ZHENG SHUANGXIU v. SHUN LEE HING INDUSTRIES CO LTD

DCEC 1098/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1098 OF 2009

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IN THE MATTER OF AN APPLICATION

BETWEEN

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ASSESSMENT OF COMPENSATION

1.  The Applicant (“Zheng”) filed this Application under the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”) for compensation for injury at work on 6 November 2007 against her then employer, the Respondent (“SLH”). Judgment on liability was entered against SLH with costs on 22 July 2011, leaving compensation to be assessed.

2.  SLH used to be legally represented until May 2011.  Since then, SLH has been absent from the court hearings.  So was it today.  I saw no reason why Zheng should be prevented from proceeding with proving the quantum of compensation.

The accident

3.  Zheng has received primary education in the Mainland before coming to Hong Kong.  It was a fortnight before her reaching the age of 35 when she met the accident.  The accident happened when she was working as a casual worker for SLH at its open storage yard in Fanling, New Territories.  At the time, she was stacking waste recycle articles including the outer casings of game machines known as “Tiger Slot” and “Pinball Machines” on pallets.  In the course of that, the waste articles fell and hit against her body.  She sustained multiple injuries.  The photographs and the accident investigation report subsequently prepared by the Labour Department explain how the accident happened.

Injuries and treatment

4.  Zheng was admitted to the hospital after the accident.  Clinical and X-ray examinations confirmed fractures in her cervical spine and right ankle.  The cervical fracture was later treated with Halo body jacket for immobilisation while the right ankle fracture received open reduction and internal fixation.  The screws were removed in late December 2007.  She was transferred to another hospital for rehabilitation consisting of physiotherapy and occupational therapy.  The Halo jacket was removed in the first week of February 2008 when she was also discharged from the hospital.  The metal implants in the right ankle were not removed until late June 2010.

Loss of earning capacity

Forms 7 and 9

5.  Zheng has been examined by the Medical Assessment Board (“MAB”).  By Form 7 dated 12 July 2010, the MAB assessed Zheng’s loss of earning capacity to be 8% for the pain and stiffness resulted from the fracture of 1^st cervical spine and right ankle.  By Form 9 issued on 8 November 2010, the assessment was adjusted to 10% after review.

6.  Zheng filed her notice of appeal on 10 January 2011 against the MAB assessment pursuant to section 18 of the Ordinance.

Medical expert evidence

7.  In early May 2011, Zheng attended the joint examination by the orthopaedic experts engaged on behalf of her and the Respondent respectively: Dr Peter Ko and Dr Johnson Lam. The experts produced their joint expert report on 5 July 2011.

8.  Probably due to the persistent absence of SLH, the court directed on 22 July 2011 that Zheng should file the joint medical expert report but limited to adducing as medical expert evidence the part of the report containing the medical findings and comments by Dr Ko, the expert engaged on her behalf.

9.  Actually both experts noted that both physiotherapy and occupational therapy had ceased for about a year by the time of the joint examination.  Zheng’s recent follow up attendances at the orthopaedic outpatient clinic were months apart between February and September 2011.

10.  During the joint physical examination, Zheng still complained about on and off neck pain with increase in pain and sense of crackling in her neck on rotational as well as bending and extending movements.  There was no subjective stiffness in the cervical spine.  She felt weakness in her left upper limb.  For her right ankle, there was continuous pain, swelling and subjective stiffness.

11.  Examination showed mild weakness in her bilateral upper limb with left side more than the right side and features of cervical disc problem with neurological deficit.  There was manifestation of hyperreflexia in the limbs and positive Hoffman’s signs.  From the orthopaedic point of view, these were residual features of the cervical disc injury and/or healed cervical fracture.  The surgical scar for the Halo application had healed well.  But Dr Ko found features of nerve impingement to the supra-orbital nerve.

12.  As to the ankle, the experts found that it showed moderate degree of residual stiffness and there was mild wasting in the right calf muscles.  Dr Ko opined that there were features of some post-operation cutaneous nerve injury or damage.

13.  The experts actually also agreed that the treatment, investigation and rehabilitation received by Zheng was appropriate and reasonable.  For the neck injury, Dr Ko opined that residual neurological deficits and disability involving four limbs would not be expected.  The treatment outcome was good; and the prognosis was fair.

14.  Dr Ko agreed with the government doctor’s suggestion of operation for Zheng’s cervical spine disc at C4-5 and C5-6.  Another 12-month treatment and rehabilitation would then be required after such operation.  However, he would consider her refusal to take further risk of operation to be understandable and acceptable.

15.  Without further operation, Dr Ko believed that the present incapacity and disability of Zheng would be permanent.  He opined that Zheng should only have mild problems in management of her usual activities of daily living and self-care.

Ability to resume pre-accident job

16.  The accident happened to Zheng on the first day of her work for SLH.  In court, Zheng explained her trial in taking up alternative job such as dish washing and selling vegetable. But her inability to lift weight has caused her to quit after hours of work. Her effort to seek for job through the Labour Department has resulted in no favourable response.  Hence after the expiry of the sick leave, she has been unemployed.

17.  Dr Ko opined that Zheng was unfit to resume her pre-accident job as a casual worker in storage yard that required the lifting of heavy weight and squatting.  He recommended alternative jobs with lower physical demand such as telephone operator, toll collector, worker at petrol station, storekeeper.

18.  I accept Zheng’s evidence.  Considering the nature of the work that Zheng used to do with her previous employers and SLH, I could safely conclude that her pre-accident work did belong to the kind that would involve frequent and substantial exertion on her neck.  On balance, I am satisfied that realistically Zheng should be considered as being unfit to resume her pre-accident job.  I would arrive at the same conclusion even assuming that Dr Lam’s opinion is taken into account.

Conclusion

19.  Both experts actually agreed that the loss of earning capacity should exceed that as assessed by the MAB.  I allow the section 18 appeal.  Considering the evidence adduced, I accepted the suggested 20% as the percentage for the assessment of compensation.

Pre-accident income

20.  The pre-accident monthly earnings should be calculated according to section 11(1) of the Ordinance.  This would be the earning in the month immediately preceding the date of the accident or computed in such manner as is best calculated to give the rate per month during the previous 12 months or any lesser period with the same employer, whichever is more favourable to the employee.

21.  By reason of the shortness of the time during which Zheng has been in the employment of SLH (that being the first day of her work) as well as the casual nature, it is impracticable to compute the rate of her remuneration at the date of the accident in accordance with section 11(1).

22.  Section 11(2) permits the court to have regard to the average monthly earnings of a person of a similar earning capacity in the same trade employed at the same work by the same employer or a person of similar earning capacity in the same grade employed in the same class of employment in the same district over the 12 months prior to the accident.  Zheng herself could be such a person.

23.  Zheng was paid a daily wage of HK$400 by SLH.  But she produced evidence of her previous employment in similar kind of work during the period between July 2006 and July 2007 that gave her a daily wage of HK$500 for 24 to 28 days of work per month.  She also produced evidence of her co-workers in the similar field who earned HK$600 per day for 26 to 28 days.

24.  I accept the evidence adduced on Zheng’s behalf.  Having regard to the evidence of such monthly earnings during the 12 months prior to the accident, I find that HK$13,000 should be a fair monthly amount to be adopted for the purpose of calculating the compensation.

Section 9 compensation

25.  The section 9 compensation shall be HK$13,000 x 20% x 96 = HK$249,600.

Section 10 compensation

26.  By Form 9, the MAB certified the sick leave to last on various dates between early November 2007 and late October 2010 to 990 days.  The evidence reveals 2 more days of sick leave, thus making a total of 992 days.

27.  In their report, the medical experts agreed that the sick leave received by Zheng for the treatment, investigation and rehabilitation of her multiple injuries involving cervical spine and right ankle fractures was appropriate and reasonable.  Further sick leave would be reasonable only if further operation was performed.  Her condition was static and should be considered as permanent for the purpose of assessment.

28.  The section 10 compensation should therefore be HK$13,000 x 992/30 x 4/5 = HK$343,893.

Section 10A compensation

29.  Calculation of the medical expenses incurred by Zheng for inpatient and outpatient treatments was provided and supported by receipts.  The total amount was HK$12,227, which is in line with the calculation under the 3^rd Schedule to the Ordinance.  In court, Zheng confirmed that while she was hospitalised, a representative of SLH has come to pay her a sum of about HK$11,000 for medical expenses.  Credit should be given to this sum.  The net medical expenses would be HK$1,227.

Summary

30.  In summary:

Section 9 compensation:	HK$249,600
Section 10 compensation:	HK$343,893
Section 10A compensation:	HK$1,227
Total:	HK$594,720

Conclusion

31.  SLH shall pay compensation in the sum as assessed above together with interest at half judgment rate from the date of accident to today.  Interest from today until full payment runs at the judgment rate.  SLH shall pay Zheng’s costs of these assessment proceedings, including any costs reserved.  Costs shall be taxed if not agreed.  Zheng’s own costs shall be taxed in accordance with Legal Aid Regulations.