Cheng Ka Yu v. Margin Management Ltd

DCEC324/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 324 OF 2015

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ASSESSMENT OF COMPENSATION

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Issues

1.On 7 March 2013, the applicant, Mr Cheng was injured by an accident arising out of and in the course of employment while he was employed by the respondent, Margin Management Limited (“Margin Management”). By the consent order dated 9 April 2015 [BI/9 – 11][1], judgment on liability was entered against Margin Management.

2.The Employees’ Compensation (Ordinary Assessment) Board (the “Assessment Board”) assessed Mr Cheng on 8 November 2013, and Form 7 was issued, which mentioned that his sick leave period was from 7 March 2013 to 8 November 2013 and the permanent loss of earning capacity was 1% [BI/132] (the “Form 7”).  Mr Cheng asked for a review.  The Assessment Board then reviewed the decision and Form 9 was issued on 4 August 2014 (the “Form 9”).  It was re-assessed that the sick leave period was from 7 March 2013 to 21 March 2014 and the permanent loss of earning capacity was 0.5% [BI/135].

3.Mr Cheng asks for an assessment of compensation and appeals against the re-assessment made by the Assessment Board in Form 9 pursuant to section 18 of the Employees’ Compensation Ordinance, Cap.282 (the “Ordinance”).

The Legal Principal Concerning Section 18

4.Both parties accept the following well-known legal principles.

5.Pursuant to Section 18 (3) of the Ordinance:

“(3) On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.”

6.In Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115, Hunter JA said at 118D-E as follows:-

“... the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

7.In Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246, Deputy District Judge Bharwaney (as he then was) referred to Chan Kit (supra) and said at 248G-I:-

“In fact, whether an appeal is lodged pursuant to s 18(1) or application made for compensation under s 9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work ...”

8.In Yung Chi Man v. Tang Kan Fu t/a Yun Shing Motor Service, DCEC 770/2004, 6^th February 2006, §24, the court rules that:

“For the purpose of assessing the loss of earning capacity, the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the employee.”

9.Furthermore, in an appeal against an assessment of the Assessment Board which had given no reason for its conclusion, the court should judge an assessment by testing the validity of its conclusions against the total available evidence.  The court must also pay heed to section 9(1A), which requires the court to take into consideration the special circumstances of the applicant, see Chan Kam v. Standard Chartered Bank Hong Kong Trustee Limited [1991] 2 HKLR 455, 458G-I.

10.In conclusion, in the appeal, the court is not bound by the assessment made by the Assessment Board and has much freedom to make its own assessment.

Mr Cheng’s Condition

11.Mr Cheng was employed by Margin Management as a container truck driver; on 7 March 2013, when he was trying to get into the driver seat of his truck, he slipped and fell and injured himself (the “Accident”).  He was then sent to Princess Margaret Hospital.  It was diagnosed he was suffering from neck and back injury.  In Form 7 and Form 9, his injury was assessed as “sprain of neck resulting in residual neck pain” and “neck injury resulting in residual neck pain”.

12.Mr Cheng was born on 26 April 1977 [BI/136] and on the date of Accident, he was 35 years old.  He has already received periodical payments in the aggregate sum of HK$133,709.70 from Margin Management [BI/26/§§16].  It was agreed by the parties that his average monthly earnings 12 months prior to the Accident was HK$16,997.00.

13.Dr Johnson C.K. Lam and Dr David H.F. Cheng inspected Mr Cheng jointly on 16 June 2015; and the joint medical report was issued on 14 August 2015 (the “Joint Medical Report”) [BI/92 – 102], which is summarized as follows:

“Present Complaints

8. Cheng complains of mainly pain over the neck. He describes the pain as constant, but of a bearable degree. There is a feeling of stiffness, and he needs to stretch out frequently, with crepitations at times. Pain is said to localize at the neck and does not radiate. Cheng says there is now minimal back pain. All limbs are normal. He can manage his daily activities without problems.

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COMMENTS

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Prognosis

6.   We opine that Cheng has reached a state of maximum medical improvement.  The injury, being a simple soft tissue injury, should carry a good prognosis. There is no need for any further treatment.

Effect of this Injury

7.   We opine that the effect of this injury on Cheng to be mild.

a) ... Dr Lam estimates that the degree of residual pain and impairment to be mild.  For assessment of permanent impairment and disability in practical terms, activities that cause increased stress to neck ... can cause discomfort or even pain in the neck.  On the other hand, Cheng is independent in activities of daily living.  ... Dr Lam opines that Mr Cheng should be able to gradually return to his pre-accident job with mild reduction in work capacity. ...

b) Dr Cheng opines that Cheng is perfectly capable to resume his pre-injury job as container truck driver, or takes up any job he wishes. There is little effect on his social and other activities.

Assessment

a) ... Dr. Lam estimates that Mr. Chena's neck injury should carry 2% whole person impairment and 2% loss of earning capacity.

b) Dr Cheng opines that the injury was a mild injury. Hardly any permanent physical impairments are detected, there is only subjective complaints and with any objective correlating findings. Taking to the highest, there is only the possibility of mild subjective symptoms. The Board awarded a 1% impairment and loss of earning capacity and readjusted to 0.5% on review. This is no unreasonable.

Sick Leave

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a)   ... Dr. Lam opines that considering the severity of injury, need for rehabilitation, the progress with treatment, and the pre-accident job demand, the duration of sick leave issued by Mr. Cheng's treating specialists/doctors who assessed him from time to time is appropriate and should be endorsed.

b)   Dr Cheng reiterates that from a medical reconsideration, sick leave for such injury should be no more than 3 to 4 months. ... AsI see it, there is certainly no medical justification for the sick leaves, otherwise, there would be no end to it.  Furthermore, as Cheng's appeal or review to the Board failed, there is little reason for the Board to extend the sick leave to the date of review. ...”

14.Margin Management also provides several surveillance video footages for various dates in 2013 (about 5 to 6 months after the Accident[2]) and in 2014 (about 1 year and 1 month after the Accident[3]).

15.From those video footages, one can see Mr Cheng’s action was smooth and no sign of hindrance could be found.  For example, when he was smoking, he could turn his head and neck effortlessly while blowing out the smoke; or he was sitting on a railing and chatting to his female friend with no sign of pain or discomfort; or while he was crossing a road and engaging in a mobile conversation, he could check the traffic by turning his head from side to side with natural and smooth movements.

16.On 22 April 2014 at 1337 hours, he was found driving a private car away from a car park during the sick leave period; and showed no sign of difficulty or limitation.

17.Mr Cheng also agrees that his complaints of pain is a subjective one without any objective medial findings to support.

The Assessment

18.I also find Mr Cheng has no objective medical evidence to support his present complaints.  His complaints are merely subjective.  Both Dr Lam and Dr Cheng agreed Mr Cheng was in a satisfactory condition, his neck enjoyed satisfactory motion, and he suffered no muscle spasm, bony injuries and neurological complication.  He has reached a state of maximum medical improvement and there is no need for any further treatment [BI/98 – 99, §5 & 6].

19.Both Dr Lam and Dr Cheng opined that Mr Cheng is capable to resume his pre-injury job as a container truck driver, and Dr Lam added that it may take some time with mild reduction of work capacity.  In view of the surveillance video footages and all the medical evidence as a whole, I assess Mr Cheng’s loss of earning capacity at 0.5%.

20.For the sick leave period, I accept the assessment in Form 9, i.e. from 7 March 2013 to 21 March 2014, 379 days in total.  The review was conducted on 21 March 2014 and 21 July 2014 [BI/135].  The surveillance tape dated 22 April 2014 captured Mr Cheng was driving a private car smoothly out of a car park without any sign of discomfort or limitation; which tallies with Form 9 that sick leave should be granted until 21 March 2014, as at March or April 2014, he was capable to drive without any difficulty.

21.I also consider Dr Cheng’s opinion that:

“Doctors should encourage rehabilitation and return to work, not to prolong disability, especially based on subjective complaints without medical support. Cheng's treating doctors and TCM practitioner[4] may have their reasons for granting sick leave on a pattern, and certainly without any difficulty of Cheng's part. As I see it, there is certainly no medical justification for the sick leaves, otherwise, there would be no end to it.” [BI/101, §§9]

Conclusion

22.The net compensation is HK$56,332.57.

Under Section 9 (HK$)		HK$
16,997.00 x 96 months x 0.5%	=	8,158.56
Under Section 10
16,997.00 x 4/5 x 379/30	=	171,783.01
Under Section 10A
Receipts for medical expenses for 7/3/2013 – 21/3/2014	=	10,100.00
Sub-total		190,041.57
Minus periodical payment received		(133,709.00)
Net Sum		56,332.57

23.Interest to be granted at half judgment rate from date of accident to date of assessment and thereafter at judgment rate until payment.

24.An order nisi that costs of assessment of compensation be to the Margin Management to be taxed if not agreed; Mr Cheng’s costs to be taxed in accordance to the Legal Aid Regulations, which will become absolute within 14 days.  Counsel certificate is granted. 

25.I appreciate the assistance from the Counsels for both parties.

Mr Damian Wong, instructed by Yip, Tse & Tang for the applicant

Miss Vanessa Kwok, instructed by John C H Suen & Co for the respondent