Wong Loi Tim v. Fuk Lam Engineering Ltd. and Another

DCEC000924/1997

DCEC924/97

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 924 OF 1997

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IN THE MATTER OF AN APPLICATION BETWEEN:

Coram : Deputy Judge W. Leung in Court

Date of Judgment : 10 May 1999

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JUDGMENT

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1. This is a claim by the Applicant against both Respondents for employees' compensation under the Employees' Compensation Ordinance Cap. 282. There is no serious dispute that the Applicant was at the material time an employee of the First Respondent which was a sub-contractor of the Second Respondent and that the Applicant sustained personal injuries by accident arising out of and in the course of the employment.

2. On 27th January 1995, the Applicant was working in a construction site at 8 Wyndham Street, Central, as demolition worker operating a pneumatic drill. Within the limited space of the site, a hydraulic breaker slewed its boom hitting the Applicant at his back and crashing him against the protruding steel bars of the wall.

3. Since this accident, the Applicant has been on sick leave and has never worked again. On 11th June 1998, he was examined by Dr. Lau Hoi Kuen, an orthopaedic specialist who is very experienced in employees' compensation claims. He found three areas of injuries.

(A) Head Injuries

4. There were "swelling, abrasion, one laceration over the right face and fracture of false teeth". The Applicant has persistent symptoms of headache, dizziness, nausea and blurred vision. His new denture does not fit and he cannot eat properly.

(B) Left shoulder

5. The Applicant "had persistent pain over his left shoulder since the accident. There is marked limitation of the movement of his left shoulder. The significant muscle wasting observed over his left shoulder is good evidence to support that his complaint is genuine".

(C) Chest

6. The Applicant "suffered soft tissue injury (contusion) to his left chest after having landed on some metal bars. The pain did not improve after conservative treatment. Moreover he had pain gradually developed over the upper 1/2 of his back". He expected his back and chest pain to be persistent.

7. On the question of permanent incapacity, which is not disputed by the Respondents, Dr. Lau concluded:-

"With his left shoulder problem, Mr. Wong certainly can't return to work as a heavy manual worker (operating pneumatic hammer). The situation is made worse by his post-concussion symptoms, chest pain and high back pain. He may now work in lighter jobs e.g. as a watchman, restroom attendant or cashier in car-park."

8. The applicant now claims (a) compensation for permanent partial incapacity, (b) compensation for temporary incapacity for 3 years and (c) medical expenses. I shall deal with these claims in this order.

I. Compensation for permanent partial incapacity

9. The Applicant was examined by Dr. Edmund K.W. Woo, a neurologist, on 10 August 1998. Dr. Woo in his report gave his opinion as follows:-

"He has mild residual features of headache, nonspecific dizziness, irritability and impaired short-term memory, consistent with the diagnoses of a post-concussional syndrome. Now that 2 and a half years have elapsed since the accident, further improvement in his neurological functions is not expected. The mild cognitive dysfunction accounts for a 2% impairment of the whole person."

10. He later concluded:-

"From the neurological perspective, he should be able to resume his pre-accident job as a pneumatic drill worker. The headache and dizziness may enforce periodic rest during the day, but the loss of earning capacity should not exceed 5%."

11. With further information from Dr. Ho, who has treated the Applicant, Dr. Lau prepared another report which gave the final picture of the injuries. He said:-

"The injury has caused pain in the degenerated biceps tendon as well as the synovitis. There is also post-traumatic adhesion and stiffness of the joint ending up as 'frozen shoulder syndrome'."

12. Taking into account the opinion of Dr. Woo, Dr. Lau concluded in his report,

"I assess Mr. Wong to have suffered in the accident:-

(1) A combined total of 14% of permanent disability,

(2) 40% loss of earning capacity (with the reduction in earning also taken into consideration)."

13. In the witness box, Dr. Lau told the court that he could express the degree of permanent disability by reference to item 9 of the First Schedule of the Employee's Compensation Ordinance Cap. 282. The percentage of loss of earning capacity for a loss of arm at shoulder should is 75%. He would assess the Applicant to have lost 25% of his hand function and the resulting loss of earning capacity would be (75% x 25%) 18.75%. However he regarded 40% as the real assessment of loss of earning capacity.

14. The Applicant's claim for 45% of loss of earning capacity is probably based on the combination of Dr. Lau's and Dr. Woo's conclusions. The Respondents disagree and suggest that the percentage should be 10%.

15. First of all Dr. Brian Choa, a neurologist instructed by the Respondents, examined the Applicant on 22nd January 1999, regarding the symptoms of headache and dizziness. Dr. Choa is of the opinion that these symptoms were probably caused by the radiation of pain from the injured shoulder and not by neurological injury. He concluded"-

"From the neurological point of view, there is no reason why Wong should not be able to return to construction work. I agree with Dr. Woo's assessment of a 3% impairment to this person. There should, however, be no loss of earning capacity attributable to his rather doubtful neurological injury."

16. I must point out at this stage that both neurologists agree that there is a 3% permanent impairment but that their approach to loss of earning capacity had not taken into account the physical injuries which are significant in this case.

17. Dr. David H.F. Cheng, also an orthopaedic specialist experienced in this area, examined the Applicant on 22 January 1999 on the instructions of the Respondents. He agreed with the diagnoses of Dr Lau and concluded,

"From these information and my examination, I think Mr. Wong, at the present, suffered from post-traumatic adhesive capsulitis of the shoulder. This is benign condition, and should improve with exercise. Most cases are self-limiting and recovered on their own".

18. Dr Cheng assessed in accordance with the "Guide to the Evaluation of Permanent Impairment" published by the American Medical Association the Applicant to have "16% of upper extremities impairment which is equivalent to 10% whole person impairment."

19. On loss of earning capacity, he made a calculation by reference to Item 10 of the First Schedule which stipulates that ankylosis of the shoulder joint in optimum position carries 35% loss of earning capacity. He assessed the Applicant to have 25% to 30% impairment to his shoulder and the resulting loss of earning capacity is (30% X 35%) = 10%.

20. I must say I cannot accept Dr Cheng's calculation as correct or a realistic assessment. On evidence, the Applicant's incapacity should be comparable to ankylosis of the shoulder joint rather than 25% to 30% of such condition. On a purely mathematical approach, which is not a satisfactory approach, Dr Lau's calculation based on the complete loss of arm is more logical. On a realistic approach I do not think the Applicant could now earn ($18,000 x 90%) $16,200 per month if he was earning $18,000 per month before the accident.

21. The Applicant was born on 11 October 1941. He is 57 now and was 54 at the time of the accident. He was a farmer in China and in Hong Kong since 1976 worked as a construction site worker. He used to do heavy manual labour job and his arms and hands are important to him. His left arm cannot now perform heavy duties. In the First Schedule, the percentage of loss of earning capacity for loss of arm at shoulder is 75%. I accept Dr Lai assessment of 40% as realistic and reasonable. In fact if the Applicant was earning $17,000 per month as suggested by the Respondents at the time of the accident and assuming he could now find a job of a watchman with a monthly salary of $7,000, the loss of earning capacity is 60%. The Applicant is still being troubled by pain, headache and dizziness which were assessed to be 5% of loss of earning capacity. Having considered the case as a whole I assess that the Applicant is suffering from a 45% of loss of earning capacity. The compensation to be paid under section 17(1)(b) and section 9 will be as follows,

$18,000 per month X 72 X 45% = $583,200.

II. Compensation for temporary incapacity

22. As the Applicant has been on sick leave for over 3 years, there is no dispute that such compensation should be paid for these 3 years. The only dispute is in relation to the monthly earnings at the time of the accident. According to the Applicant he began to work at that construction site in December 1995. However, the record kept by the First Respondent shows that the Applicant worked from 14 January 1996 up to day of accident on 27 January 1996 at a daily wages of $650. As he had also worked many hours of overtime, the total wages for these 14 days were $12,515.60. This is the only available evidence of his actual earnings. The monthly earnings were about $25,000.

23. Counsel for the Respondents argues that this figure is not representative of the Applicant's monthly earnings at that time. His daily wages was $650 and the monthly earnings should be calculated on this basis. I disagree. I am satisfied that had the accident had not occurred, the Applicant would have worked for a whole month without break at this rate. Section 11 specifies the earnings for the month immediately preceding the date of accident or a calculation favourable to the Applicant. However I take a broad brush approach to the average monthly earnings of the Applicant for the 3 years of 1996, 1997 and 1998 and fix it at $20,000 per month and the total amount is as follows :

$20,000 X 36 months X 2/3 = $480,000

24. During these 3 years up to 31 January 1999 the Applicant had received a total of $323,288 as sick leave pay. This amount should be deducted and the balance is $156,712.

III Medical Expenses

25. Parties have agreed $3,530 as medical expenses which are supported by receipts incurred in Hong Kong and within the statutory limit.

26. The total compensations are as follows,

I.	Compensation for permanent partial incapacity	$583,200
II.	Compensation for temporary incapacity	$156,712
III.	Medical expenses	$3,530
	Total	$743,442
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27. The orders are as follows:-

Judgment in favour of the Applicant against both Respondents in the sum of $743,442.

28. This judgment sum shall carry interest at half of the judgment rate (5.97%) from date of accident i.e. 27 January 1996 to date of judgment i.e. 10 May 1999.

29. Both Respondents shall bear the costs of the Applicant for these proceedings, to be taxed if not agreed.

Representation:

Mr. M.K. Kwan of Messrs. M.K. Kwan & Co. assigned by Director of Legal Aid for Applicant.

Mr. Victor Gidwani instructed by Messrs. Cheng, Yeung & Co. for 1st Respondent and 2nd Respondent.