Rai Premchandra v. Autumn Ltd (in Liquidation)
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DCEC 811/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 811 OF 2011 ________________________ IN THE MATTER OF AN APPLICATION BETWEEN
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________________________________ ASSESSMENT OF COMPENSATION ________________________________ 1.The applicant (“Rai”) suffered injury to his left index finger during work as a bartender under the employ of the respondent (“Autumn”) on 20 September 2009. Autumn was wound up by the order of the court on 8 September 2010. With leave of the court, Rai commenced the present proceedings to claim compensation against Autumn (in liquidation) pursuant to the Employees’ Compensation Ordinance, Cap.282 (“the Ordinance”). 2.Judgment on liability was entered with costs against Autumn on 30 March 2010 for compensation to be assessed. Representative of the liquidator of Autumn was present at the interlocutory stage. So is she in today’s hearing. Nevertheless Autumn does not have a positive case in answer to the claim. THE ACCIDENT AND INJURY 3.On the day in question, Rai was clearing the garbage of the bar operated by Autumn at Lan Kwai Fong. When he picked up a garbage bag with both hands and threw it inside a collection bin, his left index finger was cut by a broken bottle that pierced through the garbage bag from inside. The wound started to bleed badly. 4.At the hospital, examination revealed that Rai suffered a 1 cm long cut at the palmar surface of his left hand near the second metacarpal phalangeal joint. He was transferred to the orthopaedic ward for repair of tendons on the same day. He was discharged on the following day to be followed by postoperative flexor tendon programme. 5.Rai’s rehabilitation consisted of sessions of physiotherapy, heat treatment, ultrasound, magnetic therapy and ginger exercises. Physical examination on 20 November 2009 showed tenderness over the left index finger flexor tendon and limited flexion over the metacarpophalangeal joint and distal interphalangeal joint of the left index finger to about 2/3 of the normal range. Joints were non tender on palpation. Grip power was graded 4/5 over the left hand due to pain. Analgesic palm was prescribed. 6.In December 2009, Rai attended the hospital for pain. During follow-up, complication was discovered in the form of re-rupture of flexor tendons. Pursuant to medical advice, Rai underwent staged tendon reconstruction. He received on 11 December 2009 stage 1 of the operation which involved the insertion of a silastic rod. This was followed by 14 sessions of physiotherapy, magnetic therapy and finger exercises. 7.Stage 2 of the tendon reconstruction was performed on 24 May 2010 involving tendon graft to reconstruct FDP function of the index finger. This was followed by 29 sessions of physiotherapy, heat treatment, ultrasound, densensitization training and finger exercises. 8.Sick leave was granted from 20 September 2009 to 28 October 2010. EMPLOYEES’ COMPENSATION (ORDINARY ASSESSMENT) BOARD (“MAB”) 9.On 1 April 2011, the MAB issued Form 7. For his “left index finger injury resulting in scar, pain and stiffness”, Rai was assessed to be suffering 3% loss of earning capacity. Upon his objection, the assessment was reviewed which led to Form 9 dated 29 July 2011. For his “left hand injury resulting in left index finger PIPJ and DIPJ stiffness”, the assessed loss of earning was adjusted to 5%. 10.Pursuant to section 18 of the Ordinance, Rai lodged an appeal against the assessment by the MAB. 11.As previously directed by the court, Rai adduced medical expert report in support of his section 18 appeal. Autumn elected not to adduce any medical expert evidence. 12.Rai was examined by Dr Wong Chin Hong on 10 January 2012. Dr Wong produced his expert report dated 13 March 2012. 13.Dr Wong recorded the current problems that Rai complained about. They included deceased movement of the left index finger, pain, itchness and weakness. Activities of daily living were manageable. The doctor also recorded the state of the surgical scar and range of movement of the left index finger revealed during the examination. 14.The doctor confirmed that Rai suffered from complete cut of tendons in zone II of his left index finger. Repair of flexor tendons cut in that zone was considered to be technically difficult. Rai’s recovery was complicated by the re-rupture of the flexor tendons. That entailed 2 more surgical operations to reconstruct the tendons with tendon graft as mentioned above. 15.The pain and loss of movement of the left index finger would persistent. So would the pain at the exploration wound and donor site for the graft on the left wrist be. Dr Wong considered that Rai was unlikely to regain full active flexion and hence would have persistent weakness in his left index finger. Rai was advised to modify his work or to switch to jobs that would not demand power or agility involving his left index finger. To give an idea about the loss of earning capacity in a quantitative sense, the expert suggested 8%. 16.Rai is approaching 30 years old. According to him, he received education up to secondary level in Nepal. He speaks Nepalese, some English and no Cantonese. He had worked as construction site worker, waiter and security guard before starting his employment with Autumn in March 2008. He was responsible for making drinks, cleaning and disposal of garbage in his pre-accident job. 17.In view of his background, the range of jobs open to him in Hong Kong would realistically be limited. Though he is right hand dominant, his ability to manage with both hands has been important but now compromised by his injury and permanent impairment. 18.In court, Rai added that after the expiry of the sick leave, he has been working as a part-time restaurant worker. He could not secure a full time job partly because of the residual pain in his hand. In his present job, he works on average 2 to 3 times per week and for 5 to 6 hours each time. He takes orders and clears tables. He is now paid on an hourly wage basis. 19.I find sufficient evidential basis for allowing the section 18 appeal. So I do; and for the purpose of assessment I adopt 8% loss of earning capacity. PRE-ACCIDENT INCOME 20.Rai claims that his pre-accident income was about HK$13,000 per month. Autumn acknowledged in writing that Rai’s pre-accident basic salary was HK$9,000 and daily meal allowance of HK$30. The Inland Revenue record evidences the same. In addition, there were tips in the sum of about HK$3,000 a month. The amount of the tips could vary from month to month and therefore the amount suggested had to be approximate. The pre-accident monthly income of HK$13,000, in my judgment, is a fairly accurate figure to be adopted for the purpose of assessment. SECTION 9 COMPENSATION 21.Pursuant to sections 7(1)(b) and 9(1)(b), the compensation for permanent partial incapacity of Rai will be HK$13,000 x 96 x 8% = HK$99,840. SECTION 10 COMPENSATION 22.A total of 404 days of sick leave have been granted. The sick leave period was certified by the MAB and considered to be reasonable as well by Dr Wong. Pursuant to section 10, the compensation for temporary incapacity of Rai will be HK$13,000 x 4/5 x 404/30 = HK$140,053.33. 23.Rai admitted having received periodical payments in the total sum of HK$68,000. Giving credit to that, the net compensation will become HK$72,053.33. SECTION 10A COMPENSATION 24.Rai claims medical expenses in the total sum of HK$7,605. The amount is verified by reference to the receipts produced. CONCLUSION 25.In summary, the compensation is assessed as follows:
26.There should be interest on the above sum from the date of accident until today at half judgment rate. ORDER 27.Autumn is to pay compesation as assessed together with interest as aforesaid. Further interest from today shall run at the judgment until full payment. Rai shall have the costs of these assessment proceedings, including any costs reserved therein. Costs shall be taxed, if not agreed. Rai’s own costs shall be taxed in accordance with legal aid regulations.
Mr John W R MASSIE of Messrs Massie and Clement for the applicant upon the assignment of the Director of Legal Aid |