CHUNG KAM CHUEN v. LISBOA BAKERIES LTD

DCEC 1080/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1080 OF 2002

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JUDGMENT

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1. The Applicant was the employee of the Respondent. He claims to have injured himself whilst in the course of his employment. He now claims compensation under Sections 9, 10 and 10A of the Employees' Compensation Ord. Cap 282.

Was the Applicant injured in the course of employment?

2. The Applicant's evidence is that on the 25/11/00 he started work in the kitchen of the Respondent at 8 a.m. He prepared soup and sauce from big metal pots. As he tried to raise a pot intending to pour soup onto smaller pots he twisted his back and felt very painful. He rested for about 15 minutes. His assistant DW1 Yiu Wan Cheung knew what happened as he was present at that time.

3. Later that afternoon he went to Queen Elizabeth Hospital Accident and Emergency Department for treatment.

4. Yiu said that on that day the Applicant did say that he had back pain and asked Yiu to round things up.

5. Cheung Yiu Leung said around 11:30 a.m. the Applicant did tell him that he had back pain. He reported the matter to the Personnel Department.

6. The Respondent on 6/12/00 filed a Form 2 and stated that the Applicant twisted his back while moving a pot of soup.

7. On balance I find that the Applicant had injured his back while lifting the pot of soup. That was consistent with the Applicant telling Yiu of his back pain and that he went to Queen Elizabeth Hospital for treatment that afternoon. I find that he was injured in the course of his employment.

Compensation under S. 9

(i) Applicant's wage

8. It is agreed that the Applicant earned $14,166.67 per month as a cook. He had to move heavy pots as part of his job.

(ii) Pre-existing back pain

9. The Applicant had a history of back problem. According to the record of United Christian Hospital dated 2/11/99 he had low back pain for 13 years, lifting injury, on and off - worse last 3-4 years.

10. Record dated 2/5/00 low back pain much improved.

11. Record of 22/8/00 showed that low back pain was the same and he could cope with job.

12. Record of 14/11/00 stated the low back pain with sciatica for 13 years was the same.

13. It is obvious that the Applicant had a back problem for over 13 years prior to the accident. However as stated in the record dated 22/8/00 he could cope with the job.

14. However the record dated 20/12/00 showed that the Applicant suffered acute exacerbation of his low back pain. His condition became worsen. Both Dr Au for the Applicant and Dr Choi for the respondent agreed that that was caused by trauma. Dr Tsoi agreed that some event triggered the acute exacerbation while Dr Au is of the view that that was consistent with the accident. Apart from the incident on 25/11/00 there was no evidence of any other event which could have triggered the trauma.

(iii) Appeal on Loss of Earning Capacity

15. The Medical Assessment Board assessed the Applicant's permanent loss of earning capacity at 2%.

16. Dr Tsoi assessed the loss of earning capacity to be 8% wholly due to pre-existing injury. He said it was difficult to apportion what percentage was due to the accident on 25/11/00.

17. Dr Au also assessed the Applicant's loss of earning capacity to be 8%. But having examined the pre-existing notes he assessed and apportioned that the Applicant had suffered 5% loss of earning capacity before the accident and 3% was due to the injury on 25/11/00. I preferred the evidence given by Dr Au.

18. So the appeal from the Medical Board's assessment is allowed to the extent that the Applicant suffered 3% loss of earning capacity because of the accident on 25/11/00.

(iv) Whether S.9(1A) and Hong Kong Paper Mills formula should be applied for assessment

19. The Applicant is a cook. His expertise is in cooking. Moving heavy pots was only ancillary to his job. He said that after the accident he could not move heavy objects. In May 2002 he resumed part time work as cook at $40 per hour. In July 2002 he worked full time as cook and earned $12,500 per month. He had to stand for long hours. He had to work 10 hours a day. He stopped working after 1/2 month. After that he worked as a part time cook and earned an average of $5,000 a month. He did not continue to work only because of bad business.

20. He said that head chefs needed not carry cooking utensils. When asked by his lawyer if he was qualified to become head chef, he said he was qualified except that it is now difficult to find such job because of the current economic environment.

21. In the circumstance it is not because of his injuries that he could not resume his job as a cook and that he had to look for other jobs. In fact there is no evidence that he had ever tried to look for other jobs. Hence S.9(1A) should not be applied in the assessment under S.9.

(v) Compensation

(1)	Under S.9
	Having accepted Dr Au's opinion that 3% of permanent loss of earning capacity was due to the present injury, compensation under S.9 should be :-
	[$14,166.67 x 3/100 x 96] = $40,800
(2)	Under S.10
	The parties agreed that the periodical payments should be calculated as follows :-
	[$14,166.67 x 485/30 x 4/5] = $183,222.27
	Less periodical payments already paid to the Applicant in the sum of $173,864.93, the Applicant is entitled to a further sum of $183,222.27 - $173,864.93 = $9,357.34.
(3)	Under S.10A
	The Applicant is entitled to a daily maximum of $175 on public and private medical treatment. He had private medical treatment for 34 days and $68 for ward fee and $3,034 for outpatient treatment.
	The compensation under S.10A is therefore $(175 x 34) + $3,102 = $9,052.

Quantum

22. The total compensation is therefore

$[40,800 + 183,222.27 + 9,052] - $173,864.93 = $59,209.34

23. In the circumstance there be judgment for the Applicant in the sum of $59,209.34 with interests at 2% p.a. from 25/11/00 until judgment and thereafter at judgment rate. Costs to the Applicant. Applicant's own costs to be taxed according to Legal Aid Regulations.