Worker claims long-term compensation, citing surgeries and treatments for incapacity
A Hong Kong District Court recently dealt with a compensation case under the Employees' Compensation Ordinance (ECO). The case involved a factory worker who suffered a severe hand injury while operating a filtering machine.
The worker argued that he was asked to remove trash from the machine by hand without proper safety equipment, leading to his injury. He claimed compensation for an extended period of incapacity, citing multiple surgeries and ongoing medical treatments.
The worker also said that despite his short employment period, his compensation should be calculated based on his daily wage rate.
Worker’s factory accident
The case centred on a worker who had been employed at a plastic factory for less than a month when the accident occurred. On 15 August 2018, the worker's right hand was crushed by a filtering machine, resulting in deep lacerations, bone fractures, and tendon damage. The severity of the injury necessitated multiple surgeries and an extended period of medical treatment.
The court heard that the worker had been asked to remove trash from the machine by hand, without the provision of a screen filter. The worker was 42 years old at the time of the accident and had started working for the employer on 29 July 2018. His job duties involved operating a filtering machine.
Immediately after the accident, the worker attended the Accident and Emergency Department of Pok Oi Hospital. X-ray examination revealed dislocation of the right middle finger distal interphalangeal joint and fracture of the right ring finger distal phalanx. Due to the severity of the injury, the worker was transferred to the Orthopedics Department of Tuen Mun Hospital for emergency surgery.
The worker underwent multiple operations and treatments over the following months. According to medical reports, he suffered from impaired mobility of the joints of the ulnar 4 fingers of his right hand, ankylosis of distal interphalangeal joint of middle and right finger, and hyperesthesia over proximal and distal phalanges of middle and right finger.
Calculating worker’s compensation
One of the key issues in the case was determining the worker's monthly earnings for the purpose of calculating compensation. The court had to address the fact that the worker had been employed for less than a month at the time of the accident.
The judge decided to use the second limb of section 11(1)(b) of the ECO to compute the worker's monthly earnings. This approach allows for flexibility in cases where the employment period is short. The court agreed with the parties that the worker's monthly earnings were HK$25,200, based on 21 working days per month at a daily rate of HK$1,200.
"In light of the consensus reached by the parties as well as the evidence before me, there is no question that it is practicable to calculate or determine [the worker's] monthly earnings," the judge stated.
The court explained that sections 11(1)(a) and 11(1)(b) of the ECO must be read in conjunction with each other. These provisions are concerned with scenarios where the injured employee was employed by one single employer. The court noted that there was no room to include salaries paid by another employer before the employment started.
Medical evidence and incapacity period
Another significant issue was the length of the incapacity period. The Employees' Compensation (Ordinary Assessment) Board had certified a sick leave period of 683 days, but the Fund argued for a shorter period of 482 days.
The court examined various pieces of medical evidence, including rehabilitation assessment reports from occupational therapists. These reports indicated that the worker was not fully ready to resume work as early as September 2019, despite attempting to look for jobs due to financial pressure.
One rehabilitation assessment report dated 23 September 2019 stated that the worker "was not ready to meet job demands" and there was a "significant degree of limitation". Later reports in November and December 2019 indicated that the worker could only "marginally match" work demands and could only "manage certain work tasks if special arrangement was offered".
The judge considered this evidence along with the worker's testimony. The worker explained that he faced significant financial pressure at the time, which caused problems for his family. This was why he tried to look for jobs in factories when he might not have been completely ready.
Court’s decision
After considering all the evidence, the court awarded the worker a total compensation of HK$321,933, which included payments under sections 9, 10, and 10A of the ECO, minus advance payments already received.
The judge emphasised the importance of considering all available evidence when determining compensation:
"Taking into account the totality of the evidence (including the opinion expressed by [the doctors], the opinion expressed by the occupation therapists, the contents of the rehabilitation assessment reports and [the worker's] evidence), I am of the view that sick leave shall be granted up to 15th January 2020."
Regarding the role of the Employees Compensation Assistance Fund, the judge noted:
"I am of the view that the Fund did not take a hostile or adversarial stance in the present proceedings. Like the scenarios in other cases, the Fund participated in the present proceedings for the purpose of safeguarding public interest and ensuring that the assistance mechanism that involve public funding would not be abused."
This case highlights the potential financial and legal consequences of workplace accidents. It underscores the importance of maintaining safety protocols, providing adequate safety equipment, and ensuring comprehensive insurance coverage.
