TSANG HO LEUNG v. SO KA KIT AND ANOTHER

DCEC662/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 662 OF 2009

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D E C I S I O N

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1.  This is the applicant’s application for two orders, namely:-

(1) The applicant does have leave to appeal against the certificate of review of assessment, Form 9, dated 23 October 2008, pursuant to Section 18(2) of the Employees’ Compensation Ordinance (“The Ordinance”), out of the statutory time limit;

(2) The applicant does have leave to apply for cancellation of the certificate of assessment, Form 5, dated 30 October 2008, pursuant to Section 16(B)(2) of the ordinance, out of the statutory time limit.

Background

2.  The applicant sustained injuries in the course of work on 19 July 2007 and commenced the present proceedings on 19 June 2009.

3.  The Employees’ Compensation (Ordinary Assessment) Board (“The Board”) assessed the applicant’s injuries to be back sprain resulting in:-

(1) Back pain and stiffness; and

(2) Left lower limb numbness, weakness and muscle atrophy. 

The permanent loss of earning capacity was assessed to be 3%.  This is all contained in the certificate of review assessment, Form 9, dated 23 October 2008.

4.  By a certificate of compensation assessment, Form 5, dated 30 October 2009, the Commissioner for Labour certified that the permanent loss of earning capacity suffered by the applicant as a result of the accident was 3% and the total amount of $79,540.04 should be paid to the applicant as employee’s compensation.  The applicant intends to appeal against these two certificates, but the appeal was out of time and so the applicant now applies for leave from this Court for the purpose of appealing those two certificates.

5.  One of the factors this Court has to consider whether to give leave for appeal or not is the merits of the appeal.  If the application shows that there is no merit whatsoever, then of course, it is meaningless to grant the extension.  The respondent has made a suggestion that the motivation of this application is questionable, namely, the applicant made two affirmations to support the application but the merits of the application were only set out in the second affirmation.

6.  This summons was taken out on 18 June this year.  The first affirmation of the applicant was dated 16 June 2009.  In this affirmation, he set out some headings:  under paragraph 5, “Brief Background Of The Accident”, and then under paragraph 11 of the affirmation there is the heading, “Incidents Leading To The Delay”.

7.  The date for hearing the summons was dated 29 June 2009.  The second affirmation of the applicant was only filed on 30 July 2009. 

8.  Concerning the first affirmation, it was filed on 19 June 2009; the summons was filed on the same day.  At that time the applicant was represented by Cheng & Wong, Solicitors.  In the first affirmation, under paragraph 10, he said,

“As the result of the accident, I suffer back sprain resulting in back pain and stiffness; and left lower limb numbness, weakness and muscle atrophy.” 

So that is all about it.  There was no comment on the percentage of loss of earning and other matters set out in the second affirmation.

9.  In the second affirmation, which was filed on 30 July 2009, one month after the first affirmation had been filed, the applicant set out in detail about the merits of the appeal.  These matters are set out under paragraphs 5, 6, 7, 8,  9, all the way down to the end of the affirmation.

10.  Now, the particular paragraph which should attract attention is paragraph 14.  There, he said,

“At present, I am still suffering from back pain.  I need to take a rest every 15 minutes when I walk.  I have to take a walk after sitting for 10 minutes.  I am unable to lift heavy objects.  I have difficulties in walking up and down the stairs.  I find particular pain at my back when I bend down.  I am unable to resume my previous job as a foreman in construction sites.  My work requires frequent standing and walking.  It is also my usual duties to lift, carry, push or pull heavy materials.”

11.  At 15,

“In consideration of my physical condition, I verily believe that the assessment of my permanent loss of earning capacity of 3 per cent of the review certificate is on the low side.”

12.  If the contents of paragraph 14 had crossed the mind of the applicant before he took out the present application at the end of June when he was represented by a solicitors’ firm, he should have set all this out in the first affirmation.  Now, obviously, the omission of this paragraph from the first affirmation indicates that the matters contained in paragraph 14 did not pass his mind at that time.  If it had been so before the taking out of the summons, no doubt he would have set out in his affirmation when he was represented by a solicitors’ firm.   

13.  There is no expert evidence from the applicant’s side to confirm whether that is the situation.  It merely is the applicant’s own saying without any independent medical support.  What the applicant should have done is to seek an independent medical expert before taking out the present summons so that the court would have expert evidence to consider whether the application is supported or not. 

14.  If the matters set out in paragraph 14 of the second affirmation had passed the mind and been considered by the applicant, I really wonder why they had not been set out in the first affirmation.  Merely relying on the contents of the first affirmation the applicant has no chance or opportunity of success for the present application; so the observation made by the respondent  is really grounded. 

15.  I find that the motivation to make this application by the applicant is doubtful and the matters set out under paragraph 14 are also doubtful.  It may be that there is some truth in it, I do not know how much.

16.  The applicant’s counsel sets out his grounds for making this application.  Under paragraph 12 of the skeleton argument, Mr Cheng submits that,

“The applicant was granted further sick leave after the issuance of the review certificate and currently, the applicant is attending treatment sessions at the United Christian Hospital. 

Section 10(2) of the ordinance provides that, ‘A period of absence from duty certified to be necessary by a registered medical practitioner shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.’ 

The applicant was granted further sick leave after the reassessment carried out on 9 October 2008.  By operation of presumption under Section 10(2), the period of absence from duty necessary as a result of the injury stipulated in the review certificate was inaccurate and did not reflect the actual impact of the injury to the applicant.”

17.   Now, the compensation payable under Section 10 of the Ordinance, under (1),

“The compensation is loss of earnings during the period of the temporary incapacity after the accident.” 

18.  Under (2),

“A period of absence from duty certified to be necessary by a medical 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.”

19.  The review certificate indicates that the original assessment was made on 8 May 2009 and then the date of the review was 9 October 2009.  The attachment shows periods of absence from duty necessary as a result of injury, the last day is 9 October 2009.  That must be right, although the applicant’s counsel says that it should be a few days after 9 October.  Now, the review was made on 9 October, so up to that time the period of absence before that as set out there are correct and not challenged and you can only make an assessment up to 9 October, so the certificate itself is correct. 

20.  The applicant, according to his counsel, had several months of sick leave after the day of assessment.  There is no problem for a compensation to be made in that regard because the certificate of review of assessment is not indicative of all the period of sick leave which the applicant had for this injury.  The certificate only sets out the period of absence up to the date of review.  After that day, the applicant, no doubt, can adduce evidence from doctor or from hospital to substantiate his further compensation, so I cannot see anything wrong with this certificate.

21.  Now, I go back to Section 10(1).  The compensation is to cover the period of the temporary incapacity.  The period of the temporary incapacity may be an aggregate of different periods of absence from duty added together.  The total period of temporary incapacity is not conclusively reflected in the review certificate.  It is revealed by the matters set out in the review certificate and/or other documents required under Section 10(2), for example, certificates issued by a medical practitioner, a registered dentist after the day of review.

22.  So the conclusion is that the review certificate itself was correct insofar as the setting out of the periods of absence from duty; so the applicant’s counsel’s submission that, “It was not accurate, it did not reflect the actual impact of the injury to the applicant”, is not correct. 

23.  The actual impact is not merely reflected by the review certificate but it was also reflected in the further medical certificates issued by registered medical practitioners in the form of sick leave certificate issued after the review; so it is not correct to take the review certificate as the only conclusive evidence to the exclusion of other documents issued by a medical practitioner or a registered dentist mentioned under (2) of Section 10. 

24.  The next ground to support the application as referred to by Mr Cheng is the medical report engaged by the respondent, namely, Dr Wong Kok-shing, dated 21 July 2008.  Now, Mr Cheng set out some parts of the report to support his submission,

“Present Condition: Physical examination shows weakness of left lower limb for general ambulation, widespread tenderness over thoracic lumbar spine and widespread muscle spasm and guarding.  Back movement is very much restricted in all directions.  Simulation tests are negative.”

25.  Paragraph 54,

“In the presence of so many objective abnormal physical signs, it is essential to find out the exact underlying cause by detailed investigations.”

26.  Paragraph 59,

“Return to work:  From the Orthopaedic perspective, Mr Tsang’s present condition he is definitely not fit to returning to his pre-accident job as a construction worker.”

27.  It is submitted that the review assessment was carried out at the time when the applicant’s physical condition had become stable and re-assessment of his permanent loss of capacity of 3% of the review certificate is on the low side.  Now, I cannot see and Mr Cheng did not try to demonstrate how the matters cited by me just now would reflect that the 3% in the review certificate is on the low side. 

28.  This morning, Mr Cheng told me that he relied on the evidence of the applicant and the medical report of Dr Wong to support this application.  I refer to paragraphs 55 and  56 of that report.  Paragraph 55 says,

“Assessment of permanent impairment (for reference only):  Mr  Tsang is estimated to have 1 to 2 per cent whole person impairment for his soft tissue back sprain injury sustained during the accident.”

29.  More important is paragraph 56,

“Evaluation of loss of earning capacity (“LOEC”) for employees’ compensation purpose, Mr Tsang is estimated to have 1 to 2 per cent LOEC for his back sprain injury sustained in the accident.”

30.  According to the report, the interview and physical examination of the applicant at Dr Wong’s clinic was on 21 July 2008.  The Employees’ Compensation (Ordinary Assessment) Board revealed the assessment made on the applicant on 9 October 2008; so Dr Wong’s report predates the certificate of review of assessment.  The certificate of compensation assessment was dated 30 October 2008.  Both certificates refer to the fact that the loss of earning capacity permanently caused by the injury on the applicant was 3%. 

31.  The estimation of loss of earning capacity by Dr Wong is lower than the assessment made in both certificates, so really I cannot see how Dr Wong’s report would support the applicant’s application today.

32.  What is more important is that under paragraph 59 of Dr Wong’s report about returning to work; the respondent’s counsel drew my attention to the part not mentioned by Mr Cheng.  The whole paragraph of 59 says,

“Return to work:  From the orthopaedic perspective, Mr Tsang’s present condition is definitely not fit to returning to his pre-accident job as a construction worker.  However, as far as soft tissue back sprain injury is concerned, he should be capable of returning to his pre-accident job with only mild reduced work efficiency.”

33.  So the submission by Mr Cheng that the 3% loss of earning capacity is low is not supported by any independent medical evidence.  I am unable to say why it is low according to the materials.  Quantifying a figure is not easy.  To make an estimation percentage is a difficult matter, but then to say that it is too low, there must be some factual matters to support it and to say why.  There is none here. 

34.  The applicant’s application is that the sick leave granted in the certificate is wrong and the percentage is wrong.  Now, there is no prima facie case whatsoever to support those two submissions; so there is no merit in the application.  I must stress that paragraph 14 referred to in the second affirmation of the applicant is really doubtful in its truth, because had he been truthful to support the application, then he should have made that out in the first affirmation. 

35.  There is no merit in the application.  I refuse it.  I dismiss the application.

(Discussion re costs)

36.  Costs of this application be to the respondent, to be taxed, if not agreed.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.