Li Tim Wah v. Wah Yuen Logistics Co Ltd

DCEC 1216/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1216 OF 2011

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ASSESSMENT OF COMPENSATION

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1.This is the assessment of the compensation payable by the respondent to the applicant under the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance).

2.The applicant was employed by the respondent as a cross border container driver.  On 24 December 2010, the plaintiff in the course of his employment, slipped and fell from the driver’s cabin to the ground and sustained injuries as a result (the “Accident”).

3.The respondent did not enter an appearance to contest the claim.  On 17 February 2012, judgment was entered against the respondent on liability with compensation to be assessed.  The applicant’s claim is made pursuant to ss 9, 10 and 10A of the Ordinance. 

4.The respondent was notified of this assessment and is absent at the hearing.

5.The applicant was assessed by the Employees’ Compensation  Board to have suffered 10% loss of earning capacity on 27 August 2012.  On a review on 28 April 2014, the Board revised the loss of earning capacity to 16% after taking into account his psychiatric impairment. The applicant appealed against both assessments.

6.I was referred to the medical report of Dr Tio Man Kwun Peter dated 8 January 2015 (the orthopaedic expert), and, in particular, the following:-

“Mr. Li alleged to have sustained a fall from a container of about 3 feet. He fell backward with his head injured. He remained conscious and was able to get up slowly and drove away from the site slowly. He went to AED NDH by ambulance and was told that X-rays showed collapsed L1. He still complains of persistent but fluctuating back pain with radiation to his left buttock and occasionally to the left thigh. He rates the pain to be 3/10. He has to take medications 4 times daily. There is an overall reduction of 60%. It is aggravated by poor weather, up and down stairs, having sex (claimed divorce because of not able to have sex), sitting for over 5 – 6 minutes at most up to 40 minutes before he has to get up and walk and if he chases a bus. He states that he has to use a walking stick if he has to go out for more than 5 – 6 hours. He notices left lower limb cramps at night 4 times weekly lasting for a few minutes so much so that he has to stretch and relax.

Radiological exam of thoracolumbar spines and pelvis showed right scoliosis of the thoracic spine, lordosis preserved in the lumbar spine, degenerative changes over the thoracic spine, collapsed L1 with 30% collapse, and no other bone lesion noticed.

He was also found to have psychiatric condition.

There was residual pain over his thoracolumbar junction. Updated X-ray shows that there was good healing of L1 collapse and there was residual 30% reduction in height.

The injury was considered to be purely resulted from the Accident with a compatible mechanism.

Orthopedically, the applicant has reached maximal medical improvement.

For his current condition, he should be expected to have difficulty in resuming his duty as a truck driver with much reduced efficiency such as pain over his back when he has to climb on the truck, when he has to sit for long in the truck or upon a bumpy ride. His endurance and power could also be moderately reduced. He can resume other lighter duties such as security guard or a petrol station attendance.

For reference, the degree of whole person impairment and LOEC is considered to be 13.5%.”

7.According to the medical report of Dr Tsai Tsang Wing, David dated 16 February 2015 (the psychiatric expert), the applicant was diagnosed suffering from Adjustment disorder with depressed mood.  Dr Tsai concluded that the injury sustained on 24 December 2010 together with it enduring consequence was responsible for the development of his current psychiatric morbidity, ie the adjustment disorder with depressed mood.  He is rated having 10% Mental and Behavioural Disorder Impairment and his loss of earning capacity is considered to be 10%.  Dr Tsai concurs with Dr Tio’s comment that the applicant might have difficulty in resuming his previous work as a truck driver.  He should continue with psychiatric pharmacotherapy for a period of another 6 to 9 months.

8.The applicant invites the court to adopt 23.5% as his loss of earning capacity.  I have considered the medical experts’ evidence and the extent of his injuries.  I will allow the applicant’s appeal against the Certificate of Assessment dated 10 September 2012 and the Certificate of Review of Assessment dated 12 May 2014.  I adopt 23.5% as the percentage of loss of earning capacity for the purpose of section 9 award.

9.At the hearing, the applicant confirms that as a result of the Accident, he has been on sick leave.  According to the certificate of review of assessment (Form 9), the period of sick leave was granted from 24 December 2010 to 1 September 2012 and from 6 September 2012 to 23 December 2013.  The applicant confirms that during the aforesaid periods, he has been attending follow-up treatment at the government hospital and was not gainfully employed.

10.According the orthopaedic expert Dr Tio Man Kwun, Peter, those sick leaves given should be considered to be reasonable and appropriate taken into the consideration of the severity of the injury, the pre-injury job nature and the presence of the psychiatric condition.

11.The applicant invites the court to extend the period of periodical payments to another 12 months up to 23 December 2013 pursuant to section 10 (5) of the Ordinance.  I was referred to Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2001] 2 HKLRD 803 where Rogers VP stated:-

“…… The mischief sought to be cured by the introduction of the provisions of s.10 was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated.

…… Taking into account the medical certificates which have been produced, it seems to me to be fair in all the circumstances that Mr. Choy should receive compensation for temporarily incapacity for the full three-year period possible…”

12.In the present case, there is no evidence of fraud by either the doctors or the applicant.  I have taken into account the medical evidence, the medical certificates and all the circumstances of the case.  I will allow the applicant the full period of 36 months up to 23 December 2013.

13.In respect of the applicant’s earnings, he made $12,512 in the month preceding the Accident.  For the 12 months preceding the Accident, his average monthly earnings was $14,561.21.  By virtue of s 11 of the Ordinance, $14,561.21 should be adopted since it is more favourable to the applicant.

14.As regards the applicant’s claim under s 10A, the applicant incurred $600 (being $100 for each day of the hospital fee for 5 days and $100 for Accident and Emergency charge).  I shall allow it in full.

Total compensation

15.Section 9 award

$14,561.21 x 72 x 23.5%	$246,375.67
Section 10 award
$14,561.21 x 4/5 x 36 months	$419,362.85
Section 10A award	$600.00
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	$666,338.52

16.I therefore assess the total compensation under ss 9, 10 and 10A at $666,338.52.

17.Interest should run from the date of the Accident until today at half judgment rate and thereafter at judgment rate.

18.As to costs, I order the respondent to pay the costs of the application for compensation to the applicant with certificate for counsel and the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Miss Lorinda Lau, instructed by Joseph Leung & Associates, for the applicant
The respondent was not represented and did not appear