Razaq-akhtar v. Wang Hoi Transportation Ltd
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DCEC 176/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 176 OF 2006 ____________ IN THE MATTER OF AN APPLICATION BETWEEN
________________ Coram: His Hon. Judge Leung in Court Date of Hearing: 27 April 2007 Date of handing down judgment: 30 April 2007 ________________________________ ASSESSMENT OF COMPENSATION ________________________________ INTRODUCTION 1.This is assessment of the employees’ compensation claimed by the Applicant for injury sustained in the course of his employment as a labourer with the Respondent in November 2004. Judgment on liability was entered in October 2006. 2.The Respondent was absent. The court record shows that the Respondent’s representative was present last December when today’s hearing was fixed. Notice of this hearing was dated this January. I saw no reason which would have prevented the Applicant from proceeding to prove his case. INJURY 3.In the early morning of 10 November 2004, the Applicant was stacking cartons of various heights and sizes on a pallet in the course of his employment with the Respondent. In the course of lifting a carton of about 35 kilograms, the Applicant sprained his back. 4.The Applicant was sent by ambulance to the Princess Margaret Hospital (“the Hospital”). Examination of the Applicant after admittance revealed tenderness over his lower back and decrease in the lower limb power and sensation of both lower limbs. MRI of the lumbar spine revealed mild disc protrusion at L5/S1. After discharge from the Hospital 3 days later, the Applicant attended follow-up treatment as well as out-patient physiotherapist and occupational therapy at the Hospital. LOSS OF EARNING CAPACITY 5.The Employees’ Compensation (Ordinary Assessment) Board (“the Board”)’s assessment of the Applicant’s permanent loss of earning capacity was 5% which was eventually reviewed to become 6%. By notice dated 8 February 2006, the Applicant appealed such assessment. The Applicant relies on the medical report of Dr. Wong Chin Hong dated 1 September 2006. 6.Dr. Wong considered that the Applicant was treated promptly and appropriately after the injury. But his improvement was slow. Dr. Wong opined that the Applicant has reached the status of maximum medical improvement and no surgical intervention was recommended. His major complaint was persistent back pain and inability to cope with his pre-injury job demand. The Applicant testified that in fact he changed to the relatively more sedentary job as a security guard in early 2006. Dr. Wong concluded that the Applicant’s loss of earning capacity should be 7%. 7.It may seem that the difference between the assessment of the Board and that of Dr. Wong is small. However there is really no contrary evidence in this regard from the Respondent and I am actually satisfied with the assessment of Dr. Wong as per his report. I therefore adopt 7% loss of earning capacity for the purpose of this assessment. COMPENSATION Section 8 8.Though pleaded, the claim under section 8 of the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”) was not pursued by the Applicant during the hearing. Section 9 9.The Applicant testified that his monthly income as at the time of the injury was HK$10,500.00. This was the amount stated in Form 2 which, according to the Applicant, was filled in by his employer. Though the Respondent has not filed any list of earnings of the Applicant, there are 2 letters from the Respondent certifying his income. According to the letter dated 4 June 2004, the Applicant’s monthly income then was $10,000.00. According to the other letter dated 17 May 2006, his monthly income then was $10,500.00. The Applicant sustained his injury during the period between these 2 dates and rates of monthly income. I accept the Applicant’s evidence and adopt $10,500.00 as the rate of income for the purpose of assessment. 10.The Applicant was born on 4 September 1979 and was 25 years old at the time of the injury. According to section 7 of the Ordinance, the multiplier for the purpose of section 9 compensation should be 96. 11.The compensation pursuant to section 9 of the Ordinance should be $10,500.00 x 96 x 7% = $70,560.00. Section 10 12.The sick leave certificates produced show that sick leave was granted until 1 November 2005. However, Dr. Wong opined that sick leave until 16 August 2005 was reasonable and appropriate. This accords with the Board’s assessment. That amounted to 271 days of sick leave which the Applicant now claims. 13.The compensation pursuant to section 10 of the Ordinance should be $10,500.00 / 30 days x 271 days x 4/5 = $75,880.00. Section 10A 14.The Applicant claims for medical expenses, namely, 35 sessions of out-patient treatment. This is evidenced by the Applicant’s appointment card. The Applicant testified that he paid $60 for each session. I accept that and the amount should therefore be $60 x 35 = $2,100.00. SUMMARY 15.The compensation should be as follows:
16.Compensation is assessed at HK$148,540.00 and on which interest is allowed at half judgment rate from the date of injury until today and thereafter at judgment rate until full payment. 17.By the interlocutory judgment, the Respondent was ordered to pay the Applicant’s costs to be taxed, if not agreed. For clarity, I order the same in respect of this assessment. The Applicant’s own costs of this assessment will be taxed in accordance with the Legal Aid Regulations.
Representation: Applicant: Mr. Richard Mark Clement of Messrs Massie & Clement, solicitors for the Applicant on the instruction of the Director of Legal Aid Respondent, in person: absent. |