Case Document

100%Judiciary

DCEC 387/2017

[2021] HKDC 1456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 387 OF 2017

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BETWEEN

	LAW SIN HA	Applicant
and
	CONFIDENTIAL MATERIALS DESTRUCTION SERVICE LIMITED	Respondent

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Before: Deputy District Judge Charles Wong in Court

Dates of Hearing: 2 and 3 June 2021

Date of Judgment: 23 November 2021

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JUDGMENT

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1.This is an assessment of damages hearing in relation to an industrial accident that occurred on 23 April 2015. The applicant suffered bodily injuries as a result of fall when alighting a lorry (“the Accident”). Interlocutory judgment on liability was entered by consent on 31 August 2017. The applicant applies for compensation under sections 9, 10, and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).

THE ACCIDENT

2.The applicant was a workshop clerk employed by the respondent.[1] On 23 April 2015, the applicant was working in the respondent’s office at Ground Floor of Integrated Waste Solutions Building, 8 Chun Cheong Street, Tseung Kwan O Industrial Estate, New Territories, Hong Kong (the “Workplace”). At about 11:50am, a lorry arrived at the gate of the office. The lorry needed a pass/permit in order to unload waste materials/waste papers at the workshop. The applicant got into the front compartment of the lorry for a lift to the workshop to get the permit. When the applicant got off the lorry from the passenger seat and was about to descend onto the step, she missed her footing, fell down and landed on the ground (the “Accident”).”

THE WITNESSES

3.There were only two factual witnesses: the applicant herself[2] and 張志光 (“Cheung”), a senior supervisor of the respondent.[3]

THE INJURIES DIAGNOSIS AND TREATMENTS

4.The applicant was admitted to the Accident & Emergency Department (“A&E”) of Tseung Kwan O Hospital (“TKOH”) shortly after the Accident. A scalp hematoma of 2cm in diameter was noted. Local tenderness was found in her lower back region. There was no fracture. She was diagnosed to have suffered from contusion of back and head. She was discharged in the afternoon of 23 April 2015 with 7 days of sick leave[4].

5.According to the attendance records of the applicant, from 23 April 2015 to 31 August 2015, for a period of 131 days[5]:-

(1) The applicant took 23.5 days of sick leave (including 4 days which the applicant was supposed to have days off);

(2) The applicant took 9.5 days of annual leave and no pay leave;

(3) The applicant had 18 days off;

(4) The applicant attended work for the remaining 80 days.

6.Further, from 23 April 2015 to around the end of August 2015, the diagnosis was head, back, and buttock injury.[6] On 5 July 2015, the applicant attended A&E of North District Hospital (“NDH”), and the treating doctor did not record any complaint about her head. The diagnosis was low back pain.[7] According to the respondent, after the applicant resumed work, she was effectively normal.[8] She was granted sick leave for her head and back injury intermittently from 30 April 2015 to 15 December 2015.

7.The applicant started physiotherapy treatment on 21 August 2015 at the Physiotherapy Department of the North District Hospital. She was found to have tenderness over L4 to S1 region and sacrum region.[9] From October 2015 to 6 April 2016, she received a total of 14 sessions of physiotherapy treatments. She was discharged on 6 April 2016 with home exercise.[10]

8.On 30 August 2015, due to persistent waist and head pain[11], the applicant visited her family doctor Dr Huang Hsin Yang, a private general practitioner of Health Ensurance-Medical Center. Dr Huang suspected that the applicant had post-traumatic stress disorder (“PTSD”) because of her dizziness and poor sleep. Dr Huang referred her to the North District Hospital’s Psychiatry Department for the provisional diagnosis of PTSD.[12]

9.When the applicant attended Fanling Family Medicine Centre 9 days later on 8 September 2015, she reported that the back pain has decreased by 70%, and there was no active complaint of any head and psychiatric symptoms[13].

10.On 6 October 2015, she was diagnosed of PTSD by Dr Elisabeth Wong of the Psychiatry Department of the North District Hospital.[14] She complained of:-

(1) Intense fear when seeing lorries;

(2) Heightened arousal with palpitations;

(3) Hand tremor, mouth dryness;

(4) Could not concentrate at work;

(5) Poor sleep and appetite;

(6) Repeated nightmares of the Accident;

(7) Re-experiencing of herself falling up to a few nights a week;

(8) Flashbacks of the Accident in daytime;

(9) Could not go near the scene of the Accident; and

(10) Easily distractible and had overwhelming fear whenever walking downstairs.

11.The applicant did not take any sick leave in relation to her back pain after 15 December 2015[15], but on 13 January 2016 she reported general decease in power from L2 to S1, for both left and right side when she was examined by physiotherapist of NDH.[16]

12.X-ray of lumbar spine taken on 6 October 2015 did not reveal anything unusual other than “decreased disc space at L5/S1”, without any disc protrusion or nerve root compression.[17] The subsequent general decrease in lumbar spine power is inexplicable.

13.Since February 2016, the applicant received outpatient psychiatric treatment at North District Hospital. She reported good adherence to medication and has been actively engaged in psychological treatment as conducted by Clinical Psychologist. She was found to have residual symptoms of heightened anxiety especially when walking downstairs with some features of avoidance.[18]

14.On 18 October 2017, she was assessed to have suffered from flashbacks of the Accident about once a week. She had residual fear of walking down the stairs and being on higher grounds. On mental state examination, she was mildly anxious and tremulous.[19]

15.Since 10 July 2019, she has been assessed by Dr Wong Kit Yi of Psychiatry Department of the North District Hospital. The symptoms of PTSD persisted in general. Additional medications were added to promote her sleep.

16.Upon assessment by Dr Wong Kit Yi on 18 September 2019, she was certified to be permanently unfit for resuming her previous job, grounded by the severity of her persistent chronic PTSD despite treatment that impaired even her daily living, hence she was considered to be mentally unfit for returning to workplace with the same job nature. [20]

17.Sick leave was granted by the Psychiatry Department of the North District Hospital from 6 October 2015 to 28 January 2020 inclusive.[21] From the records, until at least 26 November 2019 the diagnosis was PTSD.[22]

18.The applicant attended occupational therapy since 15 October 2015 for PTSD. Symptoms of PTSD were persistently present. [23]

THE EMPLOYEES’ COMPENSATION (ORDINARY ASSESSMENT) BOARD’S (“MAB”) ASSESSMENT

19.According to Form 7 dated 23 November 2016, the applicant was assessed to have contusion of head and back resulting in headache and PTSD, and intermittent sick leave from 23 April 2015 to 24 June 2015, and from 2 October 2015 to 9 November 2016 was certified as necessary[24], resulting in loss of earning capacity of 1% for the contusion injury, and 40% for PTSD. The loss of earning capacity permanently caused by such injury was assessed to be at 41%.[25]

20.According to Form 9 dated 26 April 2017, the applicant’s intermittent sick leave from 23 April 2015 to 2 September 2015, and continuous sick leave from 4 September 2015 to 12 April 2017 was certified as being necessary[26], and the diagnosis was “contusion of head and back resulting in headache, residual low back pain and psychiatric impairment”, resulting in loss of earning capacity of 1.25% for the contusion injury, and 20% for psychiatric impairment.[27] It is noted that the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) did not make a diagnosis of PTSD in Form 9. The MAB re-assessed the loss of earning capacity to be at 21.25%.

THE ISSUES

21.The respondent has appealed against the assessment in Form 9 dated 26 April 2017[28]. The applicant has not appealed against the assessment in Form 9.

22.It is the respondent’s case that the applicant has grossly exaggerated her symptoms and/or is a malingerer, and she was fit enough to resume her pre-accident job latest by 15 December 2015.

23.The major disputed areas are:-

(a) Whether the applicant had suffered from PTSD;

(b) The permanent loss of earning capacity under section 9;

(c) The period of absence under section 10; and

(d) The medical expenses incurred by the applicant under section 10A.

JOINT PSYCHIATRIC EXAMINATION

24.There is no joint medical report in relation to the applicant’s head and back injuries.

25.In relation to the PTSD, the applicant was jointly examined by Dr Wong Yee Him (“Dr Wong”) for the applicant and Dr Yu Wai Tak (“Dr Yu”) for the respondent, on 13 March 2018 (the “JME”).[29]

26.The applicant was examined by Dr Wong and Dr Yu on 26 October 2017.[30] The applicant claimed that she still had the following symptoms[31]:

“(a) Insomnia. She cannot get to sleep for a few times a week. She would wake up at 2 or 3 am and had trouble getting back to sleep for another few times a week. She said the medications from NDH Psychiatric department are not very helpful but she does feel less fearful and tense when she lies in bed sleepless now.

(b) She had nightmares in September 2017 but not in the past month.

(c) She had experienced intrusive thoughts of the Accident once.

(d) She has headache on and off.

(e) She still has low back pain on and off.

(f) She suffers from dry mouth intermittently.

(g) She is still forgetful and absentminded, although she is trying hard to focus her mind.

(h) She remains irritable and impatient.

(i) She still suffers from anxiety all the time.

(j) She is still made very anxious by sudden noise.

(k) She is still very anxious and fearful whenever she comes across trucks. She would avoid trucks and not dare looking at the roads.

(l) She still feels fearful when she descends and ascends stairs and slopes. She tries to overcome her fear by practicing the stairs whenever she has someone to escort her. She could do them well with escort now but she remains very anxious without an escort.

(m) She could go out to meet her siblings although she still feels anxious about meeting people who might talk about the Accident with her.”

27.The applicant claimed to have difficulties in short-term memory test and in performing simple subtraction.[32] The applicant was educated up to Form 5 in Hong Kong.[33] Dr Yu commented that an adult with primary education is expected to have no or very little difficulties with these tests, and a person of a similar age group to the applicant is expected to perform much better in the subtraction test[34].

28.Dr Wong opined that the applicant had PTSD, but Dr Yu opined that the applicant did not have any mental symptoms or mental disorder, and the applicant reported exaggerated mental symptoms with the intent to build up a case of severe mental distress.[35]

29.The two experts have fundamental difference in diagnosis, causation, prognosis, work capacity, sick leave, recommended treatment and loss of earning capacity.[36] Dr Yu opined that the applicant has no mental problems and hence there was no impairment on psychiatric grounds, and no sick leave was required.

THE RESPONDENT’S CASE

30.Mr Ho, counsel for the respondent submits that most of the sick leave was granted to the applicant because of her purported complaint of PTSD. Symptoms of PTSD are mostly if not completely subjective and generally treating doctors were to take the applicant’s subjective symptoms of PTSD as true, without trying to verify whether such symptoms were genuine or consistent with other complaints. As held in Ale Thak Prasad v Tsang Chin Keung & Another HCPI 579/2012 unreported, 29 December 2017 at §32 and Tse Lai Sing v Tung Wah Group of Hospitals [2021] HKDC 643 at §61.

IS THE APPLICANT’S CASE UNRELIABLE?

31.Mr Ho in his microscopic examination of the applicant’s conduct when compared with medical records and the surveillance evidence submits that the applicant has exaggerated her symptom and has misled the treating doctors. Mr Ho highlights inconsistencies in the medical records as opposed to the applicant’s evidence in court stating that she suffered loss of consciousness whereas the medical record shows that she did not suffer loss of consciousness; the applicant informing the treating doctor of FFMC on 29 April 2015 that she landed on her buttock^{^[37]}, yet in court she insisted that she landed on her head; she stated for the first time in court that she had thoughts of leaving the world when she fell on the floor and her mind was blank.

32.Mr Ho further submits that the applicant changed her site of pain by telling the treating doctor of A&E recorded tenderness of left side of the back[38], whereas Dr Huang was told that she sustained injury to her scalp and left buttock[39]. Inexplicably, the occupational therapist found right sciatica symptom.[40] Straight leg raising test was initially noted as “Full” to subsequently at “45° right, and 70° left”[41]. Further, despite A&E of NDH expressly stated that “No focal neurological deficit was noted”[42], the applicant subsequently claimed to have extensive deterioration of power and pain at multiple levels and on both sides of the lumbar spine.[43] Even after 7-8 months of physiotherapy treatment, the applicant still complained of extensive deterioration of power and pain at multiple levels and on both sides of the lumbar spine.[44] In addition, the applicant told the physiotherapist that not only she had pain at her lower back, she had more serious pain radiating from right hip to right ankle.[45] Whereas right leg pain was not recorded in Dr Huang’s record or record of FFMC.

33.Mr Ho submits that the above points are important not only because they prove that the applicant has exaggerated her physical injuries, it shows that the applicant has begun to feign disabilities in August 2015. This casts doubt on whether the court should believe in the applicant’s subsequent complaints at all.

34.Mr Ho also submits that the applicant has given false and/or misleading information to the treating doctors, including telling the doctor at NDH Psychiatric department that she feared taking heavy vehicles because by then she has already taken about 160 trips on coach, and has handled incoming and outgoing trucks at her work place for around 2,400 times. There was no deterioration in her work performance after the Accident. She was able to travel by coach and handle heavy vehicles on a daily basis. This shows that the applicant was lying when she said she was very fearful when taking heavy vehicles.

35.In further support of his submission that the applicant was unreliable, Mr Ho points out that the applicant did not tell the treating doctors what she told this court 1) her thoughts of suicide by burning coal for a few times within a 2-month period; 2) she felt being followed by a group of men and 3) she heard non-existent voices.

THE ANALYSIS

THE RESPONDENT’S APPEAL AGAINST FORM 9

36.The initial assessment of 40% loss of earning for PTSD in Form 7 was downward adjusted to 20% in Form 9 for psychiatric impairment. It is clear that the MAB when reviewing itself and making the downward adjustment has purposely taken out PTSD and replaced it with the diagnosis of psychiatric impairment and awarded a substantially lower percentage of loss of earning to reflect the same.

THE APPLICANT’S REALIBILITY

37.In assessing the applicant’s reliability, I have considered the following salient features:

THE APPLICANT VOLUNTEERED INFORMATION ABOUT HER IMPROVEMENTS

38.In normal situations, the motive for an applicant to feign one’s symptoms is usually to maximise his/her compensation. Objective evidence shows that the applicant suffered from head injury and there was a scalp hematoma of 2 cm in her head and she felt pain in her head and lower back. Had the applicant intended to inflate her claim, it would have been more logical for her to pretend that she had persistent pain in the head and lower back. After all, head pain and back pain are not difficult to feign, in particular when there are external injuries.

39.However, on 8 September 2015, the applicant told the Fanling family clinic that the back pain has improved by 70%. [46]

40.Instead of exaggerating her lower back symptoms, the applicant told the physiotherapist that she had “overall LBP and right LL numbness decrease” and “overall subjective improvement ~60-70%”.[47] In cross examination, she also admitted that she got better after receiving physiotherapy.

41.In the JME, she told the medical experts the frequency and intensity of her nightmares and her flashbacks have reduced [48] and she lived a quite normal life as a housewife after the accident. She also informed them that her back pain has improved by 70%[49]

42.The applicant told her treating doctor Dr Elisabeth Wong that she has improved from “having flashbacks of the accident several times a week” to “once a week”. Dr Elisabeth Wong also recorded that her fear for stairs was less serious.

43.The applicant volunteering information on her improvement is against the notion of the applicant being a malingerer.

THE APPLICANT TRIED TO CONTINUE WITH HER WORK DESPITE HER INJURIES

44.Despite being granted 1 week of sick leave, the applicant returned to work the next day. She was afraid of being reprimanded or losing her job.[50] Further, the applicant continued to resume work from time to time. According to Cheung, she was able to resume work most of the days during 25 April 2015 to 31 August 2015. The applicant had tried hard to keep her job and she was more work driven than compensation driven during this period.

45.Had the applicant been compensation driven, it was more likely that she would have feigned her head and lower back symptoms for sick leave certificates and would have stayed away from work to obtain maximum compensation.

PSYCHIATRIC SYMPTOMS CAUGHT IN SURVEILLANCE TAPE

46.Whilst the applicant was found descending stairs on her own, the applicant explained that when she did not hold onto the handrails, her legs were shaking and she had to walk very cautiously; she also had to adjust her body position in order to hold her balance.

47.The applicant did inform her treating doctor Dr Elisabeth Wong that she has improved from “having overwhelming fear whenever walking down the stairs” on 27 April 2016[51] to “having residual fear of walking down the stairs” on 20 October 2017.[52] As encouraged by the occupation therapist to live a normal life, the applicant has apparently tried to descend stairs on her own and may have managed to descend stairs without using the handrail. I find the applicant being able to descend stair on her own to be in line with the medical records.

48.In general, surveillance tapes are of limited value in showing the genuineness of the target’s psychiatric impairments. However, in this case, the applicant was seen on 26 October 2017 walking very slowly when descending stairs. In the tape, the applicant was captured holding onto the railings with her right hand whilst descending the long flight of stairs throughout. She was captured requiring the assistance of another female who held onto her left arms while she used her right hand to hold onto the handrail.[53]

49.The surveillance tape shows that the applicant does have a genuine fear and was very anxious when walking down steps, in particular long flight of stairs. It is clear that she suffered from anxiety. In my judgment, this is cogent objective evidence substantiating the clinical psychologist’s opinion that she suffered from residual symptoms of heightened anxiety when walking down the stairs with some features of avoidance.[54] This also supports the MAB’s diagnosis of the applicant suffering from psychiatric impairment.

RECEIVING FOLLOWED UP SERVICES FROM SOCIAL WORKER

50.The applicant gave evidence that she received follow-ups once a month from social worker since 2015 until early 2019, when the handling social worker was relocated to another workplace. During this time, the applicant had to attend 2/F of North District Hospital to receive such services. During which she received counselling service, and participated in different activities. The follow-up sessions were about once a month, and later the sessions were increased to twice or three times a month. She also participated in the volunteer service at Caritas Wellness Link (明愛樂晴軒). She assisted the teachers there to play games with kids. She also assisted in the carnival. She participated in such volunteer service once a week, lasting for 2 years.

51.The applicant receiving social work services are not acts that could advance or in any way inflate her claim. Yet, similar to her attitude towards taking the subscribed medication, attending the psychiatric and clinical psychologist follow up sessions, going through with extensive physiotherapy and occupation therapy sessions, the applicant has continued this act of being followed up by social workers for many years. I accept the applicant’s evidence that she found the social worker’s follow-ups and the volunteering services useful in reducing her psychiatric symptoms and I find this to be a genuine effort on the applicant’s part in seeking a cure to her psychiatric disabilities.

CAUSATION

52.In relation to the issue of causation, Mr Ho refers to Pak Sai Ming v J V Fitness Ltd DCEC 494/2014, unreported, by HHJ Alex Lee (as he then was) in 17 June 2016, at §7:-

“7. That said, the presumption in s 10(2) of Cap 282 relates to the “period” of absence certified to be necessary, not the “cause” of the absence. In order for an injured employee to receive compensation under s 10(1), it is a pre-condition that the temporary incapacity, whether total or partial, “results” from the injury. Therefore, the injured employee still has to establish causation: see Hong Kong Civil Procedure 2016, Vol 2, at §Q1/10/4, citing Lai Yuen Hing v Lo Chi Hung & Another. Compared with LKK Trans Ltd v Wong Hoi Chung, ante, where it is held that the presumption in s 10(5) which deems an incapacity to be permanent has no bearing on issues of causation.”

53.Mr Ho submits that it is well established that sick leave given by treating doctors and endorsed in Form 9 can be rebutted. In Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, Lam VP (as he then was) at §28.

54.Mr Ho submits that since Dr Wong has not dealt with the issue of psychiatric impairment, so even if this court finds that there was some genuine psychiatric impairment, the applicant will have no expert evidence to prove that such psychiatric impairment was caused.

55.Both medical experts agree that there are no pre-existing mental symptoms.[55] The applicant developed mental symptoms about 2 to 3 months after the Accident. The applicant’s psychiatric symptoms were closely connected to the Accident, including 1) repeated nightmares of the Accident; 2) re-experiencing herself falling; 3) flashbacks of the Accident; 4) she could not go near the scene of the Accident. Taking into account the fact that the applicant did suffer from head injuries with scalp hematoma of 2cm and the close proximity in time of the Accident and the time when the applicant developed psychiatric symptoms, I find that the applicant’s psychiatric impairment was caused by the accident.

CONCLUSION

56.Whilst I accept that there had been symptom magnification by the applicant, I do not accept Mr Ho’s submission that if the PTSD symptoms were made up, the other psychiatric symptoms would also have been made up. The applicant may have exaggerated some of her symptoms, yet in the meantime may also have genuinely suffered the injuries and the loss of earning capacity permanently caused by the injury as assessed in Form 9. It is therefore important to consider all prominent features and the available objective evidence on the genuineness of the applicant’s case.

57.In the present case, for reasons discussed above, I do not find the applicant to be a malingerer. I find that there are genuine features and objective elements which substantiate her psychiatric symptoms and the MAB’s diagnosis of psychiatric impairment. I prefer and accept Dr Wong’s opinion and method in determining the applicant’s degree of accuracy, her reliability and credibility in the JMR.[56] I reject Dr Yu’s opinion that the applicant did not have any mental symptoms.

58.It is incumbent on the respondent to provide cogent medical evidence on the issue of the diagnosis of psychiatric impairment in Form 9. Yet, the medical experts have in the joint medical report (JMR) focused their medical opinions on the diagnosis of PTSD with very little reference to the diagnosis of psychiatric impairment. For reasons stated, the medical opinion and diagnosis of the medical experts as set out in the JMR are insufficient to reverse MAB’s findings and I accordingly affirm MBA’s re-assessment of the diagnosis and loss of earning capacity in Form 9.

THE APPLICANT’S MONTHLY EARNINGS

59.The list of earnings show the applicant earned $9,900 basic salary plus $300 allowance for the month before the accident.

60.On top of the monthly earnings, the applicant also received bonuses.

61.Issue arises as to whether the bonuses received by the applicant should be counted as part of her earnings under ECO.

62.Mr Li, counsel for the applicant submits that according to s 3 of the Ordinance, “earnings” should include all bonus, allowance and MPF contributions:

Under Section 3 of ECO - Interpretation

“earnings (收入) 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”. (Emphasis added)

63.The monthly pay-in slips[57] are not disputed.

Month Basic
Salary Overtime/
Allowance/
Incentive Bonus Respondent’s
MPF contribution Total

4/2014 8,700.00 367.97 6,100.00 758.40 15,926.37

5/2014 8,700.00 526.56 461.33 9,687.89

6/2014 8,700.00 594.53 464.73 9,759.26

7/2014 9,900.00 1,173.24 553.66 11,626.90

8/2014 9,900.00 1,023.54 546.18 11,469.72

9/2014 9,900.00 1,769.53 583.48 12,253.01

10/2014 9,900.00 424.50 516.24 10,840.74

11/2014 9,900.00 300.00 510.00 10,710.00

12/2014 9,900.00 365.13 9,220.00 974.24 20,459.37

1/2015 9,900.00 300.00 510.00 10,710.00

2/2015 9,900.00 300.00 510.00 10,710.00

3/2015 9,900.00 300.00 16,140.00 1,317.00 27,657.00

Total: 161,810.26

Average: 13,484.19

64.Mr Li submits that the applicant’s monthly salary should be assessed at $13,484.19 and for the purpose of section 9 calculation, a multiplier of 48 months should be adopted according to s7 of the Ordinance.

65.It is not disputed that clause 8 of the employment contract provided that there was no year-end bonus (雙糧：不設年終雙糧)[58] and the employment contract does not provide for discretionary bonus.

66.The applicant’s monthly payment slips, shows [59] $6,140 was provided in December 2013 as “discretionary bonus”, $6,100 was provided in April 2014, $9,220 in December 2014 and $16,140 in March 2015. These were all described as bonuses. This shows a pattern of the respondent providing the applicant with twice a year bonuses in the form of discretionary bonus and annual performance bonus.

67.I have considered Cheung’s evidence that “酌情性花紅/獎金按答辯人業績及申請人工作表現酌情性派發，非固定薪金。”[60]. Taking into account the nature and a pattern of 2 years from the undisputed salary slips, I find that these are bonuses of recurring nature and meets the requirement under ECO as part of the applicant’s earnings.

68.Mr Li accepts that there were only two rounds of bonuses per year, the table above from April 2014 to March 2015 shows three rounds of bonuses and the bonus $6,100 in April 2014 should have been bonus for the period April 2013 and March 2014. It is therefore appropriate to exclude the $6,100 bonus from the table for the purpose of calculating the applicant’s 12 months pre-accident average monthly earnings.

69.The respondent’s MPF contribution at a total of $7,705.26 are “contribution paid by the employer of an employee towards any pension or provident fund” and are not to be included in the applicant’s average earnings for the purpose of ECO.

70.The average monthly earnings is therefore assessed at:-

($161,810.26 - $6,100 -$7,705.26)/12 = $12,333.75

COMPENSATION UNDER SECTION 9 OF THE ORDINANCE

71.The applicant was 60 years old at the time of the Accident.[61] A multiplier of 48 is appropriate.

72.Since the applicant accepts the re-assessed loss of earning capacity at 21.5% under Form 9 and does not seek for any upward adjustment, I assess compensation under section 9 at:-

$12,333.75 x 48 x 21.5% = $127,284.3.

COMPENSATION UNDER SECTION 10 OF THE ORDINANCE

Length of Sick Leave

73.Section 10(2) of the Ordinance provides that:-

“For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

74.Sick leave certificate granted under Form 7 were for intermittent sick leave from 23 April 2015 to 24 June 2015, and from 2 October 2015 to 9 November 2016 was certified as necessary.[62] Sick leave certificates under Form 9 were for intermittent sick leave from 23 April 2015 to 11 May 2015, 21 June 2015 to 24 June 2015, 26 2015 to 29 June 2015, 5 July 015 to 9 July 2015, 25 July 2015 to 28 July 2015, 7 August 2015 to 8 August 2015, 25 August 2015 to 28 August 2015, 30 August 2015 to 2 September 2015, and continuous sick leave from 4 September 2015 to 12 April 2017 were certified as being necessary.[63]

75.The total days of sick leave granted and assessed in Form 9 are 633 days.

76.The burden is on the respondent to rebut the statutory presumption of the length of sick leave.

77.The MAB in the Form 9 review assessment when certifying the appropriate period of sick leave has adopted a different period of sick leave from that in Form 7. In my judgment, in granting the sick leave certificates in Form 9, the MAB must have taken into account the reviewed diagnosis of psychiatric impairment. I accordingly find that the MAB in the Form 9 review hearing has included and considered the reasonableness for sick leave necessitated by psychiatric impairment but not PTSD.

78.As the respondent does not dispute that the applicant is entitled to sick leave granted due to her back and head injury and based on my finding that the respondent has failed in its challenge against MAB’s diagnosis of psychiatric impairment, I would affirm the sick leave certificate as granted in Form 9.

$12,333.75 x 633/30 months x 4/5 = $208,193.7

COMPENSATION UNDER SECTION 10A OF THE ORDINANCE

Medical Expenses

79.The applicant claims medical expenses of $20,745 pursuant to s10A of ECO in relation to attendance fees of her treating doctors, physiotherapist and occupational therapist [64].

80.After taking into account the Third Schedule of ECO at the time of the Accident, a limit up to $200 per day on medical expenses is allowable. Mr Li, has accordingly adjusted his figures to $14,365, which I accept.

SUMMARY

81.The award is summarised as follows:-

Section 9 $127,284.30

Section10 $208,193.70

Section 10A $14,365.00

__________

Total: $349,843.00

ORDER

82.(1) I award the applicant the sum of HK$349,843 against the respondent with interest at half the judgment rate from the date of the Accident to the date of judgment and thereafter at the judgment rate until payment.

(2) The applicant shall give credit to the respondent’s advanced payment of HK$154,852.14.

COSTS

83.(1) I make a cost order against the respondent in favour of the applicant to be taxed if not agreed with certificate for counsel.

(2) The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

(3) Subject to the First Charge of the Director of Legal Aid, the sum of HK$349,843 shall be paid to the Director of Legal Aid forthwith. The Director of Legal Aid shall be authorized to release the said sum to the applicant.

(4) The above costs order is made nisi. In absence of any application for variation, the costs order shall be made absolute in 14 days from the date hereof.

84.I thank both counsel for their assistance.