KWOK SHIU MAN v. KONG HING WAH formerly t/a E AND C-T ENGINEERING CO

DCEC 1524/2019

[2022] HKDC 264

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1524 OF 2019

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ASSESSMENT OF COMPENSATION

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Introduction

1.  This is the hearing of an assessment of employee compensation pursuant to sections 9, 10, 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”) in respect of an accident that took place on 26 June 2017 (the “Accident”). The applicant Kwok Siu Man also appeals against the Certificate of Review of Assessment (Form 9) issued by the Employee’s Compensation (Ordinary Assessment) Board on 30 June 2021 in respect of the Board’s assessment of his loss of earning capacity.

2.  Judgment on liability was entered against the respondent Kong Hing Wah formerly trading as E and C-T Engineering Co on 16 October 2020.

The Accident

3.  At the assessment hearing, the applicant confirmed and adopted his witness statement dated 24 August 2021.

4.  At the time of the Accident, the applicant was employed by the respondent as an air-conditioning apprentice.  On the date of the Accident, the applicant was working at the back lane of a vegetable stall in Yuen Long, New Territories and was standing on an A-shape ladder to dismantle a split type air-conditioner at a height of about 15 feet above the ground.  Suddenly, the applicant suffered from an electric shock and fell down from the said ladder and injured his left wrist, right middle finger, low back and neck.

5.  At the time of the Accident, the applicant was 34 years old. 

Nature and extent of the applicant’s injuries

6.  The applicant attended the A&E Department of Pok Oi Hospital (“POH”) on the day after the Accident.  Medical examination revealed the following conditions:-

(1)     Right hand examination showed pain and swelling over proximal middle finger, with normal range of movement and normal distal neuro-vascular status;

(2)     Left wrist examination showed pain over palmar aspect;

(3)     Neck examination showed pain over posterior neck; and

(4)     Back examination showed pain over lower lumbar region.

The applicant was put on left wrist cast for his left wrist injury.

7.  The applicant was followed up at the A&E follow-up clinic on 7 July 2017 and 21 July 2017.  In view of the persistent pain and swelling over right middle finger, he was referred to the Orthopaedic Clinic of the POH for further assessment.

8.  On 3 August 2017, the applicant attended the Orthopaedic and Traumatology out-patient clinic of POH (“the O&T clinic”) for treatment of his right middle finger swelling and left wrist pain.  Physical examination revealed:-

(1)     Pain upon left wrist movement; and

(2)     Swelling over his right middle finger volar side.

The applicant’s left wrist pain was treated conservatively.  His right middle finger swelling was treated with operation on 19 December 2017.  Upon his last follow-up with the O&T clinic on 4 January 2018, the applicant complained of residual pain at his right middle finger. The wound was healed.

9.  Between 10 January 2018 and 31 January 2018, the applicant attended 2 sessions of physiotherapy at the Physiotherapy Department of the Tin Shui Wai Hospital for treatment of his right middle finger swelling and wound pain.  In both sessions, objective findings revealed, amongst other things, swelling, increased temperature and tenderness over right middle finger.  In the first session, the applicant failed to perform right-hand grip strength test, and his left-hand grip strength was 29 kgf. In the second session, the grip strength of the applicant’s right and left hand were 6 kgf and 29 kgf respectively.  His right hand was treated with magnetic therapy and ice therapy. Right finger active mobilization was encouraged.

Examination of the applicant by Dr Fu Wai Kee

10.  The applicant was examined by a specialist in Orthopaedics & Traumatology Dr Fu Wai Kee on 13 May 2021.  His complaints to Dr Fu included the following:-

(1)     right middle finger pain; 

(2)     right forearm and elbow pain;

(3)     low back pain; and

(4)     left wrist pain.

11.  After examining the applicant, Dr Fu gave the following opinion in his medical reports dated 20 July and 23 September 2021 respectively:-

(1)     The applicant’s clinical picture is compatible with soft tissue injury of right middle finger, left wrist, back and neck.  These should be the result of the Accident.  There is no evidence of pre-existing pathology in his neck, left wrist and back;

(2)     The accident should have caused minor sprain injury of the applicant’s right middle finger;

(3)     The permanent impairment of whole person should be 3% for the residual pain in the applicant’s back, left wrist and right middle finger, and the loss of earning capacity should also be 3%; and

(4)     The sick leave the applicant received is acceptable.

The applicant’s monthly earnings at the time of the Accident

12.  At the time of the Accident, the applicant was paid a daily wage of $750, and he worked for about 24 to 26 days a month.  I accept the submission of the applicant’s counsel Mr Ho that it is reasonable and appropriate to adopt 25 working days a month, giving monthly earnings at the time of the Accident at $18,750 ($750 x 25).

Loss of earning capacity

13.  The Form 9 stated that the applicant suffered from “multiple injuries resulting in left wrist pain” and that the loss of earning capacity caused by the injury was 0.5%.

14.  In light of the comprehensive and detailed analysis by Dr Fu, I prefer his assessment of the loss of earning capacity to the Board’s assessment. Apparently, the Board only took into account of the applicant’s left wrist pain but did not take into account of the applicant’s residual pain in the applicant’s back and right middle finger, which Dr Fu has taken into account. I would adopt 3% loss of earning capacity in assessing compensation under section 9.  The applicant’s appeal is therefore allowed. 

Compensation for permanent partial incapacity - section 9 of the Ordinance 

15.  Section 9(1)(b) of the Ordinance provides, in pertinent part, that where permanent partial incapacity results from the injury the amount of compensation shall be, in the case of an injury not specified in the First Schedule of the Ordinance, 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 permanently caused by the injury in any employment which the employee was capable of undertaking at the time.  The compensation which would have been payable in the case of permanent total incapacity is provided for in section 7.  Section 7(1)(a) in turn provides that where permanent total incapacity results from the injury, the amount of compensation shall be, in the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 96 months’ earnings or 96 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(a) specified in the first column of that Schedule, whichever is less. 

16.  The applicant’s injury was not an injury specified in the First Schedule and hence s 9(1)(b) applies.  As the applicant’s monthly earnings at the time of the Accident ($18,750) is less than the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(a) specified in the first column of that Schedule, applicable at the time of the Accident (ie $26,070), I shall adopt the lesser amount of $18,750 for the calculation of section 9 compensation.

17.  Therefore, the compensation for permanent partial incapacity (section 9) shall be as follows:-

$18,750 x 96 x 3% = $54,000

Compensation for temporary incapacity – section 10 of the Ordinance

18.  Section 10(1) of the Ordinance provides, in pertinent part, that where temporary incapacity results from the injury of an employee, the compensation shall be the periodical payments thereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration of the incapacity, and that such periodical payments shall be at the rate proportionate to a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment during the period of the temporary incapacity after the accident.  Section 10(2) provides, inter alia, that for the purposes of section 10, a period of absence from duty certified to be necessary by a registered medical practitioner or an Ordinary Assessment Board shall be deemed to be a period of temporary incapacity.

19.  In the Form 9, the Board certified the following periods of absence from duty as necessary as a result of the applicant’s injury:-

(1)     From 27 June 2017 to 31 July 2017 (35 days);

(2)     From 3 August 2017 to 1 February 2018 (183 days); and

(3)     From 30 May 2018 to 3 June 2018 (5 days). 

20.  In the premises, compensation for temporary incapacity (section 10) is assessed as follows:-

     $18,750 per month x 4/5 x 223 days/30 days = $111,500

Payment of medical expenses – section 10A of the Ordinance

21.  Section 10A(1) provides, in pertinent part, that if, in any employment, personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury.  Section 10A(3) provides, inter alia, that medical expenses which the employer is liable to pay shall be payable in accordance with the Third Schedule in respect of the period during which the employee receives medical treatment, until the attending registered medical practitioner certifies that in his opinion, no further treatment is required.  Paragraph 2 of the Third Schedule provides that where an employee is given medical treatment other than as an in-patient in a hospital, the medical expenses payable by the employer are the total amount of the medical expenses incurred or the total amount at the rate of $300 for each day on which medical treatment is given, whichever is the less.

22.  Having considered the documentary evidence in support of the applicant’s claim for medical expenses in the total amount of $685, I am satisfied that the claim has been proved and so I award the applicant $685 as compensation under s 10A.

Periodical payments

23.  The applicant shall give credit to the periodical payments in the total sum of $63,500 already paid by the respondent to him. 

Summary

24.  In summary, the compensation is assessed as follows:- 

Section 9	$54,000
Section 10	$111,500
Section 10A	$685
	________
	$166,185
Less:  periodical payments	($63,500)
	________
Total:	$102,685
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Order

25.  I make the following orders:-

(1)     That the respondent do pay the applicant compensation in the sum of $102,685. 

(2)     That there be interest on the said sum of $102,685 at half judgment rate from 27 June 2017 to the date of judgment, and thereafter at judgment rate until full payment.

(3)     There be a costs order nisi that the respondent do pay the applicant costs of these proceedings, with certificate of counsel.

(4)     The costs order nisi will be made absolute 14 days from the date of the judgment if no application is made to vary it.

(5)     The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations. 

26.  I thank Mr Ho for his assistance.