Wong Chi Yan v. Hospital Authority

DCEC 527/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 527 OF 2013

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JUDGMENT

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INTRODUCTION

1.The applicant was a health care assistant who accidentally sprained his right ankle during work on 3 November 2011 at Queen Elizabeth Hospital.  The respondent is his former employer.  Interlocutory judgment on liability has been entered by consent on 23 August 2013[1].

2.The case comes before this court for assessment of compensation under s 9 of the Employees’ Compensation Ordinance, Cap 282 and determination of the applicant’s appeal under s 18 of the same against the assessment of the Employee’s Compensation (Ordinary Assessment) Board (“the Assessment Board”) that his permanent loss of work capacity is 0.5%[2].

THE ISSUE

3.Mr Cao, counsel for the applicant, confirms that the applicant is no longer claiming any compensation under s 10 (temporary incapacity) and s 10A (medical expenses) and that there is no dispute about the total number of days of absence from duty[3] as certified in Form 7[4].  The parties have also agreed that the applicant’s monthly salary at the time of the accident was $15,635.35[5].

4.As such, the present dispute is within a narrow compass.  On the one hand, Mr Cao contends that the percentage loss is as high as 2%.  On the other hand, Mr Cheng, counsel for the respondent, contends that the loss should be no more than 0.5% as stated in Form 7.  I note that it is not the position of Mr Cheng that the applicant has suffered no loss of earning capacity at all. 

5.I note also that the applicant has also suffered from pre-existing back pain and psychiatric condition (adjustment disorder) for both of which he is still receiving medical attention.  However, Mr Cao confirms that none of those are relevant to the present claim which relates solely to the applicant’s injury of his right ankle[6].

6.Therefore, the only live issue for this court to decide is the extent of the applicant’s loss of earning capacity as a result of his sprained right ankle.  Mr Cao accepts that the burden is on the applicant to shows that his loss of earning capacity is more than 0.5% and that the standard of proof is on balance of probabilities. 

RELEVANT LEGAL PRINCIPLES

7.An appeal under s18 of Cap 282 is not in fact an appeal proper.  This is because the Assessment Board does not give any reasonsfor its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sam Wo Industrial Manufactory[7], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to beappellate. But one has then to remember that these boards are acting ontheir own knowledge. They hear no evidence. They keep no record. Theygive no reasons so that they provide no material which explains the basisof their approach. They only produce a result. Although the procedure byway of appeal may be properly so described in order to bring about areversal of their decision if the court is so minded, it is plain that a courtapproaching this matter has really got to start afresh.”

8.Similarly in Chu Chin Yiau v Ray On Construction Co Ltd[8], Deputy District Judge Bharwaney (as his lordship then was), also said:-

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

9.I remind myself that for the purpose of assessing the loss of earning capacity the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee: Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service[9].

10.In considering the medical evidence, I remind myself of what Roger VP said in Tang Shau Tsan v Wealthy Construction Co Ltd[10]:-

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

11.Besides, medical experts are not allowed to address on the factual question of the likelihood or otherwise of employers in the employment market employing persons with particular injuries and/or disabilities.  The issue of employability of the claimant by employers in the job market depends not only on clinical opinion as to his physical or mental capability in undertaking a particular job given its nature or scope of duties, but also on a host of other factual matters (eg the motivation, willingness and/or efforts of the claimant in finding work) that are fully within the purview of the trial judge.  To put the questions as posed to the experts is to risk letting them usurp the function of the trial judge as fact-finder.  The court should be alert to ensure that judges and not experts are to decide cases: see Yip Koon Man v Yuen Long Merchants Association Secondary School[11].

THE EVIDENCE

12.The evidence on the applicant’s loss of earning capacity consists mainly of the applicant’s evidence and the joint orthopaedic experts report[12] written by Dr Kong (for the applicant) and Dr Ko (for the respondent). 

The joint report

13.The joint report has been admitted as evidence without the experts being called. 

14.The experts reviewed the employment and medical history of the applicant and the medical records prepared by the treating doctors.  They noted the applicant’s present complaints including right ankle pain.  They jointly examined the application on 28 February 2014.  Their general examination showed the following:-

·   the applicant was in general good health;

·   he weighed 108 kg with body height of 184 cm;

·   he walked with a mild limping gait;

·   single leg standing on either leg was normal;

·   he was unable to perform both tip-toe walking and heel walking due to pain; and

·   he squatted fully, get up with gentle support on table.

15.Regard their examination of the applicant’s ankle, the experts noted, among other things, the following:-

·   no deformity or swelling was noted;

·   tenderness was found on right ankle;

·   both drawer test and talar tilt of right ankle were negative;

·   circumference of calf was 40.5 cm on the right and 41 cm on the left;

·   range of motions of both ankles were identical;

·   range of motion of hip was symmetrical.

16.The neurological examination of the applicant showed that:-

·   motor power was good;

·   reflex was intact;

·   sensation was normal.

17.The radiological examination showed that the applicant’s right ankle was normal, with no bone lesions. 

18.Regarding the applicant’s treatment received, it was noted that he was treated with rest, physiotherapy and medication.  Both Dr Kong (for the applicant) and Dr Ko (for the respondent) agree that the said treatment is standard and appropriate.  They also agree that the intermittent sick leaves granted to him from 3 November 2011 to 20 November 2011 are reasonable.

19.Regarding the applicant’s present condition, Dr Kong says that the applicant has “mild soft tissue residue of right ankle sprain with mild stiffness from the subject accident.”  On the other hand, Dr Ko comments that although the applicant complains of intermittent right ankle pain with self-reported impairment walking tolerance and pain on weight bearing, etc, physical examination, however, shows essentially no significant objective signs or abnormality except for his self-reported diffuse tenderness around the right ankle.  There are no features of muscle disuse and ranges of motion of both ankles are essentially similar and normal.  X-rays show no significant bony or soft tissue lesion. This is plainly a simply soft tissue ankle sprain injury.  According to O&T report, conservation treatment until November 2011 showed him fit to return to modified duty and he was assessed to have reached static condition and discharged from O&T after consultation on 7 February 2012. 

20.Regarding the applicant’s medical prognosis for his right ankle injury, Dr Kong opines that it is good.  Dr Ko opines that it should be more than good, if not excellent.  Both of them agree that orthopaedically, the applicant does not require further treatments or operations.

21.Regarding the applicant’s working capacity, Dr Kong opines that he should be able to resume working as a health care assistant with reasonably mild reduction of working efficiency and endurance.  Dr Kong puts the applicant impairment of the whole person at 2% and the loss of earning capacity also at 2%.  Dr Ko similarly opines that the applicant should be able to resume his job as a health care assistant without any significant impairment of his work and effectiveness.  However, as regards the applicant’s impairment, by referring to the principles in the “guides to the Evaluation of Permanent Impairment”, 6^th edition, published by the American Medical Association in 2008[13], Dr Ko recommends 0.5% of the whole person and an estimate of ≤0.5% loss of earning capacity. 

The applicant’s evidence

22.In the witness statement which the applicant adopted as part of his evidence in chief, he simply said that the sprained injuries suffered by him caused by the subject accident has affected not only his work capabilities but also his amenity and daily living activities.[14]

23.In court, the applicant supplemented his witness statement by giving the following additional information:-

(a) he had gone to see a bone-setter both before and after returning to work in late November 2011;

(b) he was still experiencing pains when he resumed work but he did not take further leave as he had nearly exhausted all his sick leave entitlement because of a previous back injury;

(c) after he had resumed working as a health care assistant, he had sprained his right ankle again on several occasions even when he was walking on level ground;

(d) he now has to walk slowly and carefully and cannot walk for a long time;

(e) he needs to hold on to the handrail when going up and down stairs with extra effort;

(f) he feels pain in his right ankle at sleep and has to raise his leg to ease discomfort;

(g) he is still consulting orthopaedic doctors at Tuen Mun Hospital for his back and ankle;

(h) he is taking powerful pain killers (at the maximum dosage) prescribed by the doctors.  He cannot stop talking the pain killers; otherwise his ankle will be very painful;

(i) after leaving the employ of the Hospital Authority on 2 January 2013, he worked for three different companies in succession as a courier for delivering documents and commodities until before the Mid Autumn Festival in 2014; and

(j) because of his injury, he is unable to find any jobs which enable him to make more money like warehouse attendant and labourer.

EVALUATION OF EVIDENCE

24.It is convenient for me to start with the applicant’s evidence. 

25.I note that it was not put directly to the applicant in cross-examination that he had lied or exaggerated in his evidence.  However, because of the inconsistency between his oral evidence and the other evidence he adduced, I am unable to attach much weight to the applicant’s oral evidence regarding his present conditions:-

(a) As regards his right ankle pain, he was reported to have only “mild residual right ankle pain” by his treating doctor when he was seen on 7 February 2012[15]. When the applicant was seen by the experts on 28 February 2014, he told the experts that he had “no rest pain” and that his activities of daily living were “OK”[16]. He did not tell the experts that he has experienced any pain at sleep. Therefore, the applicant’s assertion that his daily living activities have been affected by the sprained injuries is inconsistent with the medical evidence. 

(b) The applicant had not told the experts anything about taking pain killers, let alone powerful pain killers at the maximum dosage.  The applicant’s witness statement is also silent on this point. As submitted by Mr Cheng, there is simply no medical evidence to support the applicant’s assertion in court that the ankle pain could only be alleviated by constant, powerful medication.

(c) As regards the applicant’s condition at the time immediately after he resumed his work as a health care assistant, what the treating doctors had suggested to him was that he should “return to work with modified duty on 21 November 2011”.  It is difficult to image that the treating doctors would have suggested the applicant resuming work, if the applicant were unfit to do so. Furthermore, as aforesaid there is no objection by the applicant to the reasonableness of the sick leave granted. 

(d) As to the applicant’s assertion that he on several occasions sprained his ankle again after he had come back to work as a health care assistant, it is noted that when he was seen by the treating doctor on 7 February 2012, he told the treating doctor that he felt that he could manage his work.  The applicant was then discharged from the clinic[17]. There are no medical records that the application had sprained his ankle again after the accident when he was still in the employ of the respondent.  Whilst the applicant told the experts during the joint examination (which took place on 28 February 2014) that he had slipped and fell 4 times over the past year resulting in bruise and abrasion injury on both “hands and knees”, the applicant also said that on those occasions medical attention was not required and he applied topical plaster.  It is clear that he was not referring to the time when he was still with the respondent.

(e) As submitted by Mr Cheng, the applicant’s employment history sheds no light as to how the applicant had been adversely affected by the subject injury in his work.  After the accident, the applicant had continued to work for the respondent as a health care assistant for more than a year and he agreed under cross-examination that during the time his work was similar to what he had before.  There is no evidence that the applicant had failed to meet the work required of him.  He left the employ of the respondent in January 2013 and was able to find a new job as a courier within the same month.  The applicant said in cross-examination that the job would require him to carry goods of up to 10 kg for two to three times a week at most.  There is no evidence to show that he was then unable to meet the new job requirement.  The applicant said that he worked five days and a half per week.  The applicant said that he did not drive and would take public transport for delivering documents and goods.  It is reasonable to infer therefore that his job would require him to walk quite frequently.  He told the experts that he ceased to work as a courier in mid January 2014 because of his “generalized body problems”[18] (which are not specified) and has since remained unemployed.

26.Regarding the expert evidence, for the following reasons I prefer the evidence of Dr Ko (for the respondent) to that of Dr Kong (for the applicant):-

(a) in Form 7, the injury of the applicant is stated to be “right ankle sprain resulting in residual ankle pain”[19]. This is consistent with the views of Dr Kong and Dr Ko.  There is no complaint by the applicant that the Assessment Board has failed to identify or has wrongly identified the nature of the applicant injury.  The issue is only about the extent of that injury;

(b) given by the aforesaid results of the joint examination[20] which does not show anything abnormal about the applicant’s physical condition[21] and also given Dr Kong’s view that the applicant has only “mild soft tissue residue of right ankle sprain with mild stiffness from the subject accident” and that the medical prognosis is “good”[22], Dr Kong does not explain how he comes to the assessment that the applicant has suffered 2% impairment of the whole person and 2% loss of earning capacity.  Also, by not referring to any recognised principles of assessment, one knows not by what standards Dr Ko says that the impairment of the whole person and the loss of earning capacity are 2%[23];

(c) as compared with Dr Kong, Dr Ko has given more elaborated basis for his opinion.  It is not, as Mr Cao submits, that Dr Ko has ignored the applicant’s complaint of pain.  Dr Ko has plainly taken that into consideration.  However, Dr Ko balanced the applicant’s subjective complaints against the medical reports of the treating doctors as well as the objective results obtained from the joint examination before he came to the view that “this is plainly a simple soft tissue ankle sprain injury” and that the prognosis for the applicant’s “minor right ankle sprain injury should be good, if not excellent”;

(d) Dr Kong does not explain why he disagrees with the assessment of the Assessment Board, nor does he respond to Dr Ko’s assessment; and

(e) Mr Cao’s complaint that Dr Ko was being “too objective” in his approach, with respect, cannot be accepted.  The duty of experts is to furnish the tribunal of fact with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the tribunal of fact to form its own independent judgment by the application of these criteria to the facts proved in evidence[24]. Had either Dr Kong or Dr Ko accepted the applicant’s subjective complaints at their face value, then his view would be of little assistance to the court.

27.By starting afresh, after consideration of all the evidence before the court, I am satisfied and I find that the loss of earning capacity suffered by the applicant as a result of the subject accident is 0.5% as stated in Form 7.

28.As a corollary, in my judgment the applicant has failed to discharge the burden of showing that the percentage loss of earning capacity is more than 0.5%.  Therefore, his appeal under s 18 is not successful. 

Compensation

29.Based on the above, the application’s compensation under s 9 is as follows:-

$15,635.35 x 72 x 0.5% = $5,628.73

Interest

30.It is agreed that the applicant is also entitled to interest on the above compensation at half judgment rate from the date of the accident (3 November 2011) to the date of this judgment and thereafter at the judgment rate until full payment.

Costs

31.Although the applicant is awarded some compensation, by taking an overview of the justice of the matter he cannot be taken as the real successful party in this application.  This is because the respondent has never disputed that the applicant should be entitled to compensation under s 9 basing on a 0.5% loss of earning capacity.  Had the applicant not appeal under s 18 and accepted that the loss of earning capacity is only 0.5%, there would not have been a hearing.  Viewing in this light, the real successful party in this case is the respondent and therefore the court’s discretion on costs should be exercised in their favour.  See Alltrans Express Ltd v CVA Holdings Ltd[25]; applied in Elpe International (Far East) Ltd v Hewlett Packard Hong Kong Ltd[26].  See also Hong Kong Civil Procedure 2015, at §62/2/6. 

32.As such, I make an order nisi that the respondent should have their costs, with certificate for counsel, to be taxed if not agreed.

33.The applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Cao Yuan Shan, instructed by Cap Chan & Co, assigned by the Director of Legal Aid, for the applicant

Mr Alfred CP Cheng, instructed by Deacons, for the respondent