Wong Kwok Yan v. Harmony Fortune Ltd t/a Fortune Cafe
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DCEC 97/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 97 OF 2008 ------------------------ BETWEEN
---------------------- Coram: H H District Judge Marlene Ng in Court Date of Hearing: 25th November, 2008 Date of Handing Down Judgment: 2nd December, 2008 ----------------------------------------------------------- ASSESSMENT OF COMPENSATION --------------------------------------------------------- I. Background 1.On 20th January 2007, the Applicant was employed by the respondent to work as a chef at the Respondent’s restaurant, ie Fortune Café (“Restaurant”) in Ngau Chi Wan, Kowloon. At about 1:30am when the Restaurant was about to close, the Applicant and his colleague proceeded to pack up two sets of canvas that were used as a canopy over the entrance of the Restaurant. After packing up the first set of canvas, the Applicant stood on a 1m high planter unit to release a string that was tied to a nearby water pipe. After the string was released, the weight of the second set of canvas caused the Applicant to lose his balance. He fell from the planter unit (“Accident”), and landed on a flowerbed and then on the ground on his left heel and knee. The Applicant sustained left foot injury. 2.The Applicant claimed against the Respondent for employees’ compensation under the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) in respect of his injuries as a result of the Accident that arose out of and in the course of his employment with the Respondent. 3.By a Notice of Appeal dated 21st April 2008, the Applicant appealed against the assessment of 4% loss of earning capacity permanently caused by the injury (ie left os calcis fracture resulting in pain, scarring, weakness and stiffness) by the Employees’ Compensation (Ordinary Assessment) Board in the Certificate of Review of Assessment (“Form 9”) issued on 3rd April 2008. 4.On 22nd April 2008, interlocutory judgment was entered in favour of the Applicant against the Respondent for compensation to be assessed. 5.On 22nd July 2008, I directed that the assessment of compensation be heard before me on 25th November 2008 (“Order”). According to two affirmations of service both dated 20th November 2008, the Applicant caused (a) the Order and the assessment bundle, and (b) the Applicant’s written opening submissions dated 14th November 2008 (“1st Submissions”) and the revised indices of the assessment bundle together with pages 50.1 and 50.2 to be inserted therein to beserved on the Respondent at its registered office and business address respectively on 12th and 14th November 2008. 6.The Respondent had not taken any part in the present proceedings to date, and did not appear at the assessment hearing before me. I was satisfied that the Respondent had been duly notified of the assessment hearing, and there was no reason not to proceed with the assessment of compensation. II. Procedural matters 7.The Applicant was the sole witness, and he adopted the contents of his witness statement of 21st May 2008 as part of his evidence-in-chief. 8.By the Order I granted leave for the expert report of the Applicant’s orthopaedic expert, Dr Lung Ting Kwan Peter (“Dr Lung”), dated 6th June 2008 (“1st Report”), to be adduced as expert evidence without calling him to give evidence as the assessment hearing. 9.At the assessment hearing before me, Ms Wong, solicitor for the Applicant, applied to adduce the two-page supplemental report of Dr Lung dated 11th November 2008 (“2nd Report”). The 2nd Report did not add anything much further except to give Dr Lung’s opinion that the Applicant’s loss of earning capacity was 8%. Since the assessment of loss of earning was a matter essentially within the purview of the trial judge, and Dr Lung had given his opinion as to the condition/disabilities as well as his assessment of the whole person impairment of the Applicant in the 1st Report, I am not persuaded that the 2nd Report is necessary. Further, although the Applicant’s solicitors did send a copy of 2nd Report to the Respondent, they only did so for the purpose of inserting pages 50.1 and 50.2 in the assessment bundle. But there was no evidence of any prior intimation to the Respondent that the Applicant would have to seek (and would actually seek) leave to adduce and rely on the 2nd Report at the assessment hearing. In the circumstances, Ms Wong did not insist on and I declined the application to adduce the 2nd Report. 10.On the day before the hearing, the Applicant’s solicitors faxed a letter request to the court seeking to replace the original 1st Submissions of 14th November 2008 with the revised written opening submissions of 24th November 2008 (“2nd Submissions”). According to the 1st Submissions, the Applicant sought employees’ compensation in the total sum of HK$186,524.00. However, the Applicant in the 2nd Submissions relied on the Hong Kong Paper Mills formula and sought employees’ compensation in the total sum of HK$615,742.76, ie more than 3 times the original claimed amount. It was further suggested that on 29th August 2008 the Applicant found a job as security guard, but his average monthly earnings of HK$6,656.00 were less than the average monthly income of HK$7,149.00 shown in the statistics of the Census and Statistics Department. 11.But the Applicant did not place any evidence (whether from further documents or supplemental witness statement) before the court as to the Applicant’s job and earnings as security guard or serve the same on the Respondent. Thus, the Respondent was unaware of the 2nd Submissions and the escalation of the Applicant’s claim as well as the grounds therefor. Further, no or no sufficient reason was given for the late application to adduce further evidence when it was said that the Applicant secured the job as security guard in August 2008. Upon taking instructions, Ms Wong informed the court that the Applicant would not rely on the Hong Kong Paper Mills formula and/or the 2nd Submissions. III. Personal history, work and earnings 12.The Applicant was born in Mainland China and received education up to secondary school level. At the time of the Accident, he was 52 years old and in good health. 13.The Applicant came to Hong Kong in 1980, and worked in a laundry shop until 1984. He then worked in the roast section of a restaurant for about 2 years, and later as a chef at various other restaurants. Later he started a small restaurant business with friends, but business was poor, so he asked his son to substitute him as partner and he went to work as chef at other restaurants. 14.From October 2005 to January 2006, the Applicant was employed by the Respondent as chef on monthly salary basis at HK$12,000.00 per month. If he worked during the holidays, he would earn an extra HK$800.00 per month. 15.As from 7th December 2006, the Applicant again worked for the Respondent but as night chef with working hours from 4:00pm to 2:00am. According to the Applicant, his work as chef required him to stand continuously for 9-10 hours during each workday. Kitchen chef included “inside” and “outside” chef with the former responsible for cooking at the stove and the later responsible for cutting up food and preparing sauces. The Applicant was required to be knowledgeable in the work of both “inside” and “outside” chef. Prior to the Accident, he and another chef worked the night shift. Both had to put in work throughout the night shift and there was no opportunity for the Applicant to rest whilst his colleague worked. There would be no reason for the Respondent to employ him if it were otherwise. 16.The Applicant said he was employed on monthly salary basis at HK$13,500.00 per month with no rest day. Indeed, the Form 2 lodged by the Respondent with the Labour Department dated 6th March 2007 also confirmed that the Applicant’s monthly remuneration was HK$13,500.00. He was paid by cheque on/about the 5th and 20th days of each month. 17.The Applicant said he worked for 44 days between 7th December 2006 and 19th January 2007, and his salary for such period was shown by the cheque deposit entries in his bank passbook on 28th December 2006, 15th January 2007, 13th February 2007 and 5th March 2007 in the respective sums of HK$3,899.70, HK$6,900.30, HK$6,750.00 and HK$2,250.00 totalling HK$19,800.00. 18.The Applicant said the Respondent failed to pay his salary on time. The Respondent only paid the last 2 instalments after the Accident when the Applicant chased for his outstanding salary upon discharge from the hospital. The Applicant did not receive any periodical payments or compensation from the Respondent in respect of the Accident. IV. Injuries and treatment 19.After the Accident, the Applicant was sent to the accident and emergency department of United Christian Hospital (“UCH”). His left foot and heel region was grossly swollen and tender but there was no wound. There was no head or other injury. X-ray showed fractured left calcaneum. 20.The Applicant was admitted to the orthopaedic unit of UCH. Open reduction and internal fixation were done on 24th January 2007. The Applicant was discharged on 31st January 2007 on crutches for walking. Weight bearing was allowed after the fracture healed. 21.According to the medical report of UCH’s Dr Fong Chi Ming dated 13th August 2008, when the Applicant was followed-up on 23rd July 2007, he could walk with full weight bearing, but there was residual pain over left heel region. According to Dr Fong’s further medical report dated 27th February 2008, when the Applicant was followed-up on 28th February 2008, he complained of residual left heel pain, but was able to walk for about an hour. 22.According to the physiotherapy reports of North District Hospital (“NDH”) dated 20th July 2007 and 15th March 2008, the Applicant was referred to NDH on 9th February 2007. Initial assessment and treatment was arranged on 8th March 2007. Upon the initial assessment, the Applicant complained of pain over his left heel. Objectively, he wore an ankle foot orthotic for his left ankle and was on non-weight-walking with a pair of elbow crutches. On physical examination, the active range of motion of his left knee and toes was full. At the assessment done on 15th March 2007, the active range of motion of his left ankle was as follows : dorsiflexion 10º, plantarflexion 40º, inversion 25º and eversion 20º. There was some oozing at the surgical scar. 23.The Applicant had 23 physiotherapy treatment sessions as out-patient including mobilising and strengthening exercises, balance training, electrotherapy and scar management. On the final assessment on 7th August 2007, the Applicant reported overall improvement in his condition by 60%. His tolerance for level ground walking was about 30 minutes, but he had not started jogging because of left ankle soreness. On physical examination there was residual swelling around his left ankle with scar adhesion. The active range of motion of his left ankle was as follows : dorsiflexion 10º, plantarflexion 45º, inversion and eversion of ⅔ of the normal range. The muscle power of his left ankle was grade 4. The single leg standing balance for his left lower limb was around 6 seconds. On squatting, there was mild decrease in the weight-bearing of his left lower limb. The Applicant could manage stair-walking without support, but he complained of left ankle soreness on walking downstairs. The Applicant was discharged from physiotherapy treatment because of static progress. 24.The Applicant was also referred to UCH for occupational therapy. According to UCH’s occupational therapy report dated 4th June 2008, initial work assessment was conducted on 19th July 2007. The Applicant complained of left heel and foot pain that hindered his standing and walking tolerance. His work as chef required constant standing and occasional lifting of 40-50 lbs. For 3 months from 23rd July 2007, work rehabilitation was arranged for the Applicant. His lifting capacity was gradually improved, but there was persistent left ankle soreness after walking for more than 30 minutes. His ankle range of motion was almost full in dorsiflexion but with reduction in plantarflexion to 55º. He was able to sustain full squat without support. His maximum bilateral lifting capacity from floor to knuckle was 72 lbs, and from knuckle to shoulder was 35 lbs. But his standing and walking tolerance was only 60 minutes, and limited by pain and swelling. The Applicant was discharged on 24th October 2007 as his progress became static. V.1st Report 25.When the Applicant was medically examined by Dr Lung on 16th May 2008, he was not attending any physiotherapy or occupational therapy treatment nor followed-up by other orthopaedic surgeons other than UCH doctors. He was not on regular medication, and there was no plan or need for further surgery or rehabilitation. The UCH doctors had mentioned to him the option of removal of implants but had not suggested this option again. 26.According to the 1st Report, the Applicant still frequently felt left heel pain. There was no rest pain; the pain was brought about by motion. His exercise tolerance on level ground for walking was about 30 minutes. There was difficulty in walking on uneven surface, and there would be sole pain. His standing tolerance was less than an hour, and if he shifted his weight to the left side his tolerance would be a few minutes only. There was no pain in his sleep, but about once a week he would be awakened by heel pain. There was largely no problem with activities of daily living, but there would be pain when he needed to stand for a prolonged period of time. The Applicant felt his left leg was weak and he could not sprint. 27.During Dr Lung’s medical examination, the Applicant’s gait was not normal (antaglic gait) and he shifted his body weight to his right side when he was standing. Heel and tip-toe walking was not possible. He could squat and rise up without any problem. He could manage single leg stand on the uninjured side, but barely possible on the left side. 28.Dr Lung found a 14cm curvilinear scare over the left lateral heel region. It was non-tender and Tinel sign was negative indicating that there was no neuroma formation. The calcaneum was widened and shortened mildly. There was no abnormality detected in the hips and knees. The range of motion of the left ankle joint/hindfoot was reduced : dorsiflexion 20˚, plantarflexion 50˚, inversion10˚ and eversion 0˚. There was no neurological deficit in the lower limbs, and muscle power of both ankles was grade 5. 29.Dr Lung stated the x-ray at the time of injury showed that the fracture had severe displacement producing a large posterior “tongue” fragment and joint depression in the sub-talar joint. X-ray taken on the day of Dr Lung’s medical examination showed the fracture had healed with no excessive callus. The implants were present and showed no significant displacement. The posterior facet of the articular surface of the left calcaneum was widened mildly. 30.Dr Lung’s diagnosis was comminuted intra-articular fracture left calcaneum, which had healed, but there was residual left heel pain and reduced exercise tolerance. Dr Lung opined that the injury was consistent with and caused by the Accident. 31.Dr Lung further opined that the Applicant had reached maximum medical improvement. His condition had not changed for a prolonged period, and he had finished all planned treatment with no future plan for further rehabilitation or surgery. Indeed, Dr Lung would not recommend any operation or treatment. The metal implants could be removed, but there would be no significant benefit and it would not improve the Applicant’s functional status. According to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th ed), the Applicant’s whole person impairment was 8%. VI. Applicant’s present complaints 32.The Applicant complained that he could not perform single leg stand on his left leg as it would cause pain. His right leg supported his body weight when he stood. His standing tolerance was one hour. If he stood for more than an hour or walked for more than 45 minutes to an hour, he would feel left heel pain and would have to sit down or lean against the wall to rest for a few or 10 odd minutes to relieve the pain before moving on. He would feel left heel pain in walking down stairs. Moving his left foot would cause sole pain and weakness. If he walked too much in the afternoon, he would have heel pain at night and would not be able to sleep well. VII. Sick leave period 33.The Applicant was granted sick leave from 20th January to 26th October 2007, ie 280 calendar days or 270 days exclusive of public holidays. Dr Lung stated that it took about 2 months for the fracture to heal. A reasonable period for physiotherapy in this condition would be about 3-4 months. It would also take some time for the Applicant to try to walk and accustom to the injured foot. Dr Lung opined that the sick leave period was appropriate. Ms Wong also confirmed there was no appeal against such assessment of the period of absence from duty necessary as a result of the Applicant’s injuries in the Form 9. VIII. Post-Accident employment 34.The Applicant said that after the expiry of his sick leave period in October 2007, his friends introduced him to work at a restaurant as substitute chef for 2-3 days. However, due to left heel pain, he could not tolerate prolonged standing, so his employer told him not to return to work the following day. The Applicant still wanted to work as a chef if he could. But when he made telephone enquiries in relation to other openings for chef after the Accident, he discovered that such jobs required a 12-hour workday and he had never worked for such a long time on each workday previously. He feared that with his left foot injury he would not be able to handle the work, and therefore had not tried to work as a chef ever since. 35.The Applicant turned to the Labour Department for vocational training. According to UCH’s occupational therapy report dated 4th June 2008, the Applicant was referred to Hong Kong Worker’s Health Centre for vocational resettlement to look for a new job after he completed his occupational therapy treatment. The Applicant enrolled in some computer and interview technique training, which course lasted for about 2 weeks. 36.After the Applicant obtained the relevant qualification to act as security guard this year, he signed up with a security company and worked as security guard for such company for about 4 days. He was told that if there were further need for his services, the security company would telephone him, but it never did. IX. Discussion 37.I accept the Applicant’s and Dr Lung’s evidence as to the Applicant’s injuries and disabilities, which I find to be more far-ranging than assessed in the Form 9. The Applicant has lost his endurance in standing or walking or negotiating stairs (ie his capacity for standing was 1 hour and for walking was 30 minutes), which is significant for a man trained for chef’s work that required stamina for long working hours and prolonged standing tolerance. Dr Lung opined that the change in the Applicant’s condition was static. I agree with Dr Lung that although the Applicant could still stand and walk with moderate pain, the resultant disability affected his working capacity. Prolonged standing would exacerbate his pain, and he was weak in his left leg. Dr Lung opined he would be more suited to sedentary work that did not require prolonged standing or walking. 38.I accept that the Applicant would be handicapped in his work because his endurance, ability and efficiency would be diminished and because he would be incapable of prolonged walking/standing. Looking at the matter in the round, having considered the above matters, it would be fair to say that the Applicant has lost 8% of his earning capacity. I therefore allow his appeal against the assessment of loss of earning capacity in Form 9 to such extent. 39.I accept on balance the Applicant’s evidence that his monthly earnings at the time of the Accident were HK$13,500.00, which would be his average monthly earnings for calculating employees’ compensation. 40.In the circumstances, the award under section 9 of the Ordinance is HK$13,500.00 x 72 months x 8% = HK$77,760.00. 41.The award under section 10 of the Ordinance is HK$13,500.00 ÷30 x 270 days x 4/5 = HK$97,200.00. 42.The award under section 10A of the Ordinance for medical expenses incurred by the Applicant is HK$5,254.00, which is evidenced by receipts and attendance records. X. Conclusion 43.The compensation awarded in this case is HK$77,760.00 + HK$97,200.00 + HK$5,254.00 = HK$180,214.00. I therefore order that the Respondent do pay the Applicant the sum of HK$180,214.00 and interest thereon at half judgment rate at 4.125% pa from the date of the Accident (ie 20th January 2007) to the date of judgment herein (ie 2nd December 2008) and thereafter at judgment rate until payment. 44.In respect of costs, there is no reason why costs should not follow event. I therefore grant a costs order nisi that the Respondent do pay to the Applicant costs of the assessment of compensation (including all costs reserved if any) to be taxed if not agreed.
Representation: Ms Wong Siu Mei Simee of Messrs Leung, Tam & Wong for the Applicant. The Respondent in person and absent. |