LEE KUEN v. 溫錦培

DCEC518/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 518 OF 2011

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JUDGMENT

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Introduction

1. This is an application for compensation by the applicant pursuant to Sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (“the ECO”) arising out of an accident to the applicant on 1 August 2009 (“Accident”).

2. On 16 March 2012, His Honour Judge Poon (as he then was) entered into interlocutory judgment on liability against the respondent.  The issue I am thus required to determine is the compensation payable to the applicant.

3. On the day of the Accident, the applicant, an electrician, was working with his employer, the respondent (a plumbing and electrical contractor) doing renovation work at 1^st floor, no 17 King Street, Tai Hang, Hong Kong. At the time of the Accident, the applicant was using a grinder (provided by the respondent) to cut a window frame.  According to the applicant, he was instructed by the respondent to carry out such work.  The applicant said in his oral evidence that the grinder did not have a safety shield covering the blade of the grinder.  During the course of cutting the window frame, the applicant’s right forearm was cut by the blade of the grinder thereby sustaining personal injuries. The applicant claims that this was because during the course of cutting the window frame, the respondent suddenly called the applicant causing him to lose concentration in cutting the window frame.

4. During the trial, the respondent emphasised that the applicant had used the grinder on his own initiative, that he only told the applicant to use a saw to cut the window frame.  The respondent’s arguments are not relevant for the purposes of assessing the compensation payable.  This is an issue which goes to liability to which judgment has already been entered against the respondent.

Applicant’s background

5. The applicant was 50 years old at the time of the Accident and 52 at the time of the trial.

6. According to the applicant, he received education up to Form 3 and started to work as an electrician at the age of 24.  The applicant said in his oral evidence that he has always been working as an electrician.  This is somewhat inconsistent with what he had told his orthopaedic expert, Dr Wong See Hoi. According to Dr Wong’s Report (which I will discuss in detail in paragraphs 12 to 22 below), at one stage, the applicant was working for 3 to 4 years as an industrial mechanic.  There is no dispute that the applicant was only employed by the respondent a few days before the Accident although there is a slight variation between the parties as to the precise date of commencement of employment.  The applicant said it was 27 July 2009 and the respondent said it was 26 July 2009.  The slight difference has no bearing on my judgment.  There is also no dispute that the applicant would be paid a daily wage of HK$800.

7. According to the applicant, his job as an electrician required him to install lights, conduits and lay electric wires on walls and ceilings.  He had to use screwdrivers, pliers and electric drills and sometimes, a grinder.  He also had to carry heavy items at times such as when installing large lightings on ceilings (which could be up to 20 to 30 pounds).  According to Dr Wong’s Report, the applicant told Dr Wong that he frequently had to climb on ladders and occasionally scaffoldings.

Applicant’s injuries & treatments

8. Immediately after the Accident, the applicant was admitted to the Accident & Emergency Department of Ruttonjee Hospital.  On examination, the following conditions were found:-

(1)  general condition was fair; and

(2)  a laceration about 3 cm in length was noted over the ulnar palmar side of the right forearm, associated with numbness over the ulnar aspect of the right palm and 4^th and 5^th fingers.

9. He was treated and transferred to the Orthopedic Unit of Pamela Youde Nethersole Eastern Hospital (“PYNEH”).  It was found that the dorsal branch of digital nerve was cut.  He was put on ampicillin and cloxacillin and was certified fit for discharge from PYNEH on 2 August 2009.  The applicant was assessed on 11 August 2009 at PYNEH.  It was found that the wound was clean. The applicant felt residual decreased sensation over his right forearm.  He was then referred to the Orthopaedics and Traumatology Department in North District for further assessment due to geographical reasons as requested by the applicant.

10. The applicant was first seen at the specialist out-patient clinic of North District Hospital on 18 August 2009.  The wound was found to have healed in good condition.  He was referred to the Occupational Therapy Department for nerve rehabilitation.  During a follow-up on 8 October 2009, it was found that there was residual numbness at ring and little finger which did not disturb the applicant’s daily living.  The applicant was advised to resume duty.

11. The applicant attended his first therapy session on 3 August 2009 and final session on 21 September 2009.  Upon initial assessment, the applicant reported numbness and a decrease 50 percent light touch sensation at ulnar side of right hand dorsum.  The applicant was able to make a loose fist.  Upon final assessment, the scar was found to be adhesive, right wrist flexion and extension were 40° and 45° respectively, supination and pronation of right forearm were full, grip strength of the right hand and left hand were 14kgf and 28kgf respectively and presence of deep pressure sensation at ulnar side of right hand dorsum.  As at the date of the Occupational Therapy Report from the North District Hospital dated 17 February 2011, the applicant had defaulted follow-up therapy and was discharged from the Occupational Therapy Department.  In his evidence, the applicant claims that he stopped doing physiotherapy as he needed to work.

Expert medical evidence

12. By Order of His Honour District Judge Poon dated 16 March 2012, the applicant was given leave to adduce the report of his orthopaedic expert, Dr Wong See Hoi dated 3 December 2011 (“Dr Wong’s Report”) as evidence at the trial without need of calling Dr Wong to give oral evidence.

13. The respondent has chosen not to adduce expert evidence and has not challenged the contents of Dr Wong’s Report.

14. The applicant was examined by Dr Wong on 16 November 2011.  The applicant told Dr Wong that he had no injuries in the past and that he has been attending the Medical Department of Princess Margaret Hospital for asthma for about 10 years and is on regular medication.

15. The applicant told Dr Wong that he has intermittent attacks of right forearm pain over the ulnar aspect of his hand about 4 to 5 times a week especially in the morning after getting up, change of weather and pressure to scar.  This would last for 1 to 2 hours.  The applicant told Dr Wong that he was not on regular analgesics.  The applicant also complained of numbness and hypersensitive over dorsum of right hand and ulnar 2 digits.

16. Physical examination by Dr Wong revealed the following:-

(1)  shoulder, elbow and elbow range of movement was normal;

(2)  on palmar flexion of right wrist, the applicant complained of hypersensitivity of dorsum of right hand;

(3)  fingers range of movement were normal;

(4)  insofar as the right wrist was concerned:-

(a)  mild swelling distal to scar;

(b)  3cm pigmented scar over dorsal ulnar region, well healed, tenderness on palpation;

(c)  skin atrophy around scar;

(d)  hypersensitivity about 3 to 4 cm distal to scar.  The applicant demonstrated a strong avoidance of being touched;

(e)  Tinel’s sign positive;

(f)  no clinical sign of complex regional pain syndrome;

(g)  no muscle atrophy of right upper limb;

(h)  upper limbs muscle power were normal;

(i)  50% decrease in sensation to touch on ulnar side of right hand dorsum and 4^th and 5^th fingers; and

(j)  no right hand weakness on handgrip test.

17. Dr Wong is of the opinion that the injuries sustained by the applicant was solely caused by the Accident.  Dr Wong also takes the view that the treatments received by the applicant after the Accident referred to in paragraphs 8 to 11 above were standard and appropriate but seems to have failed to relieve the applicant’s symptoms satisfactorily.

18. Dr Wong’s findings are consistent with the findings in the other hospitals referred to in paragraphs 8 to 11 above.  I accept Dr Wong’s findings.  It is worth mentioning that it appears that since the applicant’s final physiotherapy assessment at the North District Hospital on 21 September 2009 (referred to in paragraph 11 above), the applicant’s right hand (which is his dominant hand) grip strength has recovered.  As Dr Wong noted in his Report, the applicant’s right hand grip strength was normal.

19. Dr Wong is of the opinion that the applicant’s hypersensitivity to his right hand is an aftereffect of the dorsal cutaneous nerve branch cut.  Explanation can either be neuroma formation or hypersensitivity of the distal end of the dorsal cutaneous nerve branch after the cut.  According to Dr Wong, as the symptom is disturbing and affects the applicant’s daily activities, surgery including re-exploration of the nerve +/- nerve graft may be able to improve his condition.  After the surgery, the applicant will require sick leave for a further 3 months.  Dr Wong said that alternatively, the applicant could do further occupational therapy for a de-sensitization program for a few months.

20. According to Dr Wong, without the suggested surgery or the de-sensitization program, the applicant has reached maximum medical improvement.  Dr Wong’s opinion of the applicant’s prognosis is fair.  Dr Wong takes the view that although the applicant’s right hand power is likely unaffected, hypersensitivity and sensory deficit of his right hand will cause considerable discomfort especially when the scar is being touched.  Dr Wong opines that as the applicant is right hand dominant, he is expected to have significant inconvenience when using his right hand for simple tasks like operating a screwdriver or performing heavy manual work.  This would cause inconvenience to the applicant’s daily activities.  I accept Dr Wong’s opinion above.

21. Dr Wong takes the view that the applicant is able to resume his previous job as an electrician but he is expected to have reduced work efficiency and capacity especially on heavy manual delivery work and frequent ladder or scaffold climbing.  I accept Dr Wong’s views.

22. Dr Wong assesses the applicant to have suffered a 5 to 6% impairment to the whole person as a result of the right forearm laceration with ulnar nerve cut and residual pain, numbness and hypersensitivity.

Applicant’s monthly earnings

23. As I have mentioned above, there is no dispute and I so find that the applicant’s daily wage at the time of the Accident was HK$800.

24. The issue is what was the applicant’s monthly earnings at the time of the Accident.  The difficulty in this case is that the applicant had worked less than one week for the respondent before the Accident ie less than one month prior to the Accident.  Section 11(1) of the ECO is therefore not applicable to calculate the applicant’s monthly earnings (see Court of Appeal’s decision in Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337).  In my judgment, Section 11(2) of the ECO is relevant.  According to that Section:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

25. The 1^st limb to Section 11(2) is not applicable here as the applicant has not adduced evidence of what a person of similar earning capacity employed in the same work and by the same employer would have earned.  In my judgment, the 2^nd limb of Section 11(2) is applicable.  I place reliance on the applicant’s employment as an electrician prior to the Accident (see Court of Appeal’s decision in Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643).  The applicant said in his evidence that prior to working for the respondent, he had also been working as an electrician on a causal basis 6 days a week.  He said that at good times, he could be working 30 days a month and on quieter times, he could be working 20 to 26 days a month.  The respondent has not disputed this. I accept the applicant’s evidence.  I also accept the applicant’s solicitors’ submissions that it would be reasonable to adopt a figure of 26 days for computing the applicant’s monthly earnings.  On that basis, the applicant’s monthly earnings at the time of the Accident were HK$800 x 26 days = HK$20,800.

Claim for permanent partial incapacity

26. By a certificate of assessment dated 11 October 2010, the Employees’ Compensation (Ordinary Assessment) Board assessed the applicant’s loss of earning capacity to be 2% for the right forearm laceration resulting in right wrist pain, numbness and weakness.  By a certificate of review of assessment dated 7 February 2011, the Employees’ Compensation (Ordinary Assessment) Board reviewed that assessment and replaced the figure with 2.5%.  In the applicant’s application for employees’ compensation filed on 9 April 2011, the applicant appeals against that assessment.

27. The Court approaches such an appeal by starting afresh (see Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 cited with approval in the Court of Appeal’s decision in Tsang Kwong Tong v Tennile Decoration & Design Limited & others CACV42/2006 (unreported, 10 October 2006)).

28. Ms Virginia Lee, solicitors for the applicant submitted that the applicant’s injuries are not specified in the First Schedule to the ECO.  I agree.  The question for the Court is therefore whether it should assess the applicant’s compensation payable for permanent partial incapacity pursuant to Section 9(1)(b) or 9(1A).

29. Pursuant to Section 9(1)(b):-

“Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be…

(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

Provided that…

(ii)  in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.”

30. Pursuant to Section 9(1A):-

“Where-

(a) permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule); and

(b) the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing-

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

(ii) his qualifications, previous training and experience,

the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning incapacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.”

31. Ms Lee submits that there are special circumstances of the applicant which justify assessment under Section 9(1A) of the ECO.  Ms Lee relies on the grounds that the applicant had been working as an electrician since graduating in Form 3 and thus his experience is only confined to electrical works.  Accordingly, Ms Lee so submits, the applicant had no option but to return to his previous employment as an electrician.  Further, the applicant is right hand dominant and the injuries sustained by the applicant to his right forearm will have an adverse effect on him carrying out tasks as an electrician.

32. The applicant said in his evidence that at present, he still suffers pain to his right hand dorsum around his 4^th and 5^th fingers especially in the morning when he wakes up and change of weather and he still suffers hypersensitivity around that area of his right hand.  The applicant also said that he now has difficulties in doing heavy manual work because of the problems to his 4^th and 5^th fingers.  He also have problems turning a screwdriver.  Whilst I accept that the applicant remains suffering from the above problems, as mentioned in paragraph 21 above, Dr Wong is of the opinion that the applicant is able to return to his previous employment as an electrician and the fact is that the applicant has done so (see paragraph 34 below).

33. For the reasons set out in paragraph 6 above, I do not accept that the applicant had no option but to return to work as an electrician as his experience does not appear to be confined to electrical works.

34. The applicant took sick leave from 1 August 2009 to 8 October 2009.  The applicant said that after taking sick leave, he took about 2 months to find his present job as an electrician in the employment of a construction company earning a monthly salary of HK$18,500 and working 26 days a month.  According to the applicant, with his present job although he encounters the problems referred to in paragraph 32 above, his colleagues have assisted him in doing heavy manual work and work involving climbing.

35. For the reasons above and although the applicant may now have reduced work efficiency as an electrician, I am not satisfied that there are special circumstances of the applicant justifying assessment under Section 9(1A) of the ECO.

36. In his Report, Dr Wong assessed the applicant’s loss of earning capacity to be 6%.  Whilst this Court is not bound by Dr Wong’s assessment, having considered all the circumstances, I accept that this would be reasonable and I so adopt.

37. Since the Employees’ Compensation (Ordinary Assessment) Board assessed the applicant’s loss of earning capacity to be 2.5%, I allow the applicant’s appeal against such an assessment.

38. The award of compensation under Section 9 of the ECO is therefore HK$20,800 x 72 x 6% = HK$89,856.

Claim for compensation for temporary incapacity

39. As I mentioned in paragraph 34 above, as a result of the Accident, the applicant took sick leave from 1 August 2009 to 8 October 2009 of a total of 69 days.  This has been endorsed by the Employees’ Compensation (Ordinary Assessment) Board in its certificate of review of assessment dated 7 February 2011.  Further, Dr Wong agrees with the sick leave period.

40. Accordingly, the compensation under Section 10 is (HK$20,800/30) x 69 days x 4/5 = HK$38,272.

Claim for medical expenses

41. Ms Lee submits that the applicant incurred total medical expenses of HK$870 as follows:-

Hospital/Clinic	Amount (HK$)
Ruttonjee Hospital	100
Pamela Youde Nethersole Eastern Hospital	160
North District Hospital	520
Princess Margaret Hospital	90

42. Although the applicant has adduced 2 receipts from the Princess Margaret Hospital, it is not clear and nor has the applicant explained in his evidence the purpose of those visits in particular whether they relate to the injuries sustained from the Accident.  It would appear that those receipts relate to the applicant’s asthma treatment (see paragraph 14 above).  Indeed, the applicant does not claim for such expenses in his witness statement filed on 31 January 2012.

43. I therefore disallow the medical expenses in relation to Princess Margaret Hospital and allow the balance of HK$780.

Summary

44. For the above reasons, I find that the respondent is liable to pay employees’ compensation of HK$128,908 to the applicant as follows:-

(1)	Section 9	HK$89,856
(2)	Section 10	HK$38,272
(3)	Section 10A	HK$780
	Total	HK$128,908
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45. I therefore order as follows:-

(1)  the respondent do pay the applicant HK$128,908 with interest at half judgment rate from the date of injury to the date of judgment and thereafter at judgment rate until full payment;

(2)  the applicant’s appeal against the Certificate of Review of Assessment by the Employees’ Compensation (Ordinary Assessment) Board dated  7 February 2011 be allowed;

(3)  the respondent do pay the costs of the applicant.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations;

The above order for costs shall be on a nisi basis.