KO WAI MING v. EAST ASIA TEXTILES LTD

DCEC 813/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 813 OF 2002

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JUDGMENT

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Applicant's claim

1. On 29/6/00 the Applicant was injured when he, in the course of employment, stepped backwards and fell. He suffered back injury. He now claims for compensation under sections 9, 10 and 10A under the Employees' Compensation Ord. Cap. 282.

Agreed Facts

Nature of the Applicant's job

3. The Applicant was employed by the Respondent in the weaving factory as someone who connect threads from the spools to the weaving machine and comb the threads. According to him he and another worker had to push the spools of different sizes which were at least over 1,000 lbs into position in the machine before he would connect the thread to the weaving machine.

Applicant's injury

4. According to 2 medical reports from Tuen Mun Hospital, the X-ray of the Applicant showed degenerative changes with marginal osteophytes and spondyloithesis at L4/5 level. Physical examination found that there was no lower limb neurological deficit. He had pain around the lower lumbar spine.

5. MR1 of the lumbar spine showed spondylosis with protruded discs at multiple levels and spinal stenosis at L/45 level caused by the bulging L4/5 disc and ligamental flavum hypertrophy.

6. According to his doctor Dr J D Hooley he agreed with Dr. Chun (Respondent's expert) regarding pre-existing degenerative lumbar disc disease and it was likely that the Applicant had such symptom at least to some extent prior to his injury.

7. Dr. Hooley in his letter to the Applicant's solicitor dated 3 September 03 "place a proportion of perhaps 30 to 50% of this impairment to his current injury. This would relate to about a 2 to 3.5% impairment of the whole person, not too dissimilar to that given by Dr. Chun".

S.9

8. I have to consider whether I should adopt the Hong Kong Paper Mills Ltd v Chan Hui-lun 1981 HKLR 556 approach and under S.9(1A) or the assessments of Dr Hooley, Dr Chun for calculating the compensation for the Applicant's permanent partial incapacity.

9. S.9(1A) states :-

"	(1)	Where -
	(a)	permanent partial incapacity results for an injury or a combination of injuries (whether or not specific in the First Schedule); and
	(b)	the percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including without limiting the generality of the foregoing -
		(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and
		(ii) his qualifications, previous training and experience,
	the amount of compensation shall be 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 or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time".

10. The Applicant said that moving of spools depends on workload. If the machines were working then no spools need to be moved to the machines. The pushing of spools is quite strenuous. After the new spool was put in place he would comb the yarn before attaching the thread of the new spool. For combing the yarn he needed to move forwards and backwards for about 10 minutes. That was not difficult.

11. After the accident he had the back pain and had to use a stick when walking because his left leg lacked strength.

12. He agreed that he was employed as a "接頭" and his duty was to comb and connect threads. There were labourers employed to move spools. He just helped to move the spools when he did not have work. His duty did not require him to move spools. Combing and connecting threads do not require heavy workload. When the machine was working he did not have to work and can rest or walk around. Special technique was required to connect the thread to the machine. Depending on the size of the spool and the thread one spool lasted from a few days to a month.

13. According to Kenny Lam the deputy Factory Manager of the Respondent, the factory employed 2 labourers to move the spools each shift. There were 3 shifts a day and there was only 1 worker for connecting threads.

14. Both Dr Hooley and Dr Chun agreed that the Applicant should avoid carrying heavy objects.

15. If it were his duty to move the spools of course he would not be able to resume the job he had before the accident. However even according to him his moving of the spools was gratuitous. It was not his duty and he was not obliged to move the spools. The factory employed 2 labourers to do that job. The combing of threads according to him involved bending and moving forward or backward. He said it was not difficult to do and that it did not require heavy workload. Dr Chun opined that it involved natural movement of the body including the back, hip and leg.

16. Dr Hooley in his first report stated "the normal history of such an injury is for improvement to occur with time......" the doctor is of the opinion that he would be unfit to return to any form of heavy work and that if some form of lighter duty could be found for him that ideally involved varying periods of standing, walking and sitting then he would be fit to do that.

17. Dr Chun said that the Applicant should be able to return to his pre-injury work so long as he avoids carrying heavy objects.

18. Since the nature of the Applicant's job was only to comb and connect threads which do not require strenuous labour I agree with both doctors that he is able to continue with his pre-injury work. There are no special circumstances to assess compensation in accordance with S.9(1A) and the Hong Kong Paper Mills formula.

Appeal against the Medical Board's assessment

19. The Medical Board after review assessed the loss of earning capacity of the Applicant to be 5%. Both Dr Hooley and Dr Chun are of the opinion that the permanent impairment is 2-3.5%. The Respondent is prepared to accept the Board's finding. I am not prepared to upset the Board's assessment.

Compensation under S.9

20. By reasons aforesaid I assess compensation under S.9 to be $12,764.70 x 72 x 5% = $45,952.90.

21. If I erred in not adopting the Hong Kong Paper Mills formula, then according to statistics salaries of messengers, watchman and guards at cotton knitting industry at 2000 was $6,679.00 p.m. The compensation under S.9(1A) should be :-

	$[(12,764.70 - 6,679)/12,764.70 x (12,764.70 x 72)]
=	0.47676 x 919,058.40
=	$438,170.40

Periodical Payments

22. The Applicant has been paid periodical payments for 24 months. The Applicant now applies for a further 12 months. The Applicant sustained injury on 29/6/2000. He was already assessed by the Medical Board on 6/3/2002 to have suffered permanent partial loss of earning capacity. On 27/5/2002 Dr Lam Shun-chung of Tuen Mun Hospital stated that the Applicant's condition was stable but was pending re-assessment, so were the 2 Medical Certificates dated 28/6/2002 and 23/8/2002.

23. Dr. Chun is of the opinion that for the type of injury suffered by the Applicant sick leave for 3 months is reasonable and sick leave for 2 years is much more than sufficient.

24. As by 6/3/2002 the Applicant had been assessed by the Medical Board as having suffered loss of earning capacity permanently I do not consider it right for the Applicant to have further periodical payments other than the 24 months he had received.

25. The sick leave certificate issued by Dr Wong Wing-keung dated 30/10/2002 was only for back pain but not for the back injury.

26. Compensation under S.10 should therefore be $12,764.70 x 4/5 x 24 = $245,082.24.

Compensation under S.10A

27. The medical expenses has been agreed at $1,980.00.

Compensation payable under S.9, 10 and 10A

28. The total compensation payable less the amount already paid is therefore

	$(45,952.90 + 245,082.24 + 1,980) - 250,751.83
=	$42,263.31

29. In the premises there be judgment for the Applicant in the sum of $42,263.31 with interests at 4% p.a. from 29 June 2000 until 10 October 2003 and thereafter at judgment rate.

30. Costs to the Applicant.

31. Applicant's own costs to be taxed in accordance with Legal Aid Regulations.