TIN YUET SHEUNG v. CARE FOR MUMI SERVICE LTD

DCEC 472/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 472 OF 2013

--------------------

-------------------------------------------------

ASSESSMENT OF COMPENSATION

-------------------------------------------------

Introduction

1.  The applicant was employed by the respondent to work as a doula for a client of the respondent residing in Tai Po. The applicant and the respondent had a written contract (“the Employment Contract”). The respondent had back-dated it to 9 July 2012 to reflect the actual date of commencement of work by the applicant.

2.  The applicant claims against the respondent for compensation for her injury sustained in the course of her employment on 15 July 2012 pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).

3.  On 15 November 2013, judgment on liability was entered in favour of the applicant with compensation to be assessed (“the Assessment hearing”).

4.  At the outset of the Assessment hearing before me today, Ms Leung, the applicant’s solicitor, indicates that the applicant would no longer wish to proceed with her appeal against the assessment of 2% loss of earning capacity permanently caused by the injury by the Employees’ Compensation (Ordinary Assessment) Board in the Certificate of Assessment issued on 1 August 2013.

Absence of respondent

5.  Ms Leung draws my attention to the fact that the respondent has not turned up throughout the proceedings.

6.  On 15 March 2013, the applicant commenced the present action. 

7.  By a special resolution passed on 29 July 2013, the respondent was voluntarily liquidated. 

8.  On 16 August 2013, Mr Chung Cheuk Ming wrote to inform the court of the voluntary liquidation of the respondent and his appointment as the liquidator of the respondent.

9.  Judgment on liability was entered in favour of the applicant on 15 November 2013 in the respondent’s absence.

10.  The respondent chooses not to attend the Assessment hearing.  Mr Chung Cheuk Ming wrote to inform the court the day before (10 April 2014), stating:-

“We refer to the court hearing on the above case on 11 April 2014, having considered the overall situation of the creditors’ voluntary liquidation, we would like to inform the Court that we do not intend to attend the hearing on 10 April 2014 to save time and costs”.

11.  The applicant accordingly proceeds to prove her claims.  After making a few revisions to her witness statement dated 13 December 2013, the applicant adopts it as her evidence in chief.

The Accident

12.  On 15 July 2012, whilst washing dishes in the kitchen of the Tai Po premises of the client of the respondent, a bowl which was placed next to the sink suddenly fell.  In catching the falling bowl, the applicant hit her right hand against the door of the kitchen cabinet underneath the sink (“the Accident”).  As a result, the applicant suffered from right thumb injury resulting in right thumb pain, scar weakness and numbness and rupture extensor pollicis longus (EPL).

13.  Prior to the Accident, on 13 June 2012, the applicant once slipped at home.  She fell and landed on her outstretched right hand and sustained injury to her right wrist.  X-ray showed fracture of right distal radius with minimal displacement.  She recovered afterwards and worked as a doula.

Quantum

14.  According to the medical report of Dr Wong Suk Kwan (“Dr Wong”) of A&E Department of Alice Ho Miu Ling Nethersole Hospital (“Nethersole Hospital”) dated 26 March 2013, the applicant was examined by her on 15 July 2012.  Dr Wong recorded therein as follows:-

“3. Diagnosis: Mallet finger (R thumb)

Description: Her right thumb was hit on cabinet on 15/7/2012. There was mild tenderness on right thumb with decrease in joint movement. She was referred to orthopaedics clinic for follow up”.

15.  Dr Chow Esther Ching San (“Dr Chow”) of the Department of Orthopaedics & Traumatology of Nethersole Hospital recorded in her medical report as follows:-

“ ... On clinical examination, there was loss of function of her right extensor pollicis longus (EPL) tendon. There was mild tenderness and swelling at the Lister’s tubercle at the distal radius. Private MRI was done and confirmed rupture of the EPL tendon. Closed rupture of the EPL tendon is known to be associated with an undisplaced distal radius fracture, usually present at 4-6 weeks after the initial injury. Therefore, the accident on 15/7/2012 is not the direct cause of her tendon rupture.

Surgery with tendon transfer (Extensor indicis propius to EPL transfer) was performed on 25/7/2012. She was referred to the occupational therapy and physiotherapy department for rehabilitation after the operation. She was regularly seen at the clinic with good progress. Her progress was noted to be satisfactory and had reached plateau at 3 months post-injury. Her right thumb interphalangeal joint extension was full with full power. The active range of motion of her thumb and other fingers are all full. She was suggested to attend the medical assessment board and to resume duty. However, patient had difficulty to resume duty and she received regular work hardening exercise at the occupational therapy department. Her last occupational assessment was done on 26/3/2013 and she can sustain bilateral lifting up to 28lbs. She can marginally match her work capacity and suggested to resume duty with special arrangement to avoid certain work task.

She also complained of right hand numbness since Jan 2013 and clinically suggestive of carpal tunnel syndrome and she was treated conservatively with a night splint”.

16.  Dr David Ip (“Dr Ip”) of Asia Medical Centre recorded in his medical report dated 18 February 2013 as follows:-

“Our patient Madam Tin suffered accidental injury on duty on 15 July 2012 to the Right hand and wrist area with forceful blunt injury to the above area of the body. The force of the injury was such that Madam Tin was immediately unable to extend the right thumb, and subsequent surgery in Tai Po Nethersole Hospital confirmed complete rupture of the right thumb extensor tendon. As the injury force was severe, the tendon ends were frayed thus preventing direct repair & tendon transfer involving another wound to harvest the extensor indicis was done. Post-operatively, the power of right thumb extension was diminished with weakened power grip and persistent pain both at the extensor side and flexor side of the right wrist, as well as insidious onset of right hand numbness in the distribution of the right median nerve despite receiving therapy in Hospital Authority hospital. Madam Tin subsequently was seen & now being followed up at Asia Medical Pain Center, where bedside testing with advanced equipment confirmed persistent tendinitis affecting Both the extensors as well as flexor tendons of the right wrist. As her work involves heavy mental labour, and bedside testing confirmed active tendinitis, she is deemed Not to have reached Maximum Medial Improvement and is deemed Unfit for any OAB (labour assessment board).

Latest Progress

During the latest clinic visit on 18 Feb 2013, physical examination revealed the following:-

Tenderness and swelling of flexor tendons as well as extensor tendons of the Right Wrist

Persistent Numbness of the Right hand fingers in the distribution of the median nerve

Sign of synovitis of the right wrist flexor side

Persistent Pain at the wounds, along the extensor tendon repair site as well as flexor tendinitis”.

17.  Dr David Ip (“Dr Ip”) recorded in his medical report dated 26 September 2013 as follows:-

“ ... Examination as well as testing with bedside equipment confirmed inflammation of the right wrist extensor tendons with associated swelling and poor range of motion with respect to flexion, extension, pronation and supination. Ms Tin was started on pain treatment in the form of low lever laser therapy, ultrasound therapy, TENS and ice-compression treatments. Ms Tin was also given methycobal and B vitamins to help with her right hand numbness.

Progress

We treated Ms Tin with an intensive course of pain treatment from February to March 2013. Ms Tin made slow but sure improvement in the level of Visual Analogue Pain Score which decreased from the initial score of 8 out of 10 to 5 out of 10. After the therapy, the right hand numbness and stiffness also improved. Sick Leave was given by Asia Pain Center from 17^th February 2013 to 2^nd April 2013”.

18.  Dr Ip estimated the percentage of permanent impairment totalling 7% as follows:-

(1) 3% for chronic right wrist pain of the dominant right hand;

(2) 2% for chronic right wrist stiffness and scarring; and

(3) 2% for chronic right hand numbness.

19.  After the Accident, the applicant received physiotherapy treatments.  According to the physiotherapy report of Ms Ly Ying Fong Connie (Ms Ly) of Tuen Mun Hospital dated 20 March 2013, the applicant had undergone altogether 16 treatment sessions.  She had received exercise therapy, magnetic field therapy, microcurrent therapy, scar massage, whirlpool exercise and monochromatic infrared energy therapy. 

20.  The applicant had also attended occupational therapy treatments.  According to the occupation therapist report of Ms Jim Ho Yan Bonnie of the Occupational Therapy Department of Tuen Mun Hospital dated 11 April 2013, the applicant had undergone a total of 30 sessions of treatment commencing from 2 August 2012 to 26 March 2013.

21.  The applicant complains that her right hand has remained weak after the Accident.  She is not able to carry heavy weight.  As a result, she has to rely on a trolley when doing shopping.  Initially she has not been able to perform household chores such as cooking, cleaning and clothes washing.  She also cannot wring a towel or chop a chicken into pieces.

Pre-accident income

22.  According to the Employment Contract, the applicant’s basic salary was $11,000.  She would receive $30 more each day if she opted not to require the client of the respondent to provide her with meal.  She worked 26 days per month.  According to Form 2 dated 16 July 2012, the applicant’s pre-accident monthly salary was $11,780 ($11,000 + ($30 x 26 days)).  The applicant adopts such sum as the basis for calculation of her compensation under the Ordinance.

Sick leave period

23.  The applicant was granted intermittent sick leave from 15 July 2012 to 18 July 2013, 10 September 2013 and 11 March 2014, totalling 360 days (deducting 11 days of statutory holiday).

24.  The applicant has resumed work as a doula since September 2013 with residual pain and disabilities.

Compensation under section 9 of the Ordinance

25.  As a result of the Accident, the applicant suffered from right thumb injury resulting in right thumb pain, scar, weakness and numbness and closed rupture of the EPL tendon.  The applicant had undergone surgery.  Up to this date, she is still suffering from right wrist pain, numbness and stiffness.

26.  In the Certificate of Assessment issued on 1 August 2013, the applicant was assessed to suffer from 2% loss of earning capacity.

27.  The applicant claims against the respondent for $16,963.20 ($11,780 x 72 x 2%) under section 9 of the Ordinance.

Compensation under section 10 of the Ordinance

28.  The applicant was granted a total of 360 days sick leave (having deducted 11 days of statutory holiday).  The applicant asks that she be entitled to intermittent sick leave until 11 March 2014.

29.  The applicant claims against the respondent for $113,088 under section 10 of the Ordinance ($11,780 x 360/30 x 4/5). 

Section 10A Compensation

30.  The applicant had attended Nethersole Hospital (including follow up at the orthopaedic clinic, physiotherapy and occupational therapy) and Asia Medical Centre for treatment and incurred medical expenses.  The applicant claims against the respondent for $13,441 under section 10 A of the Ordinance.

Periodical payments

31.  In assessing the employees’ compensation, the applicant shall give credit to the sum of $66,038.03 already paid by the respondent to her.

Interest

32.  The applicant also claims interest at half of the judgment rate from the date of the Accident to the date of judgment.

Summary

33.  I have no basis to doubt that the applicant has made out her claims against the respondent under the Ordinance as set out above.  In summary:-

Conclusion

34.  Compensation is assessed in the sum of $77,454.17.  Interest shall run at half judgment rate from the date of the Accident until the date of judgment and thereafter at the judgment rate until full payment.

35.  Ms Leung has not drawn my attention to any outstanding costs order.  I shall order the respondent to pay the costs of these assessment proceedings to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.