Chung Shek Nin v. Yam Kee Construction Co Ltd and Another

DCEC 1102/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1102 OF 2003

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IN THE MATTER OF an Application between :

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Coram: H.H. Judge Wong in Court

Dates of Hearing: 23^rd, 24^th & 25^th February 2005

Date of Handing down Judgment: 4^th April 2005

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J U D G M E N T

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The Application

1.On 22/10/01 the Applicant sustained injury in the course of employment as employee of the Respondents, the 2^nd Respondent being the principal contractor.  He now claims compensation under Section 9, 10 and 10A of the Employees’ Compensation Ordinance.

2.The Parties agreed that the Applicant was injured in the course of employment.  So the only outstanding matter is assessment of compensation.

The Injury

3.The Applicant was a steel fixer at the time of the accident.  His duty included binding and transporting steel bars at the construction site.  On 22/10/01 while working at the construction site he lost balance and fell.  His right knee cap was hurt.  He was taken to Yan Chai Hospital where his condition was found to be alert and good with mild tenderness and swelling over infra patellar region of the right knee.  X-ray showed no fracture of the right knee.

4.The Applicant said he had persistent swelling and pain and had difficulty in walking.

5.On 6/2/02 he went to Tuen Mun Hospital for arthroscopic examination of his right knee and was diagnosed to suffer from meniscus tear.

6.On 27/2/02 because of swollen right leg he received ultrasound examination and was found to have suffered right leg deep vein thrombosis.  He stayed in hospital for 21 days for observation.  Thereafter he received physiotherapy and occupational therapy.

7.He said that until now his right leg had not recovered in that he had pain when walking, he could not run and had difficulty in going up and downstairs.  He could not squat and his right leg would be swollen if he were to sit for more than 20 minutes.

Compensation

(1)  Under S.9

8.The Applicant said that he cannot return to work as a construction worker.  However according to both Dr. Chiang and Dr. Lee who examined him they implicitly accept that the Applicant had not been honest in describing his symptoms regarding his knee injury and there was a degree of exaggeration.  They concluded that the Applicant suffered from “mild decrease in the end range of extension of the right knee but the overall range of movement of the right knee could still be considered satisfactory”.

9.The video tape has clearly demonstrated his exaggeration in that he could walk his daughter to school and then went to supermarket.  He could walk up staircases without difficulty.  He stood to chat with friends for over 30 minutes while his friends sat down on the bench and he stood outside a restaurant for about 40 minutes.

10.Both Doctors accept that he could return to work on a construction site.  Dr. Lee is of the view that he should be able to return to work as steel binder and Dr. Chiang stated that he might not be able to return to the pre injury job.

11.The first assessment by the Medical Board is that there was no loss of earning capacity.  On appeal the Medical Board found that there is a 7% loss of earning capacity.  Dr. Lee is of the view that the assessment is reasonable while Dr. Chiang is of the view that the loss of earning capacity should be 15%.

12.Since the Medical Board consisted of doctors and labour officer, the Board finding is agreed by Dr. Lee and in view of the exaggeration on the part of the Applicant on balance I am also of the view that 7% loss of earning capacity is a reasonable assessment.  I find that there are no special circumstances to involve S.9117(A) for the assessment.

13.Hence compensation under S.9 should be $21,000 x ⁴/₅ x 72 x 7% = $84,672.00.

(2)  Under S.10

14.The Applicant has produced numerous sick leave certificates.

15.I have previously ruled in Ali Shoukat v. Hang Sang Bank Ltd. that presumptions under S.2 are rebuttable.  In the present case the remarks by the following doctors giving sick leave certificates demonstrated why the presumption is rebuttable:-

(i)	On 17/10/03 Dr. Wong Wing Keung from Tuen Mun Hospital issued a medical certificate with the following remarks “The progress is static and MAB is done on 16/9/03.  This sick leave was solely for legal purpose”.  The consultation note of Dr. Wong stated “He requested SL for Legal proceeding and he aware that he is entitled for SL for 3 years at most after legal proceedings.  Explained that we do not have any intervention and his progress is static”.
	This demonstrates that even before 17/10/03 this Applicant had in mind legal proceedings had been planning to get sick leave pay by all means.  I am surprised that he was aware that he could get at most 3 years sick leave.  I do not rule out the possibility that there was someone behind to advise him notwithstanding his denial of such advice and his protest that he did not tell Dr. Wong about this.
(ii)	On 12/12/03 Consultant Kwok Kin Wa issued him a sick leave certificate with the following remarks “He claimed persistent knee pain and request for sick leave because he notice symptom improved with rest.  In my profession point of view, further sick leave does not improve his right knee condition as his right knee already reach MMI”.
(iii)	On 16/4/04 the medical certificate issued by Dr. Chan of Tuen Mun Hospital remarked “He had reached MMI and fit for medical assessment.”
(iv)	On 31/5/04 the medical certificate issued by Consultant Kwok Kin Wa had the same remark as he stated in the medical certificate dated 12/12/03.

16.It is most unfortunate that this Section of the ordinance had been manipulated by unscrupulous litigants.

17.In view of the remarks made by the various doctors above I rule the Applicant is only entitled to sick leave up to 16/9/03 i.e.

22/10/01 – 23/1/02	–	94 days
23/1/02 – 6/2/03	–	15 days
6/2/02 – 2/9/03	–	574 days
3/9/03 – 11/9/03	–	9 days
13/9/03 – 16/9/03	–	4 days
Total		696 days

18.His monthly earning as agreed was $29,486.25.  Accordingly the calculation under S.10 is $29,486.25 x ⁴/₅ x ⁶⁹⁶/₃₀ = $547,264.80.

(3)  Under S.10A

19.The medical expenses is agreed at $7,174.00.

20.The total compensation under Sections 9, 10 and 10A should be:-

S.9	–	$84,672.00
S.10	–	$547,264.80
S.10A	–	$7,174.00
Total		$639,110.80

21.Since the Respondent has paid the applicant $550,017.28, the compensation the Applicant is entitled to now is $(639,110.80 – 550,017.28) = $89,093.52.

22.In the premises I assess compensation at $89,093.52.

23.Order: Judgment for the Applicant in the sum of $89,093.52 with interests at ½ judgment rate from date of accident to date of judgment and thereafter at judgment rate.

24.Costs order nisi:  Costs to the Applicant.  Certificate for Counsel.

25.Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr. Y.L. Cheung instructed by Messrs. Or, Ng & Chan Assigned by D.L.A. for Applicant.

Mr. John KERR instructed by Messrs. Hastings & Co. for the 1^st and 2^nd Respondents.