MA KWAN MING v. EATING GOOD LTD

DCEC 1496/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1496 OF 2011

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BETWEEN

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JUDGMENT

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Background

1.  This is the applicant’s application for employees’ compensation pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”). The applicant has already obtained judgment on liability against the respondent on 18 January 2013.  The present hearing is only concerned with assessment of the appropriate compensation to be awarded to the applicant.  The defendant is absent at the hearing and hence the applicant’s evidence is not being challenged at all.

2.  At the time of the accident on 15 April 2011, the applicant was employed as a cook by the respondent and was working in the kitchen of the respondent’s restaurant at Ground Floor, 211 Fa Yuen Street, Kowloon, Hong Kong.  At about 9:00 pm, he was frying food at the stove.  Suddenly, the stove spurted flame.  When the applicant dodged away from the flame, the left side of his body hit against a rectangular metal pillar.  As a result, the applicant sustained personal injuries.

3.  The applicant was born on 28 October 1975 and was aged 35 at the time of the accident.

4.  After the accident, the applicant felt pain at his neck, left shoulder and left hand, but the pain was mainly at his left shoulder and left hand.  He attended the Accident & Emergency Department of Kwong Wah Hospital for medical treatment.  As there were too many patients at the hospital, the applicant’s supervisor advised the applicant to go home to take rest instead of waiting at the hospital for consultation and hence the applicant left the hospital.  The applicant re-attended the hospital on the next day for treatment and was discharged on the same day.

5.  The applicant was then referred to the out-patient clinic of the Department of Orthopaedic & Traumatology of Kwong Wah Hospital for further care and management.  He also received physiotherapy treatments at Tseung Kwan O Hospital and occupational therapy treatments at Kwong Wah Hospital.

6.  The applicant was granted with the following periods of sick leave for a total of 458 days (net of 15 days of statutory holidays):-

(i)  16.4.2011 to 28.9.2011 – 162 days (net of 4 days of statutory holidays)

(ii)  30.9.2011 to 1.8.2012 – 296 days (net of 11 days of statutory holidays)

7.  Having considered all the evidence and the applicant’s submissions carefully, I agree that the applicant is entitled to the compensation under sections 9, 10 and 10A of the Ordinance as computed below.

Pre-accident average monthly earnings

8.  According to paragraph 6 of the applicant’s witness statement, the applicant started to work for the respondent on 18 January 2011 as a cook.  In paragraph 7 of the applicant’s witness statement, the applicant stated that there was a written confirmation for the said employment but he does not keep a copy of the same.  In the said written confirmation, the applicant and the respondent stipulated that the monthly salary of the applicant was HK$20,000.  The applicant was paid by the respondent in cash.

9.  The respondent had issued 3 pay slips regarding the payment of salaries to the applicant for the period from the commencement of employment (ie 18 January 2011) to the month immediately preceding the date of the accident (ie March 2011):-

(i)  Salary payment of January 2011 (not full month) – HK$10,356.00

(ii)  Salary payment of February 2011 – HK$20,000.00

(iii)  Salary payment of March 2011 – HK$19,334.00 (deducted one day salary)

10.  Therefore, the average monthly salary for February 2011 and March 2011 was HK$19,667.

11.  However, in the Notice by Employer of the Death of an Employee or of an Accident to an Employee resulting in Death or Incapacity (Form 2) dated 20 May 2011, it is reported by the respondent that the applicant’s basic salary was about $20,000.00 per month.  Further, free food was provided to the applicant with a value of $10 per person.

12.  At the hearing today, the applicant gives evidence that he was given 2 meals a day and the value of the food provided is $10.00 per meal.  Since he worked about 26 days per month at the material time, the value of the food supplied to the applicant each month should be $520.00 per month (ie HK$10 x 2 meals x 26 days).

13.  In view of the above, the applicant submitted that the pre-accident average monthly earnings should be HK$20,187.00 (ie HK$19,667.00 + HK$520.00). Nevertheless, as this claim based on the food provided was not raised in the application or the witness statement, the applicant agrees not to pursue with this claim any more.

14.  Thus, I accept that the applicant’s pre-accident monthly earnings computed pursuant to section 11(1) of the Ordinance was $19,667.00.

Compensation under section 9 – Permanent Partial Incapacity

15.  According to the medical report dated 23 August 2011 prepared by Dr Chiang Hoi Kar of Accident & Emergency Department of Kwong Wah Hospital, when the applicant was examined on 16 April 2011, there was no deformity of his left shoulder but no active shoulder movements was noted.  There was tenderness over the acromioclavicular joint and proximal humerus of the left shoulder.  Pinprick sensation was mildly decreased over the deltoid, while sensation over the forearm and hand was symmetrical.  Tenderness was also elicited over trapezius and paraspinal muscles of the cervical spines.  Plain radiograph of his cervical spines and left shoulder showed no fracture or dislocation.  When followed up by a consultant on 26 April 2011, the ranges of neck and left shoulder movements were full on examination.  He was assessed again on 3 May 2011 and there was tenderness over his trapezius.  Tenderness was also noted over left upper trapezius on 17 May 2011.

16.  According to the report of Dr Lo Oi Lam Irene of the Department of Orthopaedic & Traumatology of Kwong Wah Hospital dated 4 August 2011, the applicant was seen on 23 June 2011 and on examination, he had soreness in his left supraspinatus and mild weakness (grade 4) in active shoulder abduction and external rotation, limited by pain.  The passive range of motion was full.  X ray of the left shoulder was unremarkable.  The provisional diagnosis was Left shoulder contusion with possible partial rotator cuff tear.

17.  According to the physiotherapy report prepared by Tseung Kwan O Hospital dated 6 July 2011, the applicant had neck pain and tenderness at left upper trapezius and scapular region, but the left shoulder range of motion was improved.

18.  However, according to the report of the occupational therapy department of Kwong Wah Hospital dated 30 April 2012, the final work assessment of the applicant was that he felt only 20-30% recovery of left shoulder and arm function.  There were increased pain over left neck and whole left arm, persistent numbness of left hand and fingers even with gentle movement, limitation AROM of left shoulder in all directions, left hand grip deteriorated from 36 kgf to 30 kgf, 71% of the right hand, left hand pinch grip 7.5 kgf, 88% of right side, lifting strength of left arm 77 lbs, 66% of right side, lift strength of left hand 30lbs, 37% of right side, and bilateral lifting 47.5 lbs from floor to hip. The applicant was able to carry a load of 32.5 lb for 50 meters, but complained of moderate pain over left side neck and left upper arm and also felt dizziness.  The applicant’s physical ability did not meet his job demands due to limited lifting capacity of his left arm.

19.  The applicant was examined by the Employees’ Compensation (Ordinary Assessment) Board on 1 August 2012 and was assessed to have 1% loss of earning capacity permanently caused by multiple injuries resulting in left shoulder pain and weakness and the periods of absence from duty necessary as a result of the injury were from 16 April 2011 to 28 September 2011 and from 30 September 2011 to 1 August 2012. A Certificate of Assessment (Form 7) was issued on 15 August 2012.

20.  The applicant filed a Notice of Appeal with this Court on 8 September 2012 against the said assessment.

21.  For the purpose of the present proceedings, the applicant appointed Dr Wong See Hoi (“Dr Wong”) as his orthopaedics expert and he was examined by Dr Wong on 28 November 2012 for preparing his own expert medical evidence.

22.  On the examination by Dr Wong, the applicant’s present complaints are (1) intermittent and daily attacks of neck and left shoulder pain especially in the morning, lifting heavy object like a 5-kg pack of rice for a distance of about 1 block and lying prone.  Intake of analgesics 1-2 times a day for relief; (2) pins and needles sensation over posterior aspect of left shoulder about once every 1-2 days and lasted for 5-10 minutes chiefly in the morning and on exertion; and (3) weakness of left whole upper limb.

23.  According to Dr Wong, for the applicant’s left shoulder injury, the medical treatments received by the applicant were standard and appropriate but seemed failed to relieve the applicant’s shoulder symptoms satisfactorily.  Dr Wong believes that the partial tear of supraspinatus tendon, which was confirmed by the MRI of the applicant’s left shoulder, was caused by the subject accident.  Dr Wong states in his report that examination of the applicant’s left shoulder showed localized and full range of active movement but the applicant complained of end range pain. The provocative tests for supraspinatus were positive.  X-ray of left shoulder showed normal alignment and preserved disc space.  Dr Wong believes that arthroscopy for treatment of the applicant’s partial supraspinatus tendon tear may be beneficial to the applicant.

24.  For the applicant’s neck injury, Dr Wong opines that the medical treatments received by the applicant were standard and appropriate but seemed failed to relieve the applicant’s neck symptoms satisfactorily.  Dr Wong opines that the MRI of the applicant’s neck suggests a mild degree of cervical spinal degeneration.  Although degeneration was not caused by the subject accident, Dr Wong believes that the applicant’s present neck pain was likely triggered as a result of the subject accident as the applicant did not have any neck problem and managed his work as a cook with no difficulty before the subject accident. Dr Wong states in his report that examination of the applicant’s neck showed tenderness over his neck and upper thoracic especially over left side.  The applicant’s neck range of movement was largely normal but he applicant complained of pain at end range.  There was no clinical sign of any upper limb neurology.  The applicant’s residual neck pain was compatible with localized soft tissue inflammation over the corresponding area.

25.  According to Dr Wong, the applicant’s prognosis was fair.  The applicant was expected to have residual left shoulder pain and weakness especially on exertion like lifting and carrying heavy objects.  He would also encounter inconvenience on up-reaching and overhead movements.  Since the applicant used his left hand to hold the wok when frying food, with residual left shoulder pain and weakness with partial rotator cuff of left shoulder, the applicant would not be able to hold a heavy wok with his left hand repeatedly with no break.  The applicant would also have difficulty in delivering heavy food materials.  In view of these conditions, Dr Wong opines that the applicant is not able to resume his pre-injury job as a cook and is more suitable for jobs that are sedentary in nature such as watchman or cashier, etc.

26.  As to the loss of earning capacity, Dr Wong opines that the applicant has suffered 6-8% of loss of earning capacity for the neck and left shoulder injuries.

27.  In relation to the sick leave, Dr Wong agrees with the sick leave granted to 1 August 2012.

28.  By virtue of section 7(1)(a) of the Ordinance, as the applicant was aged 35 at the time of the accident, the appropriate “multiplier” is 96. 

29.  However, the applicant relies on section 9(1A) of the Ordinance to calculate his compensation of permanent partial incapacity under section 9.  The reasons are that:-

(a)  In the light of the orthopaedic expert evidence, the applicant has sustained partial tear of supraspinatus tendon of his left shoulder and neck soft tissue injury. The applicant is not able to hold a heavy wok with his left hand repeatedly with no break and he would have difficulty in delivering heavy objects.

(b)  The applicant’s pre-injury job was very physically demanding in nature.  His job nature involved continuously holding the wok with a weight from 3 catties to 5.5 catties for frying food up to 8 hours every day.  Further, he was required to transport cooking ingredients such as frozen meat and vegetables with the weight from about 40 pounds to 45 catties.

(c)  The applicant’s education was only up to form one level and he possesses no work experience other than working as a cook.

30.  In the case of Kwan Yee Chor v Hung Fau Metal Construction Company Limited and Another DECE 520/2001, HH Judge Lok accepted that section 9(1A) should apply in that case and held as follows:-

“In my judgment, there is ample justification for this Court to invoke s. 9(1A) of the Ordinance and to assess a higher loss of earning capacity. The injuries suffered by the Applicant may not appear to be very serious. However, as the Applicant’s pre-accident job would involve a great physical demand on the use of the right wrist, both for the welding operations and the other ancillary tasks such as moving various heavy metal objects in the work sites, the Applicant certainly cannot return to his former employment. Coupled with the fact that the Applicant has only received little education and he does not possess other special skills apart from working as an iron-work worker, the percentage of loss of earning capacity assessed under s. 9(1) of the Ordinance would be substantially less than the percentage of actual loss of earning capacity suffered by the Applicant. Based on the aforesaid, I allow the Applicant’s appeal and assess the compensation for permanent partial incapacity in accordance with the provisions contained in s. 9(1A) of the Ordinance and the formula laid down in Hong Kong Paper Mills Ltd. v Chan Hi-wu [1981] HKLR 556, which was later modified in Lui Kwong Yan v Shui Hing Decoration Works & anr. [1993] 1 HKLR 168”

31.  In view of the nature of the injuries of the applicant, his qualifications, previous training and experience, I accept that the applicant’s case is very similar to the situation in the case of Kwan Yee Chor, supra and he has fallen into “the special circumstances” stipulated in section 9(1A)(b) of the Ordinance. Thus, the applicant should be entitled to compensation calculated pursuant to section 9(1A) of the Ordinance.

32.  Since the applicant’s case falls within section 9(1A) of the Ordinance, the Paper Mills formula should be adopted in calculating the compensation (see Hong Kong Paper Mills Ltd v Chan Hin Wu, CACV 45/1981).

33.  As it is Dr Wong’s opinion that the applicant is more suitable to take up jobs which were sedentary in nature, such as watchman or cashier, I accept that after taking into account of the applicant’s gender, education level and working experiences, the applicant should be more suitable to take up alternative employment as a watchman.

34.  As in the case of Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company, DCEC 237/2007, the statistics published by the Census and Statistics Department can be used to assess the average monthly salaries of guards.  According to the Quarterly Report of Wage and Payroll Statistics (June 2011), the average monthly salaries of a building attendant/guard who is employed under 3-shift system (8 hours per shift) was $8,960.00.  Further, according to the “Table of Average Monthly Salaries of Selected Occupations” published by the Census and Statistics Department, the average monthly salaries of a guard (in security and investigation) were ranged from $7,893.00 to $8,665.00 (as at March 2011 and as at June 2011).  Hence, the median between these three figures is $8,506.00.  I accept that the mean figure of $8,506.00 can be adopted as the income of the applicant’s alternative employment.

35.  Hence, the income of the applicant’s alternative employment is substantially less than his pre-accident average earnings of $19,667.00.  The applicant has suffered about 56.75% reduction in his income computed as follows:-

($19,667.00 - $8,506.00)/$19,667.00 x 100% = 56.75%

36.  Accordingly, I allow the appeal against the assessment of the loss of earning capacity in Form 7, ie 1%, and award a higher percentage of 56.75% to the applicant by virtue of section 9(1A) of the Ordinance.

37.  The compensation under section 9 of the Ordinance is therefore in the sum of $1,071,458.16, computed as follows:-

$19,667 x 96 x 56.75% =$1,071,458.16

Compensation under section 10 – Temporary Incapacity

38.  By virtue of section 10 of the Ordinance, the applicant is entitled to be paid 4/5 of his wages throughout the sick leave period as endorsed in Form 7 and by Dr Wong.  The applicant has received a total of 458 day’s sick leave (net of 15 days of statutory holidays).  The compensation under this section is $240,199.62 computed as follows:-

$19,667.00/30 x 458 x 4/5 = $240,199.62

Compensation under section 10A – Medical Expenses

39.  By virtue of section 10A of the Ordinance, the applicant is entitled to be reimbursed his medical expenses reasonably incurred as a result of the accident.

40.  The applicant incurred a total sum of $1,165.00 as medical expenses and they are all supported by documents.

41.  Thus, the applicant should be awarded the total sum of $1,165.00 as compensation under this section.

Interest

42.  Interest should be awarded at half of the current judgment rate (ie 8% pa x ½ = 4%) from the date of accident (ie 15 April 2011) to the date of the present hearing (ie 25 February 2013).  It is roughly 22.33 months from date of the accident.

43.  Therefore, the award of compensation for interest is calculated as follows:-

($1,071,458.16 + $240,199.62 + $1,165.00) x 4% x 22.33/12  = $97,717.78

Conclusion

44.  The applicant’s total award of compensation is therefore in the sum of $1,410,540.56, as computed below:-

(i)  Section 9	$1,071,458.16
(ii)  Section 10	$240,199.62
(iii)  Section 10A	$1,165.00
Sub-total	$1,312,822.78
(iv)  Interest	$97,717.78
Total	HK$1,410,540.56
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45.  Thus, I order that the respondent do pay the applicant a total compensation of $1,410,540.56 under the Ordinance.

46.  Further interest is also awarded against the respondent after judgment and it shall be at full judgment rate from the date of judgment until full payment.

47.  I also order that the respondent do pay the applicant costs of the assessment of compensation to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the legal aid regulations.