Chan Sze Wan v. Caritas Jockey Club Lai King Rehabilitation Centre O/B Caritas Hong Kong
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LA/ECC/15685/2009 (M14) DCEC200/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 200 OF 2008 -------------------- In the matter of an application between:
-------------------- Coram : His Honour Judge Chow Dates of Hearing : 15th & 16th December 2009 Date of Handing Down Judgment : 18th February 2010 Judgment 1.This is the Applicant’s application under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) for compensation arising from an accident which occurred on 22.3.2006. The Employees’ Compensation (Ordinary) Assessment Board (“the Board”) assessed the Applicant to have suffered 2% of loss of earning capacity upon its review on 12.3.2008. She appeals against this decision. At the time of the accident she was employed by the Respondent as a personal health care worker, earning $8,675 for the month immediately preceding the accident. 2.Judgment on liability has been entered against the Defendant, and the present hearing concerns solely with the quantum of compensation to be awarded to the Applicant. An advance payment of $122,368.62 has already been paid to the Applicant by the Respondent. Compensation under section 10 3.The Applicant asks for compensation into the 3rd year after the accident. Section 10 (5) of the Ordinance provides:-
4.The periods of absence from duty from 24.3.2006 to 26.3.2008 are supported by sick leave certificates granted by medical practitioners. Under the joint medical report, Dr. Wong See Hoi (“Dr. Wong”) for the Applicant agreed that the sick leave from 24.3.2006 to 5.3.2008 would be reasonable. Dr. Yong for the Respondent assessed that reasonable sick leave should be 6 to 8 months. The Respondent submits that the Board only allows sick leave up to 31.1.2007. On the certificate of assessment at the “Remark” column, it is stated “The period of sick leave from 1 February 2007 to 17 October 2007” was not endorsed by the Board. The remarks made by the Board were not supported by any reasoning. The defence counsel submits that Dr. Yong states that “It was now over one year after the said injury. She had undergone two courses of physiotherapy and a course of occupation therapy since the injury. She had reached maximal medical improvement”. He opines that “the duration of sick leave of six to eight months was reasonable for such degree of wrist sprain.” The doctors who examined the Applicant after 31.1.2007 were in the best position to judge whether the Applicant required sick leave or not. There is no individual challenge to the validity of the sick leave period endorsed on each of the sick leave certificate issued by each medical doctor after 31.1.2007. On 20.11.2009, the Queen Elizabeth Hospital recommended sick leave for 15 days (from 20.11.2007 to 4.12.2007). The medical certificate it issued states that she “is suffering from right wrist pain.” The length of sick leave reflects the seriousness of her right wrist condition at that time. On this basis I cast doubt on the validity of the remarks made by the Board. I find that the sick leave certificates reflect the length of period of sick leave required by the Applicant. 5.For the first 12 months (24.3.2006 – 23.3.2006) during which the Applicant suffered temporary incapacity, her monthly earnings are taken to be $8,675 (see section 11 (1A) of the Ordinance). So the compensation for this period is $83,280 ($8,675 x 4 / 5 x 12). Her salary was increased to $9,245 on 1.6.2006 under the second contract of employment (from 1.6.2006 to 31.5.2007). So the compensation for the next 12 months is $88,752 ($9,245 x 4 / 5 x 12). The compensation for the third year (24.3.2008 – 26.3.2008) is $715.74 ($9,245 x 4 / 5 x 3 / 31). The total compensation is $172,747.74 ($83,280 + $88,752 + $715.74). The Respondent has already paid the Applicant the sum of $122,368.62. Therefore the Applicant is entitled to receive $50,379.12 ($172,747.74 - $122,368.62). Medical expenses under section 10A of the Ordinance 6.The Respondent submits that medical expenses after 31.1.2007 should not be allowed. I disagree. Expenses incurred in assessment and report done by hospital are not to be regarded as medical expenses because such expenses are not incurred for treatment purposes. The total amount to be awarded is $32,555. Compensation under section 9 of the Ordinance 7.The Board assessed the Applicant’s loss of earning capacity to be 2%. Both medical experts agreed that the Applicant could return to her former job, but “with reduced efficiency and capacity. However, she would have difficulty in carrying and lifting heavy objects. She need assistance from co-worker in lifting tenant.” 8.The Applicant was educated up to Form 3. She was employed by the Respondent as a personal health care attendant in the psychiatric unit. The discharge of her duties required heavy manual labour. She suffered injury to her right wrist. That would adversely affect the performance of her work. Although she would be given assistance by co-workers, that was not on a permanent basis. She did resume her work after the accident, and the Respondent arranged jobs which would not require the turning of her right wrist, but she still felt painful at her right wrist. She could not finish her daily work. This must be the major reason for the Respondent not to employ her any further upon the expiry of the second contract of employment on 31.5.2007. 9.She attempted to look for jobs of similar nature. When she attended job interviews she was asked by interviewers, questions such as “What was your last job?” “Why did you quit your last job?” She told the truth. She was not successful in getting a job as a personal health care attendant even though she attended a number of interviews. The state of her right wrist must have a great bearing in her failure to secure a job of similar nature. 10.The submission by the defence counsel that the fact that she made applications for interview as careers is indicative that she must have formed the view that she should be capable of resuming work as a care attendant. That is only her subjective view. The more important thing is whether the prospective employers share the same view. The crude answer must be “No”. The defence counsel further submits that her not assuming work is not due to her injuries, but were for personal reasons. He submits that it is more likely that her son’s father would have made some financial contributions to her. There is no evidence to support that. He is a retired civil servant, married, and has his own family to look after. There is no evidence to contradict her evidence that he does not make financial contributions to her. 11.The defence counsel submits that she failed all 20 job interviews; it is reasonable to draw an inference that she had not made genuine attempt to secure a case attendant job. I do not agree. There is no evidence that she was offered a job as a health care attendant and she refused to take it up. There is also no evidence to show that she deliberately put up poor performance in interviews so that she would not be offered a job as a care attendant. 12.I hold that the Hong Kong Paper Mill formula applies to this case. I agree with the submission of the applicant’s counsel that 2% of loss of earning capacity assessed by the Board cannot reflect the impact of injury on the Applicant. I therefore allow the Applicant’s appeal in this regard. 13.Born on 18 May 1961, the Applicant was 44 years old on 22.3.2006. The relevant multiplier is 72 months. 14.I find that she is only capable of resuming low skilled manual work, such as being a waitress. The government statistic shows that the average earnings of waitress in March 2006 is $7,354 per month. The loss of earning capacity is 20.045% (($9,245 - $7,354) ÷ $9,245 x 100%). The compensation under section 9 is $133,427.5 ($9,245 x 20.045% x 72). 15.The total compensation payable to the Applicant is $216,361.62 ($50,379.12 + $32,555 + $133,427.5). 16.I order that the Respondent do pay, within 14 days from today, $216,361.62 to the Applicant, with interests thereon; interest on the sum of $216,361.62 at 50% judgment rate from 22.3.2006 to 17.2.2010, and at judgment rate thereon from 18.2.2010 until satisfaction. Costs 17.I make an order nisi, to be made absolute in 14 days’ time, that the Respondent do pay costs of this action to the Applicant, to be taxed, if not agreed. The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
The Applicant : represented by Mr. K.H. Yiu of Messrs. K.H. Yiu & Associates. The Respondent : represented by Mr. T.C. Wong, instructed by Messrs. John Lam, Law & Co., Solicitors. |
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