Cheung Yee Man Andy v. Lux's International Ltd t/a Coup De Foudre

DCEC 2691/2016

[2019] HKDC 1146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2691 OF 2016

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JUDGMENT

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Introduction

1.This is the hearing of an assessment of employees’ compensation pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance’) in relation to an accident that took place on 14 December 2014 (“the Accident”).  The applicant Madam Cheung Yee Man Andy (“Madam Cheung”) also appeals against the Certificate of Review of Assessment (Form 9) issued by the Employees’ Compensation (Ordinary Assessment) Board on 2 February 2017.

2.Judgment on liability was entered against the respondent Lux’s International Limited trading as Coup De Foudre (“LIL”) on 17 August 2018.

The Accident

3.At the assessment hearing, Madam Cheung confirmed and adopted her witness statement dated 29 June 2017.

4.According to Madam Cheung, the Accident took place in the course of her employment with LIL on 14 December 2014.  She was working as a saleslady at LIL’s shop at Shop 08F, UG/F, Olympian City 2, 18 Hoi Ting Road, West Kowloon, Hong Kong and it was the third day of her work.  The shop was selling shoes.  Around 1:05 pm on that day, she was instructed by her supervisor to get an empty shoebox from the warehouse.  In order to do so, she had to climb up some racks which were built from floor level up to a height of about 16 feet. There were 4 levels of racks and each level about 4 feet high.  No ladder was provided to her.  The shoebox was located on the highest level of the racks. Her feet were stepping on the 2^nd level rack while she was getting the shoebox.  After passing the shoebox to the supervisor, she tried to come down to the floor.  In the course of doing so, she lost balance and fell from a height of about 8 feet.   

5.As liability is no longer in issue, I proceed to assess the amount of compensation to which Madam Cheung should be entitled.

Discussion on monthly earnings

6.In order to assess Madam Cheung’s compensation under section 9 of the Ordinance, it is necessary to ascertain Madam Cheung’s monthly earnings at the time of the Accident.

7.Under the employment contract with LIL, Madam Cheung, on a monthly basis, would be entitled to a basic salary of HK$7,000, a diligence allowance of HK$1,000, a personal commission of HK$1,400 and a sales target commission of HK$2,100.  This would make up a figure of HK$11,500 in total.

8.According to Madam Cheung, she would get the diligence allowance of HK$1,000 if she was punctual at work and attended on all working days.  LIL set a personal sales target for her and she would get the personal commission of HK$1,400 if she met the target.  Similarly, LIL set a sales target for the shop.  If the shop met the target, Madam Cheung would be entitled to the sales target commission of HK$2,100.  When she  joined LIL, she was assured that it would be easy for her to get the personal commission and the sales target commission.  On this basis, she believed that her monthly earnings with LIL should be HK$11,500.

9.Section 3 of the Ordinance provides a definition of “earnings”:-

““earnings” means any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes the value of any food, fuel, or quarters supplied to the employee by the employer if as a result of the accident the employee is deprived of such food, fuel or quarters; and any overtime payments or other special remuneration for work done, whether by way of bonus, allowance or otherwise, if of constant character or for work habitually performed and including tips if the employment be of such a nature that the habitual giving and receiving thereof is open and notorious and is recognized by the employer:  but shall not include remuneration for intermittent overtime, or casual payments of a non-recurrent nature, or the value of a travelling allowance, or the value of any travelling concession or a contribution paid by the employer of an employee towards any pension or provident fund, or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment;”

10.As such, the diligence allowance, the personal commission and the sales target commission could all be regarded as Madam Cheung’s earnings.

11.Section 11(1) of the Ordinance provides that:-

“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.”

12.As the Accident took place on the third day of Madam Cheung’s employment with LIL, section 11(1)(a)  and the first part of section 11(1)(b) are clearly inapplicable.  According to the views of Mr Justice Yeung and Mr Justice Chung in 柯永明 訴 何炳池[2008] 4 HKLRD 337, when an employee has been employed by the employer for less than a month, it is permissible to use the second part of section 11(1)(b) to ascertain the monthly earnings of the employee if this is practicable and “any lesser period” in the section could be construed as including a period less than one month.

13.When assessing Madam Cheung’s compensation under section 9, I will adopt the monthly earnings figure of HK$11,500 as submitted by Madam Cheung which is based on the formula under the employment contract. In my view, this is a practicable and fair approach.  Madam Cheung verily believes that it would be easy for her to satisfy the requirements for diligence allowance, personal commission and sales target commission.  There is no evidence from LIL to contradict Madam Cheung and this figure is what LIL expected to pay to Madam Cheung.  I, therefore, accept her version.  Mr Yip, counsel for Madam Cheung, also referred me to the 2014 Report on Annual Earnings and Hours Survey published by the Census and Statistics Department. The median monthly wage for service and sales workers in May to June 2014 is HK$11,300.  This indicates that the figure put forward by Madam Cheung is not unreasonable.

History of medical treatments

14.Immediately after the Accident, Madam Cheung went to Kwong Wah Hospital for treatment.  The report dated 25 February 2016 by Dr Chan Ching Yee of the Accident & Emergency Department of Kwong Wah Hospital stated the following:-

“… There was no lower limb pain or neurological symptom including numbness and weakness. The patient had stable vital signs. There was tenderness with no associated swelling. Movements of her left shoulder and elbow joints were preserved. X-rays of the lumbosacral spines showed fair alignment and no fracture.

The patient was discharged with analgesics, and sick leave from 14/12/2014 to 17/12/2014.  She was also referred for physiotherapy.”

15.Madam Cheung attended Princess Margaret Hospital on 16 December 2014 because of low back pain.  The report dated 4 February 2016 by Dr Chan Yiu Pong of the Accident & Emergency Department, Princess Margaret Hospital stated the following:

“… There was no pair radiation or lower limb neurological deficit.

Physical examination demonstrated tenderness at lumbar spine.

Patient was discharged uneventfully with analgesic.  Sick leave was granted from 17/12/2014 to 20/12/2014.”

16.There is another report by Dr Elaine Chu of Ha Kwai Chung Polyclinic General Out Patient Clinic dated 4 July 2016.  According to the report, Madam Cheung had attended the clinic since 22 December 2014 for sciatica with back.  She was referred to physiotherapy but pain was static with no improvement.  Physiotherapy was finished in April 2015.  When seen at the clinic on 26 January 2016, Madam Cheung’s low back pain was similar with overall improvement of about 40 to 50%.  The exercise tolerance was about 15 to 20 minutes on ground.  There was no lower limbs weakness or numbness.  There was no sphincter disturbance.  Her general condition was satisfactory.  When seen again on 21 June 2016, her low back pain was similar and mechanical in nature. Her exercise tolerance was about 30 minutes on ground.  Her lower leg numbness improved with vitamin B6 and her pain was controlled on panadol and voltaren. Her sleep was better with amitriptyline.  Her general condition was satisfactory.  She could walk with stick with normal pace and gait.  There was bilateral paraspinal muscle tenderness.  On forward flexion, her hand could reach her shin.

17.Ha Kwai Chung Polyclinic General Out Patient Clinic referred Madam Cheung to the Department of Orthopaedics & Traumatology of Princess Margaret Hospital which she attended for the first time on 14 April 2016.  Dr Leung Ka Lok stated the following in his report dated 3 October 2016:-

“She complained of persistent back pain with right buttock and posterior thigh pain. There was diffuse numbness over her right lower limb. On examination, there was no percussion tenderness over the lumbar spine. There was no neurological deficit of both lower limbs. The neuro-tension signs were negative. X-ray of lumbar spine was reviewed and was unremarkable. Explanation was given on her orthopaedic condition which reached maximal medical improvement. She was orthopedically fit for medical assessment board (MAB). There was no clinical evidence of need of private MRI but patient was interested to have private MRI scan. Referral letter for private MRI scan was given to patient. She was referred to MAB for assessment of degree of permanent disability, if any.

Sick leave on 14.4.2016 was given.  She defaulted subsequent follow-up in specialist outpatient clinic.”

18.Madam Cheung was referred to the Physiotherapy Department of Princess Margaret Hospital.  According to the report by Ms Shek Diana Hoi Yan of the department dated 12 January 2017, Madam Cheung commenced physiotherapy on 21 January 2015 and attended 11 treatment sessions in total. Her last attendance was on 20 April 2015.  Treatments included Transcutaneous Electrical Nerve Stimulation (TENS), Interferential Therapy (IFT), Hot pack (HP) and mobilization exercise.

19.Madam Cheung was also referred to the Occupational Therapy Department of Princess Margaret Hospital for work rehabilitation programme.  According to the report by Ms Alky Yu of the department dated 24 June 2016, work rehabilitation service was provided to Madam Cheung from 4 May 2015 to 30 July 2015.  Treatment included work capacity evaluation, regular reassessments and work reconditioning training.  Last assessment was done on 30 July 2015.  Her overall work capacity was assessed to be not-matched with the previous job demands as a shop attendant.  Job plan was discussed with Madam Cheung.  She had low confidence to resume previous job.  Change of job with lesser physical demand was suggested to her.  Patient Retraining and Vocational Resettlement Service was introduced to her.  She was discharged from the Occupational Therapy Department on 10 August 2015.

20.In the report dated 23 June 2017 by Dr Lee Kit Yan of Ha Kwai Chung Polyclinic General Out Patient Clinic, it was mentioned that Madam Cheung also attended the mental health clinic:-

“Apart from her visits to general outpatient clinic, she also attended our integrated mental health clinic since 22 Apr 2016. The diagnosis was adjustment disorder with anxiety and mild depressive symptoms. She was put on amitriptyline 20 mg nocte. She was last seen on 28/4/2017 and her mood was stable. She was discharged from the program as she had a psychitary appointment on 4/7/2017 for further management of her mood.”

21.According to the report dated 26 October 2017 by Dr Tam Wing Hong Danny of West Kowloon Psychiatric Centre, Madam Cheung was seen for the first time on 4 July 2017.  She presented social withdrawal, sleep disturbance, nightmare, lack of motivation and urge of self-harm such as dashing into the traffic.  The persistent low back pain made her distressful. She had been a chronic smoker but not a substance abuser.  She was put on Amitriptyline by the General Out Patient Clinic and the response was satisfactory.  She also requested clinical psychologist service.  She was mentally stable upon mental state examination.  She walked with aid and her speech tempo was quite fast.  She was not depressed, suicidal or psychotic.  A diagnosis of Adjustment Disorder was made.  Amitriptyline 20 mg nocte was prescribed and Madam Cheung was referred to clinical psychologist.  Dr Tam opined that Post-Traumatic Stress Disorder was a possible differential diagnosis.  

Examination by medical experts

22.Madam Cheung was examined by specialist in Orthopaedics & Traumatology Dr Lam Chi Keung Johnson on 30 November 2017. Her complaints to Dr Lam included the followings:-

“Pain + lightning sensation over low back radiating down the right lower limb (buttock + back of thigh and leg + whole foot). She said the pain was intermittent, and provoked by sitting for about 45 minutes, walking for about 1 hour or standing for about 1 hour. She said the pain could reach up to 6-7/10 in intensity (0 = no pain; 10 = maximal pain). She said took painkillers about 3 times a day to ease the pain.

Activities of daily living: Independent.

Sports consideration: She said she used to swim before the subject accident; she stopped after the injury.

Mental symptoms: Madam Cheung said she still suffered from poor sleep and nightmares; she said she took the medicines issue by the psychiatric clinic every night.”

23.After examining Madam Cheung, Dr Lam gave the following opinions in his report:-

“Diagnosis: Based on the evidences reviewed and the findings at this examination, the diagnosis was soft tissue injury to the low back and sacrum. This is consistent with the mechanism of injury described if this did happen.

Pre-existing condition: As discussed above, radiologically, there were mild degenerative changes that were likely pre-existing before the subject accident. Such changes may be symptomatic, minimally symptomatic or asymptomatic before the subject accident.

Dr. Lam considers that clinically, based on the evidences available, there was no previous back pain or previous back injury before the subject accident.

Dr. Lam also considers that functionally, based on the evidences available, Madam Cheung could engage herself in jobs as saleslady which usually required long hours of standing/walking.

Based on the evidences available, Dr. Lam opines that despite radiological findings of mild degenerative changes in the lumbar spine, it is likely that Madam Cheung enjoyed rather painless and satisfactory function in her low back before the subject accident.

Treatment: The treatment received was appropriate. Based on the evidence reviewed, and the findings at the present assessment, surgery is not required for Mr. Cheung’s injuries.

Considering the persistent pain and impairment in the low back despite various treatments, further investigation with an MRI scan (plain scan; MRI of lumbosacral spine – about $6000 – 8000) would be beneficial.

Maximal Medical Improvement: At the time of this assessment, Mr. Cheung’s back injury has reached maximal medical improvement.”

24.Dr Lam was of the view that Madam Cheung still has some genuine pain and impairment in the low back despite various treatments.  The degree of residue pain and impairment is estimated to be mild to moderate.  Activities that cause increased stress to low back (eg frequent or prolonged bending of back; heavy lifting, say, over 30 lbs; prolonged standing/walking, say, over 1-2 hours; prolonged sitting, say, over 1+ hour) may lead to discomfort or even pain in the low back.  With more exercises to strengthen the low back, and a gradual return-to-work program for adaptation (eg avoiding heavy lifting over 30 lbs initially and allowing more breaks for rest or stretching after prolonged work), Madam Cheung may be able to return to her pre-accident job as a saleslady in a shoes shop with mild reduction in work capacity.  Alternatively, Madam Cheung would be suitable for jobs that are not physically demanding on the back and do not require her to bend her back or squat.  Such jobs include sales jobs that allow her to sit, stand and walk alternately while at work.  

25.Dr Lam assessed Madam Cheung to be suffering 3% whole person impairment and loss of earning capacity if MRI scan is unremarkable.  This would be raised to 6% if MRI scan reveals significant lesions such as significant disc protrusion/injury.

26.Madam Cheung was examined by specialist in Psychiatry Dr Wong Chung Kwong on 9 May 2018.

27.She told Dr Wong that she began to experience mood change about 5 to 6 months after the Accident.  She felt stressed and unhappy because she did not receive any salary during her sick leave.  She felt anxious and low in mood.  She was worried about her health and future.  She felt upset and unhappy about her physical symptoms.  She did not sleep well at night.  She estimated that she had at most 4 or 5 hours of sleep each night. She often cried.  She felt weak and low in energy.  She became bad tempered. She used foul language when she was upset, something she did not do before the Accident.  Her concentration, thinking and memory also became impaired.  She lost self-confidence.  However, she only felt slightly low in self-esteem.  She felt bleak about her future.  She had fleeting suicidal thoughts.  On 2 or 3 occasions, she felt like getting killed by running into open traffic.  However, the thought of her father stopped her.  She recalled that the last time she had such an idea was more than a year ago.

28.Based on the medical records, Dr Wong believed that the onset of Madam Cheung’s psychiatric disorder was in April 2015.  At the examination by Dr Wong, Madam Cheung told Dr Wong that she still felt low in mood and emptiness in life.  She was upset for not getting sick leave pay. She was not hopeful about her future and was worried about her father’s health.  She felt stressed about the ongoing physical symptoms.  She was worried about her recovery, prospect of future work and finance.

29.Dr Wong opined that Madam Cheung is suffering from Adjustment Disorder with Depressed Mood.  There are 4 main stressors in Madam Cheung’s case.  The first one is the Accident and the injuries.  The second one is her residual symptoms and worries about health.  The third one is her future work and finance and the fourth one is the litigation.  The Accident is the cause of Madam Cheung’s psychiatric condition.  She has received appropriate and effective psychiatric treatment.  She has reached maximal medical improvement on psychiatric grounds.  She now only has mild residual psychiatric symptoms of Adjustment Disorder with Depressed Mood.  Dr Wong estimated Madam Cheung to be suffering from 4% permanent impairment of functioning and loss of earning capacity on psychiatric grounds.  

Loss of earning capacity

30.The Certificate of Assessment (Form 7) issued by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) dated 20 October 2016 stated that Madam Cheung is suffering from Low Back Injury Resulting in Back Pain and Right Leg Numbness and 1.5% loss of earning capacity.  Upon Madam Cheung’s objection, the Board conducted a review and issued a Certificate of Review of Assessment (Form 9) on 2 February 2017 maintaining the same assessment of loss of earning capacity at 1.5%.

31.In light of the thorough and comprehensive analysis by Dr Lam Chi Keung Johnson and Dr Wong Chung Kwong, I prefer their assessment of earning capacity to the Board’s assessment.  Apparently, the Board took into account the orthopaedic aspect of Madam Cheung but not the psychiatric aspect during the assessment.

32.I accept the submission by Madam Cheung’s counsel Mr Yip and will adopt an aggregate 7% (ie 3% orthopaedic + 4% psychiatric) loss of earning capacity in assessing compensation under section 9.  Madam Cheung’s appeal against the Board’s assessment is allowed.

Compensation under section 9

33.Madam Cheung was 44 years old at the time of the Accident.  According to section 7(1)(b) of the Ordinance, the compensation in case of permanent total incapacity of an employee at this age should be 72 months’ earnings.  But Madam Cheung’s case is not permanent total incapacity but permanent partial incapacity.  Her compensation for permanent partial incapacity under section 9 of the Ordinance is assessed as follows:

HK$11,500 x 72 months x 7% = HK$57,960

Compensation under section 10

34.Sick leave certificates were issued to Madam Cheung covering the period from 14 December 2014 to 22 December 2016.  The solicitors for Madam Cheung have prepared a table summarizing the same and there are 694 days in total.  The sick leave period is endorsed by Madam Cheung’s orthopaedic expert Dr Lam Chi Keung Johnson.  I accept the same and assess the compensation for temporary incapacity under section 10 of the Ordinance as follows:

HK$11,500 x 694/30 days x 4/5 = HK$212,827

Compensation under section 10A

35.Madam Cheung is claiming HK$3,115 as medical expenses under section 10A of the Ordinance.  These expenses are supported by written proof from Princess Margaret Hospital.  I allow the same.

Summary on quantum

36.In summary, I have assessed Madam Cheung’s claim for employees’ compensation as follows:-

Under section 9	HK$57,960
Under section 10	HK$212,827
Under section 10A	HK$3,115
	HK$273,902
Less: Advance Payment Received from LIL	HK$10,878
	HK$263,024

Conclusion

37.In conclusion, I order LIL to pay Madam Cheung the sum of HK$263,024.

38.Interest is awarded on the aforesaid sum at half judgment rate from the date of the Accident on 14 December 2014 to the date of judgment and thereafter at judgment rate until payment in full.

39.I make a costs order nisi that LIL do pay Madam Cheung the costs of assessment of compensation, to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.  Madam Cheung’s own costs to be taxed in accordance with the Legal Aid Regulations.

40.Lastly, I thank Mr Yip for his kind assistance.

Mr Timmy C H Yip, instructed by Yu & Associates, for the applicant

The respondent was not represented and did not appear