Amitriptyline. Since then, Yee received follow-up treatment at the CPH on a regularly basis ranging from about once every fortnight to about once every month.

27.  From the medical reports of the CPH that are available before me, Yee was seen and treated by at least five doctors (supervised by their senior of either the rank of Associate Consultants/Consultants or Chief of Service of General Adult Psychiatry) between September 2008 and October 2011. All treating doctors were of the opinion that Yee suffered from severe depressive episode.

28.  It was noted in the medical notes of the treating doctors that Yee made several attempts of suicide or self-harm since August 2008. He was admitted into either Pok Oi Hospital (“POH”) or CPH for at least 4 times, including: (1) 18^th to 21^st August 2008 into POH for overdose of Amitriptyline; (2) 2^nd to 4^th September 2008 into CPH for persistent depressed mood despite compliance to medication; (3) 19^th to 20^th October 2010 into POH, precipitated by the stress in handling legal proceedings, for self-harm by slashing his neck/wrist; (4) 15^th to 29^th September 2010 into CPH on medical advice.

29.  I find the discharge summary prepared by Dr. Karen SY Hung of the CPH on 4^th September 2008 particularly helpful in explaining why Yee’s psychiatric illness surfaced not immediately after the Accident but some time afterwards. I will simply reproduce the relevant parts of the discharge summary as follows:

“Reasons of Admission: Depressed mood with suicidal ideation

….

Since IOD, became depressed due to persistent LBP, pain does not hinder daily activities or ambulation but distressing in nature; felt worthless for limited working ability in manual work. Consulted different GOPD doctors and became increasingly depressed when doctors did not trust him or when doctors/physiotherapists told him that he is not going to recover;

….

Mood further deteriorated in recent 1 year as his back pain showed no improvement and he became increasingly convicted that his injury won’t recover; felt he was a burden to his family; also financial burden of paying mortgage as status of flat was changed from rental to bought under his name….developed occasional suicidal ideation when he did not want to think about his situation/future, had DO [drug overdose] ~20 tab Amytriptyline given for sleep by O&T twice without seeking medical attention over this year;…. More anxious with infrequent anxiety attacks with palpitations and tremor; more relaxed when he finished some household chores as he would feel he had done something; denied obsessive thoughts to clean up house. Self-care and simple housework maintained; relationship with family maintained.

….

started working again for a different company, same job nature, as day-employment; felt difficulty in coping in work efficiency and ability; frequent absence from work for LBP; felt guilty for poor work performance; felt that colleagues did not like him and would tease him, denied AH [auditory hallucination]/persecutory ideas.

Presented to POH AED on 18/8/08 for DO of Amitriptyline, claimed he wanted to get away from things in life and not have to think about anything more than really intending to die; no suicidal note/preparations made…

Mental State Examination[5]:

Permed hair; in black-framed glasses

Stares at floor

Psychomotor retardation; long pause before answering questions

Speech coherent and relevant; answers ‘don’t remember’ to a lot of events

Mood depressed; affect restricted

Vague referencial ideas; no AH

Not actively suicidal

….

Impression: Severe depressive episode”

30.  The most updated medical report on Yee was dated 17^th October 2011 and was prepared by Dr. Tse Wan Ying of the CPH. Dr. Tse revealed that Yee had deterioration of his mood in mid-October 2010 precipitated by his legal proceedings, leading to deliberate self harm by slashing his wrist and neck on 19th October 2010. He developed auditory hallucination and delusion of reference. The diagnosis in December 2010 was Severe Depressive Episode with Psychotic Symptoms. His mental condition remained refractory to various antidepressants including Fluoxetine, Mirtazapine, Duloxetine, Venlafaxine and Bupropion. Further, he had deterioration of mood in late August 2011 due to notification of the legal trial in December, leading to another suicidal attempt by overdose with psychiatric drug. Dr. Tse opined that the prognosis was poor, as Yee’s symptoms were not well controlled despite various antidepressants prescribed.  And it was difficult to predict the duration of treatment at this stage as treatment depended on the progress of his mental condition.

From Dr. Chung See Yuen

31.  In total, Dr. Chung has seen Yee twice and produced three reports on Yee as follows:

(a) 1^st report dated 19^th April 2010 (Dr. Chung interviewed Yee on 10^th March 2010) (“1^st Psychiatric Report”);

(b) 2^nd report dated 13^th September 2010 (Dr. Chung opined that there was no need for an interview with Yee this time) (“2^nd Psychiatric Report”);

(c) 3^rd report dated 14^th April 2011 (Dr. Chung interviewed Yee on 7^th April 2011) (“3^rd Psychiatric Report”).

32.  The 1^st Psychiatric Report was prepared prior to the issuance of Form 9. At that time, Dr. Chung was provided with the Joint Orthopaedic Report. He noted from it that Yee suffered relatively minor injuries and opined that:

“32.1. ….such mild injuries usually would not trigger a mental disorder.

32.2. He [Yee] has come across stressors of unemployment and their associated psychosocial adversities. It is likely that these stressors are related to the accident. I believe the accident and the resultant psychosocial adversities should be sufficient to trigger the adjustment disorder with depressed mood.

….

32.4. I believe the adjustment disorder with depressed mood is caused by the accident and the resultant stressors including certain degree of physical symptoms, problems encountered at work, unemployment and its associated psychosocial adversities. It is aggravated to a minor extent by the stressors due to carcinoma which is unrelated to the accident.

….

33.1. ….There is a relationship between pain and depressive disorders. People with depressed mood have their pain threshold lowered and they have greater problem in tolerating pain…. The significant degree of pain complained by him cannot be explained from a psychiatric point of view. I believe he should be less depressed by the physical symptoms as they should be better than he has portrayed.

….

33.3. I believe the adjustment disorder with depressed mood is largely in remission. He is only suffering from residual depressive symptoms currently….” (emphasis added)

33.  When the 2^nd Psychiatric Reports was prepared, Dr. Chung noted that a review assessment of 37% loss of earning capacity was provided in Form 9. However, he took the view that once the stressors faced by Yee terminated, his psychiatric symptoms would not persist for more than an additional of 6 months. He, once again, quoted from the Joint Orthopaedic Report that the actual degree of low back pain is likely less serious than Yee had described to Dr. Tsio and Dr. Chun, and concluded that such minor injuries would not trigger a significant mental disorder. He maintained his view that Yee only suffered from adjustment disorder with depressed mood and the same was largely in remission.

34.  On the other hand, Dr. Chung also noted that Yee was admitted into CPH for 2 days on 2^nd September 2008 for persistent depressed mood. But he pointed out that the nursing note showed Yee’s mental problem was mild, which was not consistent with a patient suffering from severe depressive illness. He also believed that the rapid improvement of Yee’s mental condition after 2-day’s in-patient treatment was unusual for patients with severe depressive illness.

35.  In gist, Dr. Chung opined in the 2^nd Psychiatric Report that Yee’s subjective depressive complaints were significant, but there was paucity of objective mental signs to support the diagnosis of severe depressive episode. There is no indication that Yee was prone to the development of a relapse of depressive episode in the future.

36.  Dr. Chung interviewed Yee on 7^th April 2011 (i.e. about 1 year since last interview) and prepared the 3^rd Psychiatric Report. He found that Yee spoke slowly, partly due to his depressed mood and partly due to his being careful in telling the history. He did not think that such slowness amounted to psychomotor retardation seen in patients suffering from major depressive disorder (but psychomotor retardation was noted by the treating doctors of the CPH).  Further, objective signs of major depressive disorder like decreased energy, feelings of excessive or inappropriate guilt, difficult thinking or decision-making, or suicidal ideation were not elicited during the interview.

37.  Dr. Chung came to the following conclusion in his 3^rd Psychiatric Report:

“I come to the conclusion that the major depressive disorder[6] with psychotic features is largely in remission. He is understandably more depressed in the last year due to the stressor of litigation. The current depressive problems are understandable adverse psychological reaction in response to the stressors of the litigation, worries related to his physical symptoms, unemployment, financial difficulty and its attendant psychosocial adversities. It is aggravated to a mild extent by his worries related to the testis cancer. I believe his current mental symptoms are compatible with the diagnosis of adjustment disorder with depressed mood (DSM-IV code no. is 309.0) made by me in my previous report dated 19 April 2010. I believe the nature of his mental problems caused by the accident has not changed in the last one year: the depressive problems are understandable adverse psychological reaction in response to stressors. It is likely that his mental condition would fluctuate in response to the prevailing stressors…As the recent deterioration is caused by the stressor of the litigation, it is likely that his mental condition will improve after the conclusion of the litigation.” (emphasis added)

38.  It is clear from the above that Dr. Chung maintained his diagnosis of adjustment disorder with depressed mood and assessment of loss of earning capacity at 1% in all of his reports. He took the view that objective signs of major depressive disorder was lacking in Yee’s case. As a matter of fact, Dr. Chung said in his oral evidence in Court that he thought Yee was a malingerer.

Discussion

39.  Mr. Gidwani is adamant to say in his closing submission that the assessment of loss of earning capacity at 1% by Dr. Chung should be preferred, because he is the single joint expert engaged by the parties. He is more experienced than and senior to the treating doctors of Yee, such as Dr. Ng. He adopts a more scientific approach considering both the subjective complaints of Yee and the objective mental examination by him. Mr. Gidwani also points out that Dr. Chung believed Yee was a malingerer; and symptom magnification was a theme agreed by both Dr. Tsoi and Dr. Chun, the orthopaedic experts.

40.  The Board’s review assessment of 37% in Form 9, Mr. Gidwani argues, is not justified in the absence of any head injury or brain damage or serious psychiatric disorder such as bipolar disorder or schizophrenia. Most depressions, according to Dr. Chung, are treatable and seldom chronic and would not justify a loss of earning capacity close to 40%. Mr. Gidwani further submits that the review assessment is certainly not proportionate to the scale of percentage provided in the First Schedule of the Ordinance. For example, in the First Schedule, loss of an entire nose gives only 25% whereas loss of hearing of one ear gives only 30% loss of earning capacity.

41.  Above all, Mr. Gidwani submits that Yee did not appear or give evidence in this assessment hearing, thereby depriving this Court a chance to assess his evidence.

42.  It is trite to say that the percentage of loss of earning capacity is a question of fact to be determined by the trial judge on the evidence as a whole. In Tang Shau Tsan v Wealthy Construction Company Limited, CACV 58/2000 (unreported, 5^th April 2000), Rogers JA (as he then was) had this to say on loss of earning capacity:

“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….

All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff.” (emphasis added)

43.  In Kan Wai Yip v Everbest Port Services, DCEC 383/2008, HH Judge Marlene Ng (as she then was) considered and elaborated on the rationale as explained in Tang Shau Tsan as follows:

“LOEC [loss of earning capacity] is a combination of various factors which include the injuries suffered by the employee and the resulting impairment as well as other matters of facts such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of [earning] with his impairment and the earnings he would have been able to make but for his injuries. These other factors concern matters of fact and it is for the judge hearing the case as arbiter of facts to evaluate such factual evidence as well as the medical evidence and then come to his own assessment of the loss of earning capacity.” (emphasis added)

44.  Whether a person was a malingerer or not is, in my Judgment, also a question of fact to be decided by the trial judge after considering all available evidence. It is true that Yee was not present in this assessment hearing so that I was devoid of a chance to observe him on a first-hand basis, but I am not lack of evidence to consider if Yee was a malingerer, for I do have for consideration the oral evidence of Yee’s mother and his friend, Mr. Leung, the medical notes and reports of the treating doctors or the CPH evidence as well as the medical expert reports prepared by the experts engaged by the parties.

45.  It is pertinent for me to say that Yee did not develop psychiatric illness immediately after the Accident. His first consultation with the Mental Health Service took place in August 2008. However, there is evidence before me that Yee’s depressed mood had actually started earlier than August 2008 because the medical report of Dr. Karen SY Hung of the CPH[7] recorded that “prior to that [August 2008], he had consulted various general practitioners for depressed mood and low back pain….”

46.  Despite his depressed mood, Yee attempted to work after the Accident as follows:

(a) Shortly after the Accident when the initial sick leave period expired, Yee resumed work with the Respondent. This can be reflected by the salaries paid to him in the months of March to May 2008[8]. He resigned on 4^th June 2007 due to increasing low back pain[9].

(b) In early 2008, he lost another job due to frequent absence from work for his low back pain[10].

(c) In June 2008, he worked as a technician installing optic fibres indoors for at least one month[11].

(d) In early 2009, he worked as a part-time waiter but stopped working after 1 – 2 months, as he had unstable mood and bad relations with colleagues[12].

47.  I take the view that if Yee was a malingerer, he would not have attempted repeatedly to work after the Accident but would have continued to idle around waiting to be compensated for his work-related injuries.

48.  Pausing here, one must not lose sight of Yee’s various admissions into the CPH. He was discharged against medical advice on 4^th September 2008, which meant that his condition was not fit to be released from the CPH in the eyes of the treating doctor(s). Had he been a malingerer, would he have insisted discharge against medical advice? There was also the admission into the CPH for 15 days from 15^th to 29^th September 2011 during which Yee was subject to full-time observation by the hospital. I regard it as inherently unlikely that anyone would malinger for the sake of compensation to the extent of allowing himself to stay as in-patient of a mental hospital and to consume various psychiatric drugs under close supervision.

49.  On the other hand, I note that though Dr. Chung opined that Yee suffered from adjustment disorder in all of his Psychiatric Reports, he had not interviewed Yee for the purpose of the 2^nd Psychiatric Report. He said that he had, on the other hand, read all psychiatric notes up to the last attendance on 15^th July 2010 and found that the notes during all the sessions in 2010 were similar.

50.  I have read each page of the psychiatric/medical notes between 2^nd December 2009 and 15^th July 2010[13] carefully. While it is true that the notes on mental state examination during this period are basically the same, I note that the prescription of Quetiapine Fumarate, a psychiatric drug, was quadrupled over a short period of 3 months. It was doubled from 50mg for 4 weeks on 29^th April 2010 to 100mg for 4 weeks on 27^th May 2010.  On 24^th June 2010, it was increased to 150mg for 4 weeks and further increased to 200mg for 4 weeks on 15^th July 2010.  Such a percentage and pace of increase, in my view, is not an insubstantial one. It tends to show, more likely than not, that Yee’s psychiatric condition was far from steady, if not deteriorating, during that period; otherwise, the prescription would not have been increased as said.

51.  In so far as the 3^rd Psychiatric Report is concerned, my overall impression after considering the same and Dr. Chung’s oral evidence in Court is that: while Dr. Chung could not find any objective signs of severe depressive episode in his latest interview with Yee in April 2011(for the 3^rd Psychiatric Report), he found that Yee’s behaviour and emotion was worse than he last saw him in March 2010.  He did not doubt that Yee was depressed. In fact, he did not negate that Yee had suffered major depressive disorder (see §37 above). He further confirmed the same in his oral evidence in response to Mr. Wong’s questions:

“Q:Yes. But you actually came to the conclusion that the major depressive disorder with psychotic features was largely in remission after all these points?

A: Yes.

Q: But, Dr. Chung, would it be fair to say that you had not negated or concluded that he had never suffered any major depressive disorder?

A: I cannot exclude one.

Q: Particularly all your colleagues at Castle Peak Hospital had been consistent in having the same diagnosis throughout the years.

A: The reason is that I was not present when he was in the hospital, so I cannot doubt my colleagues. For a certain period of time, the patient did have some symptoms of severe depressive episode with psychotic symptoms.... ” (emphasis added)

52.  Essentially, Dr. Chung was telling me that he opined Yee suffered adjustment disorder on the date when he interviewed Yee, but could not rule out that Yee suffered severe depressive episode when he was in the CPH. This opinion, in my view, shows that mental illness can be a fluctuating health condition. A mental patient may be well today but his condition may deteriorate sharply the next day. Even if Yee showed less severity in his mental condition before Dr. Chung than he was before the treating doctors of the CPH, it does not necessarily follow that Yee was not suffering from severe depressive episode, let alone to say he was a malingerer.

53.  I also note that Dr. Chung interviewed Yee for longer hours each session than the treating doctors of the CPH (Dr. Ng said that she interviewed Yee for only 10 minutes to ½ hour each session). But given the likely fluctuating feature of mental illness, I would say that extensive interviews (i.e. regular but comparatively shorter sessions) by the treating doctors of the CPH, rather than intensive interviews (i.e. longer hours in only one session) by Dr. Chung, can better and more accurately reflect Yee’s psychiatric condition.

54.  Further, in considering the loss of earning capacity of Yee, I take into account that the Board is a statutory body set up with the sole purpose to assess the permanent disability of employees injured at work. According to section 16D of the Ordinance, the Board does not only make up of medical practitioner(s), but also a senior labour officer or labour officer. The former, very likely, will be in a better position to assess the injuries and resulting impairment from a medical angle, whereas the latter will have knowledge on the labour market and comparable earnings level of an employee. The assessment given by the Board would thus be more all-rounded and should be preferred.

55.  Due to the matters aforesaid, I take the view that Yee was not a malingerer. He did develop severe depressive episode as he found his back pain caused by the Accident could not subside after year-long treatment by the government hospitals. The testicle cancer only mildly and temporarily affected his mood. Taking into account all the evidence, such as his injuries, the resulting impairment, his background and  the labour market, I am satisfied that the review assessment of 37% given by the Board in Form 9 reflects more accurately the loss of earning capacity of Yee. This is also the loss of earning capacity I would assess and award to Yee in this action.

Sick Leave Period

Submission from Parties

56.  It is not in dispute that 563 days of sick leave was provided in Form 9. Mr. Gidwani thus submits that computation of the sick leave payment of Yee should be based on 563 days only.

57.  However, Mr. Wong argues that on top of 563 days mentioned in Form 9, Yee should be allowed furthersick leave between 1^st September 2008 to 31^st January 2009 in total of 121 days[14] (“Further Sick Leave Period”) because Dr. Chung opined in his 1^st and 2^nd Psychiatric Reports that sick leave from September 2008 to January 2009 was reasonable from a psychiatric point of view.

58.  He also relies on Hong Kong Airport Services Ltd. v Kam Wai Ming, CACV 240/2010 in which the CA held that section 10(1) of the Ordinance provides for payments to be made by way of periodical payments or lump sum where temporary incapacity, whether total or partial, results from the injury. Therefore, once temporary incapacity is established, the employer’s obligation to pay periodical payment or lump sum arises. He refers me to the medical reports/notes of Dr. Karen SY Hung on the severity of Yee’s depressed mood to support his argument on Yee’s temporary incapacity during the Further Sick Leave Period.

Discussion

59.  I should start by referring also to Hong Kong Airport Services Ltd. v Kam Wai Ming, supra, where Fok JA held at §16 that:

“By section 10(2) a period of absence from duty certified to be necessary by one of the stipulated persons or bodies is deemed to be ‘a period of total temporary incapacity irrespectively of the outcome of the injury’. A sick leave certificate issued by a registered medical practitioner is the usual manner in which an injured employee obtains such certification to establish temporary incapacity for the purpose of section 10(1).” (emphasis added)

60.  I should also point out, without disrespect, that Counsel on both sides have yet to refer me to 2 sick leave certificates issued by Dr. Karen SY Hung of the CPH respectively (1) on 30^th October 2008 recommending sick leave to Yee from 30^th October to 4^th December 2008[15]; and (2) on 4^th December 2008 recommending sick leave to Yee from 4^th December 2008 to 2^nd January 2009[16]. These 2 sick leave certificates granting sick leave from 30^th October 2008 to 2^nd January 2009 (65 days in total) clearly cover part of the Further Sick Leave Period, but for unknown reasons, was not mentioned in Form 9.

61.  However, by virtue of section 10(2) of the Ordinance and applying the CA decision in Hong Kong Airport Services Ltd. v Kam Wai Ming, I am of the view that these 65 days should be counted in the computation of the assessment under section 10 of the Ordinance.

62.  That leaves the remaining Further Sick Leave Period of 56 days (121 – 65 days) for my further consideration.

63.  While I have considered Dr. Chung’s opinion on the reasonable sick leave period (see §57 above), I note from the psychiatric notes of the CPH that during the relevant period, Yee attended 7 follow up sessions, all with Dr. Karen SY Hung. Dr. Hung, being the treating doctor of Yee, did not deem it necessary to issue any sick leave certificates for these 56 days. On balance, therefore, I am not inclined to allow sick leave payment to Yee for these 56 days.

Conclusion

64.  The total compensation payable to Yee is therefore:

Section 9 :	$8,227 x 37% x 96	$292,223.04
Section 10 :	$8,227 x (563+65) /30 x 4/5	$137,774.83
Section 10A :	(agreed)	$ 13,191.00
		$443,188.87
	Less advance payment made	$ 79,179.80
	Total :	$364,009.07

65.  Accordingly, I make an Order that the employees compensation assessed and awarded to Yee be in the sum of $364,009.07.

66.  Yee is entitled to interest on the sum of $364,009.07 at half judgment rate from the date of the accident (i.e. 3^rd March 2007) to the date of assessment, and thereafter at judgment rate until the date of full payment by the Respondent.

67.  I will also make a costs order nisi that the Respondent do pay the costs of these assessment proceedings, to be taxed if not agreed, with certificate for Counsel. This costs order nisi will be made absolute in 14 days from the date of this Judgment.

68.  Yee's own costs are to be taxed in accordance with the Legal Aid Regulations.