CHAU SHEK YAM v. THE KOWLOON MOTOR BUS CO. (1933) LTD.

DCEC425/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 425 OF 2002

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Reasons for Ruling

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1. The accident happened on 12 August 2000. The respondent paid the applicant periodic payments of $14,500.00 per month for the two years following the accident. It seems that they continued to pay him up to 30 December 2002, but from the second anniversary, they were paying him his sick leave pay entitlement under the Employment Ordinance, rather than periodical payments under the Employees' Compensation Ordinance. Now he applies for the periodical payments to continue up to the 36th month, or until temporary incapacity ceases, whichever is earlier.

2. The applicant is in receipt of sick leave certificates up to 4 February 2003. It appears from a report dated 10 October 2001 that in September 2001, at the United Christian Hospital, he refused a CT scan and asked for a Medical Assessment Board. He had a sick leave certificate from the UCH until 22 September 2001, then obtained certificates from a private doctor for some weeks and went back to the UCH on 17 October 2001. We do not know what happened about the assessment board referral but presumably it was never followed up, because the UCH has been issuing SLC ever since. The latest report from the UCH dated 24 April 2002 shows that the applicant was still suffering from back pain, and under treatment with analgesics, physiotherapy and occupational therapy and was to go for an MRI scan in October 2002. We do not have any report of the findings of the MRI scan but nevertheless the hospital has continued to issue SLC since October 2002 and up to February 2003.

3. It is clear from the fact that the same hospital is issuing sick leave certificates for the same complaint that the applicant's condition has not stabilised. I do not see how the report dated 10 October 2001 can be said to cast any doubt on that, when looked at against the later documents. The point of section 10(5) is that periodical payments are to continue for two years from the date of the accident, but the court has power to order them to continue after the second anniversary of the accident, if the applicant's condition has not stabilised. That is the position here. If the doctors at UCH had decided that the applicant's condition had stabilised, i.e. that the temporary incapacity had become permanent, they would surely have sent him to the Board. It is therefore proper that the order be made. Once the temporary incapacity can be shown to have ceased, i.e. to have become permanent, the payments can cease.

4. Order in terms of the applicant's summons.