FAN KWOK KEUNG v. TEAM WORK EVENT PROMOTION LTD

DCEC 973/02

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’COMPENSATION CASE NO. 973 OF 2002

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Judgment

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1. The applicant is claiming compensation under the Employees' Compensation Ordinance (Cap.282). The claim was originally for permanent partial incapacity under section 9 of Cp.282. Interlocutory judgment was entered against the absent respondent, with assessment of quantum adjourned.

2. At the trial on quantum, the respondent was still absent. Application was made to add the claims for temporary incapacity during the sick leave period under section 10 of Cap.282, and for payment of medical expenses under section 10A of Cap.282. I allowed the application as I could not think of any prejudice on the respondent who had all along been absent.

The injuries

3. The applicant was born on 23 September 1960. He was a welder employed by the respondent. On 30 June 2001, he was asked to drive a van in the course of duty, and met with a collision. His left leg was injured with laceration, and the left fibula head and left tibia were fractured. He underwent the treatment of debridement, suture of the wound and closed reduction, and received follow-up physiotherapy.

4. The injuries were healed, but with deformity. The left tibia and fibula were united but with angular deformity of 10 degrees, causing undue stress on the knee joint. The ligaments and menisci of the left knee were torn, causing severe structural damage, resulting in pain, instability, and episodic locking. Reconstruction of ligaments and menisci was recommended to reduce the risk of premature osteoarthritis. MRI scan revealed intra-articular damage. The applicant still has difficulties in running, jumping, lifting heavy object and squatting for over half an hour.

5. The applicant was on certified sick leave from 30 June 2001 to 18 April 2002. He was never paid any wages nor payment for temporary incapacity during the sick leave period.

6. The applicant has resumed working as a welder, but his efficiency and productivity is affected by the permanent injuries mentioned above.

Permanent partial disability

7. The applicant was assessed by the Employees' Compensation (Ordinary Assessment) Board on 27 February 2003 to be suffering from a 20% loss of earning capacity permanently caused by the injury. The applicant is also appealing against that assessment.

8. The applicant's case of loss of earning capacity is at 21%. Mr. Lau for the applicant based the claim on section 9(1)(a) of Cap.288. He referred to the opinion of Dr. Poon Kai Ming, Orthopaedic Specialist, that the loss of earning capacity is 21%.

9. Under the First Schedule of Cap.282, the percentage of loss of earning capacity for the loss of a leg below knee is 65%. The applicant has not suffered the loss of a leg nor the loss of use of a leg. The case does not fall within the First Schedule, and hence it does not fall within section 9(1)(a) of Cap.282.

10. The applicant's injury falls within section 9(1)(b) of Cap.282, and it is for the court to assess the percentage of loss of earning capacity. Medical opinion is useful but it is for the court to come to its own conclusion (see Tang Shau Tsan v Wealthy Construction Co Ltd CACV 58/2000).

11. I accept the evidence of the applicant and Dr. Poon that there is deformity of the left leg and the productivity at work is impaired. I find there is a partial loss of earning capacity.

12. There is no evidence before the court of the applicant's earning capacity at the time of the accident in any employment of which he is now still capable. There is the evidence of the assessment of the Ordinary Assessment Board, which is admissible until the contrary is proved under s.16H of Cap.282, and the opinion of Dr. Poon. In view of the small difference between the two, and that the respondent is absent, I shall proceed to make the assessment as best as I can.

13. Dr. Poon based his opinion on the Guides to Evaluation of Permanent Impairment of the American Medical Association. The condition of left knee with torn ligaments and menisci is assessed at 16% impairment of the while person, and the mal-united left tibia is assessed at 6% of the whole person, and the combined impairment is assessed to be 21%. Based on the impairment of the whole person, the loss of earning capacity is assessed to be 21%. In the absence of contrary argument, I accept Dr. Poon's opinion and assessed the loss of earning capacity to be 21%.

14. The applicant was over 40 at the time of the accident. Under section 7(1)(b), the multiplier for lump sum compensation for permanent total incapacity is 72 months.

15. The applicant was earning $12,540 per month for the month immediately preceding the accident. It is less than the maximum of $21,000 as specified for section 7(1)(b) under the Sixth Schedule to Cap.282. Hence the multiplicand is $12,540.

16. The lump sum compensation for permanent partial incapacity is: $12,500 x 72 x 21% = $189,600.80.

Temporary incapacity

17. The applicant was granted certified sick leave from 30 June 2001 to 18 April 2002, i.e. 9 3/5 months . No payment for temporary incapacity by the respondent was made. Hence, under section 10(1) of Cap.282, the compensation is: $12,540 x 9 3/5 x 4/5 = $96,307.20.

Payment of medical expenses

18. The applicant was hospitalised at a public hospital and incurred $2,040. He received follow-up treatment and incurred $1,538. The sum of $3,578 is allowed.

Summary

19. The amount of compensation is $289,490.

Interest

20. Interest at half judgment rate is allowed from the date of the writ until judgment, thereafter at judgment rate until payment.

Costs

21. Costs of the application be to the application, to be taxed if not agreed, with certificate for counsel.