Gurung Rekha v. The Wasp Nest Limited t/a Red Sauce Hospitality

DCEC 1993/2019

[2022] HKDC 627

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1993 OF 2019

-------------------------

-------------------------

Before:  Deputy District Judge Rebecca Lee in Court

Dates of Hearing:  16 and 20 June 2022

Date of Judgment:  30 June 2022

----------------------------------------------------

ASSESSMENT OF COMPENSATION

----------------------------------------------------

BACKGROUND

1.The applicant applies for compensation under s 9, 10 & 10A of the Employees Compensation Ordinance (“ECO”) in relation to an accident occurred on 30 December 2018. On 7 January 2021, interlocutory judgment on liability was entered against the respondent. This hearing is for assessment of compensation.

EVIDENCE

2.The respondent has not filed any Answer and has failed to file any witness statement. The respondent has authorized Mr Chu Joshua Chia Sheng to appear on its behalf at the present hearing.

3.The applicant is the only witness. She confirmed her witness statement dated 21 September 2021 as her evidence in chief. She was cross-examined by Mr Chu for and on behalf of the respondent.

THE APPLICANT’S INJURIES AND TREATMENT

4.The evidence from the applicant can be summarized as follows:-

(a)  On 30 December 2018, while the applicant was working at one of the respondent’s restaurants (called Linguini Fini) on Elgin Street, she was instructed by the head chef to get some coriander from the nearby market. When she was leaving the restaurant through the kitchen staff entrance, she slipped near the entrance and sustained personal injuries, ie the subject Accident.

(b)  Shortly after the Accident, she attended the Accident and Emergency Department (“AED”) of Queen Mary Hospital (“QMH”) where she was found to have fracture over the upper first incisor and abrasion over the upper lip. She was assessed by a dental surgeon and was discharged with no sick leave.

(c)  On the following day, ie 31 December 2018, the applicant attended AED of Queen Elizabeth Hospital (“QEH”). The diagnosis was “head and oral injury”. She was discharged on the same day and sick leave was recommended from 31 December 2018 to 4 January 2019. She was referred to the Department of Oral and Maxillofacial Surgery.

(d)  On 2 January 2019, she returned to AED of QEH for dizziness and pain in her nose bridge and was admitted to the department of Neurosurgery. It was noted that neurological examination was unremarkable until her discharge on 3 January 2019. She was recommended sick leave from 2 January 2019 to 13 January 2019.

(e)  On 10 January 2019, she attended the Oral and Maxillofacial Surgery and Dental unit at QEH for consultation.

(f)  On 13 January 2019, she attended the clinic of Dr Calvin So, dental surgeon in private practice, for treatment of her upper front teeth. The diagnosis was complicated crown fracture with pulpal exposure on tooth #21. Dr So recommended root canal treatment and composite restoration on tooth #21 and also full coverage restoration for further protection of the tooth. Dr So recommended 7 days sick leave from 14 January to 20 January 2019.

(g)  On 21 January 2019, the applicant attended AED of Kwong Wah Hospital (“KWH”) for head and facial injuries. Examination showed broken left upper central incisor tooth. No focal neurological deficit was found. She was treated and discharged with sick leave from 21 to 24 January 2019.

(h)  On 24 January 2019, the applicant attended follow-up at Dr So’s Clinic and was recommended 1 day’s sick leave.

(i)  On the following day, the applicant attended AED of KWH for persistent headache and dizziness. She was advised for admission but she discharged herself. Sick leave was given from 25 January 2019 to 28 January 2019.

(j)  On 29 January 2019, the Applicant attended Department of General Out-patient Clinic (“GOPC”) at Lee Kee Memorial Dispensary for toothache and forehead headache after injury. Physical examination showed that her general condition was good with normal gait. There was no neck tenderness and the power of four limbs were full. Sick leave was given from 29 to 30 January 2019.

(k)  From 31 January 2019 to 8 October 2019, the applicant was followed up in the Specialty Outpatient Clinic (“SOPC”) of the Department of Neurosurgery of QEH. The diagnosis was “post-concussion syndrome with headache & dizziness”. She was referred to occupational therapist for cognitive training where she had completed 10 sessions with mild improvement in executive function and memory. She was discharged from the SOPC on 8 October 2019.

5.The applicant was assessed by the Employees Compensation (Ordinary Assessment) Board on 8 July 2020 and 16 December 2020. Under Form 7, the applicant is said to have suffered from “multiple injuries resulting in headache”. Periods of absence from duty necessary as a result of the injury was from 31 December 2018 to 26 September 2019 (total of 270 days). Loss of earning capacity permanently caused by the injury is assessed at 0.25%.

6.Review of assessment was conducted on 7 April and 16 June 2021 as the applicant objected to the assessment under Form 7.

7.Under Form 9 dated 30 June 2021, the applicant was said to have suffered from “multiple injuries resulting in post-concussional syndrome”. The certified sick leave period is 270 days from 31 December 2018 to 26 September 2019. The total loss of earning capacity is assessed at 1%.

THE APPLICANT’S SALARY

8.In relation to the applicant’s salary as at the date of Accident, the applicant relies on the Service Agreement entered into by the respondent and herself dated 20 October 2018, which stated her monthly salary to be $13,500.

9.There same is agreed by Mr Chu of the respondent. I have no reason not to accept applicant’s evidence (which is supported by the Service Agreement) that her monthly salary at the time of the Accident was $13,500.

10.Compensation under s 9 and s 10 would be calculated on that basis accordingly.

LOSS OF EARNING CAPACITY

11.As for the percentage of loss of earning capacity, the applicant relies on Form 9, ie 1% for “multiple injuries resulting in post-concussional syndrome”.

12.Mr Chu said that the court should adopt the 0.25% as assessed under Form 7.

13.He argued that as the applicant was unhappy with the assessment of 0.25% under Form 7, she appealed the same and was re-assessed by the Employees’ Compensation (Ordinary Assessment) Board.

14.He pointed out that the applicant took up 2 jobs after the sick leave expired in June 2019, which means that she is able to work.

15.The applicant explained under cross examination that those were only part time jobs and she eventually stopped working owing to the pain.

16.In any event, as I have explained in court, the fact that she was assessed to have suffered from 1% loss of earning capacity means that she was able to take up employment of some sort and it does not mean that she would not be able to take up any employment at all.

17.No doubt at the time of review, the Board was provided with all the medical records/notes available and then came to a conclusion different from the assessment under Form 7.

18.I note that “post concussion syndrome” was mentioned in the medical records/notes of QEH on 2 January 2019 and 17 June 2019 [p 60-61, 85 and 97 of the Bundle] as well as in the records/notes of KWH on 25 January 2019 [p 100-101 of the Bundle].

19.As there was no contrary evidence (medical or otherwise) to suggest that the Board should have come to a different conclusion, I see no reason not to accept the assessment of 1% loss of earning capacity under Form 9.

SICK LEAVE PERIOD

20.Form 9 (as well as Form 7) certified a total of 270 days sick leave.

21.I agree with Miss Lok that s 10(2) of ECO sets out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim.

22.The principle was stated with great clarity by Lam VP (as he then was) in Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120. The burden is on the employer (ie the respondent) to rebut the said presumption.

23.Mr Chu put to the applicant that she was “fishing for sick leave” as she appeared to have visited a different hospital once the previous sick leave period expired.

24.The applicant explained that she visited different hospitals as the waiting time at QMH (where she first visited after the Accident) was longer than the other hospitals. She maintained that she merely attended the follow-ups at the hospitals as arranged and she was granted sick leave on those occasions.

25.Mr Chu queried why the applicant was granted sick leave for over 100 days (from 17 June 2019 to 26 September 2019) for “surgical illness” by the Neurological Clinic of QEH [p 146 of the Bundle] when all the previous sick leave periods were relatively short, mostly ranging from 1 to 7 days only. Further, she has not undergone any surgery at Dr So’s clinic nor at the government hospitals.

26.The corresponding medical record of the Neurological Clinic of QEH can be found on p 60 to p 61 of the Bundle. There, I can see no mention of any “surgery”. The attending doctor noted down “post concussion syndrome with headache and dizziness”.

27.Miss Lok for the applicant confirmed that indeed no surgery was performed on the applicant as such.

28.The applicant also admitted in court that she has not undergone any “surgery” and had no idea why the doctor put down “surgical illness” on the sick leave certificate. She said that Dr So recommended “tooth capping” but as the cost was too high, she went back to the public hospitals where she was given a series of check ups and investigation but no “tooth capping” was performed.

29.She reiterated that she has pain in her head and her tooth and she told the doctors every time she attended follow-up.

30.I appreciate the respondent’s concern that the applicant did not in fact undergo any surgery. There is no evidence before me to ascertain why “surgical illness” was stated on that specific sick leave certificate.

31.However, the corresponding medical records did show that the applicant was suffering from “post concussion syndrome with headache and dizziness”, which is consistent with her complaints all along and sick leave was granted as a result.

32.Despite Mr Chu’s efforts, the respondent is unable to put in contrary evidence to show that the applicant should not be entitled to the sick leave as granted.

33.The court is therefore bound to adopt the 270 days sick leave in assessing compensation as the presumption under s 10(2) is not rebutted.

QUANTUM

Compensation under s 9 ECO

34.The applicant was 24 at the time of the Accident and thus compensation would be calculated on the basis of 96 months earnings.

35.Applying 1% loss of earning capacity as assessed under Form 9, compensation under s 9 would be:-

$13,500 x 96 x 1% = $12,960

Compensation under s 10 ECO

36.Applying the 270 days sick leave, compensation under s.10 is thus:-

$13,500 x 270/30 x 4/5 = $97,200

Compensation under s 10A ECO

37.The applicant claims a sum of $9,875 of which $7,455 was evidenced by receipts. The applicant has no further information in relation to the remaining $2,420 allegedly spent.

38.The respondent agreed to the sum of $7,455.

39.Considering all the evidence before me, I allow a sum of $7,455.

SUMMARY

40.I order total compensation as follows:-

(a)	Section 9	$12,960
(b)	Section 10	$97,200
(c)	Section 10A	$7,455
	Less: Advanced payment	($48,141)
	Total	$69,474 ======

41.I enter order the respondent do pay the applicant compensation in the sum of $69,474 together with interest at half judgment rate from date of Accident to date of judgment and thereafter at judgment rate until payment.

42.I make order nisi that the respondent do pay the applicant’s costs of this proceedings (with certificate for counsel), including all reserved costs, to be taxed if not agreed. The costs order shall become absolute unless parties apply to vary by way of summons within 14 days.

Ms Jenny Lok, instructed by C W Heung & Partners, for the applicant

The respondent being represented by its authorized representative Mr Chu Joshua Chia Sheng