WONG YAT PING v. CARITAS – HONG KONG

DCEC 2123/2015

[2018] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2123 OF 2015

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JUDGMENT

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1.  This is the assessment of the quantum of compensation payable by the respondent to the applicant under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (“ECO”). I would first set out the background.

Background

2.  On 24 January 2014, the applicant sprained her right wrist and right thumb whilst preparing food, cutting vegetables and opening food storage containers in an accident arising out of and in the course of her employment with the respondent (“the accident”).  The applicant was employed by the respondent as a care assistant at the time of the accident.

3.  On the date of the accident, the applicant was 48 years old.

4.  On 4 February 2015, the applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”).  On 18 February 2015, the Board issued a Form 7 (“the Form 7”).  On 18 March 2015, the Board reviewed the assessment made in the Form 7.  On 1 April 2015, the Board issued a Form 9 (“the Form 9”).  As per the Form 9, the loss of earning capacity permanently caused by the injury suffered in the accident is 2%.  Further, the periods of absence from duty necessary as a result of the injury (total 393 days) set out in the Form 9 are as follows:-

(1)  from 24 January 2014 to 7 May 2014;

(2)  from 30 May 2014 to 22 June 2014; and

(3)  from 27 June 2014 to 18 March 2015.

5.  On 30 November 2015, an interlocutory judgment on liability (“the interlocutory judgment”) was entered for the applicant and against the respondent, and costs on liability up to the date of the interlocutory judgment was awarded to the applicant.

6.  On 19 May 2016, the applicant was jointly examined by Dr Lam Kwong Chin (“Dr Lam”, the medical expert appointed by the respondent) and Dr Lau Sing Ki Kenric (“Dr Lau”, the medical expert appointed by the applicant).  Dr Lam and Dr Lau have produced a joint medical report dated 11 July 2016 (“the Joint Report”).

7.  By a notice of appeal dated 4 July 2018, the applicant has lodged an appeal (“the appeal”) against the assessment of loss of earning capacity permanently caused by the injury stated in the Form 9. 

The agreed items

8.  At the beginning of this trial, Ms Virginia Leung, counsel for the applicant, has abandoned the appeal.  Ms Leung elects to rely upon the figure in the Form 9 for the purpose of calculating the compensation payable under ECO s 9, ie the loss of earning capacity permanently caused by the injury being 2%. Ms Leung suggests that the compensation payable under ECO s 9 is as follows:-

HK$9,205.00 x 2% x 72 = HK$13,255.20

9.  Ms Vanessa Kwok, counsel for the respondent, accepts that the compensation payable under ECO s 9 is the above.

10.  Both Ms Leung and Ms Kwok agree that the compensation payable under ECO s 10A is HK$6,477.00.

11.  Ms Leung and Ms Kwok also agree that there should be interest on the total awarded to the applicant at half of the judgment rate from the date of the accident until the date of this judgment, and thereafter at judgment rate until full payment.

12.  Both counsel agree that the applicant’s witness statement filed by the applicant and a witness statement filed by the respondent be deemed as evidence in this trial without calling the witnesses.  However, the two witness statements may not have much relevance on the only issue in dispute as set out below.

The only issue

13.  The only difference between the parties is the compensation payable under ECO s 10.  The parties cannot reach an agreement on the length of the period during which the applicant was temporarily incapable to work.

14.  Ms Leung submits that the applicant should be regarded as temporarily incapable to work during the 393 days as set out in the Form 9, and the 41 days covered by the sick leave certificates issued after 1 April 2015 (“the Relevant Sick Leave Certificates”).  Ms Leung submits that for the purpose of calculating the compensation under ECO s 10, the period during which the applicant was suffering temporary incapacity should be 393 days + 41 days = 434 days.

15.  Ms Kwok accepts that the applicant is entitled to have the 393 days stipulated in the Form 9.  However, Ms Kwok does not accept that the applicant can have the extra 41 days mentioned in Ms Leung’s submissions.

16.  I have drawn counsel’s attention to ECO s 10(2), which provides:-

“For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

17.  I have also drawn counsel’s attention to the Court of Appeal’s decision in Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, in which the Court of Appeal said at [28]:-

“…… In the context of employee compensation claims, the weight to be attached to sick leave certificate is governed by s 10(2) of the Employees’ Compensation Ordinance. The judge did not address this section in her judgment of 15 September 2014. Though she referred to it in her subsequent decision on refusal of leave to appeal, she did not refer to relevant court of appeal authorities on the effect of this section: Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 and Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKC 582. In a nutshell, the correct legal position is this: s 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.”

18.  The respondent does not accept that the applicant should be entitled to have the 41 days covered by the Relevant Sick Leave Certificates for the purpose of calculating the compensation under ECO s 10.  By the operation of ECO s 10(2), the respondent bears the burden to rebut the presumption created by the Relevant Sick Leave Certificates.  The only issue to be resolved in this trial is whether the respondent can rebut the said presumption.

Analysis

19.  The Relevant Sick Leave Certificates are 6 sick leave certificates issued by different doctors in the Tseung Kwan O Po Ning Road Government Out-Patients Clinic (“the Government Clinic”)[1].

20.  Ms Kwok submits that the presumption created by the Relevant Sick Leave Certificates under ECO s 10(2) has been rebutted.  Ms Kwok relies upon the following:-

(1)  A letter dated 17 May 2014[2] issued by a medical doctor appointed by the respondent, Dr Tio Man Kwun Peter, in which Dr Tio said that the applicant was seen by him since 28 February 2014.  Dr Tio expressed the following opinion in the letter:-

“She is considered to have achieved a state of maximal medical improvement and she is fit for medical evaluation of her injury by [the Board].”

(2)  A medical report dated 8 July 2014[3] by a medical doctor appointed by the respondent, Dr Chun Siu Yeung, in which Dr Chun said that the applicant was examined by him on 9 June 2014.  Dr Chun expressed an opinion in the said report that the applicant would require no further treatment and would be able to return to work as a personal care assistant.

(3)  Dr Lam’s opinion as set out in §§122 to 124 of the Joint Report, in which Dr Lam said that the sick leaves granted to the applicant were unduly prolonged and unnecessary.  Dr Lam took the view that at most sick leave of 3 months would be sufficient.  Dr Lam also said that the sick leaves given to the applicant were based upon subjective symptoms reported to the attending doctors at the consultations.

(4)  The various rehabilitation plans signed by the applicant and the respondent during the period from 23 April 2014 to 19 July 2014.  In all these plans, the parties estimated that the applicant would be able to resume her duties at a time within 2014.

21.  Ms Leung submits that the respondent has not rebutted the presumption in ECO s 10(2).  Ms Leung also mentions that in the Joint Report, at §124, Dr Lau expressed an opinion that all the sick leaves granted to the applicant were necessary and fair.

22.  With respect to Ms Kwok, I am unable to accept the respondent’s submissions.

(1)  The Relevant Sick Leave Certificates were issued by various doctors in the Government Clinic as a result of the consultations during the period from 10 April 2015 to 14 May 2015.  There is no evidence showing that in all these consultations, the doctors made the decisions of granting the sick leaves by merely relying upon the subjective symptoms told by the applicant without conducting any medical examination and exercising independent medical judgment.

(2)  Dr Tio’s letter and Dr Chun’s report concern the applicant’s situation in 2014.  Both Dr Tio and Dr Chun have not examined the applicant in April or May 2015.  It would be difficult to say that as a result of the opinions expressed by Dr Tio and Dr Chun in 2014, the Relevant Sick Leave Certificates should not be regarded as accurately reflecting the applicant’s situation in April and May 2015.  Further, the respondent’s acceptance of the assessment as stated in the Form 9 means that the respondent has conceded, inter alia, that the applicant is entitled to have sick leave from 27 June 2014 to 18 March 2015. That concession undermines the weight to be attached to Dr Tio’s letter and Dr Chun’s report.

(3)  Dr Lam has expressed his own opinion in the Joint Report.  However, as said in the above, there is no evidence showing that the Relevant Sick Leave Certificates were only based upon the subjective symptoms told by the applicant without any medical examination and independent medical judgment.  I would not regard the Relevant Sick Leave Certificates as unreliable as a result of Dr Lam’s opinion.

(4)  The various rehabilitation plans mentioned in Ms Kwok’s submissions are the estimations made by the applicant and the respondent in 2014.  Subsequent events show, and it is not in dispute, that the applicant was not able to resume duty in 2014.  So the estimations in those plans have been overtaken by subsequent undisputed events.

23.  In my judgment, the respondent has not rebutted the presumption created by the Relevant Sick Leave Certificates by the operation of ECO s 10(2).  In the circumstances, the extra 41 days should be taken into account in calculating the compensation under ECO s 10.

Quantum of the compensation payable

24.  By reason of the aforesaid, the compensation payable by the respondent to the applicant is as follows:-

(1)  Under ECO s 9

HK$9,205.00 x 2% x 72 = HK$13,255.20

(2)  Under ECO s 10

HK$9,205.00 x 4/5 x 434/30 = HK$106,532.50

(3)  Under ECO s 10A

HK$6,477.00

25.  The total of the aforesaid is HK$13,255.20 + HK$106,532.50 + HK$6,477.00 = HK$126,264.70.  the respondent has made some advanced payments to the applicant, the total of which being HK$43,774.10. Accordingly, the quantum of the compensation now payable by the respondent to the applicant should be HK$126,264.70 - HK$43,774.10 = HK$82,490.60.

Disposition

26.  I order that the respondent do pay the compensation as stipulated in paragraph 25 above to the applicant.  There be interest on this sum at half of the judgment rate from the date of the accident to the date of this judgment, and at the judgment rate until full payment.

27.  I also make a costs order nisi that save and except the costs provided in the interlocutory judgment, costs of these proceedings (including all costs reserved) be to the applicant, to be taxed if not agreed.  There be a certificate for counsel for this trial.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

28.  Lastly, it remains for me to thank Ms Leung and Ms Kwok for the assistance provided to this court.