YANG BAIYING v. FAI KEE CATERING LTD t/a FAI KEE RESTAURANT

DCEC 2174/2021

[2023] HKDC 164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2174 OF 2021

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JUDGMENT

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Introduction

1.  This case concerns an accident which occurred in a restaurant operated by the respondent at Shop 5E, Ground Floor, Sunningdale Garden, 8 Chi Cheong Road, Sheung Shui, New Territories, Hong Kong (“the Restaurant”) on 31 March 2020. The applicant was employed as a bartender (水吧) cum cook at the Restaurant. The applicant sprained her left shoulder and left elbow while in the course of her employment (“the Accident”) and suffered left shoulder and left elbow pain and weakness as a result of the Accident.

2.  On 14 May 2020, the applicant submitted a Notification of Accident to the Labour Department. On 8 June 2020, the respondent submitted a Notice by Employer of an Accident to an Employee resulting in Death or Incapacity (“Form 2”) to the Labour Department. On 24 June 2020, the respondent submitted an Information Amendment Sheet to the Labour Department.

3.  On 27 August 2021, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) issued a Certificate of Assessment (“Form 7”). On 26 November 2021, the Board issued a Certificate of Review of Assessment (“Form 9”).

4.  The Board’s assessment of the applicant’s injury suffered as a result of the Accident as stated in Form 9 is as follows:-

(a)  She suffered “left shoulder and elbow injuries resulting in left shoulder and elbow weakness” (“the Injury”).

(b)  The periods of absence from duty necessary as a result of the Injury are:

(i)  10/04/2020 to 09/05/2020;

(ii)  11/05/2020 to 19/06/2020;

(iii)  23/06/2020 to 27/06/2020;

(iv)  29/06/2020 to 03/07/2020;

(v)  06/07/2020 to 25/07/2020;

(vi)  28/07/2020 to 01/08/2020;

(vii)  06/07/2020 to 25/07/2020;

(viii)  28/07/2020 to 01/08/2020;

(ix)  04/08/2020 to 08/08/2020;

(x)  10/08/2020 to 14/08/2020;

(xi)  17/08/2020 to 21/08/2020; and

(xii)  24/08/2020 to 07/09/2020.

(collectively “the Sick Leave Period”). The total amount of days of sick leave are 135 days before deducting statutory holidays.

(c)  The applicant’s loss of earning capacity permanently caused by the Injury was adjudged to be 0.5%.

5.  The applicant was born on 30 June 1978 and was 41 years old at the date of the Accident. She is now 44 years old as of the date of this Decision.

6.  The respondent did not attend the first hearing on 22 April 2022. By the interlocutory judgment of Her Honour Judge Levy dated 22 April 2022, the respondent was found liable to pay compensation to the applicant. Hence, the hearing before me is only in relation to the assessment of compensation payable by the respondent pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282, “ECO”).

7.  The respondent did not file any documents for these proceedings and did not attend the assessment hearing on 20 January 2023 (“the Hearing”).

Compensation in case of permanent partial incapacity (ECO s 9)

8.  The assessment by the Board regarding the applicant’s loss of earning capacity permanently caused by the Injury is 0.5%. Neither of the parties made submissions or adduced evidence to contradict or vary the assessment by the Board. Pursuant to s 16H of the ECO, there is no ground for me to reject the assessment by the Board.

9.  As the Injury is not an injury specified in the First Schedule of the ECO, the compensation payable by the respondent is the percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury: ECO s 9(b).

10.  The applicant was aged 41 at the time of the Accident. Hence, the amount of compensation payable by the respondent is provided by ECO s 7(1)(b) to be a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite ECO s 7(1)(b) specified in the first column of that Schedule, whichever is the less.

11.  ECO s 11(1) provides for the method of calculating monthly earnings for the purpose of ECO: -

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer, whichever calculation is more favourable to the employee.” (emphasis added)

12.  It is the applicant’s evidence that her wages were paid in cash and there was no payroll advice provided by the respondent. In relation to her monthly earnings, several versions were put forward:-

(a)  In her Application dated 19 October 2021, the applicant’s monthly earnings for the month immediately preceding the Accident was HK$9,225.00 and her average monthly earnings during the 12 months (or any lesser period of employment with the employer) prior to the Accident was HK$9,563.75;

(b)  In her Witness Statement (which she adopts as her evidence for the assessment hearing), the applicant states that, insofar as she can recall, her monthly earnings for the months of December 2019 and January 2020 are approximately HK$9,300.00 and HK$10,500.00 respectively;

(c)  In her MPF record, the applicant’s monthly earnings for February and March 2020 are HK$9,225.00 and HK$10,130.00 respectively. The applicant also relies on her monthly earnings for March 2020 to be the monthly earnings as that of the month immediately preceding the date of the Accident in her opening submissions; and

(d)  Alternatively, the applicant submits that her average monthly earnings for the past 4 months prior to the Accident (December 2019 to March 2020) was HK$9,788.75.

13.  The applicant explains the differences and/or discrepancies in her written opening submissions that the figures in her Application was taken from the Form 2 filed by the respondent. During the Hearing, she also testified that her working hours at the Restaurant was unstable as her shift would end any time between 5 pm to 6 pm depending on the day. As a result, she may work longer hours on some days.

14.  The applicant was employed as a bartender cum cook in the Restaurant. At this level of pay and type of work, it is not uncommon for an employee in the role of the applicant to be paid by cash. Furthermore, although the applicant cannot produce any payroll advice, her monthly earnings for the month immediately preceding the date of the Accident is documented in her MPF record. In the absence of contradicting evidence from the respondent, I shall adopt HK$10,130.00 as the applicant’s monthly earnings in accordance with her MPF record.

15.  I also accept the applicant worked irregular hours and thus her monthly earnings could have fluctuated. I do not consider the discrepancies to have hampered her credibility, especially in light of uncontradicted documentary evidence.

16.  Therefore, the applicant is entitled to HK$3,646.80 (HK$10,130.00 x 72 x 0.5%) as compensation for permanent partial incapacity.

Compensation in case of temporary incapacity (ECO s 10)

17.  Pursuant to ECO s 10(1), the applicant is entitled to receive compensation for temporary incapacity resulting from the Injury in a lump sum calculated according to probable changes in the degree of the incapacity having regard to the probable duration. The quantum of compensation payable is calculated by 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 during the period of the temporary incapacity after the accident.

18.  ECO s 10(2) states that a period of absence from duty certified to be necessary by the Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury. ECO s. 10(2) provides for a rebuttable statutory presumption of temporary incapacity during the certified period of sick leave and the burden is on the respondent as employer to rebut the presumption. While it is open to the court to consider that sick leave certificates as filed by the applicant may not be conclusive, the court can only do so and rebut the statutory presumption after having considered evidence put forward by the respondent, if any: Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKLRD 497, §§16-17; Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, §§28-29.

19.  The applicant was granted intermittent sick leave of 135 days, which correspond with the Sick Leave Period as certified in the Form 9. She testified in the Hearing that she had claimed compensation of income through another adjudication hearing before the Small Claims Tribunal for three days of statutory holiday within the Sick Leave Period, ie, 1 May 2020 (Labour Day), 25 June 2020 (Dragon Boat Festival) and 1 July 2020 (HKSAR Establishment Day). Therefore, she now seeks to deduct these three days from the Sick Leave Period and claims only 132 days of sick leave.

20.  The respondent did not make any submissions or put forward any contradicting evidence regarding the applicant’s sick leave in these proceedings.

21.  I accept that the applicant required 132 days of sick leave as a result of the Injury. In these premises, the applicant is entitled to compensation under ECO s 10 in the amount of HK$35,657.60 (HK$10,130 x 132/30 x 4/5).

Payment of medical expenses (ECO s 10A)

22.  ECO s 10A(1) provides that an employer is liable to pay the medical expenses for the medical treatment in respect of personal injury caused to any employee by accident arising out of and in the course of her employment. Pursuant to ECO s 10A(3), medical expenses payable under s 10A(1) shall be payable in accordance with the Third Schedule in respect of the period during which the employee receives medical treatment until the attending registered medical practitioner, registered Chinese medicine practitioner or registered dentist certifies that in his opinion no further treatment is required. Categories of medical expenses payable by the employer is defined in ECO s 3.

23.  The Third Schedule of the ECO stipulates that where an employee is given medical treatment other than as an in-patient in a hospital, the medical expenses payable by the employer are the lesser between the total amount of the medical expenses incurred in respect of the medical treatment and the total amount at the rate of $300 for each day on which medical treatment is given.

24.  The applicant claims HK$3,630.00 under this head in her Witness Statement and has filed invoices in support. During the Hearing, the applicant made the following clarifications regarding the quantum of medical expenses claimed:-

(a)  Expenses incurred from treatment sessions with Cheung Shing Surgery (張勝跌打醫館) is not recoverable as Cheung Shing Surgery is not a registered Chinese medicine practitioner for the purpose of the Third Schedule. Hence, expenses of HK$360 as incurred is not recoverable from the respondent; and

(b)  The applicant testified that she only attended seven sessions of occupational therapy instead of eight due to sickness. Hence, HK$80 should be deducted from her original claim.

25.  Accordingly, I accept the applicant’s claim of HK$3,190.00 for medical expenses.

Conclusion

26.  In conclusion, the total sum of compensation to which the applicant is entitled to is as follows:-

Head	Quantum (HK$)
Compensation in case of permanent partial incapacity (ECO s 9)	3,646.80
Compensation in case of temporary incapacity (ECO s 10)	35,657.60
Payment of medical expenses (ECO s 10A)	3,190.00
Total:	42,494.40

27.  The respondent is also liable pay interest on the total sum of compensation in the following manner:-

(a)  From the date of the Accident to the date of this Decision, at the rate of 4% pa; and

(b)  From the date of this Decision to the date of payment of the compensation awarded, at the judgment rate.

28.  I also make a costs order nisi that the applicant is to have the costs of this action to be paid by the respondent on a party-to-party basis, to be taxed if not agreed. The applicant’s own costs to be taxed in accordance with Legal Aid Regulation.