CHI YUK PUI v. GRACE MIND CORPORATION LTD t/a TSUNO JAPANESE RESTAURANT

DCEC 1521/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1521 OF 2012

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ASSESSMENT OF COMPENSATION

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Background

1.  This is a claim for employees’ compensation by Mr Chi Yuk Pui (“the applicant”) in respect of an accident to him on 11 August 2011 under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.  The respondent company took no step to defend the claim and has all along been absent in all court hearings.

3.  Judgment on liability was entered against the respondent on 5 April 2013.  This is the assessment of compensation.

4.  I am satisfied that sufficient notice of these proceedings and the assessment hearing was given to the respondent. The assessment hearing proceeded in its absence.

5.  The applicant was the only witness who testified in court.  He adopted the contents of his witness statement as his evidence in chief.

The accident

6.  The applicant was employed to work as a chef by the respondent.

7.  Whilst standing on a portable cooler in order to retrieve some food items from an overhead refrigerator in the course of work, he lost balance and fell when the portable cooler suddenly slipped.  As a result he fell to the floor and sustained right wrist contusion injuries.

Injuries, treatment and disabilities

8.  The applicant is right-hand dominant.

9.  He attended the Accident & Emergency Department of Kwong Wah Hospital (“KWH”) for treatment immediately after the accident.  His right wrist was found swollen and tender.  X-rays revealed a widened distal radioulnar joint.  He was admitted to the Orthopaedics & Traumatology (“O&T”) for further management.

10.  Further x-rays revealed suspected distal radiounlar joint instability.  He was treated and discharged with a dynacast for rest.

11.  He attended specialist outpatient orthopaedic clinic follow up, and was referred for occupational therapy and physiotherapy treatment.

12.  He attended occupational therapy treatment from 19 September 2011 to 12 January 2012 (a total of 13 sessions), and physiotherapy from 24 November 2011 to 12 January 2012 (a total of 6 sessions).

13.  Continuous sick leave was granted to the applicant for the right wrist injuries from the day of the accident to 29 January 2012, a total of 171 days.  He last attended orthopaedic follow up on 9 March 2012.

14.  The applicant’s evidence is that despite treatment, he has suffered and continues to suffer residual intermittent right wrist pain the intensity of which he rates at 5/10.  The pain is aggravated upon repetitive motion at work, eg paper cutting.  His weight handling capacity is impaired.

15.  He was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Medical Assessment Board”) to be suffering 0.5% permanent loss of earning capacity in respect of “right wrist injury resulting in right wrist pain” as set out in a Certificate of Assessment (Form 7) issued on 15 August 2012.  The sick leave granted up to 29 January 2012 was endorsed.  He appeals against this assessment.

16.  The applicant’s orthopaedics expert Dr Peter Tio examined him on 30 November 2013, ie more than 2 years after the accident.  He still complained of right wrist pain, clicks and minimal reduction in the range of movement.  X-rays revealed residual subluxation over the right distal radioulnar joint.

17.  Dr Tio considered the applicant able to resume his pre-accident work as a chef or kitchen worker with a mild degree of disability.  He will have right wrist pain and discomfort upon heavy manual work or prolonged use of his right hand/wrist such as chopping.

18.  Dr Tio considered the sick leave granted up to 29 January 2012 reasonable and appropriate.  He assessed permanent impairment of the whole person and loss of earning capacity at 2.5%.

19.  I accept the applicant’s evidence on the right wrist injuries, treatment and disabilities.  He is a young right-handed manual worker who will have difficulties and will suffer inconvenience due to the permanent right wrist disabilities in his long working life ahead. 

20.  I accept the sick leave granted by the treating doctors of the O&T of KWH and endorsed by the Medical Assessment Board and Dr Tio.

21.  I also accept Dr Tio’s more updated assessment of 2.5% permanent loss of earning capacity with detailed explanations.

Pre-accident earnings

22.  The applicant’s evidence is that he commenced working for the respondent in May 2011 as a restaurant chef.  His monthly salary was $9,000.  He worked 26 days a month from 11 am to 11 pm and was provided with free meals of lunch and dinner at work.  This he values at $25 per meal for the purpose of his claim herein.

23.  He explained in court that he did sign a contract/employment letter which states his monthly salary to be $9,000 at the commencement of employment.  He was not provided with a copy of the contract/employment letter which was kept by the respondent.

24.  Evidence of savings passbook shows that two deposits of $4,500 each were made in July 2011.  This the applicant confirmed to be his monthly salary for the month of June 2011.  He further explained that he sometimes received salary partly in cash, thus the savings passbook does not show all salaries received from the respondent as apparent in other months when smaller amounts were deposited.

25.  His pre-accident monthly earnings were therefore: $9,000 + ($25 x 2 x 26 days) = $10,300.

26.  He did not receive any sick leave payment from the respondent after the accident.  The respondent’s restaurant went out of business in the month following the accident.

27.  I found the applicant a frank and straightforward witness.  I accept his unchallenged evidence that he was earning $10,300 per month on average inclusive of the value of two free meals per day when working for the respondent prior to the accident.

Compensation

28.  The applicant was aged 20 at the time of the accident.

29.  On the basis of my above findings on (i) pre-accident monthly earnings of $10,300, (ii) reasonable sick leave of 171 days; and (iii) permanent loss of earning capacity of 2.5%, I adopt the calculations set out in the Applicant’s Opening and assess employees’ compensation under the ECO as follows:-

30.  The applicant has not received any sick leave payment or reimbursement for paid medical expenses from the respondent.

Order

31.  Employees’ compensation is assessed at the total sum of $72,328, with interest thereon at half judgment rate from the date of the accident to the date of judgment herein.  Further interest at judgment rate thereafter until payment.

32.  The respondent shall pay the applicant’s costs of the whole action, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.