DELIVERY HERO FOOD HONG KONG LTD formerly known as ROCKET FOOD LTD v. MOHAMMAD WASEEM

DCEC 2308/2020

[2022] HKDC 1114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2308 OF 2020

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JUDGMENT

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1.  This Application is brought by the applicant (“the Employer”), for assessment of compensation under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”), in respect of the respondent’s injury sustained in a traffic accident on 5 June 2019 in the course of his employment as a motorised food delivery worker.

2.  The assessment relates to the compensation payable under sections 9, 10 and 10A of the Ordinance.

3.  The hearing took place on 13 and 14 September 2022 in which the respondent had given oral evidence. The hearing was adjourned to 22 September 2022 for final submission and directions were given for the parties to serve and exchange written submissions. The respondent did not serve any written submission and did not attend the hearing on 22 September 2022. The matter proceeded in the absence of the respondent. On 10 October 2022, the respondent filed his written submission into court together with medical certificates showing he was hospitalized from 19^th to 29^th September 2022. Directions were given on 11 October 2022 for the respondent to serve his written submission on the applicant and the applicant to file and serve its submission regarding the respondent’s late written submission. Both parties have duly complied with the directions. Given that the reason for the respondent’s failure to file submission and attend court was due to his hospitalization and that the applicant had been given the opportunity to deal with his written submission, I allow both submissions to be filed and I have properly considered them.

4.  The respondent was born in Pakistan on 1 January 1978. He was married with 6 children ranging from 12 to 20 years of age. The wife and children all live in Pakistan. He and his wife were separated. The respondent started working for the applicant as a motorcycle food delivery worker since August 2017. His working hours were from 6 pm to 8 am. His average monthly wage for the 12 months preceding the accident was around $35,663. His wage for the month preceding the accident was $46,167.50.

5.  The Employee Compensation (Ordinary Assessment) Board’s assessment was done on 18 March 2021 wherein sick leave as a result of the injury was deemed necessary until 26 November 2020 and loss of earning capacity was assessed at 3%. This was reviewed on 10 June 2021 wherein the sick leave was extended to 8 April 2021 and 3% loss of earning capacity remained unchanged.

6.  Both parties have appealed the findings of the Review Board. It is then for this court to consider the matters afresh.

The respondent’s injuries and treatment

7.  There is no dispute the respondent suffered a fracture of the left ankle involving the medial lateral and posterior malleoli and that he underwent surgery of open reduction and internal fixation on 17 June 2019. He was discharged on 24 June 2019 and followed up in out-patient clinic. He was referred to physiotherapy and occupational therapy for job rehabilitation. According to the physiotherapy report from the Queen Elisabeth Hospital (“QEH”) dated 8 December 2020, the respondent had initial assessment on 12 September 2019. His condition improved progressively in subsequent sessions. On 30 October 2020, the respondent reported an overall 70-80% improvement over his left ankle. The reported walking tolerance was more than 1 hour. He attended a total of 27 sessions of treatment from 12 September 2019 to 30 October 2020.

8.  The respondent was granted sick leave by the treating doctors from 5 June 2019 to 8 April 2021.

Medical experts’ evidence

9.  The respondent was jointly examined by the parties’ orthopedic experts on 30 September 2021. The relevant opinions of the experts are as follows,

“Dr. Wong:

Mr. Mohammad’s left ankle fractures have healed up reasonably well, the prognosis should be satisfactory. However, since the injuries were severe and extensive surgery required to fix them, it is likely that he will still have some residual pain, stiffness, weakness and numbness around his left ankle. His ambulatory capacity for daily activities will be mildly reduced but for vigorous use or sports, moderate reduction is expected. On the other hand, he was tested by occupational therapist to have functional capacity matching his job demands and he was capable of driving a motorbike or a private car.

Dr. Lee:

Based on the findings of mildly impaired ankle joint and sub tailor joint movement, after his healed tri-malleolar fracture, without evidence of post traumatic arthritis, it is likely that the functional impairment and the residual pain at Mr. Mohammad’s left ankle are mild. Mr. Mohammad should not have impairment in ambulatory capacity. There may be some discomfort and impaired endurance on prolonged exertion.”

10.  Dr Wong assessed the loss of earning capacity at 5% after taking into consideration of the respondent’s pre-accident job as a motorcycle food delivery worker, of which he was required to ride a motorcycle, walk and climb stairs and carry food packages frequently. Dr Lee’s assessment was 3%.

11.  In respect of sick leaves, Dr Wong opined that the sick leaves given to the respondent by MAB on Form 9 were reasonable, considering he had severe fractures and he only completed physiotherapy by 30 October 2020. According to Dr Lee, the normal sick leave for recovery for such fracture was about 9 months; taking into consideration that the respondent finished his rehabilitation by the occupational therapy in July 2020 and it was found that his work capacity matched his previous job demand, sick leave given up to end of July 2020 should be more than adequate for his recovery.

12.  The experts are largely in agreement except the period of sick leave and a slight difference in their assessment of the respondent’s loss of earning capacity.

13.  The Employer contends for an assessment of 1% for loss of earning capacity and seeks an order that the presumption of temporary incapacity arising from sick leave certificates beyond March 2020, alternatively May 2020 or September 2020 latest be rebutted and that credit be given in the sum of $579,861.55 being periodical payments paid up to 30 September 2020.

Deeming provision in s10(2)

14.  Section 10(2) reads as follows:-

“For the purposes of this section 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.”

15.  The Court of Appeal in Kan Wai Ming v Hong Kong Airport Services Limited, CACV 240/2010 reiterated that the presumption that a period of absence from duty so certified is a period of total temporary incapacity is rebuttable: Yu Tat Kam v Chu Tung Shing & anor, unrep., CACV 25/2008, applied. Thus, under section 16, an employer is entitled to require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination and if the employee does not do so, his right to compensation is suspended until the examination takes place. The employer is therefore able to obtain independent medical evidence which he may rely upon to rebut the presumption created by section 10(2).

16.  In Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, it was held by Lam VP that:-

“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.”

Dr Ho’s report

17.  Pursuant to section 16 of the Ordinance, the Employer arranged for the respondent to be medically examined by Dr Henry Ching Lun Ho on 14 May 2020. According to Dr Ho’s report, there was mild swelling and generalized numbness around the left ankle, the left ankle fracture had healed well but there may be minor and insignificant symptoms such as ankle fatigue which will be expected to wane with time and normal use. Dr Ho concluded that the respondent should be able to resume normal duty in his pre-accident occupation as an express food delivery worker and that the reasonable period of sick leave should not exceed 9 months.

Assessment of the respondent’s evidence

18.  There were surveillance videos taken of the respondent in 2020 and 2021. The relevant parts of the videos were played in court. It was put to the respondent in cross-examination that the videos showed that he was walking without limping. The respondent disagreed. He said that the videos showed he was limping. It should be noted that none of the videos had been sent to the parties’ experts for comments.

19.  I have carefully watched the videos and found it very difficult to discern whether he was walking with a limp or not. On some occasions, the respondent appeared to be walking with a limp, for example, the video at about 11:48 to 11:49 hr on 16/4/2020; the video at about 16:59 hr on 8/5/2020, and the videos at about 13:33 hr and 14:05 hr on 14/5/2020. On other occasions, he seemed to be walking without an apparent limp.

20.  The respondent explained that he felt the pain but he did not want to show his limp and hence he tried to walk normal. He used a metaphor “a horse that limps is shot” to explain that. Mr Sakhrani, counsel for the Employer, said such explanation was self-serving and disingenuous in that if his symptoms really caused a distinctive limp or if they created any walking disability, there was no reason why he should not be natural and walk accordingly, ie. with discernible pain, a clear limp and limitation.

21.  Mr Sakhrani also pointed out that on one occasion on 16/4/2020 when there was a lift which would take the respondent from the street level down to the Jordan MTR concourse but he apparently walked past it and took the stairs down instead. It was on the same day that the respondent told the physiotherapist that he had an overall 60-70% improvement over his left ankle with pain during descending stairs scored 8 out of 10 on NPRS (numeric pain rating scale), and walking tolerance was 15 minutes. It was suggested to the respondent that the reason why he did not take the lift was because he had no problem walking down the stairs.

22.  The respondent explained that he was told by the physiotherapist to do more exercise or else he would be limping. That was why he would do as much exercise as possible and he took the stairs instead. He feared that if he limped it might become his walking style.

23.  It was also pointed out to the respondent that on 8/5/2020 he was seen walking up and down the stairs without the need to hold the handrail (see videos at about 16:19 hr, 16:24 hr and 16:27 hr). The respondent explained that he wanted to put more weight to it to give it more movement. He said he had pain and swelling over his left ankle but he tried to walk normal.

24.  I watched the videos again and found that on the occasion at about 16:19 hr, he did appear to slow down and walk up the steps slowly; on the occasion at about 16:24 hr, he did appear to be leaning on his right side and walking down the steps slowly. On the occasion at about 16:27 hr, the respondent was walking down 3 flights of stairs from a footbridge down to the street level. It was rather obvious that he had slowed down and walked down the steps very carefully.

25.  It was suggested to the respondent that he could walk for longer than he told the physiotherapist and Dr Ho. The respondent explained that he could walk longer than 15 minutes but if he did his left ankle would become swollen. He gave the example that when he woke up there was no swelling; when he took the taxi to the hospital there would not be any swelling; but after walking for more than 15 minutes his left ankle would become swollen. One can see from the medical records that there were occasions that his left ankle was swelling and on other occasions there was no swelling. On 16/4/2020 and 14/5/2020, swelling was noted over his left ankle. On 23/4/2020 and 18/6/2020, there was no swelling; on 30/7/2020 and 24/9/2020, there was swelling over his left ankle. No explanation for this phenomenon has been given by any of the medical experts. According to the respondent, he had pain over the left ankle and the swelling came on after he walked for longer than 15 minutes. Looking at his medical records, it does show that his left ankle condition fluctuated in that sometimes there was no swelling and at other times it became swollen. There is indeed certain truth in his allegation.

26.  Different people may have a different threshold for pain tolerance. The respondent may have a higher threshold for enduring pain. It is very difficult for the court to determine and reject the respondent’s complaint of pain by looking at the surveillance videos in the present case.

27.  The respondent was also criticized in relation to his complaint of numbness from mid leg to ankle. Dr Lee said the distribution of impaired sensation could not be explained and was unlikely to be genuine. Dr Wong said that his subjective reduced sensation of left leg and foot was non-anatomical in distribution and could not be explained by his left ankle fractures or the surgery performed but Dr Wong opined that some numbness around the surgical scars was possible.

28.  The respondent explained that there was numbness in the ankle and it increased up to his leg after he walked. After resting in the morning, there was no numbness. He confirmed that he did not mention it to the hospital during his visits between June 2020 and September 2020 that he suffered from numbness. The respondent suspected it might be caused by his back injury in 2003. He explained that he thought the back injury in 2003 was a separate incident and that was why he did not join the two incidents together. He told the court that “during the MRI, they found out there were some blood vessels stuck, the recent report from Pamela Youde Hospital said that the numbness might be caused by the dislocation of a disc at his back”. He also told the court that there was a day fixed for surgery on his back. Looking at the medical records, the respondent had indeed undergone a surgery in 2003 in relation to his L3/4 prolapsed intervertebral disc with cauda equine syndrome at QEH. Whether his back pre-existing condition had contributed to his complaint of numbness on his left leg had not been explored or addressed by the medical experts. In the circumstances, such possibility cannot be excluded. In any event, such numbness, if existed, was a result of his back injury in 2003. I will not take it into consideration in the present assessment.

Delay

29.  The Employer argues that there was delay occasioned by the respondent on the basis of Dr Lee’s opinion that the respondent delayed booking his physiotherapy as advised when mobilization was crucial and defaulted occupation therapy because he returned to Pakistan; the respondent had lengthened his rehabilitation by three to four months and that he would have completed his rehabilitation by March 2020. According to the respondent, he returned to Pakistan between 13 November 2019 and 24 December 2019 for a family funeral and that during his stay he had 2 physiotherapy sessions and hot pack treatment.

30.  There is no evidence or even suggestion that the respondent’s condition had worsened after he returned to Pakistan. In fact, Dr Lee found that the respondent’s condition continued to improve while in Pakistan. Dr Lee pointed out that the respondent was walking with a stick on 7 November 2019 but during the follow-up on 2 January 2020 he was walking unaided.

31.  On the evidence, I do not find there was any delay occasioned by the respondent.

Sick leave

32.  Different doctors may have different views on the duration of reasonable sick leave period. In deciding whether the Employer has discharged its burden in rebutting the presumption under section 10(2) of the Ordinance, I bear in mind the importance of giving due weight to the decision of the treating doctors who had decided to grant sick leave to the respondent because they had the advantage of seeing and assessing the respondent at the material time.

33.  The respondent had been receiving physiotherapy and occupation therapy since September 2019. The occupation therapists were the ones who conducted work rehabilitation training and assessment for the respondent. The following consultation notes recorded the respondent’s progress and the occupation therapists’ comments which are of particular importance

18 June 2020

“Patient still showed inadequate tolerance to meet job demand. Patient need to drive for work. Plan for final 4 weeks of work hardening and suggest patient for driving assessment. Please advise and issue referral for driving assessment if appropriate.”

Sick leave was extended to 30 July 2020.

30 July 2020

“….Overall capacity is able to meet job demand. However, patient still insists pain and limited dorsiflexion of ankle for job demand. Off-road driving assessment completed and fit for on-road assessment. Plan to stop training. Pending for on-road assessment with CRSSC.”

Sick leave was extended to 24 September 2020.

24 September 2020

“…walk unaided, ET-1 hr, mild residual pain after exercise, swelling over proximal part of distal fibula wound…
Plan of Management
recommended to continue physiotherapy and occupation therapy.”

Sick leave was extended to 26 November 2020.

26 November 2020

“Continue off-road assessment Part 2 - Simulator assessment (motorcycle).”

Sick leave was extended to 31 December 2020.

31 December 2020

“Walk unaided, tolerance around 60 mins… Left lower limb tiredness … - Continue on-road assessment with private car (AT)…-in-vehicle with motorcycle (probably in late Jan 2021).”

Sick leave was extended to 11 February 2021.

34.  One can see from the consultation notes that sick leave was granted during the period when the respondent was attending physiotherapy and occupation therapy and various driving assessments. It is important to bear in mind that the respondent’s pre-accident job required him to drive a motorcycle and deliver foods to different destinations. His ability to drive a motorcycle safely on a full-time basis was certainly an important consideration for the doctors and occupation therapists.

35.  According to the respondent, the driving assessments involved actual driving of the vehicles: for private car, the assessment was on the public road whereas for motorcycle, it was also actual driving but not on the public road. The respondent confirmed that the last driving assessment for motorcycle was in January 2021 and he successfully passed it.

36.  The evidence shows that by the end of January 2021, the respondent’s overall capacity was able to meet his job demand and that he had successfully passed the driving assessments for both private car and motorcycle. In fact, he had already gone back to work as an Uber driver in January 2021. In the circumstances, there was really no reason why the respondent should be entitled to any further sick leave beyond January 2021.

37.  Having considered all the relevant evidence, I allow the sick leave granted from 5 June 2019 to 31 January 2021 for the purpose of Section 10 award.

Compensation under Section 9

38.  I have considered the evidence of the medical experts, the assessments of the Medical Board and the Review Board. I also take into consideration the nature of the respondent’s pre-accident job. I consider a 3% loss of earning capacity is appropriate. Given that the respondent was aged 41 at the time of the accident, the applicable multiplier should be 72 months’ earnings under section 7. The accident happened in June 2019 and the statutory maximum applicable was $30,530 under the Sixth Schedule. The award should be:-

$30,530 x 72 x 3% = $65,945

Compensation under Section 10

39.  Section 10(1) provides,

“Where temporary incapacity …… Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”

40.  The respondent agreed that credit be given for what he had earned during the sick leave period. According to the respondent, he earned $4,673 for the month of January 2021. The award under Section 10 should be,

(from 5 June 2019 – 31 December 2020)
$46,167.50/30 x 4/5 x 573 days = $705,439

 

(from 1 January 2021 – 30 January 2021)
($46,167.50 - $4,673) x 4/5 = $33,196

41.  For medical expenses, the respondent stated that he had incurred a sum in the region of $2,460. The Employer offered a sum of $3,000. I adopt $3,000 for medical expenses under section 10A.

42.  The total award would be: $65,945 + $705,439 + $33,196 + $3,000 = $807,580. The Employer has paid a total sum of $579,861.55 by way of periodical payments and credit should be given for such sum. The net award becomes $227,718.

43.  The net sum of $227,718 carries an interest at 4% per annum from the date of accident (5 June 2019) to the date of this judgment and thereafter at the judgment rate until full payment.

Costs

44.  I make an order nisi that the applicant is to pay the respondent’s costs of this application, to be taxed if not agreed. This order nisi shall become absolute after 14 days from the date of this judgment absent any application to vary the same by summons.