LIU KAM CHOW v. WONG WAH SHEUNG t/a WAH KEE DECORATION CO.

DCEC 2137/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2137 OF 2013

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J U D G M E N T

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A. 　Background

1. These proceedings are instituted pursuant to the Employees’ Compensation Ordinance (Cap.282) (All references to statutory provisions in this judgment, unless expressly stated, are references to this Ordinance) in respect of two accidents that took place on 8 December 2012 (“1st accident”) and 14 December 2012 (“2nd accident”) in the course of the applicant’s employment as a decoration worker with the respondent. In the 1st accident, the applicant sustained injuries to his left foot when he stepped on a two-inch long nail protruding from the ground. In the 2nd accident, the applicant suffered a sprained back injury as he was trying to stop a gypsum board from falling.

2. The respondent never participated in these proceedings. Interlocutory judgment was entered against him on 6 February 2015.

3. This is a trial on the assessment of compensation. The respondent, as before, was properly served with the notice of the hearing but was absent. I proceeded with the trial in the absence of the respondent.

4. At the trial, the applicant was represented by Mr Ho of Messrs Huen & Partners. In his oral testimony, the applicant confirmed the contents of his witness statement dated 3 February 2015 and answered questions from the court. On the whole, I find him a truthful witness, and am inclined to, unless expressly stated in this judgment, accept his evidence.

B. 　The compensation claimed

5. The applicant claims compensation under ss 9 (for permanent partial incapacity), 10 (for temporary incapacity or sick leave) and 10A (for payment of medical expenses). To assess the quantum of these three separate heads of compensation, I need to determine:

(1) The applicant’s monthly earnings at the time of the two accidents;

(2) The total periods of sick leave; and

(3) The percentage for the loss of earning capacity.

C. 　Earnings at the time of the accidents (ISSUE 1)

C.1 　The applicant’s asserted wages

6. Since the respondent has not participated in the proceedings, he has also failed to file a s11 (8) list of earnings of the applicant.  That being the case, I should carefully consider all the available evidence before accepting the applicant’s asserted monthly earnings of $24,000.

7. The applicant states in his witness statement that since November 2012, he was employed by the respondent as a decoration worker, mainly responsible for the installation of gypsum boards at a daily wage of $1,000.  He usually worked 6 days a week, a total of 24 days in a month. The applicant has no wage documents of any kind to support his asserted monthly earnings of $24,000. According to him, he was paid in cash and received his wages at the end of each week. He was not required to sign any written acknowledgements of the wage payments.

C.2 　Computation of the applicant’s monthly earnings

8. Section 11(1) provides two alternative methods of computing an employee’s monthly earnings:

(i)   under s.11(1)(a), for the month immediately preceding the date of the accident; and

(ii) under s.11 (1) (b), such as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months, if he had been employed for so long a period by the employer, failing which for any lesser period during which he had been employed by the same employer: Hong Kong Civil Procedure 2016 Vol 2, Part Q, para Q1/11/1 p1520.

9. As the applicant had worked for the respondent for over a month before the 1^st accident and the 2^nd accident, his monthly wages can  be computed with reference to s.11(1)(a), by taking the earnings “for the month immediately preceding the date of the accident”, which the applicant asserted to be $24,000.

10. Owing to the lack of supporting wage records and the shortness of the applicant’s employment, I do not think that I should readily accept the applicant’s asserted monthly earnings of $24,000 before testing his assertions against other evidence. Mr Ho in his closing submissions has invited the court to have regard to the provisions in s.11 (2) and the income statistics published by the Census and Statistics Department.

11. Section 11(2) provides:

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of a similar earning capacity in the same grade employed at the same work by the same employer, or , if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

12. HH Judge Lok (as he then was) in  Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company, unrep, DCEC 237/2007, 19 November 2008, stated (at para 23) that s.11(2) provides two methods for computing an injured employee’s earnings. The first one is to take the average monthly earnings of a person of similar earning capacity in the same grade employed at the same work by the same employer during the 12 months previous to the accident. The second one is, if there is no person so employed, to take the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.

13. Since the applicant adduced no evidence in relation to the earnings of any of the respondent’s other employees, the first method of calculation discussed in Leung Wai Pong above is inapplicable.  In the result, it would appear that the more reliable way to test the applicant’s assertion is by adopting the second method discussed in Leung Wai Pong by considering the wages of a person published by the Census and Statistics Department of a similar earning capacity in the same grade employed in the same class of employment as that of the applicant. It was further submitted that in employees’ compensation cases, courts have shown to be willing, especially when there is a lack of supporting evidence, to rely on the income statistics published by the Census and Statistics Department as the comparable wages.  Choi Yin Ling v Sung Wai Kau [2007] HKCLRT 241 (at para 27) and Leung Ngai Kuen (梁藝權) v Sun Rise Consultant Engineering Ltd (新藝顧問工程有限公司) & Anor, unrep, DCEC 1368/2011, 23 November 2012( at para 35), according to Mr Ho, are among those cases where the courts have relied on the government’s income statistics.

14. The applicant elaborated in his testimony that his field of work, in the decoration/construction industry, belongs to the category of “joiner” (細木工) for his work involved the finer details of woodwork. Mr Ho therefore referred to the daily wages of a joiner (細木工) – which are stated to be $942.10 - for the month of December 2012 reported in the “Average daily wages of workers engaged in Public Sector Construction Projects as reported by main contractors, December 2012”[1] (“government statistics”) to support the applicant’s asserted daily wage of $1,000.

15. As, it has been noted, the government statistics Mr Ho relies on are the wages of workers in the public sector and the applicant worked in the private sector, I therefore asked the applicant to clarify whether there was any difference in the daily wages in these two sectors. The applicant stated that the difference was that the daily wages in the private sector were generally higher than those in the public sector.  I have no reason to disbelieve this.  As the reported daily wages in the public sector of $942.10 appear to be slightly less than the applicant’s asserted daily wage of $1,000, I find that the applicant’s asserted daily wage of $1,000 is sufficiently supported by the government statistics.

16. Apart from the government statistics, the applicant’s asserted earnings seem to have been further supported by a record of interview[2] of 5 July 2013 taken by a Labour Department officer, in which the applicant has also provided a consistent account on the number of days he worked in a month (6 days a week) and his daily wage ($1,000).

C.3 　Finding on Issue (1)

17. For the reasons above, I am satisfied that the applicant has proved that at the time of the 1^st and 2^nd accidents, he worked on average 24 days a month at a daily wage of $1,000.

18. I find that the applicant’s monthly earnings at the time of the accidents were $24,000.

D. 　Sick Leave periods (ISSUE 2)

19. By way of Form 7 (“Form 7”), the Ordinary Assessment Board (“Board”) described the applicant’s injury as “sprain of back resulting in back pain and stiffness” and assessed his permanent loss of earning capacity at 1%. It also confirmed a total of 306 days sick leave having been intermittently granted to the applicant between 15 December 2012 and 9 October 2014. On review, by way of Form 9 (“Form 9”), the Board maintained its original decision on both the loss of earning capacity and the sick leave periods.

D.1 　No appeal against the Board on sick leave   

20. Although the applicant has filed an appeal against the Form 9 assessment pursuant to s.18(1), the applicant later clarified through Mr Ho in his opening submission that the appeal is only against the 1 percent loss of earning capacity the Board has assessed. He is content with the Board’s assessment of the sick leave periods. 

D.2 　The sick leave for the 1^st accident was omitted by the Board

21. What is in issue however, Mr Ho highlights, is the Board’s omission in its assessment to include the 4 days’ sick leave for the 1^st accident from 10 December 2012 to 13 December 2012.

22. It is therefore suggested that I should add back the 4 days’ sick leave by allowing a total of 310 days when assessing the s.10 compensation.   Since, Mr Ho submits,  the 310 days’ sick leave is fully supported by sick leave certificates, the applicant is therefore entitled to rely on the statutory presumption in s10 (2) to support his claim for the entire 310 days of sick leave:  Tse Tsz Chong v Law Sze Man [2015] 2 HKC 288 at 296H-297B following two earlier Court of Appeal decisions of Yu Tat Kam v Chu Tung Shing & Anor [2009] 6 HKC 411 and Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKC 582.   

D.3 　Sick leave the Board assessed

23. In my judgment, the sick leave periods the Board assessed are clearly referable  to the 2^nd accident as the  commencement date of the sick leave, according to Form 9 (which content is also identical to Form 7),  was on the day after the 2^nd accident:  15 December 2012. 

24. Before allowing the 306 days’ sick leave for the 2^nd accident, I ought to mention one matter that only came to my attention after the trial. It is about a  remark contained in the Annex to Form 9, in which para (i)  refers to the overlapping of  two periods of absence  (21 to 22 February 2013 and 13 to 14 April 2013) the Board has assessed with “another work injury case sustained by the [applicant] in respect of Certificate No. OB1-07-2013-00120”.

25. Since this remark potentially discloses a case of the applicant seeking double recovery for the same periods of sick leave, clarification was therefore sought from the applicant’s solicitors. After having received a written clarification from Mr Ho on 24 March 2016 in response to the court’s query on this matter,  I am satisfied that there are no other proceedings brought for the two said periods of sick leave.

26. The applicant had in fact during the trial referred to the two overlapping periods of sick leave mentioned in para 24 above. They relate to the two occasions in 2013 when the applicant tried to return to work but had to stop on the first day on each of these two occasions because, according to him, he felt pain on his left foot. The sick leave certificates dated 21 February 2013 and 13 April 2013 respectively show that the applicant was granted 2 days’ sick leave on each occasion, from 21 to 22 February 2013 and 13 to 14 April 2013 for his back pain and left foot pain[3].

27. In the circumstances, I am satisfied that the two overlapping periods of sick leave stated in the remark of Form 9 are only the subject-matter of the claim for the 2^nd accident , and find that the applicant is entitled to 306 days of sick leave for the 2^nd accident. 

D.4 　Sick leave for the 1^st accident

28. As for the sick leave periods for the 1^st accident, given that the 4 days’ sick leave is fully supported by a sick leave certificate issued by a doctor of Alice Ho Miu Ling Nethersole Hospital[4] (“government hospital”), I find that the applicant is further entitled to the 4 days’ sick leave for the 1^st accident.

D.5 　Conclusion for Issue 2

29. In conclusion, I will adopt a total of 310 days in assessing the s.10 compensation.

E. 　Percentage for loss of earning capacity

30. The applicant is appealing against the 1 percent having been assessed by the Board for the loss of earning capacity, and contends for a 6 percent loss.

E.1　Expert evidence: disallowing joint expert report involving a non-party

31. In this case, applicant could apply for leave to adduce the medical evidence of his appointed medical expert for the purpose of the appeal against the Board’s assessment.  However, the applicant had, instead asked for leave to adduce a joint medical report prepared by the applicant’s appointed expert and a non-party, the Employees Compensation Assistance Fund Board (“Fund Board”).

32. In fact, this joint report was the joint medical report having been allowed to be adduced in the parallel common law action, DCPI 418 of 2014 (“PI proceedings”) which the applicant has brought against the same respondent. The defendant (the respondent here) in the PI proceedings similarly did not participate in that action.  The Fund Board, after having been allowed to be joined as a party to the PI Proceedings, was granted leave to conduct a joint examination of the plaintiff (applicant) by its orthopedic expert Dr Chun Siu Yeung (“Dr Chun”) and the plaintiff’s (applicant’s) expert, Dr Wong See Hoi (“Dr Wong”), who subsequently prepared the joint report dated 14 November 2015 for the purpose of the assessment of damages in the PI proceedings

33. As the applicant was unable to clarify the role Dr Chun’s evidence would have in this assessment, the applicant had decided to only adduce the evidence of Dr Wong by applying for the redaction of the joint report. In the result, the court granted leave to the applicant to adduce medical evidence by way of a redacted joint report (“redacted report”) by deleting all references made by Dr Chun.

E.2 　How should the court approach Dr Wong’s opinion

34. In the redacted report, Dr Wong opined the loss of earning capacity to be about 3 to 4 percent for the soft tissue back injury caused by the 2^nd accident and 1 to 2 per cent for the left forefoot injury caused by the 1^st accident, making the aggregate percent loss to be in the region of around 5 to 6 percent.  Dr Wong’s opinion is based on his view that the applicant would have difficulty in resuming his pre-injury work due to the nature of his work that involved “frequent heavy lifting and carrying tasks with prolonged standing and walking as well as constant climbing up and down in (sic) which may cause discomfort over his back and lower limb” (para 73 of the redacted report).

35. On behalf of the applicant, Mr Ho submits that expert opinion on the percentage of loss of earning capacity should usually be admitted and accepted by a court in employees’ compensation proceedings, relying on the authoritative dictum of Bharwaney Jin Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 at 624 para 60. Hence, Mr Ho urges this court to accept  Dr Wong’s opinion on the percentage of loss of earning capacity stated in the redacted report by adopting 6 percent instead of the 1 percent assessed by the Board. Particularly when, it is submitted, the Board has apparently left out the applicant’s left foot injury that he suffered in the 1^st accident.

36. The obiter comment of Bharwaney J in  Chan Yuet Keung (supra.) states (at para 60):

“ Expert opinion on the percentage of loss of earning capacity is helpful and admissible in employees’ compensation proceedings. The guidance that Rogers JA has offered to the courts assessing damages at common law should not be so readily accepted, as it appears to have been done, by the courts assessing employees’ compensation (see, for example, Woo Wai Kuen v Liu Siu Keung, Alex trading as Alex’s Kitchen, DCEC489/2000, Law Siu See v De Rodeo Human Resources Ltd, DCEC989/2001, Chan Kam Sau v Yee Hing Construction Transportation Co. Ltd, DCEC1361/2005 and Kan Wai Yip v Everbest Port Services Ltd, DCEC 383/2008). The expertise of the medical practitioner in assessing the percentage of loss of earning capacity for non-scheduled cases is likely to be of assistance to the court assessing employees’ compensation. Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd [1988]1 HKC 345 is an example of a case where the Court of Appeal found the opinion of the expert on the percentage of loss of causing capacity to be of assistance. However, expert opinion on the percentage of loss of earning capacity does not assist the court in assessing damages at common law. But so long as it is understood that the opinion was expressed for the assistance of the court assessing employees’ compensation, it is not necessary for that opinion to be struck out from the same report being used in the common law action.”

37. Whilst his Lordship has cautioned against the ready acceptance of an expert opinion in relation to common law proceedings, his Lordship is clearly of the view that expert opinion is helpful for the assessment of the percentage of loss of earning capacity for non-scheduled cases in employees’ compensation proceedings, and should generally be accepted.

38. I would therefore be respectfully guided by his Lordship’s approach when assessing the applicant’s percentage of loss of earning capacity.

E.3 　Discussion

E.3 a　1^st accident

39. In the redacted report, Dr Wong found the applicant’s left foot “non-tender over left foot with full range of movement over ankle, toe and subtalar” and opines that the applicant’s foot injury has recovered well and he is “expected to have discomfort on prolonged and repeated movements of left foot.”  Based on this finding, Dr Wong is of the view that the applicant’s foot injury has led the applicant to be suffering from 1 to 2 per cent of loss of earning capacity.

40. Before accepting Dr Wong’s opinion on the loss of earning capacity regarding the foot injury, I also have had regard to matters such as the effect of the injuries on the applicant’s earning ability, his age, education, background as well as his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries[5].

41. After having carefully considered the applicant’s evidence together with the various reports from the government hospital, I do not consider the percent loss of 1 to 2 percent for the left foot injury as opined by Dr Wong can be borne out by the evidence.  The reasons are as follows.

(1) The foot injury was extremely minor. According to the applicant, after his accident on 8 December 2010, he managed the wound himself without seeking any medical treatment.

(2) Although the applicant later received  medical treatment for the wound in the government hospital, the treatment was simple involving a tetanus injection and dressing on no more than two occasions (on 10 and 15 December 2012[6]). The applicant stated that he only sought medical treatment for the wound from the government hospital two days after the accident on 10 December because he only felt pain in the evening of 8 December, and 9 December was a Sunday.

(3) The medical findings do not disclose any permanent injury of any kind. According to a report from the government hospital dated 17 January 2014[7] (in relation to the applicant’s first medical consultation for his wound on 10 December), the wound at the sole of the foot was found to be small and it was not infected.  The x-ray taken also shows no abnormality.

(4) Irrespective of the evidence of the existence of some residual pain, there is no evidence showing that the pain was of duration or of a nature that could have permanently affected the applicant’s earning capacity. 

(a)  In spite of the medical records from the government hospital recording the applicant as having residual pain for the foot injury for at least 6 months (see medical notes of 19 December 2012[8], 21 February[9], 13 April[10], 24 April[11] and 31 May[12] of 2013), there is no evidence that the applicant’s working  capacity has been adversely affected.

(b) When the applicant was examined by Dr Wong in June 2015, Dr Wong also did not find any tenderness on the applicant’s left foot.  Thus, his view that the applicant is “expected to have discomfort on prolonged and repeated movements of left foot” (see para 39 above) seems to be inconsistent with the examination he conducted.

(c)  At trial, the applicant, though still alluding to an occasional feeling of a sharp pain around the wound area, confirmed that the wound, which is presently covered with a hardened layer of skin, has healed sufficiently well.

(5) The evidence, the medical notes and the applicant’s evidence included, overwhelming shows that it is the applicant’s back pain rather than his foot injury that he sustained in the 1^st accident that has prevented him from engaging in his pre-accident employment.   

42. For these reasons stated above, I find that the applicant has suffered no permanent loss of earning capacity for the foot injury that he suffered.

E.3 b　2^nd accident

43. The applicant suffered a back sprain from the 2^nd accident.  According to the various reports and medical notes from the government hospital, the applicant’s major complaints were persistent low back pain.  Conservative treatments in the form of pain killers, hot packs, back mobilization and strengthening exercises had been provided.  He attended one session of physiotherapy at the government hospital on 21 January 2013, but defaulted after this session. The reason for the default, according to the applicant, was due to a mistake he had made about the date of the appointment. He said however that he had done some exercises at home according to the instructions given in the hospital.  He also said that he has been given an appointment in October 2016 to see a government Chinese doctor for his back pain.  The applicant said that although he attempted working at a new job, he felt pain around his waist and the foot when he started the new job and was forced to quit.  The applicant stated in evidence that had he not suffered the injury from the 2^nd accident, he could have continued working at that job.

44. The diagnosis given by Dr Wong was soft tissue injury to the back. On examination, Dr Wong found that the applicant suffered from “tenderness over right paraspinal and right sacroiliac joint, stiffness… over back with complained of pain at end range of flexion and left side flexion”.  Based on the nature of the applicant’s occupation (see para 34 above), Dr Wong opines that the applicant has suffered 3 to 4 percent permanent loss of earning capacity.

45. The applicant is a man of limited education. It seems that he, apart from being a decoration worker, has no other skills or trade.  The applicant, according to Dr Wong, is suffering from a soft tissue back injury, which finding in my view, can be borne out by the medical reports of the government hospital.  I’m inclined to agree with Dr Wong’s view as recorded in para73 of the redacted report (see para 34 above) that the applicant’s back injury has a significant impact on his working capacity.

46. Further, in my assessment, the back sprain the applicant has suffered has likely had a rather debilitating effect on the applicant’s working capacity. The severity of the injury, in my assessment, is reflected by the rather extensive periods of intermittent sick leave totaling 306 days assessed by the Board with the last day being about 22 months after the 2^nd accident, on 9 October 2014. The medical notes from the government hospital the applicant has produced in the trial bundle also show that the applicant sought medical treatment for his back pain till at least up to the end of 2013, about 12 months after the 2^nd accident. 

47. Having had regard to all the factors discussed above, I’m therefore inclined to accept Dr Wong’s opinion, and find the percentage loss of earning capacity to be 4 percent for the applicant’s back injury.

E.4 　Conclusion

48. In conclusion, I substitute the Board’s assessment of 1 percent with 4 percent for the loss of earning capacity.

F. 　Quantum of compensation

F.1 　Section 9 compensation

49. The applicant was 53 at the date of the 1^st and 2^nd accidents. The appropriate age multiplier (as fixed by s 7) is 72.  I therefore award the applicant $69,120 ($24,000 x 72 x 4%) as compensation under s 9.

F.2 　Section 10 compensation

50. Under s.10, the applicant is entitled to compensation calculated “at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which [the applicant] was earning at the time of the accident…” (Emphases are added).  Hence, I am unable to accept the calculation[13] made by Mr Ho in his closing submissions in which he had adopted the applicant’s daily wage rather than the latter’s monthly earnings as the basis for the calculation of the s10 compensation.

51. Applying the monthly earnings of $24,000 to the total number of sick leave of 310 days, I award the applicant $195,682 ($24,000 x 12 ÷ 365 x 310 x 4/5) as compensation under s 10.

F.3 　Section 10A compensation

52. Mr Ho has very helpfully set out in tabular form all the medical expenses, which are calculated to be in the total sum of $3,600.  I am satisfied that they are proved, and I award this amount to the applicant.

G. 　　Order

53. I grant the following orders:

(1) That judgment be entered against the respondent in favour of the applicant for the following sums:

(a)  $69,120 under s.9;

(b) $195,682 under s.10; and

(c)  $3,600 under s.10A.

(2) That there shall be interest on these sums at half judgment rate from 14 December 2012 to the date of judgment, and thereafter at judgment rate until full payment.

(3) That there be a costs order nisi that the respondent do pay the applicant the costs of these proceedings (except for the costs of and incidental to the redaction of the joint report).

(4) The costs order nisi will be made absolute 14 days from the date of the handing down of this judgment if no application is made to vary it.