Tsang Kwong v. Mayshing Construction Co Ltd
Read the full judgment text of DCEC 1026/2003 on BabelCite. This District Court judgment.
1. The Applicant was a mason. He was engaged by the Respondent and had injured himself in the course of employment on 13 December 2001. He now claims compensation under S.S. 9, 10 and 10A of the Employees’ Compensation Ordinance.
Cited by 2 cases
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DCEC1026/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 1026 OF 2003 -------------------- IN THE MATTER OF AN APPLICATION BETWEEN:
-------------------- Coram : H.H. Judge Wong in Court Date of Trial : 15th, 16th & 18th February 2005 Date of Handing down Judgment : 16th March 2005 JUDGMENT 1.The Applicant was a mason. He was engaged by the Respondent and had injured himself in the course of employment on 13 December 2001. He now claims compensation under S.S. 9, 10 and 10A of the Employees’ Compensation Ordinance. Wage 2.The Applicant claims that he was a long term casual worker working 26 days a month at $500 a day. He alleged that during the months of September, October and November 2001 he earned $13,000 a month. 3.On the other hand the Respondent said that he was only a casual worker earning $500 a day. He was paid only when he worked. 4.The Applicant said that he was paid sometimes by cheque and sometimes in cash. As for cash he was paid sometimes after a month, sometimes 10 days and sometimes 1½ months. In support of the Applicant’s allegation his lawyer referred to the form the Respondent submitted to the Labour Department stating he earned $13,000 a month. 5.The Respondent’s explanation as to the form he submitted is that he was asked by the staff from the Labour Department whether the Applicant had any other job. As the Respondent had on some occasion rang the Applicant and asked if he could work the Applicant turned him down. So he thought the Applicant had another job. It was only during this application that he learnt the Applicant had no other job. 6.According to his record the Applicant worked 4 days in August, 18 days in September, 14 days in October, 16 days in November and 11 days in December. He was paid $500 a day. This is supported by the cheque he exhibited and the Daily Labour Return forms he submitted to the Hong Kong Housing Society and the chart he made in respect of the monthly attendance at work of all the workers. 7.On the other hand what the Applicant alleged are bare allegations which are not supported or corroborated by other evidence. He said he worked 26 days a month however during some months there were public holidays and he did not have to work. He claimed himself to be a long term casual worker. I find this term very odd. If he were to be employed on a monthly basis he would not be a casual worker. A casual worker would be paid if and when he worked. I do not accept that he was a long term casual worker as he alleged. 8.On balance I accept the evidence of the Respondent. 9.S. 11 concerning the method of calculating earnings stated “
10.According to the Respondent’s wage record over the period of 5 months in which Applicant worked for the Respondent, the Applicant earned an average of $6,300 per month. He earned $8,000 the month preceding the accident, so I adopt $8,000 per month as his earning at the time of the accident for the purpose of calculating compensation under S.S. 9, 10 and 10A. The Injury (1) The Injury Sustained on 13/12/01 11.The Applicant said that he squatted to perform his work, when he stood up his low back hit the edge of the concrete wall. He immediately felt severe pain. He was taken to the Accident & Emergency Department of Queen Elizabeth Hospital for treatment. It was found that his general condition was satisfactory, tenderness was elicited over his back, x-ray of chest and lumbo-sacral spine showed no fracture. 12.According to both Dr. Danny Tsoi for the Applicant and Dr. Lau Hoi Kuen they both agreed that the Applicant only suffered a soft tissue injury to his back. (2) Previous Injury 13.The Applicant had a previous injury due to an accident in 1997. He was examined by the same Dr. Tsoi on 4 April 2000. The accident occurred on 12 March 1997. He fell into a well of about 2 meters and sustained injury to his back and left knee. MRI scan was conducted on 3 March 1998 disc degeneration at L4-5 and L-S1 was detected. X-ray by Dr. Tsoi revealed wedging of T12 and L1 which were common features after compression fracture of the spine. Dr. Tsoi also noted that advanced degeneration of the adjacent end plates were also complications of compression fracture of vertebral body. (3) Treatment 14.On 13 December 2001 in Queen Elizabeth Hospital initial x-ray did not reveal any fracture. He was discharged with a referral to Orthopaedic Department for follow up. 15.During orthopaedic follow up x-ray revealed some fracture. He was decided to be treated conservatively. Applicant received both physiotherapy and occupational therapy for more than 1 year but the back pain was unrelieved. Sick leave till 10 September 2003 was granted. (4) Disability 16.The Applicant assessed by the Medical Assessment Board and on appeal was found to have 4% loss of earning capacity. Quantum (1) Under S. 9 17.Since the Medical Assessment Board on appeal assessed at 4% loss of earning capacity and Dr. Tsoi opined that the assessment is considered reasonable compensation under S. 9 is assessed at
(2) Under S. 10 18.Both Dr. Tsoi and Dr. Lam agreed that the Applicant suffered only back contusion injury. The Applicant did not reveal his previous injury to doctors at Queen Elizabeth Hospital and he was treated for his previous back injury. Further Dr. Tsoi (Applicant’s own doctor) is of the view that the actual condition is likely better than what the Applicant described. Dr. Lau stated that there is probably an element of exaggeration in his symptoms and signs. 19.Dr. Lau also opined that any persistent pain in his lower back should be related to the previous collapsed fracture of the T12 and L1 vertebrae as well as the pre-existing degenerative condition at L4-5 level. The appropriate period of sick leave for the confusion injury should not be more than 2 months. 20.Although S. 10 (2) provides that a period of absence from duty certified by medical practitioner shall be deemed to be a period of total incapacity, this has been rebutted by medical evidence and the exaggeration of the Applicant in respect of his symptoms and the non-disclosure of his previous injury. 21.Since the physiotherapy started on 16 April 2002 for his previous injury he should be given no more than 4 months’ sick leave. 22.Compensation under S. 10 is therefore assessed at
(3) Under S. 10A 23.The receipts exhibited by the Applicant are receipts for physiotherapy which is not connected with the Applicant’s present injury so I give no award under this heading. (4) Total award
25.With interests at ½ judgment rate from 13 December 2001 until judgment and thereafter at judgment rate. 26.The Respondent had already advanced $156,400.00 to the Applicant. This sum exceeded the amount I assessed. Although there is no provision in the Employees’ Compensation Ordinance to repay the amount in excess, however under O. 29 r. 17 on application this Court can order repayment of all or part of interim payment. Since the Respondent had in the original answer counterclaimed. I take it that the Respondent intended to ask for repayment at least in part of the interim payment. In order to avoid duplicity of claim I order the Applicant to repay the balance of money advanced by the Respondent. 27.Order nisi: Costs to the Respondent. Certificate for Counsel. The Applicant’s own costs to be taxed in accordance the Legal Aid Regulations.
Mr. Ho Kwong Wing of Messrs. Samuel Ho & Co. assigned by D.L.A. for Applicant. Miss Bina Suginari instructed by Messrs. C.M. Li, Chow, Pang & Chan for Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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