TO WING PIU v. WAISS INTERIOR LTD

DCEC 971/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 971 OF 2009

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BETWEEN

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JUDGMENT

Background

1.  This is a claim for employees’ compensation brought by Mr. To under the Employees Compensation Ordinance ("Ordinance") relating to injuries sustained by him at an accident on 30 August 2008.  Interlocutory judgment was entered against the Respondent on 26 March 2010, for damages to be assessed.

2.  Mr. To was assessed by the Employees' Compensation (Ordinary Assessment) Board ("Board") in October 2009. According to the Certificate of Assessment issued by the Board on 5 November 2009 ("Certificate"), Mr. To suffered left distal radius fracture resulting in left wrist swelling, pain, stiffness and weakness. The period of sick leave certified to be necessary as a result of the injury was from 30 August 2008 to 28 April 2009. Mr. To's loss of earning capacity permanently caused by the injury was certified to be 4%.

3.  Mr. To appeals against the decisions and assessment under the Certificate.

4.  The hearing for assessment of compensation held on 8 September 2010 was conducted in Chinese. The Respondent has taken no part in these proceedings. As Mr. To is legally represented and the medical evidence adduced at trial is in English, this Judgment is handed down in English.

The amount of compensation payable

Section 9

5.  The issue of whether Mr. To suffers partial or total incapacity is essentially a question of fact which the Court has to decide on the evidence before it. Mr. To was assessed by the Board to have suffered 4% permanent loss of earning capacity.   The Board gives no reasons for its assessment, and in Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd. [1991] 2 HKLR 455, the guidance given by the Court of Appeal in relation to the approach of the Court on an appeal from the Board's assessment is that the Court judges the assessment by testing the validity of the Board's conclusions against the total available evidence. 

6.  Mr. To was 46 years old at the time of the accident. He was a plasterer, and was working at a height when he fell from a ladder and fractured his wrist and suffered cuts to his left knee. He had received up to primary school education on the Mainland, and had worked as a casual worker and as a plasterer in construction sites and on decoration works in China, Macau and Hong Kong. Prior to the accident in Hong Kong, he had worked as a plasterer in a construction site in Macau, earning an average monthly salary of $19,687.50.

7.  According to Mr. To, his work as a plasterer required him to move heavy bags of cement, to carry heavy equipment whilst climbing up whilst climbing up heights such as ladders and scaffolding, and to use both hands to hold the tools required for him to put plastering on the wall and on the ceiling. Mr. To also explained that his hands need to be flexible in order to put the plaster on the wall and the ceiling properly.

8.  Mr. To complains that as a result of the injuries he sustained from the accident, he can no longer engage in heavy duty work on construction sites. He can no longer carry the heavy equipment required to remove tiles from surfaces, and his left hand has lost the flexibility, mobility and strength required to enable him to carry out the type of plastering work which he used to do before the accident. As he continues to suffer from residual pain in his left hand, Mr. To claims he has to take periods of rest and can no longer work for long hours at a stretch in the job of mixing cement and water, and this means that there is a risk of the wet plaster drying out in the course of his work.

9.  Mr. To claims that as a result, he can only do simple indoor plastering work on his own, and this caused a fall in his income. 

10.  I appreciate that a plasterer requires strength and mobility of both his hands in order to carry out his work.  However, I regret that the report of Mr. To's expert does not seem to provide objective evidence to support Mr. To's assertion that he has been seriously handicapped in his plastering work by virtue of the loss of strength and mobility in his left hand as a result of the injuries he sustained in the accident. 

11.  According to the report of Mr. To's orthopaedic expert, Dr. Chiang, who examined Mr. To on 5 May 2010, Mr. To told him that there was pain in the left wrist when his outstretched left hand is pushed on a flat surface, that he could carry weights of up to 11 to 12 pounds with his left hand, and that he suffered from a decrease in the range of extension and pronation of the left wrist.

12.  According to Dr. Chiang's report of his examination, there was no significant deformity and no soft tissue swelling or other signs of complex regional pain syndrome noted in Mr. To.  Although Dr. Chiang noted that the muscle bulk of Mr. To's left arm and forearm was decreased when compared with the right side, according to Dr. Chiang's measurements, there was no significant difference in the muscle bulk of Mr. To's arms: arm girth of 27cm on the right and 25.5 on the left; and forearm girth of 25.2 cm on the right and 24 cm on the left.

13.  The range of movement of Mr. To's wrists was also measured. Extension was 75 degrees on the right and 55 degrees on the left; flexion was 85 degrees on the right, and 50 degrees on the left; ulnar deviation was 55 degrees on the right, and 35 degrees on the left; pronation was 75 degrees on the right and 65 degrees on the left.

14.  According to the hand grip trials, there was a recorded improvement in the hand grip when the first trial (24 kgf on the right and 16 kgf on the left) is compared with the fourth (40 kgf on the right and 30 kgf on the left) and fifth (28 kgf on the right and 26 kgf on the left) trials, with the difference in grip between the uninjured right hand and the injured left hand narrowing.

15.  Dr. Chiang records in his report that the power and active range of movement of Mr. To's left elbow and shoulder were preserved. According to Dr. Chiang: "The physical examination had revealed some but not marked decrease in the flexion and extension range of left wrist. There was mild decrease in the end range of the other directions of movement. The overall range of movements could be considered as reasonably preserved."

16.  Dr. Chiang considered that Mr. To's condition may improve with removal of the implants in the wrist, although Mr. To has not been able to afford the procedure.

17.  In the opinion of Dr. Chiang, even before the implant removal, Mr. To was considered to be able to work in lighter duty task of his job prior to the accident, and can work on and off with periods of rest. After the implant removal and a further course of physiotherapy thereafter, Dr. Chiang considered that Mr. To would be able to work in his pre-injury job with some mild reduction in efficiency. He considered that Mr. To suffered a 5% loss in his earning capacity.

18.  Having considered Dr. Chiang's report and Mr. To's evidence, I consider that Mr. To may have exaggerated the extent of his disabilities. I accept that he may not have fully recovered the strength or flexibility in his left wrist, and that it may not be convenient for him to take long periods of rest, but I do not consider that Mr. To would be unable to carry out all the tasks which he described. As Dr. Chiang pointed out, Mr. To may experience some inefficiency in his work, but I do not consider from the evidence that the loss of earnings he has demonstrated can be said to be of a permanent nature, or to be truly reflective of his loss of earning capacity permanently caused by the injury.

19.  Miss Leung who appears for Mr. To argues that the formula adopted in the case of Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981] HKLR 556  and in Lui Kwong-yan v. Shui Hing Decoration Works & Anor [1993] 1 HKLR 168 should be applied in assessing the compensation payable to Mr. To. It was argued that as a result of his injuries, Mr. To can now only work as a casual general worker, earning a salary of approximately $8,500 a month.

20.  Section 9(1) (b) of the Ordinance provides that, in the case of an injury not specified in the First Schedule, the compensation payable 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 in any employment which the employee was capable of undertaking at that time", provided that (under paragraph (ii) of the proviso) the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in the First Schedule and to the Note thereto.

21.  I am not satisfied that there are special circumstances which exist in Mr. To's case which justify the application of the Paper Mills formula. Considering the weakness and stiffness and reduced flexibility of Mr. To's wrist, the percentages of loss of earning capacity for ankylosis set out in items 20, 22, 24 and 26 of the First Schedule to the Ordinance, and bearing in mind the 4% loss of earning capacity as assessed by the Board and the 5% assessment made by Dr. Chiang, I consider that a 5% total loss of earning capacity would be comparable to the range of percentages specified in the First Schedule.

22.  For the above reasons, I am only prepared to award damages under s.9 on the basis of 5% loss of earning capacity, i.e. $19,687.50 x 72 x 5% = $70,875.

Section 10

23.  I am only prepared to award damages under s.10 on the basis of the period of absence from duty certified by the Board in the Certificate, i.e. 8 months.

24.  I therefore find that the compensation payable to Mr. To under section 10 is: $19,687.50 x 8 months x 4/5 = $126,000.

Section 10A

25.  I allow Mr. To's claim for medical expenses in the total sum of $4,809.

Conclusion

26.  The total compensation payable to Mr. To is:

(1)  compensation for permanent partial incapacity	$    70,875
(2)  compensation for temporary incapacity	$  126,000
(3)  medical expenses	$      4,809
	$ 201,684
Less Paid :	$   38,654
Total :	$163,030

27.  Mr. To is entitled to interest on the sum of $163,030 at half judgment rate from the date of the accident, i.e. 30 August 2008, to the date of assessment, and to the costs of the action, to be taxed if not agreed. Mr. To's own costs are to be taxed in accordance with the Legal Aid Regulations.