Sin Fu Yau v. Wong Po Kee Ltd and Another

DCEC 654/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 654 OF 2003

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BETWEEN

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Coram: Deputy District Judge Anthony Chow in Court

Dates of Hearing:  21^st and 22^nd August 2006

Date of Handing down of Judgment:  5^th October 2006

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JUDGMENT

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1.This is an application for compensation under sections 9, 10, 10(5) and 10A of the Employees' Compensation Ordinance Cap. 282 (the “ECO”).

Background:

2.The facts of the injury are not in dispute. The 1^st Respondent was a sub-contractor and the 2^nd Respondent, the main contractor of the Airport Railway's Tung Chung Station (Phase 3 Development) (District 21) (the “Site”). The Applicant was employed by the 1^st Respondent as a plumber. On 4/9/2002, at or about 3:30 PM, while installing water pipes on the ceiling of the Site, a metal water pipe fell from the ceiling, hitting the Applicant's left big toe. As a result, the Applicant's left big toe suffered injury.

3.On the same day, the Applicant went to Tuen Mun Hospital for medical treatment. After treatment, the Applicant was discharged.

4.The Applicant was granted sick leave from 4/9/2002 to 6/10/2004. The Employees' Compensation (Ordinary Assessment) Board originally assessed the Applicant's permanent loss of earning capacity caused by the injury at 1%. On the Applicant's application for re-assessment, the assessment was revised to 2%. Both parties appealed against the assessment of the Board.

5.The Applicant was born on 24/6/1951 and was 51 years old on the day of his injury. On average, during the 12 months prior to his injury, the Applicant was earning HK$23,100.00 per month.

6.I will deal with each item of the application separately.

Section 10A:

7.There is no dispute, the parties agreed the Applicant's medical expenses during his temporary incapacity period was HK$3,852.00.

Sections 10 and 10(5):

8.The Applicant applied for periodical payments from the first day (4/9/2002) to the last day (6/10/2004) sick leave was granted. In view of the fact that the total sick leave period was 1 month and 3 days beyond 24 months, the Applicant also applied to extend the periodical payment period under section 10(5) of the ECO.

9.In this part of his application, the Applicant relied on the following evidence: (1) Sick leave certificates issued by government doctors, giving the Applicant unbroken sick leaves from 4/9/2002 to 6/10/2004; (2) The Certificate of Review of Assessment, certifying the Applicant's period of absence from duty necessary as a result of the injury was from 4/9/2002 to 6/10/2004.

The Applicant's case:

10.Section 10(2) of the ECO reads:

“ For the purpose of this section a period of absence from duty certified to be necessary by a medical 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.”

11.Mr. Ho, counsel for the Applicant, submitted that the words “shall be deemed” in section 10(2) created a conclusive presumption such that once one of the certificates required under section 10(2) is produced, the period of temporary incapacity due to the injury is irrebuttable.

The Respondents' case:

12.Mr. Chan, counsel for the Respondents, argued that the presumption created in section 10(2) is prima facie only and in the expert opinion of Dr. Lam Kwong-Chin, a suitable sick leave for this type of injury for a manual worker would be 2 to 4 months; however in view of the fact that the Applicant received physiotherapy treatment up to March or April 2003, Dr. Lam endorsed the Applicant's sick leave up to that period only.

Issues:

13.The first issue in this part of the application is whether the presumption under section 10(2) is rebuttable? If I find the presumption is only prima facie, than the second issue would be, what is the proper sick leave period?

14.In a comprehensive opening submission, Mr. Ho canvassed most, if not all, decisions that have considered this issue. The cases are divided.

15.Before analysing the cases, it is helpful to remember the ECO is a statutory creation and must be read in that context. In Choy Wai Chung v. Chun Wo Construction and Engineering Co. Ltd. [2000] 4 HKC 653, at issue on appeal was whether the court's discretion to extend the period under section 10(5) of the ECO is limited to situation where it was not known whether the loss of earning capacity would be permanent. In considering the effects of section 10(2) in particular, and in assessing compensation under the ECO generally, Rogers VP stated:

“It would seem that, perhaps, sight was lost of the mandatory effect of s 10(2). Not only were there medical certificates but the Ordinary Assessment Board had certified Mr Choy as requiring absence from duty up until 16 October 1998, the date of its review.

No doubt, in civil claims for personal injuries, the court is entitled to look to see what the injuries of the plaintiff are and to see whether indeed the plaintiff was entitled not to be compensated on the basis he was not able to do any work. Compensation under the Employees' Compensation Ordinance, however, is based in a number of respect on a different premise and the method of calculation is laid down in the Ordinance.” Emphasis added.

16.According to Rogers VP, the methods of calculating employee compensation contained in the provisions of the ECO and section 10(2) is mandatory.

17.In Ng Kwok Keung v Wing Sum Construction & Engineering Company Limited DCEC 1367-2003, Her Honour Judge C.B Chan was confronted with this exact same issue. Judge C.B. Chan carefully considered the following cases:

18.In Yu Cheung Yim v. Lucky Friend Industrial Ltd. DCEC No. 160/1995 and Lai King Wai v. Kwai Chuen Container Service Company Limited DCEC No. 805/2002, where His Honours Judges Longley and Lok both concluded that in the context of the ECO, in the absence of proof of fraud, the legislature intended the deeming provisions in subsection 10(2) to be a conclusive presumption.

19.In Ali Shoukat v. Hang Seng Bank Limited DCEC 69/2002 however, His Honour Judge Wesley Wong quoting with approval, His Honour Judge Muttrie's judgment in L. v. Equal Opportunities Commission and Ors DCEC No. 6/1999, as follows:

“ If it is right, it means that the employer can look no further than the sick leave certificate. Section 16 is otiose. That cannot be right, Quite apart from that, in practice a sick leave certificate may be based on no great incapacity, depending on the attitude of the doctor, who may find it easier to issue the certificate and get an argumentative patient out of his surgery, than to go on listening to his complaints. It seems to me that the effect of subsections (2) and (6) is quite simply that where the employee has a sick leave certificate from a doctor, he is deemed to be totally incapacitated and so entitled to a flat four fifth of his monthly earnings; but this is a deeming provision rebuttable by medical evidence to the contrary. Certainly that is how it is treated in employee's compensation claims.”

20.In Kong Yuk-man v. Centro Digital Pictures Limited DCEC 774/2001, an application under section 10(5) to extend the periodical payments beyond the 24 months period, with reference to subsection 10(2), His Honour Judge Carlson stated:

“In this case there is the evidence of Dr. Lee. I have found his report, prima facie, compelling. If I were to go on and award more than what has already been paid and at the trial it emerges that Dr. Lee's evidence is preferred by the trial judge, there is a real risk that the respondents will be done an injustice. Even though they are entitled to claim reimbursement…”.

21.In Chung Ping Huen v. Leighton Contractors (Asia) Limited and Ors DCEC 169/2003, on the issue of subsection 10(2), His Honour Judge Carlson reiterated his own holding in Kong Yuk-man.

22.Judge C.B. Chan also looked to Butterworths' Hong Kong Personal Injury Service for guidance. In para. 1552 under the heading “Is the injury permanent?” When referring to the deeming provision in subsection 10(5), the learned author stated:

“ It is important to also recognize that this presumption of permanent incapacity contained in section 10(5) is not expressed as being a rebuttable presumption. That is to say, the section contains no words like ‘in the absence of evidence to the contrary' which would indicate that an employer could, be calling the appropriate evidence, rebut the presumption that after 24 months the employee is permanently incapacitated.”

23.Although the learned author of Butterworths' Hong Kong Personal Injury Service was referring to the deeming provision in section 10(5), the same reasoning was applied to section 10(2) in Lai Yuen Hing v. Lo Chi Hung Trading as Kam Hung Construction Co. and Gammon Construction Limited DCEC No. 14/2000, Deputy Judge Lin stated:

“If the deeming provision in s.10(2) was intended by the legislature to be rebuttable, those words like ‘in the absence of evidence to the contrary' or ‘unless the contrary is proved' would have been inserted. Absent words to the similar effect, I find that on its true construction, the deeming provision in s. 10(2) is not rebuttable.”

24.Finally, Judge C.B. Chan considered the wordings of section 10(2) and concluded:

“The words ‘irrespective of the outcome of the injury' shows that the outcome of the injury should not affect the effect of the deemed period of total temporary incapacity certified by the Ordinary Assessment Board or a Special Assessment Board or a medical practitioner. I agree with Judge Longley in his Judgment in Yu Cheung Yim and Lucky Friend Industrial Ltd. referred to above that:

‘the context of the Employees Compensation Ordinance indicates that (in the absence of proof of fraud) the legislature intended it to be a conclusive presumption. The scheme of the Employees Compensation Ordinance is to provide (except when circumstances do not allow) a scheme of readily ascertainable compensation which, in the case of periodical payments under Section 10, is payable on the same day as wages. This object would be largely frustrated if a sick leave certificate was only to constitute prima facie evidence of the necessity for such sick leave. Furthermore, it accords with social justice that an injured workman should be able to take sick leave recommended by his doctor confident in the knowledge that he will be remunerated during that period and that his employer cannot subsequently seek to demonstrate that it was unnecessary.'”

25.After careful consideration of the above, Judge C.B. Chan found the word “deemed” in subsection 10(2) was a presumption that is irrebuttable.

26.There are other cases that considered this issue, in Lau Man Keung v. Yiu Wing Construction Co, Ltd. CACV 2232/2001, Leong CJHC (as he then was) over turned the trial judge's finding that the medical certificates and the assessment board's confirmation of the leave of absence was rebutted by the respondent's medical evidence, his Lordship stated: “The sick leave was certified as necessary by a number of doctors and confirmed by the Board and no suggestion has been made that these medical certificates were issued without due consideration by the doctors.” If a doctor issues a medical certificate without due consideration, I consider that as a form of fraud. Accordingly, Leong CJHC's holding confirmed Judge Longley's decision in Yu Cheung Yim.

27.In 關儉庭及陳細良 (另名為CHAN SAI LEUNG) 經營細記油漆工程v.泰利恆工程有限公司, 僱員補償援助基金管理局 DCEC1095/2000, Deputy District Judge Ng (as she then was) held:

“ 許大律師續援引第10(2)條的推定，指由醫生證明為需要缺勤期。這是一個可以推翻的推定。”

28.The facts of 關儉庭 was complicated by the applicant actually working 20 days during the period he was certified as temporary incapacitated. I consider that as another form of fraud.

29.In Chu Wai Ling v. Hoyin Construction Limited and Marshall-Karson Construction & Engineers Limited DCEC 834/2004, His Honour Judge Chow held:

“The relevant part of the provision under section 10 is rebuttable. The burden is on the Applicant to show that on the balance of probability the evidence of Dr. Chung See Yuen, in so far as the Applicant's sick leave is concerned, is to be preferred.” 

30.Chu Wai Ling can be distinguished by the fact the application in front of Judge Chow was section 10(5), therefore when he said “the relevant part of the provision of section 10…”, he could only be referring to section 10(5) and not section 10(2). 

31.Finally, citing the Court of Final Appeal's decision in LKK Trans Ltd v Wong Hoi Chung [2001] 1 HKLRD 980 (CFA), Mr. Ho urged me to interpret subsection 10(2) in a purposeful and contextual manner.

32.In LKK, an employee, who was suffering from a pre-existing condition that affected both hips, fractured one of his hips during a work related accident. Both the work-related injury and the pre-existing condition were found to be concurrent contributing causes of the employee's permanent partial incapacity. The lower courts refused to apportion the employee's incapacity between the 2 causes. The respondents appealed to the Court of Final Appeal.

33.In his judgment, Justice Bokhary PJ approached the issue as “…whether the Ordinance, purposefully constructed as a whole and in context, permits such apportionment.” Justice Bokhary PJ explained the purpose of the ECO as follows:

“… But the obvious object of the Employees' Compensation Ordinance is speedily and with considerable certainty to provide urgently needed no-fault and compulsorily-insured compensation to injured employees or the family they left behind. And that is not a context in which I see any warrant for resorting to that sort of reading down in order to permit apportionment and thus introduce the delay and uncertainty which apportionment would generally entail. …”. Emphasis added.

34.In his judgment in LKK, Justice Riberiro PJ explained the no fault nature of the compensation under the ECO as follows:

“ Such a notion is closely allied to a concept which forms no part of the statutory scheme, namely, that of the employer's fault. If it were a fault-based scheme, the legal focus would be on the circumstances of the claimant's employment in which the injury arose and the argument that the compensation should relate only to consequences tied to those circumstances would have much force. But, as everyone agrees, the Employees Compensation scheme is a no-fault scheme aimed at giving quick financial relief to employees incapacitated by work related injury. It is a scheme whereby the community, through the cost-sharing devise of compulsory insurance, permits employees so incapacitated to look to their employers for compensation having regard to the extent of the incapacity suffered, regardless of any fault on the part of the employer and regardless of the circumstances in which the work accident arose. The focus is, in other words, on insurance-based compensation aimed at alleviating the incapacitated employee's hardship rather than on compensation confined in a manner which reflected employer's fault.” Emphasis added.

35.Accordingly, the purpose of the ECO is to speedily and with certainty provide urgently needed money to injured employees.

36.Judges Longley and C.B. Chan's purposeful and contextual interpretation of subsection 10(2) in their respective holdings, accord with Justices Bokhary PJ and Riberiro PJ's analysis of the purpose of the ECO in LKK. I agree with Judges Longley and C.B. Chan and I also find, in the absence of evidence of fraud, either by the certifying doctor or the employee, the presumption under subsection 10(2) is irrebuttable.

37.I have carefully considered Mr. Chan's submission that in the medical note dated 21/5/2003, Dr. Wong Chee Leong wrote: “ request for sick leave to keep the job - no pay with sick leave”. The question is what did Dr. Wong meant by those words? Was it simply a notation of the Applicant's remarks or as Mr. Chan submitted, Dr. Wong was commenting he would not have issued a sick leave certificate otherwise?

38.Without Dr. Wong's testimony there is no way to be sure; however, if I accept Mr. Chan's submission, it would mean that all other medical certificates following Dr. Wong's certificate on 21/5/2003 have been issued in error and the likelihood of the Applicant being able to fool all those other doctors was so remote that I find it improbable. 

39.As to the Applicant's application under subsection 10(5) to extend the periodical payment period by 1 month and 3 days, Rogers VP in Chun Wo stated:

“… (T)he mischief sought to be cured by the introduction of the provisions of s. 10 was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated.

…Taking into account the medical certificates which have been produced, it seems to me to be fair in all the circumstances that Mr Choy should receive compensation for temporary incapacity for the full three-years period possible. …”.

40.Here, there is no evidence of fraud by either the doctors or the Applicant, taking into account the medical certificates produced, I find it is fair in all circumstances of this case to allow the Applicant the full period he was temporary incapacitated. The periodical payment period is therefore extended to 6/10/2004.

Section 9:

41.To recap, the Employees' Compensation (Ordinary Assessment) Board originally assessed the Applicant's permanent loss of earning capacity caused by the injury at 1%. On the Applicant's application for re-assessment, the assessment was revised to 2%. Both parties appealed against the assessment of the Board.

The Applicant's Case:

42.The Applicant relied on 2 medical reports by Dr. Au Ka Kau dated 3/12/2005 and 2/2/2006. Dr. Au made measurement on the Applicant's 2 big toes' movement, made comparison by giving specific figures and came to the finding that the Applicant's left big toe movement was impaired. This was confirmed in the Respondents' medical expert, Dr. Lam Kwong Chin's report dated 12/8/2003.

43.Both Dr. Au and Dr. Lam made measurements with respect to plantar flexion of the ankle joint movement and they arrived at the same results. Dr. Au further opined that the dorsiflexion and plantar flexion power of the left ankle was slightly limited by pain.

44.Bearing these 2 factors in mind, it is reasonable to anticipate, with such disability at the big toe and ankle, the Applicant's ability to climb scaffoldings would be reduced by a material extent, and the Applicant's pre-accident job as a plumber at construction sites, required frequent scaffolding climbing.

45.Given the low education level of the Applicant and his age, the choice of jobs now open to the Applicant is limited. Comparing Dr. Lam's assessment of 1% loss of earning capacity and Dr. Au's assessment of 4% loss of earning capacity, Dr. Au's assessment is more realistic.

The Respondents' case:

46.The Applicant only suffered a minor fracture of the MTP joint of the left big toe. He was discharged from the hospital on the same date of the accident. The Applicant only required following up at the A&E Follow-up clinic for 2 months after the accident. During this period, the Applicant only attended 1 session of physiotherapy treatment.

47.The Applicant then frequently attended the A&E Follow-up clinic on his own. The Applicant requested to be transferred to the Orthopedic Clinic. In January 2003, the Applicant was referred for occupational therapy, but only attended 13 sessions before he stopped.

48.Dr. Lam Kwong Chin examined the Applicant on 28/7/2003. X-rays taken on 28/7/2003 showed a completely unremarkable left foot.  Although Dr. Au noted a slight mal-union in November 2005, it was described as “mild” and “ acceptable alignment”.

49.In his report dated 12/8/2003, Dr. Lam had great doubt on the validity of the Applicant's complaints and discovered signs of malingering or symptoms exaggeration, including complaint of diffused tenderness over the foot and putting the crutch under the wrong shoulder.

50.After reviewing the surveillance tapes conducted on 15^th to 17^th and 19^th of July 2003, Dr. Lam agreed with the original Employees' Compensation (Ordinary Assessment) Board's assessment of 1% loss of earning capacity.

51.Even the Applicant's medical expert, Dr. Au, after seeing the surveillance tapes, reduced his assessment from 6% to 4%.

The Law:

52.Section 18(3) of the ECO states:

“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.”    

53.Accordingly, the court has a wide discretion to consider all evidence and to depart from or confirm the assessment by the Board. The court need not rely on assessment made by medical doctors (see Tang Shan Chan v. Wealthy Construction Company Limited CACV 58/2000, Woo Wai- Kuen v. Li Siu-keung, Alex trading as Alex's Kitchen DCEC 489/2000 and Kwan Yee Chor v. Hung Fau Metal Construction Company Limited and Ors DCEC 520/2001).

54.Mr. Ho suggested since there was a diversity of opinion on the Applicant's loss of capacity between the experts and between them and the Board, I should follow Lau Man Keung and apply the formula in Hong Kong Paper Mill Ltd v. Chan Hin Wu [1981]HKLR 556, as modified later by Lui Kwong Yan v. Shui Hing Decoration Works & Anor [1993] 1 HKLR 168.

55.The formula in Hong Kong Paper Mills was:  [(b-a)/b] x c

Where a = wages for the work the employee is now capable of doing, but assessed at the date of the accident

b = pre-accident wage of the employee

c = compensation payable on permanent total incapacity

56.The problem in applying the Hong Kong Paper Mills formula in this case is the fact that even Dr. Au, the Applicant's medical expert, stated in paragraph 8.7 of his report: “In the present degree of impairment, Mr. Sin is fit to return to his previous job as a plumber, …”. Although Dr. Au further stated the Applicant would have “reduced efficiency” and he would advise him to avoid working at a height on scaffoldings.” The fact remains the Applicant is capable of returning to his previous vocation and when the formula in Hong Kong Paper Mills is applied, the resulting reduction in earning capacity would be zero. This is even more stringent than Dr. Lam's assessment of 1% reduction in earning capacity. The formula in Hong Kong Paper Mills clearly is not suitable in the Applicant's case.

57.As a starting point, after viewing the surveillance tapes, Dr. Au's revised his original assessment from 6% to 4%. Clearly, Dr. Au agreed with Dr. Lam that the Applicant had exaggerated his symptoms. As to Dr. Lam's assessment of 1% reduction in earning capacity, he failed to notice a slight mal-union of the facture, which was clearly stated in Dr. Au's report. The mal-union may be mild and of acceptable alignment, but it might cause pain and discomfort to the Applicant. Dr. Lam in his report acknowledged the fact that the Applicant might be suffering from some residue pain.

58.Given the small difference in the 2 medical experts' opinion, and the inaccuracies contained in their reports, I must look else where for guidance. The First Schedule of the ECO, item 37, listed the percentage of loss of earning capacity for a complete loss of one phalanx of one great toe as being 4%. Clearly the Applicant's condition is a lot less serious than the complete loss of the great toe. I think Dr. Lam's assessment of 1% is a better starting point. From that I add 1% for the residue pain suffered and I come up with 2% loss of earning capacity, which is the same result the Board arrived at in their reassessment.

Calculation:

Order:

60.Judgment is for the Applicant in the sum of HK$364,682.40.

61.Costs is to the Applicant, with certificate for counsel, to be taxed if not agreed.

62.The Applicant's own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Mr. Simon Ho, instructed by Messrs Au Yeung, Cheng, Ho & Tin (assigned by D.L.A.), for the Applicant

Mr. Samuel Chan, instructed by Messrs Deacons, for the 1^st and 2^nd Respondents